text:
    The PEOPLE of the State of Illinois, Appellee, v. Fernando CASAS, Jr., Appellant.
    Docket No. 120797
    Supreme Court of Illinois.
    Opinion filed December 5, 2017
    Mark H. Kusatzky and Julie M. Campbell, both of Northfield, for appellant.
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Eldad Z. Malamuth, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE FREEMAN delivered the judgment of the court, with opinion.

¶ 1 Following the indictment and subsequent superseding information against defendant, Fernando Casas, Jr., for violation of bail bond, the circuit court of Du Page County dismissed the information for failure to comply with the statute of limitations, and the State appealed. The appellate court reversed, holding that the information was timely and that violation of bail bond was a continuing offense pursuant to section 3-8 of the Criminal Code of 2012 ( 720 ILCS 5/3-8 (West 2014) ). 2016 IL App (2d) 150456, 406 Ill.Dec. 7, 59 N.E.3d 785. This court allowed defendant's petition for leave to appeal ( Ill. S. Ct. R. 315 (eff. Jan. 1, 2015)). For the following reasons, we now reverse the judgment of the appellate court and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 In 1996, defendant was indicted by the statewide grand jury for the manufacture or delivery of cocaine in excess of 900 grams, a Class X felony. On October 16, 1996, the circuit court of Du Page County admitted defendant to bail in the amount of $750,000; he posted a 10% cash bond of $75,000. Thereafter, defendant regularly appeared in court as required for his case.

¶ 4 On June 9, 1998, however, defendant failed to appear in court, and his bond was forfeited. During the next 30 days, defendant did not surrender himself to authorities, and a bench warrant was issued for his arrest. Also, a judgment was entered in the amount of bail against defendant and for the State. Within the next six months, defendant was tried in absentia , found guilty of the Class X felony, and sentenced to 20 years' imprisonment.

¶ 5 On April 5, 2014, approximately 18 years after defendant was first indicted, the police stopped defendant for a traffic offense in Du Page County. During that stop, defendant gave the police false identification . In subsequent conversations with the police, defendant revealed his true identity and admitted he had used false identities, including one he purchased in Mexico, to avoid apprehension. Subsequently, defendant began serving his 20-year sentence for manufacture or delivery of cocaine.

¶ 6 Based on these facts, defendant was indicted in December 2014 for the violation of his 1996 bail bond. The State's indictment alleged that defendant forfeited his bond by failing to appear in court on June 9, 1998, and by knowingly failing to surrender himself within 30 days of that date. The offense was charged as a Class 1 felony because defendant's underlying cocaine charge was a Class X felony.

¶ 7 Defendant moved to dismiss the indictment, arguing that prosecution for violation of his bail bond was time-barred. More specifically, defendant claimed that, under the general statute of limitations for felonies, the State had three years, or until July 9, 2001, to bring the bail-bond charge against him. Defendant noted that more than three years had passed, and he asserted that the State did not allege any facts in the charging instrument that would toll or extend the three-year limitations period.

¶ 8 In response, the State filed a superseding information, which alleged as follows:

"[O]n or about July 9, 1998, and continuing through and until April 5, 2014, [defendant] committed the offense of VIOLATION OF BAIL BOND, a Class 1 felony, in that * * * defendant, after having been admitted to bail on or about October 16, 1996, for appearance in the Circuit Court of Du Page County * * * in case 96 CF 1920, and on or about June 9, 1998, he incurred a forfeiture of his bail and thereafter knowingly, willfully, and unlawfully failed to surrender himself within 30 days following the date of the forfeiture of the bail, in violation of Chapter 720, Section 5/32-10(a) of the Illinois Compiled Statutes ; and because Violation of Bail Bond should be considered a continuing offense, the statute of limitations did not start running until April 5, 2014, when defendant was apprehended and admitted that he used false identity to evade prosecution."

¶ 9 In a footnote, the State asserted that "[t]his Court is bound by People v. Grogan , 197 Ill.App. 3d 18, 143 Ill.Dec. 730, 554 N.E.2d 665 (1st Dist.1990), which held that violation of a bail bond is not a continuing offense." (Emphasis in original.) The State then noted that it, with the superseding information, was "mak[ing] a good[-]faith argument that Grogan was improperly decided and should be overruled."

¶ 10 The circuit court granted defendant's motion to dismiss, finding that, pursuant to Grogan , the State's prosecution of defendant for violation of bail bond was time-barred. The State appealed.

¶ 11 On appeal, the State argued that violation of bail bond is a continuing offense and that Grogan was wrongly decided. The appellate court agreed. 2016 IL App (2d) 150456, ¶ 9, 406 Ill.Dec. 7, 59 N.E.3d 785.

¶ 12 The appellate court observed that Grogan held "[t]he offense of violation of bail bond, unlike the offense of escape of a convicted felon, is * * * not the kind of offense that poses a continuing threat to society, nor can it * * * be defined as a series of related acts constituting a single [course] of conduct, such as conspiracy or embezzlement." (Internal quotation marks omitted.) Id. ¶ 15.

¶ 13 The appellate court determined that the Grogan court was wrong on both points and that it had misapprehended the nature of the offense. Id. ¶ 17. The court further "determin[ed] that the legislature intended that, like escape, violation of bail bond would be treated as a continuing offense. The nature of the offense is that the offender has secured bond and fled. Like escape, wherever else the bail-bond offender is, he is not where he is lawfully supposed to be; he has breached his lawful custody and obstructed justice." Id. ¶ 18.

¶ 14 The appellate court reversed the circuit court, holding that violation of bail bond is a continuing offense and that the superseding information filed within three years of defendant's 2014 arrest was timely. The appellate court explained that it could not overrule Grogan since it was a court of equal stature; however, it expressed its view that Grogan should no longer be followed. Id. ¶ 23. The court declined to address the State's alternative argument that the statute of limitations had not expired while defendant was a fugitive because he used a false identity and, thus, pursuant to section 3-7(a) of the Criminal Code of 2012, defendant was not usually and publicly resident within the State. 720 ILCS 5/3-7(a) (West 2014). Defendant appeals to this court.

