By Jeff Balch
A little after 5 PM on Tuesday, September 8, 1992, the front wheel of Jon Boub's speeding bicycle snagged in a gap on a wooden bridge in rural Wayne Township, launching Boub over the handlebars and into a lawsuit against Wayne.
The bridge was under repair, but no signs indicated that. The 40-foot one-laner on old Saint Charles Road in western Du Page County spans the Du Page River's west branch and was topped at that time with wooden planks that ran lengthwise about two inches apart. Asphalt packed into the two-inch gaps kept the surface reasonably smooth. But earlier that day a township road-maintenance crew had removed the asphalt; they planned to let the planks dry overnight, then resurface the structure with steel plates that would make the bridge safer. During the workday the crew had blocked the bridge with their trucks, but they drove them away in the late afternoon. The ruts left in the bridge were roughly an inch deep, which posed no danger to motorists. But the danger to bicyclists was undeniable.
"I'd ridden the bridge the day before--I rode it just about every day after work," says Boub. "No sign of trouble the day before." Boub was living in Carol Stream and would ride his 14-speed west out of town, turn south on Fair Oaks Road, which parallels the river, then cross the river on Saint Charles Road. He was 35 and still a pretty hot triathlete.
In his late 20s he'd been even hotter, winning a few thousand dollars in punishing swim-bike-run events. Back then he was still living in his home state of New Jersey, working for Crum & Forster Insurance, which sponsored him. "It was a pretty good setup," he says. "I'd train in the morning, work a half day, and train some more in the afternoon." Most professional triathletes begin as bikers or runners, but Boub was a swimmer first, holding Metro New York collegiate records in the 200- and 400-meter butterfly and achieving Division III All-American status.
By 1987 he'd taken a job as a claims adjuster with Hertz, which moved him out to Carol Stream. He placed fourth in the 1987 Kankakee triathlon, training with a two-mile swim before work, weights at lunchtime, and a 30- to 50-mile ride in the evening. After crossing the Saint Charles Road bridge he would ride west and north into the town of Wayne, up to Bartlett, and back, averaging more than 27 miles per hour.
The west branch of the Du Page River flows south through the county as it cuts its way toward Joliet. Saint Charles Road descends slightly to the river on both sides, though the descent from the east is steeper. Boub remembers glancing at his speedometer as he pumped down the hill that September afternoon. "I was doing better than 30, building up momentum for the flat on the other side. The sun was mostly in front of me, and the bridge looked the same as the day before. I was down on the layout bars, I think. Then I hit the bridge and saw the asphalt was gone. I remember thinking, 'Shit, this is it,' and trying to stay on the plank--and lasting maybe a bike length or two, and then snagging and going over the top.
"I can remember flipping in the air and hitting twice--bouncing I guess, and the bike still hooked to one foot. I can see the guardrail coming at me and my arms out front trying to keep it away from my face. Funny, I still have the shirt I was wearing--I wouldn't let the paramedics cut it off. It still has silver guardrail paint on it.
"I couldn't believe it. I was in shock I guess. I remembered seeing a woman a little ways back--there's a landscape company along the road there--and I remember thinking, maybe she's my savior. The bike was trashed, but I kind of used it like a crutch. I think she had her back to me as I came up, and I said something like, 'I think I need help.' I still remember the look on her face when she saw me--eyes real wide."
"He looked in real pain, hurtin' bad," says Shirley Kesmar, who with her husband runs Don's Landscaping Company, just east of the bridge. "His bike was mangled. He wasn't bleeding so much, but the way he moved and the way he was holding his shoulder, I thought right away we should call an ambulance." Boub didn't like the idea, but Kesmar persuaded him.
"I had thought to myself, when that crew left, that this thing was pretty unsafe," Kesmar says. "I didn't know what they were doing. They blew all that stuff out, the stones and stuff, with the pressure hoses. And then they leave and don't finish--and why don't they leave it barricaded? I was surprised. Didn't talk to anybody about it, just thought it to myself.
"We've got bikes back and forth on that road all the time--our drivers know to watch for 'em when they pull onto the road. And the end of our drive is maybe 50 feet from that bridge. Well, this guy crashes, and the next day the bridge is closed."
