## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Berz v. City of Evanston , 2013 IL App (1st) 123763

Appellate Court Caption THOMAS BERZ, Plaintiff- Appellant, v. THE CI TY OF EVANSTON, a Municipal Corporation, Defe ndant-Appe llee.

District & N o. First District, Six th Division Docke t No. 1-12-3763

Filed September 27, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court proper ly dismiss ed plaintiff’s complaint for the injuries he suffe red when he struck a pothole while ridinghis bicy cle in an a lley of defe ndant city
, s i n ce plaintiff was not an intended user of the alley and the Tort I mmunity Act immuniz ed defe ndant from plaintiff’s neg lige nce claim, espec ially in the absenc e of any paveme nt marking s or signs indicating that bicy clists were intended user s of the alley

.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 11-L -7025; the Hon. Diane L arson, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Corboy & Demetr io, of Chicag o (F ranc is Patrick Murph y , o f c ounsel), for appellant.

W

. Gra nt Fa rra r, C orporation Counsel, of Evanston (He nry J

. For d, J r. , and James B. Woy

wod, of c ounsel), for

appellee

.

Panel J USTI CE L AMPKI N delivere d the judgme nt of the court, with opinion.
J ustice Reyes conc urre d in the judgme nt and opinion. Presiding J ustice Gordon concur red in part and dissented in part, with opinion.

OP INION

¶ 1 Plaintiff, Thomas Be rz, appea ls the circ uit court’s order dismiss ing his thir d am en d ed complaint pursuant to section 2-619(a )(9) of the Code of Civil Procedur e (Code) (735 I L CS 5/2-619(a) (9) (West 2010)) where the L ocal Governmenta l and Governmental E m p l oy ees Tort I mmunity Act (Tort Immunity Act) (745 I L C S 1 0/1-101 et seq. (West 2010)) immuniz ed defe n d an t , the City of Evanston, ag ainst plaintiff’s neg lige nce claim. Plaintiff contends the circ uit court err ed in dismiss ing his third amende d complaint beca use rele vant Evanston ordinanc es and defe ndant’s bicy cle map established that he was an intended user of the a lley

wher e he w as injured. B ased on the following , we a ffirm.

¶ 2 FACTS ¶ 3 On September 4, 2 0 1 0
, p l ai n t i ff wa s ri d i n g his bicy cle in Evanston, I llinois
, in an alley way behind the addre sses of 1549 to 1555 Sherman Avenue
, which runs betwee n Grove Street and Davis Street, when he was injured by striking a pothole measuring 40 inches wide, 18 inches i n l en gth, and at least 4 to 5 inches deep. On J uly 7, 2011, plaintiff filed a complaint alleg ing neg lige nce ag ainst defe ndant. On August 17, 2011, defe ndan t fi l ed a section 2-619(a )(9) motion to dismiss
, arguing that section 3-102(a ) of the Tort I mmunity Act (745 I L CS 10/3-102(a ) (West 2010) ) provided immunity for de fenda

nt where plaintiff

was not an intended use r of the a lley . On Octobe r 28, 2011, def endant’ s motion to dismiss
was g rante d; however , plaintiff was grante d leave to amend his pleading

. ¶ 4 On November 14, 2011, plaintiff filed a first amende d complaint alleg ing the same c ause

o f ac tion based on the same fac ts, but with incre ased specific ity

. In addition, plai n t i ff attache d 19 photogr aphs and an aff idavit verify

ing his persona l knowledg e of the fac ts in the complaint, that he took the photogr aphs afte r the incident, and that the phot o g raphs

acc urate ly depicted the pothole and alley conditions at the time of the incident. On November

-2-18, 2011, plaintiff’s counsel was g rante d leave to withdraw. Plaintiff’s second attorney filed

an appe ara

nce a nd was g rante d leave to file a sec ond amende d complaint. ¶ 5 On April 5, 2012, plaintiff filed a second amende d complaint, alleg ing he was operating a bicy cle in a northerly direc tion along and upon the alley behind t he addresses of 1549 to 1555 Sherman Avenue betwee n Grove Street and Davis Street when he was injured as a result of defe ndant’s neg lige nce in r epair ing and maintaining the alley for intended bicy cle

us er s

. On M ay 10, 2012, defe ndant filed a section 2-619(a )(9) motion to dismiss the complaint, arguing that section 3-102 (a ) o f t h e Tort I mmunity Act cre ated immunit y for defe ndant wher e plaintiff was not an intended user of the alley

