The Law Offices of James M. Freeman, P.C.

CBF and LIB have been trying to push through a legislative fix for Boub v. Wayne Township. See a detailed discussion of the legislative history of SB 275 at LIB's website or the Illinois General Assembly website. Boub has had different effects on bicyclists in the State of Illinois.

Justice Heiple predicted the future in his scathing dissent. He wrote, "Besides depriving injured bicyclists of just compensation for their injuries, the principal effect of the majority decision will be to discourage municipalities from taking any measures to make roads safer and more hospitable for bicyclists. Because the majority precludes liability whenever the municipality in question does not intend for bicyclists to use its roads, a loss-averse municipality, in order to minimize its exposure to liability, might [183 Ill.2d 540] remove from its roads any evidence that bicyclists are intended users, such as bike lanes or special signs. Bicyclists would then be in even more jeopardy than that occasioned by today's decision. Given the majority's ruling, the only safe bicycle in Illinois is a stationary exercise bike located in one's home or at the gym." I wouldn't say that the only safe bicycle is a stationary one, but Boub has done damage. In many instances bicycling infrastructure has been stopped, hindered or removed because governmental entities are worried about assuming liability (See LIB's list of adverse effects of Boub here).

Boub also allowed governmental entities complete immunity from bicyclists who are injured because of defects in roadways - even when such a defect would have been hazardous to a car or motorcycle. This point did not escape Justice Heiple when he wrote, "The accident which befell plaintiff in this case could just as easily have befallen a motorcyclist, but under the majority's standard, the latter could recover while the former cannot. There is no rational basis for this distinction. Furthermore, under the majority's standard, even a road condition which is dangerous to automobiles would not be sufficient to create a legal duty to the instant plaintiff. For example, if the construction crew had removed the entire bridge without closing off the area to traffic, a motorist whose car crashed into the abyss could maintain a suit against the Township, while plaintiff, after suffering the same fate on his bicycle, could not."

The cycling community tried to push through a fix for these two problems, however, the legislation hasn't seen the light of day for over two years.

7        "Section 5.  The Illinois  Vehicle  Code  is  amended  by
8    changing Section 11-1502 as follows:

9        (625 ILCS 5/11-1502) (from Ch. 95 1/2, par. 11-1502)
10        Sec.  11-1502.   (a) Traffic laws apply to persons riding
11    bicycles.  Every person riding a bicycle upon a highway shall
12    be granted all of the rights and shall be subject to  all  of
13    the  duties  applicable  to  the  driver of a vehicle by this
14    Code, except as to special regulations in this Article XV and
15    except as to those provisions of this  Code  which  by  their
16    nature can have no application.
17        (b)  A  person  riding  a  bicycle  is  an  intended  and
18    permitted  user  of  any  highway  in  Illinois  except for a
19    highway on which bicycle use has been specifically prohibited
20    by law  and  the  prohibition  is  indicated  by  appropriate
21    signage.  This  subsection  (b) does not create liability for

                        -2-      LRB093 08459 DRH 16879 a
1    any public entity for  the  failure  to  remedy  any  surface
2    condition  of  a  public  right-of-way that is hazardous to a
3    person riding a bicycle if  that  surface  condition  is  not
4    hazardous to a motor vehicle. Except as expressly provided by
5    law,  this  subsection  (b)  does not impose an obligation to
6    upgrade, widen, or reengineer existing  public  rights-of-way
7    for  use  by  bicyclists and does not impose an obligation to
8    maintain streets  and  highways  to  a  higher  standard  for
9    bicylists.
10    (Source: P.A. 82-132.)".

The proposed legislation would have made bicyclists intended and permitted user of the roadway. It would also have solved the two previously discussed problems presented by the Boub decision.

First, the legislation would have removed any disincentive for municipalities to install bicycle infrastructure because it would have done away with any difference in a municipality's liability on a regular roadway or a bicycle route. Under SB 275 the disincentive that caused all of the problems listed on LIB's website would be removed and downstate cyclists would begin to see developments in bicycling infrastructure once again.

Second, the legislation would have done away with the injustice presented by Boub that would not allow a cyclist to recover even where a car driver or motorcyclist could. Under the hypothetical asserted by Justice Heiple in which the bridge was removed, SB 275 would allow a bicyclist to sue, as the condition presented would have been dangerous to a car or motorcycle.

This legislation is a compromise for the average Chicago cyclist. Here we enjoy numerous bicycle lanes- purportedly covering 5% of Chicago's roadways. If a cyclist is injured because of a defect in those bike lanes one could bring suit against the city to recover damages. Under the new legislation we would give up that right unless the bike lane hazard would have presented a danger to an individual driving a car. As a practical matter, there are certain conditions which are perfectly safe for cars, and not for bicycles- slotted storm drains for instance. The legislation overlooks those differences.

The Boub Court was divided with three justices dissenting. The distinct possibility exists that Boub could be overturned. If that happens we might be better off than if the legislative fix had passed. Hopefully future courts will recognize the injustices presented by Boub.