Boub wound up in Central DuPage Hospital for two days. He had a herniated disk at the base of his neck, a dislocated shoulder, a torn rotator cuff, a slight fracture of the hip, a torn tendon in his arch, and a concussion. "My helmet was cracked," he says. "I sent it to the company, Bell, and they sent me a replacement. The doctors were pretty sure the old one saved my life."
Nancy Boub (then Parker) was his girlfriend at the time. Kesmar called her. Nancy recalls the first words clearly. "She said, 'Your husband is at the hospital.' Maybe we talked for another minute, I don't remember. I drove over in a semipanic. They were treating him in the emergency room. I waited an hour or so, pacing. They hadn't told me anything, and I really didn't know what to expect. After a while I got to see him, and I remember being relieved that his head wasn't all smashed up. The injuries were more internal, not the kind that leave you bleeding."
The next few days and months weren't easy. "I had never really been hurt before," Jon says. "I hit an opened-up car door once, and slid out a couple times on curves, but never really got anything worse than road burn."
"Jon's not a complainer, and he seems to have a high tolerance for pain," Nancy says. "But you can imagine the frustration. I mean, when I met him he was working out two or three times per day, and then all of a sudden he can't do anything. I think he'd thrown himself into triathlons even more in Illinois than back east--it was kind of a social outlet. And when you're used to having that outlet for energy and it's taken away--well, there was disappointment. He was like a bull in a cage sometimes. Grumpy, surly. I gave him massages. He'd stay mad that he wasn't getting better quicker."
Jon Boub didn't sue Wayne Township right away. His experience as a claims adjuster led him to believe he could work things out on his own. "I remember my first call to the town offices, a few days after the accident. A lady was on the other end, and I could hear her put a hand over the phone and say, 'Hey, it's another biker calling about that bridge.' She definitely said that. Maybe somebody else crashed that day.
"Anyway, I wound up phoning Wayne's adjuster every month--they were self-insured, I think--and I met him face-to-face one time. I gave him copies of my medical bills. I figured we could work things out. All I wanted was for them to pay the bills and make me an offer to cover the pain and suffering, the impact on my life." Boub didn't think he was asking so much. His medical bill was approaching $100,000, and though he had insurance, he'd paid almost a fifth of the total out of his own pocket. "And I wasn't going to be unreasonable on the pain and suffering stuff. The months went by, and I'd call--and it would go nowhere. Finally I just asked the guy, 'Look, are you guys going to cover this or not?' He basically said no."
In 1993 Boub approached a friend, Richard Hickey, who worked for the law firm Hickey, Driscoll, Kurfirst, Patterson & Melia. "I heard about the accident the day after it happened, I think," Hickey says. "I remember Nancy calling, pretty upset. I wasn't really thinking about any kind of legal claim at that point. I was just concerned for my friends.
"Jon was the first to talk about a legal claim. He was pretty sophisticated in claims--we'd discuss it, but he was handling it. Then sometime in the summer of '93 we started talking about my getting more involved. He thought Wayne's adjuster had been sounding encouraging but had maybe just been stringing him along. I think we were already into July at that point. It was that delay that led to the first problem, the statute of limitations problem."
Boub's suit against Wayne Township and John Ryvold, the township's highway commissioner, was filed in late September 1993, slightly more than a year after the accident. In Illinois the statute of limitations for filing suits pertaining to municipal maintenance work is one year. For construction work, the limit is four years. So was the work on the bridge in 1992 maintenance or construction?
For years the bridge had been a target of vandals who from time to time swiped the wooden planks, creating a safety hazard, so the township decided to put steel plates over the planks. The work crew had been preparing the bridge's surface the day Boub got hurt. The township's defense counsel, Judge, James & Dutton, argued in pretrial hearings that this was maintenance work and filed a motion to dismiss Boub's case because the statute of limitations had expired.
This motion effectively suspended the case. "We were fighting off that motion for quite a while," says Tom Patterson, Hickey's partner. "And you can't really pursue the case--you can't get into discovery--until you get past a roadblock like that." Because Boub's claim was on hold, the court wouldn't authorize the usual depositions. No formal statements could be taken from the work crew or from the doctors who treated Boub. The court did allow Patterson to depose John Ryvold on March 10, 1994, but he could only ask questions about the nature of the bridge work.
