The "Open and Obvious" Defense In Pothole and Roadway Defect Bicycle Crash Cases

Far and away the most common types of cases we handle as bicycle law attorneys involve collisions between motor vehicles and bicyclists where the driver of the motor vehicle is at fault. Common examples of this are doorings, right hook crashes, left hook crashes, failure to give the bicyclist 3-Feet when passing. However, a large number of the cases Keating Law Offices has handled involve bicyclists who were injured when their bicycle hit a defect in the roadway and they crashed.

Illinois law on these types of cases is very, very fact specific. IllinoisBicycleLaw.com has previously delved into the crucial Illinois Supreme Court Case of Boub v. Wayne County which holds that for a bicyclist to hold a municipality (think city, town county, etc.) the bicyclist has to show that they were on a section of the road way where a bicyclist was not only permitted but also intended. An example of a roadway where bicycles are both intended and permitted would be a roadway where there is marked bike lanes or even signs indicating plans for bicyclists on that roadway.

The attorneys at Keating Law Offices also have a long history of representing bicyclists injured in crashes where a problem with the roadway caused the crash. When a road defect, such as a pothole or a hazard within a construction zone, causes the crash the at-fault parties often argue that even though there was a defect, and even though they may have put the defect in the roadway, that the bicyclist should have "watched where they were going." This defense is known as the "open and obvious doctrine." This doctrine provides that a defendant has no duty to protect against a condition that is both open and obvious. The open and obvious doctrine can be a powerful defense if they can show the court that the defect really was both open and obvious to the bicyclist. However, there are a number of elements for cyclists to consider when faced with this defense.

For a condition to be open and obvious, the risk caused by the condition needs to be apparent to a reasonable person exercising ordinary perception and judgment. This essentially means that would a regular person under regular circumstances see what is in the roadway? The doctrine essentially puts the burden on us cyclists to take care to avoid any obviously dangerous conditions that appear risky to your average person. The doctrine prevents a cyclist from suing someone responsible for a dangerous condition when the cyclist knew that the condition existed and knew that the condition was dangerous before that condition injured the cyclist.

Much of the Illinois law regarding the open and obvious doctrine has developed through cases that involved people who trip while walking. For example, the doctrine can defeat the claim of someone tripping over a sidewalk defect that is clearly marked with a hazard cone or bright spray paint. Or someone who tries to sue a grocery store for slipping on a bright yellow lemon on a dark black floor mat might lose their lawsuit because of the open and obvious doctrine.

Reasonable cyclists encounter the world differently than someone walking. The perception of road conditions of someone riding at 10 to 12 miles an hour is different than the perception of someone walking at 3 to 4 miles per hour. Thus, the opportunity to observe a small but dangerous road defect, like a pothole, is dramatically different while biking than while walking.

As attorneys, we investigate all of the factors that go into a reasonable person’s ability to perceive a condition when cycling. For example, in a pothole case we analyze whether the condition is open and obvious by asking:

• How big is the pothole?
• How deep is the pothole?
• Where is the pothole?
• What color is the pothole compared to the surrounding roadway?
• Is something blocking the view of the pothole?
• What were the lighting conditions around the pothole?
• Was the pothole filled with material that disguised its dangerous size or depth?

Again, each of these cases are very "fact specific" and no two cases are really ever the same. The open and obvious doctrine only applies when a reasonable person can appreciate the risk involved. It’s not always possible to comprehend every risky condition, no matter how safe or reasonable we are while riding. Nevertheless, injured cyclists routinely face the open and obvious defense when a road defect causes a crash. The firm recently resolved a complicated case where the bicyclist suffered and injured collarbone after crashing on a defect during a road resurfacing project involving the Halsted Street bike lane. In that case we used an iconic Coke can to provide scale and contrast to depict the height of a defect that otherwise blended into the roadway at first glance. 

It takes an experienced and well-qualified attorney to help fight back against the open and obvious doctrine to protect your case from being thrown out of court. Keating Law Offices attorneys are available for a free consultation to discuss any claim today.

Settlement Obtained for Bicyclist Injured By Construction On Halsted Street Bike Lane

In the summer of 2018 a Chicago bicyclist was riding up the Halsted Street bike lane near her home like she had hundreds of times before. One day she was commuting home from work and was on the Halsted Street bike lane near its intersection with Wellington. Despite the construction in the area the bike lane looked the same as it had on other days. There were no warnings or indications that anything on this stretch was different. 

In reality there was a hidden defect in that some of the contractors working on the bike lane had placed a "patch" that created a large bump that was undetectable because it was almost the same color as the road. It was basically camouflaged. As the front wheel of the cyclist's bike hit this bump the bike became uncontrollable and she crashed to the ground. 

Keating Law Offices went to the scene of the crash and took photographs illustrating that the change in elevation was almost as high as a Coke can that was used for scale. These timely photos ended up being a significant piece of evidence in the case. After investigating, Keating Law Offices filed a lawsuit against multiple defendants, including the City of Chicago which was the owner of the construction project. The City hired a local paving company to act as the project’s General Contractor and a private engineering company to serve as the project’s Resident Engineer.

After the crash, our client fell onto her right shoulder. The force of the bicycle crash fractured her collarbone and required extensive medical intervention. The fracture limited our client’s range of motion and strength in her shoulder. It also limited her ability to ride as she routinely did before her crash. After extensive litigation, the case was settled for $200,000.00 after a Pre-Trial Conference with a judge in the Law Division of the Circuit Court of Cook County. 

