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                                 Appellate Court                              Date: 2016.12.01
                                                                              08:50:32 -06'00'




                  Corbett v. County of Lake, 2016 IL App (2d) 160035



Appellate Court      KATHY CORBETT, Plaintiff-Appellant, v. THE COUNTY OF
Caption              LAKE and THE CITY OF HIGHLAND PARK, Defendants (The City
                     of Highland Park, Defendant-Appellee).


District & No.       Second District
                     Docket No. 2-16-0035


Filed                September 23, 2016


Decision Under       Appeal from the Circuit Court of Lake County, No. 14-L-493; the
Review               Hon. Christopher C. Starck, Judge, presiding.


Judgment             Affirmed in part and reversed in part; cause remanded.


Counsel on           Peter F. Higgins, of Lipkin & Higgins, of Chicago, for appellant.
Appeal
                     Michael G. Nerheim, State’s Attorney, of Waukegan (Janelle K.
                     Christensen and Kevin J. Berrill, Assistant State’s Attorneys, of
                     counsel), for appellee.


Panel                PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
                     court, with opinion.
                     Justices Hutchinson and Burke concurred in the judgment and
                     opinion.
                                                OPINION

¶1        Plaintiff, Kathy Corbett, was seriously injured while riding her bicycle on the Old Skokie
     Bike Path in Lake County. She filed this action against defendants, the County of Lake
     (County) and the City of Highland Park (City), alleging that they were liable for defects in the
     path that caused her accident. The trial court granted both defendants summary judgment (735
     ILCS 5/2-1005(c) (West 2014)), based on the Local Governmental and Governmental
     Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 2012)). Plaintiff
     appeals only the judgment in favor of the City, arguing that the trial court erred in holding that
     the City was immune from liability because, as a matter of law, the bicycle path was a “riding
     trail” within the meaning of section 3-107(b) of the Act (745 ILCS 10/3-107(b) (West 2012)).
     We reverse the judgment in favor of the City, and we remand.
¶2        We summarize the facts pertinent to this appeal. Plaintiff’s complaint alleged as follows.
     On August 21, 2013, and at all other pertinent times, defendants controlled and maintained that
     part of the path within Highland Park and specifically the section of the path running parallel to
     Skokie Valley Road (U.S. Route 41) in between the intersections with Old Deerfield Road and
     Park Avenue West. By agreement with the County, the City was responsible for routine
     maintenance of the path, including repairing the pavement. Before August 21, 2013,
     defendants were on notice that weeds and other vegetation were growing through the asphalt,
     making portions of the path broken, bumpy, and elevated. Defendants were willfully and
     wantonly indifferent to the danger. On August 21, 2013, plaintiff, part of a group of cyclists
     riding together, rode her bicycle over a defective area and was thrown off. She hit the ground
     and was severely injured.
¶3        The City’s answer raised the affirmative defense of immunity under section 3-107(b) of the
     Act, which reads, “Neither a local public entity nor a public employee is liable for an injury
     caused by a condition of *** [a]ny hiking, riding, fishing or hunting trail.” 745 ILCS
     10/3-107(b) (West 2012). The City later moved for summary judgment, based on section
     3-107(b) of the Act. The City noted that this section provides absolute immunity, even as to
     willful and wanton conduct. The City then argued that, under the limited case authority that
     exists on the meaning of “riding trail” (which the Act does not define), the bike path was one.
¶4        The City’s motion reasoned as follows. In Brown v. Cook County Forest Preserve, 284 Ill.
     App. 3d 1098, 1101 (1996), the First District held that the bicycle path on which the plaintiff
     was injured was a “riding trail,” because it was commonly used by cyclists and was “designed
     to provide access for bicyclists to the natural and scenic wooded areas” around Saulk Lake.
     The court held that it made no difference that the path was paved. Id. In McElroy v. Forest
     Preserve District, 384 Ill. App. 3d 662 (2008), and Mull v. Kane County Forest Preserve
     District, 337 Ill. App. 3d 589 (2003), this court held that the bicycle paths at issue were riding
     trails per section 3-107(b). In McElroy, this court emphasized (according to the City’s motion)
     that the path had been built for the use of riders and enabled them to enjoy scenery and wildlife.
     McElroy, 384 Ill. App. 3d at 669. In Mull, this court stressed (according to the City’s motion)
     that, although the path ran through some developed areas, it was surrounded by wild grasses
     and shrubs. Mull, 337 Ill. App. 3d at 592.
¶5        Here, the City’s motion argued, the depositions of plaintiff and other people established
     that the bike path was a “riding trail.” It was intended for recreational bicycling; surrounded by
     shrubs, trees, and wild grasses; separated from residences and commercial businesses; and set