Hickey and Patterson thought the deposition helped establish that the work was construction rather than maintenance, and they were surprised by what Ryvold said about warning signs.
Patterson: Was it standard procedure to warn roadway users of construction work that was being done on the bridge?
Ryvold: Well, putting up signs doesn't mean anything anyway because people run right around them or knock them down or take them down. So if you do put them up, it doesn't mean anything today.
Patterson: You're saying that putting up warning signs is useless?
Ryvold: Yes, I am.
Patterson: And therefore, you do not put up warning signs?
Ryvold: We do, but I say it's useless.
Patterson: Did you on this occasion?
Ryvold: I don't remember this occasion whether we did or not.
Patterson and Hickey thought the statements could bolster their charge that the township had been negligent in not posting signs at the bridge. They thought the case was getting stronger.
For about two more years both sides filed briefs and reply briefs. Then in July 1996 the township's lawyers unexpectedly offered a new, pivotal argument: they said that under the Illinois Tort Immunity Act a bicyclist has no grounds to sue a government entity for injuries sustained on an ordinary public road or bridge.
Tort law is the law of accidents and personal injury. The Tort Immunity Act, enacted by the Illinois legislature in 1965, immunizes government entities from most lawsuits, in part by narrowly defining the set of people they owe a "duty of care." It reads, in part: "A local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use ...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, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition."
It would be hard to deny that Wayne Township had notice of the bridge's condition, since its work crew had created that condition. And it would be hard to deny that it was "reasonably foreseeable" that bicyclists would use the Saint Charles Road bridge, especially since a local map approved by the Du Page County Board lists that stretch of the road as "suitable for bicycling." But the township's attorneys did deny that bicyclists were "intended and permitted" users of the bridge or the road. They argued that the only intended and permitted users of such bridges and roads were the operators of motor vehicles, and that the township was therefore immune from a suit brought by a bicyclist.
In this country the idea that government bodies can have broad immunity from lawsuits derives from the precolonial concept of sovereign immunity. In England, because the king was the source of all law, suits against the crown were forbidden from the earliest days of jurisprudence. "The king can do no legal wrong" was for centuries a central tenet of the common law. By the colonial era, government power was exercised through countless departments and agents, but the king's immunity was transferred to them. This concept took root in the new United States when individual states incorporated English common law into their own legal systems. "How sovereign immunity came to be applied in the United States of America," wrote Yale law professor Edwin Borchard in 1924, "is one of the mysteries of legal evolution. Nothing seems more clear than that this immunity of the King was purely personal."
States clung to this broad doctrine well into the 20th century. Judge Learned Hand observed in 1949 that it served an important function: "The justification for immunizing officials is that it is impossible to know whether a claim is well-founded until the case has been tried, and ...to submit all officials to the burden of a trial would dampen the ardor of all [officials] in the unflinching discharge of their duties." He thought it was better to accept an official injustice here and there than to subject all officials to "the constant dread of retaliation." Other defenders argued that it was also better to protect public funds at the cost of occasional individual suffering.
Illinois courts applied the doctrine of sovereign immunity unevenly over the years, but didn't abandon it until 1959. So it still had the full force of law in 1909, when the state supreme court decided the case of Molway v. City of Chicago--the last case, before Boub's, that directly addressed the issue of bicyclists' rights on the road.
Alfred Molway had been riding his bicycle up Wells Street toward Ontario Street when he approached what he thought was a puddle. It turned out to be a foot-deep, water-filled pothole that Chicago officials had known about and ignored for months. Molway was thrown and injured, and he sued the city. The case focused on an Illinois statute that obliged the city to use "reasonable care" to keep the streets safe for "ordinary travel." The city argued that bicycle riding wasn't ordinary travel, the court disagreed, and Molway collected.
Interestingly, neither the city nor the court mentioned sovereign immunity. As a consequence, the Molway case--which still has the force of law--reinforced the principle that, regardless of immunity doctrines, a municipality was obligated by statute and common law to use reasonable care to keep the streets reasonably safe for bicycling.
