Lawsuits & Bikes Don't Mix
Illinois bikers got to see the above theory in action this week as House Bill 2390 (aka "The Bike Bill") got shot down by the Senate Local Government Committee. In essence, the bill just grants bicyclists the equal opportunity to use our roadways. However, thanks to the mingling of lawyers, bikers will have to detour into the more complicated world that doctors and small businesses now occupy in Illinois.
Shaking your head in confusion at this point? You might be if you're not currently a litigation target in Illinois, but let me explain the concept further so everyone can understand what's at stake for you, the taxpayer.
In September 1993, a case involving a bike injury in Wayne Township was brought before a judge in DuPage County.
According to the Supreme Court Boub v. Township of Wayne description:
After the dismissal of the plaintiff's initial and amended complaints, the plaintiff eventually filed a third amended complaint, which superseded a pending second amended complaint. According to the allegations in the plaintiff's third amended complaint, Boub was riding his bicycle on the morning of September 8, 1992, on St. Charles Road in Wayne Township, DuPage County. The accident occurred as Boub was traveling across a one-lane bridge. The surface of the bridge consisted of wood planking; some time before the accident, asphalt patching between the planks had been removed as part of a bridge renovation project, in preparation for the installation of a different bridge deck. According to the pleadings, the plaintiff was thrown from the bicycle when his front tire became stuck between two of the planks on the bridge.
The resulting court case, as noted above, went all the way to the Supreme Court and was decided by a very close 4-3 vote. The potential liabilities were discussed by Justice Ben Miller in the decision.
Indeed, the potential implications of such a shift in policy are substantial and far-reaching, and we do not believe that the legislature intended to impose liability in these circumstances. Simply put, many road conditions that do not pose hazards to vehicles may represent special dangers to bicycles, and imposition of liability in this case would, we believe, open the door to liability for a broad range of pavement conditions, such as potholes, speed bumps, expansion joints, sewer grates, and rocks and gravel, to name but a few. By the same token, we believe that imposition of municipal liability in the circumstances shown here is more appropriate for the legislature to initiate, if it is to be done at all. In this regard, it is appropriate to consider the potentially enormous costs both of imposing liability for road defects that might injure bicycle riders and of upgrading road conditions to meet the special requirements of bicyclists.
Without putting too many words in the mouth of the court, what the majority was saying is that there is a need to consider the cost to municipalities - meaning THE TAXPAYERS - when connecting liability to these types of accidents.
The court went further, in fact, to clarify what they thought the "rights" of bicyclists were on open roadways:
In sum, there are no affirmative manifestations here that Wayne Township intended-rather than simply permitted-bicyclists to use the road and bridge where the accident occurred. We have no quarrel with the proposition that bicycle riders are permitted users of the road and bridge involved in this case; we do not believe, however, that they must also be considered intended users of those facilities, within the scope of section 3-102(a) of the Tort Immunity Act. There is no question of fact on this record, and summary judgment was appropriately entered in favor of the defendants.
Three justices felt very differently in the case, with Justice Heiple penning:
The majority's conclusion that bicyclists are not intended users of roads defies common sense, contravenes statutory authority, and frustrates public policy.
Besides depriving injured bicyclists of just compensation for their injuries, the principal effect of the majority decision will be to discourage municipalities from taking any measures to make roads safer and more hospitable for bicyclists. Because the majority precludes liability whenever the municipality in question does not intend for bicyclists to use its roads, a loss-averse municipality, in order to minimize its exposure to liability, might remove from its roads any evidence that bicyclists are intended users, such as bike lanes or special signs. Bicyclists would then be in even more jeopardy than that occasioned by today's decision. Given the majority's ruling, the only safe bicycle in Illinois is a stationary exercise bike located in one's home or at the gym.
This court decision was entered into the record five years later in 1998. Now, let's fast forward to 2005...
