2013 I LApp (1st) 123763 No. 1-12-3763
SI XTH DIVI SI ON September 27, 2013

I N THE APPEL L ATE COURT OF I L L I NOI S FI RST J UDI CI AL

DI STRI CT
THOMAS B ERZ , ) Appea l from the ) Circuit Court of Plaintiff-Appellant, ) Cook County
. ) v. ) No. 11 L 7025 ) THE CI TY OF EVANSTON, a Municipal Corporation, ) The Honor able ) Diane L arson, Def endant- Appellee
. ) J udg e Presiding
. J USTI CE L AMPKI

N deliver ed the judg ment of the c ourt, with opinion. J ustice Rey es conc urre d in the judgme nt and opinion. Presiding Justice Gordon c oncurr ed in par t and dissented in par

t, with opinion. O P I N I O N ¶ 1 Plaintiff, Thomas Be rz, appea ls the circuit cour t's or der dismissing his third amende d complaint pursuant to sec tion 2-619(a) (9) of the Code of Civil Procedure (Code) ( 735 I L CS 5/ 2- 619(a) (9) ( West 2010)) wher e the L ocal Gove rnmental a nd Gover nmental Employ ees Tor

t I mmunity Act (Tor t I mmunity

Act) ( 745 I L CS 10/ 1-101 et seq . (West 2010)) immuniz ed defe ndant, the City

of Evanston, a g ainst plaintiff' s neg lige nce c laim. Plainti ff c ontends the circ uit court err ed in dismissi ng his third amended c omplaint because rele vant Evanston ordinanc es and de fenda

nt's bic y cle map e stablished that he wa s an intended use r of the a lley1-12-3763

wher e he w as injured. B ased on the following , we a ffirm. ¶ 2 FACTS ¶ 3 On September

4, 2010, plaintiff was r iding his bicycle in Eva nston, I llinois , in an alley way behind the addr esses of 1549 to 1555 Sher man Avenue , which runs be tween G rove Street and D avis Street, whe n he wa s injured by striking a pothole measuring40 inches wide , 18 inches in leng th, and at lea st 4 to 5 inches deep. O n J uly 7, 2011, plaintiff filed a

complaint alleg ing ne g lige nce a g ainst defe ndant. On Aug ust 17, 2011, defenda

nt filed a sec tion 2-619(a) (9) motion to di smiss, arguing tha t section 3-102(a ) of the T ort I mmunity Act (745 I L CS 10/ 3-102(a ) (West 2010)) provide d immunit y for de fenda

nt where plaintiff was not a n intended user

of the alley . On Octobe r 28, 2011, def endant' s motion t o dismiss was g rante d; however , plaintiff was g rante d leave to amend his pleading
. ¶ 4 On Novembe r 14, 2011, plaintiff filed a first amende d complaint alleg ing the same c ause of ac tion based on the same fac ts, but with i ncre ased spe cificity . In addition, plaintiff attache d 19 photogr aphs and a

n aff idavit verify

ing his pe rsonal knowledg e of the fac ts in the complaint, that he took the photog raphs a fter the incident, and that the photographs a ccur ately depicted the pothole and alley

conditions at the time of the incident. On N ovember 18, 2011, plaintiff' s counsel wa s g rante d leave to withdraw. Plaintiff' s second attorney filed an a ppear ance and wa s g rante d leave to file a sec ond amende d complaint. ¶ 5 On April 5, 2012, plaintiff filed a second a mended c omplaint, alleg ing he was ope ratinga bicycle in a nor

therly direc tion along a

nd upon the alley

behind the addr esses of 1549 to 1555 Sherman Ave nue betwe en Gr ove Stree t and Davis Stree t when he w as injured a s a re sult of
-2-1-12-3763

defe ndant' s neg lige nce in r epair ing a nd maintaining the alley

for intende d bicycle use rs. On May 10, 2012, defe ndant filed a section 2-619( a)( 9) motion to dism iss the complaint, arguing that section 3-102( a) of

the Tort Immunity

Act cr eate d immunit y

for de fenda

nt where plaintiff was not an intended use r of the a lley . On August 2, 2012, plaintiff filed a r esponse, a rguing that bicyclists were intended user s of the alley s beca use def endant de fined bicy

cle a s a vehic le and wher e the municipal c ode and bic ycle map e vinced a n intent that bicy clists use the alley s. On August 29, 2012, the circuit cour t gr anted de fenda

nt's motion to dismis s, but gr anted plaintiff leave to file an amended c omplaint. ¶ 6 On September

