Berry v. City of Chicago

2019 IL App (1st) 180871

• Court: Appellate Court of Illinois
• Decided: May 23, 2019
• Docket: 1-18-0871
• Status: Unpublished

Opinion

2019 IL App (1st) 180871

FIRST DISTRICT SIXTH DIVISION May 22, 2019

No. 1-18-0871

GORDON BERRY and ILYA PEYSIN, ) Appeal from the ) Circuit Court of Plaintiffs-Appellants, ) Cook County. ) v. ) No. 16 CH 02292 ) THE CITY OF CHICAGO, ) Honorable ) Raymond W. Mitchell, Defendant-Appellee. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion. Justice Connors dissented, with opinion.

OPINION

¶1 Plaintiffs, Gordon Berry and Ilya Peysin, appeal the order of the circuit court dismissing

their class action complaint alleging negligence and inverse condemnation, which they filed after

the defendant City of Chicago (City) replaced the water main and/or water meter servicing their

homes. On appeal, plaintiffs contend the court erred in dismissing their complaint where (1) the

complaint sufficiently alleged a claim of negligence and plaintiffs properly sought medical

monitoring as relief, based on the City’s actions in replacing/repairing its lead pipe water service

and water meters, and (2) plaintiffs sufficiently alleged a claim of inverse condemnation where

the City’s actions caused the release of high levels of lead in their water supply over time,

resulting in damage to plaintiffs’ property. For the following reasons, we reverse and remand for

further proceedings. No. 1-18-0871

¶2 JURISDICTION

¶3 The trial court dismissed plaintiffs’ complaint with prejudice on March 29, 2018.

Plaintiffs filed their notice of appeal on April 20, 2018. Accordingly, this court has jurisdiction

pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017),

governing appeals from final judgments entered below.

¶4 BACKGROUND

¶5 The following facts are alleged in plaintiffs’ complaint.

¶6 Lead is a well-documented environmental contaminant “that is highly poisonous to

humans” and “bioaccumulates in the body over time.” Exposure to lead harms the nervous

system and can lead to various ailments, “including neuropathy, motor nerve dysfunction,

weakened immunity to disease, renal failure, gout, hypertension, muscle and joint pain, memory

and concentration problems, and infertility.” The effect of lead in the body is far more

problematic in children and is connected to stunted brain development, reduction in intelligence

quotient (IQ), intense aggression, and other behavior issues. Even low levels of lead exposure in

children “have been linked to damage to the central and peripheral nervous system, learning

disabilities, shorter stature, impaired hearing, and impaired formation and function of blood

cells.”

¶7 Since the human body does not remove lead from the system, it accumulates over time

and can remain for years in soft tissue, organs, bones, and teeth. Thus, the effect of lead on

children can be “ ‘long lasting’ ” if not “ ‘permanent.’ ” Moreover, the effects of lead may not

appear for years. Blood lead testing is a universally recognized and reliable method of testing

lead levels because results can be compared “to the published standard of 10 µg/dL, established

by the Center[s] for Disease Control” and Prevention (CDC).

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¶8 In 1986, an amendment to the Safe Drinking Water Act (42 U.S.C. § 300f et seq.),

imposed a ban on the use of lead pipes in public water systems. Safe Drinking Water Act

Amendments of 1986, Pub. L. No. 99-339, 100 Stat. 642. Up until this point, the City required

residents to install lead service lines “even in the face of all the public health warnings over the

past century.” As a result, “nearly 80 percent of the properties in Chicago receive their drinking

water via lead pipes.” Over time, lead pipes can corrode resulting in the “ ‘transfer of dissolved

or particulate lead into the drinking water.’ ” To minimize this risk, defendant treats its water

supply with “Blended Polyphosphate,” which causes a chemical reaction that coats “the interior

of water mains, house services, and plumbing in an attempt to prevent the pipes from corroding”

and leaching lead into the drinking water.

¶9 This treatment is not foolproof, however, and the protection can fail when “construction

or street work, water and sewer main replacement, meter installation or replacement, or

plumbing repairs” are performed. When the City replaces the water main or meter, the

“[d]rilling, digging, as well as moving or bending [of] the pipes can all cause the interior coating

to flake off and the polyphosphate protection to fail.” When the water is turned back on, “the

violent rush of water into the pipes disrupts the protective coating,” putting residents at further

risk of lead exposure. Unsafe lead levels can persist “for weeks or months after the disturbance.”

¶ 10 Also, in reconnecting the residential lead service lines to the water mains after

replacement or repair, the City performs a “partial” replacement in which it replaces a portion of

the lead service line with copper. When sections of a lead pipe are replaced with copper, a

galvanic cell (a battery) is created that can cause the release of lead into water as the pipes

corrode. Organizations such as the American Academy of Pediatrics and the CDC Advisory

Committee on Childhood Lead Poisoning Prevention have expressed concern about elevated

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water lead levels from partial lead service line replacements. This particular repair is discouraged

by the United States Environmental Protection Agency’s (EPA) science advisory board and the

American Water Works Association. But it is standard procedure in Chicago when crews

damage lead pipes during water main work. Cities such as Washington D.C. and Boston have

ceased their accelerated lead service line replacement programs due to these dangers.

¶ 11 Between 2005 and 2011, the EPA tested the water of homes connected to lead service

lines in Chicago to determine whether the Lead and Copper Rule (Rule), the existing federal

regulation for sampling water, sufficiently identified high lead levels in the water supply. The

Rule “seeks to manage lead levels in drinking water by setting a ‘lead action level.’ ” Currently,

“ ‘the lead action level is exceeded if the concentration of lead in more than 10 percent of tap

water samples collected during any monitoring period … is greater than 0.015 mg/L.’ ” Using

the Rule, the EPA found that “[o]f the 13 sites where there had been a recently documented

physical disturbance *** virtually all of them produced samples that exceeded the lead action

level under the Lead and Copper Rule,” which was “in stark contrast” to samples taken from

undisturbed sites. In October 2013, the commissioner of the Chicago Department of Water

Management wrote a letter to alderman about the concerns raised in the study. The City,

however, found that the water is “absolutely safe to drink.”

¶ 12 The City began modernizing its water system in 2008 and since 2009 has conducted more

than 1600 water main and sewer replacement projects. The American Water Works Association

recommends that “immediately following a lead service line replacement, cold water should be

run for at least 30 minutes at full flow after removing the faucet aerator” to flush out any lead

debris that may have resulted from the replacement. It instructs that residents should begin at the

lowest level of their homes and open the cold water taps fully, letting the water run for at least 30

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minutes. After the 30 minutes, “they should turn off each tap starting with the taps in the highest

level of the home.” The EPA also recommends that a household with lead service lines should

flush pipes for three to five minutes whenever the water has not been used for several hours.

Residents “should be warned that they should not consume tap water, open hot water faucets, or

use an icemaker or filtered water dispenser until after flushing is complete.”

¶ 13 Prior to 2013, the City informed residents after replacing water mains only that the water

may be shut off a couple of times. In September 2013, the City began to advise residents to, after

replacement of their old water main,

“please open all your water faucets and hose taps and flush your water for 3 to 5 minutes.

Sediment and metals can collect in the aerator screen located at the tip of your faucets.

These screens should be removed prior to flushing. This flushing will help maintain

optimum water quality by removing sediment, rust, or any lead particulates that may have

come loose from your property’s water service line as a result of the water main

replacement.”

¶ 14 Plaintiff Berry resides at 5411 S. Harper Avenue in Chicago. The City replaced the water

main on his block in 1998, and replaced the water meter at his home in 2009. In replacing the

water meter, the City disturbed the lead service lines running to his home, causing the interior

protective coating to be compromised. Violent flushing of the water when it was turned back on

caused more damage to the interior coating. The water meter was reconnected using galvanized

pipes that placed Berry and his family at further risk of lead contamination. In January 2016, a

routine check-up revealed that Berry’s two-year-old granddaughter, who resided with him, had

high lead levels in her blood.

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¶ 15 On February 11, 2016, the City tested the water at Berry’s residence, and results showed

that it contained 17.2 parts per billion (ppb) of lead. The EPA’s recommended lead action level is

15 ppb. On March 4, 2016, the City collected another 10 samples of drinking water from the

residence, and the tests revealed results reaching as high as 22.8 ppb. Berry was not informed of

these results until early May 2016, when an investigative reporter informed him that his

residence appeared on a list showing addresses where the water supply tested for significant lead

content. Berry’s water was tested again, and the 10 samples taken showed lead levels ranging

from 7.6 ppb to 30.8 ppb. Berry’s granddaughter and her parents have since moved out of his

home. Plumbers have confirmed that Berry’s service line is lead, and Berry received quotes to

replace the remaining portion of the lead service line that range from $14,000 to $19,000.

¶ 16 Plaintiff Peysin resides at 6529 N. Albany Avenue in Chicago, with his wife and

children. In April 2015, the City replaced 2536 feet of water main on North Albany Avenue,

which included the water main in front of Peysin’s home. The letter did not warn Peysin of the

potential for lead exposure as a result of the replacement but only advised that he “open all [his]

water faucets and hose taps and flush [his] water for 3 to 5 minutes” in order to remove

“sediment, rust, or any lead particulates that may have come loose from your property’s water

service line.”

¶ 17 Peysin’s water was tested on October 28, 2016, and the results showed that after five

minutes of flushing, the lead level registered at 5.8 ppb, which was deemed “Significant.” The

report indicated that lead may be leaching into the tap water from the service line, and a plumber

confirmed that Peysin’s service line is lead. The report further advised Peysin that, although

running water for a minute or more before using can help reduce lead exposure, it “will not

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work” in his case because the lead level in his water was “Significant” or “Serious” after

prolonged flushing.

¶ 18 The initial class action complaint against the City was filed on February 18, 2016,

alleging one count of negligence and one count of inverse condemnation. The City filed a motion

to dismiss, which the trial court granted without prejudice because plaintiffs had not adequately

pled exposure absent documentary evidence. Plaintiffs thereafter tested their water and filed an

amended complaint on January 9, 2017.

¶ 19 Count I of plaintiffs’ amended complaint alleged that the City owed them “a duty to

exercise reasonable care in providing safe drinking water, free from dangerous contaminants

such as lead that would expose them to the unnecessary health risks documented herein.”

Defendants failed to exercise such care when “it did not take any measures to warn or protect

Plaintiffs and Class members from lead exposure and, instead, *** misrepresent[ed] the safety of

the water.” As a result, “[d]efendant’s negligence proximately caused Plaintiffs’ and the Class

members’ damages and their increased risk of harm as documented herein.” As relief, plaintiffs

sought the establishment of a trust fund to pay for medical monitoring and the notification of all

class members in writing that medical monitoring may be necessary to diagnose lead poisoning.

¶ 20 Count II alleged that, in conducting water main and water meter replacements, the City

“irreversibly damage[d] the service lines of Plaintiffs and the class by making them more

dangerous.” The City’s use of copper to reconnect the lead service lines owned by the plaintiffs

further caused the release of lead into the drinking water because it causes the lead pipe to

corrode “more aggressively than it would under normal circumstances.” As a result, “Plaintiffs’

property is damaged insofar as it is more dangerous than before.” Plaintiffs sought

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“compensation for the damage to their lead service lines caused by the City’s work” in the

amount “necessary to fully replace their lead service lines with copper piping.”

¶ 21 The City filed a motion to dismiss the amended complaint, arguing that plaintiffs have

not alleged physical injuries or shown damage to their water service lines. The City also argued

that the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity

Act) (745 ILCS 10/2-201 (West 2016)) barred plaintiffs’ claims against the City. Attached to its

motion was the affidavit of Andrea R.H. Putz, the water quality manager of the City’s

department of water management. In the affidavit, Putz stated that the City replaced the 54th

Street water main in 1998, which connects to the Harper main servicing Berry’s home. The

Harper water main has not been replaced. Berry’s water meter was replaced in 2005. The

affidavit disputed plaintiffs’ allegations that the elevated levels of lead found in Berry’s water

resulted from the City’s disturbance of the water main or lead service lines servicing his home

but stated instead that it came from the lead pipes located in his basement.

