Cycling in Chicago and throughout Illinois has become more than a trend. For many, it is a lifestyle and represents a means of commuting, staying active, and enjoying the city. But it also comes with risks. With the exception of car accidents, one of the most common and often most dangerous hazards facing cyclists in this city is the pothole. These street craters can buckle rims, send riders over handlebars, and result in serious personal injuries. Understandably, when this happens, the next question is whether the City of Chicago or any other Illinois city or municipality can be held responsible.
The answer is rarely simple. The City, like most municipalities in Illinois, benefits from broad legal immunity under the Local Governmental and Governmental Employees Tort Immunity Act. This law protects cities and their employees from liability in many situations. And in practice, it means that injured bicyclists often face an uphill battle when seeking compensation for injuries caused by potholes.
The governmental immunity is not absolute. It depends on the location of the accident, the nature of the hazard, what the City knew or should have known, and whether the injured person was using the street or path in a way the law considers “intended.”
A recent case from the Illinois Supreme Court illustrates the limits of municipal liability. In Alave v. City of Chicago, the plaintiff was injured while riding his bicycle through a crosswalk. Although the area included Divvy bike stations and signage encouraging cycling, the court held that the cyclist was not an “intended user” of that crosswalk. The court emphasized that the presence of bikes nearby was not enough as the critical factor was that the crosswalk itself had not been designated for bicycle travel. The case was dismissed, reinforcing a hard truth – unless a path, lane, or street is specifically marked or designed for bicycles (in other words “intended” for bicyclists), the City may not owe a duty of care to cyclists injured there.
The decision in Alave followed the same logic as an earlier appellate decision in Berz v. City of Evanston, where the plaintiff was injured while biking through an alley. The court held that the alley was not intended for bicyclists, and therefore, the City could not be held liable for the defect that caused the injury. These cases make clear that even in bike-friendly neighborhoods, cyclists are not always protected if they are riding in areas not explicitly meant for bike use.
So what does it mean to be an “intended user”? Under Illinois law, a city has a duty to keep its property reasonably safe for those whom it intends to use it. If the city provides a designated bike lane, then a cyclist in that lane is an intended user. But if the cyclist is riding on a sidewalk, an alley, or a standard traffic lane without bike markings, the City will often argue that no duty exists.
Of course, even when a cyclist is an intended user, a lawsuit against the City requires something more: evidence that the City knew about the dangerous condition and failed to fix it in a reasonable time. The law recognizes two types of notice. Actual notice means the City was told—perhaps through a 311 report, an internal inspection, or a prior complaint. Constructive notice means the condition was so obvious and had existed for so long that the City should have known about it through ordinary diligence.
In Burns v. City of Chicago, the court affirmed summary judgment in the City’s favor because the plaintiff could not prove constructive notice. The pothole had not been previously reported, and there was no evidence it had existed long enough for the City to discover it. A similar result occurred in Zameer v. City of Chicago, where the plaintiff failed to show that the City had actual or constructive notice of the hazard. Both cases highlight a key point: even if the City owes a duty, the plaintiff must prove the City had the opportunity to fix the problem before the injury occurred.
But there is an important exception to the notice requirement. If the City’s own employees create the dangerous condition—such as through negligent road work or a botched pothole repair—then liability can arise even without notice. This is what courts refer to as an “affirmative act.” In Bernal v. City of Hoopeston, municipal employees performed negligent work that created a hazard, and the court held that this conduct amounted to notice. Similarly, in Hanley v. City of Chicago, the City undertook a pothole repair but failed to do it properly. The court found that once a city decides to fix a problem, it must perform the work with due care. Doing a repair poorly and making the condition worse can create liability—even if no one complained about it beforehand.
Finally, there is the question of whether the City’s decision not to fix a pothole was a protected act of discretion. Under Section 2-201 of the Tort Immunity Act, discretionary decisions involving policy judgments are immune from liability. This means the City can argue that its decisions about which potholes to fix, and when, are matters of public policy. In Wrobel v. City of Chicago, for example, the court held that the City’s decision about how much to prepare a pothole before filling it was a discretionary act, and therefore not subject to liability.
These layers of immunity—intended user, notice, affirmative act, and discretion—create a framework that makes it difficult, but not impossible, for injured cyclists to sue the City. The key is in the facts. Where exactly did the injury happen? Was it a marked bike lane? Had others reported the pothole? Had the City tried to repair it? Did the work make it worse?
At Zneimer & Zneimer P.C., we help bicyclists injured in Chicago determine whether they have a viable claim against the City or another responsible party. We know the law. We understand the precedent. And we know how to investigate and build a case even when the odds look long.
If you were injured while biking in Chicago due to a pothole or dangerous road condition, call us. We will look closely at the location, the City’s records, any repair history, and whether immunity truly applies. You may have more rights than you think.
Call us at (773) 516-4100 or reach out online to schedule a FREE CONSULTATION. We are here to help you get answers—and get back on the road.