5, 2012, plaintiff filed a

third amende d complaint, the subject of which is befor e this court. In that complaint, plaintiff alleg ed that he ope rate d a vehic le in a norther ly direc tion along a

nd upon the alley

betwee n Grove Street and D avis Street. On Oc tober 10, 2012, defe ndant filed a

section 2-619( a)( 9) motion to dism iss, arguing that bicy clists are not intende d users of the alley s, that a bicycle is not a ve hicle, and that there w ere no phy sical manife stations demonstratingbicyclists were intended user s of the alley s. On Novembe r 12, 2012, plaintiff filed
a re sponse, ar g uing that defe ndant' s motion failed to addre ss the alleg ation that plaintiff oper ated a vehic le. Def

endant r eplied, statingthat all of plaintiff' s previous complaints alleg ed he w as riding a bicycle a

nd that a sig ned af

fidavit attac hed to the first a mended c omplaint provided that he wa s riding a

bicy cle; ther efor e, plaintiff made a judicial admission that he wa s riding a bicycle. On N ovember

27, 2012, the circ uit court dismissed plaintiff's c omplaint with prejudice. This timely

appea l followed.

-3-1-12-3763

¶ 7 DECI SI ON ¶ 8 Plaintiff contends the c ircuit court e rre d in dismi ssing his third amende d complaint wher e section 3-102( a) of

the Tort Immunity

Act did not immuniz e def endant f rom liability

for plaintiff' s injury

beca use he w as an intende d user of the alley way . ¶ 9 Plaintiff's c omplaint was dismissed pursuant to section 2-619(a )(9) of the Code. A section 2-619( a)( 9) motion admits the lega l sufficienc y of the c omplaint, but asserts that it is barr ed by some other a ffirmative matter. Brennan v. Kadne r , 351 I ll. App. 3d 963, 967 (2004). In consideringthe motion, all well-pleade d fac ts and rea sonable infe renc es dra wn there from ar e admitted, and all plea dings a nd supporting doc uments are construed in a light most favor able to the nonmoving pa

rty
. Id . When review ing a section 2-619 motion to dismi ss, we must consider whether a g enuine issue of

materia l fac t exi sts which prec ludes dismissal and whether the aff irmative matter ne g ates the pla intiff' s cause of ac tion completely or re futes cr itical conclusions of law or conclusions of mate rial unsupported f act. Turner v. 1212 S. Michigan Partnership , 355 I ll. App. 3d 885, 892 (2005). We re view de novo the dismissal of a complaint pursuant to sec tion 2-619. Brennan , 351 I ll. App. 3d at 967. ¶ 10 Plaintiff's c omplaint alleg ed def endant wa s neg lige nt and, there fore , liable for his injuries. To establish a c laim of neg lige nce, a plaintiff must prove the de fenda nt owed a duty

of ca re to the plaintiff, the de fenda

nt brea ched that duty

of ca re, a nd the plaintiff suff

ere d an injury proxi mately

cause d by

the bre ach. Doria v. Village of Downers Grove , 397 I ll. App. 3d 752, 757 (2009); Latimer v. Chicago Park District , 323 I ll. App. 3d 466, 468 (2001). In reg ard to defe ndant' s duty

of ca re, se ction 3-102(a ) of the T ort Immunity Act provide s:
-4-1-12-3763

"E x cept a s otherwise pr ovided in this Article, a loca l public entity has the duty