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       back from the roadway. “Most compelling,” plaintiff and her fellow riders called it “the ‘bunny
       trail’ because of the bunnies that were regularly present along the route.”
¶6          The City’s motion attached several exhibits, the pertinent parts of which we summarize. In
       her deposition, plaintiff testified that the southern end of the part of the path at issue was the
       intersection with Old Deerfield Road, which has two lanes. At the intersection, there is a stop
       sign for bicyclists on the path but not for vehicles on the road. On August 21, 2013, plaintiff
       was with a group with whom she regularly rode.
¶7          Plaintiff testified that, just before the accident, the group was riding south toward the
       intersection. About one-tenth of a mile north of the stop sign at the intersection, the person two
       places ahead of her, Hassan Syed, hit a bump and lost control of his bicycle. Syed crashed, and
       his bike was turned sideways. The rider immediately in front of plaintiff was able to veer off.
       However, plaintiff had no place to go; she rode over Syed and his bicycle. As a result, she was
       thrown off her bike, rose into the air, and fell hard onto the paved surface. Plaintiff did not
       actually see Syed hit a bump, but he or another rider told her about it later.
¶8          Opposing counsel asked plaintiff whether the area of the accident was “surrounded by
       shrubs” and “wild grasses,” whether it was “separated from residences” and “commercial
       businesses,” and whether it was “set back from the highway.” Plaintiff answered each
       question, “Yes.” Plaintiff also testified that her accident occurred “just north of Old Deerfield
       Road on the bunny trail. The bike path. We call it the bunny trail because they have a lot of
       bunnies on it.”
¶9          Yves Robaud, who was riding with plaintiff and the others on August 21, 2013, testified in
       his deposition as follows. Trees line both sides of the path. Asked whether the stretch where the
       accident occurred was “separated *** from residences and commercial businesses” and “set
       back from the highway,” Robaud responded, “Yes.” The accident occurred perhaps 200 yards
       north of the stop sign. Robaud’s description of the accident was consistent with plaintiff’s; he
       had been in between Syed and plaintiff and had seen Syed fall directly in front of him. Robaud
       rolled over Syed’s legs and turned around to see plaintiff lying on the ground, in pain.
¶ 10        In his deposition, Syed testified consistently with plaintiff and Robaud about the accident.
       He stated that there were shrubs on both sides of the path. He also stated, as did plaintiff and
       Robaud, that the area of the path where the accident occurred was separated from residences
       and commercial businesses and set back from the highway. He added, “We call [the area of the
       path where the accident occurred] a bunny path.” This was “[b]ecause there are a lot of bunnies
       running around there,” although on the day of the accident “there was no bunny.”
¶ 11        In his deposition, John Stevens, a member of plaintiff’s group on the day of the accident,
       testified that the path was about six feet wide, paved with asphalt, and lined with some type of
       growth most of the way. The vegetation included hedges and bushes and a small amount of
       grass. As far as he knew, the path was separated from commercial businesses and any outside
       traffic (i.e., by those other than bikers and walkers).
¶ 12        Plaintiff responded to the City’s motion for summary judgment. She argued that, under the
       case law, the stretch of the path at issue cannot be considered a riding trail, as it runs through a
       developed area of Highland Park, not through a forest or a mountainous region. The path is
       sandwiched between U.S. Route 41 less than a block to the east and railroad tracks less than a
       block to the west. There are commercial buildings on both sides of the path, and many of the
       businesses have cyclone fences that abut the path, with industrial materials stacked up
       immediately behind the fences. Also, large utility poles for Commonwealth Edison, which