. On August 2, 2012, plaintiff filed a response , arguing that bicy clists wer e intended users of the alley s beca use defe ndant define d bicy cle as a vehicle and wher e the municipal code and bicycle map evince d an intent that bicy clists use the alley s. On August 29, 2012, the circ uit court granted defe ndant’s motion to di smiss, butg rante d plaintiff leave to file an amended c omplaint. ¶ 6 On S eptember 5, 2012, plaintiff fil ed a t h i rd amende d complaint, the s ubject of which is befor e this court. I n that complaint, plaintiff all ege d that he operated a vehic le in a northerly direc tion along and upon the alley betwee n Grove S t ree t and Davis Street. On October 10, 2012, defe ndant filed a section 2-619(a )( 9 ) motion to dismiss
, arguing that bicy clists are not intended users of t he alley s, that a bicy cle is not a vehicle, and that there

wer e no phy sical manifestations demonstrating bicy clists wer e intended users of the alley s. On November 12, 2012, plaintiff filed a response , arguing that defe ndant’s motion failed to addre ss the alleg ation that plaintiff operated a vehicle. Def endant replied, stating that all of plaintiff’s previous compl ai n t s alleg ed he was riding a bicy cle and that a signe d aff idavit attache d to the first amende d complaint provided that h e wa s ri d i ng a bicy cle; there fore
, plaintiff made a judicial admission that he was riding a bicy cle. On November 27, 2012, the circ uit court dismissed plaintiff’s complaint with prejudice . This timely appea l followed.

¶ 7 DECI SI ON ¶ 8 Plaintiff contends the circ uit court err ed in d is mi s s in g h is thir d amende d complaint wher e section 3-102(a ) of the Tort I mmunity Act did not immuniz e d efe ndant from liability for plaintiff’s injury

beca use he w as an intende d user of the alley way

. ¶ 9 P l ai n t i ff’s compl aint was dismiss ed pursuant to section 2-619(a )(9) of the Cod e. A section 2-619(a )(9) motion admits the leg al suffic iency of the c omplaint, but asserts that it is barr ed by some other aff irmative matter. Brennan v. K adner
, 351 I ll. App. 3d 963, 967 (2004). I n considering t h e motion, all well-plea ded fac ts and rea sonable infere nces drawn there from are admitted, and all pleading s and supporting documents are construed in a light
most favor able to the nonmoving party

. Id. When revie win g a s ec t i o n 2-619 motion to dismiss , we must consider whether a genuine issue of m ater ial fac t exi sts which prec ludes dismiss al and whether the aff irmative matter neg ates t h e p l ai ntiff’s cause of action completely or ref

utes critica l conclusions of law or conclusions of materia l unsupported fac t. Turner v. 1212 S. Michigan Partnership
, 355 I ll. App. 3d 885
, 8 9 2 (2005). We revie w de

novo the dismiss al of a complaint pursuant to section 2-619. Brennan
, 351 I ll. App. 3d at 967.

-3-¶ 10 Plaintiff’s complain t al l ege d d ef en d an t wa s neg lige nt and, there fore
, liable for his injuries. To establish a claim of neg lige nce, a plaintiff must prove the defe ndant owed a duty of car e to the plaintiff, the defe ndant brea ched that duty of car e, and the plaintiff suffe red an injury proxi mately cause d by the brea ch. Doria v. Village of D owners 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 de fenda

nt’s duty of ca re, se ction 3-102(a ) of the T ort I mmunity Act provide s: “Except as otherwise p ro v i d ed i n this Article, a local public entity has the duty to exercise ordinary car e to maintain its proper ty in a rea sonably safe condition for the use in the exe rcise 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 rea sonably fore seea ble that it would be used, and shall not be liable for injury unless it is proven that it has actua l or constructive notice o f t h e exis tence of such a condition that is not rea sonably safe in

rea sonably adequa

te time prior to an injury to have taken measure s to reme dy or protec t ag ainst such condition.” (Empha sis added.) 745 I L CS 10/ 3-102(a ) (West 2010). The I llinois Supreme Court has advised that “[s] ection 3-102( a) of the Act only imposes a duty of ordinary car e on municipalities to maintain proper ty for uses that are both permitted and intended .” (Emphase s in orig inal.) Vaughn v. City of W est Frankfort
, 166 I ll. 2d 155, 160 (1 9 95). Pursuant to the lang uag e of the statute, the intent of the local public entity i s controlling