¶ 22 After a hearing, the trial court dismissed both counts of plaintiffs’ amended complaint

pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West

2016)). As to count I, the court determined that “[n]o Illinois authority has permitted [a claim for

medical monitoring] absent an allegation of a present injury.” Since plaintiffs “readily concede

that they lack a present injury,” the court found their claim for medical monitoring to be “based

solely on a potential risk for future harm,” which is not recoverable under Jensen v. Bayer AG,

371 Ill. App. 3d 682 (2007). The trial court dismissed count II, plaintiffs’ inverse condemnation

claim, based on its finding that such a claim requires an allegation of special damage to property

in excess of that sustained by the public generally. The court found that the damages alleged by

plaintiffs resulting from the City’s work on the water pipes and meters was “borne equally by all

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residents of the City of Chicago attendant to *** the replacement of lead water mains.” Plaintiffs

filed their timely appeal.

¶ 23 ANALYSIS

¶ 24 The trial court dismissed plaintiffs’ complaint pursuant to section 2-615 of the Code. A

section 2-615 motion to dismiss challenges only the legal sufficiency of the complaint based on

defects apparent on the face of the complaint. DeHart v. DeHart, 2013 IL 114137, ¶ 18. “The

critical inquiry in deciding a section 2-615 motion to dismiss is whether the allegations of the

complaint, when considered in a light most favorable to the plaintiff, are sufficient to state a

cause of action upon which relief can be granted.” Gonzalzles v. American Express Credit Corp.,

315 Ill. App. 3d 199, 206 (2000). In making this determination, courts must accept as true all

well-pleaded facts and reasonable inferences that can be drawn from those facts. DeHart, 2013

IL 114137, ¶ 18. A plaintiff need not prove his case at this pleading stage but must only allege

sufficient facts to state the elements necessary to his cause of action. Visvardis v. Eric P.

Ferleger P.C., 375 Ill. App. 3d 719, 724 (2007). We review an order granting a section 2-615

motion to dismiss de novo. DeHart, 2013 IL 114137, ¶ 18.

¶ 25 I. Count I—Negligence

¶ 26 “In a negligence action, the plaintiff must plead and prove the existence of a duty owed

by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the

breach.” Bruns v. City of Centralia, 2014 IL 116998, ¶ 12. The City argues that we should affirm

the dismissal of plaintiffs’ negligence count because they conceded that they suffered no present

injury. However, according to the record plaintiffs conceded only a lack of “present physical

injury,” not that no injury occurred at all. After the supposed confession, plaintiffs’ counsel

responded that in Lewis v. Lead Industries Ass’n, 342 Ill. App. 3d 95 (2003), they “made it very

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clear that there wasn’t a present physical injury as well.” Counsel further states, “What is the

injury? The truth is that the city has created an environment in which all of these residents now

must get tested to determine the extent of their potential physical injury.”

¶ 27 As courts have recognized, the Restatement (Second) of Torts broadly defines an injury

“as an invasion of a person’s interest, even if there is no immediate harm or that harm is

speculative.” White v. Touche Ross & Co., 163 Ill. App. 3d 94, 101 (1987) (citing Restatement

(Second) of Torts § 7, Comment a (1965)). Accepting plaintiffs’ allegations as true, the City’s

negligent conduct in replacing water mains and water meters servicing plaintiffs’ homes caused a

high level of a dangerous contaminant, lead, to leach into their water. We can reasonably infer

from these allegations that plaintiffs and their families drank the contaminated water serviced to

their homes, thus exposing their bodies, and the organs, tissues, and bones therein, to lead.

Plaintiffs set forth in their complaint that the human body does not transform lead in the system

and therefore lead bioaccumulates and can remain in the tissues and bones for many years before

a person develops an illness. Exposure to lead harms the nervous system and can lead to various

ailments and behavior issues in children. Even low levels of lead exposure in children “have

been linked to damage to the central and peripheral nervous system, learning disabilities, shorter

stature, impaired hearing, and impaired formation and function of blood cells.” We find that

plaintiffs have sufficiently alleged a present injury in consuming lead-contaminated water, even

if they have yet to develop physical ailments linked to such consumption.

¶ 28 The City, however, points out that plaintiffs seek medical monitoring costs as damages

and argues that this relief is only available to plaintiffs who have demonstrated a present physical

injury. Otherwise, the City argues, plaintiffs are actually seeking damages only for an increased

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risk of future harm, which our supreme court disallowed in Dillon v. Evanston Hospital, 199 Ill.

2d 483 (2002), and Williams v. Manchester, 228 Ill. 2d 404 (2008).

¶ 29 In Dillon, the plaintiff brought a medical malpractice action alleging that the doctor

treating her for breast cancer inadvertently left in her chest a nine-centimeter fragment of the

catheter used to administer chemotherapy. Dillon, 199 Ill. 2d at 487. The plaintiff did not know

that the catheter was not removed in its entirety. Id. A routine X-ray taken more than two years

later revealed that the fragment had migrated to her heart with the tip embedded in the wall of the

right atrium or right ventricle. Id. at 487-88. Plaintiff decided, based on the opinions of doctors,

to leave the catheter fragment in her heart because it would be more dangerous to remove the

fragment than to leave it in place. Id. at 488. The case proceeded to trial, and the jury awarded

plaintiff $1.5 million for past pain and suffering, $1.5 million for future pain and suffering, and

$500,000 for the increased risk of future injuries. Id. at 488-89. The appellate court affirmed the

judgment. Id. at 489.

¶ 30 On appeal to the supreme court, the defendants argued that the trial court erred in

instructing the jury it could award damages based on the increased risk of future injuries where it

was not reasonably certain plaintiff would suffer those injuries in the future. Id. at 496-97. The

evidence at trial showed that plaintiff’s risk of future infection ranged between close to 0% up to

20%, her risk of arrhythmia was less than 5%, the risks of perforation and migration were small,

and the risk of embolization was low to nonexistent. Id. at 497.

¶ 31 The supreme court acknowledged that it “has historically rejected assessing damages for

future injuries.” Id. However, the court felt compelled to revisit the issue and noted “a trend

toward allowing compensation for increased risk of future injury as long as it can be shown to a

reasonable degree of certainty that the defendant’s wrongdoing created the increased risk.” Id. at

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500. The court found there is no element of speculation in awarding damages where the plaintiff

has competent evidence that the defendant negligently caused her to bear the burden of an

increased risk of future injury. Id. at 501. In this situation, “the treatment of an increased risk of

future injury as a present injury does not run afoul of the general rule.” Id. The court determined

that the trial court did not err in allowing the jury to award damages for an increased risk of

future injuries because “a plaintiff must be permitted to recover for all demonstrated injuries.”

(Emphasis in the original.) Id. at 504. In other words, where the plaintiff has shown a present

injury, she may obtain relief for an increased risk of future harm as an element of damages. See

id. at 503-04.

¶ 32 In Williams, the plaintiff was 10½ weeks pregnant with Baby Doe when she was involved

in a serious accident while riding as a passenger in an automobile. Williams, 228 Ill. 2d at 407.

She was taken to the hospital where an X-ray revealed she suffered a broken hip and broken

pelvis from the accident. Id. at 408. After discussing with doctors about the various treatments

for her and possible effects on the fetus, plaintiff decided to terminate her pregnancy

approximately one week after the accident. Id. at 412. Plaintiff subsequently filed a complaint

against the defendant in which one count sought damages for injuries to Baby Doe, “ ‘including

radiation and medication exposure’ ” due to plaintiff receiving a computerized axial tomography

(CAT) scan and pelvic X-rays while she was pregnant. Id. at 414. She attached an affidavit by a

doctor who opined that Baby Doe’s radiation exposure produced an increased risk of future

injury. Id. at 415.

¶ 33 The supreme court noted, however, that plaintiff’s experts “did not opine that Baby Doe’s

radiation exposure resulted in an actual, present injury, but rather that the fetus incurred an

increased risk of future harm.” Id. at 424-25. The court declined to expand Dillon so as to equate

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an increased risk of future harm with a present injury, especially where the plaintiff did not

present any evidence of damages because “there can be no legal injury without damages.” Id. at

425-26. The court did not find that Baby Doe’s exposure to X-rays or medication could not be a

present, actionable injury. Rather, the court determined that plaintiff’s proof of injury was

insufficient because the testimony showed only that Baby Doe incurred an increased risk of

future harm with no present damages. Id. at 427.

¶ 34 Dillon and Williams require only that plaintiffs establish a present injury in which they

suffer damages and express no requirement that plaintiffs’ injury be a present physical harm or

ailment in order to recover in tort. Viewing the complaint in the light most favorable to plaintiffs,

they sufficiently allege a present injury due to their consumption of water containing high levels

of lead. Furthermore, plaintiffs’ complaint alleges the need for medical testing due to plaintiffs’

consumption of lead-contaminated water. Their complaint states that blood lead testing is a

universally recognized and reliable method of testing lead levels because results can be

compared “to the published standard of 10µg/dL, established by” the CDC. As damages they

seek the costs of such testing and monitoring.

¶ 35 These damages clearly flow from plaintiffs’ injury and are not speculative, as they are

capable of proof within a reasonable degree of medical certainty. See Lewis, 342 Ill. App. 3d at

101. Where such testing is made necessary by defendant’s breach of duty, courts have found that

the testing itself is “a present injury compensable in a tort action.” Id. at 101-02; Friends for All

Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 826 (D.C. Cir. 1984). We find that

plaintiffs have sufficiently alleged facts to support their claims of injury and damages due to the

City’s negligence. We reiterate that our focus here is simply whether plaintiffs alleged sufficient

facts to state a cause of action, not whether they presented sufficient evidence to prevail on every

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element of their claims. Plaintiffs need not prove their case at this pleading stage. Visvardis, 375

Ill. App. 3d at 724.

¶ 36 Jensen, a case relied on by the City and the trial court below, does not require a different

result. In Jensen, the plaintiff was prescribed and took Baycol to lower his cholesterol after he

suffered a heart attack. Jensen, 371 Ill. App. 3d at 685. In August 2001, defendant, the

manufacturer of Baycol, issued a statement that it was removing Baycol from the market because

some users of Baycol and other statin drugs reported development of rhabdomyolysis as a

serious and potentially fatal side effect. Id. at 684. Plaintiff filed an action in which he claimed

that defendant’s product subjected him to unnecessary future health risks that require medical

monitoring. Id.

¶ 37 Plaintiff testified that he took Baycol from May 2000 to August 2001. He suffered from

pain in his calves and legs, and he concluded that the pain resulted from his taking Baycol. Id. at

685. The pain, however, did not cause plaintiff to miss work, nor did he know of any increased

risk to his future health from his prior use of Baycol. Id. Plaintiff testified that he has no reason

to believe that his future health is at risk from his consumption of Baycol. Id. The record

contained deposition testimonies of two medical professionals. Id. Each physician acknowledged

that all statin drugs carry the risk of rhabdomyolysis; however, the benefits of lowering

cholesterol “ ‘way outweigh the risks of a very, very rare event taking place.’ ” Id. at 685-86.

Plaintiff’s current physician stated that, although plaintiff had used Baycol in the past, he did not

find it necessary that plaintiff undergo any special testing or monitoring. Id. at 686. The trial

court granted defendant’s motion for summary judgment on the medical monitoring count,

finding no evidence that plaintiff needed future medical monitoring due to his past use of Baycol.

Id. at 687.

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¶ 38 This court affirmed the trial court’s determination, finding that plaintiff offered “nothing

in support of his medical monitoring claim other than his own allegation that Baycol caused him

leg cramps” while he was taking it. Id. at 692. Plaintiff alleged no present injury. The court

distinguished Lewis, finding that it did not address whether a plaintiff may bring a claim for

medical monitoring for potential future harm where he has shown no present injury. Id. at 693.

