Sebastian Ko v. City of Chicago

1

2024 IL App (1st) 221788-U

SEBASTIAN KO, Plaintiff-Appellee, v. THE CITY OF CHICAGO, a municipal corporation, Defendant-Appellant

(T.Y. LIN INTERNATIONAL GREAT LAKES, INC., a California corporation, Defendant.)

No. 1-22-1788

Court of Appeals of Illinois, First District, Second Division

September 17, 2024

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 17 L 10032 Honorable Thomas V. Lyons, II, Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.

ORDER

HOWSE JUSTICE

¶ 1 Held: We affirm the judgment of the circuit court of Cook County denying defendant's motion for a judgment notwithstanding the verdict; the parties presented conflicting evidence that the nature of the property showed defendant's intent that a bicyclist was an intended user of a "buffer zone" adjacent to a bike lane, and the evidence did not overwhelming preponderate in defendant's favor; therefore, judgment notwithstanding the verdict was properly denied.

¶ 2 Plaintiff, Sebastian Ko, was injured when he rode his bicycle into an area of the roadway separating vehicular traffic from a designated bike lane (the "buffer zone") and collided with a broken flexible post in the buffer zone. Plaintiff filed a complaint for negligence against defendant, the city of Chicago. Following a jury trial, the jury entered a verdict in favor of plaintiff and against the city. The city filed a motion for a judgment notwithstanding the verdict (j. n.o.v.) on the grounds the city did not owe a duty to plaintiff because plaintiff was not an intended user of the area in which he was injured. The trial court denied the city's posttrial motion, and the city appealed. For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 On April 18, 2022, plaintiff, Sebastian Ko, filed a third amended complaint against defendants, the city of Chicago and T.Y. Lin International Great Lakes, Inc., a California corporation (Great Lakes). Great Lakes is not a party to this appeal. Plaintiff's complaint against the city alleged that on or about October 29, 2016, plaintiff was riding his bicycle in an area near 745 N. Milwaukee Avenue in Chicago that was "clearly marked for bicycle traffic" (a bike lane) which the city "intended to be used by bicycle traffic." The complaint alleged that a broken "delineator post" (which the city calls "bollards") with its shaft broken off existed in the area and that the city was negligent in failing to repair or replace the broken delineator post. Plaintiff alleged that as a result of the city's negligence, plaintiff "was thrown from his bicycle upon striking the broken delineator post *** and sustained serious injuries."

¶ 5 The "delineator post" was allegedly part of a "protective buffer strip" separating the bicycle lane from the traffic lane (the "buffer" or "buffer zone"). Unlike the bike lane, the buffer was marked with diagonal crosshatching and lined with flexible posts. The buffer separated the bike lane and the traffic lane with solid white lines on both sides of the buffer.

¶ 6 On May 31, 2019, the city filed a motion for summary judgment. The city's motion argued, in pertinent part that pursuant to section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102(a) (West 2018)) the city did not owe plaintiff a duty because plaintiff was not an intended and permitted user of the area where the incident occurred. The city's motion claimed the area where the incident occurred was designated by the city as a "Barrier Protected Bike Lane" which uses "physical barriers, such as *** bollards [(delineator posts),] to separate bicyclists from motorists." The city argued that pursuant to our supreme court's decision in Boub v. Township of Wayne, 183 Ill.2d 520 (1998), and Vaughn v. City of West Frankfort, 166 Ill.2d 155 (1995), to determine a local public entity's intended use of its property it is appropriate to look to the nature of the property itself. The city argued there was "clear evidence" it did not intend bicyclists to use the buffer because its "barriers are delineated with solid while lines with solid white diagonal hash lines" and there are bollards placed in the barrier area." The city's motion argued the buffer "is intended as a barrier between bicyclists and motor vehicle traffic to protect the safety of the cyclists." The city argued that nothing about the buffer "exhibits any level of intent on the part of the city of Chicago that the barrier be used by bicyclists."