. Boub v. T

ownship of W

ayne , 183 I ll. 2d 520, 525 (1998). “ [ A] n i n t ended user of proper ty is, by definition, also a permitted user; a permitted user of proper ty , howeve r, is
not nece ssarily

an intended use r.” Id. at 524. ¶ 11 To deter

mine the intent o f t h e l o ca l p u b l i c en t i t y , t he 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 ofPark Ridge
, 148 I ll. 2d 417, 426 (1992); see Sisk v. W illiamson County
, 167 I ll. 2d 343, 351-52 (1995). In other words, “it is ne cessa ry to look
at paveme nt marking s, signs, and other phy sical manifestations of the intend ed use of the
proper ty .” Boub , 183 I ll. 2d at 528. ¶ 12 Prior to addre ssing the substance of plaintiff’s c l ai m , we note t hat defendant amended the re levant ordina

nce a fter the date of

the incident, such tha

t: “Any person ope ratingor riding a bicy cle in any alley in the City

of Evanston a ssumes the risk of operating that bicy cle in any alley as that person shall not be considere d to be

an intended user of an alley

. The City shall have no duty to upg rade and maintain alley s for purposes of bicy clists operating bicy cles in al ley s. Persons operating or riding a bicy cle as an unintended user in an alley wi l l n o t be liable for any fine under this subsection.” Eva

nston Municipal Code § 10-9-4(M) (adopte d Oct. 8, 2012). The amendment was approve d on October 8, 2012, but it “shall be in full forc e and eff ective

as of J une 1, 2010, nunc pro tunc .” Evanston Munic i p al Or d i nance 99-0-12, § 6 (adopte d Oc t. 8, 2012). I n deter

mining whether a statute operates retroa ctively for purposes o f substantive due proce ss, we consi d er i f the city council has clea rly indicated the temporal

rea ch of the statute. Consigli o v. Departme nt of Financial & Professional Regulation
, 2013 I L App (1st) 121142, ¶ 14. I f so, absent a constitutional prohibition, the leg islature’s intent

as expressed must be g iven eff ect. Id. We note that municipal ordinanc es are g overne d under

-4-the same g en er al rules of statutory interpre tation as state leg islation. Morgan Place of

Chicago v. City of Chicago , 2012 I LApp (1st) 091240, ¶ 54. ¶ 13 I n this case , the Evanston city council clea rly expressed its temporal intent by stating that the amendment was eff

ective as of J une 1, 2010, which was prior to the September 4, 2010, incident. The I llinois Constit ution, howeve r, prohibits the leg isl at ure from arbitra rily el i m i n at i n g a cause of action unless it is a rea sonable exercise of the leg islature’s police
power in providing for g ener al welfa re. M.E.H. v. L.H.
, 283 I ll. App. 3d 241, 249 (1996). We
cannot state that the Evanston city council rea sonably exercised its police power in arbitra rily eliminating plaintiff’s cause of action here

. We, there fore
, turn to the substance of the case

. ¶ 14 I n this case , there was nothing in the alley that would sug g est it was intended for use by bicy cles. More sp ec ifically
, there wer e no paveme nt marking s or signs indicating that bicy clists, like motorists, wer e intended to ride in the alley

. Cf. Cole v. City of East Peoria
, 201 I ll. App. 3d 756 (1990) (apply ing section 3-102(a ) of Tort I mmunity Act, the appellate
court conclude d that the municipality was liable for an injury cause d when a bicy clist’s tire beca me stuck in a sewe r g rate beca use specia l paveme nt marking s demonstrated that the city intended and permitted bicy clists to use the are a wher e the acc ident occur red)

. We rec og nize that plaintiff’s pho t og raphs of the alley in question provided signs stating “One W ay” and “Do Not Enter,” as well as having a stop sign located at the mouth of the alley
, and that “[b] icy clists, unlike pedestria ns, are guided by some of the same signs and paveme nt marking s that m o t orists observe .” Boub
, 183 I ll. 2d at 528. Howeve r, the signs descr ibed

wer e consistent with plaintiff’s permitted use of the alley along with motorists and does not sug g est that bicy clists wer e intended users of the alley

