No. 1-12-3763

SIXTH DIVISION September 27, 2013

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THOMAS BERZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 11 L 7025 ) THE CITY OF EVANSTON, a Municipal Corporation, ) The Honorable ) Diane Larson, Defendant-Appellee. ) Judge Presiding.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Reyes concurred in the judgment and opinion. Presiding Justice Gordon concurred in part and dissented in part, with opinion.

OPINION

¶1 Plaintiff, Thomas Berz, appeals the circuit court's order dismissing his third amended

complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-

619(a)(9) (West 2010)) where the Local Governmental and Governmental Employees Tort

Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2010)) immunized

defendant, the City of Evanston, against plaintiff's negligence claim. Plaintiff contends the

circuit court erred in dismissing his third amended complaint because relevant Evanston

ordinances and defendant's bicycle map established that he was an intended user of the alley 1-12-3763

where he was injured. Based on the following, we affirm.

¶2 FACTS

¶3 On September 4, 2010, plaintiff was riding his bicycle in Evanston, Illinois, in an

alleyway behind the addresses of 1549 to 1555 Sherman Avenue, which runs between Grove

Street and Davis Street, when he was injured by striking a pothole measuring 40 inches wide, 18

inches in length, and at least 4 to 5 inches deep. On July 7, 2011, plaintiff filed a complaint

alleging negligence against defendant. On August 17, 2011, defendant filed a section 2-619(a)(9)

motion to dismiss, arguing that section 3-102(a) of the Tort Immunity Act (745 ILCS 10/3-102(a)

(West 2010)) provided immunity for defendant where plaintiff was not an intended user of the

alley. On October 28, 2011, defendant's motion to dismiss was granted; however, plaintiff was

granted leave to amend his pleading.

¶4 On November 14, 2011, plaintiff filed a first amended complaint alleging the same cause

of action based on the same facts, but with increased specificity. In addition, plaintiff attached

19 photographs and an affidavit verifying his personal knowledge of the facts in the complaint,

that he took the photographs after the incident, and that the photographs accurately depicted the

pothole and alley conditions at the time of the incident. On November 18, 2011, plaintiff's

counsel was granted leave to withdraw. Plaintiff's second attorney filed an appearance and was

granted leave to file a second amended complaint.

¶5 On April 5, 2012, plaintiff filed a second amended complaint, alleging he was operating a

bicycle in a northerly direction along and upon the alley behind the addresses of 1549 to 1555

Sherman Avenue between Grove Street and Davis Street when he was injured as a result of

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defendant's negligence in repairing and maintaining the alley for intended bicycle users. On May

10, 2012, defendant filed a section 2-619(a)(9) motion to dismiss the complaint, arguing that

section 3-102(a) of the Tort Immunity Act created immunity for defendant where plaintiff was

not an intended user of the alley. On August 2, 2012, plaintiff filed a response, arguing that

bicyclists were intended users of the alleys because defendant defined bicycle as a vehicle and

where the municipal code and bicycle map evinced an intent that bicyclists use the alleys. On

August 29, 2012, the circuit court granted defendant's motion to dismiss, but granted plaintiff

leave to file an amended complaint.

¶6 On September 5, 2012, plaintiff filed a third amended complaint, the subject of which is

before this court. In that complaint, plaintiff alleged that he operated a vehicle in a northerly

direction along and upon the alley between Grove Street and Davis Street. On October 10, 2012,

defendant filed a section 2-619(a)(9) motion to dismiss, arguing that bicyclists are not intended

users of the alleys, that a bicycle is not a vehicle, and that there were no physical manifestations

demonstrating bicyclists were intended users of the alleys. On November 12, 2012, plaintiff filed

a response, arguing that defendant's motion failed to address the allegation that plaintiff operated

a vehicle. Defendant replied, stating that all of plaintiff's previous complaints alleged he was

riding a bicycle and that a signed affidavit attached to the first amended complaint provided that

he was riding a bicycle; therefore, plaintiff made a judicial admission that he was riding a

bicycle. On November 27, 2012, the circuit court dismissed plaintiff's complaint with prejudice.

