Dynek v. City of Chi.

2020 IL App (1st) 190209

169 N.E.3d 798

446 Ill.Dec. 135

Addison DYNEK, Plaintiff-Appellant,

v.The CITY OF CHICAGO, Defendant-Appellee.

No. 1-19-0209

Appellate Court of Illinois, First District, Fourth Division.

Opinion filed June 11, 2020

Michael M. Viglione, of Ryan, Ryan & Viglione, of Waukegan, for appellant.

Mark A. Flessner, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Stephen G. Collins, Assistant Corporation Counsel, of counsel), for appellee.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 The trial court entered judgment on the jury's verdict, which found defendant, the City of Chicago (City), not liable in the negligence cause of action brought by plaintiff, Addison Dynek.

¶ 2 On appeal, Dynek argues that he is entitled to a new trial based on the trial court's alleged errors regarding jury instructions, special interrogatories, motions in limine , the exclusion of evidence, and the City's improper statements during closing argument. Dynek also argues that the trial court abused its discretion by denying his motion for sanctions based on defendant's alleged discovery violation.

¶ 3 For the reasons that follow, we affirm the judgment of the trial court.¹

¶ 4 I. BACKGROUND

¶ 5 In October 2015, Dynek had a bicycle accident while riding over the Chicago Avenue bridge. He sued the City for negligence, alleging that his front tire went into a hole created by a "broken grating bar" on the bridge, causing him to fall and sustain injuries. Dynek alleged the City was negligent by failing to repair the hole and by making the bridge part of a bicycle route even though the bridge was not safe for cyclists.

¶ 6 Among its affirmative defenses, the City asserted that the condition described by Dynek was reasonably safe, he was comparatively negligent, the City was entitled to discretionary immunity for its designation of bicycle routes, and the statute of repose barred a claim based on the design of the bridge.

¶ 7 At trial, Dynek testified that he usually rode his bicycle east on Chicago Avenue to get to his office on La Salle Street. Chicago Avenue did not have designated bike lanes, but Dynek believed that the signs on Chicago Avenue showing bicycle symbols and distances to various destinations, like the lakefront, "[told] bikers where to go." He took Chicago Avenue because it was the most direct route for his commute. Although Kinzie Street had a protected bike lane, he did not take Kinzie Street because that route would have been longer for him to get to work. He had previously ridden his bicycle over the Chicago Avenue bridge without difficulty.

¶ 8 About 8:30 a.m. on the date in question, Dynek rode east on Chicago Avenue "just going with the flow of traffic." Traffic was moving at the bridge, which had two eastbound lanes for traffic. He was riding in the right eastbound lane on the bridge when a car stopped suddenly in front of him and "cut off" his path. It was impossible to get around the car on its right side, so he turned his bicycle to the left to get around the car. His bicycle then "stopped," causing him to fall. After he fell, he looked back at his bicycle and saw that it was "lodged in the grate" on the bridge.

¶ 9 Later, he returned to the bridge and determined that his bicycle "got trapped" at the centerline between the eastbound and westbound traffic and between grating panels where there was "also an old broken grating bar." The broken grating bar was just west of a portion of the bridge that was filled with concrete, which was at "[t]he middle section of the bridge." Dynek testified that the broken grating bar and gap between grating panels, together, caused his accident. He acknowledged, however, that his earlier affidavit describing the accident did not mention a gap between grating panels.

¶ 10 Eyewitness Peter Taub testified that he was riding his bicycle behind Dynek at the time in question. Taub estimated that Dynek was traveling about 20 miles per hour as he approached the bridge. Eastbound vehicular traffic near the bridge was not moving, and Dynek was riding his bicycle between the stopped cars. Taub said that it was typical during the morning rush hour for bicyclists to try to make their way through stopped vehicles. Taub did not see the accident. When he reached the bridge, he saw that Dynek was lying on the westbound lane of the bridge and Dynek's front bicycle tire was lodged in a gap between the metal grates and oriented in an eastbound direction. The space where the bicycle got lodged was between the eastbound and westbound lanes and just past the crest of the bridge and east of the bridge's concrete center portion. Taub did not recall seeing a broken grating bar where the bicycle was lodged.

