Traveling Second Class
The lower court agreed, ruling that bicyclists were permitted to use the roads but weren’t the intended users. Boub appealed and lost again, then appealed to the Illinois supreme court. Four weeks ago, the supreme court ruled four to three against Boub.
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Hickey answered that the township’s highway commissioner had acknowledged in a deposition that officials were aware that bicyclists frequently used the road and bridge, and he pointed out that a road map approved by the Du Page County Board shows that stretch of the road as “generally suitable for bicycling.” He added that “actions taken after an accident can indicate intent” and noted that the township had closed the bridge right after Boub’s accident. He also asserted that “the burden of proof is on [the defense] to show that bicyclists are not intended users,” and he insisted that if this were true, then other statutes such as the Illinois Bikeway Act and the Illinois Vehicle Code “would have no meaning.”
“It isn’t the local entity doing the changing,” Dutton answered. “The legislature says–”
Dutton later argued that Boub’s accident “would be actionable only if the road hazard also posed a threat to motor-vehicle users.”
On October 22 justices McMorrow, Bilandic, Benjamin Miller, and Charles Freeman voted against Boub. Justice Miller wrote, “There are no affirmative manifestations here that Wayne Township intended–rather than simply permitted–bicyclists to use the road and bridge where the accident occurred. We have no quarrel with the proposition that bicycle riders are permitted users of the road and bridge involved in this case; we do not believe, however, that they must also be considered intended users of those facilities.” He added, “[Bicycling advocates] argue that granting the defendants immunity would only serve to create a powerful disincentive to the continual upgrading and improvement of bicycle routes in the state….We believe that these questions of public policy, however, are better resolved by the legislative branch of government than by the judicial branch. Indeed, the potential implications of such a shift in policy are substantial and far-reaching….[A ruling in Boub’s favor] would, we believe, open the door to liability for a broad range of pavement conditions, such as potholes, speed bumps, expansion joints, sewer grates, and rocks and gravel, to name but a few.”
“The recreational standard should still apply,” Dutton says, “because of the bicycle’s inherent nature.”
