Nichols v. City of Chicago Heights
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Opinion
2015 IL App (1st) 122994 No. 1-12-2994 Opinion Filed April 30, 2015
FOURTH DIVISION
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
) CHARLOTTE NICHOLS, RODGER BOLDEN, ) Appeal from the RAUL TENIENTE, CARMEN TENIENTE, ) Circuit Court JUANITA DIXON, MICHAEL FOSTER, ) of Cook County, Illinois. LINCOLN HAMILTON, KAREN HAMILTON, ) MICHAEL IFLAND, SUSAN IFLAND and ) CAMILLE WILLIAMS, on Behalf of Themselves and ) on Behalf of All Others Similarly Situated, a Proposed ) Class Action, ) No. 07CH3803 ) Plaintiffs-Appellants, ) ) v. ) The Honorable ) Thomas Allen, THE CITY OF CHICAGO HEIGHTS, ) Judge Presiding. ) Defendant-Appellee. )
_____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs Charlotte Nichols, Rodger Bolden, Raul Teniente, Carmen Teniente, Juanita
Dixon, Michael Foster, Lincoln Hamilton, Karen Hamilton, Michael Ifland, Susan Ifland, and 1-12-2994
Camille Williams are a group of individuals 1 whose homes were damaged in flooding during
a two-day rainstorm in April 2006. Heavy rainfall occurred on April 16-17, 2006 (the
occurrence period) and sewer water containing pollutants, feces, dirt, debris, and other
noxious matter from the sewerage system overflowed into plaintiffs' homes located in
Chicago Heights. Plaintiffs brought suit against defendant City of Chicago Heights (the City),
arguing that the City is responsible for the damage to their homes. Plaintiffs' second amended
complaint asserted two claims against the City: (1) operational negligence; and (2)
negligence under the doctrine of res ipsa loquitur. Following substantial hearings, discovery,
depositions, and motions filed, the City filed a motion for summary judgment pursuant to
section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)), arguing it
was immune from suit under the Local Governmental and Governmental Employees Tort
Immunity Act (745 ILCS 10/2-201 (West 2008) (Tort Immunity Act). The City supported its
motion in part with an affidavit by Michael A. Sabo. Plaintiffs filed a motion to strike the
Sabo affidavit. After hearing arguments on the motions, the trial court denied the motion to
strike the Sabo affidavit and granted summary judgment in favor of the City. Plaintiffs appeal
the trial court's ruling that the City of Chicago Heights is immune from the claims of
negligence related to the maintenance and operation of its sewer systems and its subsequent
grant of summary judgment in favor of the City of Chicago Heights. Plaintiffs contend that
summary judgment was granted in error because: (1) the City was not entitled to
discretionary immunity where the plaintiffs' claims arose from the City's ministerial act of
maintaining its sewer system, rather than from a discretionary act; and (2) there was sufficient
evidence to establish genuine issues of material fact regarding plaintiffs' negligence claim
1 Plaintiffs have not been certified as a class. 2 1-12-2994
under the theory of res ipsa loquitur. In addition, plaintiffs contend the trial court erred in
denying their motion to strike the Sabo affidavit. For the following reasons, we affirm.
¶2 I. BACKGROUND 2
¶3 On April 16-17, 2006, a rainstorm hit the Chicago area. 3 Plaintiffs allege that their
homes, all located in the City of Chicago Heights, flooded with raw sewage as a result of this
rainfall. Following the rainfall, the basements of approximately 5% of Chicago Heights
residents allegedly flooded.
¶4 The City of Chicago Heights owns, maintains, and operates a separated sewer system in
which storm water and sanitary wastewater travel in separate lines and to different end points.
¶5 Plaintiffs filed their original complaint against Chicago Heights in February 2007,
alleging negligence, trespass, and nuisance, and seeking class action certification as a result of
the flooding. In April 2007, plaintiffs filed an amended complaint alleging various claims,
including trespass, nuisance, res ipsa negligence, operational negligence, negligent design,
and unconstitutional taking. Several of these claims were dismissed. In August 2008,
plaintiffs filed their second amended complaint alleging claims for maintenance and
2 At the outset, we note that plaintiffs' appellate brief contains violations of supreme court rules. Illinois Supreme Court Rule 341(h) (eff. Feb. 6, 2013) requires the appellant to include a statement of facts containing the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment. The statement of facts presented in plaintiffs' appellate brief, however, is replete with comment and argument. For example, on page 7, plaintiffs state, "[i]f the City had properly maintained its sewer system, the destruction of Plaintiffs' homes and properties would never have occurred." On page 8, in a discussion of City policy regarding sewer maintenance and inspection, plaintiffs baldly state, "[t]he origins of and basis for this policy are a mystery." We caution plaintiffs to be mindful of the rules that have been established in order to provide meaningful and expeditious review of issues presented on appeal. See, e.g., Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494 (2002). 3 The parties disagree as to the magnitude of the storm. Plaintiffs contend that the storm "was considered to be between a 10-year 15-hour and 25-year 15-hour rainfall event." Defendant contends the storm was "torrential," "historic," and "within the range of a 100-year rain event." Both parties agree that it was a heavy rain, which is sufficient for our purposes here. 3 1-12-2994
operational negligence, as well as res ipsa loquitur negligence. This is the complaint at issue
here.
¶6 The record on appeal includes a September 13, 2005, letter written from Anthony
DeLuca, mayor of the City of Chicago Heights, to James L. Daugherty, district manager of
Thorn Creek Basin Sanitary District. The letter describes the efforts the City was making in
the maintenance and operation of the sewer system. It states:
"RE: TCBSD Infiltration/Inflow Limits Ordinance
Dear Mr. Daugherty:
The purpose of this letter is to present our proposed I/I compliance schedule
as requested by your March 7, 2005 letter.
Since submitting a similar compliance schedule in 1993, the City of
Chicago Heights has actively pursued sanitary sewer rehabilitation efforts over
the past decade. From 1994-97, the City also performed 2,705 manhole
inspections (100% city-wide), dye water flood tested 137 high priority locations
in 1995, and conducted a city-wide house-to-house survey of 8,302 buildings
(91%).