¶ 15 II. ANALYSIS

¶ 16 Before this court, defendant assigns error to the appellate court's determination that the legislature intended violation of bail bond be treated as a continuing offense. Defendant contends, inter alia , that violation of bail bond is not a continuing offense and that the State charged him after the statute of limitations had expired. The State responds that violation of bail bond should be considered a continuing offense and, as such, the limitations period began to run once defendant was apprehended. According to the State, since defendant was charged with the bail-bond offense within three years from the date of his 2014 arrest, the information was timely. Here, we are asked to determine if the criminal charge for violation of bail bond is a continuing offense and, if so, whether the information against defendant was time-barred.

¶ 17 Review of a circuit court's dismissal of an information based on the violation of the statute of limitations involves a legal issue. Thus, our review is de novo . People v. Macon , 396 Ill.App. 3d 451, 454, 336 Ill.Dec. 634, 920 N.E.2d 1224 (2009) ; People v. Mann , 341 Ill.App. 3d 832, 836, 276 Ill.Dec. 530, 794 N.E.2d 425 (2003). Resolution of this issue also requires us to construe the relevant statutory language. Our review is de novo because the construction of a statute is a question of law. People v. Chenoweth , 2015 IL 116898, ¶ 20, 388 Ill.Dec. 920, 25 N.E.3d 612 ; People v. Gutman , 2011 IL 110338, ¶ 12, 355 Ill.Dec. 207, 959 N.E.2d 621.

¶ 18 The principles guiding our analysis are well established. The primary objective in construing a statute is to ascertain and give effect to the intent of the legislature. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. A court must view the statute as a whole, construing words and phrases in light of other relevant statutory provisions and not in isolation. Each word, clause, and sentence of a statute must be given a reasonable meaning, if possible, and should not be rendered superfluous. The court may consider the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another. Also, a court presumes that the General Assembly did not intend to create absurd, inconvenient, or unjust results. People v. Perez , 2014 IL 115927, ¶ 9, 385 Ill.Dec. 41, 18 N.E.3d 41 ; People v. Hunter , 2013 IL 114100, ¶ 13, 369 Ill.Dec. 549, 986 N.E.2d 1185. If possible, the court must not depart from the statute's plain language by reading into it exceptions, limitations, or conditions the legislature did not express. People v. McChriston , 2014 IL 115310, ¶¶ 22-23, 378 Ill.Dec. 430, 4 N.E.3d 29 ; People v. Ellis , 199 Ill. 2d 28, 39, 262 Ill.Dec. 383, 765 N.E.2d 991 (2002).

¶ 19 A statute of limitations represents a legislative assessment of the relative interests of the State and the defendant in administering and receiving justice. Chenoweth , 2015 IL 116898, ¶ 22, 388 Ill.Dec. 920, 25 N.E.3d 612 (citing United States v. Marion , 404 U.S. 307, 322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ). The establishment of limitations periods is properly left to the legislature based on its determination of what the public policy of this state should be with respect to specific crimes. Id. ; People v. Isaacs , 37 Ill.2d 205, 229, 226 N.E.2d 38 (1967) ; People v. Berg , 277 Ill.App. 3d 549, 552, 214 Ill.Dec. 296, 660 N.E.2d 1003 (1996). The purpose of providing limitations periods for offenses is to minimize the danger of punishment for conduct that occurred in the distant past, to encourage the State to be diligent in its investigation, and to provide the trier of fact with evidence that is fresh and not distorted or diluted by the passage of time. Macon , 396 Ill.App.3d at 456, 336 Ill.Dec. 634, 920 N.E.2d 1224 ; Berg , 277 Ill.App. 3d at 552-53, 214 Ill.Dec. 296, 660 N.E.2d 1003 (citing People v. Strait , 72 Ill.2d 503, 506, 21 Ill.Dec. 365, 381 N.E.2d 692 (1978) ).

¶ 20 The statute of limitations for a felony offense is set forth in section 3-5(b) of the Criminal Code of 1961 (Code), which provides that a prosecution for a felony must be commenced within three years after the commission of the offense. 720 ILCS 5/3-5(b) (West 1998); Chenoweth , 2015 IL 116898, ¶¶ 22-23, 388 Ill.Dec. 920, 25 N.E.3d 612.

¶ 21 In the case at bar, defendant contends that section 3-5(b) of the Code applies because violation of bail bond is a completed offense 30 days after the bond forfeiture. 720 ILCS 5/3-5(b) (West 1998). Defendant, relying on Grogan , further contends that violation of bail bond, unlike the offense of escape, is not a series of related acts constituting a single course of conduct. The State responds that violation of bail bond, analogous to the offense of escape, is a single course of conduct and that conduct continues beyond the initial commission of the offense, such that it is a continuing offense.

¶ 22 An offense is continuing if it is defined as such by the statutory language, or a court can find that the nature of the offense is such that the legislature must have intended that it be continuing. Toussie v. United States , 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970) ; see, e.g. , Rimer v. State , 351 P.3d 697, 706 (Nev. 2015). The continuing offense exception to the statute of limitations is codified in section 3-8 of the Code, which states in pertinent part: "When an offense is based on a series of acts performed at different times, the period of limitation prescribed by this Article starts at the time when the last such act is committed." 720 ILCS 5/3-8 (West 1998).

¶ 23 Illinois law holds that the continuing offense exception applies in certain instances, such as where the crime is escape from custody ( People v. Miller , 157 Ill.App.3d 43, 46, 109 Ill.Dec. 146, 509 N.E.2d 807 (1987) ), criminal contempt ( People v. Levinson , 75 Ill.App.3d 429, 435-36, 31 Ill.Dec. 307, 394 N.E.2d 509 (1979) ;

People ex rel. Chicago Bar Ass'n v. Barasch , 21 Ill.2d 407, 412, 173 N.E.2d 417 (1961)), recordkeeping ( People v. Griffiths , 67 Ill.App.3d 16, 20, 23 Ill.Dec. 734, 384 N.E.2d 528 (1978) ), embezzlement ( People v. Adams , 106 Ill.App. 2d 396, 405, 245 N.E.2d 904 (1969) ; People v. Barrett , 405 Ill. 188, 194, 90 N.E.2d 94 (1950) ), and conspiracy ( People v. Cooper , 239 Ill.App.3d 336, 357, 179 Ill.Dec. 873, 606 N.E.2d 705 (1992) ; People v. Konkowski , 378 Ill. 616, 621, 39 N.E.2d 13 (1941) ).