Jensen is distinguishable. Here, taking plaintiffs’ factual allegations as true, they have

sufficiently alleged a present injury necessitating medical monitoring. 1

¶ 39 The City also argues that the single recovery principle precludes plaintiffs’ claim for the

costs of medical monitoring because if “future injuries actually appeared, then there would be a

trial each time an injury occurred to determine causation and damages for that injury.” “The

single recovery principle requires that all damages, future as well as past, must be presented and

considered at the time of trial.” Dillon, 199 Ill. 2d at 502. Thus, “[a]n entire claim arising from a

single tort cannot be divided and be the subject of several actions, regardless of whether or not

the plaintiff has recovered all that he or she might have recovered.” Id. However, as plaintiffs

point out, the present complaint is the only one they have filed, and no other actions have been

filed. This court should not find plaintiffs’ allegations barred based on what might happen in the

future. Such a determination would be improperly speculative and premature at this time. Golden

Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 469 (2003).

¶ 40 Nor do we find persuasive the City’s argument that the Moorman doctrine applies to bar

plaintiffs’ claim. The doctrine, derived from Moorman Manufacturing Co. v. National Tank Co.,

1 The City also cites a Michigan case, Henry v. Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005), in support of its argument that medical monitoring is not a cognizable claim for plaintiffs’ injuries. We need not look to the law of other jurisdictions, however, when Illinois law is more than sufficient on the issue. K&K Iron Works, Inc. v. Marc Realty, LLC, 2014 IL App (1st) 133688, ¶ 47.

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91 Ill. 2d 69, 86 (1982), provides that the remedy for economic loss, or “loss relating to a

purchaser’s disappointed expectations due to deterioration, internal breakdown or nonaccidental

cause,” lies in contract rather than theories of tort. The City’s argument that the doctrine applies

presumes that plaintiffs’ claim for medical monitoring costs represents purely economic

damages. Plaintiffs’ alleged injuries and claimed damages, however, do not relate to

disappointed expectations based on contract law. Instead, their medical monitoring claims stem

from the harm they suffered because the City’s alleged misconduct caused high levels of lead to

leach into the water they consumed. Such claims are more in line with tort theory, and thus, we

find the Moorman doctrine inapplicable. See id.

¶ 41 The City next argues that we should affirm the dismissal of plaintiffs’ negligence claims

because they are barred by the Tort Immunity Act. 2 Such immunity is an “affirmative matter”

properly raised under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2016)).

Van Meter v. Darien Park District, 207 Ill. 2d 359, 377 (2003). A section 2-619 motion to

dismiss admits the legal sufficiency of plaintiffs’ complaint, but raises defects, defenses, or other

affirmative matters that defeat plaintiffs’ claims. Mack Industries, Ltd. v. Village of Dolton, 2015

IL App (1st) 133620, ¶ 19. The affirmative matter “must be apparent on the face of the

complaint” or “be supported by affidavits or certain other evidentiary materials.” Van Meter, 207

Ill. 2d at 377. The defendant bears the initial burden of establishing the affirmative defense.

Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997). In determining a section

2-619 motion to dismiss, courts “must interpret all pleadings and supporting documents in the

2 While the trial court did not dismiss plaintiffs’ complaint based on section 2-619 or consider the tort immunity issue in its order, the parties raised the issue before the trial court and in their briefs, and it is an issue of law. Therefore, this court may consider the issue on appeal. See Brugger v. Joseph Academy, Inc., 326 Ill. App. 3d 328, 330 (2001).

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light most favorable to the nonmoving party.” In re Chicago Flood Litigation, 176 Ill. 2d 179,

189 (1997). Our standard of review is de novo. Van Meter, 207 Ill. 2d at 368.

¶ 42 The City argues that section 2-201 of the Tort Immunity Act applies here. Section 2-201

provides:

“Except as otherwise provided by Statute, a public employee serving in a position

involving the determination of policy or the exercise of discretion is not liable for an

injury resulting from his act or omission in determining policy when acting in the

exercise of such discretion even though abused.” 745 ILCS 10/2-201 (West 2016).

Policy decisions made by a municipality “require the municipality to balance competing interests

and to make a judgment call as to what solution will best serve each of those interests.” West v.

Kirkham, 147 Ill. 2d 1, 11 (1992). On the other hand, discretionary acts are “those which are

unique to a particular public office.” Snyder v. Curran Township, 167 Ill. 2d 466, 474 (1995).

“Municipal defendants are required to establish both of these elements in order to invoke

immunity under section 2-201.” Van Meter, 207 Ill. 2d at 379. Municipal actions that involve

“ ‘merely the execution of a set task *** [such] that nothing remains for judgment or

discretion’ ” are considered ministerial and are not subject to immunity. In re Chicago Flood,

176 Ill. 2d at 193-94.

¶ 43 The City argues that it was determining policy when it decided to modernize the water

system and that deciding what precautions to advise residents to take was an exercise of

discretion. While the decision to replace lead water pipes may be viewed as a policy

determination, plaintiffs here do not challenge the City’s decision to modernize their water

system. Instead, plaintiffs take issue with how the City conducted the replacement project after

the decision was made to modernize and with how residents were advised to treat their water

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afterwards. It is not apparent from the face of plaintiffs’ complaint that the City’s advice was

unique to a particular public office or discretionary. In fact, plaintiffs’ complaint alleged

otherwise. Plaintiffs alleged that, according to the American Water Works Association,

“immediately following a lead service line replacement, cold water should be run for at least 30

minutes at full flow after removing the faucet aerator” to flush any lead debris that may have

resulted from the replacement. Their complaint also set forth the manner in which the flushing

should occur: residents should begin at the lowest level of their homes and open the cold water

taps fully, letting the water run for at least 30 minutes. After the 30 minutes, “they should turn

off each tap starting with the taps in the highest level of the home.” The EPA cautions that

residents “should be warned that they should not consume tap water, open hot water faucets, or

use an icemaker or filtered water dispenser until after flushing is complete.” Plaintiffs’

complaint, liberally construed, alleged that advising and warning residents in this situation is

akin to an “execution of a set task” where “nothing remains for judgment or discretion.”

¶ 44 This is in contrast to the complaint in In re Chicago Flood, a case cited by the City. In

that case, the City hired a dredging company to replace bridge piling clusters, and a tunnel wall

under the Chicago River was breached during pile driving. A number of downtown businesses

were flooded as a result of the breach, and in their complaint the plaintiffs alleged, among other

things, that the City failed to warn them about the danger of flood after learning of the breach. Id.

at 184-86. The supreme court found the City’s actions discretionary in nature, rather than

ministerial, because the plaintiffs “do not allege that there was any prescribed method for how to

repair the tunnel and how quickly, or how to warn class plaintiffs of the tunnel breach.” Id. at

196-97. Plaintiffs here, however, have set forth a prescribed method of advising residents to

flush, and how to flush, the water in their homes after lead pipe work.

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¶ 45 Furthermore, although the City submitted Putz’s affidavit in support of its motion to

dismiss, the affidavit does not state facts to support the City’s argument that its actions were

discretionary. Instead, her affidavit disputes plaintiffs’ factual allegations concerning the source

of the lead in plaintiff Berry’s water. Where the affirmative matter is merely evidence upon

which a defendant expects to challenge an ultimate fact stated in the complaint, it is insufficient

to support a section 2-619 motion to dismiss. In re Marriage of Vaughn, 403 Ill. App. 3d 830,

835-36 (2010). Since the City has not established both elements of section 2-201 immunity under

the Tort Immunity Act, dismissal of plaintiffs’ negligence claim pursuant to section 2-619 of the

Code would be error.

¶ 46 The City briefly argues that section 2-107 of the Tort Immunity Act and common-law

immunity also bar plaintiffs’ negligence claims. Section 2-107 provides that a “local public

entity is not liable for injury caused by any action of its employees that is libelous or slanderous

or for the provision of information either orally, in writing, by computer or any other electronic

transmission, or in a book or other form of library material.” 745 ILCS 10/2-107 (West 2016).

The City merely argues, without further analysis, that plaintiffs’ complaint seeks to impose

liability based on the City’s provision of information, which is barred by section 2-107. The City

also argues that absolute immunity applies to protect government officials from liability for

statements made within the scope of official duties. The City again merely concludes that count I

claims that City officials should have made statements about the water in plaintiffs’ homes and

“[s]uch officials are immune from liability for making or omitting such statements. Therefore,

the City is immune as well, under settled Illinois law.”

¶ 47 We find that the City has not met its burden to establish this affirmative defense.

“Because the Tort Immunity Act is in derogation of the common law, it must be strictly

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construed against the public entities involved.” Van Meter, 207 Ill. 2d at 380. At the very least,

questions of fact exist as to whether the City’s provision of information falls within the

protections of this section precluding dismissal under section 2-619. See id. Furthermore, the

cases cited in the City’s brief involve claims for defamation. See Dolatowski v. Life Printing &

Publishing Co., 197 Ill. App. 3d 23 (1990); Harris v. News-Sun, 269 Ill. App. 3d 648 (1995);

Morton v. Hartigan, 145 Ill. App. 3d 417 (1986). Plaintiffs’ complaint, however, makes no claim

for defamation. 3

¶ 48 II. Count II—Inverse Condemnation

¶ 49 Plaintiffs argue that the trial court improperly dismissed count II of their complaint,

pursuant to section 2-615 of the Code, where they sufficiently alleged a claim for inverse

condemnation. An inverse condemnation claim is a claim for the governmental taking of a

property interest without compensation, where no condemnation proceeding has been initiated.

City of Chicago v. ProLogis, 236 Ill. 2d 69, 76-77 (2010). As our supreme court found, “the

Illinois takings clause reaches beyond the scope of the federal takings clause” to provide a

remedy when government action damages private property. Hampton v. Metropolitan Water

Reclamation District, 2016 IL 119861, ¶ 27. This constitutional provision, however, “was not

intended to reach every possible injury that might be occasioned by a public improvement.”

Belmar Drive-In Theater Co. v. Illinois State Toll Highway Comm’n, 34 Ill. 2d 544, 550 (1966).

Rather,

3 The parties disagree whether the Tort Immunity Act applies to plaintiffs’ inverse condemnation claim. We need not decide that particular issue at this time because, even if it did apply, we find that the City has not established this affirmative defense as to plaintiffs’ inverse condemnation claim for the same reasons.

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“[p]roperty is considered damaged for purposes of the takings clause if there is ‘any

direct physical disturbance of a right, either public or private, which an owner enjoys in

connection with his property; a right which gives the property an additional value; a right

which is disturbed in a way that inflicts a special damage with respect to the property in

excess of that sustained by the public generally.’ ” Hampton, 2016 IL 119861, ¶ 27

(quoting Citizens Utilities Co. of Illinois v. Metropolitan Sanitary District of Greater

Chicago, 25 Ill. App. 3d 252, 256 (1974)).

¶ 50 In their complaint, plaintiffs allege that the City embarked on a project to replace water

mains and water meters throughout Chicago. In replacing the water mains and meters, however,

plaintiffs allege that the City disturbed the polyphosphate interior coating of nearby lead pipes,

causing its protection to be compromised. Furthermore, after replacing the water mains and

meters, the City reconnected the service lines to certain property owners by performing a partial

lead service line replacement, which can cause more lead to release into the water over time.

Plaintiffs allege that, as a result, property owners with lead service lines in areas where a water

main or meter was replaced have been, and continue to be, exposed to dangerous levels of lead in

their water.

¶ 51 Plaintiffs, as property owners, have the right to the use and enjoyment of their property

without interference. Cuneo v. City of Chicago, 379 Ill. 488, 493 (1942). They have the rightful

expectation that they will be able to use their properties to maintain a home. Hampton, 2016 IL

119861, ¶ 26. The dangerous contamination of water coming into plaintiffs’ residences, water

that is consumed and used by the residents, certainly interferes with the use and enjoyment of

their property. However, plaintiffs must also allege special damages in order to recover for “ ‘the

lawful damaging of private property for public use.’ ” Id. ¶ 27.