In the mid-1990s, the City obtained a $3.2 million low interest loan from
IEPA that funded over 500 manhole repairs, 1,678 vertical feet of manhole lining,
50- sewer point repairs, and cured-in-place lining of 47,451' of sewer mains in the
northwest area of the City. Subsequently in 1996-97, the City performed an
additional 9 point repairs, 144 manhole repairs, and 12,600' of sewer lining
throughout the Saratoga Farms and Bradley Terrace subdivisions. Since 1997, the
4 1-12-2994
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2015 IL App (1st) 122994 No. 1-12-2994 Opinion Filed April 30, 2015
FOURTH DIVISION
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
) CHARLOTTE NICHOLS, RODGER BOLDEN, ) Appeal from the RAUL TENIENTE, CARMEN TENIENTE, ) Circuit Court JUANITA DIXON, MICHAEL FOSTER, ) of Cook County, Illinois. LINCOLN HAMILTON, KAREN HAMILTON, ) MICHAEL IFLAND, SUSAN IFLAND and ) CAMILLE WILLIAMS, on Behalf of Themselves and ) on Behalf of All Others Similarly Situated, a Proposed ) Class Action, ) No. 07CH3803 ) Plaintiffs-Appellants, ) ) v. ) The Honorable ) Thomas Allen, THE CITY OF CHICAGO HEIGHTS, ) Judge Presiding. ) Defendant-Appellee. )
_____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs Charlotte Nichols, Rodger Bolden, Raul Teniente, Carmen Teniente, Juanita
Dixon, Michael Foster, Lincoln Hamilton, Karen Hamilton, Michael Ifland, Susan Ifland, and 1-12-2994
Camille Williams are a group of individuals 1 whose homes were damaged in flooding during
a two-day rainstorm in April 2006. Heavy rainfall occurred on April 16-17, 2006 (the
occurrence period) and sewer water containing pollutants, feces, dirt, debris, and other
noxious matter from the sewerage system overflowed into plaintiffs' homes located in
Chicago Heights. Plaintiffs brought suit against defendant City of Chicago Heights (the City),
arguing that the City is responsible for the damage to their homes. Plaintiffs' second amended
complaint asserted two claims against the City: (1) operational negligence; and (2)
negligence under the doctrine of res ipsa loquitur. Following substantial hearings, discovery,
depositions, and motions filed, the City filed a motion for summary judgment pursuant to
section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)), arguing it
was immune from suit under the Local Governmental and Governmental Employees Tort
Immunity Act (745 ILCS 10/2-201 (West 2008) (Tort Immunity Act). The City supported its
motion in part with an affidavit by Michael A. Sabo. Plaintiffs filed a motion to strike the
Sabo affidavit. After hearing arguments on the motions, the trial court denied the motion to
strike the Sabo affidavit and granted summary judgment in favor of the City. Plaintiffs appeal
the trial court's ruling that the City of Chicago Heights is immune from the claims of
negligence related to the maintenance and operation of its sewer systems and its subsequent
grant of summary judgment in favor of the City of Chicago Heights. Plaintiffs contend that
summary judgment was granted in error because: (1) the City was not entitled to
discretionary immunity where the plaintiffs' claims arose from the City's ministerial act of
maintaining its sewer system, rather than from a discretionary act; and (2) there was sufficient
evidence to establish genuine issues of material fact regarding plaintiffs' negligence claim
1 Plaintiffs have not been certified as a class. 2 1-12-2994
under the theory of res ipsa loquitur. In addition, plaintiffs contend the trial court erred in
denying their motion to strike the Sabo affidavit. For the following reasons, we affirm.
¶2 I. BACKGROUND 2
¶3 On April 16-17, 2006, a rainstorm hit the Chicago area. 3 Plaintiffs allege that their
homes, all located in the City of Chicago Heights, flooded with raw sewage as a result of this
rainfall. Following the rainfall, the basements of approximately 5% of Chicago Heights
residents allegedly flooded.
¶4 The City of Chicago Heights owns, maintains, and operates a separated sewer system in
which storm water and sanitary wastewater travel in separate lines and to different end points.
¶5 Plaintiffs filed their original complaint against Chicago Heights in February 2007,
alleging negligence, trespass, and nuisance, and seeking class action certification as a result of
the flooding. In April 2007, plaintiffs filed an amended complaint alleging various claims,
including trespass, nuisance, res ipsa negligence, operational negligence, negligent design,
and unconstitutional taking. Several of these claims were dismissed. In August 2008,
plaintiffs filed their second amended complaint alleging claims for maintenance and
2 At the outset, we note that plaintiffs' appellate brief contains violations of supreme court rules. Illinois Supreme Court Rule 341(h) (eff. Feb. 6, 2013) requires the appellant to include a statement of facts containing the facts necessary to an understanding of the case, stated accurately and fairly without argument or comment. The statement of facts presented in plaintiffs' appellate brief, however, is replete with comment and argument. For example, on page 7, plaintiffs state, "[i]f the City had properly maintained its sewer system, the destruction of Plaintiffs' homes and properties would never have occurred." On page 8, in a discussion of City policy regarding sewer maintenance and inspection, plaintiffs baldly state, "[t]he origins of and basis for this policy are a mystery." We caution plaintiffs to be mindful of the rules that have been established in order to provide meaningful and expeditious review of issues presented on appeal. See, e.g., Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494 (2002). 3 The parties disagree as to the magnitude of the storm. Plaintiffs contend that the storm "was considered to be between a 10-year 15-hour and 25-year 15-hour rainfall event." Defendant contends the storm was "torrential," "historic," and "within the range of a 100-year rain event." Both parties agree that it was a heavy rain, which is sufficient for our purposes here. 3 1-12-2994
operational negligence, as well as res ipsa loquitur negligence. This is the complaint at issue
here.
¶6 The record on appeal includes a September 13, 2005, letter written from Anthony
DeLuca, mayor of the City of Chicago Heights, to James L. Daugherty, district manager of
Thorn Creek Basin Sanitary District. The letter describes the efforts the City was making in
the maintenance and operation of the sewer system. It states:
"RE: TCBSD Infiltration/Inflow Limits Ordinance
Dear Mr. Daugherty:
The purpose of this letter is to present our proposed I/I compliance schedule
as requested by your March 7, 2005 letter.
Since submitting a similar compliance schedule in 1993, the City of
Chicago Heights has actively pursued sanitary sewer rehabilitation efforts over
the past decade. From 1994-97, the City also performed 2,705 manhole
inspections (100% city-wide), dye water flood tested 137 high priority locations
in 1995, and conducted a city-wide house-to-house survey of 8,302 buildings
(91%).
In the mid-1990s, the City obtained a $3.2 million low interest loan from
IEPA that funded over 500 manhole repairs, 1,678 vertical feet of manhole lining,
50- sewer point repairs, and cured-in-place lining of 47,451' of sewer mains in the
northwest area of the City. Subsequently in 1996-97, the City performed an
additional 9 point repairs, 144 manhole repairs, and 12,600' of sewer lining
throughout the Saratoga Farms and Bradley Terrace subdivisions. Since 1997, the
4 1-12-2994
City has invested an additional $1,100,000 toward 31,300' of additional sewer
lining. These efforts have greatly reduced I/I entering the sanitary sewer system.
The building surveys and manhole inspections referenced above identified
approximately 7.5 MGD of I/I that remains in the City's system. Manhole
rehabilitation is generally found to be cost-effective due to the relatively low
repair cost and significant I/I reductions achieved, and it is estimated that
repairing all defective manholes in the City would cost approximately $2,500,000.
The manhole rehabilitation work is known and proposed to be completed in a
multi-year program as budget constraints allow. We also intend to perform flow
monitoring at strategic locations to isolate subareas containing high I/I
concentrations, additional dye flood testing and sewer televising in these high
flow subareas, and associated rehabilitation work identified by these
investigations. It is estimated that the investigative work will cost $150,000 City-
wide.
The City's current budget includes the repayment of the $3.2 million loan to
IEPA through the year 2016 from sewer fees collected from users. Therefore,
available funds for sewer rehabilitation efforts during the next decade will remain
similar to the past several years ($250,000/yr) until the loan debt is serviced.
Therefore, the following compliance schedule is proposed:
[2006 to 2014 year-by-year proposed spending on items such as flow
monitoring and sewer televising, manhole rehabilitation, and sewer lining, with a
total estimated cost of $3,250,000.]