to exercise or dinary

car e to maintain its property in a re asonably

safe condition for the use in the e

xerc ise of ordinary care of peoplewhom the entity intended and permitted to use the prope rty in a manner in which and a

t such times as it was
rea sonably

fore seea ble that it would be used, a nd shall not be liable for

injury unless it is proven that it has actua l or construc tive notice of the exis tence of such a condition that is not reasona bly safe in rea sonably

adequate time prior to an injury to have take n measure s to remedy or protec t ag ainst such condition." (Emphasis adde d.) 745 I L CS 10/ 3-102(a ) (West 2010). The I llinois Supreme Court has a dvised that " [s] ection 3-102( a) of the Act only

imposes a duty

of ordinary car e on municipalities to maintain proper ty for use s that are both permitted and intended ." ( Emphases in orig inal.) Vaughn v. City of W est Frankfort , 166 I ll. 2d 155, 160 (1995). Pursuant to the languag e of the statute, the intent of the loca l public entity is controlling. Boub v. Township of W

ayne , 183 I ll. 2d 520, 525 (1998). " [A] n intended user of prope rty

is, by definition, also a per

mitted user; a per

mitted user of prope rty , howeve r, is not nece ssarily an intended user ." Id . at 524. ¶ 11 To deter

mine the intent of the loca l public entity , the I llinois Supreme Court has repe atedly

instructed that it is nece ssary to look to the nature of the proper ty itself. Vaughn , 166 I ll. 2d at 162-63; W

ojdyla v. City of Park Ridge , 148 I ll. 2d 417, 426 (1992); see Sisk v. W illiamson County , 167 I ll. 2d 343, 351-52 (1995). In other wor ds, "it is nece ssary to look at paveme nt marking s, signs, a nd other phy sical manife stations of the intended use of the prope rty ."
-5-1-12-3763

Boub , 183 I ll. 2d at 528. ¶ 12 Prior to addre ssing the substanc e of pla intiff' s claim, we note that defe ndant amende d the rele vant ordinanc e af

ter the date of the inc ident, such that: "Any person ope ratingor ridinga bicycle in any alley in the City

of Evanston assumes the risk of ope ratingthat bicycle in any alley as that per son shall not be considere d to be an intende d user of an alley . The City

shall have no duty

to upg rade and maintain alley s for purpose s of bicyclists operatingbicycles in alley s. Persons operating or

riding a bicycle a s an unintended use r in an a lley will not be liable for a

ny fine unde r this subsection." E vanston Municipal Code § 10-9- 4(M) (a dopted Oct. 8, 2012)
. The amendment was a

pproved on O ctober

8, 2012, but it "shall be in full forc e and e ffe ctive as of June 1, 2010, nunc pro tunc ." E vanston Municipal Ordina nce 99- 0-12, § 6 (a dopted Oct. 8, 2012). In deter

mining whe ther a

statute operates retr oactively for pur poses of substantive due proce ss, we conside r if the c ity council has c lear ly

indicated the te mporal re ach of the statute. Consigli o v. De

partment of Financial & Professional Regulation , 2013 I L App (1st) 121142, ¶ 14. I f so, abse nt a constitutional prohibition, t he leg islature' s intent as expressed must be g iven eff ect. Id . We note that municipal ordinanc es ar e g overne d under the same g ener al rules of statutory interpre tation as state leg islation. Morgan Placeof Chicago v. City of Chi cago , 2012 I LApp (1st) 091240, ¶ 54. ¶ 13 In this case, the E vanston city council cle arly

expressed its temporal intent by stating that the amendme nt was ef

fec tive as of June 1, 2010, which wa s prior to the September 4, 2010,
-6-1-12-3763

incident. The I llinois Constit ution, however , prohibits the leg islature fr om arbitrar ily eliminating
a ca use of a ction unless it is a reasona ble exercise of

the leg islature' s police powe r in providing for g ener al welf

are . M.E.H. v . L.H. , 283 I ll. App. 3d 241, 249 (1996). We ca nnot state that the Evanston city

