Can a pedestrian or bike rider recover against a municipality for a dangerous condition in a roadway?
The weather is getting warmer. Pedestrians and bike riders are getting out and about. When a dangerous condition in the roadway causes harm to a pedestrian, can the injured person recover against the municipality who was supposed to make that road safe?
You would think so, but courts are all over the map. Let's assume condition was obvious, the injury is horrible, and the municipality or government body had all the notice in the world about the dangerous condition. The case still isn't a slam-dunk.
The municipality will come in and argue that the pedestrian can not legally recover. The government will say, while pedestrian was legally allowed to use the street, the pedestrian was not an intended user. What does this mean?
In Illinois, we give immunity to municipalities and local governments. This immunity extends to dangerous conditions. The municipality gets to argue it only has a duty to expected and intended users of the property. So, the municipality will say while you were expected to be on the roadway, you were not intended. Believe it or not, this argument works for the municipality. There are many court decision holding even pedestrians who fall into open manhole covers in the street cannot recover because pedestrians are not intended in the street. There are exceptions and if you want to recover-you better find one.
In one particular case, a Court held, "the status as an intended or permitted user-and whether immunity applies-must be determined based on the property where the alleged breach of duty occurred (the sidewalk), not the property where the injury occurred (the street), and not the mechanism of her injury (i.e., whether she was struck by an automobile or tripped on a defect).” City of Park Ridge Case.
What this Court found was if the government has done something preventing you from using the sidewalk- and you have to use the street, then the government breaches its duty before you ever get hurt in the street.
So the question is why were you in the street? The follow up question is where were you in the street? If you were in the road and in the crosswalk, you have a right to recover. That is because the government can't say you weren't intended. Hello...you were using the place where pedestrians were supposed to be.
Courts have applied this expected and intended game to all sorts of places, like schools, alleys, parks, bridges, and parkways. Just about any place you can think a pedestrian would be. So if you get hurt because of a dangerous condition while walking or riding your bike, you want to pay close attention to where you were and why were you there...