5 1-12-2994
We are confident that our continued commitment to significant investments
into rehabilitating our sewer system infrastructure will result in the City's
compliance with the District's I/I limits over time, and look forward to working
with the District toward achieving this goal.
At this time Robinson Engineering has prepared a full set of manhole
rehabilitation plans for the entire City. After the compliance schedule is agreed
upon we subdivide the plans to meet the financial constraints of the yearly budget.
After your approval of the plans and specifications we will be able to immediately
go to bid for the manhole rehabilitation project."
¶7 The record on appeal also includes the October 2011 affidavit of Michael A. Sabo.
This affidavit reads in its entirety:
"I, Michael A. Sabo, after first being duly sworn on oath, depose and state
that if I were sworn as a witness I could competently testify to the following:
1. I am over the age of eighteen and make this affidavit of my own
personal knowledge.
2. I am a resident of Chicago Heights, Illinois.
3. Between 1999 and 2007, I was Alderman of the 6th District of Chicago
Heights, with an office at 1601 Chicago Road, Chicago Heights, IL 60411.
4. Between 2007 and 2009, I was the Director of City Services and
Projects for the City of Chicago Heights.
5. Since 2009, I've been the Director [of] Street, Sewer, and Vehicle
Maintenance Departments for the City of Chicago Heights.
6 1-12-2994
6. Between 2004 and 2007, the City of Chicago Heights' legislation was
enacted in the form of ordinances passed by a majority vote of the City Council.
7. Until 2011, the City Council comprised the mayor and six aldermen. A
seventh alderman was added in 2011.
8. The City of Chicago Heights owns, maintains and operates a separated
sewer system in which storm water and sanitary wastewater travel in separate
lines and to different end points.
9. The storm water that enters the City's storm sewer system is discharged
in local waterways.
10. The wastewater that enters the City's sanitary sewers from the homes of
City residents and businesses travels through the City's system to Thorn Creek
Basin Sanitary District where it is treated before being discharged into local
waterways.
11. Thorn Creek has the ability to regulate the amount of wastewater that
flows from the City's sanitary sewer system into the Thorn Creek Treatment plant.
12. If for any reason the flow from the City's sewer system into the Thorn
Creek facility was stopped or slowed, this could cause the City's system to backup
and result in backups in the homes and businesses of City residents.
13. The City of Chicago Heights Municipal Code places the responsibility
for the installation, connection and maintenance of sewer lines that connect to the
City's system upon the City's residents and businesses.
7 1-12-2994
14. A blockage in a City resident's lateral lines could and often does cause
sewage backups into the resident's home and/or the backup of sewage into other
residents' homes.
15. The City Council adopted as the standard for operations and
maintenance of its municipal sewer systems to have a system that can handle
events involving less than a 50 year storm.
16. The Mayor and City Council were aware that the City's sewer system
was in need of repair in March 1993.
17. The Chicago Heights City Council alone has the authority to allocate
funds for and initiate a plan to maintain, repair and/or upgrade the City's sewer
system.
18. In 1993, following notification of the City's violation of a Thorn Creek
ordinance, the City Council voted on a sewer rehabilitation program.
19. The purpose of the sewer rehabilitation plan initiated in 1993 was to
upgrade the City's sewer system and bring Chicago Heights into compliance with
Thorn Creek ordinances.
20. In March 1993, the City Council voted to authorize over $1,100,000 in
private sector and public sector investigations to isolate and identify sources of
infiltration and inflow into its sanitary sewer system.
21. Between 1994 and 1997, this investigation phase included dye water
flood testing of 137 high priority locations, 2,705 manhole inspections, a house-
to-house survey, with internal and external inspections of 8,302 buildings in
Chicago Heights- (91% of all buildings in the city).
8 1-12-2994
22. Beginning in 1997, the City began its initial phase of sewer
rehabilitation, comprising over a $1,000,000 in rehabilitation work, funded in part
by a $3.2 million low interest loan from the Illinois Environmental Protection
Agency.
23. The above projects required the city to retire its debt at a rate of
$220,000 annually.
24. After 1997, 31,300 additional feet of sewer lining were deployed.
25. In 2005, the City Council made the policy decision, in full
cooperation with Thorn Creek, that the work required to bring the sewer system
into compliance with infiltration limits would be completed in 2015.
26. All determinations with respect to the prioritization of sewer system
rehabilitation and upgrades discussed above were made prior to April 16-17,
2006.
27. The type of flooding that Plaintiffs' allege they suffered in this case
can occur in the homes of Chicago Heights' residents as a result of an obstruction
in the sanitary sewer system despite the City's regular maintenance and inspection
of the system.
28. The March 3, 2006 letter from Chicago Heights Mayor to Thorn Creek
Basin Sanitary District attached hereto as Exhibit A, is a true and correct copy of
said letter, and said letter was made in the regular course of business, and it was
the regular course of business to make such a memorandum or record at the time
of such an event or within a reasonable time thereafter. This letter is maintained
9 1-12-2994
as a regular business record by the City of Chicago Heights Street, Sewer, and
Vehicle Maintenance Department of which I am Director.
29. Before any repair, maintenance or upgrade project can begin, the City
Council must allocate funding for the project, and, in doing so, consider the
overall needs and safety of City residents and allocate budgetary resources
accordingly."
¶8 Also included in the record on appeal is a letter from the City of Chicago Heights mayor
Anthony DeLuca to James L. Daugherty, district manager for the Thorn Creek Basin Sanitary
District, dated March 3, 2006. It reads, in pertinent part:
"RE: [Thorn Creek Basin Sanitary District] Infiltration/Inflow Limits
Ordinance
Dear Mr. Daugherty,
The purpose of this letter is to respond to your December 28th, 2005 letter
requesting the City of Chicago Heights to submit a revised sewer rehabilitation
Compliance Schedule. A revised schedule providing recommendations for
system rehabilitation to achieve compliance with Thorn Creek Basin Sanitary
District (TCBSD) Ordinance No. 328 is enclosed. The intended plan is to serve
as an expansion of our current rehabilitation program by outlining tasks and
budget assignments designed to bring the system into compliance. The schedule
includes system investigations and systematic rehabilitation designed to remove,
isolate and pinpoint Inflow/Infiltration (I/I) sources throughout the City's sanitary
sewer transport system.
10 1-12-2994
To remind the District just how committed the City is to transport system
improvements, we will summarize our efforts, to date. Since formal notification
of its noncompliance with TCBSD ordinance in March 1993, the City of Chicago
Heights has authorized over $1,100,000 in private sector and public sector
investigations to isolate and identify sources of infiltration and inflow into its
sanitary sewer system. Since 1997 the City has performed over a $1,000,000 in
rehabilitation work. As part of our initial phase of sewer rehabilitation, the City
(funded by a $3.2 million low interest loan from the Illinois Environmental
Protection Agency), completed several sewer improvements on the City's
northwest side in 1997. It is important for the District to recognize the City is
retiring the debt for the 1997 improvements at a rate of $220,000 annually. The
remaining debt retirement period exceeds the 10-year rehabilitation program
suggested by the District. The work performed is listed below:
Work performed between 1996-1997
Bradley Terrace
Approximately 4,100 lineal feet of pipelining,
5 point repairs, and
33 manhole repairs
Saratoga Farms and its tributaries
8,500 lineal feet of sanitary sewer lining
4 point repairs
111 manhole repairs
Manhole Inspections 1994-1997
11 1-12-2994
2,705 sanitary sewer manholes – 100% of all known manholes within
the City
Dye Water Flood Testing (spring 1995)
A total of 137 high priority locations were tested by National Power
Rodding Corporation
House-to-house survey
A citywide building-to-building survey was conducted from 1994 to 1997,
and consisted of internal and external inspections of 8,302 of the 9,123 buildings
(91%) existing in the City. Survey crews were unable to gain entry into 821
buildings (9%). Of the 9,123 buildings, a total of 6,812 buildings, or 75%, are
suspected to contain at least one type of connection contributing I/I to the sanitary
sewer system. A summary of the investigation is described below.