¶ 24 The plain language of the statute indicates that the offense of violation of bail bond is committed on the thirtieth day after forfeiture, at which time defendant has committed a felony. The statute sets forth the offense as follows:

"(a) Whoever, having been admitted to bail for appearance before any court of this State, incurs a forfeiture of the bail and willfully fails to surrender himself within 30 days following the date of such forfeiture, commits, if the bail was given in connection with a charge of [a] felony * * *, a felony of the next lower Class * * *.
* * *
(d) Nothing in this Section shall interfere with or prevent the exercise by any court of its power [of] punishment for contempt." 720 ILCS 5/32-10(a), (d) (West 1998).

The statute does not state whether it is a continuing offense. Thus, we look to the nature of the offense to determine whether the legislature intended it be continuing.

¶ 25 As with other crimes whose statutes do not state whether they are continuing, we have reasoned that they are continuing because they comprise a series of acts that constitute a single course of conduct, such as conspiracy and embezzlement. Barrett , 405 Ill. at 194, 90 N.E.2d 94 ; Konkowski , 378 Ill. at 621, 39 N.E.2d 13. In the case of escape from custody and criminal contempt, our courts have reasoned that they are continuing because they involve a single impulse and an ongoing course of conduct that causes a harm, which lasts as long as the course of conduct persists. Miller , 157 Ill.App.3d at 46, 109 Ill.Dec. 146, 509 N.E.2d 807 ; Levinson , 75 Ill.App.3d at 436, 31 Ill.Dec. 307, 394 N.E.2d 509.

¶ 26 We find the United States Supreme Court opinion in Bailey instructive. In Bailey , several prisoners escaped federal custody. After apprehension, during trial, they requested a jury instruction on duress and necessity, claiming the conditions in the jail were deplorable. The court determined that, to be entitled to such an instruction, an escapee must offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. The Supreme Court found that escape encompasses not only the defendant's initial departure but his failure to return to custody. The court reasoned that an escaped prisoner poses a continuing threat to society and, thus, " 'the nature of the crime involved is such that Congress must assuredly have intended it be treated as a continuing one.' " United States v. Bailey , 444 U.S. 394, 413-14, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (quoting Toussie , 397 U.S. at 115, 90 S.Ct. 858 ).

¶ 27 Applying that reasoning, our appellate court in Miller determined that because an escaped prisoner poses a continuing threat to society it can be inferred from the nature of that crime that the Illinois legislature, like Congress, must have intended it to be a continuing offense. Miller , 157 Ill.App.3d at 46, 109 Ill.Dec. 146, 509 N.E.2d 807. The court explained that escape encompasses both the initial departure and the failure to return to custody. Id.

¶ 28 Here, we find that the analogous offense of violation of bail bond also encompasses the initial departure and failure to return to court when ordered to. Accordingly, the nature of the crime supports the conclusion that the offense of violation of bail bond is continuing.

¶ 29 Defendant contends that this case is controlled by Grogan , which is factually similar. In Grogan , the defendant was found guilty of violation of bail bond. Grogan , 197 Ill.App.3d at 20, 143 Ill.Dec. 730, 554 N.E.2d 665. He appealed, alleging ineffective assistance of counsel because his attorney did not file a motion to dismiss the indictment based on an expiration of the statute of limitations. The State had indicted the defendant five years after the bond forfeiture. To determine whether the attorney was ineffective, the court had to find the applicable statute of limitations for violation of bail bond. The Grogan court, looking to Toussie , distinguished a violation of bail bond from the offense of escape, finding that the offense of violation of bail bond, unlike the offense of escape of a convicted felon, is not the kind of offense that poses a continuing threat to society, nor can it be defined as a series of related acts constituting a single course of conduct such as conspiracy or embezzlement. Id. at 21-22, 143 Ill.Dec. 730, 554 N.E.2d 665. Defendant contends that under Grogan , a violation of bail bond is a completed offense 30 days after the bond forfeiture. Defendant further refers to the applicable Illinois Pattern Jury Instruction, Criminal, No. 22.54 (3d ed. 1992), which explains that to sustain a conviction for violation of bail bond, the State must prove the following propositions: (1) that the defendant had been admitted to bail for appearance before a court in this State, (2) that the bail was forfeited, and (3) that the defendant willfully failed to surrender himself within 30 days following the forfeiture of the bail. Defendant contends that violation of bail bond is not a continuing offense because it is not a series of acts nor is it performed at different times.

¶ 30 Defendant's argument lacks merit. A condition of bail bond includes defendant's submission to "the orders and process of the court," pursuant to section 110-10(a)(2) of the Code of Criminal Procedure of 1963. 725 ILCS 5/110-10(a)(2) (West 1998). Also of significance is another condition of bail bond, which is to "[a]ppear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until discharged or final order of the court." 725 ILCS 5/110-10(a)(1) (West 1998). Thus, defendant's duty did not end on the thirtieth day following his scheduled court date but continued until discharge or final order in his case. These conditions of a bail-bond offense proscribe an act that is not static or an instantaneous occurrence temporally. Accordingly, we find that defendant had a continuing duty to appear before the court, further affirming our conclusion that violation of bail bond should be treated as a continuing offense.

¶ 31 As the United States Court of Appeals for the Second Circuit explained in United States v. Lopez , 961 F.2d 1058, 1059-60 (2d Cir. 1992), when considering the analogous crime of failure to appear for sentencing:

"The explicit language of the failure to appear statute does not indicate whether it is a continuing offense. However, the nature of the crime involved supports the conclusion that the offense is continuing. The crime of failure to appear is designed to deter those who would obstruct law enforcement by failing knowingly to appear for trial or other judicial appearances and to punish those who indeed fail to appear." (Internal quotation marks omitted.)

Further, in United States v. Gray , 876 F.2d 1411, 1419 (9th Cir. 1989), the court explained that failure to appear is a continuing offense because no separate crime exists for failure to return for sentencing after having initially failed to appear for sentencing and, because the two actions pose the same danger to society and the legal system, both are part and parcel of one continuing offense.

¶ 32 Here, the appellate court noted that violation of bail bond, like escape, encompasses not only the initial violation but the continuing failure to return. The court noted that, as with escape, "there is no separate crime in Illinois for not turning oneself in after the violation of his bail bond, so as to distinguish between an initial and a continuing violation." (Emphasis in original.) 2016 IL App (2d) 150456, ¶ 18, 406 Ill.Dec. 7, 59 N.E.3d 785. Here, as in the analogous offense of escape, it is the nature of the crime of violation of bail bond that makes it a continuing offense.

