Gantzert v. Mazon Township Road District

2021 IL App (3d) 200469-U

• Court: Appellate Court of Illinois
• Decided: November 15, 2021
• Docket: 3-20-0469
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 200469-U

Order filed November 15, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

GORDON M. GANTZERT, CHRISTINE J. ) Appeal from the Circuit Court GANTZERT, MICHAEL HOMERDING, ) of the 13th Judicial Circuit, and JEFF HOMERDING, ) Grundy County, Illinois. ) Plaintiffs-Appellants, ) ) v. ) Appeal No. 3-20-0469 ) Circuit No. 19-CH-79 MAZON TOWNSHIP ROAD DISTRICT and ) ED WALKER, in his official capacity as ) Mazon Township Road Commissioner, ) ) Honorable Lance R. Peterson, Defendants-Appellees. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Justices Lytton and Wright concurred in the judgment.

ORDER

¶1 Held: The trial court erred when it dismissed plaintiffs’ complaint by finding plaintiffs’ claims barred under the Tort Immunity Act.

¶2 Plaintiffs, Gordon M. Gantzert, Christine J. Gantzert, Michael Homerding, and Jeff

Homerding, appeal the trial court’s dismissal of their complaint against defendants, Mazon

Township Road District and Mazon Township Road Commissioner Ed Walker. The trial court found that defendants established their affirmative defense of immunity pursuant to the Local

Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS

10/1 et seq. (West 2018)) for damages resulting from certain improvements defendants made to

roadways along plaintiffs’ property. We reverse and remand for further proceedings.

¶3 I. BACKGROUND

¶4 Plaintiffs’ first amended complaint and request for injunction is the subject of this appeal.

The complaint alleged the following. Plaintiffs Gordon and Christine Gantzert owned property

located near the intersection of Tynan Road and Reed Road in Grundy County, Illinois. The

Gantzerts lease the right to farm the property to Michael and Jeff Homerding. The flooding of the

land decreased the farmland’s rent rate. Plaintiffs alleged that defendants caused the flooding by

making the following improvements to Reed Road, Higgins Road, and Tynan Road:

“a. In the Fall of 2010, the Defendant, Mazon Township Road

District, replaced a culvert under Tynan Road at Reed Road.

b. In the Fall of 2010, the Defendant graded the South roadside

ditch of Reed Road to alleviate ponding that was occurring

in the North half of the Northwest quarter of Section 13

Township 32 North, Range 7 East, Third Principal Meridian

Mazon Township.

c. In the Fall of 2013, the Defendant graded and deepened the

South roadside ditch of Reed Road, east of Higgins Road.

d. In the Fall of 2013, the Defendant raised the road pavement

of Reed Road east of Higgins Road.”

After these improvements were made, plaintiffs suffered recurring flooding on their land.

-2- ¶5 According to the complaint, on January 31, 2019, plaintiffs commissioned an engineering

and surveyor firm, Berns, Clancy and Associates, to investigate the drainage conditions. A copy

of the Berns, Clancy and Associates’ report is attached to the complaint. The report indicated that

the natural flow of water in the northeast quarter of section 14 in Mazon Township is to the

northeast. The natural flow of water in the northeast quarter of section 13 in Mazon Township is

also to the northeast. Core samples taken from Reed Road showed that the surface of the road had

been raised between 8 and 10 inches from its height prior to the improvement. Berns, Clancy and

Associates determined that the improvements made by defendants to Reed Road caused a diversion

of stormwater from Sections 13 and 14. The diverted stormwaters now run east, instead of

northeast, which results in unnatural accumulations of large amounts of water on plaintiffs’

property. Berns, Clancy and Associates reviewed the records of improvements approved by the

Illinois Department of Transportation (IDOT) for a period of 20 years and did not find any records

showing improvements to Reed Road that had been approved by IDOT. It also reviewed the

records of improvements approved by the Grundy County Engineer for a period of 20 years and

did not find any records showing improvements to Reed Road that had been approved by the

Grundy County Engineer.

¶6 The complaint pursued three theories for relief. Count I alleged negligent construction.

Count I referenced the Illinois Drainage Code which provided, “Land may be drained in the general

course of natural drainage by either open or covered drains.” Plaintiffs alleged defendants were

negligent by changing the natural flow of water and causing flooding on plaintiffs’ land. Plaintiffs

claimed that defendants acted willfully and wantonly by failing to ensure that the improvements

met or complied with IDOT standards of construction and all applicable laws and regulations.