Detailed in a May 1997 report prepared by Robinson Engineering, Ltd.,
estimated that a total of 5.706 MGD I/I is contributed to the City's sanitary sewer
system from private property sources.
Work performed after 1997
31,300 lineal feet of sanitary sewer lining
2 point repairs
The above work resulted in over $1,100,000 in public sector rehabilitation
repairs to reduce infiltration and inflow into its sanitary sewer system. These
efforts have greatly reduced I/I entering the sanitary sewer system.
The rehabilitation of all defects found in the entire system is almost never
cost-effective. In any system, however, some rehabilitation is always cost-
12 1-12-2994
effective. The system costs for most sewage collection and treatment systems of
any significant size depend upon its capacity, or the flow it can handle. The
desirable extent of rehabilitation can only be determined objectively by economic
and practical considerations. We are committed to the rehabilitation program and
have reviewed Baxter & Woodman's first year recommendations listed in its
November 7, 2005 letter to the District. We have therefore, revised our program
accordingly.
Sewer System Inventory and Mapping:
A newly computerized base map and sewer system atlas will be developed.
We intend to include storm sewers on the initial mapping. The initial impact to
update the City's sanitary sewer atlas and incorporate all system data into a
Geographic Information System database would allow data to be linked into the
updated map which would assist the City in developing a long term I/I reduction
program.
Flow Monitoring:
Attached is a map containing the major sewer service areas in Chicago
Heights. The map identifies 6 major trunk sewers where we propose to monitor
flow rates for a 3-month period. These initial data will be used to determine the
location of where to install flow meters for the next round of flow monitoring. If
the monitoring locations selected on the attached map are not to the District's
liking, please advise where you would like us to measure.
Sewer Televising and Cleaning
13 1-12-2994
Based on initial flow monitoring results, areas will be selected for televising
and cleaning. Plans and specifications will be prepared for the work and bid out.
The result will identify were sewer rehabilitation is recommended. A report
summarizing our findings will be prepared.
Progress Report:
An engineering report will be prepared identifying worst areas for further
investigation. A compliance schedule for further investigation will be prepared.
Preliminary cost estimates for the work and a financial needs analysis will be
included.
Based on the first year investigations, the rehabilitation scope, probable
project costs, funding needs, allocations and long-term program to maintain the
City's sanitary sewer system would be determined. Attached is a project schedule
outlining work-flow. The cost for the first year program is outlined in Table 2
below.
Table 2 Compliance Schedule—Year One (2006)
Proposed Schedule Budget
Flow monitoring 6 locations $25,000
Internal Television Inspection $90,000
GIS Mapping $130,000
Engineering Report $35,000
Debt Service Payment $220,000
Total $500,000
14 1-12-2994
The City intends to adopt and implement this plan for I/I reduction to
reduce wastewater treatment operating cost, maximize collection system
hydraulic capacity, and meet TCBSN requirements. Once the initial investigation
and evaluation are complete, the City will address its user charge program to
determine if additional revenue is needed to implement rehabilitation projects per
your recommendations in order to come into compliance within the I/I limits by
2015.
The priorities for maintenance activities have been revised to reflect District
directives within the current sewer user charge system. It is recognized that
flexibility in implementation will be necessary due to the ever-changing
circumstances common with municipal infrastructure systems and budgets.
If you have any questions concerning this matter, please feel free to contact
the undersigned.
s/ Anthony DeLuca, Mayor"
¶9 The record on appeal also includes an invoice from Robinson Engineering to "City of
Chicago Heights, Mayor and City Council," dated April 13, 2006, regarding "2006 Sewer
Maintenance—Flow Monitoring." It reflects "services performed" through March 31, 2006
as: "perform flow monitoring, prepare proposal for sewer cleaning, review sewer cleaning
proposals, meeting with Chicago Heights staff and TCBSD." The invoice reflects 120.75
hours of labor by "senior project manager," "engineering technician 2," "CADD technician,"
and "resident engineer," for a total charge of $10, 059.75.
15 1-12-2994
¶ 10 The record also includes an April 12, 2006, letter from Thomas Nagle, project engineer
for Robinson Engineering, to Matthew Fares, chief of staff, City of Chicago Heights. It
states:
"Re: Heavy Cleaning of Large Diameter Sewer
Proposal Tabulation & Recommendation
Dear Mr. Fares:
As you know we are in the process of flow monitoring the City sanitary
sewage flows into the Thorn Creek Basin Sanitary District. In order to monitor
the flows we have installed meters in select manholes. These meters were
installed to study the effects of the Inflow and Infiltration (I and I) due to the
spring rains in the Chicago Heights sewer system. The meters have sensors
designed to measure depth of flow in the sewer as well as the velocity of the flow.
Due to heavy silt accumulation in the sewers at three locations, the sensors have
been covered with silt and cannot accurately measure the flow. Therefore it was
agreed to take proposals for cleaning of the sewer in the location of the meters.
On April 11, 2006 at 2:30 PM at the City Council Chambers we received
proposals for heavy cleaning of large diameter sewer. The proposals were found
to be correct and in order as submitted, and are as follows:
R&R Septic & Sewer Service, Inc…………….$16,170.00
Municipal Sewer Services, Inc………………...$26,401.20
National Power Rodding Corp……………..…$45,960.50
16 1-12-2994
Therefore, we recommend that the contract be awarded to the low bidder,
R&R Septic & Sewer Service, Inc. in the amount of Sixteen Thousand, One
Hundred Seventy Dollars and Zero Cents ($16,170.00)."
¶ 11 As noted, prior to the flood, the City contracted with Robinson Engineering to install
several flow monitors throughout the City's sanitary sewer. Those monitors recorded the
amount and velocity of flow traveling within the City's sewer during the rainstorm at issue
here. In 2007, Robinson Engineering submitted the results of this monitoring to the City in a
written report, which is included in the record on appeal. According to the report, prior to the
flood, the City was "experiencing serious sanitary sewer transport problems," including
excessive silt and debris buildup within the sewers, and inflow and infiltration problems.
¶ 12 Plaintiffs' expert, Rick Arbour, opined that the flooding experienced by the plaintiffs
could have been avoided if the City had done appropriate preventative maintenance of the
sewer system. Arbour's affidavit, included in the record on appeal, states in pertinent part,
that he has "over 49 years of Operation and Maintenance (O&M) experience, all of which is
directly or indirectly related to Sanitary Sewer Systems," and that he was hired by plaintiffs to
offer an opinion as to the flooding of their homes. Arbour explained that the City's sanitary
sewer is a separated system, meaning that sanitary sewage is discharged into a system
separate from the storm water system. He explained that excessive rain water is not supposed
to enter or affect a sewer system lie Chicago Heights "unless the sewer system has a problem
with inflow and infiltration; which clearly the City does." He further explained:
"9. Inflow and infiltration are terms used to denote two types of clear water
that can make their way into a sewer system. Inflow enters the sanitary sewer
system from sump pumps, area/footing drains, roof leaders, manholes or other
17 1-12-2994
connections to the sewer system. Infiltration, or ground water, enters the sewer
system from defects in the system's main line and the private lateral lines owned
by individual residents.
