Personal Injury - Immunity Of Municipalities

Immunity of Municipalities

We often hear of tragic accidents that happen on city streets, parks, and beaches or in city buildings. Little do most residents know that municipalities are not liable for many injuries that occur on their property. They either have immunity from certain conduct on public property, or the law sets forth such strict requirements for the plaintiff to meet that liability is often too difficult to prove.

Intended and Permitted Use

For instance, a municipality is not liable for an injury caused by the existence of a condition on public property that is intended and permitted to be used for recreational purposes, such as parks, playgrounds, open areas, buildings, or other enclosed recreational facilities. The only exception to this rule is that liability does attach when the municipality or one of its employees is guilty of willful and wanton misconduct. Such misconduct is defined as conduct that is malicious or that involves a reckless disregard for the safety of the persons using the premises. It, too, is often extremely difficult to prove.

As far as roads and public highways are concerned, a municipality has a duty to use ordinary care to maintain its property in a reasonably safe condition. Such a condition must be maintained only for persons who use ordinary care on the property and who are the intended and permitted users of the property. An "intended and permitted user" is an individual who the municipality could reasonably expect to use the property in a manner foreseeable to that person. Thus, a person who slips in a large pothole while walking outside of a public crosswalk would not be an intended and permitted user of the city's property because the city intends and permits pedestrians to walk within the lines of the crosswalk only.

Even if the pothole is in the crosswalk, the plaintiff has to show that the city had actual or constructive notice of the pothole in order for the city to become responsible for the plaintiff's injuries. Actual notice is often difficult to prove because many municipalities do not keep records of complaints or prior incidents involving their property. Constructive notice at least gives the plaintiff the opportunity to show that the size or severity of the condition is such that the city either knew or should have known of the condition, in which case liability can be imposed if all of the other elements are present.

Municipalities and Bicyclists

The Illinois Supreme Court recently discussed the intended and permitted user rule as it applies to a bicyclist who is injured while traveling on a road that is under renovation. In a move that likely angered most bicyclists, the court found that the bicyclist was permitted to use the road and the bridge where the accident occurred, but that the bicyclist was not intended to use them. The court looked at the pavement markings, the posted signs, and other items that would show that bicyclists were intended to use the road and the bridge and found no compelling evidence of intended use.

If the city had erected signs with a bicycle symbol and legend stating "Slippery When Wet," this would have been indicative of its intent to have bicyclists use the road and the bridge. In the end, the court decided that the enormous costs of imposing liability on municipalities for road defects that might injure bicyclists combined with the cost of upgrading road conditions to meet the special requirements of bicyclists were too much for municipalities and taxpayers to bear.

As a result of this decision, the Illinois legislature is considering a change in the law making municipalities liable for injuries to bicyclists caused by willful and wanton conduct.

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