                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




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




Appellate Court            THOMAS BERZ, Plaintiff-Appellant, v. THE CITY OF EVANSTON,
Caption                    a Municipal Corporation, Defendant-Appellee.



District & No.             First District, Sixth Division
                           Docket No. 1-12-3763


Filed                      September 27, 2013


Held                       The trial court properly dismissed plaintiff’s complaint for the injuries he
(Note: This syllabus       suffered when he struck a pothole while riding his bicycle in an alley of
constitutes no part of     defendant city, since plaintiff was not an intended user of the alley and
the opinion of the court   the Tort Immunity Act immunized defendant from plaintiff’s negligence
but has been prepared      claim, especially in the absence of any pavement markings or signs
by the Reporter of         indicating that bicyclists were intended users of the alley.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-L-7025; the Hon.
Review                     Diane Larson, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Corboy & Demetrio, of Chicago (Francis Patrick Murphy, of counsel), for
Appeal                     appellant.

                           W. Grant Farrar, Corporation Counsel, of Evanston (Henry J. Ford, Jr.,
                           and James B. Woywod, of counsel), for appellee.


Panel                      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 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

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     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 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.

¶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, 351 Ill. App. 3d 963, 967
     (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. Id. 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, 355 Ill. App. 3d 885, 892 (2005). We review de
     novo the dismissal of a complaint pursuant to section 2-619. Brennan, 351 Ill. App. 3d at
     967.


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¶ 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, 397 Ill. App.
       3d 752, 757 (2009); Latimer v. Chicago Park District, 323 Ill. App. 3d 466, 468 (2001). In
       regard to defendant’s duty of care, section 3-102(a) of the Tort Immunity Act provides:
           “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, 166 Ill. 2d 155, 160
       (1995). Pursuant to the language of the statute, the intent of the local public entity is
       controlling. Boub v. Township of Wayne, 183 Ill. 2d 520, 525 (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.” Id. at 524.
¶ 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,
       166 Ill. 2d at 162-63; Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 426 (1992); see Sisk v.
       Williamson County, 167 Ill. 2d 343, 351-52 (1995). In other words, “it is necessary to look
       at pavement markings, signs, and other physical manifestations of the intended use of the
       property.” Boub, 183 Ill. 2d at 528.
¶ 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, 2013
       IL App (1st) 121142, ¶ 14. If so, absent a constitutional prohibition, the legislature’s intent
       as expressed must be given effect. Id. We note that municipal ordinances are governed under


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       the same general rules of statutory interpretation as state legislation. Morgan Place of
       Chicago v. City of Chicago, 2012 IL App (1st) 091240, ¶ 54.
¶ 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,
       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., 283 Ill. App. 3d 241, 249 (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,
       201 Ill. App. 3d 756 (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, 183 Ill. 2d at 528. 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 remedial measures
       or warnings, of course, may not be used as evidence of negligence.” Boub, 183 Ill. 2d at 529.
       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 of 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

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           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).
¶ 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 demonstrates 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 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, 323 Ill. App. 3d at 471. 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.) Id.
       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, 308 Ill. App.
       3d 465, 470 (1999).
¶ 19       Section 10-9-4 of the Evanston Municipal Code has language nearly identical to section


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       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, 183 Ill. 2d at 529-30. Morever, the supreme court
       concluded that the 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.” Id. at 530.
       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, 355 Ill. App. 3d at
       892), 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, 323 Ill. App. 3d at 468). “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, 355 Ill. App. 3d at 892. That difference is negated in
       situations, such as the one before this court, where the facts are not in dispute. See id. To the
       extent the Boub court did not have access to a relevant municipal 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., 374 Ill. App. 3d 536, 538 (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

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       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)), 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 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.

¶ 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 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, 2013 IL App (4th) 120957, ¶ 25 (pedestrians
       were “clearly intended” to be near where they park their vehicles); Gutstein v. City of
       Evanston, 402 Ill. App. 3d 610, 620 (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 ¶ 9 (citing
       Turner v. 1212 S. Michigan Partnership, 355 Ill. App. 3d 885, 892 (2005), and Brennan v.
       Kadner, 351 Ill. App. 3d 963, 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

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       defendant. Gutstein, 402 Ill. App. 3d at 616. In cases under the Tort Immunity Act,
       determinations are often “fact-specific.” Gutstein, 402 Ill. App. 3d at 619. 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, 402 Ill. App. 3d at 618. Similarly, in
       DeMambro, the appellate court held that a pedestrian was an intended user of the area near
       her lawfully parked vehicle. DeMambro, 2013 IL App (4th) 120957, ¶ 25. 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 ¶ 10; Boub v. Township of Wayne, 183 Ill.
       2d 520, 524 (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, 183 Ill. 2d at 528 (the fact that bicyclists are governed by the same signs as motor
       vehicles indicates they are permitted users, but not necessarily intended users).
¶ 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
       (adopted Oct. 8, 2012). 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, 183 Ill. 2d at 529 (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
       (adopted Oct. 8, 2012). “The use of the word ‘shall’ means that it is mandatory ***.” People
       v. Dominguez, 2012 IL 111336, ¶ 17; People v. Robinson, 217 Ill. 2d 43, 51 (2005) (“ ‘shall’
       means shall,” and thus is “obligatory”); People v. Lampitok, 207 Ill. 2d 231, 261 (2003)
       (“[T]he 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.


                                                  -9-
¶ 37       In Gutstein, we held that “physical manifestations of the City’s intent” are not required
       where “the City has established a policy.” Gutstein, 402 Ill. App. 3d at 618. 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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