Wednesday, October 28, 2020

The Duty of "Due Care" in the Chicago Municipal Code and Illinois Vehicle Code

The City of Chicago has garnered a great deal of attention for its efforts in making Chicago more friendly to cyclists. A large part of the city's efforts have been in enacting new laws designed to try and protect bicyclists. What is interesting is that one of the most explicit laws in Illinois is nearly forty years old. On August 12, 1981 Public Act 82-132 became law when it amended the Illinois Vehicle Code. It stated: 

Every driver of a vehicle shall exercise due care to avoid colliding with any person operating a bicycle or other device propelled by human power…and shall exercise proper precaution upon observing any child or any obviously confused, incapacitated or intoxicated person.

Thirty years ago in 1990 the City of Chicago incorporated this language into its own specific Municipal Code and thus made the "duty of due care" the clear law in Illinois generally and the City of Chicago specifically. This law can be found in Section 11-1003.1 of the Illinois Motor vehicle Code and Section 9-40-160 of the Chicago Municipal Code.

This specific traffic law came to mind this week when considering the tragic death of Czeslaw Kosman. According to 
reports, Czeslaw Kosman was fatally struck by a motorist on Friday afternoon of October 23, 2020 in the Jefferson Park neighborhood of Chicago. The Cook County medical examiner’s autopsy report confirmed Mr. Kosman died of head injuries sustained in the fatal crash.


Witnesses relayed to responding officers that Mr. Kosman was riding his bicycle near the 6200 block of West Higgins Avenue in Chicago when he was struck by a westbound driver of a 2005 Nissan Pathfinder SUV. Eyewitnesses allegedly observed Mr. Kosman riding his bicycle in circles and veering into traffic. 

However, responding officers issued the motorist citations for failing to reduce speed to avoid the accident and for no insurance. Interestingly, this 40-year old law might have been the most precise allegation against the driver given the reports of the cyclist's riding in circles and engaging traffic. If the reports are accurate, these actions would clearly fall under any definition of a "confused" person's actions and the driver holds to duty to avoid a collision. 


Under the law, "due care" means the "care that an ordinarily reasonable and prudent person would use under the same or similar circumstances." In this case, the driver upon observing an apparently confused Mr. Kosman who was veering into traffic on his bicycle, failed to exercise due care by swerving to avoid or simply altogether stop and wait for the cyclist to clear the roadway. 


Unfortunately, this is now the eighth Chicago cyclist killed this year, which is notably the most since 2012.  This is another unfortunate fatality in Chicago, Illinois where a bicyclist lost his life. This incident reflects how the failure of a motorist to adhere to the rules of the road can lead to death. It is important for all users of the roadways to remember that bicyclists are vulnerable users of the roadway. 

Our thoughts and prayers are with the family and friends of Mr. Kosman.