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SECOND DIVISION
June 12, 2001

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Plaintiff Donnita Latimer brought this negligence action against defendant, the City ofChicago, seeking damages for injuries she sustained in a bicycle accident on a Chicago street. The circuit court granted defendant's motion for summary judgment, finding that plaintiff was apermitted but not intended user of the street. On appeal, plaintiff contends that the trial courterred in ruling that defendant was immune from liability under section 3-102 of the LocalGovernmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS10/3-101 et seq. (West 1998)).

The complaint alleged that on October 7, 1993, plaintiff was injured when she fell fromher bicycle on a part of Clyde Avenue where the pavement was broken and uneven. Plaintiffalleged that defendant had negligently maintained the street where she fell. Plaintiff does notdispute that the accident happened at a place on the street where there were no bicycle lanemarkings.

A complaint for negligence must establish that the defendant owed the plaintiff a duty ofcare, that the defendant breached that duty, and that the plaintiff sustained an injury proximatelycaused by the breach. Marshall v. City of Centralia, 143 Ill. 2d 1, 6 (1991). Whether thedefendant owes a duty of care to the plaintiff is a question of law. Marshall, 143 Ill. 2d at 6. Summary judgment is appropriate if the pleadings, depositions, and admissions on file, togetherwith affidavits, present no genuine issue of material fact and show the moving party is entitled tojudgment as a matter of law. Wallace v. Metropolitan Pier & Exposition Authority, 302 Ill. App.3d 573, 576 (1998). Motions for summary judgment are reviewed de novo. Wallace, 302 Ill.App. 3d at 576.

The duty of a municipality to maintain property is limited by section 3-102 of the TortImmunity Act. Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158 (1995). Under section 3-102(a), a municipality must "exercise ordinary care to maintain its property in a reasonably safecondition for the use *** of people whom the entity intended and permitted to use the property." 745 ILCS 10/3-102(a) (West 1998). The duty extends only to uses that are both permitted andintended. Vaughn, 166 Ill. 2d at 160. The duty of care is determined by the municipality'sintended use of a property, not the intent of the user. Wojdyla v. City of Park Ridge, 148 Ill. 2d417, 425-26 (1992). To hold otherwise would negate section 3-102(a), as the use intended by themunicipality would not control. Wojdyla, 148 Ill. 2d at 425. The intended use of the propertymay be determined by looking to the nature of the property. Wojdyla, 148 Ill. 2d at 426.

The issue whether bicyclists are intended or permitted users of Illinois streets wasexamined by the Illinois Supreme Court in Boub v. Township of Wayne, 183 Ill. 2d 520 (1998). In Boub, the plaintiff was cycling across a bridge when the front tire of his bicycle became stuckbetween two wooden planks of the bridge. The plaintiff was thrown from the bicycle andinjured. The plaintiff and amici argued on several grounds that the plaintiff was an intended userof the road and bridge where his accident occurred.

First, the plaintiff cited section 11-1502 of the Illinois Vehicle Code, which provides thatbicyclists riding on streets possess all the rights and are subject to all the duties applicable tovehicle drivers. 625 ILCS 5/11-1502 (West 1998). According to the plaintiff, this sectionsupports the conclusion that bicyclists are, like vehicle drivers, intended and permitted users ofIllinois streets. The supreme court found such a conclusion unsupported by section 11-1502 andfound instead that the provision was designed to ensure that bicyclists obey traffic laws, for theirown safety and for the safety of others. Boub, 183 Ill. 2d at 529-30.

Next, amici argued that because bicyclists' use of the roads is both customary andtraditional, it must also be both permitted and intended. The supreme court found that historicalpractice alone is insufficient to establish whether a particular use of public property is anintended one. Boub, 183 Ill. 2d at 531. Third, amici observed that the portion of the road wherethe accident happened was designated "a through street generally suitable for bicycling" by theDuPage County board. Boub, 183 Ill. 2d at 532. The supreme court found that suchdesignation was consistent with the conclusion that bicyclists were not intended but merelypermitted users of the road. Boub, 183 Ill. 2d at 532.

Fourth, the plaintiff argued that to hold that bicyclists are permitted but not intended usersof streets is inconsistent with the holding in Molway v. City of Chicago, 239 Ill. 486 (1909). Thesupreme court concluded that because Molway was decided more than 50 years before the TortImmunity Act was enacted, Molway was not controlling. Boub, 183 Ill. 2d at 533-34. Fifth, theplaintiff argued that to hold that bicyclists are permitted but not intended users of Illinois streetsconflicts with the holdings of Filipetto v. Village of Wilmette, 254 Ill. App. 3d 461 (1993), andBauer v. H.H. Hall Construction Co., 140 Ill. App. 3d 1025 (1986). The supreme court foundthat neither of these cases discussed the plaintiff bicyclist's status as an intended and permitteduser, and therefore neither case was persuasive. Boub, 183 Ill. 2d at 534.

Finally, amici invoked several policy considerations in favor of imposing liability on thedefendant. The supreme court stated that the questions of policy raised by amici are betterresolved by the legislative branch of government than by the judicial branch. Boub, 183 Ill. 2d at535.

Citing Wojdyla, Vaughn v. City of West Frankfurt, 166 Ill. 2d 155 (1995), and Sisk v.Williamson County, 167 Ill. 2d 343 (1995), the Boub court looked to the nature of the property todetermine whether the plaintiff was an intended and permitted user of the road and bridge wherehe was injured. The court reasoned that the intent of the defendant, Wayne Township, could bedetermined from "pavement markings, signs, and other physical manifestations of the intendeduse of the property." Boub, 183 Ill. 2d at 528. The court found that there were no signs ormarkings to indicate that bicyclists, like motorists, were intended to ride on the road or bridge. Therefore, the court held that the plaintiff was not an intended user and was not entitled torecover damages under the Tort Immunity Act. Boub, 183 Ill. 2d at 535-36.

To clarify its holding, the supreme court in Boub distinguished the facts before it fromthose of Cole v. City of East Peoria, 201 Ill. App. 3d 756 (eff. January 1, 1997). There, theplaintiff, a bicyclist, was injured when his tire became stuck in a sewer grate. The appellate courtconcluded that special pavement markings showed that the defendant municipality intended andpermitted bicyclists to travel where the accident happened. Therefore, the municipality wasliable for the plaintiff's injuries. The distinction between Boub and Cole was the presence orabsence of special markings or signs to show the municipality's intent with regard to bicyclists'use of the property. Boub, 183 Ill. 2d at 528.

Here, as in Boub, the street where plaintiff was injured was not marked or signed toreveal an intent on the part of the city that plaintiff ride her bicycle there. But plaintiff arguesthat the absence of pavement markings or signs where the accident happened does not dispose ofher claim. She argues that certain parts of the Chicago Municipal Code (the Code) show thatdefendant intended bicyclists to use city streets. Although Boub discussed the Illinois VehicleCode (625 ILCS 5/1 et seq. (West 1998)), the court recognized that under the Tort Immunity Act,the intent of the local public entity controls. Boub, 183 Ill. 2d at 529.

Plaintiff's first argument under the Code is based upon the definitions of "street" and"traffic." Under the Code, a "street" is defined as "the entire width between boundary lines ofevery way publicly maintained when any part thereof is open to the use of the public for purposesof general traffic circulation." Chicago Municipal Code