Count II alleged a claim of trespass based on the diversion of water, which caused an unnatural

-3- accumulation of water on plaintiffs’ property. Count III sought a preliminary and permanent

injunction requiring defendants to make corrections to the roads to prevent the unnatural

accumulation of water on plaintiffs’ property.

¶7 Defendants filed a combined section 2-615 and section 2-619 motion to dismiss plaintiffs’

complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2619.1

(West 2018)). The section 2-619 portion of that motion is the subject of this appeal. The motion

argued that plaintiffs’ claims against defendants were barred by an affirmative matter. Defendants

claimed they were immune from legal liability for the improvements to Reed Road under section

2-201 of the Tort Immunity Act (745 ILCS 10/2-201 (West 2018)). Because defendants made

improvements to Reed Road as part of their official duties and made the discretionary decision to

make such improvements, defendants claimed that section 2-201 provided absolute immunity

against plaintiffs’ claims.

¶8 Defendants attached the affidavit of Ed Walker to their motion. Walker’s affidavit provided

the following information. As Mazon Township Road District Commissioner, he was responsible

for maintaining, repairing, widening, and improving Mazon Road District roads, including the

roadway surface, the shoulders, and the drainage ditches and culverts. In 2010, Walker observed

that water from excessive rainstorms was causing flooding to and along Reed Road, which created

a hazard for the public using the road and affecting the roadway surface and shoulders and drainage

ditches. As a result of the flooding causing excessive water on the roadway surface and shoulders

of Tynan Road, Reed Road, and Higgins Road, Walker “made a decision in [his] official capacity

as Mazon Township Road District Commissioner that in [his] judgment that it served at [sic]

interests of the public using [Reed] Road to take the following action to solve the problem.” In

2010, Walker replaced the old culvert under Tynan Road and Reed Road to alleviate the flooding.

-4- Walker noted that plaintiffs alleged he graded the drainage ditch on the southside of Reed Road in

2010, graded and deepened the south drainage ditch on Reed Road east of Higgins Road in 2013,

and raised the Reed Road roadway surface in 2013. Walker had no records of making those

additional improvements. Walker claimed that the only improvement he made to Reed Road was

the culvert replacement in 2010.

¶9 Walker further averred that in his capacity as the commissioner, he “made a policy decision

to make an improvement to Reed Road at or near Tynan Road due to excessive rainfall making

Reed Road at certain locations dangerous for the traveling public using Reed Road.” The

improvement made in 2010 was a policy decision he made by “balancing competing interests of

the danger to the public, erosion of the roadway, shoulder and ditches, costs, safety and availability

of materials and equipment to do so.” Further, Walker “made a conscious decision to make this

improvement as the best solution to the flooding problems considering safety for the public,

erosion to the road, shoulders and ditches and how best and when best to do so.”

¶ 10 Plaintiffs filed a response to the motion to dismiss. Plaintiffs reiterated that defendants

violated the Illinois Drainage Code. According to plaintiffs, defendants violated the Illinois

Drainage Code by changing the natural course of drainage along Reed Road. Plaintiffs also

contended that defendants violated IDOT standards and regulations for the use of Motor Fuel Tax

Funds (MFT). According to plaintiffs, defendants violated these statutes and regulations by

“fail[ing] to present the necessary maps, showing grade separations, plans and specifications to the

County Engineer and [IDOT] for approval.” Had defendants followed these procedures, plaintiffs

argued that defendants “would not have been allowed to proceed in the manner in which they did.

Specifically, the County Engineer and [IDOT] would not have approved the grade increase without

requiring that Defendants address the interruption in the course of natural drainage.”

-5- ¶ 11 As to the claim of immunity, plaintiffs argued that defendants’ failure to comply with the

Illinois Drainage Code and IDOT rules and regulations show that Walker did not make a

discretionary policy decision to make the improvements to Reed Road. Therefore, by failing to

comply, Walker did not make a discretionary policy decision that would be protected by section

2-201. Plaintiffs did not argue that their allegation of willful and wanton conduct satisfied any

exception to the immunity provided by section 2-201.

¶ 12 Plaintiffs attached several documents to their response to defendants’ motion to dismiss.