council re asonably

exercised its police powe r in arbitra rily eliminating plaintiff' s
cause of ac tion here. We, ther efor e, turn to the substanc e of the case . ¶ 14 In this case, ther e wa s nothing in the a lley that would sug g est it was intended f or use by bicycles. More specific ally , there wer e no pave ment marking s or sig ns indicating that bicyclists, like motorists, were intende d to ride in the alley
. Cf. Col e v. City of East Peoria , 201 I ll. App. 3d 756 (1990) ( applying se ction 3-102(a ) of Tor t I mmunity

Act, the a

ppellate c ourt conc luded that the municipality

was liable f

or an injury

cause d when a

bicyclist's tire beca

me stuck in a sew er g rate beca

use spec ial paveme nt marking s demonstrated that the city intended and pe rmitted bicyclists to use the are a whe re the acc ident occur red) . We rec og nize that plaintiff's photog raphs of the a lley

in question provided sig ns stating " One Way " a nd "D o Not Enter," as we ll as having a stop sign loc ated at the mouth of the alley , and that " [b] icyclists, unlike pedestrians, a re guided by some of the same sig ns and pave ment marking s that motorists obs erve ." Boub , 183 I ll. 2d at 528. Howeve r, the sig ns descr ibed wer e consistent with plaintiff' s permitted use of the alley alongwith motorists and does not sug g est that bicyclists were intended user s of the alley
. Contrary to plaintiff' s arg

ument, the fa ct that def

endant late r ame nded, in 2012, the Eva nston Municipal Code to expressly state " [b] icyclists operatingor ridingbicycles in an a lley are not intended user s of the alley " doe s not demonstrate that bicyclists were intended user s of the alley s at the time in question. Evanston Municipal Code § 10-9- 7 (adopte d Oct. 8, 2012). " Subsequent
-7-1-12-3763

reme dial measure s or war nings, of course , may

not be used a s evidenc e of ne g lige nce." Boub , 183 I ll. 2d at 529. We do not find that defenda nt's subse quent amendme nt can be interpre ted to establish its prior intent in favor or a g ainst plaintiff. ¶ 15 Plaintiff, however , argues that his pleading s and supportive doc uments demonstrated defe ndant' s intent that bicy clists were authorized users of the alley s. In particula

r, plaintiff c ited section 10-9- 4 of the Eva nston Municipal Code, which stated that " [e] very person ope ratinga bicycle [ e.g. , ever

y device propelled by

human power

upon which any

person may

ride having 2 tandem whe els either which is more than 16 inche s in diameter ( Evanston Municipal Code § 10- 9-1 (a dopted Oct. 8, 2012) )] upon a roadw ay shall be g rante d all the rig hts and be subjec t to all of the duties applica

ble to the oper ator of a

vehicle." Evanston Municipal Code § 10-9- 4(A) (adopte d Oct. 8, 2012). Plaintiff a dditionally cited the Eva

nston Municipal Code where in bicy cle riding is specifica lly

prohibited on sidewalks in the c entra l business district or any other district wher e sig ns prohibiting sidewa lk riding a re posted. E vanston Municipal Code § 10-9- 4 (adopte d Oct. 8, 2012). Sec tion 10-9-7 of the Eva nston Municipal Code also stated: "T he tra ffic e ng ineer , by

and with the conse nt of the city council, is authorized to desig nate c erta in streets or por tions thereof a s bicy cle r outes and/or may prohibit bicy cle tra ffic. U pon such desig nation, signs sha ll be ere cted g iving notice ther eof. N o person may ride upon a

street, r oadwa

y or sidewa lk upon which is posted a sig n prohibiting bicycle tra ffic." Evanston Municipal Code § 10-9-7 ( adopted Oc t. 8, 2012).