10. Any defect in a sewer, for example, pipe sags, offset joints, protruding
taps, cracks, debris, or root intrusion or pipe installed at less than the
recommended slope can cause debris to pile up and slow the flow of sewage, or in
the case of a blockage, stop the flow of water in the pipe, completely. A stoppage
of this nature will cause the flow to 'back-up' or surcharge the pipe upstream of
the blockage. Further, any time there is a crack or a break in the pipe, this leads
to excessive infiltration of groundwater into the sanitary sewer. This will result in
the surcharging to occur at a higher rate."
¶ 13 He went on to opine that the City knew there was a problem with inflow and
infiltration, but did not fix it, and generally failed to adequately maintain its system. As a
result, the hydraulic conveyance capacity was reduced.
¶ 14 Arbour attested:
"16. This failure to perform any needed maintenance added to the system's
preexisting problems and most definitely played a significant role in the Plaintiffs'
basement flooding. The inescapable conclusion is that the City knew, in the event
of a rain storm, that its system would be inundated with clear water which would
overburden the system and likely cause a backup into homeowner's basements.
The City was well aware of these conditions prior to the flooding of Plaintiffs'
homes and yet it did nothing to remedy the situation."
¶ 15 Arbour opined:
18 1-12-2994
"7. Based upon the evidence that I have reviewed, it is my professional
opinion that the flooding of the Plaintiffs' homes on April 16-17, 2006 was caused
by excessive inflow and infiltration compounded by accumulated debris in the
line which reduced the hydraulic conveyance capacity of the system. More
specifically, the flooding occurred due to:
a. the insufficient capacity in the sewer system caused by excessive
inflow and infiltration that consumed capacity intended to [convey]
wastewater and,
b. a lack of preventative maintenance that allowed system wide
defects to develop in the sewer that severely reduced the hydraulic
capacity of the Defendant's sanitary sewer system."
¶ 16 The City moved for summary judgment on plaintiffs' claims, arguing that the
protections afforded the City by the Tort Immunity Act rendered the City immune from
plaintiffs' claims, and because plaintiffs' negligence claims under the theory of res ipsa
loquitur failed where indisputable facts established that the city was not in exclusive control
over the instrumentalities that allegedly resulted in the flooding suffered by plaintiffs. The
City argued that it was immune from plaintiffs' claims pursuant to section 2-201 of the Tort
Immunity Act. In support of this contention, it argued for immunity because the decisions
regarding the maintenance and operation of the Chicago Heights sewer system "were unique
to the office of the City of Chicago Heights City Council" and the "City Council alone had the
authority and discretion to make decisions related to the allocation of funds, balancing the
priorities of sewage maintenance against that [of] the rest of the Chicago Heights
infrastructure." It argued that the city council of the City of Chicago Heights had the sole
19 1-12-2994
discretionary authority to provide for the maintenance, repair, and operation of the City's
sewer and water systems, that there was no prescribed manner in which the City was to act in
the maintenance, repair, and operation of its sewer and water systems, and that the City
deliberated as to what maintenance and upgrades to its sewer system were advisable in light
of budgetary and other concerns. Some of these deliberations took place in the weeks just
prior to the April 16-17 rainfall.
¶ 17 The City also contended it did, in fact, take action to maintain, repair, and upgrade the
sewer system prior to April 2006. One particular area in which the City took action prior to
April 2006 was work meant to eliminate inflow and infiltration into the sewer systems, a
problem largely caused by illegal connections to the system by Chicago Heights residents.
¶ 18 The City also argued that summary judgment was proper regarding the claim of
negligence under the theory of res ipsa loquitur because plaintiffs were could not prove the
City had exclusive control over the instrumentalities that allegedly caused the injuries
suffered as a result of the flooding.
¶ 19 After hearing arguments, the trial court granted the City's motion for summary
judgment, specifically ruling that plaintiffs' claims were barred by discretionary immunity,
and finding the City was making decisions based upon what it could afford. The court stated:
"THE COURT: *** [T]he way that I see this, it is discretion that these people
don't hire ten guys to go clean the sewers once a month and it is discretion that
they don't take out a $10 million loan and redo all the sewer lines and it is
discretion also that they don't hire an outside contractor to go through with vactor
trucks and clean every manhole and every sewer."
20 1-12-2994
The trial court further held that there was no genuine issue of material fact that the City did
not have sufficient control over the sewer system where "there's all kind of entries and
intrusions into this sewer line that would allow somebody even remotely taking some action
that could have caused the sewer to overflow." The court granted the motion for summary
judgment as to the count alleging negligence under the doctrine of res ipsa loquitur.
¶ 20 In addition, the trial court denied plaintiffs' motion to strike the Sabo affidavit because
Sabo, as an alderman between 1999 and 2007, and the director of city services from 2007 to
2009, could "speak to his firsthand knowledge and memory with the specific ordinances or
resolutions" and could speak to what the mayor's awareness was because "they're at City
Council meetings and he's there and he's able to say in a broad sense what was going on and
certainly from the paper and the documents that are flying around here, I think everybody in
town knew what's going on with respect to the sewer problems."
¶ 21 Plaintiffs appeal the grant of summary judgment.
¶ 22 II. ANALYSIS
¶ 23 A. Governmental Immunity
¶ 24 Plaintiffs first contend the trial court erred in granting summary judgment where the
City is not entitled to discretionary immunity under the Act. Specifically, plaintiffs argue
that their claims arose from the City's ministerial—not discretionary—act of failing to
maintain its sewer system. We disagree.
¶ 25 At the summary judgment stage, a plaintiff is not required to prove its case. See
Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423 (1998). That is, the purpose of
summary judgment is not to try a question of fact, but only to determine whether one exists.
See Jackson, 185 Ill. 2d at 423. Thus, summary judgment is proper only when the pleadings,
21 1-12-2994
affidavits, depositions, and admissions of record, construed strictly against the moving party,
show there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001); 735 ILCS 5/2-
1005 (West 2010). This relief is an appropriate tool to employ in the expeditious disposition
of a lawsuit in which " 'the right of the moving party is clear and free from doubt.' " Morris,
197 Ill. 2d at 35 (quoting Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)). Although the burden
is on the moving party to establish that summary judgment is appropriate, the nonmoving
party must present a bona fide factual issue and not merely general conclusions of law.
Caponi v. Larry's 66, 236 Ill. App. 3d 660, 670 (1992). A genuine issue of material fact
exists where the facts are in dispute or where reasonable minds could draw different
inferences from the undisputed facts. Morrissey v. Arlington Park Racecourse, LLC, 404 Ill.
