Corbett v. Cnty. of Lake

64 N.E.3d 90

407 Ill.Dec. 712

Kathy CORBETT, Plaintiff–Appellant,

v.The COUNTY OF LAKE and the City of Highland Park, Defendants. (The City of Highland Park, Defendant–Appellee).

No. 2–16–0035.

Appellate Court of Illinois, Second District.

Sept. 23, 2016.

Peter F. Higgins, of Lipkin & Higgins, of Chicago, for appellant.

Michael G. Nerheim, State's Attorney, of Waukegan (Janelle K. Christensen and Kevin J. Berrill, Assistant State's Attorneys, of counsel), for appellee.

OPINION

Presiding Justice SCHOSTOK delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Kathy Corbett, was seriously injured while riding her bicycle on the Old Skokie Bike Path in Lake County. She filed this action against defendants, the County of Lake (County) and the City of Highland Park (City), alleging that they were liable for defects in the path that caused her accident. The trial court granted both defendants summary judgment (735 ILCS 5/2–1005(c) (West 2014)), based on the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1–101 et seq. (West 2012)). Plaintiff appeals only the judgment in favor of the City, arguing that the trial court erred in holding that the City was immune from liability because, as a matter of law, the bicycle path was a "riding trail" within the meaning of section 3–107(b) of the Act (745 ILCS 10/3–107(b) (West 2012)). We reverse the judgment in favor of the City, and we remand.

¶ 2 We summarize the facts pertinent to this appeal. Plaintiff's complaint alleged as follows. On August 21, 2013, and at all other pertinent times, defendants controlled and maintained that part of the path within Highland Park and specifically the section of the path running parallel to Skokie Valley Road (U.S. Route 41) in between the intersections with Old Deerfield Road and Park Avenue West. By agreement with the County, the City was responsible for routine maintenance of the path, including repairing the pavement. Before August 21, 2013, defendants were on notice that weeds and other vegetation were growing through the asphalt, making portions of the path broken, bumpy, and elevated. Defendants were willfully and wantonly indifferent to the danger. On August 21, 2013, plaintiff, part of a group of cyclists riding together, rode her bicycle over a defective area and was thrown off. She hit the ground and was severely injured.

¶ 3 The City's answer raised the affirmative defense of immunity under section 3–107(b) of the Act, which reads, "Neither a local public entity nor a public employee is liable for an injury caused by a condition of * * * [a]ny hiking, riding, fishing or hunting trail." 745 ILCS 10/3–107(b) (West 2012). The City later moved for summary judgment, based on section 3–107(b) of the Act. The City noted that this section provides absolute immunity, even as to willful and wanton conduct. The City then argued that, under the limited case authority that exists on the meaning of " riding trail" (which the Act does not define), the bike path was one.

¶ 4 The City's motion reasoned as follows. In Brown v. Cook County Forest Preserve, 284 Ill.App.3d 1098, 1101, 220 Ill.Dec. 471, 673 N.E.2d 383 (1996), the First District held that the bicycle path on which the plaintiff was injured was a "riding trail," because it was commonly used by cyclists and was "designed to provide access for bicyclists to the natural and scenic wooded areas" around Saulk Lake. The court held that it made no difference that the path was paved. Id. In McElroy v. Forest Preserve District of Lake County, 384 Ill.App.3d 662, 323 Ill.Dec. 611, 894 N.E.2d 170 (2008), and Mull v. Kane County Forest Preserve District, 337 Ill.App.3d 589, 271 Ill.Dec. 978, 786 N.E.2d 236 (2003), this court held that the bicycle paths at issue were riding trails per section 3–107(b). In McElroy, this court emphasized (according to the City's motion) that the path had been built for the use of riders and enabled them to enjoy scenery and wildlife. McElroy, 384 Ill.App.3d at 669, 323 Ill.Dec. 611, 894 N.E.2d 170. In Mull, this court stressed (according to the City's motion) that, although the path ran through some developed areas, it was surrounded by wild grasses and shrubs. Mull, 337 Ill.App.3d at 592, 271 Ill.Dec. 978, 786 N.E.2d 236.

¶ 5 Here, the City's motion argued, the depositions of plaintiff and other people established that the bike path was a "riding trail." It was intended for recreational bicycling; surrounded by shrubs, trees, and wild grasses; separated from residences and commercial businesses; and set back from the roadway. "Most compelling," plaintiff and her fellow riders called it "the ‘bunny trail’ because of the bunnies that were regularly present along the route."