As the City of Chicago expands its bike infrastructure, the importance of safety within construction zones is greater than ever. In this case, we alleged that the change in elevation that caused our client’s injuries was a danger introduced by careless construction work that did not properly create a ramp between the old and new road during the construction. Moreover, there was no appropriate signage or safety warnings to alert oncoming traffic and cyclists of the dangers ahead. 

While Keating Law Offices salutes the efforts by our city to maintain our roadways and further develop bike-friendly infrastructure, safety during construction must be a priority for all involved. When safety measures fail or construction shortcuts lead to dangerous conditions and injuries, hiring an experienced attorney can be the best option for many cyclists.

Chicago Bicyclist Injured In Hit And Run Receives Settlement from Chicago Transit Authority

Attorneys Catelyn Viggiano and Michael Keating of Keating Law Offices recently obtained a favorable settlement for a Chicago bicyclist that was injured in a collision with a Chicago Transit Authority (CTA) bus. On July 20, 2017, our client was struck by a negligent CTA bus operator who improperly tried to pass her on her left. The crash occurred on Clark Street near its intersection with Webster Avenue in the Lincoln Park neighborhood. The CTA bus came from behind the cyclist and attempted to pass her on her left, and in doing so, the CTA bus contacted her left side. 

The bus operator apparently was not even aware he struck the cyclist and drove away from the scene. The cyclist was able to locate surveillance footage from nearby and the bus route and unique CTA bus number were then used to identify the bus operator. 

As a result of the contact from the CTA bus, the cyclist was thrown from her bicycle and struck her head on the pavement. The cyclist sustained a concussion and suffered from post-concussion syndrome. She underwent months of neurological treatment. The settlement reached with the CTA compensates her for the damages she suffered such as medical expenses, lost wages, pain and suffering and loss of normal life.

All Chicagoans are intimately familiar with the presence of CTA buses on the roadway which serve as a valuable transportation resource. The large volume of people that rely on CTA bus transportation for their everyday commute, requires the actual size of the CTA bus to be substantial when compared to other vehicles on the roadway. While CTA busses provide an essential service to the community and combat other societal concerns such as roadway congestion and pollution, they do pose substantial threats to other users of the roadways, such as bicyclists. The main concern is the disparity between the size and weight of a bus compared to a bicycle, which can lead to serious bodily injuries.

Over and above the general expectation that CTA bus operators will operate the busses in a safe manner for all users of the roadway, there are other protections in place to prevent instances like the one here, involving our client which resulted in serious bodily injuries. For example, the Illinois Vehicle Code states that a driver of a vehicle overtaking a bicycle traveling in the same direction shall pass to the left of that bicycle at a safe distance in order to safely clear said bicycle. 625 ILCS 5/11-703(a). Similarly, section 9-36-010 of the Municipal Code of Chicago requires something known as the “3-Foot Rule.” That is, the operator of a motor vehicle (in this case a bus) that is overtaking a bicycle traveling in the same direction on a highway must leave a safe distance, but not less than 3 feet, when passing the bicycle. The motor vehicle must then maintain that distance until safely past the overtaken bicycle. 

The CTA requires its bus operators to obtain a special driver’s license and undergo extensive training before being eligible to operate a CTA bus. Part of the CTA's training and standard operating procedures focuses on safe vehicle maneuvering when cyclists are present. Unfortunately, despite all these safeguards serious collisions continue to occur with CTA busses and cyclists.

Keating Law Offices has handled numerous cases for clients who were injured in a collision with the CTA. This includes not only settlements but taking the CTA to trial and successfully obtaining a verdict in favor of our client in a case where the CTA offered nothing to settle the case prior to trial. 

If you were hurt in a crash involving a CTA bus or other motor vehicle contact us to schedule a free consultation with one of our experienced attorneys. We can review the details of your case, answer your questions and go over your legal options. Consultations are always absolutely free and with zero obligation.

All Keating Law Offices Attorneys Named SuperLawyers for 2021

All Keating Law Offices attorneys have been honored by SuperLawyers Magazine for 2021. Keating Law Offices founding attorney Michael S. Keating has been rated a SuperLawyer. Attorney Catelyn Viggiano was named a "Rising Star" by SuperLawyers Magazine. 

Only 2.5% of Illinois attorneys receive the “Rising Stars” honor. To be eligible for "Rising Star" designation the attorney must be under a certain age or within the first decade of their career. The selections for SuperLawyer are even more selective with only 5% of all attorneys of any age or number of years practicing recognized by Super Lawyers magazine each year. 

In order to become part of this prestigious list, all attorneys go through a selection process. SuperLawyers magazine invites Illinois lawyers once a year to nominate the top attorneys they have personally observed in action while an attorney-led research team searches for lawyers who have a high degree of professional competence.

SuperLawyers research team then evaluates each candidate based on the following 12 indicators: verdicts and settlements; transactions; representative clients; experience; honors and awards; special licenses and certifications; position within the law firm; bar and or other professional activity; pro bono and community service as a lawyer; scholarly lectures and writings; education and employment background; and other outstanding achievements.

Based on these 12 indicators and final selection by the SuperLawyers team, the Keating Law attorneys were selected. This is the second time a well respected authority has honored all Keating Law attorneys. Recently Leading Lawyers magazine honored Michael Keating as a Leading Lawyer and Catelyn Viggiano as an Emerging Lawyer. 

Keating Law Offices is the premiere personal injury law firm representing victims of bicycle accidents in Illinois. The firm is based in Chicago, Illinois and represents clients throughout Illinois.