Last month, the Illinois Supreme Court handed down two opinions which effectively extinguished absolute immunity under section 3-107 of the Local Government and Governmental Employees Tort Immunity Act (the “Act”), 745 ILCS 10/1 et seq., for injuries occurring on “shared-use” paths operated by public bodies. These opinions clarify that public bodies can rely only on the limited immunity provided under section 3-106 of the Act. Going forward, local governments must be cognizant of the fact that section 3-106 creates an exception for “willful and wanton” conduct, and that they may be subject to liability for “utter indifference” or “conscious disregard” for safety in maintaining shared-use paths.
Over the past several decades, many local governments in Illinois have implemented or expanded the use of “shared-use” paths as a mode of transportation. These paths are physically separated from the roadway and intended for use by bicyclists and other non-motorized forms of transportation, such as for pedestrians, disabled persons in wheelchairs, and in-line skaters. In Corbett v. the County of Lake, 2017 IL 121536, the Supreme Court held that the Skokie Valley Bike Path, a shared-use path located in the City of Highland Park, Illinois (the “City”), was not a “riding” trail within the meaning of section 3-107(b), and that the City was, therefore, not entitled to absolute immunity under section 3-107 of the Act.
In so holding, the Court employed the canons of statutory construction known as noscitur a sociis (“it is known from its associates”) and in pari materia (“upon the same subject”). These canons, respectively, require courts to give related meaning to words grouped together in a list, and to construe two sections of the same statute with reference to each other. In examining the text of section 3-107, the Court determined that the inclusion of “hiking,” “fishing,” and “hunting” trails along with “riding” trails in section 3-107(b), and the reference to roads that provide access to “primitive” areas in section 3-107(a), suggested that the General Assembly intended to limit the scope of absolute immunity under section 3-107(b) to trails that are unimproved or undeveloped.
The Court also examined a number of public policy considerations. It acknowledged that applying absolute immunity to shared-use paths would further the public policy underlying the Act—i.e., it would promote the expenditure of public funds for the purpose of creating greater access to riding trails, rather than the diversion of those funds to the payment of damage claims stemming from the condition of those trails. At the same time, the Court reasoned that it would be “strange” to allow public bodies to build and maintain bike trails, encourage people to use them, and represent that they are safe, but then escape all liability for injuries caused by even the most egregious misconduct in failing to maintain them.
Ultimately, the Court held that it simply made sense to apply absolute immunity to only unimproved trails, which, as a feature of the trails themselves, are left in their natural state. It stated that requiring public entities to maintain such trails “would defeat the very purpose of these types of recreational areas, that is, the enjoyment of activities in a truly natural setting.” Applying its interpretation to the facts of the case, the Court found that the Skokie Valley Bike Path was not a “riding” trail within the meaning of section 3-107(b), because it is paved with asphalt and held out for the use of bicycles, pedestrians, and in-line skaters, among others. As such, it held that the City could not rely on absolute immunity under section 3-107(b) for injuries that may arise on the path.
Subsequently, in Cohen v. Chicago Park District, 2017 IL 121800, the Supreme Court held that the Chicago Park District (the “Park District”) was not entitled to absolute immunity under section 3-107(a) for injuries sustained by the plaintiff on the Lakefront Trail, a shared-use path located in Chicago, Illinois. In doing so, the Court looked to the definition of the term “road” in the Illinois Highway Code, and held that a “road” is a public way that permits travel by motorized vehicles, such as motorcycles, cars, and trucks. Because the Lakefront Trail was not open to the public for travel by motorized vehicles, the Court concluded that the Lakefront Trail was not a “road” which provides access to a recreational area within the meaning of section 3-107(a).
Instead, the Court found that the Lakefront Trail was clearly “recreational” property within the meaning of section 3-106. Then, the Court focused on the definition of “willful and wanton” conduct under section 1-210 of the Act and its application to the facts of the case. In Cohen, the plaintiff was injured when he fell after the front wheel of his bicycle got caught in a crack on the pavement. The Park District had been notified about the crack prior to the accident, and had sent an employee to inspect it. Shortly thereafter, the Park District issued its annual request for repair bids, and a repair contractor was awarded the contract for repairs. The contractor repaired the crack just three (3) days after the plaintiff had fallen and was injured.
The plaintiff argued that the Park District acted willfully and wantonly by failing to immediately repair the crack using in-house employees, or in failing to barricade or otherwise warn of it with spray paint or similar material. In rejecting this argument, the Court analyzed two cases, Palmer v. Chicago Park District, 277 Ill. App. 3d 282 (1995) and Lester v. Chicago Park District, 159 Ill. App. 3d 1054 (1987), to illustrate willful and wanton conduct. In Palmer, the defendant had engaged in willful and wanton conduct by failing to take corrective action or warn patrons of the “obvious and extraordinary danger” posed by a thirty foot long metal fence that had been lying in a park for three months. By contrast, in Lester, the defendant did not engage in willful and wanton conduct, where it discovered and took affirmative action to remedy holes in a softball field, despite the fact that it used improper materials and failed to sufficiently fill them.
The Court held that the facts in the instant case were more akin to Lester than Palmer. It found that cracks and potholes in paved surfaces are an unfortunate, but unavoidable, reality, and do not pose the type of extraordinary or unusual risk of injury posed by the thirty foot metal fence in Palmer. Further, unlike in Palmer, it was undisputed that the Park District took corrective action to repair the crack within thirty days of being notified of its existence. While the Court acknowledged the plaintiff’s argument that the Park District could have done more, it held that its failure to do so was mere negligence and did not rise to the level of willful and wanton conduct under the Act. As such, it held that limited immunity under 3-106 applied.
Together, these cases establish that shared-use paths are not access “roads” or “riding” trails within the meaning of section 3-107 of the Act, but “recreational property” within the meaning of section 3-106. Local governments that operate these paths must recognize that immunity under section 3-106 is not absolute. Therefore, local governments must attempt to discover and take action to correct or warn of dangerous conditions in order to avoid liability for willful and wanton conduct in failing to maintain shared-use paths in a reasonably safe condition.