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       owns the right-of-way, line the entire length of the path, and numerous power lines are
       suspended overhead. The path also bypasses Buckthorn Park, which the City owns. Further,
       the area of the accident intersects with Old Deerfield Road, a busy city street.
¶ 13        Plaintiff’s response attached her affidavit. She stated as follows. She was familiar with the
       bike path, including the accident scene. The path does not go through a forest or a mountainous
       region. Some large bushes and some grass line the path, but there are no trees in the area of the
       accident. The path also passes by Buckthorn Park. Large utility poles line the entire path, with
       multiple power lines overhead. There are areas where businesses stack materials against fences
       to the side of the path. At the location of the accident, business buildings butt up against the
       path, and several parking lots are nearby. In the area of the accident, a cyclone fence abuts the
       east side of the path, and the highway and the railroad tracks are less than a block from the
       path.
¶ 14        Plaintiff’s affidavit attached photographs in support of most of her statements about the
       path. The first is a Google aerial photograph with “Buckthorn Park” printed adjacent to the
       path. The second is a shot of a bicyclist riding on the path, with utility poles and overhead wires
       on either side; shrubs are on one side of the path, while the other edge is mostly grass. The third
       shows a stretch of the path with shrubbery and a utility pole on one side, a cyclone fence with
       industrial pipe stacked up behind it on the other side, and utility poles in the background. The
       fourth photograph shows the intersection of Old Deerfield Road (which is labeled) and the
       path; utility poles and wires stretch across the road and line the path in the background. There
       are buildings a short distance to one side of the path and a parking lot a few feet from the other
       side. The fifth photograph is a Google aerial view labeled “1495 Old Deerfield Road”; it also
       identifies the path and several business establishments that are located either between the path
       and the railroad tracks or between the path and Old Skokie Valley Road. The sixth photograph,
       also from Google and labeled “1452 Old Deerfield Road,” identifies that road and shows what
       plaintiff’s affidavit identified as parking lots located a few feet to the east of the path. The
       seventh photograph, a Google aerial view of the general area, identifies numerous business
       establishments on either side of the path. The final photograph shows a sign identifying the
       path and a stretch of the path, including the grass borders with intermittent shrubbery and
       utility poles on both sides.
¶ 15        Plaintiff’s response also attached the affidavit of Angus Duthie, who stated as follows. He
       was familiar with the path and the area of plaintiff’s accident, having himself hit a bump and
       crashed on July 9, 2013, about 100 yards north of Old Deerfield Road. The path does not go
       through a mountainous or wooded region. There are some large bushes and grass but no trees
       in the area of his crash. In other respects, Duthie’s affidavit repeated plaintiff’s statements
       about the path and the surrounding area and attached copies of the same photographs.
¶ 16        The City filed a reply to plaintiff’s response. The reply discussed the case law that both
       parties had cited. The City stressed that the decisions of neighboring landowners to develop
       their properties did not dispose of whether the path was a “riding trail”; the focus, it
       maintained, should be on the character of the path itself. The City thus contended that the
       “ ‘[G]oogle images’ ” of the surrounding areas were of little evidentiary value. It did not,
       however, contend that they were improper or would be inadmissible as evidence.
¶ 17        The trial court granted both defendants summary judgment. It held that the County was
       immune under section 3-106 of the Act (745 ILCS 10/3-106 (West 2012)), which requires
       proof of willful and wanton conduct to impose liability on a local public entity for injury