This timely appeal followed.

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¶7 DECISION

¶8 Plaintiff contends the circuit court erred in dismissing his third amended complaint where

section 3-102(a) of the Tort Immunity Act did not immunize defendant from liability for

plaintiff's injury because he was an intended user of the alleyway .

¶9 Plaintiff's complaint was dismissed pursuant to section 2-619(a)(9) of the Code. A

section 2-619(a)(9) motion admits the legal sufficiency of the complaint, but asserts that it is

barred by some other affirmative matter. Brennan v. Kadner,

(2004).

In considering the motion, all well-pleaded facts and reasonable inferences drawn therefrom are

admitted, and all pleadings and supporting documents are construed in a light most favorable to

the nonmoving party.

When reviewing a section 2-619 motion to dismiss, we must consider

whether a genuine issue of material fact exists which precludes dismissal and whether the

affirmative matter negates the plaintiff's cause of action completely or refutes critical conclusions

of law or conclusions of material unsupported fact. Turner v. 1212 S. Michigan Partnership,

(2005). We review de novo the dismissal of a complaint pursuant to section

2-619. Brennan,

.

¶ 10 Plaintiff's complaint alleged defendant was negligent and, therefore, liable for his injuries.

To establish a claim of negligence, a plaintiff must prove the defendant owed a duty of care to

the plaintiff, the defendant breached that duty of care, and the plaintiff suffered an injury

proximately caused by the breach. Doria v. Village of Downers Grove,

(2009); Latimer v. Chicago Park District,

(2001). In regard to

defendant's duty of care, section 3-102(a) of the Tort Immunity Act provides:

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"Except as otherwise provided in this Article, a local public entity has the duty to

exercise ordinary care to maintain its property in a reasonably safe condition for

the use in the exercise of ordinary care 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."

(Emphasis added.) 745 ILCS 10/3-102(a) (West 2010).

The Illinois Supreme Court has advised that "[s]ection 3-102(a) of the Act only imposes a duty of

ordinary care on municipalities to maintain property for uses that are both permitted and

intended." (Emphases in original.) Vaughn v. City of West Frankfort,

(1995). Pursuant to the language of the statute, the intent of the local public entity is controlling.

Boub v. Township of Wayne,

(1998). "[A]n intended user of property is, by

definition, also a permitted user; a permitted user of property, however, is not necessarily an

intended user."

.

¶ 11 To determine the intent of the local public entity, the Illinois Supreme Court has

repeatedly instructed that it is necessary to look to the nature of the property itself. Vaughn,

; Wojdyla v. City of Park Ridge,

(1992); see Sisk v.

Williamson County,

(1995). In other words, "it is necessary to look at

pavement markings, signs, and other physical manifestations of the intended use of the property."

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Boub,

.

¶ 12 Prior to addressing the substance of plaintiff's claim, we note that defendant amended the

relevant ordinance after the date of the incident, such that:

"Any person operating or riding a bicycle in any alley in the City of Evanston

assumes the risk of operating that bicycle in any alley as that person shall not be

considered to be an intended user of an alley. The City shall have no duty to

upgrade and maintain alleys for purposes of bicyclists operating bicycles in alleys.

Persons operating or riding a bicycle as an unintended user in an alley will not be

liable for any fine under this subsection." Evanston Municipal Code § 10-9-

4(M) (adopted Oct. 8, 2012).

The amendment was approved on October 8, 2012, but it "shall be in full force and effective as

of June 1, 2010, nunc pro tunc." Evanston Municipal Ordinance 99-0-12, § 6 (adopted Oct. 8,

2012). In determining whether a statute operates retroactively for purposes of substantive due

process, we consider if the city council has clearly indicated the temporal reach of the statute.

Consiglio v. Department of Financial & Professional Regulation,

. If so, absent a constitutional prohibition, the legislature's intent as expressed must be given

effect.

We note that municipal ordinances are governed under the same general rules of

statutory interpretation as state legislation. Morgan Place of Chicago v. City of Chicago,

.