¶ 33 Defendant next contends that there is no evidence that the legislature intended that a violation of bail bond be a continuing offense. Defendant argues that the legislature acquiesced to Grogan . According to defendant, despite amendments to the violation of bail-bond statute after Grogan , the legislature has never indicated that the offense should be considered a crime with an extended limitations period.

¶ 34 Defendant's contention is unpersuasive because of other legislative action pointing to the opposite conclusion. Indeed, the legislature has shown that it views violation of bail bond and escape as similar offenses and has enacted statutory procedures to deal with escapees and bail-bond violators. The legislature enacted trials in absentia to deal with both offenses. Section 115-4.1 of the Code of Criminal Procedure of 1963 allows a defendant who, after arrest and an initial court appearance, fails to appear for trial, to be tried in his absence. The statute makes clear that it is dealing specifically with defendants who either escape or violate their bail bond: "All procedural rights guaranteed by the United States Constitution, Constitution of the State of Illinois, statutes of the State of Illinois, and rules of court shall apply to the proceedings the same as if the defendant were present in court and had not either forfeited his bail or escaped from custody ." (Emphasis added.) 725 ILCS 5/115-4.1(a) (West 1998).

¶ 35 This court has repeatedly explained that section 115-4.1 is part of a larger statutory scheme, along with section 113-4(e) of the Code of Criminal Procedure of 1963, that provides how a court should proceed when a defendant willfully absents himself from trial. See People v. Eppinger , 2013 IL 114121, ¶ 23, 368 Ill.Dec. 529, 984 N.E.2d 475 (citing People v. Ramirez , 214 Ill. 2d 176, 183, 291 Ill.Dec. 656, 824 N.E.2d 232 (2005) ). Section 113-4(e) provides in pertinent part:

"If a defendant pleads not guilty, the court shall advise him at that time or at any later court date on which he is present that if he escapes from custody or is released on bond and fails to appear in court when required by the court that his failure to appear would constitute a waiver of his right to confront the witnesses against him and trial could proceed in his absence." (Emphasis added.) 725 ILCS 5/113-4(e) (West 1998).

Thus, the legislature has recognized that escape and violation of bail bond should be treated similarly and has enacted procedures applicable to these offenses.

¶ 36 Furthermore, as the appellate court stated: "Like escape, wherever else the bail-bond offender is, he is not where he is lawfully supposed to be; he has breached his lawful custody and obstructed justice. Such acts 'pose[ ] a threat to the integrity and authority of the court.' " 2016 IL App (2d) 150456, ¶ 18, 406 Ill.Dec. 7, 59 N.E.3d 785 (quoting Gray , 876 F.2d at 1419 ). Thus, with both escape and violation of bail bond, the person is not where the law requires him to be. Accordingly, violation of bail bond and escape are similar offenses, and they should be treated the same under the continuing offense exception.

¶ 37 Defendant argues that the offenses are not analogous and should not be treated similarly because, unlike an escapee, a violator of bail bond is not breaching lawful custody and therefore not every violator of bail bond creates a threat to the public or to the court. Defendant contends that an escape is defined as the intentional and unauthorized absence of a committed person from the custody of the Department of Corrections, whereas bail bond is the release from custody.

¶ 38 Although this may technically be true, this does not convince us that the offenses should be treated differently. We find that it is reasonable for a court to recognize that there is a threat to public safety by those who violate their bail bond. As the appellate court stated:

"To be sure, a defendant's release on bail does reflect the trial court's initial impression that the defendant does 'not pose a danger to any person or [to] the community' ( 725 ILCS 5/110-2 (West 2014) (listing conditions of bond)); however, it also reflects the court's assessment that the defendant will 'comply with all conditions of bond' (id. ). Once the defendant refutes this latter prediction, we see absolutely no reason why he should remain presumptively clothed in the former." 2016 IL App (2d) 150456, ¶ 16, 406 Ill.Dec. 7, 59 N.E.3d 785.

¶ 39 Moreover, even if the threat to public safety is less in the case of a bail-bond violator than an escapee, the threat to the authority and integrity of the court is the same. In United States v. Merino , 44 F.3d 749 (9th Cir. 1994), although the defendant was not yet a convicted felon, the court found that failure to appear is a continuing offense because of the " 'threat to the integrity and authority of the court' " posed by a recalcitrant defendant who refuses to abide by lawful court orders. Id. at 754 (quoting Gray , 876 F.2d at 1419 ). In United States v. Alcarez Camacho , 340 F.3d 794 (9th Cir. 2003), the Ninth Circuit explained that the threat to the court's integrity posed by a defendant who fails to appear for trial is the same as that of one who fails to appear for sentencing, even though only the latter has been convicted. The court stated:

"As in Gray and Merino , Camacho's failure to appear 'poses a threat to the integrity and authority of the court.' Gray , 876 F.2d at 1419. The reasoning in Gray therefore applies as strongly to a defendant whose failure to appear begins before his conviction as to a defendant who fails to appear only for sentencing." Id. at 797.

¶ 40 Furthermore, the legislature has implemented mandatory consecutive sentencing for felonies committed by defendants out on bond. See 730 ILCS 5/5-8-4(i) (West 1998) (recodified at 730 ILCS 5/5-8-4(d)(9) (West 2014)). This was done in recognition of " 'the threat posed by persons who commit crimes while on bond.' " 2016 IL App (2d) 150456, ¶ 16, 406 Ill.Dec. 7, 59 N.E.3d 785 (quoting People v. Dowthard , 197 Ill.App.3d 668, 671, 143 Ill.Dec. 881, 554 N.E.2d 816 (1990) ). Accordingly, we find that the threats posed both to the public and the court by violators of bail bond and escapees are sufficiently similar, such that the offenses should be treated the same under the continuing offense exception.

¶ 41 Finally, we acknowledge that other jurisdictions have taken different approaches as to whether their respective statutes relating to violation of bail bond are continuing offenses. We agree with the appellate court, which found that the better approach is the one taken by those jurisdictions that view it as a continuing offense (see Gray , 876 F.2d at 1419 ; State v. Francois , 577 N.W.2d 417 (Iowa 1998) ) and particularly by the Nevada Supreme Court in Woolsey v. State , 111 Nev. 1440, 906 P.2d 723, 726 (1995), which held:

"Bail is a privileged release from custody. To allow [the defendant] to avoid prosecution for [the bail-bond violation] simply because he eluded arrest long enough to surpass the three year statute of limitations is contrary to the purposes of [the violation-of-bail-bond statute] in particular and bail in general. Therefore, based on the fact that [the statute] is intended to punish those on bail who violate the conditions of their bail by failing to appear before the court when commanded, we conclude that [violation of a bail bond] is a continuing offense * * *." Id.