That was a principle Wayne Township's defense attorneys believed should be overturned when they filed their brief in July 1996. "The issue is pretty narrow, really," says Jay Judge. "Is the road or bridge 'intended' for use by bicyclists? No. Bicyclists are permitted--yes, of course. But intended? No. Now, a couple good examples of property 'intended' for bikers are bike paths and demarcated white-line lanes on the roadways. So in a white-line lane we'd have to, for example, take away a parallel-to-the-curb sewer grate that a bike wheel could get caught in. But on a roadway that's not specially designated, bikers have to take the street as they find it. In this case the bridge just wasn't designed or maintained with bikers in mind."
Which brings us to the second potentially relevant part of the Tort Immunity Act: it also gives government entities immunity for "failure to initially provide traffic control devices" or other warning signs. In other words, the government entity isn't to blame for an initial absence of signs--the duty to warn is triggered only when a hazard is documented or when somebody gets hurt because of it.
So what about the absence of warning signs at the Saint Charles Road bridge? Does the "failure to warn" exemption hold when the construction crew created the hazard?
"We created the condition by taking [the asphalt] out," says Judge. "It's unfortunate. We--our clients--didn't think about [the danger to cyclists]. But a biker should stop and walk his bike across if there's any question. Municipalities aren't like ordinary property owners. Ordinary owners don't have thousands of miles of roads to maintain. The law presumes some obligation on people to look where they're going."
Another one of the township's defense attorneys, Ed Dutton, says, "The way I see it, what the workers were doing with the bridge that day was roughly the equivalent of putting on a coat of paint. Some people have got the impression that the gaps were clear through, with nothing underneath--when in fact they were just an inch or so deep. No big deal for a driver. Bicyclists wouldn't have much problem with them either--if they were paying attention." He adds, "The main point is that 'duty,' in a legal sense, is determined by what the local public entity intends--by what Wayne Township intends. In order to determine who's an intended and permitted user, you've got to look at the property itself." And nothing about the Saint Charles Road bridge, he argues, indicated that Wayne Township intended that it be ridden by bicyclists.
Hickey was surprised by these new arguments. "The briefs switched at the last minute to this concept of 'just a permitted user.' We were ready to file additional briefs [focusing on issues such as the lack of signs]. We were arguing that earlier on the day of the accident [the work crew] had blocked the road, giving warning that the bridge was under construction, and that they had a duty to maintain those warnings. But this wound up superseded by the larger issue--the question of whether a bicyclist is owed any duty of care at all."
In a reply brief Hickey cited the Illinois Vehicle Code, which states, "Every person riding a bicycle... shall be granted all the rights...applicable to the driver of a vehicle."
Dutton countered with a brief that pointed to other sections of the vehicle code that distinguish between "vehicles" and "human-powered devices," suggesting that bicycles don't qualify as vehicles. "The plaintiff loses with the vehicle code argument," Dutton says, "since the code itself shows that the operators of vehicles are the only intended users of the roads. But you don't really need to go to the vehicle code. That language doesn't matter as much as the intent of the local public entity."
Hickey's associate Catherine Fletcher responds, "When Mr. Dutton observes that 'duty is determined by what the local public entity intends,' that's a clear enough statement of law. Yes, there are cases that do show that it's the intent of the government entity that controls. But I think Mr. Dutton is trying to make it sound subjective--looking at it only from the point of view of the municipality. We think it's more objective than that--and broader. We don't disagree that you should look at the property itself to determine its intended use--you just don't look at it in a vacuum. You also have to look at factors such as history and custom."
Fletcher also wasn't buying his interpretation of the distinction in the vehicle code between vehicles and human-powered devices. "By Mr. Dutton's reasoning a motorized wheelchair would qualify under the definition of vehicle, but a manually propelled one would not."
But in September 1996, four years after the accident, the trial court accepted the defense's central argument, and the case was dismissed. In his opinion Judge Paul Noland wrote, "The plaintiff, a bicyclist on a township road and bridge, was not an intended and permitted user of that bridge; therefore, no duty was owed."
"We were shocked," Boub says. "We thought we had a slam dunk there. I was riding the way I always rode, the way I was supposed to ride. I mean, if we weren't meant to be on the road, why do all these cities and towns have ordinances barring bicycles from the sidewalks?"
Fletcher says, "We just couldn't believe the court would think bikers aren't intended users of roads. It seems absurd--contrary to legislative intent, history, and custom." Many other states specifically define bicycles as vehicles, removing most of the ambiguity about bicyclists' legal status.