-8-1-12-3763

¶ 16 Moreove r, plaintiff re lied on a bicycle map c reated by the Evanston depa

rtment of public works which only

prohibited bikes on a stre tch of roa d on Ridge Avenue . The map f urther stated that "a bicycle is a ve hicle and you are the driver . When y ou ride in the stre et, obey all traff ic signs, sig nals and lane marking s. When y ou ride on the sidew alk in permitted ar eas, y ield to pedestria ns." O vera ll, plaintiff contends that the e videntiary support demonstrates de fenda nt's intent that bicy clists were subject to the same r ights a nd duties applicable to operators of vehicles. ¶ 17 Our re view of pla intiff' s pleading s and docume nts merely demonstrate that bicyclists
wer e permitted to use the alley . Nothing in the se ctions of the Eva nston Municipal Code cited by plaintiff nor on the bike map expressly provides that bicyclists were intended to use the a lley s. Rather, se ction 10-9-4 of

the Evanston Municipal Code e vinces the c ity council' s intent to permit bicycles to oper ate on roadways , in that the ordinanc e g rants eve ry person ope ratinga bicycle upon a roadwayall rig hts and subjects bicyclists to all duti es applica ble to the oper ator of a vehicle. See Evanston Municipal Code § 10-9- 4 (adopte d Oct. 8, 2012). H oweve r, a r oadwa y was de fined a s "[t] he entire width betwee n the boundar y lines of eve ry

way publicly maintained when a ny part ther eof is open to the use of the public for purposes of ve hicular tra vel" (Evanston Municipal Code § 10-9-1 ( adopted Oc t. 8, 2012)) and a vehicle w as def

ined as " [e] very

device in, upon or by

which any

person or proper ty is or may be tra nsported or dr awn upon a street, exc ept devic es mov ed by hum an power " ( emphasis adde d) (Eva nston Municipal Code § 10-1-3 (a dopted Oct. 8, 2012)) . At the time in question, the ordinance was silent as to alley s in particular
. There fore , the languag e of the ordinanc es mere ly demonstrates the city

council' s intent that
-9-1-12-3763

bicycles we re pe rmitted to use the roa dway s. ¶ 18 To the extent plaintiff argues that the Eva nston bike map provided a basis for demonstratingdefe ndant' s intent that bicy clists use alley s beca use the map only

prohibited bike riding in a sing le stretch of road, w e ar e unconvinc ed. Similar to the plaintiff in Latimer , plaintiff cites no a

uthority for the pr oposition t hat a ba n on use in one plac e implies that the use is nece ssarily

intended else wher e. Latimer , 323 I ll. App. 3d at 471. As the Latimer court stated: "T he conse quence s of such a proposition would be untenable. Consider , for e x ample, a municipa lity that has banne d smoking in its gove rnment buildings. Although the municipality might per

mit sm oking in the outdoor are as surrounding those buildings, it would be absur d to conclude that the municipality intended for people to smoke in such a rea s." ( Emphasis in origina l.) Id
. We ag ree . Moreove r, the map in e vidence , which wa s dated a fter the acc ident on September 13, 2011, reve als desig nated bike la nes, bike route s, and off

-stree t bike paths. None of these a rea s desig nated f

or bike use inc luded alley s. See Diefendorf v. City of Peoria , 308 I ll. App. 3d 465, 470 (1999). ¶ 19 Section 10-9-4 of

the Evanston Municipal Code ha s lang uag e nea rly identical to sec tion 11-1502 of the I llinois Vehicle Code (625 I L CS 5/ 11-1502 (West 2010)) a nd define s "bic y cle" in an almost identical manne r (625 I L CS 5/ 1-106 (West 2010)). The supreme c ourt in Boub found that section 11-1502 of

the I llinois Vehicle Code was " desig ned to ensure that bicyclists, for their own safe ty

and the sa fety

of others, obe y

traff ic laws while the y

are on public streets a

nd highw ay s." Boub , 183 I ll. 2d at 529-30. Moreve r, the supre me cour t concluded that the
-10-1-12-3763

provision was " entirely

consistent with the conclusion that bicyclists are pe rmitted, but not intended, user s of the roa ds, in the absenc e of spe cific ma rking s, signa g e, or f