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¶ 52 The City argues that the number of potential plaintiffs could be large and thus plaintiffs’

damages cannot be characterized as special damages. The cases cited, however, do not support

this argument. In City of Chicago v. Union Building Ass’n, 102 Ill. 379, 391-92 (1882), the court

found that no “special or peculiar injury” to property resulted from the partial closure of La Salle

Street because “[p]recisely the same injury will result to every one, wherever located, having to

pass that route.” In Parker v. Catholic Bishop of Chicago, 146 Ill. 158, 168 (1893), the court

defined special injury or damage as “differing in kind from those affecting the general public.” It

found that the plaintiff, “having to go a few feet further to gain access” from an adjacent street,

suffered the “same kind” of damage as that sustained by “ ‘all other persons in the city that might

have occasion to go that way’ ” and affirmed the dismissal of the action. Id. 168-69. In

Department of Public Works & Buildings v. Horejs, 78 Ill. App. 2d 284, 291 (1966), property

owners claimed that a newly constructed expressway embankment obstructed their light, air, and

view. The complaining property owners, however, were “not abutting owners to the highway

embankment construction, nor was the embankment built on the road which fronts [their]

property; nor was the expressway constructed on or across any part of the property taken from

[them].” Id. at 292. The court determined that the alleged damages were suffered in “common to

all property owners in the area and the law provides them no basis for compensation.” Id.

¶ 53 These cases do not establish that damages suffered by numerous plaintiffs cannot be

“special damages.” Rather, they illustrate that the proper focus in determining special damages is

ascertaining the type of damage suffered by the property owner due to the City’s actions and

whether or not it is the same damage suffered by the general public. In their complaint, plaintiffs

here allege that the City’s replacement of water mains and meters disrupted the protective

coating of their lead service lines, causing harmful levels of lead to leach into their water. They

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allege that the City further damaged their property when it partially replaced lead service lines

when reconnecting water service to the newly replaced water mains. As a result, these lead

service lines have become “more dangerous” than lines that have not been partially replaced or

are not made of lead. We find that plaintiffs’ complaint sufficiently alleges they have incurred

excess damages beyond that experienced by the public generally.

¶ 54 The City also argues that plaintiffs’ inverse condemnation claim should be dismissed

because the public improvement work the City performed was “necessarily incident to property

ownership” and damages flowing from such actions are not afforded relief under the law.

Instead, “[s]uch injury is deemed to be damnum absque injuria” or “loss without injury in the

legal sense.” Belmar, 34 Ill. 2d at 550. In Belmar, the plaintiff owned an outdoor movie theater

adjacent to a toll-road service center, or oasis, built by the Illinois State Toll Highway

Commission. Id. at 546. Plaintiff filed a complaint alleging that the bright artificial lights

emanating from the oasis dispel the darkness on neighboring property, making the exhibition of

outdoor movies impossible. Id. The court found that plaintiff’s use of the property was a

sensitive one and the damages claimed, the bright lights, resulted only from the property’s

location next to the oasis. Id. at 550-51. While plaintiff did suffer damages, the court deemed

such injury “damnum absque injuria” because “the property owner is compensated for the injury

sustained by sharing the general benefits which inure to all from the public improvement.” Id.

¶ 55 Belmar is distinguishable. Plaintiffs here did not share in the general benefits of the

replaced water mains where such replacement, they alleged, actually made their water more

dangerous than that consumed by the general public. Nor do plaintiffs’ damages stem from a

sensitive use of their property, as was the case in Belmar. The City argues that accepting

plaintiffs’ theory here “would greatly expand the scope of inverse condemnation claims and

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obstruct needed public improvements.” We disagree. Our supreme court has limited recovery to

plaintiffs who plead and prove special damages “in excess of that sustained by the public

generally.” Rigney v. City of Chicago, 102 Ill. 64, 81 (1881). Such a limitation should reduce the

number of claims from property owners only incidentally affected by public improvements.

¶ 56 Since we find that plaintiffs have sufficiently pled their claims, dismissal pursuant to

section 2-615 of the Code was error.

¶ 57 For the foregoing reasons, the judgment of the circuit court is reversed and the cause

remanded for further proceedings.

¶ 58 Reversed and remanded.

¶ 59 JUSTICE CONNORS, dissenting:

¶ 60 Water is essential for life and should be safe to drink. Lead is a toxic chemical that

accumulates in one’s body over time and is highly poisonous to humans. There may be a complaint

that would state a claim to appropriately consider the levels of lead in Chicago’s water and the

cause thereof, but this is not that complaint. Although plaintiffs’ allegations paint a concerning

picture, they are insufficient to state a claim for either negligence or inverse condemnation under

current Illinois law, and contrary to the majority, I decline to misconstrue our supreme court’s

precedent in order to make the complaint viable. Therefore, I respectfully dissent and would affirm

the trial court’s decision to dismiss counts I and II.

¶ 61 A. Count I: Negligence

¶ 62 It is axiomatic that, “[t]o state a cause of action for negligence, a plaintiff must plead the

existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury

proximately caused by the breach, and damages.” Boyd v. Travelers Insurance Co., 166 Ill. 2d 188,

194-95 (1995). The primary issue in this case is whether plaintiffs have stated a cause of action for

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common-law negligence without alleging that they suffer from a present physical (or actual)

injury. In my opinion, they have not. I believe that based on our supreme court’s decision in

Williams v. Manchester, 228 Ill. 2d 404 (2008), the single recovery principle, the Moorman

doctrine, and general public policy considerations, the majority recognizes a claim that runs

contrary to Illinois law.

¶ 63 It is undisputed that plaintiffs do not suffer from any present physical injury and are

completely asymptomatic. Nonetheless, the majority finds they have stated a claim for negligence

because “plaintiffs have sufficiently alleged a present injury in consuming lead-contaminated

water, even if they have yet to develop physical ailments linked to such consumption.” Supra ¶ 27.

The majority’s holding is significant, not only because it is the first of its kind in Illinois and is

contrary to our supreme court’s decision in Williams, but also because plaintiffs have never made

the argument that mere exposure or consumption suffices as a present injury in order to bring a

negligence claim.

¶ 64 The majority reaches its holding by accepting as true plaintiffs’ allegations that

defendant’s negligent conduct caused a high level of lead to leach into their water. The majority

then makes the inference that “plaintiffs and their families drank the contaminated water serviced

to their homes, thus exposing their bodies, and the organs, tissues, and bones therein, to lead.” That

the majority finds it necessary to infer that plaintiffs’ bodies, organs, tissues, and bones were

exposed to lead is extremely telling. To me, it indicates that plaintiffs have not, in fact, alleged that

their injury is exposure to, or consumption of, lead in their water. If plaintiffs had alleged that, the

majority would not need to make such an inference. In the lower court and on appeal, plaintiffs

have instead consistently asserted that the cost of medical testing sufficed as a present injury and

relied on Lewis v. Lead Industries Ass’n, 342 Ill. App. 3d 95 (2003), as support. It is apparent from

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the briefing in the trial court and the parties’ appellate briefs that the crux of plaintiffs’ contentions

hinged on Lewis. Interestingly, however, the majority barely addresses Lewis and fails to provide

any insight as to the facts of that case or its holding. Similarly lacking is the majority’s analysis of

the single-recovery principle and the Moorman doctrine. I write separately to take a deeper look

into Williams, Lewis, the single-recovery principle, the Moorman doctrine, and other policy

considerations that I believe are necessary to the resolution of this appeal.

¶ 65 1. Dillon and Williams

¶ 66 The majority concludes that the mere consumption of, or exposure to, lead-contaminated

water suffices as a present injury, such that plaintiffs have stated a claim for negligence. I find this

conclusion problematic for various reasons, not least of which is that it is directly contrary to our

supreme court’s decision in Williams and that no court in Illinois has ever rendered such a holding.

¶ 67 In order to explain Williams, it is necessary to first mention our supreme court’s decision in

Dillon v. Evanston Hospital, 199 Ill. 2d 483 (2002). In Dillon, the court acknowledged that it had

“historically rejected assessing damages for future injuries” but was compelled to revisit that rule

based on “a trend toward allowing compensation for increased risk of future injury as long as it can

be shown to a reasonable degree of certainty that the defendant’s wrongdoing created the increased

risk.” Id. at 497-500. The court, quoting a Connecticut case, recognized that part of the basis for

this trend was that “ ‘[o]ur legal system provides no opportunity for a second look at a damage

award so that it may be revised with the benefit of hindsight.’ ” Id. at 501 (quoting Petriello v.

Kalman, 576 A.2d 474, 483 (Conn. 1990)). As a result, our supreme court adopted a new rule that

“better comports with this state’s principle of single recovery” (id. at 502), which provided

“simply that a plaintiff must be permitted to recover for all demonstrated injuries” and that “[t]he

burden is on the plaintiff to prove that the defendant’s negligence increased the plaintiff’s risk of

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future injuries” (emphasis in original) (id. at 504). Although not mentioned by the majority in this

case, the supreme court in Dillon explained its reasoning as follows:

“An entire claim arising from a single tort cannot be divided and be the subject of several

actions, regardless of whether or not the plaintiff has recovered all that he or she might

have recovered. This is true even to prospective damages. There cannot be successive

actions brought for a single tort as damages in the future are suffered, but the one action

must embrace prospective as well as accrued damages.” Id. at 502.

Our supreme court also explained that its previous decisions that did not recognize the increased

risk of future injury as a compensable injury were decided over 80 years ago, and that scientific

advances had made it easier for the medical community to more accurately determine the

probability of future injuries. Id. at 503. Therefore, the risk of undue speculation was lessened. Id.

¶ 68 Subsequently, our supreme court addressed a related issue in Williams. In Williams, the

plaintiff sought damages for the death of her unborn fetus, Baby Doe. Williams, 228 Ill. 2d at 407.

The plaintiff opted to terminate her pregnancy after an X-ray revealed she suffered a broken pelvis

in a car accident caused by the defendant’s negligence and was told that she would have to remain

bedridden and may not ever walk normally again if she stayed pregnant. Id. at 408. The trial court

granted summary judgment, a split panel of the appellate court reversed, and our supreme court

affirmed the trial court’s decision. Id. at 415, 427. Although our supreme court recognized that the

appellate court’s observation that, “ ‘[a]side from the additional element of the occurrence of

death, the elements of a wrongful death claim are identical to those of a common law negligence

claim’ ” (id. at 421-22) was correct, it reversed the appellate court’s decision, noting that the

appellate court had incorrectly identified the actionable injury in the plaintiff’s wrongful death

claim as Baby Doe’s death. Id. at 423. The court explained that, “a wrongful-death action is

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premised on the deceased’s potential, at the time of death, to bring an action for injury” and that “it

was ‘not until the death occurred could the court examine whether there was a viable wrongful

injury which would permit the case to proceed.’ ” Id. at 423-24. The court determined that Baby

Doe could not have maintained a claim for personal injury against the defendant because a doctor

testified that Baby Doe was not injured during the accident and the plaintiff admitted that she never

claimed Baby Doe was injured in the crash but rather was injured in the hospital following the

crash. Id. at 424. The court also found significant that, at oral argument, “[the] plaintiff expressly

conceded that, for purposes of summary judgment, the record did not contain sufficient evidence

that Baby Doe suffered a present, actionable injury as a result of the radiation exposure” and that

the doctors who testified “did not opine that Baby Doe’s radiation exposure resulted in an actual,

present injury, but rather that the fetus incurred an increased risk of future harm.” Id. at 424-25.

¶ 69 Next, the court addressed whether Baby Doe’s increased risk of future harm from radiation

exposure was a present injury for which the fetus could have brought an action for damages against

defendant. Id. at 425. The court rejected this premise for two reasons. First, the court stated, “as a

matter of law, an increased risk of future harm is an element of damages that can be recovered for

a present injury—it is not the injury itself.” (Emphases in original.) Id. The court compared the

case before it with Dillon and explained that in that case, the present injury was the catheter

embedded in the plaintiff’s heart. Id. Unlike the plaintiff in Dillon, Baby Doe had no such present

injury. Second, the court stated that, “even if we were to convert or expand Dillon so as to describe

an increased risk of future harm as a present injury, plaintiff, as a matter of fact, has not presented

any evidence that Baby Doe was injured as a result of the increased risk.” Id. at 426.

