Illinois Supreme Court rules Chicago not liable for pothole on street
not ‘intended’ for cyclists
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[December 21, 2023]
By DILPREET RAJU
Capitol News Illinois
draju@capitolnewsillinois.com
Bicyclists are nearly always “permitted” users of the road — but are
only “intended” users of the road when bike lanes or signage are
present, the Illinois Supreme Court ruled last week.
That distinction means the city of Chicago is not liable for damages
sustained by a bicyclist who was injured after he hit a pothole on a
city street that had no such signage.
In June 2019, Clark Alave was biking on the North Side of Chicago when
he hit a pothole in a crosswalk and fell off his bicycle, resulting in
fractured teeth, cuts on his face and other bodily injuries, court
records state.
Alave filed a complaint for negligence against the city, alleging it
neglected its duty to maintain the crosswalk, resulting in the pothole
that ended up injuring him.
Alave’s complaint argued the city owed him a reasonable duty of care. A
state appellate court agreed and sided with Alave, but in a unanimous
decision published Dec. 14, the Illinois Supreme Court reversed that
decision and sided with the city.
The case pertained to a section of the Tort Immunity Act, which states
local public entities have a duty to maintain property in a safe
condition for “people whom the entity intended and permitted to use the
property.” The act also notes a public entity “shall not be liable for
injury” unless it received notice of an unsafe condition in enough time
to remedy it prior to the injury.
![](http://archives.lincolndailynews.com/2023/Dec/21/images/ads/current/rohlfs_lda_WORSHIP_2023.png)
Ultimately, the case came down to whether bikers are always “intended”
users of roadways, particularly without the immediate presence of bike
lanes, or whether they are simply “permitted” users.
The court cited a 4-3 decision from 1998 in the case of Boub v. Township
of Wayne, which held, “Bicyclists are permitted, but not intended, users
of the roads, in the absence of specific markings, signage.”
Though there was no signage indicating bicyclists could ride on West
Leland Avenue where the accident occurred, the plaintiff’s legal team
argued the presence of a Divvy bikeshare station “about 100 feet away
from the pothole” was an indication of the City’s intended use of the
street for bicycles.
An appellate court agreed with the assertion, but the Supreme Court
rejected it.
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![](../images/122123PIX/news_a1.gif)
After Clark Alave suffered injuries from a crash involving a pothole
in Chicago, the Illinois Supreme Court ruled cyclists are not always
“intended” users of the road, meaning the city wasn’t liable for
Alave’s injuries. (Capitol News Illinois illustration by Andrew
Adams)
![](http://archives.lincolndailynews.com/2023/Dec/21/images/ads/current/atlantabank_quarter_FFARM_2023.png)
Justice David K. Overstreet authored last week’s opinion, with the other
six justices concurring. Overstreet wrote that because bicyclists could
ride on the sidewalk adjacent to the Divvy station, riding on the
pothole-ridden street was not a “necessity” for Alave.
The opinion cites the Chicago Municipal Code, which grants bicyclists
the right to ride on city streets but specifically states, “This does
not mean that the City intended bicyclists to use every roadway in the
city that motorists are intended to use.”
In April, a pair of biking advocacy nonprofits, the Active
Transportation Alliance and Ride Illinois, filed amicus briefs in
support of the plaintiff. The Illinois Trial Lawyers Association also
filed a brief in support of Alave.
Dave Simmons, executive director of Ride Illinois, said in an interview
with Capitol News Illinois he and other advocates have been “frustrated”
with the 1998 decision and now the 2023 decision. He said that while
people shouldn’t be able to sue municipalities on a whim, some
regulations would benefit everyone.
“There should be some responsibility, and the fact that bicycles are
permitted – and not intended users – of the road just thwarts our
efforts to make biking, in turn walking, something that more people can
use to get around or enjoy,” Simmons said.
During the oral arguments before the Supreme Court in September, Stephen
Collins, counsel for the city, referenced the Boub decision.
In that decision, he said, the court “recognized the tremendous cost to
municipalities that would be associated with making all roadways in a
reasonably safe condition for bicycling.”
“In my view, that would just be prohibitively expensive,” he said.
Justice Lisa Holder White asked Collins if bikers in permitted but not
intended areas are “biking at their own risk.”
“That’s right, Your Honor,” Collins said.
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