Similarly, federal courts have held that analogous offenses are continuing. See United States v. McIntosh , 702 F.3d 381, 387 (7th Cir. 2012) (failure to surrender for sentence); Alcarez Camacho , 340 F.3d at 796-97 (failure to appear for trial); United States v. Green , 305 F.3d 422, 432-33 (6th Cir. 2002) (failure to appear for sentencing); Lopez , 961 F.2d at 1059-60 (same); Gray , 876 F.2d at 1419 (same); United States v. Martinez , 890 F.2d 1088, 1091 (10th Cir. 1989) (failure to surrender).

¶ 42 Based on all of the above, we hold that violation of bail bond must be considered a continuing offense. Consequently, Grogan is hereby overruled.

¶ 43 Since we have found that violation of bail bond is a continuing offense, we must now determine whether the State's information against defendant was time-barred. The State contends that the nature of the crime is such that the statute of limitations did not start to run for defendant's violation of bail bond until he was apprehended and, therefore, the information was timely filed. As noted above, defendant's duty under the bond was to "[a]ppear to answer the charge in the court having jurisdiction on a day certain and thereafter as ordered by the court until discharged or final order of the court." 725 ILCS 5/110-10(a)(1) (West 1998). Within six months of the forfeiture judgment, there was a trial in absentia , a final order of guilt against defendant for the underlying charge, and a sentence imposed of 20 years' incarceration. See 725 ILCS 5/113-4(e) (West 1998); People v. Phillips , 242 Ill.2d 189, 196-97, 351 Ill.Dec. 298, 950 N.E.2d 1126 (2011). This court has held that a judgment of conviction and sentence following a trial in absentia is a final order. People v. Partee , 125 Ill.2d 24, 32, 125 Ill.Dec. 302, 530 N.E.2d 460 (1988). Thus, a final judgment had been entered on the underlying charge, and defendant was no longer under a continuing duty to appear in court. When a defendant escapes, the offense continues until the defendant is no longer at large. Miller , 157 Ill.App.3d at 46, 109 Ill.Dec. 146, 509 N.E.2d 807. When a defendant fails to appear for sentencing in federal court, the offense of failure to appear continues until the defendant appears for sentencing. Green , 305 F.3d at 433. In the case of a violation of bail bond, we determine that the crime would continue until the defendant no longer has an obligation to appear in court. Accordingly, once defendant was convicted and sentenced, his obligation to appear terminated and he was no longer violating his bail bond. The date that defendant's case became final is not in the record, but it would have been in either 1998 or 1999. Accordingly, the statute of limitations ran long ago for violation of bail bond.

¶ 44 We conclude that the circuit court did not err in finding the State's information for violation of bail bond was filed after the limitations period had expired. People v. Morris , 135 Ill.2d 540, 547-48, 143 Ill.Dec. 215, 554 N.E.2d 150 (1990) ; Strait , 72 Ill.2d at 505-06, 21 Ill.Dec. 365, 381 N.E.2d 692 (finding that an indictment or information is fatally defective when it is filed after the statute of limitations has expired); People v. Day , 404 Ill. 268, 270, 88 N.E.2d 727 (1949) (same); People v. Taylor , 391 Ill. 11, 14, 62 N.E.2d 683 (1945) (same).

¶ 45 Finally, before the appellate court, the State additionally contended that its reference to defendant's use of a false identification in the information qualified as an exception to the limitations period applicable when a criminal defendant "is not usually and publicly resident within this State." 720 ILCS 5/3-7(a) (West 2014). However, the appellate court did not address this issue because the court considered its decision on the limitations issue to be dispositive. 2016 IL App (2d) 150456, ¶ 9, 406 Ill.Dec. 7, 59 N.E.3d 785. Therefore, we remand the cause to the appellate court for disposition of the State's remaining contention. See People v. Givens , 237 Ill.2d 311, 339, 343 Ill.Dec. 146, 934 N.E.2d 470 (2010).

¶ 46 III. CONCLUSION

¶ 47 For the foregoing reasons, the judgment of the appellate court is reversed, and the cause is remanded to the appellate court to consider the State's additional contention.

¶ 48 Reversed and remanded.

Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

      Here, we have cited the version of the statute in effect at the time defendant first failed to appear. The statutes cited are unchanged in all respects relevant to this offense.


source: Caselaw Access Project

license: Public Domain

text:
    Isaac COHEN, Appellee, v. The CHICAGO PARK DISTRICT, Appellant.
    Docket No. 121800
    Supreme Court of Illinois.
    Opinion filed December 29, 2017 Rehearing denied March 26, 2018.
    George P. Smyrniotis, Heather L. Keil, Jacob Ballen, and Fabian Gauna, of Chicago, for appellant.
    Elliot R. Schiff, of Schiff Gorman, LLC, and Jill B. Lewis, of Marasa Lewis, Ltd., both of Chicago, for appellee.
    Peter C. Nozicka, of Trapp & Geller, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
   JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Isaac Cohen, was riding his bicycle on the Lakefront Trail, a shared-use path that runs along the shore of Lake Michigan in Chicago, when his front wheel got caught in a crack in the pavement and he fell. Plaintiff filed a one-count complaint against the defendant, the Chicago park district, alleging it had acted willfully and wantonly in failing to maintain the path and was therefore responsible for the injuries that resulted from his fall.

¶ 2 The circuit court of Cook County granted defendant's motion for summary judgment, concluding that defendant was immune from suit under section 3-107(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) ( 745 ILCS 10/3-107(a) (West 2012)). That provision grants absolute immunity to local public entities for injuries caused by a condition of a "road which provides access to fishing, hunting, or primitive camping, recreational, or scenic areas." Id. The circuit court also concluded, in the alternative, that even if section 3-107(a) did not apply to the Lakefront Trail, defendant was immune from suit under section 3-106 of the Act ( 745 ILCS 10/3-106 (West 2012) ). That provision immunizes local public entities for injuries occurring on recreational property, except when the local public entity engages in willful and wanton conduct proximately causing the injuries.