. Contrary to plaintiff’s argument, the fac t that defe ndant later amende d, in 2012, the Evanston Municipal Code to expressly state “[b] icy clists operating or riding bicycles in an alley are not intended users of the alley” does
not demonstrate that bicyclists wer e intended users of the alley s at the time in question. Evanston Municipal Code § 10-9-7 (adopte d Oct. 8, 2012). “Subsequent reme dial measure s

or war nings, of course , may not be used as evidenc e of neg lige nce.” Boub
, 183 I ll. 2d at 529. We do not find that defe ndant’s subsequent amendment can be interpre ted to es t ab l i s h its prior intent in favor

or ag ainst plaintiff. ¶ 15 P l ai n t i ff

, howeve r, argues that his pleading s and supportive documents demonstrated defe ndant’s intent that bic y clists we re a uthorized users of the alley s. In particula r, plaintiff cited section 10-9-4 of the Evanston Municipal Code, which stated that “[e]ve ry person operating a bicy cle [
, e.g. , ever y device propell ed by human power upon which any person may ride having 2 tandem whee ls either of which is more than 16 i n ch es in diameter (Evanston Municipal C ode § 10-9-1 (adopte d Oct. 8, 2012))] upon a roadw ay shall be
g rante d all the rig hts and be subje ct t o al l o f the duties applicable to the opera tor of a vehicle.” Evanston Munici p a l Co d e § 1 0

- 9

- 4 ( A ) ( a d o p te d Oct. 8, 2012). Plaintiff additionally cited the E v an ston Municipal Code wher ein bicy cle riding is specific ally prohibited on sidewalks in the centr al business district or any other district wher e signs p rohi biting sidewalk riding are posted. Evanston Municipal Code § 1 0 -9-4 (adopte d Oct. 8, 2012). Section 10-9-7 of

the Evanston Municipal Code a lso stated: “The traff ic eng ineer
, by and with the consent of the city council, is authorized to desig nate cer

tain streets or portions there of as bicycle routes and/or may prohibit bicy cle

-5-traff ic. Upon such desig nation, signs shall be ere cted g iving notice there of. No person may ride upon a street, roadw ay or si d ewalk upon which is posted a sign prohibiting bicy cle tra ffic.” Evanston Municipal Code § 10-9- 7 (adopte d Oct. 8, 2012). ¶ 16 Moreove r, plaintiff relied on a bicy cle map cre ated by the Evanston depar tment of public works which only

prohibited bikes on a stretc h of roa d on Ridge Avenue . The map f urther stated that “a bicy cle is a vehicle and you are the driver. When y ou ride in the street, obey all traff ic signs, signa ls a

nd lane marking s. When you ride on the sidewalk in pe rmitted are as, yield to pedestria

ns.” Overall, pl aintiff contends t hat t he evidentiary support demonstrates defe ndant’s intent that bicy clists wer e subject to the same rig hts and duties applicable to operators of vehic les. ¶ 17 Our review of plaintiff’s p l eadings and documents m ere ly demonstrates that bicy clists

wer e permitted to use the alley

. Nothing in the sections of the Evanst o n M u nicipal Code cited by plaintiff nor on the bike map expressly provides that bicy clists wer e intended to use the alley s. Rather, section 10-9-4 of the Evanston Municipal Code evince s the city council’s intent to permit

bicy cles to operate on roadways , in that the ordinanc e g rants eve ry person operating a bicy cle upon a roadway all rig hts and subjects bicy clists to all duties applicable
to the operator of a vehicle. See Evanston Municipal Code § 10-9-4 (adopte d Oct. 8, 2012). Howeve r, a roadw ay was define d as “[t] he entire width betwee n the boundary lines of ever y way publicly maintained when any part there of is open to the use of the public for purposes of vehicular trave l” (E vanston Municipal Code § 10-9-1 (adopte d Oct. 8, 2012)) and a vehicle was define d as “[e]very device in, upon or by which any person or proper ty is or may be transporte d or drawn upon a street, ex ce pt devic es move d by human power ” (empha sis added) (Evanston Municipal Code § 10-1-3 (adopte d Oct. 8, 2012)). At the time in question, the ordinanc e was silent as to alley s in particula r. There fore
, the languag e of the ordinanc es