Biker groups in Illinois are now lobbying to help reverse some of the damage they feel they incurred in the Boub decision. Justice Heiple was right in his assessment of the negative implications of the ruling. According to the most vocal biking group, League of Illinois Bicyclists, many government entitities have backed off some initiatives to improve biking trails and designations. BikeLIB.com (sorry, I can't refuse a small chuckle over the name) - the website of the League of Illinois Bicyclists - even reports that Illinois is now one of the worst states in the country for biking.
However, this story from their website is more telling:
Our goal is not to impose the extra costs of new maintenance standards, road requirements, or special liability protection. We simply want to return to where we were before 1998 (and where other states are): no more than the existing level of protection given to other road users - and the elimination of the liability disincentive that dissuades safety-conscious towns. This is not new and uncharted territory. History in pre-Boub Illinois and in other states has shown the liability exposure to be negligible.
The amended language is the product of very active negotiations between bicycle organizations, local government groups, and the Illinois Trial Lawyers Association. It is our closest compromise language to date. All parties have given something up to get here. No one is entirely happy with the result but all parties seem willing to move a little to finally resolve this issue. We believe the removal of the disincentive to bikeway designation is achieved within a reasonable local government burden for cyclist's safety.
Doesn't this sound a little like the plight of our doctors here in Illinois, before litigation ruined the practice of medicine in this state. Replace the bikers with doctors and replace the local municipalities with insurance companies, and - essentially - you have a parallel argument. Except, in this case, there are no "evil insurance companies" for the trial lawyers to demonize because the money for biking accidents is targeted in your pocketbook - the municipal taxpayer.
In fact, the groups fighting to defeat HB 2390 are being led by the Illinois Municipal League, and others are acknowledged on the IML website:
The League would like to thank the City of Chicago, Will County Governmental League, South Suburban Mayors and Managers, West Central Municipal Conference, Metro Counties of Illinois and the Township Officials of Illinois for their hard work in opposition. A special thanks also goes out to the numerous local officials throughout the state who contacted their legislators and urged them to oppose the bill.
And shouldn't our elected officials being doing all they can to prevent local taxpayers from having to foot the bill for potential lawsuits? Not according to the Rockford Register-Star, whose editors are blasting the seven Senators who voted against the bill as thinking "bicyclists are second-class citizen." The Register-Star thinks the bill's demise is a poor start for the month of May, which is National Bike Month.
The seven senators who opposed the bill must be oblivious to the thousands of people who use bicycles for transportation. Many do it as a lifestyle choice. They like the exercise, the gas savings and the hassle-free parking.
Here's a suggestion for all lawmakers who opposed this bill. Get off your bloated behinds and ride your bikes to work. Bike to Work Week is May 16-20. May 20 is Bike to Work Day. Maybe after you see how dangerous it can be to ride streets that are not marked for bicycles, you'll understand the importance of the legislation you just killed.
Alas, the editors at the Rockford Register-Star must be oblivious to the thousands of trial lawyers in America looking to target municipalities (aka the taxpayers) for their next lawsuits. To parallel further the editors' arguments, perhaps they should see how dangerous it can be for the taxpayer to navigate through the court system when a municipality gets dragged into a case. Perhaps their reporters should get off their behinds and look at the Winnebago docket and see where lawsuit abuse is affecting the local taxpayer in Rockford? Even though there are no warning signs posted for city administrators, they know the potential liabilities and have to weigh them against the postive uses for residents - even bicyclists.
Isn't that what we - as taxpayers - hire them to do?
Unfortunately, the fear of litigation is forcing changes in our state's biking opportunities. However, it was the plaintiff that pushed the case to the Supreme Court in 1998 that forced a change in the law that created the "disincentive" for bicyclists. Most municipalities probably never considered the potential liability until lawyers tinkered with Supreme Court on the case.
Once again, a group loses out because the trial lawyers won't give up a potential cash cow in order for Illinoisans to more freely exercise (no pun intended) their rights to bike. For those keeping track, if you're a patient AND a biker in Illinois, you're now losing 2-0.