App. 3d 711, 724 (2010); see also In re Estate of Ciesiolkiewicz, 243 Ill. App. 3d 506, 510
(1993). When determining whether a genuine issue of material fact exists, courts construe
the pleadings liberally in favor of the nonmoving party. Williams v. Manchester, 228 Ill. 2d
404, 417 (2008). "Summary judgment is to be encouraged in the interest of prompt
disposition of lawsuits, but as a drastic measure it should be allowed only when a moving
party's right to it is clear and free from doubt." Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989).
We review summary judgment rulings de novo (Espinoza v. Elgin, Joliet & Eastern Ry. Co.,
165 Ill. 2d 107, 113 (1995)), and we will only disturb the decision of the trial court where we
find that a genuine issue of material fact exists. Addison v. Whittenberg, 124 Ill. 2d 287, 294
(1988). In our review, we may affirm on any basis found in the record regardless of whether
the trial court relied on those grounds or whether its reasoning was correct. Illinois State Bar
Ass'n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill. App. 3d 156, 163 (2004); see
22 1-12-2994
also Pepper Construction Co. v. Transcontinental Insurance Co., 285 Ill. App. 3d 573, 576
(1996).
¶ 26 The Tort Immunity Act recognizes that local governmental units are liable in tort, but
limits this liability with a list of immunities based on specific government functions. See
Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998).
Governmental entities bear the burden of properly raising and proving that they are immune
under the Act in order to bar plaintiffs' recovery. Van Meter v. Darien Park District, 207 Ill.
2d 359, 370 (2003). The purpose of the Tort Immunity Act is "to protect local public entities
and public employees from liability resulting from the operation of government." Ware v.
City of Chicago, 375 Ill. App. 3d 574, 577-78 (2007).
¶ 27 Section 2-201 of the Act provides that "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 2008); In re Chicago Flood
Litigation, 176 Ill. 2d 179, 193-94 (1997). Our supreme court has defined the terms
"discretionary" and "ministerial" as follows:
" '[D]iscretionary acts are those which are unique to a particular public office,
while 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.' "
(Emphases omitted.) Van Meter, 207 Ill. 2d at 371-72 (quoting Snyder v. Curran
Township, 167 Ill. 2d 466, 474 (1995)).
23 1-12-2994
¶ 28 Section 2-201 immunity protects against both negligent and willful and wanton
conduct. Chicago Flood Litigation, 176 Ill. 2d at 195-96. Section 2-209 of the Act allows
municipalities to shelter under the immunity granted to public employees covered by
immunity pursuant to Section 2-201:
"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." 745 ILCS 10/2-109 (West
2008).
¶ 29 For immunity to apply, a defendant's act or omission must be both "the determination
of policy" and "the exercise of discretion." Harinek, 181 Ill. 2d at 341. Policy
determinations involve " 'those decisions which require the municipality to balance
competing interests and to make a judgment call as to what solution will best serve each of
those interests.' " Harinek, 181 Ill. 2d at 342 (quoting West v. Kirkham, 147 Ill. 2d 1, 11
(1992)).
¶ 30 Our supreme court has recognized that "the distinction between discretionary and
ministerial functions resists precise formulation, and that the determination whether acts are
discretionary or ministerial must be made on a case-by-case basis." Snyder, 167 Ill. 2d at
474.
¶ 31 Whether a municipality engages in a program of public improvement is a discretionary
matter, but the manner in which the municipality implements the program is ministerial.
Snyder, 167 Ill. 2d at 474. Our supreme court explored the concept of discretionary versus
ministerial acts in Chicago Flood Litigation:
"Official action is judicial where it is the result of judgment or discretion. Official
duty is ministerial, when it is absolute, certain and imperative, involving merely
24 1-12-2994
the execution of a set task, and when the law which imposes it, prescribes and
defines the time, mode and occasion of its performance with such certainty, that
nothing remains for judgment or discretion. [Citation.] A [municipal]
corporation acts judicially, or exercises discretion, when it selects and adopts a
plan in the making of public improvements, such as constructing sewers or drains;
but as soon as it begins to carry out [the] plan, it acts ministerially, and is bound
to see that the work is done in a reasonably safe and skillful manner.' " Chicago
Flood Litigation, 176 Ill. 2d at 194 (quoting City of Chicago v. Seben, 165 Ill.
371, 378 (1897)).
¶ 32 Where an official's conduct requires deliberation or the exercise of judgment, his or her
actions are discretionary and not ministerial in nature. Donovan v. County. of Lake, 2011 IL
App (2d) 100390, ¶ 62.
¶ 33 In the case at bar, plaintiffs are unable to point to a particular act or omission that this
Court can analyze to determine whether it was ministerial or discretionary. Instead, plaintiffs
ask this court to determine that the City's conduct as a whole in regard to the maintenance
and upkeep of its sewer systems prior to the occurrence period was ministerial. We reject
this reasoning, as the record on appeal supports the conclusion that the City was acting in its
discretionary function. Therefore, we find the trial court properly ruled that the City is
immune from plaintiffs' claims of negligence where the decisions the City made regarding
the maintenance and improvement of its sewer system were discretionary in nature.
¶ 34 The letters from the mayor, in particular, evidence that the City had a plan which it was
implementing. For example, the mayor's March 2006 letter, dated a full month before the
rainstorm and subsequent flooding at issue here, included a plan that "serve[d] as an
25 1-12-2994
expansion of [the City's] current [sewer] rehabilitation program by outlining tasks and budget
assignments designed to bring the [sewer] system into compliance." It included "system
investigations and systematic rehabilitation designed to remove, isolate and pinpoint
Inflow/Infiltration (I/I) sources throughout the City's sanitary sewer transport system." It
then outlined the actions the City had already taken, including an authorization of over
$1,100,000 in private sector and public sector investigations to isolate and identify sources of
infiltration and inflow into the sanitary sewer system; performance of over $1 million in
rehabilitation work since 1997, noting that as "part of our initial phase of sewer
rehabilitation, the City (funded by a $3.2 million low interest loan from the Illinois
Environmental Protection Agency), completed several sewer improvements on the City's
northwest side in 1997." It also noted that it continues to retire the sewer improvement debt
at a rate of $220,000 per year. By that letter, the mayor then outlined specific sewer projects
the City had completed since 1994, resulting in "over $1,100,000 in public sector
rehabilitation repairs to reduce infiltration and inflow into its sanitary sewer system." He
noted the work "greatly reduced" inflow and infiltration entering the sanitary sewer system.
¶ 35 Additionally, the mayor's September 2005 letter also evidenced a plan to improve the
City's sewer systems. That letter also outlined work that had been completed on the sewer,
including dye water flood testing of 137 "high priority" locations. The mayor noted that
manhole rehabilitation is "generally found to be cost-effective due to the relatively low repair
cost and significant I/I reductions achieved," and then proposed a 14-year plan to rehabilitate
the City's manholes, as well as work on sewer lining, flow monitoring, and sewer televising.
¶ 36 In addition, the record includes proof of work being completed on the City's sewers
prior to the April 2006 rainstorm, as evidenced the March 2006 invoice from Robinson
26 1-12-2994
Engineering for "services performed," including "perform flow monitoring, prepare proposal
for sewer cleaning, review sewer cleaning proposals, meeting with Chicago Heights staff and
TCBSD." The April 12, 2006, Robinson Engineering letter shows that it had installed meters
in select manholes in order to monitor flow and study the effects of the inflow infiltration
into the sewer system, and found that the sensors on the monitors were subsequently covered
with silt and unable to accurately measure the flow. The letter then described the proposals
taken for "heavy cleaning of large diameter sewer" that were received at the city council
chambers, and recommended a contract be awarded for the work to be completed.
