This is a question many park districts, transit districts, and municipalities in Illinois are asking. Under the Illinois Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act), “Neither a local public entity nor a public employee is liable for an injury caused by a condition of: (a) Any road which provides access to fishing, hunting, or primitive camping, recreational, or scenic areas and which is not a (1) city, town or village street (2) county, state or federal highway (3) a township or other road district highway. (b) Any hiking, riding, fishing or hunting trail.” 745 ILCS 10/3-107.

Over the years, the move toward a more active, healthy and “green” society, along with a nationwide effort to convert abandoned railroad right-of-ways into trails, has created over 909 miles of trail in Illinois. http://www.railstotrails.org/our-work/united-states/illinois/#state and https://www.dnr.illinois.gov/publications/documents/00000642.pdf   The Tort Immunity Act grants immunity to local public entities for incidents that occur as a result of a condition of their riding trails. However, questions still exist as to whether riding trails in our communities are really afforded this protection.

Envision a 15.5 mile asphalt trail that is used by bikers, skaters, walkers, and runners. The trail links with several others, affording the user access to over 100 miles of continuous trails. The 15.5 mile paved trail passes through and by old growth forests, a local park with a pond, neighborhoods, businesses, public roadways and a State Park with a lake. Is this trail a riding trail under the Tort Immunity Act?

The Current Case Law

In Goodwin v. Carbondale Park District, 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. Goodwin v. Carbondale Park District, 268 Ill. App. 3d 489, 490 (5th Dist. 1994). 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. Goodwin, 268 Ill. App. 3d at 490. However, the Fifth District of the Illinois Appellate Court reversed the dismissal, holding that “the paved bike path located in a developed city park” was not a riding trail. Id. at 492. The court reasoned that section 3-107(b) 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 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. Id. at 493-94.

The First District of the Illinois Appellate Court held in Brown v. Cook County Forest Preserve that section 3-107(b) immunized the defendant from liability for an injury that the plaintiff suffered when he hit a bump and fell while riding on a bicycle path in the Saulk Trail Woods Forest Preserve. Brown v. Cook County Forest Preserve, 284 Ill. App. 3d 1098, 1099 (1st Dist. 1996). The court relied on the dictionary definition of “trail” as “a ‘marked path through a forest or mountainous region.’” Brown, 284 Ill. App. 3d at 1101 (quoting Webster’s Third New International Dictionary 233 [sic] (1981)). It concluded that the bike path on which the plaintiff had been riding met this definition because it was “designed to provide access for bicyclists to the natural and scenic wooded areas around Saulk Lake.” Id. It was not material to the court that the path was paved and the court was not persuaded to hold for the plaintiff merely because the path was adjacent to a highway. Id. at 1099. The court distinguished the case from Goodwin by explaining that the Goodwin court had stressed that the bicycle path in question had traversed a developed city park. Id. at 1101.

Likewise, in Mull v. Kane County Forest Preserve District, the court held that the forest preserve was immune under section 3-107(b) when the plaintiff fell while riding on a 17 mile forest-preserve bicycle path. Mull v. Kane County Forest Pres. Dist., 337 Ill. App. 3d 589 (2d Dist. 2003). The fact that the bicycle path was adjacent to a road and that the entrance to a subdivision was near the path was not crucial to its decision. Mull, 337 Ill. App. 3d. at 592-93. What was crucial to the court was that the path was “surrounded by wooded or undeveloped land and [ran] through a forest preserve.” Id. at 592.

The Second District of the Illinois Appellate Court has further departed from the Goodwin court’s holding that a trail must be “unimproved” to qualify as a riding trail under section 3-107(b) and instead endorsed the dictionary definition of “trail” as cited in Brown. McElroy v. Forest Pres. Dist. of Lake County, 384 Ill. App. 3d 662, 667 (2d Dist. 2008). The court reasoned that “rarely if ever is a ‘riding trail’ found in nature without any improvements to make the trail accessible and safe to the public.” McElroy, 384 Ill. App. 3d at 667.

In a recent decision, the second district held that a trail need not be unpaved to qualify as a riding trail and that the character of a path as a riding trail is not automatically defeated by the existence of any development in the surrounding area. Corbett v. County of Lake, 2016 IL App (2d) 160035, ¶ 28. However, the court also held that although the riding trail at issue was surrounded by narrow bands of greenway, it was also bounded by industrial development, residential neighborhoods, parking lots, railroad tracks and major vehicular thoroughfares, therefore, the trail did not qualify as a riding trail under section 3-107(b). Corbett, 2016 IL App (2d) 160035, ¶ 29.

Conclusion

Based on the current Appellate court rulings, an argument exists for the hypothetical 15.5 mile trail to be considered a riding trail under the Tort Immunity Act. Although paved, the trail is not in a developed city park like in Goodwin. The trail travels by and/or through neighborhoods, businesses and roads, but more importantly also transverses forests, parks and lakes like the trails in Brown, Mull and McElroy. Depending on what appellate district the trail is located in, it may be considered a riding trail.

We may soon know whether this immunity applies to the trails in our communities. The Illinois Supreme Court has recently allowed an appeal of the Corbett decision. Corbett v. County of Lake, No. 121536, 2017 Ill. LEXIS 105 (Jan. 25, 2017). It is anticipated that the Illinois Supreme Court will issue a ruling defining a riding trail under the Tort Immunity Act and reconciling the differing appellate court decisions. The ruling by the Illinois Supreme Court should provide a consistent basis for the determination of whether the numerous governmental owned and operated trails in Illinois are immune under the Tort Immunity Act. We will monitor this anticipated decision and keep you apprised of the outcome.