¶ 13 In this case, the Evanston city council clearly expressed its temporal intent by stating that

the amendment was effective as of June 1, 2010, which was prior to the September 4, 2010,

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incident. The Illinois Constitution, however, prohibits the legislature from arbitrarily eliminating

a cause of action unless it is a reasonable exercise of the legislature's police power in providing

for general welfare. M.E.H. v. L.H.,

(1996). We cannot state that the

Evanston city council reasonably exercised its police power in arbitrarily eliminating plaintiff's

cause of action here. We, therefore, turn to the substance of the case.

¶ 14 In this case, there was nothing in the alley that would suggest it was intended for use by

bicycles. More specifically, there were no pavement markings or signs indicating that bicyclists,

like motorists, were intended to ride in the alley. Cf. Cole v. City of East Peoria,

(1990) (applying section 3-102(a) of Tort Immunity Act, the appellate court concluded that

the municipality was liable for an injury caused when a bicyclist's tire became stuck in a sewer

grate because special pavement markings demonstrated that the city intended and permitted

bicyclists to use the area where the accident occurred). We recognize that plaintiff's photographs

of the alley in question provided signs stating "One Way" and "Do Not Enter," as well as having

a stop sign located at the mouth of the alley, and that "[b]icyclists, unlike pedestrians, are guided

by some of the same signs and pavement markings that motorists observe." Boub,

. However, the signs described were consistent with plaintiff's permitted use of the alley

along with motorists and does not suggest that bicyclists were intended users of the alley.

Contrary to plaintiff's argument, the fact that defendant later amended, in 2012, the Evanston

Municipal Code to expressly state "[b]icyclists operating or riding bicycles in an alley are not

intended users of the alley" does not demonstrate that bicyclists were intended users of the alleys

at the time in question. Evanston Municipal Code § 10-9-7 (adopted Oct. 8, 2012). "Subsequent

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remedial measures or warnings, of course, may not be used as evidence of negligence."

Boub,

. We do not find that defendant's subsequent amendment can be

interpreted to establish its prior intent in favor or against plaintiff.

¶ 15 Plaintiff, however, argues that his pleadings and supportive documents demonstrated

defendant's intent that bicyclists were authorized users of the alleys. In particular, plaintiff cited

section 10-9-4 of the Evanston Municipal Code, which stated that "[e]very person operating a

bicycle [e.g., every device propelled by human power upon which any person may ride having 2

tandem wheels either which is more than 16 inches in diameter (Evanston Municipal Code § 10-

9-1 (adopted Oct. 8, 2012))] upon a roadway shall be granted all the rights and be subject to all of

the duties applicable to the operator of a vehicle." Evanston Municipal Code § 10-9-4(A)

(adopted Oct. 8, 2012). Plaintiff additionally cited the Evanston Municipal Code wherein bicycle

riding is specifically prohibited on sidewalks in the central business district or any other district

where signs prohibiting sidewalk riding are posted. Evanston Municipal Code § 10-9-4

(adopted Oct. 8, 2012). Section 10-9-7 of the Evanston Municipal Code also stated:

"The traffic engineer, by and with the consent of the city council, is

authorized to designate certain streets or portions thereof as bicycle routes and/or

may prohibit bicycle traffic. Upon such designation, signs shall be erected giving

notice thereof. No person may ride upon a street, roadway or sidewalk upon

which is posted a sign prohibiting bicycle traffic." Evanston Municipal Code

§ 10-9-7 (adopted Oct. 8, 2012).

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¶ 16 Moreover, plaintiff relied on a bicycle map created by the Evanston department of public

works which only prohibited bikes on a stretch of road on Ridge Avenue. The map further stated

that "a bicycle is a vehicle and you are the driver. When you ride in the street, obey all traffic

signs, signals and lane markings. When you ride on the sidewalk in permitted areas, yield to

pedestrians." Overall, plaintiff contends that the evidentiary support demonstrates defendant's

intent that bicyclists were subject to the same rights and duties applicable to operators of

vehicles.

