dissenting:
The majority holds that bicyclists generally are not intended users of sidewalks and thus are not owed a duty of care. I respectfully disagree with this conclusion for two reasons: (1) the majority’s decision heavily relies on Boub v. Township of Wayne (183 Ill. 2d 520, 702 N.E.2d 535 (1998)), a factually distinguishable case, while ignoring other cases more clearly on point; and (2) the majority reads foreseeability out of the Act.
In the last several years there have only been three published appellate court decisions that encompass the factual situation and issue presented by this case: whether a municipality owes a duty to an adult bicyclist who injures himself while riding on one of its sidewalks. See Garcia v. City of Chicago, 240 Ill. App. 3d 199, 608 N.E.2d 239 (1992); Lipper v. City of Chicago, 233 Ill. App. 3d 834, 600 N.E.2d 18 (1992); Prokes v. City of Chicago, 208 Ill. App. 3d 748, 567 N.E.2d 592 (1991). Each of these cases turned on a City of Chicago ordinance which forbade anyone over 12 years of age from riding upon a sidewalk unless the sidewalk had been officially designated as a bicycle route. Garcia, 240 Ill. App. 3d at 200-01, 608 N.E.2d at 241; Lipper, 233 Ill. App. 3d at 837, 600 N.E.2d at 20; Prokes, 208 Ill. App. 3d at 749-50, 567 N.E.2d at 593. While applying the Act, the appellate court in each case held that the Chicago ordinance showed that the plaintiff bicyclist was not an intended user of its sidewalks. There is no such ordinance present in the case at bar. Instead of recognizing this fact and analyzing the above-mentioned cases, the majority relies almost exclusively on Boub v. Township of Wayne, 183 Ill. 2d 520, 702 N.E.2d 535 (1998).
In Boub, the plaintiff was bicycling on a rural road/bridge when his injury occurred, while the plaintiff in this case, like the plaintiffs in Garcia, Lipper and Prokes, was injured while bicycling on a city sidewalk. Rural roads and bridges differ markedly in nature from city sidewalks. Technically, a sidewalk is “that portion of a street between the curblines or the lateral lines of a roadway and the adjacent property lines, intended for the use of pedestrians.” City of Peoria Code, ch. 28, § 28 — 2 (1957). A roadway, on the other hand, is “that portion of a highway improved, designed or ordinarily used for vehicular travel.” City of Peoria Code, ch. 28, § 28 — 2 (1957). Besides these differences, sidewalks and roadways also differ as to their degree of regulation. Common knowledge tells us that roadways are much more heavily regulated than sidewalks.
Moreover, the policy considerations upon which the Boub court relied are not present in this case. To the extent that Boub relied on the huge financial burden that would be faced by municipalities if bicyclists were held to be intended users of all public roadways, such concerns are simply not raised by the case at bar. While road conditions that do not pose hazards to vehicles may represent dangers to bicycles, sidewalk conditions that are dangerous to bicyclists are also potentially hazardous to pedestrians. The alleged condition of the sidewalk in this case, a manhole cover raised six inches above the surface of the sidewalk and a four-inch fracture in the sidewalk hidden by a growth of weeds two feet high, would certainly pose a danger to pedestrian and bicyclist alike.
Most importantly, in the wake of the Boub decision, it is unlikely that a bicyclist will ever be held to be an intended user of a municipal street or roadway unless that roadway has been specifically marked or otherwise designated as a bicycle route by the municipality. Under the majority’s holding today, the same is true for municipal sidewalks: absent a designation or marking to the contrary, a bicyclist will never be an intended user of a municipal sidewalk. Thus, as Justice Heiple warned in his Boub dissent, the following incongruous result has become a reality — by simply removing all evidence that bicyclists are intended users of any city street or sidewalk, a loss-averse municipality can wholly immunize itself from liability. Boub, 183 Ill. 2d at 539-40, 702 N.E.2d at 545.
The second reason for my disagreement with the majority is that it, like many other courts, has read foreseeability out of the Act. Under the Act, a municipality has a duty to maintain its property in a reasonably safe condition for “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.” (Emphasis added.) 745 ILCS 10/3 — 102(a) (West 1998). Most courts interpreting the Act have seized upon the “intended and permitted” language, while few have acknowledged that portion of the Act which speaks of “reasonably foreseeable” usage. The majority here makes the same mistake.
One case decided under the Act that takes into account foreseeability is Larson v. City of Chicago. 142 Ill. App. 3d 81, 491 N.E.2d 165 (1986). In Larson, the court was faced with the question of whether a rollerskater on a municipal sidewalk was owed a duty of care. Recognizing that the Act simply continued the common law duties of a municipality, the Larson court found a duty, relying in part upon the long-held common law principle that “a municipality is required to maintain its streets and sidewalks in a reasonably safe condition for the amount and kind of travel which may be fairly expected upon them.” Larson 142 Ill. App. 3d at 84, 491 N.E.2d at 166. The court also cited a line of New York cases that likewise holds that municipalities have an obligation to keep their sidewalks safe for all foreseeable users. See Errante v. City of New York, 74 A.D.2d 122, 427 N.Y.S.2d 18 (1980) ; Muallem v. City of New York, 82 A.D.2d 420, 441 N.Y.S.2d 834 (1981) ; see also Barnes v. City of Tucson, 157 Ariz. 566, 760 P.2d 566 (App. 1988). Of particular significance to the case at bar, the Errante court refused to distinguish between rollerskaters, bicyclists and other users of city sidewalks. Errante, 74 A.D.2d at 123, 427 N.Y.S.2d at 19.
I believe that the reasoning in Larson is sound specifically in that it, unlike most other cases, apprehends the nature of the Act, which expressly takes into account the foreseeability of the use. Thus, given the factual dissimilarity of the Boub case, I would follow Larson and hold that the city owed Daniel a duty of care.