Appellate Court Reinforces the Intended and Permitted User Requirements to Establish Duty Under the Illinois Tort Immunity Act

The Illinois Appellate Court recently held that a municipality did not owe a minor-plaintiff a duty of care in its maintenance of a public street. Babic v. Vill. of Lincolnwood, 2022 IL App (1st) 210929, ¶ 24.

Facts

The minor-plaintiff was riding his bicycle on a residential street near his home in Lincolnwood, Illinois, when he encountered a sinkhole, causing his bicycle to flip and injuring him. Plaintiff filed suit in the Circuit Court of Cook County. The municipality won summary judgment on the basis that the minor was not an intended user of the street on which he was injured and, therefore, the municipality owed him no duty of reasonable care. On appeal, Plaintiff contended that the Circuit Court erred in granting summary judgment for the municipality, arguing that section 3-102 of the Tort Immunity Act should be modified where the condition of property is dangerous for ordinary travel.

The Local Governmental and Governmental Employees Tort Immunity Act provides that a municipality “has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used.” 745 ILCS 10/3-102(a). Thus, a municipality has a duty under section 3-102(a) only to users who are both intended and permitted users of the property under the control of the municipality.

Analysis

The Supreme Court has recognized that an intended user of a property is, by definition, also a permitted user; however, the converse is not always true. To determine the intended use of the property at issue, a court looks to the nature of the property. A municipality’s intent may be determined by looking at pavement markings, signs, and other physical manifestations. By contrast, where there are no markings, road signs, or other affirmative indications of intent, courts have found that bicyclists are not intended users of public roadways. The street on which the minor was injured had no bicycle lanes or signage. Consequently, the Appellate Court found that absent affirmative manifestations of intent, the Circuit Court properly found that the minor was only a permitted—but not an intended user of the street and, therefore, the municipality did not owe him a duty under section 3-102(a) of the Tort Immunity Act.

The fact that a municipality regulates permitted users does not transform the users into intended ones. It is the intent of the municipality, not the intent of the individual that determines whether the municipality owes a duty under section 3-102(a). Whether a particular individual is aware of the municipality’s ordinance is not a determinative factor as to whether someone is an intended user of the property, and the cases cited by Plaintiff did not suggest otherwise. The Court noted that the provisions of the municipality’s ordinances do not specifically identify areas in which bicyclists are intended to ride. Although the ordinances regulate riding in the street, that does not mean that the municipality intended for bicyclists to ride in the street. Further, the Court found that the municipality did not intend that bicyclists ride in the street by differentiating between the definition of a vehicle and a bicycle. 

Whether a municipality owes a duty depends on the nature of the property, not the individual involved. There was no doubt that the minor was a permitted user of the street, however, based on the lack of demonstrated intent of the municipality, he was not an intended user. Therefore, the Circuit Court properly granted summary judgment in favor of the municipality.

Learning Point:

In future cases, greatest consideration should be given to the municipality’s affirmative manifestations of intent to identify the intended users of municipal property. Factors such as user’s age, permitted user regulations, awareness of the user, and non-specific ordinances are not dispositive in determining the intended user of a municipal property and, as such, cannot be proffered to establish a duty owed by a municipality in the maintenance of public property.