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       caused by conditions of public property that is used for recreational purposes. As noted,
       plaintiff does not challenge this ruling. The court also held that the City was immune, based on
       section 3-107(b). The court did not explain its ruling. Plaintiff timely appealed.
¶ 18        On appeal, plaintiff argues that the grant of summary judgment to the City was error,
       because the path is not a “riding trail” (see 745 ILCS 10/3-107(b) (West 2012)) as that term has
       been construed by Illinois courts. Plaintiff reasons that several opinions have adopted a
       dictionary definition of the term, under which the path, at least in the vicinity of her accident,
       does not qualify as a trail. For the following reasons, we reverse the grant of summary
       judgment to the City and remand the cause.
¶ 19        Summary judgment is proper when the pleadings, depositions, affidavits, and other matters
       on file establish that there is no genuine issue of material fact and that the moving party is
       entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). Our review is
       de novo. People ex rel. Director of Corrections v. Booth, 215 Ill. 2d 416, 423 (2005).
¶ 20        This appeal hinges on (1) the definition of the term “riding trail” in section 3-107(b) of the
       Act and (2) its application to this case. The construction of a statute is, of course, a question of
       law, which we review de novo. Hawes v. Luhr Brothers, Inc., 212 Ill. 2d 93, 105 (2004).
       Because the Act does not define the term, our appellate courts have taken up the task. We turn
       to what they have said.
¶ 21        In Goodwin v. Carbondale Park District, 268 Ill. App. 3d 489 (1994), the plaintiff was
       injured when his bicycle collided with a tree that had fallen across a paved bike path that went
       through a city park. Id. at 490. The city of Carbondale owned the property and leased it to the
       defendant, requiring that it be used “ ‘exclusively for playgrounds, recreational, open space,
       non-autoways, and public park purposes.’ ” Id. The city also agreed to “ ‘construct
       non-autoways for the use of pedestrians, bicycles and wheelchairs on the property.’ ” Id. at
       491. The plaintiff filed an action sounding in both negligence and willful and wanton conduct.
       The trial court dismissed his complaint, holding in part that the defendant was immune under
       section 3-107(b) of the Act because the path was a riding trail. Id. at 490.
¶ 22        The appellate court reversed the dismissal of the count alleging willful and wanton
       conduct, holding that “the paved bike path located in a developed city park” was not a riding
       trail. Id. at 492. The court held more broadly that section 3-107(b), which created absolute
       immunity, even for willful and wanton conduct, was intended to apply to “unimproved
       property which is not maintained by the local governmental body and which is in its natural
       condition with obvious hazards as a result of that natural condition.” Id. at 493. The court
       continued:
                “Included in section 3-107(b) are unimproved hiking, riding, fishing or hunting trails in
                undeveloped recreational areas that remain in their natural condition. Absolute
                immunity is extended for injuries sustained on these types of property because of the
                burden in both time and money if the local governmental entity were required to
                maintain these types of property in a safe condition. Furthermore, requiring such
                maintenance would defeat the very purpose of these types of recreational areas, that is,
                the enjoyment of activities in a truly natural setting. We are reminded that the Act is in
                derogation of the common law and must be strictly construed against a finding of
                immunity.” Id.
       The court concluded that, given this reasoning, the legislature did not intend section 3-107(b)
       to include a paved bike path within a developed city park as a riding trail. Id. at 493-94.