mere ly demonstrates the city council’s intent that bicy cles wer e permitted to use the roadw ay s. ¶ 18 To the ex t en t p l ai n t i ff ar gu es t h at t h e E v an s t on bike map provided a basis for demonstrating defe ndant’s intent that bicyclists use alley s beca use the map only prohibited bike riding in a single stretch of road, we are unconvince d. Simi lar 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 nece ssarily intended elsewhe re. Latimer
, 323 I ll. App. 3d at 471. As the Latimer court stated: “The conseque nces of such a proposition would be untenable. Consider
, for example,

a municipality that has banned smoking in its g overnme n t buildings. Although the municipality might permit smoking in the outdoor are as surrounding those buildings, it would be absurd to conclude that the municipality intended for people to smoke in such

are as.” ( Emphasis in origina l.) Id.
We ag ree

. Moreove r, the map in evidenc e, which was dated afte r the acc ident on September 13, 2011, reve als desig nated bike lanes, bike routes, and off- street bike paths. None of these

are as desig nated for bike use included 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 has languag e near ly identical to se ction

-6-11-1502 of the I llinois Vehicle Code (625 I L CS 5/11-1502 (W es t 2 0 1 0)) and define s

“bicycle” in an almost identical manner (625 I L CS 5/1-106 (West 2010)). The supreme court in Boub found that section 11-1502 of the I llinois Vehicle Code was “desig ned to ensure that bicy clists, for their own s afe ty and the safe ty of others, obe y traff ic laws while they are on public streets and highw ay s

. ” B o u b
, 1 83 I ll. 2d at 529-30. Moreve r, the supreme court conclude d that the provision was “entire ly consistent with the conclusion that bicy clists are permitted, but not intended, users of the roads, in the absenc e of specific marking s, signa g e,

or further manifestations of the local entity ’s intent that would speak otherwise.” Id. at 530. Simi larly here
, wher e there wer e no specific marking s, signa g e, or further manifestations of defe ndant’s intent expressly allowing or prohibiting bicy cle riding in the alley
, we find that bicy clists were permitted to use the alley , but not intended users of the alley

. ¶ 20 P l ai n t i ff argues that Boub is not controlling here beca use Boub was dism i s s ed o n summary judgme nt and not pursuant to a motion t o d i smiss, as was the case here

. The question for a revie wing court at the m otion to dismiss stag e for a sec tion 2-619 motion is whether a genuine issue of m ater ial fac t exis ts which precludes di s m i s s al and whether the aff irm at i v e matter neg ates the plaintiff’s cause of action completely or ref utes critica l conclusions of law or conclusions of materia l unsupported fac t ( Turner
, 355 I ll. App. 3d at 892), while the question for the revie wing court at the summary judgme nt sta g e is whether the pleading s, depositions, and admissions on file, toge ther wi t h the aff idavits, prese nt no g enuine issue of materia l fac t and show the moving party is entitled to judgme nt as a matter of law ( Latimer
, 323 I ll. App. 3d at 468). “The only signific ant differ ence betwee n the
treatment of a motion under section 2-619(a )(9) as opposed to under section 2-1 0 0 5 [sum mary judgme nt] is that, under the former
, a judge potentially may weig h evidenc e and resolve fac t ual disputes, while under the latter, a materia l fac tual dispute will prec lude
summary adjudication.” Turner
, 3 5 5 I l l

. App. 3d at 892. That differ ence is neg ated in situations, such as the one befor e this court, wher e the fac ts are not in dispute. See id. To the
extent the Boub court d i d n o t h av e acc ess to a rele vant municipal ordinanc e, we find our d ecision is more firmly supported wher e we do have acc ess to the rele vant m u n i ci p al 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 pleadings that he was r iding a bicy cle is
not a proper judicial admission wher e the fac tual conclusion should not be considere d in the calc ulus of a leg al conclusion reg arding defe ndant’s intent. In other words, plaintiff argues that his admission t h at h e wa s riding a bike, a fac tual conclusion, should not neg ate this court’s ability to consider whether a bicy cle is a vehic l e fo r p u rposes of the Evanston Municipal Code, a leg al conc lusion. ¶ 22 A judicial admission is a “deliber ate, cl ear, unequivoca l statement of a party , about a