That October Boub appealed to the Second District Appellate Court. Both sides filed briefs, and both sides asked to be allowed to make oral arguments. The court chose to decide the case based on the briefs alone.
Hickey knew this spelled trouble. "Appellate courts are hesitant to overturn trial courts," he says. "And if they are considering doing so, they want to give litigants the fullest opportunity to present their cases. We had all our briefs in, but I would also have liked the opportunity of oral argument to answer questions of the court and perhaps clear up misperceptions." He wasn't surprised when in September 1997 the appellate court affirmed the trial court's judgment.
Writing for the court, Justice Daniel Doyle acknowledged, "We are not aware of any case that has definitively determined whether bicyclists are intended users" of roads. Without such a case, he wrote, the court had felt compelled to rely largely on the reasoning in three Illinois Supreme Court decisions in which pedestrians were judged not to be among the intended users of certain roads.
In Sisk v. Williamson the plaintiff alleged that he got out of his car to inspect it for possible damage, then fell from the weed-lined, raised roadway to a creek below and was injured. In Vaughn v. City of West Frankfort the plaintiff was injured when she stepped in a hole in a city street while crossing in the middle of a block. In Wojdyla v. City of Park Ridge the plaintiff's decedent was struck and killed by a car when he attempted to cross a highway about a half mile from the nearest crosswalk. All three cases involved pedestrians walking outside the area that was designated for them, and in each case they lost.
In the Wojdyla decision the court stated, "To determine the intended use of the property involved, we need look no further than the property itself. The roads are paved, marked and regulated by traffic signs and signals for the benefit of automobiles." ("For the benefit of automobiles"? Many historians would quibble with that assertion. As Jay Pridmore and Jim Hurd point out in The American Bicycle, it was the bicyclists' League of American Wheelmen that in the late 19th century first championed the cause of improving American roads. Bicyclists dominated the Good Roads Movement for at least a decade before the birth of the automotive age, and their lobbying sparked the creation of the Office of Road Inquiry, which ultimately evolved into today's Federal Highway Administration.)
In its opinion on Boub's appeal the appellate court went on, "We realize that those cases involved pedestrians and not bicyclists. We also realize that bicyclists are not the same as pedestrians. Nonetheless, we conclude that the principles established in those cases are applicable here....In both Vaughn and Sisk, the court cited and followed the rule stated in Wojdyla, that a court should look to the property itself to determine its intended use.
"We further note that in both Sisk and Wojdyla, the supreme court discarded as outmoded its earlier position in Molway v. City of Chicago [that a city owed a duty of reasonable care to persons riding bicycles on city streets], explaining that Molway was decided before the advent of modern highways which carry high-speed vehicular traffic....Our review of the record [does] not reveal anything, based on the property itself, that manifested an intent by defendants that bicyclists use the subject road and bridge."
"The court seemed to think cyclists are more like pedestrians than like cars," says Boub. "That's wrong." He appealed, and this February the Illinois Supreme Court accepted his case for review (it accepts only about 5 percent of the cases submitted). Oral arguments are scheduled for June 30, and the court will likely issue its opinion later this year.
The supreme court essentially has three options: affirm the appellate court's ruling, reverse the ruling and order the appellate court to look at the case again, or reverse the ruling and order a trial. Affirmation would pretty much mean the end of the road for Boub. Another appellate court review might uphold the trial court's decision on other grounds, or it might throw the case back to the trial court. A trial would allow the case to continue on its merits. Boub's attorneys would then produce the evidence necessary to pursue his monetary claim--his medical expenses plus whatever additional compensation the jury thought was fair. Defense attorneys would presumably continue to pursue, among other things, the statute of limitations argument, which was rendered moot by the appellate court decision.
At least one of the seven current supreme court justices has written about bicyclists' rights before. Justice Moses Harrison, in a case determining whether a particular statute covered bicyclists as well as motorists, observed that "while including bicyclists...works no injustice, excluding them would. It would mean, for example, that the driver of a motor vehicle which fell into an open, unlit pit at an unmarked road construction site... could sue for damages, while a bicyclist following behind on the same roadway and sustaining the same injuries could not." Wayne Township's defense attorneys might respond that such a pit isn't analogous to the hazard created by the work on the Saint Charles Road bridge--a hazard to bicyclists but not motorists--and that municipalities shouldn't be held to different standards of duty for different users of the road. To which Boub's attorneys might respond that this is something for the trial court to decide.