urther manifestations of the loc al entity ' s intent that would speak other wise." Id . at 530. Simil arly here , wher e ther e we re no spe cific ma rking s, signa g e, or f

urther ma nifestations of def

endant' s intent expressly allowing or prohibiting bic y cle r iding in the a lley , we f ind that bicyclists were permitted to use the alley , but not intended users of the alley
. ¶ 20 Plaintiff argues that Boub is not controlling her e bec ause Boub was dismissed on summary judgme nt and not pursuant to a motion to dismi ss, as was the c ase he re. The question for a revie wingcourt a

t the motion to di smiss st ag e for a sec tion 2-619 motion i s whether a g enuine issue of

materia l fac t exi sts which prec ludes dismissal and whether the af firmative matter ne g ates the pla intiff' s cause of ac tion completely or re futes cr itical conclusions of lawor conclusions of mate rial unsupported f act ( Turner , 355 I ll. App. 3d at 892), while the que stion for the re viewingcourt at the summary judgme nt stag e is whethe r the plea dings, de positions, and admissions on file, toge ther with the a ffidavits, pre sent no g enuine issue of materia l fac t and show the moving party

is entitled to judgment as a matter of la

w ( Latimer , 323 I ll. App. 3d at 468). " The only

signific ant diffe renc e betwe en the tre atment of a motion under section 2- 619(a) (9) a s opposed to under se ction 2-1005 [summ ary judgme nt] is that, under the f ormer, a judge potentially

may weigh evidenc e and r esolve fa ctual disputes, while under the latter, a materia l fac tual dispute will preclude summar y adjudication." Turner , 355 I ll. App. 3d at 892. That diffe renc e is neg ated in situations, such as the one befor e this court, whe re the fac ts are not in dispute. See id . To the extent the Boub court did not have acc ess to a re levant municipal
-11-1-12-3763

ordinanc e, we find our dec ision is m ore f irmly supported whe re w e do have acc ess to the re levant municipal ordinanc es, y et have found par allels to the I llinois statutes cited in Boub. ¶ 21 Finally , plaintiff ar g ues his admission in prior pleading s that he wa s riding a bicycle is not a prope r judicial admission where the fa ctual conc lusion should not be conside red in the c alculus of a le g al conc lusion reg ardingdefe ndant' s intent. I n other wor ds, plaintiff argues that his admission that he was ridinga bike, a fac tual conclusion, should not neg ate this court' s ability to consider whether

a bicycle is a ve hicle for

purposes of the Evanston Municipal Code, a le g al conclusion. ¶ 22 A judicial admission is a "de liberate , clea r, unequivoc al statement of a party , about a
concr ete f act, within the par

ty ’s pec uliar knowledg e." (Interna l quotation marks omitted.) Rath v. Carbondale Nursing& Re habilitation Center, Inc., 374 I ll. App. 3d 536, 538 (2007). We
rec og nize that plaintiff does not dispute the admission that he rode a bicycle but, rather, disputes the use of that admission as a leg al conc lusion that a bicy cle wa s not a vehicle . Howeve r, base d on the def initions of bicycle a

nd vehicle in the E vanston Municipal Code, we make the le g al conclusion that a bic y cle wa s not a vehicle for our purposes. See Evanston Municipal Code §§ 10-9-1, 10- 1-3 (a dopted Oct. 8, 2012) . As define d, a vehic le was “ [e] very device in, upon or by which any

person or proper ty is or may be tra nsported or dr awn upon a street, e x cept de vices moved by human power ” (Eva

nston Municipal Code § 10-1-3 (a dopted Oct. 8, 2012) ), while a bicycle wa s “[e]very

device *** propelled by

human power

upon which any

person may

ride, havingtwo (2) tande m wheels” (Evanston Municipal Code § 10- 9-1 (a dopted Oct. 8, 2012) ). To the extent the Evanston bike map provide d that “a bic y cle is a ve hicle and you are the driver ,” we
-12-1-12-3763

find the express languag e of the ordinanc e contr ols. ¶ 23 In conclusion, bec ause pla intiff was not an intende d user of the alley in which he sustained injuries, def

endant is immuniz ed fr om liabilit y pursuant to sec tion 3-102(a) of the Tor t I mmunity Act. ¶ 24 CONCLUSI ON ¶ 25 We affir

m the judgme nt of the circ uit court dismissi ng plaintiff' s third amended complaint. ¶ 26 Affir

med.

