Illinois Court’s ‘Allowed But Not Intended’ Distinction Greenlights Hurting Cyclists With Potholes

Pictured: Allowed but like, barely. (Image by Getty)

Just once, I would like to roll through a year without it becoming harder to cycle on the road. 2024 has already put the breaks on that. Any Skadden, Kirkland & Ellis, or Sidley Austin associates in Chicago with a resolution to incorporate some cycling into their routine? You might want to invest in a Peloton. From the ABA Journal:

A bicyclist who wasn’t on a designated bicycle route when he was injured by a pothole can’t recover from the city of Chicago, even though there was a Divvy bicycle rental station nearby, the Illinois Supreme Court ruled last month.

Potholes aren’t some odd occurrence in Chicago — the city itself admits that they get really bad starting in December and going through August. If you know your city has poor infrastructure and does little about it, you’re courting the type of injuries this plaintiff suffered: fractured teeth and scars, along with the psychological hurdle of getting back in the saddle after things go wrong. But the Illinois Supreme Court used some statute clarification that makes Alito’s dictionary justification for being paid under the table look like fair game:

The Illinois Supreme Court interpreted the Illinois Tort Immunity Act, which said cities have a duty to maintain their property in a reasonably safe condition for use by people “intended and permitted” to use the property.

Chicago permits bicyclists to use any roadway that motorists use, but that doesn’t mean that bicyclists are intended to use all those roadways, the Illinois Supreme Court said in its Dec. 14 opinion.

In Alave’s case, he was riding on a road without a designated bike lane and signage, indicating that the city did not intend him to be using the road, the state supreme court said.

Look, if bikes are considered a vehicle enough that you can’t ride them on Chicago sidewalks barring niche conditions, this permitted and intended roadway distinction is bullshit. Either admit that there’s a two-tiered road privilege and tell cyclists where they are sequestered to, or maintain quality roads and pay out when someone on a vehicle — car or otherwise — gets injured over something that could have easily been prevented with better city planning. Because right now, cyclists are getting mixed signals:

“This holding simply does not reflect that massive surge in bicycling that has occurred in Chicago, the suburbs and throughout the rest of Illinois,” Keating said. “On that fact alone I think the Illinois Supreme Court should have clarified more specifically what ‘intended’ means beyond just the presence of bike lanes, a bike map or signs.”

One place to start? Change the description on the Divvy Bike Share site from “Riding with Divvy is an easy, affordable, and super-fun way to explore Chicago” to the more technical but legally accurate to “Riding with Divvy is an easy, affordable, and super-fun way to explore Chicago if and only if you intend to ride the areas that are intended and permitted to be ridden by bikes which, include and are limited to: designated bike lanes with signage. Honestly, you’re better off just driving or walking around here.”

Chicago Isn’t Liable For Bicyclist Injured By Pothole On Road That Wasn’t Designated Bike Route, Court Rules [ABA Journal]


Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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