Legally Speaking – with Bob Mionske

By Bob Mionske

Dear Bob;
Is it true that in Illinois, an injured cyclist cannot sue anyone fordamages? Isn’t that just a back door way of banning bicycling?
FL
IllinoisDear FL;
No, it is not true—mostly. The case you are referring to is Boubv. Township of Wayne, from 1998. Jon Boub was riding his bike on aquiet rural road in Illinois. He started across a one-lane covered bridge.The bridge was originally built with two parallel sets of planks for thewheels of carriages to run on. Under these planks were the floor joistsof the bridge, running perpendicular to the roadway. Over the years, thegap between these joists had been filled with asphalt, making the wholeroadway within the bridge level. However, shortly before Boub’s ride, theasphalt had been removed as part of a bridge renovation project. Therewere no work crews or warning signs at the bridge at the time. Boub’s frontwheel ran off the side of the narrow carriageway planks, fell between twoof the joists, and he was thrown off the bike and badly injured.He sued the local township for negligence. The township countered thatthey were immune from liability under section 3-102 of the IllinoisTort Immunity Act. Section 3-102(a) did not cover municipalities maintainingproperty for uses that are both permitted and intended. Boub argued thatbicycling was both a permitted and intended use of the roadways in Illinois.The Illinois Supreme Court ruled that while bicycling was a permitted useof roadways, it was not an intended use, the township was immune,and thus Jon Boub could not sue it.Furthermore, the court determined that only the intent of the localgovernment counted. Thus, the fact that federal and Illinois state transportationpolicy encouraged bicycle use on roadways was irrelevant; only local intent,as manifested in the presence or absence of special pavement markings andsigns at a particular location is relevant in determining whetherpedestrians and bicyclists are intended to use a given stretch of roadway.First, let me point out that Boub was not a negligence case,it was an immunity case. In the United States, each state is the seat ofall political power. The states have granted certain limited powers tothe federal government in the United States Constitution. The power ofa state is limited only by the restrictions it places on itself in itsstate constitution. Therefore, unless a state says otherwise in its constitutionor laws, it has sovereign immunity and cannot be sued. States can chooseto extend this immunity to local governments if they wish. Illinois hasdone so, and its grant of immunity is very broad-reaching. For better orfor worse, the State of Illinois has decided to make it very, very hardto sue local governments, even if they act negligently. Is that fair? No.Is it legal? Yes.So what does this mean for cyclists? If one has been hurt through thenegligence of anyone other than the state or a local government, the TortImmunity Act is not applicable. Remember, this was a case that definedimmunity, not negligence. Had Jon Boub been struck by a private motorvehicle operated negligently, he could have sued in Illinois in exactlythe same way as in any other state. It also does not change the fact thatif a local government ignores the basic needs of cyclists, it is actingnegligently. It does mean, however, that cyclists are barred from suingthe state or a local government over this negligence. An injured cyclistcould still seek compensation from a local government’s insurance carrier.True, most localities are self-insured, but some aren’t, and it would (probably)be possible to sue the insurance carrier for restitution.Another possible route would be to sue, not the government, but a governmentofficial, such as the township road supervisor. Because of language containedin the Eleventh Amendment to the United States Constitution, people havebeen forced to sue state officials instead of the states themselves formany years. Almost always, the state will step in to indemnify any stateofficial acting in her official capacity, so suing the official achievesthe same end as suing the state. Finally, it is possible to sue the localgovernment for violating either the United States Constitution’s rightto free travel, or a similar provision in the Illinois constitution. Astate government cannot hide behind immunity for the purposes of violatingthe federal constitution or its own state constitution, and it cannot extendthis shield to local governments.Finally, local immunity only extends to negligence. Negligence is thelack of reasonable care, or, to put it bluntly, it’s stupidity. If thecause of action results from an intentional act or recklessness(defined as the wanton and willful disregard of basic consideration forothers) the Illinois Tort Immunity Act is not applicable. In some instancesand in some other states, the failure of highway officials to make reasonablerepairs once they were notified of an existing defect was held tobe reckless behavior. (The issue has, to my knowledge, never been testedin Illinois.) So the best thing you, as an individual cyclist in Illinois,can do is send letter after letter to local and state officials warningthem of roadway dangers to cyclists. Moreover, if you can establish thata harm resulted from actions intended to hurt cyclists, no immunity holds.So in conclusion, the answer to your question is no, the Boub rulingis not a license to kill cyclists, although it has sometimes been portrayedthat way. It does, however, make it very hard to go after local governmentsfor purely negligent acts or omissions. On the other hand, because of theEleventh Amendment, lawyers have been struggling with the question of governmentalimmunity for over a century. Although not a universal solution, the mostprevalent response has simply been to sue government officials acting intheir official capacity instead of their employers. The result is usuallythe same. And if the defendant is not a local government, Boub is not evena consideration; the law of negligence in Illinois is, generally speaking,the same as it is in any other state.
Good luck
Bob(research and drafting assistance provided by Bruce Epperson-lawstudent-Nova Southeast University)

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Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

If you have a cycling-related legal question, please send it to [email protected] Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:
The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.