Included are records of IDOT MFT allotment and transactions for Grundy County over a period

of 2012, 2013, 2014, 2015, 2017, 2018, and 2020. These transactions show that money was

transferred to Mazon Township but did not show what the money was used for. Also included is a

2017 document titled, “Motor Fuel Tax Funds Source, Distribution & Uses for Road District

2017.” The manual includes a paragraph stating:

“The expenditure of MFT funds requires the approval and

supervision of the Department of Transportation. A highway

commissioner desiring to use MFT funds for a road improvement

shall complete a Statement of Proposed Road Improvement *** and

submit it to the county engineer. The county engineer, in

cooperation with the highway commissioner, will prepare the plans,

specifications, and estimates and submit them to the Department for

approval.”

¶ 13 Also attached to the response is the affidavit of plaintiff, Gordon Gantzert. His affidavit

averred that he observed defendants replacing the culvert under Tynan Road at Reed Road in 2011.

In 2011, he also observed defendants grading the south roadside ditch of Reed Road. In September

-6- 2012, Gordon sent a report from Agri-Tile, Inc., to defendants, which stated that Reed Road was

obstructing the natural course of water. In 2014, Gordon observed defendants grading and

deepening the south roadside ditch of Reed Road and also raising the road pavement of Reed Road.

Finally, Gordon averred defendants violated policy by failing to submit materials to IDOT and the

Grundy County Engineering Department prior to making improvements to the roads.1

¶ 14 The trial court denied defendants’ motion to dismiss pursuant to section 2-615. The court

found the complaint sufficiently alleged a claim of negligence. However, the court granted

defendants’ motion to dismiss pursuant to section 2-619. Specifically, the court found that

defendants were immune from liability pursuant to the Tort Immunity Act. Plaintiffs filed a motion

to reconsider, which the court denied.

¶ 15 II. ANALYSIS

¶ 16 On appeal, plaintiffs contend the trial court erred when it granted defendants’ motion to

dismiss pursuant to section 2-619(a)(9). Section 2-619(a)(9) of the Code allows involuntary

dismissal of a plaintiff’s claim where the claim is “barred by other affirmative matter avoiding the

legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2018). Immunity from suit

under the Tort Immunity Act is an affirmative matter properly raised under section 2-619(a)(9).

Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). The “affirmative matter”

asserted by a defendant must be apparent on the face of the complaint; otherwise, the motion must

be supported by affidavits or certain other evidentiary materials. Epstein v. Chicago Board of

Education, 178 Ill. 2d 370, 383 (1997); Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156

Ill. 2d 112, 116 (1993). The plaintiff then must come forward with a counteraffidavit refuting the

1 We note that there is a discrepancy in Gantzert’s affidavit and the amended complaint regarding the years that defendants allegedly made the improvements to the roads. -7- evidentiary facts in the defendant’s affidavit, or else those facts will be deemed admitted. Kedzie

& 103rd Currency Exchange, Inc., 156 Ill. 2d at 116.Our review is de novo. Van Meter v. Darien

Park District, 207 Ill. 2d 359, 378 (2003).

¶ 17 Plaintiffs argue defendants failed to satisfy their burden in establishing immunity from

liability for discretionary decisions under section 2-201 of the Tort Immunity Act. Section 2-201

of the Tort Immunity Act (745 ILCS 10/2-201 (West 2018)) 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.” “A local

public entity is not liable for an injury resulting from an act or omission of its employee where the

employee is not liable.” Id. § 2-109.

¶ 18 Under section 2-201, a municipality and its officials can claim immunity against injuries

caused by an official’s actions that are “both a determination of policy and an exercise of

discretion.” Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466,

472 (2001). Section 2-201 immunity is absolute, covering both negligent and willful and wanton

conduct. In re Chicago Flood Litigation, 176 Ill. 2d 179, 195-96 (1997). A defendant claiming

immunity under this section must prove its employee held either a position involving the

determination of policy or a position involving the exercise of discretion. Harinek v. 161 North

Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). In addition, the defendant must establish

that the act or omission giving rise to the injuries was both a determination of policy and an

exercise of discretion. Id.

¶ 19 Policy determinations are defined as “ ‘ “those decisions which require the municipality to

balance competing interests and to make a judgment call as to what solution will best serve each

-8- of those interests.” ’ ” Monson v. City of Danville, 2018 IL 122486, ¶ 30 (quoting Harinek, 181

Ill. 2d at 342, quoting West v. Kirkham, 147 Ill. 2d 1, 11 (1992)). “Discretionary decisions are

‘unique to a particular public office’ [citation] and ‘involve the exercise of personal deliberation

and judgment in deciding whether to perform a particular act, or how and in what manner that act

should be performed.’ ” Id. (quoting Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 394-95

(2000)).