¶ 3 On appeal, the appellate court rejected both the conclusions reached by the circuit court and reversed the entry of summary judgment in favor of defendant. 2016 IL App (1st) 152889, 408 Ill.Dec. 700, 66 N.E.3d 492. We granted defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016).

¶ 4 Like the appellate court, we agree that section 3-107(a) of the Act is inapplicable in this case, although we reach this result for different reasons. However, we agree with the circuit court that defendant is immune from suit under section 3-106. Accordingly, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

¶ 5 Background

¶ 6 The following facts are taken from the pleadings, depositions, and other materials before the circuit court. On the morning of July 7, 2013, plaintiff was riding his bicycle in the right lane of the Lakefront Trail in Chicago, Illinois, heading south near the Shedd Aquarium. As he rode, he approached from behind a pedestrian who was walking in the same lane. Plaintiff slowed down, rang his bicycle bell, and began to pass on the pedestrian's left.

¶ 7 To pass the pedestrian, plaintiff moved his bicycle to the middle of the path. As he did so, the front tire of his bicycle became caught in a crack in the concrete. The crack was about three to four inches wide at its widest, was two to three inches deep, and ran in the direction of travel along the path for about three or four feet. After his wheel became caught, plaintiff fell to the ground and sustained injuries to his shoulder. He then got back on his bicycle and rode home.

¶ 8 Plaintiff did not notify defendant of his accident at the time it happened. The following week, plaintiff rode his bicycle along the same stretch of the path and noticed that the crack had been repaired.

¶ 9 The Lakefront Trail is what is known as a shared-use path (see Corbett v. County of Lake , 2017 IL 121536, ¶ 21), used by bicyclists, pedestrians, joggers and others. The path is either concrete or asphalt and runs for approximately 18.5l miles along the shore of Lake Michigan in Chicago. The path is in a developed area and is surrounded by numerous commercial and public attractions such as beaches, softball fields, museums, and harbors. Although emergency vehicles such as ambulances may use the path when necessary, public, motorized traffic is not permitted on the path.

¶ 10 Defendant owns and maintains the Lakefront Trail. Every spring the path is inspected in order to identify any defects in need of repair. After the annual inspection is completed, a list of repairs is compiled, and requests for bids to perform the repair work are sent to contractors under a "rapid response" procurement program. This program is an expedited procurement process for defendant, through which most repairs for the Lakefront Trail are conducted.

¶ 11 As early as May 2013, an employee of defendant, Robert Arlow, received a call from a user of the Lakefront Trail informing him about the crack at issue in this case. Arlow inspected the crack and concluded it needed to be repaired. However, Arlow did not take steps to immediately perform the repair through the use of in-house employees. He also did not barricade the path or otherwise mark the crack in the pavement with spray paint or similar material.

¶ 12 On June 10, 2013, defendant sent out its annual request for repair bids under the rapid response program. The crack was included in the scope of work for which bids were sought. On June 12, 2013, a repair contractor submitted a proposal to defendant for repairs to the path. On June 19, 2013, defendant told the contractor to proceed with the work. On July 10, 2013, the crack in the pavement was repaired.

¶ 13 Defendant moved for summary judgment alleging, in part, that it was afforded immunity from plaintiff's suit under sections 3-107(a) and 3-106 of the Act. The circuit court agreed and granted defendant's motion.

¶ 14 Plaintiff appealed, and the appellate court reversed. 2016 IL App (1st) 152889, 408 Ill.Dec. 700, 66 N.E.3d 492. The appellate court held that section 3-107(a)"was intended only to apply to roads providing access to primitive, undeveloped recreational areas" ( id. ¶ 40 ) and, thus, did not apply to the Lakefront Trail. The court also held that summary judgment for defendant was inappropriate under section 3-106 because it could not be said that defendant's conduct was not willful and wanton as a matter of law.

¶ 15 We granted defendant's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Mar. 15, 2016). We also allowed the Illinois Trial Lawyers Association to file an amicus curiae brief in support of plaintiff. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 16 Analysis

¶ 17 At issue in this appeal is the circuit court's order granting summary judgment in favor of defendant. Summary judgment is proper when the pleadings, depositions, affidavits, and other matters on file establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012). We review the circuit court's grant of summary judgment de novo . Bremer v. City of Rockford , 2016 IL 119889, ¶ 20, 412 Ill.Dec. 813, 76 N.E.3d 1271. We also review issues of statutory interpretation, which are questions of law, de novo . Moon v. Rhode , 2016 IL 119572, ¶ 22, 409 Ill.Dec. 8, 67 N.E.3d 220.

¶ 18 Section 3-107 (a)

¶ 19 The appellate court rejected the circuit court's conclusion that defendant is entitled to blanket immunity under section 3-107(a) of the Act. That provision states:

"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 or (3) a township or other road district highway." 745 ILCS 10/3-107(a) (West 2012)).

¶ 20 Much of the appellate court's analysis centered on the word "primitive" and whether that word modified each of the words that follow it. Ultimately, the appellate court concluded that it did and held that section 3-107(a)"applies only to access roads to primitive recreational and scenic areas and does not apply to the Lakefront Trail." 2016 IL App (1st) 152889, ¶ 43, 408 Ill.Dec. 700, 66 N.E.3d 492. In other words, the appellate court held that, even if the Lakefront Trail is considered an access road, it does not provide access to a "primitive" recreational or scenic area and, therefore, the blanket immunity of section 3-107(a) does not apply. Although we agree with the appellate court that section 3-107(a) is inapplicable in this case, we believe the court's focus on which words are modified by the term "primitive" was unnecessary.

¶ 21 Section 3-107(a) provides blanket immunity for certain roads. The statute does not, itself, define the word "road." However, other statutory provisions do. The Illinois Highway Code ( 605 ILCS 5/2-101 et seq. (West 2012)), for example, sets out a comprehensive list of definitions for terms such as "road," "street," and "highway." Under the Highway Code, roads and streets are types of highways-highway being the generic term for "any public way for vehicular travel which has been laid out in pursuance of any law of this State." 605 ILCS 5/2-202 (West 2012) ; see also 625 ILCS 5/1-126, 1-179, 1-201 (West 2012) (setting out similar definitions under the Illinois Vehicle Code). Vehicles, in turn, include motorized vehicles such as motorcycles, cars, and trucks. 625 ILCS 5/1-217 (West 2012). Thus, generally speaking, under the Highway Code, a "road" is a public way that permits travel by devices such as motorcycles, cars, and trucks.