¶ 37 All of this supports our conclusion that the City was acting in its discretionary
capacity, that is, acting in a manner requiring deliberation and the exercise of judgment,
rather than merely executing a set task. See, e.g., Donovan, 2011 IL App (2d) 100390, ¶ 62
(where an official's conduct requires deliberation or the exercise of judgment, his or her
actions are discretionary and not ministerial in nature); see also Chicago Flood Litigation,
176 Ill. 2d at 194 ("Official action is judicial where it is the result of judgment or discretion.
Official duty is ministerial, when it is absolute, certain and imperative, involving merely the
execution of a set task, and when the law which imposes it, prescribes and defines the time,
mode and occasion of its performance with such certainty, that nothing remains for judgment
or discretion." (Internal quotation marks omitted.)).
¶ 38 Moreover, the mayor's September 2005 letter describing how, "[a]fter the compliance
schedule is agreed upon we subdivide the plans to meet the financial constraints of the yearly
budget" shows the mayor and the city council were trying to stretch the City's dollars and use
the City's resources to fix the problem, recognizing the problem existed and attempting to
find a solution within its budgetary constraints. That fits precisely within the definition of a
27 1-12-2994
policy determination under the Tort Immunity Act, that is, " 'those decisions which require
the municipality to balance competing interests and to make a judgment call as to what
solution will best serve each of those interests.' " Harinek, 181 Ill. 2d at 342 (quoting West,
147 Ill. 2d at 11). Also consistent with making a policy determination is the following
passage from the mayor's March 6, 2006, letter to a local sanitary district official:
"The rehabilitation of all defects found in the entire system is almost never
cost-effective. In any system, however, some rehabilitation is always cost-
effective. The system costs for most sewage collection and treatment systems of
any significant size depend upon its capacity, or the flow it can handle. The
desirable extent of rehabilitation can only be determined objectively by economic
and practical considerations. We are committed to the rehabilitation program
***"
¶ 39 Again, this letter, dated just weeks before the rainstorm at issue here, demonstrates that
the mayor and the City were balancing competing interests and making continued and
ongoing judgment calls as to what set of action would best serve those competing interests.
See Harinek, 181 Ill. 2d at 342.
¶ 40 Plaintiffs' argument that tort immunity should not apply in this case because the City's
"method of operating the sewers" violated Illinois Environmental Protection Agency (IEPA)
regulations is unavailing. In Donovan, the Second District upheld the trial court's dismissal
of a class plaintiffs' negligence claim against the county because the government defendant
was immune from liability pursuant to the Tort Immunity Act. The Donovan plaintiffs
alleged that the county was obligated by the IEPA to chlorinate the water system's
groundwater and that, because the county failed to do so, excessive amounts of bacteria were
28 1-12-2994
detected on various occasions. Donovan, 2011 IL App (2d) 100390, ¶ 7. The plaintiffs
claimed, in pertinent part, that the county was mandated by law to provide water of safe
quality, and was obligated to chlorinate the groundwater it distributed to the plaintiffs and
their neighbors. Donovan, 2011 IL App (2d) 100390, ¶ 20. The trial court dismissed the
claims, finding the county immune from the suit. Donovan, 2011 IL App (2d) 100390, ¶ 59.
The plaintiffs appealed, arguing that the county was not immune because some of the duties
it allegedly breached were ministerial rather than discretionary. Donovan, 2011 IL App (2d)
100390, ¶ 59. The appellate court rejected this claim, finding:
"Here, although the County may have been legally mandated to chlorinate
the water and to provide safe drinking water, our focus is on the manner in which
the County carried out, or failed to carry out, those duties. For example, as to
plaintiffs' factual allegations relating to three IEPA reports of coliform violations
between 2000 and 2005, each required the County to decide the appropriate
means and method to repair the violation, i.e., whether to install chlorination
facilities on the existing site or to completely rebuild the water system, as well as
how to fund the repair. Further, the majority of the allegations in the amended
complaint relate to the required replacement of the water system and whether
customers should bear the entire cost. Those allegations relate to how to replace a
more-than-50-year-old water system and invoke discretionary decisions on the
part of the County. See In re Chicago Flood Litigation, 176 Ill. 2d at 194 (a
municipal corporation acts judicially, or exercises its discretion, when it selects
and adopts a plan in the making of public improvements). Accordingly, we find
that the County met its burden of establishing that count I should have been
29 1-12-2994
barred because the County was shielded from liability under section 2-201 of the
Tort Immunity Act." (Emphasis in original.) Donovan, 2011 IL App (2d) 100390,
¶ 62.
Similarly, here, the City's decisions, even if they were in violation of IEPA regulations, are
considered discretionary and are shielded from liability under section 2-201 of the Tort
Immunity Act.
¶ 41 We understand plaintiffs' frustration that their homes were flooded with waste and we,
like the trial court below, recognize that this flooding may have been avoided had the City's
sewers been better maintained. However, a municipality must function while balancing
many interests, including a limited budget. Here, the City had a plan and was moving
forward on that plan, balancing, as a municipality must, many interests. Even if its conduct
were negligent, we would still find that it was immune from suit under section 2-201. See
Chicago Flood Litigation, 176 Ill. 2d at 195-96. We find no error in the grant of summary
judgment on Count II in favor of the City where the City is subject to immunity under the
Tort Immunity Act.
¶ 42 B. Res Ipsa Loquitur
¶ 43 Next, plaintiffs contend the trial court erred in granting summary judgment in the
City's favor on count I, res ipsa loquitur negligence. Specifically, plaintiffs argue that the
evidence shows the flooding of the plaintiffs' basements "could hot have occurred without an
act of negligence by the City" and, therefore, summary judgment is in error. Plaintiffs claim
the City was negligent in both its maintenance and operation of the sanitary sewer. We
disagree.
30 1-12-2994
¶ 44 To establish their claim for negligence, plaintiffs were required to allege facts
establishing defendant owed them a duty of care, defendant breached the duty of care, and
the alleged breach proximately caused plaintiffs' injuries. Swain v. City of Chicago, 2014 IL
App (1st) 122769, ¶ 14. "The mere happening of an accident does not entitle a plaintiff to
recover. A plaintiff must come forward with evidence of negligence on the part of the
defendant and with evidence that the defendant's negligence was a proximate cause of the
plaintiff's injuries. Proximate cause can only be established when there is a reasonable
certainty that the defendant's acts caused the injury." (Emphasis in original.) Payne v. Mroz,
259 Ill. App. 3d 399, 403 (1994). Proximate cause may not be based on "mere speculation,
guess, surmise or conjecture." Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d
542, 553 (2000). Generally, the issue of cause is a question of fact for the jury, but the lack
of proximate cause may be determined by the court as a matter of law where the facts alleged
failed to sufficiently demonstrate both cause in fact and legal cause. Vertin v. Mau, 2014 IL
App (3d) 130246, ¶ 10.