-13-1-12-3763

¶ 27 PRES I DI

NG JUS TI CE GORDON, c oncurr ing in pa rt and dissentingin part: ¶ 28 Iconcur

with the majority ' s conclusions: (1) that the City of Evanston a cted a

rbitrar ily when it attempted to eliminate plaintiff' s cause of ac tion by passingan ordina

nce which stated that it applied retroa ctively back to a date shortly

befor e plaintiff' s acc ident; (2) that the City ' s action in passingthis retroac tive ordinanc e wa s not a rea sonable e x erc ise of the City ' s police power in providing f

or the g ener al welf

are ; and (3) tha

t bicy clists are pe rmitted users of a lley s. Supra ¶¶ 13, 17. ¶ 29 Howeve r, I

must write separ ately

beca use I dissent from the majority ' s conclusion that bicyclists are not intende d users of a lley s. Supra ¶ 17. ¶ 30 In the Chicag o are a, it is common for g ara g es to open onto alley s. I t is also common, in the Chicag o are a as e lsewher e, for people to store the ir bicycles, a s well as their ve hicles, in their g ara g es. The obvious intende d purpose of an alley that has g ara g es openingonto it is to provide
acc ess to the things that people commonly store in those g ara g es, such a s bicy cles a nd vehicles. DeM ambro v. City of Springfield , 2013 I LApp (4th) 120957, ¶ 25 (pede strians wer e " clea rly intended" to be nea

r whe re the y

park the ir vehicle s); Gutstein v. City of Evanston , 402 I ll. App. 3d 610, 620 (2010) ( pedestria ns were intended user s of an a lley wher e they

deposit their g arba g e for pickup)
. ¶ 31 Standard of Re view ¶ 32 On this appea l from a se ction 2-619 dismissal, our review is de novo , and we must consider whether

a g enuine issue of

materia l fac t prec ludes dismissal. Supra ¶ 10 (c iting Turner v. 1212 South Michigan Partnership , 355 I ll. App. 3d 885, 892 (2005), and Brennan v. Kadne r , -14-1-12-3763

351 I ll. App. 3d 963, 967 (2004)). In addition, beca use the Tor

t I mmunity

Act is in derog ation of the common law, we must construe the Ac t strictly ag ainst the municipal defe ndant. Gutstein , 402 I ll. App. 3d at 616. In case s under the T ort I mmunity Act, dete rminations are often " fac tspecific ." Gutstein , 402 I ll. App. 3d at 619. This is because whether a plaintiff wa s an intended user of an ar ea of

ten turns on the plaintiff' s purpose in beingin that are a. Thus, in Gutstein , we held that a pe destrian wa s an intended use r of a n alley wher e the City

of Evanston e stablished a policy requiringher to e nter the a lley in order to de posit her g arba g e ther e for pick-up. Gutstein , 402 I ll. App. 3d at 618. Simi larly , in DeM ambro , the appe llate cour t held that a pede strian was an intended use r of the a

rea near her la wfully parke d vehicle. DeM

ambro , 2013 I LApp (4th) 120957, ¶ 25. Althoug h Iwould find for the rea sons expl ained be low that plaintiff was a n intended user

no matter what his purpose, a dismissal at this point in the litigation is also premature since there rema ins a question of mater ial fac t conce rninghis purpose for using the alley
. ¶ 33 Permitted and Intended Use r ¶ 34 As the majority