concr ete fac t, within the party ’s peculiar knowledg e.” (Internal quotation marks omitted.) Rath v. Carbondale Nursing & Rehabilitation 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 bicy cle but, rathe r, disputes the use of that admission as a leg al conclusion t h at a b i cycle was not a vehicle. Howeve r, base d on the definitions of bicy cle and vehicle in the Evanston Municipal Code,

we make the leg al conclusion that a bicy cle was not a vehicle for our purposes. See Evanston Municipal Code §§ 10-9-1, 10-1-3 (adopte d Oct. 8, 2012). As define d, a vehicle was “[e]very

-7-device in, upon or by which any person or proper ty is or may be transporte d or drawn upon

a street, exc ept devic es move d by human power ” (emphas i s added) (Evanston Municipal Code § 10-1-3 (adopted Oct. 8, 2012)), while a bicy cle was “[e]very devi ce *** propelled by human power upon which any person may ride, having two (2) tandem whee ls” (Evanston Municipal Code § 10-9-1 (adopte d Oct. 8, 2012)). To the extent the Evanston bike map provided that “a bicy cle is a vehicle and y ou are the driver,” we find the express languag e of the ordinanc e contr ols. ¶ 23 I n conclusion, beca use plaintiff was not an intended user of the all ey i n wh i ch h e sustained injuries, defe ndant is immuniz ed from liability pursuant to section 3-102(a ) of the Tort I mmunity

Act.

¶ 24 CONCL USI ON ¶ 25 W e aff

irm the judgme nt of the circ uit court dismis s i n g p l ai n t i ff’s t h i rd am en d ed complaint.

¶ 26 Affir

med.

¶ 27 PRES I DI

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

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

rbitrar ily wh en i t at t empted to eliminate plaintiff’s cause of action by passing an ordinanc e which stated that it applied retroa ctively t o a date shortly befor e plaintiff’s acc ident; (2) that the City ’s action in passing this retroa ctive ordinanc e was not a rea sonable exercise of the City ’s police power in providing for the g ener al welfa re; and (3) that bicyclists are permitted users of alley s. Supra ¶¶ 13, 17. ¶ 29 Howeve r, I

must write separ ately

beca use I dissent f

rom the majority ’s conc lusion that bicy clists are not intende d users of a lley s. Supra ¶ 17. ¶ 30 I n 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 elsewhe re, for people to store their bicy cles, as well as their vehicles, in their gar ag es. The obvious intended purpose of an a lley that has g ara g es opening onto it is
to provide acc ess to the things that people commonly store in those g ara g es, such as bicy cles and vehicles. DeM

ambro v. City of

Springfield
, 2013 I L App (4th) 120957, ¶ 25 (pede strians

wer e “cle arly intended” to be n ea r wher e they park their vehicles) ; Gutstein v. City of Evanston
, 402 I ll. App. 3d 610, 620 (2010) (pede strians wer e i n t en d ed u s ers of an alley wher e they

deposit their g arba g e for pickup).

¶ 31 Standard of Re view ¶ 32 On this appea l from a section 2-619 dismiss al, ou r re v i ew i s de n ovo , and we must consider whether a g enuine issue of materia l fa ct prec ludes dismiss al. Supra ¶ 9 (citing Turner v

. 1212 S. Michigan Partnership
, 355 I ll. App. 3d 885, 892 (2005), and Brennan v. Kadner
, 351 I ll. App. 3d 963, 967 (2004))

. In addition, beca use the Tort I mmunity Act is in derog ation of the common law, we must construe the Act strictly ag ainst the municipal

-8-defe ndant. Gutstei n , 4 0 2 I l l

. App. 3d at 616. In case s under the Tort I mmunity Act,

deter minations are often “fac t-specif ic.” Gutstein
, 402 I l l

. Ap p. 3d at 619. This is beca use whether a plaintiff wa s an intended use r of an are a ofte n turns on the plaintiff’s pur pose in being in that are a. Thus, in Gutstein
, we h eld that a pedestria n was an intended user of an alley wher e the City of Evanston established a policy requiring her to enter the alley in order
to deposit her g arba g e th er e fo r p ick-up. Gutstein
, 402 I ll. App. 3d at 618. Simi larly
, in DeM ambro
, the appellate court held that a pedestria n was an intended user of the are a near her lawfully parke d vehicle. DeM ambro
, 2013 I L App (4th) 120957, ¶ 25. Although I would find for the rea sons e x plained below that plaintiff was a n intended user

no matter what his
p urpose, a dismiss al at this point in the litigation is also premature since there re m ai n s a question of mater ial fac t conce rning his purpose for using the alley

.