¶ 17 Our review of plaintiff's pleadings and documents merely demonstrate that bicyclists

were permitted to use the alley. Nothing in the sections of the Evanston Municipal Code cited by

plaintiff nor on the bike map expressly provides that bicyclists were intended to use the alleys.

Rather, section 10-9-4 of the Evanston Municipal Code evinces the city council's intent to permit

bicycles to operate on roadways, in that the ordinance grants every person operating a bicycle

upon a roadway all rights and subjects bicyclists to all duties applicable to the operator of a

vehicle. See Evanston Municipal Code § 10-9-4 (adopted Oct. 8, 2012). However, a roadway

was defined as "[t]he entire width between the boundary lines of every way publicly maintained

when any part thereof is open to the use of the public for purposes of vehicular travel" (Evanston

Municipal Code § 10-9-1 (adopted Oct. 8, 2012)) and a vehicle was defined as "[e]very device in,

upon or by which any person or property is or may be transported or drawn upon a street, except

devices moved by human power" (emphasis added) (Evanston Municipal Code § 10-1-3 (adopted

Oct. 8, 2012)). At the time in question, the ordinance was silent as to alleys in particular.

Therefore, the language of the ordinances merely demonstrates the city council's intent that

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bicycles were permitted to use the roadways.

¶ 18 To the extent plaintiff argues that the Evanston bike map provided a basis for

demonstrating defendant's intent that bicyclists use alleys because the map only prohibited bike

riding in a single stretch of road, we are unconvinced. Similar to the plaintiff in Latimer,

plaintiff cites no authority for the proposition that a ban on use in one place implies that the use

is necessarily intended elsewhere. Latimer,

. As the Latimer court stated:

"The consequences of such a proposition would be untenable. Consider,

for example, a municipality that has banned smoking in its government buildings.

Although the municipality might permit smoking in the outdoor areas surrounding

those buildings, it would be absurd to conclude that the municipality intended for

people to smoke in such areas." (Emphasis in original.)

We agree. Moreover, the map in evidence, which was dated after the accident on September 13,

2011, reveals designated bike lanes, bike routes, and off-street bike paths. None of these areas

designated for bike use included alleys. See Diefendorf v. City of Peoria,

(1999).

¶ 19 Section 10-9-4 of the Evanston Municipal Code has language nearly identical to section

11-1502 of the Illinois Vehicle Code (625 ILCS 5/11-1502 (West 2010)) and defines "bicycle" in

an almost identical manner (625 ILCS 5/1-106 (West 2010)). The supreme court in Boub found

that section 11-1502 of the Illinois Vehicle Code was "designed to ensure that bicyclists, for their

own safety and the safety of others, obey traffic laws while they are on public streets and

highways." Boub,

. Morever, the supreme court concluded that the

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provision was "entirely consistent with the conclusion that bicyclists are permitted, but not

intended, users of the roads, in the absence of specific markings, signage, or further

manifestations of the local entity's intent that would speak otherwise."

. Similarly here,

where there were no specific markings, signage, or further manifestations of defendant's intent

expressly allowing or prohibiting bicycle riding in the alley, we find that bicyclists were

permitted to use the alley, but not intended users of the alley.

¶ 20 Plaintiff argues that Boub is not controlling here because Boub was dismissed on

summary judgment and not pursuant to a motion to dismiss, as was the case here. The question

for a reviewing court at the motion to dismiss stage for a section 2-619 motion is whether a

genuine issue of material fact exists which precludes dismissal and whether the affirmative

matter negates the plaintiff's cause of action completely or refutes critical conclusions of law or

conclusions of material unsupported fact (Turner,

), while the question for

the reviewing court at the summary judgment stage is whether the pleadings, depositions, and

admissions on file, together with the affidavits, present no genuine issue of material fact and

show the moving party is entitled to judgment as a matter of law (Latimer,

). "The only significant difference between the treatment of a motion under section 2-

619(a)(9) as opposed to under section 2-1005 [summary judgment] is that, under the former, a

judge potentially may weigh evidence and resolve factual disputes, while under the latter, a

material factual dispute will preclude summary adjudication." Turner,

.