¶ 22 Care must be taken when importing the definition of a term from one statute to another, since "the context in which a term is used obviously bears upon its intended meaning."

People ex rel. Illinois Department of Labor v. E.R.H. Enterprises, Inc. , 2013 IL 115106, ¶ 29, 378 Ill.Dec. 402, 4 N.E.3d 1. However, in this case, we believe it appropriate to do so. Section 3-107(a), which was enacted several years after the Highway Code, uses the same terminology found in the latter statute. Section 3-107(a) states, for example, that the blanket tort immunity for access roads does not apply to "a township or other road district highway." This terminology mirrors the language found in the definitional provisions of the Highway Code (see 605 ILCS 5/2-205, 2-206 (West 2012)) and suggests that the legislature intended for the Highway Code definitions to apply. Moreover, we can discern no reason, either from the context of the statutes or other sources, why the definition of the term "road" found in the Highway Code should not also apply in section 3-107(a). Thus, we conclude that a "road" under section 3-107(a) is a public way that permits travel by motorized vehicles such as motorcycles, cars, and trucks.

¶ 23 In this case, there is no dispute that the Lakefront Trail is not open to public, motorized traffic. Accordingly, the Lakefront Trail is not a "road" within the meaning of section 3-107(a). For this reason, defendant is not afforded blanket immunity for conditions of the Lakefront Trail under section 3-107(a).

¶ 24 Section 3-106

¶ 25 Defendant contends, in the alternative, that if it is not immune from plaintiff's suit under section 3-107(a) of the Act, it is immune under section 3-106. Section 3-106 provides:

"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury." 745 ILCS 10/3-106 (West 2012).

¶ 26 There is no dispute that the Lakefront Trail is recreational property within the meaning of section 3-106. Defendant maintains, however, that its conduct in repairing the crack cannot, as a matter of law, be deemed willful and wanton. Therefore, defendant contends, it is entitled to summary judgment on this ground.

¶ 27 Section 1-210 of the Act defines willful and wanton conduct as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210 (West 2010). Generally, whether a defendant's conduct is willful and wanton is a question for the jury. Murray v. Chicago Youth Center , 224 Ill.2d 213, 245, 309 Ill.Dec. 310, 864 N.E.2d 176 (2007). However, where, as here, discovery has been completed and "what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered." Fooden v. Board of Governors of State Colleges & Universities , 48 Ill.2d 580, 587, 272 N.E.2d 497 (1971).

¶ 28 The parties point to two cases, Lester v. Chicago Park District , 159 Ill.App. 3d 1054, 111 Ill.Dec. 826, 513 N.E.2d 72 (1987), and Palmer v. Chicago Park District , 277 Ill.App. 3d 282, 213 Ill.Dec. 889, 660 N.E.2d 146 (1995), to illustrate the nature of willful and wanton conduct in the context of park district action. In Lester , the plaintiff alleged that he was injured when the Chicago park district " 'insufficiently and without proper materials' " filled in ruts and holes in a softball field. Lester , 159 Ill.App. 3d at 1056, 111 Ill.Dec. 826, 513 N.E.2d 72. The appellate court affirmed the dismissal of the plaintiff's complaint, concluding as a matter of law that nothing in the plaintiff's allegations could amount to " 'utter indifference' or 'conscious disregard' " for the safety of park patrons. Id. at 1059, 111 Ill.Dec. 826, 513 N.E.2d 72. The court held that to equate the defendant's "actions in discovering the condition complained of and taking affirmative rehabilitative acts after such discovery in an attempt to remedy the problem with willful and wanton conduct would render that standard synonymous with ordinary negligence." Id.

¶ 29 In Palmer , the plaintiff alleged that he fractured his leg while trying to stop his daughter from running into the street when his foot caught in the loop of a metal fence that had fallen down at a Chicago park district play lot. Palmer , 277 Ill.App. 3d at 284-85, 213 Ill.Dec. 889, 660 N.E.2d 146. The plaintiff alleged that the wire fence, which was 30 feet long and 3 feet high, had been lying along the edge of the play lot for three months. Id. at 284, 213 Ill.Dec. 889, 660 N.E.2d 146. Plaintiff further alleged that the defendant knew or should have known about the fence yet took no corrective action. Id. at 285, 213 Ill.Dec. 889, 660 N.E.2d 146. The appellate court reversed the circuit court's dismissal of the plaintiff's complaint. In so holding, the appellate court stressed the obvious and extraordinary danger posed by a 30-foot-long, fallen metal fence and concluded that plaintiff had stated a cause of action for willful and wanton misconduct where he alleged the defendant took "no corrective action" whatsoever to repair the fence or to warn patrons about it. Id. at 288-89, 213 Ill.Dec. 889, 660 N.E.2d 146.

¶ 30 The parties before us disagree as to whether this case is more like Lester or Palmer . We think it is the former.

¶ 31 Cracks and potholes in paved surfaces are an unfortunate but unavoidable reality, particularly in climates such as Chicago's. The risk of injury from the crack at issue in this case, while real, was therefore nothing like the extraordinary and unusual risk posed by the 30-foot metal fence in Palmer . See, e.g. , In re Estate of Stewart , 2016 IL App (2d) 151117, ¶ 105, 406 Ill.Dec. 345, 60 N.E.3d 896 105 (noting that the "nature of the danger" must be taken into consideration when evaluating whether a defendant's conduct is willful and wanton). Moreover, there were no prior injuries involving the crack, which would have alerted defendant to any extraordinary risk or danger to the users of the path.

¶ 32 Further, unlike Palmer , it is undisputed that defendant in this case took corrective action. When defendant's employee Arlow was notified of the crack in the pavement, he inspected it and placed it on the repair list for defendant's rapid response program. In addition, there is no indication or allegation of unusual delay or foot-dragging on the part of defendant. Indeed, the defendant's request to contractors for bid proposals, the bidding process, and the repair of the crack were all completed within 30 days.

¶ 33 Plaintiff emphasizes that defendant could have done more. Plaintiff points out that, once notified of the crack in the pavement, defendant could have immediately barricaded the path or performed a temporary repair using in-house employees, rather than waiting for an outside contractor. While this may be true, we think it clear that to equate defendant's actions in this case "with willful and wanton conduct would render that standard synonymous with ordinary negligence."

Lester , 159 Ill.App. 3d at 1059, 111 Ill.Dec. 826, 513 N.E.2d 72.