¶ 33 Permitted and Intended Use r ¶ 34 As the majority corr ectly observe s, for plaintiff to rec over, he must show that he was both

an intended and permitted user of the alley

. Supra ¶ 10; Boub v. Townshi p of W ayne , 183 I ll. 2d 520, 524 (1998). There is no dispute that plaintiff was a permitted user. As the majority

rec og nizes, plaintiff’s photogr aphs of the alley in question showed signs stating “One Way ” and “Do Not Enter,” and these signs applied equally to both vehi cl es an d bicy cles. Supra ¶ 14; Boub
, 183 I ll. 2d at 528 (the fac t that bicy clists are g overne d by the same signs as motor vehicles indicates they

are permitted user s, but not necessa rily intended user s). ¶ 35 Plaintiff also cites section 10-9-4 of the Evanston M u n i ci p al Code, which stated that “[e]very person operating a bicy cle upon a roadw ay shall be g rante d all rig hts and be subject
to all duties applicable to the operator of a vehicle.” Evanst o n M u n i ci p al Code § 10-9-4 (adopte d Oct. 8, 2012). Thus, the operator of a bicy cle had the same “rig hts” as the operator of a motor vehicle to drive on a “roa dway ,” such as an alley leading to wher e he or she could park in a gar ag e. Boub
, 183 I ll. 2d at 529 (the fact that bicy clists have the same ri gh t s and duties as motor vehicle drivers indicates they are permitted u sers, but not nece ssarily intended users). I find these argum en t s persua sive and, like the majority
, conclude that plaintiff was a

permitted user

. ¶ 36 I n 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 traff ic engin ee r, b y and with
consent of t he city council, is authorized to desig nate cer tain streets or portions there of as bicy cle routes and/or may prohibit bicycle traff ic. Upon su ch d es i gnation, signs shall be

erec ted giving notice thereof

. ” (Emphasis added.) Evanston Municipal Code § 10-9-7 (adopte d Oct. 8, 2012). “The use of the word ‘shall’ means that it is mandatory ***.” People

v. Dominguez
, 2012 I L 111336, ¶ 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) (“[T]he primary definition of ‘shall’ is, ‘[h] as a duty to; more broadly
, is require d to.’ Bla ck’s L aw Dictionary 1379 (7th ed. 1999).”)

. Thus, the City was require d to post a sign to indicate if a stree t was not intended for bicy clists. Since t he C ity failed to g ive not ice of its alleg ed intent by posting a sign as require d by its own municipal ordinanc e, it cannot now be hear d to complain that it did not i ntend for bic y clists to use the alley

.

-9-¶ 37 I n Gutstein
, we held that “phy sical manifestations of the City ’s intent” are not require d

wher e “the City has established a policy .” Gutstein
, 402 I ll. App. 3d at 618. Simi larly
, in the

case at bar, t h e C i t y of Evanston has established an express policy that it will post signs wher e it intends to prohibit bicy cle traff ic. Evanston’s express policy
, upon which its citizens

are entitled to rely
, prec ludes it f rom now arguing that it did not intend bicy clists to use the alley

.

¶ 38 Conclusion ¶ 39 I n light of both Evanston’s stated policy to post signs and the obvious intended purpose of alley s to provide acc ess to the vehicles and bicy cles commonly stored in the g ara g es that

o pen onto those alley s, I conclude that plaintiff as a bicy clist was an intended user o f t h e alley

. I n addition, as I discussed in the above section conce rning our standard of revie w, the absenc e of any evidenc e conce rning plaintiff’s purpose in using the alley cre ates a g enuine issue of materia l fac t that prec ludes a section 2 -6 1 9 d i s m issal. For these rea sons, I must respe ctfully

dissent from the majority ’s conc lusion that plainti ff wa s not an intended user

.

-10-