¶ 70 Here, the majority concludes, “Dillon and Williams require only that plaintiffs establish a

present injury in which they suffer damages and express no requirement that plaintiffs’ injury be a

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present physical harm or ailment in order to recover in tort.” Supra ¶ 34. I disagree with this

conclusion and believe the majority’s decision fails to follow the holding of Williams. “It is well

settled that this court is bound to follow the supreme court’s precedent, and ‘when our supreme

court has declared law on any point, only [the supreme court] can modify or overrule its previous

decisions, and all lower courts are bound to follow supreme court precedent until such precedent is

changed by the supreme court.’ ” Certain Underwriters at Lloyd’s, London v. Reproductive

Genetics Institute, 2018 IL App (1st) 170923, ¶ 19 (quoting Rosewood Care Center, Inc. v.

Caterpillar, Inc., 366 Ill. App. 3d 730, 734 (2006)).

¶ 71 Although perhaps not explicit, the supreme court’s analysis in Williams indicated that mere

exposure to a potentially harmful substance, i.e., radiation, is not an actionable present injury in a

wrongful death case. This can be said with certainty because the plaintiff in Williams was unable to

pursue a wrongful death claim on behalf of Baby Doe because the fetus had not suffered any

injury, even though Baby Doe had been exposed to radiation when the plaintiff was X-rayed. 4 If

mere exposure to a harmful or toxic substance, such as radiation or lead, was sufficient to establish

an actionable injury, then the court would have found the unborn fetus had suffered an injury, since

it was undisputed that the plaintiff underwent an X-ray while pregnant with the fetus. However, the

4 Further support for my reading of Williams is found in an unpublished federal case. Although unpublished federal decisions are not binding or precedential in Illinois courts, nothing prevents this court from using the same reasoning and logic as used in an unpublished federal decision. CitiMortgage, Inc. v. Parille, 2016 IL App (2d) 150286, ¶ 37. In Rowe v. Unicare Life & Health Insurance Co., No. 09 C 2286, 2010 WL 86391, at *6 (N.D. Ill. Jan. 5, 2010), the court held that, “[b]eyond simply establishing that the increased risk of future harm is not a present injury, the Williams decision also rules out the possibility that in this case the exposure of personal information might be the present injury providing the basis for recovery of damages for increased risk of future harm.” Rowe further explained, “[the plaintiff] may collect damages based on the increased risk of future harm he incurred, but only if he can show that he suffered from some present injury beyond the mere exposure of his information to the public.” Id. Rowe also mentioned Dillon and explained that, “[w]hile it may seem odd to allow [the plaintiff] to collect damages based on his vulnerability to identity theft only if he can prove a substantively different type of present injury such as emotional distress, this result is in concert with the principles that led the Dillon Court to its decision in the first place.” Id.

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court did not find that exposure equates to an injury and instead found that exposure amounted to

an “increased risk of future harm,” which “is not the injury itself.” (Emphasis in original.)

Williams, 228 Ill. 2d at 425.

¶ 72 Ultimately, it is perplexing how the majority can rectify its holding with Williams. Despite

acknowledging Williams’s holding that the unborn fetus’s radiation exposure was merely an

increased risk of harm and that an increased risk of harm is not a present injury, the majority

expressly finds “that plaintiffs have sufficiently alleged a present injury in consuming

lead-contaminated water, even if they have yet to develop physical ailments linked to such

consumption.” Supra ¶ 27. Although Williams involved a wrongful death claim, the same

principles apply here because both a wrongful death claim and a common-law negligence claim

require an actionable injury. Williams made clear that a plaintiff cannot recover for an increased

risk of future injury without showing a present physical (or actual) injury, and thus I would affirm

the trial court’s decision to grant summary judgment on count I.

¶ 73 2. Lewis

¶ 74 Next, I find it necessary to address Lewis, 342 Ill. App. 3d 95, the primary case upon which

plaintiffs relied but that the majority barely addresses. In Lewis, the plaintiffs brought a six-count

putative class action on behalf of themselves and all other similarly situated parents and guardians

of minor children who had undergone or would undergo medical screening, assessment, or

monitoring for lead poisoning or latent diseases associated with lead poisoning. Id. at 98. The

numerous defendants consisted of promoters, manufacturers, marketers, and distributors of lead

pigment for use in paint. Id. “Common to each count was a prayer seeking an order compelling the

defendant to reimburse and pay the plaintiffs and the members of the putative class for the costs of

all medical screenings, assessments, and monitoring of their minor children.” Id. at 99. The circuit

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court granted the defendants’ section 2-615 motion to dismiss, which asserted that the plaintiffs’

complaint failed to allege a present injury or facts in support of proximate cause. Id. The circuit

court determined that the relief sought by the plaintiffs could be characterized as damages for an

increased risk of future harm. Id. at 100. On appeal, the plaintiffs argued that the court below

misconstrued their relief sought because they did not seek relief for an increased risk of future

harm and sought compensation only for the cost of medical testing made necessary by the

defendants’ manufacturing, marketing, and sale of a dangerous product. Id. at 100-01.

¶ 75 This court began its analysis by recognizing that, “in order for a plaintiff to recover

damages for an increased risk of future harm in a tort action, he or she must establish, among other

things, that the defendant’s breach of duty caused a present injury which resulted in that increased

risk.” Id. at 101 (citing Dillon, 199 Ill. 2d at 496-507). The court pointed out that the plaintiffs

primarily relied on Friends for All Children Inc. v. Lockheed Aircraft Corp., 746 F.2d 816 (D.C.

Cir. 1984), to support their contention that an action seeking recovery for the cost of medical

examinations is distinct from a claim seeking damages for an increased risk of harm of developing

a future injury or disease. Lewis, 342 Ill. App. 3d at 101. The Lewis court stated that, “In Friends

for All Children, the court reasoned that ‘an individual has an interest in avoiding expensive

diagnostic examinations just as he or she has an interest in avoiding physical injury.’ ” Id. (quoting

Friends for All Children, Inc., 746 F.2d at 826.) The court then expressed its agreement with

Friends for All Children and recognized the following:

“There is a fundamental difference between a claim seeking damages for an

increased risk of future harm and one that seeks compensation for the cost of medical

examinations. The injury which is alleged, and for which compensation is sought, in a

claim seeking damages for an increased risk of harm is the anticipated harm itself. The

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injury that is alleged, and for which compensation is sought, in a claim seeking damages

for a medical examination to detect a possible physical injury is the cost of the

examination. Unlike a claim seeking damages for an increased risk of future harm, a claim

seeking damages for the cost of a medical examination is not speculative and the necessity

for such an examination is capable of proof within a ‘reasonable degree of medical

certainty.’ If a defendant’s breach of duty makes it necessary for a plaintiff to incur

expenses to determine if he or she has been physically injured, we find no reason why the

expense of such an examination is any less a present injury compensable in a tort action

than the medical expenses that might be incurred to treat an actual physical injury caused

by such a breach of duty.” Id. at 101-02.

¶ 76 Lewis concluded by stating that, although it had “determined that the trial court erred in

concluding that the injury claimed by the plaintiffs was not compensable in a tort action,” it was

further tasked with determining whether the plaintiffs had pled sufficient facts to satisfy the

causation elements of their claims. Id. at 102. The court ultimately affirmed the dismissal of counts

I and II on the causation issue because the plaintiffs failed to identify which of the defendants

manufactured or supplied the lead pigment used in the paint to which their children were exposed.

Id. at 103-04.

¶ 77 In this case, plaintiffs assert that, because Lewis recognized that the expense of a medical

examination caused by a defendant’s negligence is a present injury compensable in a tort action,

the trial court improperly dismissed count I of their first amended complaint for lack of a present

injury. Interestingly, the majority ignores the plaintiffs’ argument and finds that plaintiffs

sufficiently alleged an injury “due to their consumption of water containing high levels of lead.”

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Supra ¶ 34. Although the majority only briefly addresses Lewis, I find it necessary to fully address

that case based on plaintiffs’ heavy reliance thereon. Lewis is problematic for numerous reasons.

¶ 78 First and most significantly, I respectfully disagree with Lewis’s conclusion that, “[t]here is

a fundamental difference between a claim seeking damages for an increased risk of future harm

and one that seeks compensation for the cost of medical examinations.” Lewis, 342 Ill. App. 3d at

101. Such a distinction is not apparent, and I disagree with the following reasoning from Lewis:

“Unlike a claim seeking damages for an increased risk of future harm, a claim seeking

damages for the cost of a medical examination is not speculative and the necessity for such

an examination is capable of proof within a ‘reasonable degree of medical certainty.’ ” Id.

The majority explicitly cites Lewis for this proposition but fails to explain how the damages in this

case are not speculative. Although I agree that the cost of a single medical examination, as was at

issue in Lewis, would be easy to ascertain, in this case, plaintiffs’ prayer for relief requests “the

establishment of a medical monitoring program that includes *** a trust fund, in an amount to be

determined, to pay for the medical monitoring of all Class members; and [n]otifying all Class

members in writing that they may require frequent medical monitoring necessary to diagnose lead

poisoning.” That frequent testing may be required, coupled with the plaintiffs’ allegation that lead

bioaccumulates in the body over time, indicates that plaintiffs are not seeking a one-time-only test.

Plaintiffs allege no facts regarding how often, or for what duration, a person would need testing.

Thus, the cost of plaintiffs’ damages is, in fact, much more speculative than Lewis indicated it

would be in such a case.

¶ 79 Additionally, the majority ignores that plaintiffs’ first amended complaint includes the

following five explicit references to an increased risk of harm:

“2. ***The City has also failed to advise Plaintiffs and the Class of its intention to

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only partially, rather than fully, replace their lead service pipes at the time of construction

and the resulting increased risk of lead exposure over time as a result of the City’s work.

3. As a result of Defendant’s negligent and reckless conduct, Plaintiffs, their

children, grandchildren, and the Class are at a significantly increased risk of exposure to a

known hazardous substance and lead poisoning. ***

***

9. ***As a result of the City’s project, Peysin and his family are now at an

increased risk for problems associated with ingesting lead.

90. As a result of Defendant’s negligent and reckless conduct, Plaintiffs, their

families, and the Class have been significantly exposed to a known hazardous substance

and, consequently, are at an increased risk of lead poisoning. ***

103. Defendant’s negligence proximately caused Plaintiffs’ and the Class

members’ damages and their increased risk of harm as documented herein.”

¶ 80 Based on these allegations, I simply do not see a contrast between a claim seeking medical

monitoring damages and a claim for damages for an increased risk of future harm. Additionally,

courts at the state and federal level have recognized that “a claim for medical monitoring is

essentially ‘a claim for future damages.’ ” See Bower v. Westinghouse Electric Corp., 522 S.E.2d

424, 429-30 (W. Va. 1999) (quoting Ball v. Joy Technologies, Inc., 958 F.2d 36, 39 (4th Cir.

1991)). I find this view more consistent with principles of Illinois tort law, such as the

single-recovery principle and the Moorman doctrine, which will be analyzed later in this dissent.