That difference is negated in situations, such as the one before this court, where the facts are not

in dispute. See

To the extent the Boub court did not have access to a relevant municipal

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ordinance, we find our decision is more firmly supported where we do have access to the relevant

municipal ordinances, yet have found parallels to the Illinois statutes cited in Boub.

¶ 21 Finally, plaintiff argues his admission in prior pleadings that he was riding a bicycle is not

a proper judicial admission where the factual conclusion should not be considered in the calculus

of a legal conclusion regarding defendant's intent. In other words, plaintiff argues that his

admission that he was riding a bike, a factual conclusion, should not negate this court's ability to

consider whether a bicycle is a vehicle for purposes of the Evanston Municipal Code, a legal

conclusion.

¶ 22 A judicial admission is a "deliberate, clear, unequivocal statement of a party, about a

concrete fact, within the party’s peculiar knowledge." (Internal quotation marks omitted.)

Rath v. Carbondale Nursing & Rehabilitation Center, Inc.,

(2007). We

recognize that plaintiff does not dispute the admission that he rode a bicycle but, rather, disputes

the use of that admission as a legal conclusion that a bicycle was not a vehicle. However, based

on the definitions of bicycle and vehicle in the Evanston Municipal Code, we make the legal

conclusion that a bicycle was not a vehicle for our purposes. See Evanston Municipal Code §§

10-9-1, 10-1-3 (adopted Oct. 8, 2012). As defined, a vehicle was “[e]very device in, upon or by

which any person or property is or may be transported or drawn upon a street, except devices

moved by human power” (Evanston Municipal Code § 10-1-3 (adopted Oct. 8, 2012)), while a

bicycle was “[e]very device *** propelled by human power upon which any person may ride,

having two (2) tandem wheels” (Evanston Municipal Code § 10-9-1 (adopted Oct. 8, 2012)). To

the extent the Evanston bike map provided that “a bicycle is a vehicle and you are the driver,” we

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find the express language of the ordinance controls.

¶ 23 In conclusion, because plaintiff was not an intended user of the alley in which he

sustained injuries, defendant is immunized from liability pursuant to section 3-102(a) of the Tort

Immunity Act.

¶ 24 CONCLUSION

¶ 25 We affirm the judgment of the circuit court dismissing plaintiff's third amended

complaint.

¶ 26 Affirmed.

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¶ 27 PRESIDING JUSTICE GORDON, concurring in part and dissenting in part:

¶ 28 I concur with the majority's conclusions: (1) that the City of Evanston acted arbitrarily

when it attempted to eliminate plaintiff's cause of action by passing an ordinance which stated

that it applied retroactively back to a date shortly before plaintiff's accident; (2) that the City's

action in passing this retroactive ordinance was not a reasonable exercise of the City's police

power in providing for the general welfare; and (3) that bicyclists are permitted users of alleys.

Supra ¶¶ 13, 17.

¶ 29 However, I must write separately because I dissent from the majority's conclusion that

bicyclists are not intended users of alleys. Supra ¶ 17.

¶ 30 In the Chicago area, it is common for garages to open onto alleys. It is also common, in

the Chicago area as elsewhere, for people to store their bicycles, as well as their vehicles, in their

garages. The obvious intended purpose of an alley that has garages opening onto it is to provide

access to the things that people commonly store in those garages, such as bicycles and vehicles.

DeMambro v. City of Springfield,

(pedestrians were "clearly

intended" to be near where they park their vehicles); Gutstein v. City of Evanston,

(2010) (pedestrians were intended users of an alley where they deposit their garbage

for pickup).