¶ 11 Cathryn Shubert testified that she had a bicycle accident over the Chicago River on the La Salle Street bridge, which also had metal grates. She stated that bicyclists had to navigate that bridge by going straight and not turning their front wheel or else it would get stuck in a gap between grating panels. Her accident happened when she tried to maneuver around a car in front of her, but her tire did not get stuck in a gap between grating panels. Afterward, she petitioned the City to examine the safety of metal grate bridges for bicyclists, and the City hired engineering firm T.Y. Lin for that purpose.

¶ 12 In 2004, T.Y. Lin issued a report that identified ways to improve metal grate bridges and make them safer for cyclists. The report found that the metal grating on bridges could cause a channeling effect or sliding for bike tires and narrow tires could become lodged in the gaps between bridge grates. Longitudinal gaps, which were oriented in the direction of travel, were the most problematic for cyclists. The report rated the deck quality of the Chicago Avenue bridge as poor.

¶ 13 Mike Amsden was the assistant director of transportation planning at the City's transportation department at the time of Dynek's accident. Amsden was in charge of the City's bike map in 2014 and 2015 and did not know about the T.Y. Lin report until Dynek sued the City. The City's bike map designated Chicago Avenue between Elston Avenue and the lakefront as a signed bike route but had a squiggly line over the Chicago Avenue bridge, which warned cyclists to use caution there. Amsden stated that metal grate bridges were a "fact of life" that people had to cross throughout the City, but he knew these bridges were difficult and intimidating for cyclists to cross at times. He relied on his personal judgment when he designated signed bike routes and considered factors like destinations, street widths, traffic volume and street ownership.

¶ 14 Amsden chose to designate Chicago Avenue as a signed bike route because it connected to many mass transit lines, the lakefront trail, and the bike lanes on Milwaukee Avenue. The width and amount of vehicular traffic on Chicago Avenue did not have enough space to install bike lanes. Amsden rejected the option of designating Division Street as a bike route because Division Street had two bridges over the Chicago River and connected to fewer destinations whereas Chicago Avenue had just one bridge. He also rejected North Avenue, which was a state route, was narrow, and had highspeed traffic. Grand Avenue also had highspeed traffic. Amsden stated that it was nonsensical to designate a bike route using a bridge that had a better rating for cycling but was miles away from the route.

¶ 15 Amsden described the Chicago bike 2015 plan, which the City published in 2006, as a planning document with aspirational goals and objectives to make the City more bike friendly. Although the plan recommended retrofitting metal grate bridges to make them safer for cycling, the plan's recommendations were not mandatory. Moreover, the plan did not mention longitudinal gaps in the center of a roadway, and Amsden did not expect cyclists to ride in the center of the road.

¶ 16 Luis Benitez, the chief bridge engineer of the City's transportation department, testified that the Chicago Avenue bridge used metal grating panels after it was resurfaced in 1960 from wood to metal. This bridge, which would rise open to allow boat traffic to pass beneath it, used metal grates to minimize weight and allow drainage. The longitudinal gaps between grating panels were a design feature that accommodated the expansion and contraction of the metal grates during changes of temperature. Inspection reports from 2010 and 2014 noted that some of the grating bars on the Chicago Avenue bridge were broken, but broken grating bars did not cause structural concerns.

¶ 17 Dynek presented the testimony of Greg Pestine, a civil engineer, who opined that the 1.75 inch wide gap between grating panels and a broken grating bar in the vicinity of that gap caused Dynek's accident. The engineering field recognized that gaps between grating panels on a metal grate bridge can be hazardous for bicyclists. Pestine opined that the longitudinal gap between grating panels on the Chicago Avenue bridge violated the safety standards of the American Association of State Highway Transportation Officials and the Federal Highway Association.

¶ 18 Dynek moved for a directed verdict on the question of whether the City had notice that the Chicago Avenue bridge was dangerous for bicyclists. The City opposed the motion, arguing that the jury heard evidence that the condition Dynek complained of did not present an unreasonable risk of harm to bicyclists. The court agreed with the City and denied Dynek's motion.

¶ 19 The jury reached a verdict in favor of the City and, by answering special interrogatories, found that Dynek was contributorily negligent, Amsden determined policy and exercised discretion when he designated Chicago Avenue as a signed bike trail, and the City was not negligent by failing to repair a broken grating bar on the Chicago Avenue bridge and by designating the Chicago Avenue bridge as part of a bike...