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¶ 81 Lewis’s reliance on Friends for All Children, Inc., a federal decision from the District of

Columbia, is also problematic. The complaint in Friends for All Children, Inc. was brought on

behalf of numerous Vietnamese orphans who survived an aviation disaster in South Vietnam in

1975 and alleged that, due to both the “decompression of the troop compartment and the crash

itself, these survivors suffered, inter alia, from a neurological development disorder generically

classified as Minimal Brain Dysfunction (‘MBD’).” 746 F.2d at 818-19. The district court granted

partial summary judgment in favor of the plaintiffs, who were children adopted by non-U.S.

parents, finding that “approximately forty adopted Vietnamese children living in France faced

irreparable injury unless they promptly obtained diagnostic examinations” and granted the

plaintiffs’ motion for a mandatory preliminary injunction ordering the defendant to create a fund

from which the examination costs could be drawn. Id. On appeal, the defendant argued that the

District of Columbia’s tort law had never recognized a cause of action for compensation for

diagnostic examinations designed to discover whether a plaintiff has been injured, unless that

plaintiff first proved actual physical injury. Id. at 824. The court recognized the lack of clarity in

tort law in that jurisdiction but predicted that the District of Columbia would allow a plaintiff to

maintain an action for diagnostic examinations in the absence of proof that he or she suffered a

physical injury. Id. at 824-25. The court reasoned that in light of the Restatement (Second) of

Torts’s definition of “ ‘injury’ ”—“ ‘the invasion of any legally protected interest of another’ ”—it

would be tough to dispute that “an individual has an interest in avoiding expensive diagnostic

examinations just as he or she has an interest in avoiding physical injury.” Id. at 826 (quoting

Restatement (Second) of Torts § 7 (1965)).

¶ 82 In reaching its conclusion, the court in Friends for All Children, Inc. stated as follows:

“To aid our analysis of whether tort law should encompass a cause of action for

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diagnostic examinations without proof of actual injury, it is useful to step back from the

complex, multi-party setting of the present case and hypothesize a simple, everyday

accident involving two individuals, whom we shall identify simply as Smith and Jones:

Jones is knocked down by a motorbike which Smith is riding through a red light.

Jones lands on his head with some force. Understandably shaken, Jones enters a

hospital where doctors recommend that he undergo a battery of tests to determine

whether he has suffered any internal head injuries. The tests prove negative, but

Jones sues Smith solely for what turns out to be the substantial cost of the

diagnostic examinations.

From our example, it is clear that even in the absence of physical injury Jones ought

to be able to recover the cost for the various diagnostic examinations proximately caused

by Smith’s negligent action.” Id. at 825.

¶ 83 I find it worthwhile to set forth this hypothetical because it served as the basis of the court’s

holding in Friends for All Children, Inc., which then served as a basis for Lewis. If the above

hypothetical was converted to allegations of a complaint, I believe that such a complaint would

undoubtedly state a claim for negligence in Illinois. I believe the physical impact of being knocked

down by a motorbike and the resulting pain, bruising, bleeding, or other physical symptom,

however minor, that would have inevitably occurred are sufficient to constitute a present physical

injury, which would allow a plaintiff to recover for medical monitoring damages. Perhaps the

question would then become what if the plaintiff did not have any pain, bruising, bleeding, or other

physical symptom? It is perplexing why someone who was not in pain, who was not experiencing

any physical symptoms, and who did not have any visual physical injury would undergo

substantially costly medical examinations. However, even if no outward physical manifestations

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of injury were apparent, a physical impact has been found to be sufficient to constitute a physical

injury in certain circumstances. 5 For example, in claims seeking recovery for negligent infliction

of emotional distress, our supreme court has confirmed that “a direct victim’s claims for negligent

infliction of emotional distress must include an allegation of contemporaneous physical injury or

impact.” (Emphasis added.) Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 38. Thus,

I disagree with the logic from Friends For All Children, Inc. because Illinois law would allow

recovery for medical monitoring damages in the hypothetical the court relied upon to recognize

medical monitoring damages as compensable without present physical injury.

¶ 84 Second, Lewis is not convincing because its recognition that the cost of medical testing was

compensable absent a present, physical injury was premised on the fact that the court there

“[found] no reason why the expense of such an examination is any less a present injury

compensable in a tort action than the medical expenses that might be incurred to treat an actual

physical injury caused by such a breach of duty.” (Emphasis added.) Lewis, 342 Ill. App. 3d at

101-02. It is not clear whether the defendant in Lewis raised the same arguments as defendant here,

i.e., the applicability of the single-recovery principle, the applicability of the Moorman doctrine,

and the public policy considerations weighing against allowing recovery without present physical

injury.

¶ 85 Third, some confusion exists in Lewis as a result of the court’s apparent use of the terms

“injury” and “damage” interchangeably. In Lewis, the court stated that it found “no reason why the

expense of such an examination is any less a present injury compensable in a tort action than the

5 As a brief aside, I, again, note that plaintiffs have not argued that the exposure to lead in their drinking water was a present physical injury sufficient to state a claim. If they had, such an argument would be meritless because our supreme court has already recognized that mere exposure to a harmful substance is not sufficient to constitute a present physical injury. See Williams, 228 Ill. 2d at 424-26 (finding that radiation exposure is not a present physical injury).

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medical expenses that might be incurred to treat an actual physical injury caused by such a breach

of such duty” (emphasis added) (id.), but in Lewis v. NL Industries, Inc., 2013 IL App (1st)

122080, a subsequent appeal of the same case, the court referred to its prior decision in Lewis as

accepting “plaintiffs’ theory that the cost of lead testing or assessment could constitute a

compensable damage” (emphasis added) (id. ¶ 2). This is not a distinction without a difference. In

setting forth the elements of a cause of action for negligence, injury and damages are often denoted

separately. See Boyd, 166 Ill. 2d at 194-95. Additionally, it has long been recognized that “[a] legal

injury is a wrongful act resulting in damages. As a general rule, to constitute a valid cause of

action, there must be both injury and damages. An action cannot be maintained for an injury

without damage.” Franks v. North Shore Farms, Inc., 115 Ill. App. 2d 57, 65 (1969). Thus, I

further decline to rely on Lewis because confusion exists as a result of the court’s initial use of the

term “injury” and later use of the term “damage” when referring to the same item.

¶ 86 Fourth, Lewis’s holding hinged on a causation issue, not an injury issue as we are faced

with here. Based on the foregoing, I reject plaintiffs’ reliance on Lewis.

¶ 87 3. Single-Recovery Principle

¶ 88 Further support for my position that plaintiffs were required to plead a present physical (or

actual) injury in order to state a claim for medical monitoring damages is apparent when one

attempts to rectify plaintiffs’ lack of present physical injury with the single-recovery principle.

The majority fails to fully address this issue and merely makes the unexplained conclusion that

“[t]his court should not find plaintiffs’ allegations barred based on what might happen in the

future.” Supra ¶ 39.

¶ 89 In Illinois, we follow the single-recovery principle, which holds that “there may not be

more than one recovery of damages for a single, indivisible injury.” Saichek v. Lupa, 204 Ill. 2d

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127, 140 (2003). This means that, when a plaintiff sustains an injury, he cannot divide up his claim

and bring successive actions to obtain additional damages. Id. This is true “ ‘regardless of whether

or not the plaintiff has recovered all that he or she might have recovered’ in the initial proceeding.”

Id. (quoting Dillon, 199 Ill. 2d at 502). “This rule is founded on the premise that litigation should

have an end and that no person should be unnecessarily harassed with a multiplicity of lawsuits.”

Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 340 (1996).

¶ 90 Plaintiffs assert that their claims do not implicate the single-recovery principle because the

purpose of claim preclusion is to prevent future actions on grounds that could have been raised, not

to hinder future actions on grounds that did not yet exist in an earlier action. Plaintiffs do not cite

any Illinois case law to support their point and primarily rely on a federal case from Pennsylvania,

Gates v. Rohm & Haas Co., 265 F.R.D. 208 (E.D. Pa. 2010), aff’d, 655 F.3d 255 (3rd Cir. 2011). I

decline to rely on Gates because in addition to being a federal decision from another state, in that

case, the court was tasked with deciding whether to grant class certification and did not decide

whether Illinois law applied or what effect the “Illinois so-called single recovery rule” would have

if Illinois law did apply. Id. at 219.

¶ 91 Instead, I opt to rely on our supreme court’s decision in Dillon, which, as previously stated,

placed express importance on the single-recovery principle. I find that plaintiffs’ claim for medical

monitoring damages absent a present physical injury is unworkable in light of the single-recovery

principle. If plaintiffs were allowed to recover damages for medical monitoring without any

physical symptoms, then under the single-recovery principle, they would also have to seek

compensation for personal injuries that did not yet (or may never) exist. Until plaintiffs manifested

a physical injury, it would be impossible to determine what treatment and corresponding

compensation was merited. Additionally, plaintiffs have not cited any binding precedent that

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supports their contention that the single recovery rule does not prevent future actions on grounds

that did not yet exist. As such, I find that the single-recovery principle weighs against recognition

of medical monitoring damages absent a present physical injury.

¶ 92 4. Moorman Doctrine

¶ 93 The majority also fails to fully address this issue and merely finds that, because the

plaintiffs’ claims are “more in line with tort theory,” the Moorman doctrine does not apply. Supra

¶ 40. Likely, this is because the majority ignores plaintiffs’ argument that the cost of medical

testing is a present compensable injury. Plaintiffs contend that the Moorman doctrine, or economic

loss doctrine, has no application here, where their injury does not meet the definition of solely

economic damages. “At common law, solely economic losses are generally not recoverable in tort

actions.” In re Chicago Flood Litigation, 176 Ill. 2d 179, 198 (1997). In Moorman Manufacturing

Co. v. National Tank Co., 91 Ill. 2d 69, 85-86 (1982), our supreme court held that the plaintiff

purchaser of a grain storage tank was unable to recover in tort from the manufacturer for solely

economic loss based on defects in the tank. The plaintiff had pled theories of liability sounding in

strict liability, negligence, and innocent misrepresentation. Id. at 72. The court recognized that

claims involving “qualitative defects” in products are “best handled by contract, rather than tort.”

Id. at 85-86.

¶ 94 The Moorman doctrine was further examined in In re Chicago Flood Litigation, a case

wherein the plaintiffs (individuals and businesses) brought suit against the City of Chicago and

another defendant for negligence, willful and wanton misconduct, and strict liability as a result of

massive flooding that occurred in the Chicago Loop, and sought “damages for various alleged

losses proximately caused by the flood, including: injury to their property; lost revenues, sales,

profits, and good will; lost wages, tips, and commissions; lost inventory; and expenses incurred in

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obtaining alternate lodging.” 176 Ill. 2d at 185-86. The trial court granted the city’s motion to

dismiss because the Moorman doctrine barred recovery for those plaintiffs who only alleged

economic loss rather than physical property damage, and the appellate court affirmed for plaintiffs

who only alleged an economic loss but did not bar the claims of the plaintiffs who alleged damage

in the form of lost inventory due to disruption of utility service. Id. at 186-88.

¶ 95 Our supreme court agreed with the trial and appellate courts that “those plaintiffs who did

not incur personal injury or property damage may not recover solely economic losses.” Id. at 201.

The court explained that “the tort recovery requirement of injury to person or property is not a

‘fortuity,’ ” (id. at 199) because as recognized in Moorman, “ ‘[t]ort law [is] “appropriately suited

for personal injury or property damage resulting from a sudden or dangerous occurrence” whereas

the remedy for a “loss relating to a purchaser’s disappointed expectations due to deterioration,

internal breakdown or nonaccidental cause *** lies in contract.” ’ ” Id. at 200 (quoting In re

Illinois Bell Switching Station Litigation, 161 Ill. 2d 233, 240-41 (1994), quoting Moorman, 91 Ill.

2d at 86). The court also rejected the plaintiffs’ argument that the flood was a sudden or calamitous

event, reasoning that the exception to the Moorman doctrine that the plaintiffs sought to invoke

was made up of “a sudden, dangerous, or calamitous event coupled with personal injury or

property damage” and that the exception would not apply to losses incurred without any personal

injury or property damage. Id. at 200-01. The court concluded that, “[a]bsent injury to a plaintiff’s

person or property, a claim presents an economic loss not recoverable in tort.” Id. at 201.

¶ 96 Here, plaintiffs first argue that the Moorman doctrine does not apply because their

complaint is not rooted in contractual or commercial expectations. Defendant asserts that

plaintiffs’ view of the rule is outdated and was rejected by our supreme court in City of Chicago v.