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¶ 23       In Brown, the appellate court affirmed a grant of summary judgment based on a holding
       that section 3-107(b) immunized the defendant from liability for an injury that the plaintiff
       suffered when he hit a bump and fell off his bicycle while riding on a bicycle path in the Saulk
       Trail Woods Forest Preserve. Brown, 284 Ill. App. 3d at 1099. The court relied on a dictionary
       definition of “trail” as “a ‘marked path through a forest or mountainous region.’ ” Id. at 1101
       (quoting Webster’s Third New International Dictionary 2423 (1981)). It concluded that the
       bike path on which the plaintiff had been riding met this definition because, as he conceded, it
       was “designed to provide access for bicyclists to the natural and scenic wooded areas around
       Saulk Lake.” Id. It was not consequential that the path happened to have been paved. Id. Also,
       the court was not persuaded to hold for the plaintiff merely because the path was adjacent to a
       highway. Id. at 1099.
¶ 24       The court distinguished Goodwin, explaining that the Goodwin court had stressed that the
       bicycle path in question had “traverse[d] developed city land.” Id. at 1101. In Brown, the area
       in which the plaintiff was injured was, by his own description, “ ‘a forest,’ ” not the type of
       developed property that had been at issue in Goodwin. Id.
¶ 25       In Mull, this court reversed a judgment for a bicyclist who was injured when she fell while
       riding on a forest-preserve bicycle path. The path traversed 17 miles of the forest preserve, and
       the area of the plaintiff’s fall was about 50 yards west of a bridge. Mull, 337 Ill. App. 3d at
       589-90. This court adopted the dictionary definition of “trail” that Brown had employed. Id. at
       591-92. We then held that the case was essentially similar to Brown; thus, that the bicycle path
       was adjacent to a road was not dispositive. Id. at 592. Also, that the entrance to a subdivision
       was near the path was not crucial: a preexisting immunity ought not be lost merely because “a
       neighboring landowner decide[s] to develop his property.” Id. at 592-93. What was crucial was
       that the path was “surrounded by wooded or undeveloped land and [ran] through a forest
       preserve.” Id. at 592.
¶ 26       Finally, there is McElroy, in which this court held that a path located within a 1225-acre
       forest preserve was a riding trail per section 3-107(b). The path was 5½ miles long, had bridges
       and boardwalks, and was open to hikers, bicyclists, and cross-country skiers. McElroy, 384 Ill.
       App. 3d at 663. Ronald McElroy was injured when he rode his bicycle from the gravel trail up
       a wooden ramp and onto an elevated wooden bridge and fell off the other end of the bridge. Id.
       This court’s opinion addressed, in part, a certified question: whether the wooden bridge was
       part of a hiking or riding trail, per section 3-107(b). Id. at 666.
¶ 27       Noting that the Act is in derogation of the common law and must be construed strictly (id.),
       we nonetheless departed from Goodwin insofar as it held that a path must be “ ‘unimproved’ ”
       to qualify as a “trail” under section 3-107(b) (id. at 667 (quoting Goodwin, 268 Ill. App. 3d at
       493)). We reasoned that this qualification had no basis in the plain language of the section. Id.
       Nonetheless, we endorsed the dictionary definition of “trail” that was adopted in Brown and
       then Mull. We explained:
               “[S]ection 3-107(b) excepts certain ‘trails’ and does not require that they be strictly
               ‘unimproved’ trails. The plain and ordinary meaning of the word ‘trail’ is a ‘ “ ‘marked
               path through a forest or mountainous region.’ ” ’ [Citations.] As defendant points out,
               rarely if ever is a ‘riding trail’ found in nature without any improvements to make the
               trail accessible and safe to the public.” Id.
       We noted that the plaintiffs did not dispute that the gravel portions of the path were “in a
       natural area and were to be used for hiking and riding.” Id. Thus, these portions, at least,