¶ 7 On August 27, 2019, the trial court entered a written order denying the city's motion for summary judgment. The trial court's written order described the area as follows. The space between the bike lane and the main car traffic lane is the "buffer zone." The buffer zone "is painted with thick striping parallel to the bike lane and with diagonal striping occasionally down the length of the space." Within the buffer zone "flexible barriers approximately 28 inches high are installed approximately every 40 feet. The barriers are built from a base and pole, and occasionally the poles will be broken from the bases."

¶ 8 The trial court found that it was clear that the city did not intend cyclists to ride along the buffer zone. The court found that a question of fact existed about whether the city intended and permitted bicyclists to cross the buffer zone to merge in or out of traffic, both to and from the bike lane. The trial court found that questions of fact remained the precluded summary judgment and denied the motion.

¶ 9 At trial, plaintiff testified he was riding in the bike lane behind his wife when she signaled she was going to move to the left and exit the bike lane. Plaintiff was checking his surroundings, including looking over his shoulder for oncoming traffic, and started to move left. Plaintiff looked forward just as the front wheel of his bicycle struck the base of the broken delineator post.

¶ 10 David Gleason, one of the designers of the bike lane at issue, testified that providing a visual indication that a bike lane is present and discouraging motor vehicles from operating in the bike lane "are reasons for providing a flexible delineator." Gleason also testified that cyclists sometimes have to leave the bike lane for a variety of reasons. Gleason affirmed that when he designed the bike "facility" he designed the bike lane, the buffer, and the protective devices all as part of a single design project.

¶ 11 Nathan Roseberry, the senior engineer who worked on the design of the bike lane at T.Y. Lin, also testified that the design was all one project. The bike lane was not designed separately from the buffer, and neither were designed separately from the delineator posts; instead, "it was all one project." Roseberry testified that when he was designing the bike lane, he knew there was a bus stop in the area. Roseberry testified that the design "allowed for [a] bus to get to the sidewalk and allowed for a bike to pass a bus if it chose to do so." He understood that a person riding a bike "likely" would exit the bike lane to avoid a bus that was stopped at a bus stop.

¶ 12 On appeal, plaintiff claims he was exiting the bike lane to go around a bus at the bus stop. Monica Ko, plaintiff's wife, testified that she saw a bus in the bike lane ahead of her and signaled plaintiff that she wanted to exit the bike lane. At trial, plaintiff testified that when his wife signaled she was exiting the bike lane he did not know where the bus was. Plaintiff also testified that when he exited the bike lane, he intended to cross both solid white lines and enter the vehicular traffic lanes.

¶ 13 Dr. Paul Dorothy testified as an expert witness for T.Y. Lin. T.Y. Lin designed the bike lane at issue. Dr. Dorothy testified regarding guidelines promulgated by the National Association of City Transportation Officials (NACTO). T.Y. Lin used the NACTO guidelines in designing the bike lane as recommended by the city in their contract. Dorothy opined that the use of flexible delineators "within the buffer between the traveled way of the bike facility and the general-purpose lanes is reasonably safe for all expected road users." Dorothy testified that when deciding the spacing for the delineator posts the considerations are that "the more tubular markers that I use; and the closer I space them together, the harder it is and the riskier it is for a cyclist to leave the bike lane mid-block." He continued, "if I've got closely spaced tubular markers, it's harder for me [(as a cyclist)] to maneuver through them. I'm at a greater risk for maneuvering through them."

¶ 14 The trial court denied the city's motion for a directed verdict at the close of plaintiff's case. The matter went to the jury, and the jury returned a verdict in favor of plaintiff and against the city. The city filed a motion for a judgment notwithstanding the verdict (j. n.o.v.) arguing that the evidence at trial established that plaintiff "crossed over the solid white line of the marked bike lane and was in the area with diagonal stripes (buffer zone) that separates the marked bike lane from the vehicular traffic lane." The city argued that because plaintiff had left the designated, marked bicycle lane and "crossed over the white line and into an area that was not marked for bicycle use" when the accident occurred, he was not both an intended and permitted user of the roadway when he crashed; therefore, the city owed him no duty.

¶ 15 The city contrasted the bike lane, "so designated by solid white lines...