¶ 34 On this record, we conclude that defendant was entitled to summary judgment on the question of willful and wanton conduct. Accordingly, we reverse the judgment of the appellate court and affirm the circuit court's entry of summary judgment in defendant's favor.

¶ 35 Conclusion

¶ 36 For the foregoing reasons, the judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.

¶ 37 Appellate court judgment reversed.

¶ 38 Circuit court judgment affirmed.

Chief Justice Karmeier and Justices Freeman, Thomas, Garman, and Theis concurred in the judgment and opinion.

Justice Kilbride dissented, with opinion.

Justice Kilbride also dissented upon denial of rehearing, with opinion.

¶ 39 JUSTICE KILBRIDE, dissenting:

¶ 40 I respectfully dissent from the majority's decision to reverse the appellate court's judgment and affirm the judgment of the circuit court. I agree with the majority that section 3-107(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Act) ( 745 ILCS 10/3-107(a) (West 2012)) does not afford the defendant park district absolute immunity. I disagree, however, with the majority's determination that the defendant park district was entitled to summary judgment on the issue of whether its actions were willful and wanton under section 3-106 of the Act ( 745 ILCS 10/3-106 (West 2012) ). I believe this issue of fact should be left to the jury. Accordingly, I would affirm the appellate court's judgment reversing the circuit court's entry of summary judgment in favor of the defendant park district.

¶ 41 Summary judgment is proper when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2012). "Summary judgment is a drastic measure and should only be granted if the movant's right to judgment is clear and free from doubt." Seymour v. Collins , 2015 IL 118432, ¶ 42, 396 Ill.Dec. 135, 39 N.E.3d 961. Summary judgment should be denied if a reasonable person could draw divergent inferences from undisputed facts. Pielet v. Pielet , 2012 IL 112064, ¶ 53, 365 Ill.Dec. 497, 978 N.E.2d 1000. On a motion for summary judgment, the record must be construed strictly against the movant and liberally in favor of the nonmoving party. Williams v. Manchester , 228 Ill.2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1 (2008). Summary judgment, therefore, is inappropriate when (1) there is a dispute as to a material fact, (2) persons could draw divergent inferences from undisputed facts, or (3) reasonable persons could differ on the weight to be given the relevant factors of a legal standard. Seymour , 2015 IL 118432, ¶ 42, 396 Ill.Dec. 135, 39 N.E.3d 961.

¶ 42 The Act defines "willful and wanton conduct" as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210 (West 2012). As the majority opinion correctly states, "[g]enerally, whether a defendant's conduct is willful and wanton is a question for the jury." Supra ¶ 27. Indeed, this court has long held that whether a plaintiff's injury was caused by a defendant's willful and wanton conduct is a question of fact to be determined by the jury. See Doe-3 v. McLean County Unit District No. 5 Board of Directors , 2012 IL 112479, ¶ 45, 362 Ill.Dec. 484, 973 N.E.2d 880; Murray v. Chicago Youth Center , 224 Ill.2d 213, 245, 309 Ill.Dec. 310, 864 N.E.2d 176 (2007) ; Cirrincione v. Johnson , 184 Ill.2d 109, 116, 234 Ill.Dec. 455, 703 N.E.2d 67 (1998) ; Calloway v. Kinkelaar , 168 Ill.2d 312, 326, 213 Ill.Dec. 675, 659 N.E.2d 1322 (1995) ; Doe v. Calumet City , 161 Ill.2d 374, 204 Ill.Dec. 274, 641 N.E.2d 498 (1994) ; Smith v. Hill , 12 Ill.2d 588, 595 (1958); Schneiderman v. Interstate Transit Lines , 394 Ill. 569, 583, 69 N.E.2d 293 (1946) ; Bernier v. Illinois Central R.R. Co. , 296 Ill. 464, 470, 129 N.E. 747 (1921) ; Illinois Central R.R. Co. v. Leiner , 202 Ill. 624, 629, 67 N.E. 398 (1903). Applying these principles to the summary judgment pleadings in this case establishes that a triable issue of material fact exists on whether the defendant park district's actions were willful and wanton.

¶ 43 Contrary to the majority opinion's findings, and as the appellate court correctly noted, the parties dispute the exact date the defendant park district learned of the crack but agree that it was no earlier than May 2013. 2016 IL App (1st) 152889, ¶ 54, 408 Ill.Dec. 700, 66 N.E.3d 492. The park district did not take action to repair the crack until July 10, 2013, or until approximately two months after learning of the crack. The appellate court noted that the evidence showed the defect was repaired through the rapid response program, used only for jobs that do not present safety concerns, when, in fact, the defect in this case was classified as an "emergency." 2016 IL App (1st) 152889, ¶ 55, 408 Ill.Dec. 700, 66 N.E.3d 492. The evidence further showed that the defendant park district had methods to expedite the repair process. Even though the defect was the sole 2013 Lakefront Trail repair to be classified as an "emergency," the defendant park district did not make any effort to barricade, mark, or otherwise warn patrons of the defect.

¶ 44 In light of this evidence, I would hold that the appellate court properly concluded it was inappropriate for the trial court to hold, as a matter of law, that the defendant park district's actions were not willful and wanton. The appellate court correctly determined that whether the defendant park district's actions amounted to willful and wanton conduct is a question of fact for the jury to consider. I would therefore affirm the appellate court judgment, reverse the trial court judgment, and remand the cause for further proceedings.

¶ 45 SEPARATE OPINION UPON DENIAL OF REHEARING

¶ 46 JUSTICE KILBRIDE, dissenting:

¶ 47 I would allow rehearing in this case. In my original dissent, I indicated my disagreement with the majority's determination that the defendant park district was entitled to summary judgment on the issue of whether its actions were willful and wanton under section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act ( 745 ILCS 10/3-106 (West 2012) ). I continue to believe that whether the defendant park district's actions amounted to willful and wanton conduct is a question of fact that should be left for the jury to consider. I believe the appellate court properly concluded it was inappropriate for the trial court to hold, as a matter of law, that the defendant park district's actions were not willful and wanton. I respectfully dissent from the court's denial of the petition for rehearing.

      Under Illinois law, a bicycle is not considered a vehicle (625 ILCS 5/1-217 (West 2012) ), but bicycle riders are given all the rights and are subject to all the duties applicable to the driver of a vehicle (625 ILCS 5/11-1502 (West 2012) ).