corr ectly observe s, for plaintiff to re cover , he must show that he wa s both an intended a

nd permitted user

of the a lley
. Supra ¶ 11; Boub v. W ayne , 183 I ll. 2d 520, 524 (1998). The re is no dispute that plaintiff wa s a per mitted user. As the majority rec og nizes, plaintiff' s photogr aphs of the a lley in question showed sig ns stating " One Way " a nd "D o Not Enter," and these signs a

pplied equally

to both vehicles and bic y cles. Supra ¶ 14; Boub , 183 I ll. 2d at 528 (the f

act that bicyclists are g overne d by the same sig ns as motor vehicle s indicates they
are permitted user s, but not necessa rily intended user s).
-15-1-12-3763

¶ 35 Plaintiff also cites sec tion 10-9-4 of the Eva nston Municipal Code which stated that "[e]very person ope ratinga bicycle upon a roadw ay shall be g rante d all rig hts and be subjec t to all duties applicable to the operator of a ve hicle." Evanston Municipal Code §10-9- 4. Thus, the operator of a bic y cle ha d the same " rig hts" a s the operator of a motor ve hicle to drive on a "r oadwa y ," suc h as an a lley

leadingto where he or she could par k in a g ara g e. Boub , 183 I ll. 2d at 529 (the f

act that bicyclists have the same rig hts and duties as motor vehicle drivers indicates they are permitted user s, but not necessa rily intended user s). I

find these a

rguments persua sive and, like the major ity , conclude that plaintiff was a permitted user
. ¶ 36 In support of his argument that he wa s also an intended use r, plaintiff c ites section 10-9-7 of the Eva

nston Municipal Code which states that: " The tra ffic e ng ineer , by and with conse nt of the city council, is authorized to desig nate c erta in streets or por tions thereof a s bicy cle r outes and/or may

prohibit bicy cle tra ffic. U pon such desig nation, signs shall be erec ted giving notice thereof ." ( Emphasis added.) Evanston Municipal Code §10-9- 7. "T he use of the word ' shall' means that it is mandatory ***." People v . Dominguez , 2012 I L111336, ¶ 17; People v

. Robinson , 217 I ll. 2d 43, 51 (2005) (" ' shall' means shall," and thus is "oblig atory ") ; People v

. Lampitok , 207 I ll. 2d 231, 261 (2003) (" the primary definition of ' shall' is '[h]as a duty to; more broadly , is require d to.' B lack' s L aw Dic tionary 1379 (7th ed. 1999)" ). Thus, the City was require d to post a sign to indicate if a stre et was not intende d for bicyclists. Si nce the City failed to give notice of its alleg ed intent by posting a sign a s require d by

its own municipal ordinance , it cannot now be hear d to complain that it did not i ntend for bic yclists to use the alley
.

-16-1-12-3763

¶ 37 In Gutstein , we he ld that "phy sical manife stations of the City ' s intent" a re not re quired wher e " the City

has established a

policy ." Gutstein , 402 I ll. App. 3d at 618. Simi larly , in the
case at bar , the City

of Evanston ha s established an e x press policy that it will pos t signs whe re it intends to prohibit bicy cle tra ffic. E vanston' s express policy , upon which its citiz ens ar e entitled to rely , prec ludes it from now ar g uing that it did not intend bicyclists to use the alley
. ¶ 38 Conclusion ¶ 39 In light of both Eva nston's state d policy

to post signs and the obvious intended pur pose of alley s to provide ac cess to the ve hicles and bic y cles c ommonly stored in the g ara g es that open onto those alley s, Iconclude that plaintiff as a bicyclist was an intende d user of the alley . In addition, as Idiscussed in the above section conc erningour standar d of re view, the a bsence of any evidenc e conc erningplaintiff' s purpose in usingthe alley cre ates a g enuine issue of

materia l fac t that prec ludes a sec tion 2-619 dismis sal. For these re asons, I

must respec tfully

dissent from the majority ' s conclusion that plaintiff wa s not an intended user
.

-17-