¶ 6 The City's motion attached several exhibits, the pertinent parts of which we summarize. In her deposition, plaintiff testified that the southern end of the part of the path at issue was the intersection with Old Deerfield Road, which has two lanes. At the intersection, there is a stop sign for bicyclists on the path but not for vehicles on the road. On August 21, 2013, plaintiff was with a group with whom she regularly rode.

¶ 7 Plaintiff testified that, just before the accident, the group was riding south toward the intersection. About one-tenth of a mile north of the stop sign at the intersection, the person two places ahead of her, Hassan Syed, hit a bump and lost control of his bicycle. Syed crashed, and his bike was turned sideways. The rider immediately in front of plaintiff was able to veer off. However, plaintiff had no place to go; she rode over Syed and his bicycle. As a result, she was thrown off her bike, rose into the air, and fell hard onto the paved surface. Plaintiff did not actually see Syed hit a bump, but he or another rider told her about it later.

¶ 8 Opposing counsel asked plaintiff whether the area of the accident was "surrounded by shrubs" and "wild grasses"; whether it was "separated from residences" and "commercial businesses"; and whether it was "set back from the highway." Plaintiff answered each question, "Yes." Plaintiff also testified that her accident occurred "just north of Old Deerfield Road on the bunny trail. The bike path. We call it the bunny trail because they have a lot of bunnies on it."

¶ 9 Yves Robaud, who was riding with plaintiff and the others on August 21, 2013, testified in his deposition as follows. Trees line both sides of the path. Asked whether the stretch where the accident occurred was "separated * * * from residences and commercial businesses" and "set back from the highway," Robaud responded, "Yes." The accident occurred perhaps 200 yards north of the stop sign. Robaud's description of the accident was consistent with plaintiff's; he had been in between Syed and plaintiff and had seen Syed fall directly in front of him. Robaud rolled over Syed's legs and turned around to see plaintiff lying on the ground, in pain.

¶ 10 In his deposition, Syed testified consistently with plaintiff and Robaud about the accident. He stated that there were shrubs on both sides of the path. He also stated, as did plaintiff and Robaud, that the area of the path where the accident occurred was separated from residences and commercial businesses and set back from the highway. He added, "We call [the area of the path where the accident occurred] a bunny path." This was "[b]ecause there are a lot of bunnies running around there," although on the day of the accident "there was no bunny."

¶ 11 In his deposition, John Stevens, a member of plaintiff's group on the day of the accident, testified that the path was about six feet wide, paved with asphalt, and lined with some type of growth most of the way. The vegetation included hedges and bushes and a small amount of grass. As far as he knew, the path was separated from commercial businesses and any outside traffic (i.e., by those other than bikers and walkers).

¶ 12 Plaintiff responded to the City's motion for summary judgment. She argued that, under the case law, the stretch of the path at issue cannot be considered a riding trail, as it runs through a developed area of Highland Park, not through a forest or a mountainous region. The path is sandwiched between U.S. Route 41 less than a block to the east and railroad tracks less than a block to the west. There are commercial buildings on both sides of the path, and many of the businesses have cyclone fences that abut the path, with industrial materials stacked up immediately behind the fences. Also, large utility poles for Commonwealth Edison, which owns the right-of-way, line the entire length of the path, and numerous power lines are suspended overhead. The path also bypasses Buckthorn Park, which the City owns. Further, the area of the accident intersects with Old Deerfield Road, a busy city street.

¶ 13 Plaintiff's response attached her affidavit. She stated as follows. She was familiar with the bike path, including the accident scene. The path does not go through a forest or a mountainous region. Some large bushes and some grass line the path, but there are no trees in the area of the accident. The path also passes by Buckthorn Park. Large utility poles line the entire path, with multiple power lines overhead. There are areas where businesses stack materials against fences to the side of the path. At the location of the accident, business buildings butt up against the path and several parking lots are nearby. In the area of the accident, a cyclone fence abuts the east side of the path, and the highway and the railroad tracks are less than a block from the path.

¶ 14 Plaintiff's affidavit attached photographs in support of most of her statements about the path. The first is a Google aerial photograph with "Buckthorn Park" printed adjacent to the path. The second is a shot of a bicyclist riding on the path, with utility poles and overhead wires on either side; shrubs are on one side of the path, while the other edge is mostly grass. The...