¶ 20 “In contrast to discretionary and policy decisions, a public entity’s ministerial acts are not

immune from liability under the [Tort Immunity] Act.” Id. Consequently, the negligent

performance of ministerial acts can subject a municipality to tort liability. Id. “Ministerial acts are

‘those which a person performs on a given state of facts in a prescribed manner, in obedience to

the mandate of legal authority, and without reference to the official’s discretion as to the propriety

of the act.’ ” Id. (quoting Snyder, 167 Ill. 2d 466, 474 (1995)).

¶ 21 In this case, plaintiffs’ amended complaint alleged Walker made the following

improvements that caused flooding on their property: (1) replaced a culvert under Tynan Road at

Reed Road in 2010; (2) graded the southside drainage ditch of Reed Road in 2010; (3) graded and

widened the southside drainage ditch of Reed Road in 2013; and (4) raised the road pavement on

Reed Road in 2013.

¶ 22 Walker’s decision to make repairs and improvements to the roads is unique to his position

in that a highway commissioner has the duty to “[c]onstruct, maintain and repair and be responsible

for the construction, maintenance and repair of roads within the district, let contracts, employ labor

and purchase material and machinery therefor, subject to the limitations provided in this Code.”

605 ILCS 5/6-201.7 (West 2018). Walker’s unrebutted affidavit provided that in 2010, he noticed

flooding on the surface of Reed Road. This flooding created a hazard for the public traveling on

-9- the road. He made the conscious decision to replace the culvert in 2010 to alleviate the flooding

on the road. Thus, defendants established the first element of immunity by showing that Walker

made a policy decision when replacing the culvert in 2010.

¶ 23 However, we note plaintiffs also alleged that defendants graded the southside drainage

ditch of Reed Road in 2010, graded and widened the southside drainage ditch of Reed Road in

2013, and raised the road pavement on Reed Road in 2013. Walker’s affidavit only explained the

replacement of the culvert in 2010. He did not have any records showing that he made these three

additional improvements. Consequently, the record in this case contains no evidence of

defendants’ decision-making process as to the three additional improvements. The facts necessary

to sustain defendants’ immunity defense are not apparent on the face of the complaint, nor were

they supported by affidavit or other evidentiary materials of record. See Monson, 2018 IL 122486,

¶¶ 32-35; Van Meter, 207 Ill. 2d at 380. Thus, defendants failed to establish that Walker made a

policy decision with respect to the remaining alleged improvements.

¶ 24 Our analysis does not end there. We also find there exists a question of fact as to whether

Walker made a discretionary decision. Plaintiffs claim defendants were mandated by law to

comply with IDOT and MFT regulations. For support, plaintiffs relied on the statutes and

regulations governing the use of MFT funds. One statute provides that MFT funds may be used

for “[m]aintenance of any township or district road as defined in Section 2-103 or any grade

separation constructed as provided in Section 6-701.1, subject to the approval of the county

superintendent of highways and the Department.” (Emphasis added.) 605 ILCS 5/6-701.2 (West

2018). Plaintiffs also quoted from the 2017 IDOT manual titled, “Motor Fuel Tax Funds Source,

Distribution & Uses for Road District 2017.” This manual provides:

- 10 - “The expenditure of MFT funds requires the approval and

commissioner desiring to use MFT funds for a road improvement

shall complete a Statement of Proposed Road Improvement *** and

cooperation with the highway commissioner, will prepare the plans,

specifications, and estimates and submit them to the Department for

approval.” (Emphases added.)

Plaintiffs allege that Walker used MFT funds to finance the improvements to the roads in question

but failed to follow these procedures by submitting the appropriate documents to the county

engineer and to IDOT for approval. Given that Walker must first receive approval from other

authorities, plaintiffs argue that Walker did not have discretion to make the improvements in

question.

¶ 25 We agree with plaintiffs. Walker did not have discretion to ignore IDOT and MFT

regulations. If defendants used MFT funds, then IDOT and MFT regulations mandate the acts

Walker must perform before beginning road maintenance, repair, and improvement projects.

While Walker maintained discretion to determine which roads required repairs or maintenance, he

lacked discretion to begin those projects without first complying with IDOT and MFT regulations.