¶ 31 Standard of Review

¶ 32 On this appeal from a section 2-619 dismissal, our review is de novo, and we must

consider whether a genuine issue of material fact precludes dismissal. Supra ¶ 10 (citing Turner

v. 1212 South Michigan Partnership,

(2005), and Brennan v. Kadner,

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, 967 (2004)). In addition, because the Tort Immunity Act is in derogation of

the common law, we must construe the Act strictly against the municipal defendant. Gutstein,

. In cases under the Tort Immunity Act, determinations are often "fact-

specific." Gutstein,

. This is because whether a plaintiff was an intended

user of an area often turns on the plaintiff's purpose in being in that area. Thus, in Gutstein, we

held that a pedestrian was an intended user of an alley where the City of Evanston established a

policy requiring her to enter the alley in order to deposit her garbage there for pick-up. Gutstein,

. Similarly, in DeMambro, the appellate court held that a pedestrian was

an intended user of the area near her lawfully parked vehicle. DeMambro,

. Although I would find for the reasons explained below that plaintiff was an

intended user no matter what his purpose, a dismissal at this point in the litigation is also

premature since there remains a question of material fact concerning his purpose for using the

alley.

¶ 33 Permitted and Intended User

¶ 34 As the majority correctly observes, for plaintiff to recover, he must show that he was both

an intended and permitted user of the alley. Supra ¶ 11; Boub v. Wayne,

(1998). There is no dispute that plaintiff was a permitted user. As the majority recognizes,

plaintiff's photographs of the alley in question showed signs stating "One Way" and "Do Not

Enter," and these signs applied equally to both vehicles and bicycles. Supra ¶ 14; Boub,

(the fact that bicyclists are governed by the same signs as motor vehicles indicates they

are permitted users, but not necessarily intended users).

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¶ 35 Plaintiff also cites section 10-9-4 of the Evanston Municipal Code which stated that

"[e]very person operating a bicycle upon a roadway shall be granted all rights and be subject to

all duties applicable to the operator of a vehicle." Evanston Municipal Code §10-9-4. Thus, the

operator of a bicycle had the same "rights" as the operator of a motor vehicle to drive on a

"roadway," such as an alley leading to where he or she could park in a garage. Boub,

(the fact that bicyclists have the same rights and duties as motor vehicle drivers indicates

they are permitted users, but not necessarily intended users). I find these arguments persuasive

and, like the majority, conclude that plaintiff was a permitted user.

¶ 36 In support of his argument that he was also an intended user, plaintiff cites section 10-9-7

of the Evanston Municipal Code which states that: "The traffic engineer, by and with consent of

the city council, is authorized to designate certain streets or portions thereof as bicycle routes

and/or may prohibit bicycle traffic. Upon such designation, signs shall be erected giving notice

thereof." (Emphasis added.) Evanston Municipal Code §10-9-7. "The use of the word 'shall'

means that it is mandatory ***." People v. Dominguez,

; People v.

Robinson,

(2005) (" 'shall' means shall," and thus is "obligatory"); People v.

Lampitok,

, 261 (2003) ("the primary definition of 'shall' is '[h]as a duty to; more

broadly, is required to.' Black's Law Dictionary 1379 (7th ed. 1999)"). Thus, the City was

required to post a sign to indicate if a street was not intended for bicyclists. Since the City failed

to give notice of its alleged intent by posting a sign as required by its own municipal ordinance, it

cannot now be heard to complain that it did not intend for bicyclists to use the alley.

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¶ 37 In Gutstein, we held that "physical manifestations of the City's intent" are not required

where "the City has established a policy." Gutstein,

. Similarly, in the

case at bar, the City of Evanston has established an express policy that it will post signs where it

intends to prohibit bicycle traffic. Evanston's express policy, upon which its citizens are entitled

to rely, precludes it from now arguing that it did not intend bicyclists to use the alley.

¶ 38 Conclusion

¶ 39 In light of both Evanston's stated policy to post signs and the obvious intended purpose of

alleys to provide access to the vehicles and bicycles commonly stored in the garages that open

onto those alleys, I conclude that plaintiff as a bicyclist was an intended user of the alley. In

addition, as I discussed in the above section concerning our standard of review, the absence of

any evidence concerning plaintiff's purpose in using the alley creates a genuine issue of material

fact that precludes a section 2-619 dismissal. For these reasons, I must respectfully dissent from

the majority's conclusion that plaintiff was not an intended user.

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