Beretta U.S.A. Corp., 213 Ill. 2d 351 (2004). In Beretta, the court recognized, “Although the

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economic loss doctrine is rooted in the theory of freedom of contract, it has grown beyond its

original contract-based policy justifications of maintaining the fundamental distinction between

contract and tort and protecting the freedom of parties to allocate risk by contract.” Id. at 422. The

court further explained that the plaintiffs had alleged solely economic damages because the

damages were based on “costs incurred in the absence of harm to a plaintiff’s person or property.”

Id. at 423. I agree with defendant’s contentions on this point, and contrary to the majority, I find

that merely because plaintiffs’ allegations do not arise from a contractual relationship does not

preclude the application of the Moorman doctrine. In this case, the only loss alleged by plaintiffs in

their negligence count is an economic one, i.e., the cost of medical testing and monitoring, and

thus Moorman applies.

¶ 97 In Moorman, the court set forth three exceptions to the economic loss rule that our supreme

court has subsequently summarized as follows:

“(1) where the plaintiff sustained damage, i.e., personal injury or property damage,

resulting from a sudden or dangerous occurrence [citation]; (2) where the plaintiff’s

damages are proximately caused by a defendant’s intentional, false representation, i.e.,

fraud [citation]; and (3) where the plaintiff’s damages are proximately caused by a

negligent misrepresentation by a defendant in the business of supplying information for the

guidance of others in their business transactions [citation].” (Emphasis in original.) In re

Chicago Flood Litigation, 176 Ill. 2d at 199.

Plaintiffs argue that even if the economic loss rule was implicated, then the first exception listed in

Moorman applies because contamination is a form of property damage that does not constitute a

solely economic loss. Defendant responds that no exception applies because any alleged damage

was not caused by a sudden, dangerous, or calamitous occurrence. I agree. Although plaintiffs’

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count II for inverse condemnation seeks compensation for alleged property damage to their service

lines, plaintiffs have not alleged they sustained any personal injury. Plaintiffs have not cited, and I

have not found, any case where an allegation of property damage in one count was sufficient to

recover for personal injury damages in another count where no present physical injury to the

plaintiff’s person existed. I decline to make such a finding here.

¶ 98 Even assuming arguendo that plaintiffs adequately alleged compensable property damage

in count I, which they have not, the Moorman doctrine would still prevent plaintiffs from stating a

claim here because their alleged property damage did not result from a sudden, dangerous, or

calamitous event, as is required for the relevant exception to preclude application of the doctrine.

Compare Donovan v. County of Lake, 2011 IL App (2d) 100390, ¶ 54 (holding that no sudden or

calamitous event occurred where the alleged water contamination “manifested itself over a

five-year period”), with Board of Education of City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428,

450 (1989) (recognizing that preventing “recovery in tort merely because the physical harm did

not occur suddenly would defeat the underlying purposes of strict products liability”). Neither

plaintiffs’ opening brief nor their reply provides an explanation or argument as to how the alleged

lead contamination resulted from a sudden, dangerous, or calamitous event. Further, plaintiffs’

complaint made clear that their allegations stemmed from corrosion that would occur “over time,”

albeit at a more rapid pace. As such, count I of plaintiffs’ complaint seeking purely economic

damages for the cost of medical testing violates the Moorman doctrine and does not fall under one

of its exceptions.

¶ 99 5. Other Policy Considerations

¶ 100 In addition to running afoul of our supreme court’s decision in Williams, the

single-recovery principle, and the Moorman doctrine, recognition of medical monitoring damages

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for plaintiffs’ negligence claim absent present physical injury would have various negative policy

implications. The United States Supreme Court recognized that allowing such a claim could lead

to an essentially limitless pool of plaintiffs because it is widely accepted that “tens of millions of

individuals may have suffered exposure to substances that might justify some form of

substance-exposure-related medical monitoring.” Metro-North Commuter R.R. Co. v. Buckley,

521 U.S. 424, 442 (1997). The high number of potential plaintiffs, coupled with the uncertainty as

to the amount of liability, could result in a flood of less important cases that would absorb

resources that are better left available to those who are more seriously harmed. Defendants do not

have access to an unlimited supply of financial resources, and requiring a present physical injury

sufficiently quells an influx of litigation that might deplete a defendant’s financial resources that

are more productively utilized by actually injured plaintiffs. In the same vein, the Supreme Court

of Michigan aptly recognized the following:

“To recognize a medical monitoring cause of action would essentially be to accord carte

blanche to any moderately creative lawyer to identify an emission from any business

enterprise anywhere, speculate about the adverse health consequences of such an emission,

and thereby seek to impose on such business the obligation to pay the medical costs of a

segment of the population that has suffered no actual medical harm.” Henry v. Dow

Chemical Co., 701 N.W.2d 684, 703 (Mich. 2005).

The following reasoning from that case is also sound:

“The present physical injury requirement establishes a clear standard by which judges can

determine which plaintiffs have stated a valid claim, and which plaintiffs have not. In the

absence of such a requirement, it will be inevitable that judges *** will be required to

answer questions that are more appropriate for a legislative than a judicial body ***.” Id. at

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691.

¶ 101 The foregoing logic from Henry comports with our state’s view of tort law. Although not

recognized by the majority as such, the majority’s decision is the first of its kind in this state, and it

is pertinent to note that a broad range of holdings from the highest state courts across the country

exists. 6 The divergence among the states illustrates that this is an area of law where there is neither

a majority rule nor discernible trend. Based on my analysis of Illinois jurisprudence, I find that the

trial court properly dismissed plaintiffs’ count I for negligence based on plaintiffs’ failure to allege

6 Many states have rejected medical monitoring damages without present physical injury. See Caronia v. Philip Morris USA, Inc., 5 N.E. 3d 11, 18 (N.Y. 2013) (refusing to recognize a judicially created independent cause of action for medical monitoring because allowing such a claim, absent evidence of present physical injury or property damage, would have been “a significant deviation from [New York’s] tort jurisprudence”); Lowe v. Philip Morris USA, Inc., 183 P.3d 181, 187 (Or. 2008) (holding that negligent conduct that results only in a significantly increased risk of future injury that requires medical monitoring did not give rise to a claim for negligence); Paz v. Brush Engineered Materials, Inc., 2006-FC-00771-SCT (¶ 5) (Miss. 2007) (“Creating a medical monitoring action would be contrary to Mississippi common law, which does not allow recovery for negligence without showing an identifiable injury ***.”); Henry, 701 N.W.2d at 692 (rejecting medical monitoring as a separate cause of action and also as a form of damages in a tort action because the only noneconomic injury alleged by the plaintiffs was their fear of future physical injury); Wood v. Wyeth-Ayerst Laboratories, Division of American Home Products, 82 S.W.3d 849, 857 (Ky. 2002) (rejected prospective medical monitoring claim without present injury); Hinton ex rel. Hinton v. Monsanto Co., 813 So. 2d 827, 829 (Ala. 2001) (“Although we acknowledge that other jurisdictions have recognized medical monitoring as a distinct cause of action or as a remedy under other tort causes of action, even in the absence of a present physical injury, we do not and need not know how such jurisdictions coordinated that recognition with the traditional tort-law requirement of a present injury.”). Conversely, some states allow recovery for medical monitoring damages without the plaintiff showing a present, physical injury. See Sadler v. PacifiCare of Nevada, Inc., 340 P.3d 1264, 1270 (Nev. 2014) (holding that “a plaintiff may state a cause of action for negligence with medical monitoring as the remedy without asserting that he or she has suffered a present physical injury” (emphasis in original)); Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 719 (Mo. 2007) (en banc) (finding that there is no need for proof of a present physical injury in a medical monitoring case); Simmons v. Pacor, Inc., 674 A.2d 232, 239-40 (Pa. 1996) (finding that despite the absence of physical manifestation of any asbestos-related disease, the plaintiffs were able to recover for such regular medical testing and evaluation as is reasonably necessary and consistent with contemporary scientific principles); and Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 824 (Cal. 1993) (en banc) (holding that “the cost of medical monitoring is a compensable item of damages where the proofs demonstrate, through reliable medical expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff’s toxic exposure and that the recommended monitoring is reasonable”).

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present physical (or actual) injury to person or property, in addition to damages that result from

said injury.

¶ 102 6. Defendant’s Section 2-619 Motion to Dismiss

¶ 103 As a final matter on count I, I take issue with the majority’s decision to make advisory7

rulings on defendant’s section 2-619 motion to dismiss. Defendants filed a motion to dismiss

pursuant to section 2-619.1 of the Code, which allows combined motions pursuant to section

2-615, section 2-619, and section 2-1005. 735 ILCS 5/2-619.1 (West 2016). Section 2-619.1 does

not authorize distinctive claims pursuant to section 2-615, 2-619, or 2-1005 to be commingled.

Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 20. “Combined motions

pursuant to section 2-619.1 retain procedural distinctions between section 2-615, section 2-619,

and section 2-1005 based motions, and parties are not free to ignore these distinctions.” Id.

Additionally, a motion to dismiss for failure to state a claim (section 2-615) tests the legal

sufficiency of the complaint based on defects apparent on its face (735 ILCS 5/2-615 (West

2016)), whereas a motion to dismiss based on an affirmative matter (section 2-619) admits the

legal sufficiency of the complaint, admits all well-pleaded facts and all reasonable inferences

therefrom, and asserts that an affirmative matter outside the complaint bars or defeats the causes of

action (id. § 2-619(a)(9)), such as tort immunity.

¶ 104 Here, the trial court’s March 29, 2018, order, granting defendant’s motion to dismiss

explicitly stated, “In disposing of this motion to dismiss on the narrowest possible grounds, the

Court finds it unnecessary to address many of Defendant’s arguments and does not reach any of

the grounds for dismissal urged under section 2-619.” The order also specifically stated that

7 I refer to the majority’s conclusion on the section 2-619 motion as “advisory” because it states that “dismissal of plaintiffs’ negligence claim pursuant to section 2-619 of the Code would be error,” implicitly acknowledging that the trial court never ruled on this motion. (Emphasis added.) Supra ¶ 45.

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defendant’s motion to dismiss “pursuant to section 2-615” is granted. Thus, the trial court did not

enter a judgment on defendant’s section 2-619 motion to dismiss. Despite it being abundantly clear

that the trial court did not consider or rule on defendant’s section 2-619 motion to dismiss, the

majority takes it upon itself to conduct analysis and make a conclusion on the issue.

¶ 105 The majority cites to Brugger v. Joseph Academy, Inc., 326 Ill. App. 3d 328 (2001), as

support for its consideration of defendant’s section 2-619 motion, even though it was not ruled

upon by the trial court. In Brugger, the trial court granted the defendant’s motion for summary

judgment “on the grounds that [the defendant] was a ‘local public entity’ entitled to supervisory

immunity for negligence and willful and wanton misconduct under sections 1-206 and 3-108(a) of

the Tort Immunity Act.” Id. at 330. On appeal, the plaintiff asserted that the trial court incorrectly

found that the defendant, a private school, was protected under the Tort Immunity Act. Id. The

defendant argued that the plaintiff waived review of the issue by failing to raise it in the trial court.

Id. The court stated, “Review of the record indicates that [the plaintiff] raised the argument in the

trial court that the Tort Immunity Act did not immunize [the defendant] from liability. Further, a

reviewing court may consider an issue where, as here, the issue is one of law and is fully briefed

and argued by the parties. [Citations.]” Id. at 330-31.

¶ 106 The scenario before this court is not similar to Brugger. While it is true that a reviewing

court may affirm on any basis in the record, there must first be a judgment entered by the circuit

court for us to affirm. Estate of Powell v. John C. Wunsch, P.C., 2013 IL App (1st) 121854, ¶ 32.