It is possible that the result would have been different had Walker followed these regulations.

IDOT could have rejected Walker’s request and, instead, required him to make the improvements

according to IDOT’s instruction. Given that Walker required IDOT’s approval before beginning

the improvements, those decisions are not discretionary. Consequently, if defendants used MFT

- 11 - funds and failed to comply with IDOT regulations, those acts would not be shielded from liability

under section 2-201 of the Tort Immunity Act

¶ 26 Defendants never addressed whether MFT funds financed the improvements in question.

However, plaintiffs presented MFT disbursement records, which show the township received the

money. Plaintiffs also offered Gantzert’s affidavit and the Berns, Clancy and Associates’ report,

which both made an allegation that defendants used MFT funds. Berns, Clancy and Associates

reviewed the records of improvements approved by IDOT for a period of 20 years and did not find

any records showing improvements to Reed Road that had been approved by IDOT. It also

reviewed the records of improvements approved by the Grundy County Engineer for a period of

20 years and did not find any records showing improvements to Reed Road that had been approved

by the Grundy County Engineer. Whenever it would be reasonably defensible to draw an inference

in the plaintiffs’ favor from the well-pleaded facts, we draw that inference. Hanks v. Colter, 2011

IL App (1st) 101088, ¶ 17. In light of this, there exists a question of fact as to whether defendants

used MFT money to perform the improvements in question and whether defendants complied with

IDOT regulations.

¶ 27 In reaching this conclusion, we reject defendants’ reliance on Pleasant Hill Cemetery Ass’n

v. Morefield, 2013 IL App (4th) 120645. Pleasant Hill is similar in that plaintiff filed a complaint

against defendant (a highway commissioner) for altering the surface flow of water. The trial court

found defendant immune under section 2-201 of the Tort Immunity Act and dismissed the

complaint. The appellate court affirmed. Although Pleasant Hill is factually similar, that decision

never considered whether defendant’s conduct violated IDOT regulations and the use of MFT

funds. It is legally distinguishable on this basis.

- 12 - ¶ 28 We also reject defendants’ argument that the complaint should be dismissed for failing to

plead a statutory violation as required by Illinois Supreme Court Rule 133(a). Rule 133(a) requires

that “[i]f a breach of statutory duty is alleged, the statute shall be cited in connection with the

allegation.” Id. Defendants contend that the complaint failed to provide a specific citation to a

statutory duty that defendants breached. Thus, defendants assert the complaint should be dismissed

on this basis. Defendants’ argument conflates the standards used in deciding a section 2-619

motion to dismiss and a section 2-615 motion to dismiss. Our analysis is based on the standard in

section 2-619. That standard admits the legal sufficiency of the complaint, admits all well-pleaded

facts and reasonable inferences from those well-pleaded facts, and asserts an affirmative matter

outside the complaint that defeats the cause of action. Reynolds v. Jimmy John’s Enterprises, LLC,

2013 IL App (4th) 120139, ¶ 31. As applied here, defendants’ section 2-619 motion admitted the

legal sufficiency of the breach of statutory duty. Any argument regarding the sufficiency of the

allegations of the breach of statutory duty is beyond the scope of a section 2-619 motion.

¶ 29 Further, the trial court denied defendants’ section 2-615 motion on this basis. We agree

with the trial court. The complaint and pleadings in this case sufficiently alleged a breach of

statutory duty. The complaint alleged that defendants breached the Illinois Drainage Code and

IDOT regulations. Plaintiffs specified the alleged breaches of these statutory duties in response to

defendants’ motion to dismiss. Specifically, plaintiffs alleged that defendants failed to comply with

the rules governing the use of MFT funds. This allegation included a specific citation to the statutes

at issue. The purpose of the pleading requirement is to apprise the opposing party of the claims

against them. See Kyles v. Maryville Academy, 359 Ill. App. 3d 423, 435-36 (2005). The pleadings

in this case sufficiently put defendants on notice that plaintiffs sought relief for defendants’ alleged

failure to comply with IDOT regulations.

- 13 - ¶ 30 In light of our conclusion, we need not address plaintiffs’ alternative argument that

defendants are not immune for their willful and wanton conduct under section 2-202 of the Tort

Immunity Act.

¶ 31 III. CONCLUSION

¶ 32 For the foregoing reasons, reverse and remand the judgment of the circuit court of

Grundy County.

¶ 33 Reversed and remanded.

- 14 -