As the lower court observed, no contemporary case clearly lays out a principle that could govern the outcome of Boub's case. As a consequence the supreme court may fall back on principles derived from recent cases involving pedestrians, as the appellate court did. Or it may choose to apply principles such as those that guided the Third District Appellate Court in 1996 in Herman v. Will Township. In that case the court found that the Tort Immunity Act didn't shield the township from the suit of a moped rider who was injured on a road where the pavement ended and the gravel began. The plaintiff established that the township road commissioner had been given notice of the hazard--a hazard significant to a moped rider, though insignificant to the driver of a car--and the case proceeded to trial on its merits.
Hickey thinks the supreme court will "take a hard look, and reverse the lower courts. I cannot believe that it is the public policy of this state to afford no protection to the millions of citizens of Illinois who use bicycles on the road for work or enjoyment." But Dutton is confident that the lower courts' rulings will be affirmed--and he doesn't see that as cause for alarm. "I don't foresee any devastating consequences. Assuming the supreme court finds in our favor, the situation will essentially be what we've got now." Hickey vigorously disagrees. "Under the appellate decision," he says, "bicyclists could be ticketed for any type of violation--but they don't have the benefit of protection."
If the lower court's ruling stands, bicyclists will no longer be able to sue a government entity for negligence if they're injured because of something the entity did or didn't do on an ordinary public road. Attorney Robert Jones of Business and Professional People for the Public Interest, who helped the Chicagoland Bicycle Federation prepare an amicus brief supporting Boub, says that under that ruling, bicyclists would be defined as "intended" users only on those roads where a government has explicitly indicated that bikes belong. And only such explicit indications could open that government to a liability charge. "The potential unintended consequences are disturbing," he says. "Will such a ruling discourage municipalities from improving bicycling safety, out of fear that in making improvements they'll expose themselves to extra liability? Will they have a perverse incentive to ignore conditions that are unsafe for bikers?" Would municipalities stop marking bike lanes because that opens them up to lawsuits?
If the Illinois Supreme Court extends no municipal duty of care to bicyclists, it will reinforce a transportation system that's already full of incentives to drive--and create another disincentive to bicycle. Urban areas--which stand to benefit from expanded bicycle use because it eases traffic congestion and pollution--may see fewer and fewer bicyclists willing to take the risk of riding on ordinary streets. Randy Neufeld of the Chicagoland Bicycle Federation says, "Cars are choking us, and bicycles can be part of the solution--but our work will be a lot harder if the supreme court says cyclists in Illinois have second-class status."
Of course if the current ruling falls, municipalities will face other challenges. What are the financial implications of equal tort exposure to bicyclists and motorists? How will the law play out in the real world of the road? How large a pothole will justify a cyclist's claim of municipal negligence?
These days Boub can run only about three miles, in pain. The arch of his foot may never completely heal. He didn't ride a bicycle again for three years. "And there's no psychological intensity," he says. "I know for sure I can't use a layout bar anymore--I've still got numbness in my left hand from the disk. I used to stay down on the bar for 20 or 30 miles." He didn't swim for two years; now he can do a mile, but his shoulder gives him trouble.
"It's hard to tell about my injury," he says. "Not that it's a huge painful memory or anything. I just don't like that the injury is a big story. Or that the court case is a big story. I just wanted my bills to get paid and for me to get better and get on with my life."
In late March Boub went back to the Saint Charles Road bridge. As he stood by the side of the road a tractor-trailer rig banged over the bridge, rattling the steel plates. He thought he saw something fly into the air. Walking over to take a closer look, he noticed that some of the steel plates were missing as many as half of the six-inch heavy-duty bolts holding them to the wooden planks. One loosened bolt stuck up a full two inches, ready to rip the tire of a car or bike. He set it on the side of the road.
He stood for a moment in the middle of the bridge. "It's still hard to believe," he said. "It just shouldn't have happened."
Art accompanying story in printed newspaper (not available in this archive): John Boub and bridge photo by Randy Tunnell.