In Brugger, the trial court granted the defendant’s summary judgment motion specifically based

on the issue of tort immunity. Here, unlike Brugger, the circuit court did not enter a judgment on

defendant’s section 2-619 motion to dismiss based on tort immunity, and thus even though it was

briefed by the parties, the majority should not have addressed that issue for the first time on appeal.

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See, e.g., City of Chicago v. Latronica Asphalt & Grading, Inc., 346 Ill. App. 3d 264, 276-77

(2004) (refusing to address the merits of the defendant’s section 2-615 motion to dismiss because

“it was never addressed or even ruled on by the trial court in reaching its decision”). Even more

troubling is the fact that the majority seemingly decides the contested issue of whether tort

immunity applies in the context of an inverse condemnation claim by cursorily stating in a footnote

that “even if it did apply, we find that [defendant] has not established this affirmative defense as to

plaintiffs’ inverse condemnation claim for the same reasons.” Supra ¶ 47 n.3. Such a conclusion is

concerning.

¶ 107 B. Count II: Inverse Condemnation

¶ 108 I also dissent from the majority’s decision that the trial court improperly dismissed count II

for inverse condemnation. The majority’s decision analyzes a number of cases cited by the parties

and concludes that “[t]hese cases do not establish that damages suffered by numerous plaintiffs

cannot be ‘special damages.’ ” Supra ¶ 53. Although I agree that there is no law that states that

inverse condemnation claims brought by numerous plaintiffs are not allowable, I believe the

majority has ignored the fact that plaintiffs have failed to allege that they suffered any damages

beyond that which would be experienced by a member of the general public whose water main or

meter was replaced.

¶ 109 “Property is considered damaged for purposes of the takings clause if there is ‘any direct

physical disturbance of a right, either public or private, which an owner enjoys in connection with

his property; a right which gives the property an additional value; a right which is disturbed in a

way that inflicts a special damage with respect to the property in excess of that sustained by the

public generally.’ ” Hampton v. Metropolitan Water Reclamation District, 2016 IL 119861, ¶ 27

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(quoting Citizens Utilities Co. of Illinois v. Metropolitan Sanitary District of Greater Chicago, 25

Ill. App. 3d 252, 256 (1974)). Our supreme court has also recognized:

“[I]t has long been established that there are certain injuries, necessarily incident to the

ownership of property, which directly impair the value of private property and for which

the law does not, and never has, afforded any relief, examples being the depreciation

caused by the building of fire houses, police stations, hospitals, cemeteries and the like in

close proximity to private property. [Citations.] Such injury is deemed to be damnum

absque injuria—loss without injury in the legal sense—on the theory that the property

owner is compensated for the injury sustained by sharing the general benefits which inure

to all from the public improvement.” Belmar Drive-In Theatre Co. v. Illinois State Toll

Highway Comm’n, 34 Ill. 2d 544, 550 (1966).

¶ 110 The trial court dismissed plaintiffs’ count II, finding that “the damage to [p]laintiffs is not

special: it is a damage borne equally by all residents of the City of Chicago attendant to a public

improvement, namely the replacement of lead water mains.” (Emphasis in original.) I agree with

this assessment. In Rigney v. City of Chicago, 102 Ill. 64, 81 (1881), our supreme court first

recognized that, in order to recover damages in an inverse condemnation action, a plaintiff must

show, inter alia, that “he has sustained a special damage with respect to his property in excess of

that sustained by the public generally.” Various cases decided since then illustrate the manner and

context in which this language has been applied, though none have addressed a factual scenario

identical to the one before us.

¶ 111 In City of Chicago v. Union Building Ass’n, 102 Ill. 379, 381, 391 (1882), a building

association filed suit against the City, alleging that as a result of City action, a portion of La Salle

Street would become impassable as a thoroughfare and thus would cause great damage to the

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plaintiffs’ property, which was located 3½ away. The building association argued that it had an

individual interest that was distinct from others because its lot had contributed to the costs of

extending and opening La Salle Street, in special assessments made for benefits received. Id. at

391. Our supreme court determined that the business association did not suffer special damages,

and only sustained damages “of the same kind as those sustained by the general public, differing, if

at all, only in degree.” (Emphasis in original.) Id. at 393.

¶ 112 Similarly, in Parker v. Catholic Bishop of Chicago, 146 Ill. 158, 168 (1893), our supreme

court held that the owner of property adjacent to an alley that was to be permanently closed off did

not suffer damages special from that of the general public. The court explained that “special injury,

or damages differing in kind from those affecting the general public are the gist of the right of

private action.” Id. The property owner did not suffer special damages because, although she had

to go a few feet further to access her property, that was the “same kind of damage that will be

sustained by all other persons in the city that might have occasion to go that way.” (Internal

quotation marks omitted.) Id.

¶ 113 Conversely, in Department of Transportation v. Rasmussen, 108 Ill. App. 3d 615, 621-22

(1982), the owners of a gas station brought an inverse condemnation claim for damages to their

land after access to their property was materially impaired as a result of highway overpass

construction, leading to a decrease in the property’s value. On appeal, the court rejected the

Department of Transportation’s argument that the gas station owners merely experienced the same

circuitousness as the general public. Id. at 621. The court reasoned that a claimant must show “a

direct physical disturbance peculiar to his property; depreciation suffered in common by all lands

in the vicinity of an improvement is not compensable.” Id. Because the construction specifically

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limited ingress and egress to their property, the gas station owners were entitled to recover. Id. at

623-24.

¶ 114 Here, plaintiffs contend that the circuit court’s decision to dismiss their inverse

condemnation claim was erroneously based on the large number of potential claimants in this

action. It is not the number of plaintiffs that is fatal to plaintiffs’ claim but rather that plaintiffs

Berry and Peysin have allegedly suffered the same kind of damage as one another and the same

kind of damage as any other resident with lead service lines, i.e., 80% of the city’s population,

would suffer if the city replaced a nearby water main. Plaintiffs’ count II alleged that, as a result of

defendant’s water main and meter replacement projects, their services lines are more dangerous

because their lead pipes now corrode more aggressively than under normal circumstances.

Plaintiffs’ complaint sought certification of the following class: “All residents of the City of

Chicago who have resided in an area where the City has replaced the water mains or meters

(including, but not limited to, those areas defined in attached Exhibit A) between January 1, 2008,

and the present.” Exhibit A to the complaint does not appear in the record. However, we are aware

of the contents of Exhibit A because the trial court’s order included a footnote that stated, “Exhibit

A to Plaintiffs’ First Amended Complaint consists of a 58-page listing of various streets

throughout Chicago where work on water mains has occurred since 2009.” Plaintiffs’ complaint

also alleged the following:

“25. As early as the mid-1800’s, public health official and medical journals warned

of the dangers of lead to humans and openly questioned the use of lead. By the late-1800’s,

some states had begun advising ‘cities and towns to avoid the use of lead pipes’ altogether,

as ‘there was little doubt in the public health community that lead water pipes were to be

avoided.’ Consequently many cities had already begun banning their use as of the 1920’s,

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‘conclud[ing] that the engineering advantages of lead were outweighed by the public

health risks ***.’

26. Chicago did not ban the use of lead in plumbing and public water systems. In

fact, Chicago did the opposite; up until the federal ban in 1986, the City actually required

residents to install lead service lines, even in the face of all the public health warnings over

the past century.

27. Due to its own building code, the City thus contains ‘a legacy of millions’ of

lead service lines throughout the city and not surprisingly has more than any other U.S.

municipality, such that nearly 80 percent of the properties in Chicago receive their drinking

water via lead pipes. Unfortunately, these older pipes can corrode, ‘result[ing] in the

transfer of dissolved or particulate lead into the drinking water.’ ” (Emphasis in original.)

¶ 115 Plaintiffs’ allegations make clear that their alleged damages are not “special.” Plaintiffs’

damages are of the same kind as their neighbors and 80% of the properties in Chicago, who have

lead service lines and are connected to water mains that have been or will need to be replaced.

Plaintiffs’ complaint also stated that defendant performed water infrastructure projects in more

than 1600 areas and that damages allegedly sustained, except as to amount, were common to all

members of the putative class. To allege only a difference in degree or amount of damages is not

sufficient; a plaintiff must also allege a difference in kind of damages. See Metropolitan West Side

Elevated R.R. Co. v. Goll, 100 Ill. App. 323, 332 (1902) (“It is not enough that the damage exceeds

merely in amount that sustained by the public generally. It must be greater in kind—that is, greater

by reason of its peculiar nature; for if only greater in degree no recovery can be had.”). Plaintiffs’

count II fails to state a claim because it essentially alleges that plaintiffs and all potential class

members have the same kind of damages that vary only in amount. It is perplexing how plaintiffs

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can argue that their damages were both common and special. Perhaps the inability to rectify these

concepts is the reason the parties did not cite, and we did not find, any compensable class action

claims for inverse condemnation damages.

¶ 116 If this was not a putative class action alleging commonality, our analysis would still be the

same because there is nothing that makes Berry’s or Peysin’s damages different from the public

generally, i.e., their neighbors who are connected to the same water main that defendant replaced,

or from all persons who lived in a residence where defendant partially replaced a lead service line

or water main. Plaintiffs argue that the public cannot “generally” sustain damage when water main

or meter replacement takes place on a specific street, in a specific part of the city, and thus only

affects only a few homes. However, this argument ignores that a plaintiff must allege a direct

disturbance that was “peculiar” to his property because “depreciation suffered in common by all

lands in the vicinity of an improvement is not compensable.” See Rasmussen, 108 Ill. App. 3d at

621. According to plaintiffs’ complaint, anyone who resided in one of the more than 1600

locations where defendant performed a partial lead service line replacement would have

experienced the same damages, i.e., pipes that corrode more aggressively and are more dangerous.

Thus, plaintiffs’ alleged damages are of the same kind as the general public.

¶ 117 Even if I found plaintiffs’ damages to be sufficiently “special,” which I have not, count II

for inverse condemnation was still properly dismissed because the water infrastructure repairs that

allegedly caused the damage to plaintiffs’ service lines were necessarily incident to property

ownership. In Belmar Drive-In Theatre Co., the operator of a drive-in movie theatre brought an

action against the highway commission seeking damages based on allegations that bright lights

emanating from a toll-road service center made it impossible to show outdoor movies and caused

the theatre’s business to decline. 34 Ill. 2d at 546. On appeal, our supreme court found that the

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theatre’s claimed injury was based solely on “the exceptionally sensitive and delicate use to which

plaintiff devotes its own property” and that such injuries are not compensable. Id. at 548-50. The

court held that, although the sensitive and delicate nature of the theatre’s use of the land was

enough to demonstrate the claim’s inadequacy, the claim was also deficient because “there are

certain injuries, necessarily incident to the ownership of property, which directly impair the value

of private property and for which the law does not, and never has, afforded any relief.” Id. at 550.

For example, the depreciation caused by the building of fire houses, police stations, hospitals, and

cemeteries in close proximity to private property has never been compensable. Id. The court

explained, “Such injury is deemed to be damnum absque injuria—loss without injury in the legal

sense—on the theory that the property owner is compensated for the injury sustained by sharing

the general benefits which inure to all from the public improvement.” Id.

¶ 118 I find that plaintiffs’ alleged damages are of a nature that renders them necessarily incident

to the ownership of property and thus plaintiffs have failed to state a claim. Plaintiffs’ allegations

indicate that their alleged property damage is incident to their ownership of property in Chicago,

where the use of lead service lines was mandated until 1986, and defendant has opted to partially

replace those lines in thousands of locations throughout the city in order to avoid the consequences

from corrosion over time. As previously mentioned, plaintiffs alleged that “nearly 80 percent of

the properties in Chicago receive their drinking water via lead pipes.” Thus, any alleged damage

that resulted from defendant’s infrastructure repair or maintenance to its water system would

necessarily be incident to property ownership in this city, in the same way that any general benefit

received from such repairs, such as the reduction of service interruptions, preventing holes and

cracks that could allow bacteria, and preventing wastewater leaks, is also common to all owners.

Therefore, I respectfully dissent and would affirm the trial court’s dismissal of count II.

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