                                                   -6-
       qualified as a “trail” under section 3-107(b). The contested issue was whether the manmade
       bridge was part of the “trail.” Id. We held that it was. We reiterated the dictionary definition of
       “trail” employed in Brown and Mull. We explained that the gravel path itself was a “trail”
       because it went through a “natural area” (id. at 669), i.e., a “forest” (745 ILCS 5/3-107(b)
       (West 2004)). We noted that forests and mountainous regions often include rivers, streams, or
       wetlands, making bridges necessary to enable users to enjoy these natural areas. Id. Thus,
       because the bridge was an integral part of a “trail,” McElroy’s injury was allegedly caused by a
       defective condition that was subject to section 3-107(b). Id.
¶ 28       We find the preceding opinions persuasive and sensible. For that reason and in the interest
       of stare decisis, we follow them insofar as they are consistent. We adhere to our statement in
       McElroy that a “trail” need not be wholly unimproved to qualify under section 3-107(b). We
       also adhere to the statements that a path need not be unpaved to qualify as a “trail” and that the
       character of a path as a “trail” is not automatically defeated by the existence of any
       development in the surrounding area. To this extent, we do not construe section 3-107(b) as
       narrowly as some have urged.
¶ 29       Nonetheless, the case law that we follow does require that, to be within section 3-107(b), a
       path not only be used by bicyclists (or hikers or both) but be located within a “ ‘forest or
       mountainous region’ ” (Brown, 284 Ill. App. 3d at 1101 (quoting Webster’s Third New
       International Dictionary 2423 (1981)); see also McElroy, 384 Ill. App. 3d at 669; Mull, 337 Ill.
       App. 3d at 592). As a matter of law, this restriction defeats the City’s assertion that the path is
       a riding or hiking trail. No contention has been made that the path is located in a mountainous
       region (mountains being scarce in Lake County). No serious contention can be made that the
       path is located in a forest; no reasonable person who views the photographs of the path and its
       surroundings, or even reads their descriptions by those who have seen them, would describe
       those surroundings as a forest. The path is bordered by narrow bands of greenway that sport
       some shrubs and a few trees; these narrow bands are surrounded by industrial development,
       residential neighborhoods, parking lots, railroad tracks, and major vehicular thoroughfares (to
       the east and south of the area of the accident). The case for considering the path a riding trail
       would not succeed even if utility poles could be considered trees with power lines for branches.
¶ 30       Although the presence of some development in the area of a path does not per se mean that
       the path is not a “trail,” the presence of industrial and residential development all around a
       path negates any conclusion that it is located within a “natural and scenic wooded area[ ]”
       (Brown, 284 Ill. App. 3d at 1101) or that it is “surrounded by wooded or undeveloped land”
       (Mull, 337 Ill. App. 3d at 592). A forest preserve is a “forest,” even with a moderate degree of
       improvement within and without. An industrial/commercial/residential area is not a forest
       because it contains narrow strips of green space on which a few trees stand. The location of the
       path in this case is wholly different from the forest preserves in Brown, Mull, and McElroy,
       which were vast areas that were for the most part kept in their natural state for those who
       sought recreation in such a relatively wild setting. The path is in even less of a natural state
       than the city park in Goodwin. The people who use the path are interested in recreation, but
       there is no reason to think that they use it to feel reconnected with wild nature as they ride
       along and take in a vista of power lines, parking lots, warehouses, cyclone fences, stacks of
       industrial pipes, and utility poles, towers, and wires.
¶ 31       The frequent appearance of bunnies on the trail does not, in our judgment, call the
       foregoing analysis into question.

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¶ 32       We note further that, aside from the definitional obstacles to calling the path a riding trail,
       the underlying purpose of section 3-107(b)’s grant of absolute immunity, even for willful and
       wanton conduct, is not consistent with the trial court’s result here. We agree with the Goodwin
       court that behind the categorical grant of immunity is the recognition of “the burden in both
       time and money if the local governmental entity were required to maintain these types of
       property in a safe condition” and that “requiring such maintenance would defeat the very
       purpose of these types of recreational areas, that is, the enjoyment of activities in a truly natural
       setting.” Goodwin, 268 Ill. App. 3d at 493. These considerations do not apply to a bicycle or
       hiking path in the midst of an easily accessible developed area. Indeed, the City would not even
       be a party to this appeal had it not found it manageable to take on the burden of maintaining the
       path in a safe condition.
¶ 33       For the foregoing reasons, we hold that the trial court erred in holding that the path is a
       riding trail, thus triggering the absolute immunity provided by section 3-107(b) of the Act. The
       grant of summary judgment for the City is reversed, and the cause is remanded. Of course, as
       plaintiff has not appealed the grant of summary judgment for the County, that judgment
       remains intact.

¶ 34       Affirmed in part and reversed in part; cause remanded.




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