¶ 45 "The doctrine of res ipsa loquitur requires that (1) the occurrence is one that ordinarily
does not occur in the absence of negligence; and (2) the defendant had exclusive control of
the instrumentality that caused the injury." Britton v. University of Chicago Hospitals, 382
Ill. App. 3d 1009, 1011 (2008). The Third District has explained the doctrine thus:
"Res ipsa loquitur involves a species of circumstantial evidence permitting the
trier of fact to draw an inference of negligence [citation]; the doctrine permits
circumstantial evidence as proof of negligence where direct evidence is primarily
within the control of the defendant [citation]. Once properly invoked, the doctrine
operates to shift the burden of going forward with the evidence to the defendant,
31 1-12-2994
though any presumption of negligence may then be rebutted by the defendant.
[Citations.]" Taylor v. City of Beardstown, 142 Ill. App. 3d 584, 592 (1986).
¶ 46 The requisite control element of res ipsa loquitur is not a rigid standard, but instead is
a flexible one in which the key question is whether the probable cause of the plaintiff's injury
was a cause that the defendant had a duty to the plaintiff to anticipate or guard against.
Heastie v. Roberts, 226 Ill. 2d 515, 532 (2007). It is enough that the defendant has the right
or power of control as well as the opportunity to exercise that right, or that he is under a duty
that he cannot delegate. Lynch v. Precision Machine Shop, Ltd., 93 Ill. 2d 266, 273 (1982).
Nonetheless, it must be shown that the plaintiff's injury can be traced to a specific
instrumentality or cause for which the defendant was responsible or that he was responsible
for all reasonable causes to which the incident could be attributed. Raleigh v. Alcon
Laboratories, Inc., 403 Ill. App. 3d 863, 869 (2010) (citing Napoli v. Hinsdale Hospital, 213
Ill. App. 3d 382, 388 (1991)). Thus, the defendant's responsibility for a specific cause of an
event is proven by eliminating the responsibility of any other person for that cause. Lynch,
93 Ill. 2d at 273. A plaintiff is not required, however, to eliminate all other possible causes
for the injury. Gatlin v. Ruder, 137 Ill. 2d 284, 299 (1990). Additionally, the inference may
be drawn where the defendant shares control with another individual. Lynch, 93 Ill. 2d at
273; see also Loizzo v. St. Francis Hospital, 121 Ill. App. 3d 172, 179-80 (1984) (in medical
malpractice action, res ipsa loquitur does not apply where negligence may be attributed to
one of several individuals and no principle renders them liable in solido or where the injury
may have been caused by a person who was not a joint actor or was not in control of an
injured patient). Furthermore, where res ipsa loquitur is to be applied, all parties who could
32 1-12-2994
have caused the plaintiff's injuries are joined as defendants. Smith v. Eli Lilly & Co., 137 Ill.
2d 222, 257 (1990).
¶ 47 Initially, we note we have already determined herein that, even if the City were
negligent in its maintenance of the sewer, we would still find it was immune from suit under
section 2-201 of the Tort Immunity Act. See Chicago Flood Litigation, 176 Ill. 2d at 195-96.
Regardless, even beyond the issue of immunity, we also find the city is not guilty of
negligence pursuant to the doctrine of res ipsa loquitur where the City simply did not have
sufficient control of the sewer system.
¶ 48 Plaintiff's expert, Rick Arbour, listed numerous ways clear water could enter the sewer
system, slowing the system or overwhelming its hydraulic capacity. For instance, he noted
that inflow could enter the sanitary sewer system from "sump pumps, area/footing drains,
roof leaders, manholes or other connections to the sewer system." Infiltration, or ground
water, can enter the sewer system from "defects in the system's main line and the private
lateral lines owned by individual residents." He further explained that "[a]ny defect in a
sewer, for example, pipe sags, offset joints, protruding taps, cracks, debris, or root intrusion
or pipe installed at less than the recommended slope can cause debris to pile up and slow the
flow of sewage, or in the case of a blockage, stop the flow of water in the pipe, completely.
A stoppage of this nature will cause the flow to 'back-up' or surcharge the pipe upstream of
the blockage. Further, any time there is a crack or a break in the pipe, this leads to excessive
infiltration of groundwater into the sanitary sewer. This will result in the surcharging to
occur at a higher rate." According to plaintiffs' expert, then, while the City's failure to
perform maintenance "added to the system's preexisting problems" and played a "significant
role" in the flooding of plaintiffs' homes, there were also many other avenues from which this
33 1-12-2994
water could have infiltrated the system, overwhelming the system and eventually causing the
surcharge into plaintiffs' basements. We find no error in the trial court's grant of summary
judgment in favor of the City on count I where plaintiffs are unable to show the City was
sufficiently in control of the system for the doctrine of res ipsa loquitur to apply.
¶ 49 C. The Motion to Strike the Sabo Affidavit
¶ 50 Finally, plaintiffs contend the trial court erred in denying their motion to strike the
Sabo affidavit because the motion violated Illinois Supreme Court Rule 191 (eff. Jan. 4,
2013). We disagree.
¶ 51 Supreme Court Rule 191 governs the requirements of affidavits used in support of a
motion for summary judgment. Rule 191 states, in pertinent part:
"Affidavits in support of and in opposition to a motion for summary judgment
under section 2-1005 of the Code of Civil Procedure *** shall be made on the
personal knowledge of the affiants; shall set forth with particularity facts upon
which the claim, counterclaim, or defense is based; shall have attached thereto
sworn or certified copies of all documents upon which the affiant relies; shall not
consist of conclusions but of facts admissible in evidence; and shall affirmatively
show that the affiant, if sworn as a witness, can testify competently thereto." Ill.
S. Ct. R. 191(a) (eff. Jan. 4, 2013).
¶ 52 A Rule 191 affidavit "is actually a substitute for testimony taken in open court and
should meet the same requisites as competent testimony." Harris Bank Hinsdale, N.A. v.
Caliendo, 235 Ill. App. 3d 1013, 1025 (1992). An affidavit that is conclusory and does not
include facts upon which the affiant relies is in violation of Rule 191. Landeros v. Equity
Property & Development, 321 Ill. App. 3d 57, 63 (2001). However, Rule 191 is satisfied if it
34 1-12-2994
appears, from the document as a whole, that the affidavit is based upon the personal
knowledge of the affiant and there is a reasonable inference that the affiant could
competently testify to its contents at trial. Piser v. State Farm Mutual Automobile Insurance
Co., 405 Ill. App. 3d 341, 349 (2010). "It is the function of a trial court to determine the
admissibility of evidence, and its rulings will not be disturbed absent an abuse of discretion."
Piser, 405 Ill. App. 3d at 349-50.
¶ 53 In the case at bar, at the time of the hearing, Sabo had been the Director of the
Department of Street, Sewer and Vehicle Maintenance for the City since 2009, and his
experience with the City went back much further. In his affidavit, Sabo outlines his long
experience with the City, including acting as alderman on the City Council from 1999 to
2007, as Director of the Department of City Services and Projects from 2007 to 2009, and as
Director of the Department of Street, Sewer and Vehicle Maintenance from 2009 to the time
he swore the affidavit. Sabo specifically averred in his affidavit that he made the affidavit
"of [his] own personal knowledge."
¶ 54 Plaintiffs challenge paragraphs 11, 12, 14, 15, 17, 25, and 27 of the Sabo affidavit.
Paragraph 11 provides:
"11. Thorn Creek has the ability to regulate the amount of wastewater that flows
from the City's sanitary sewer system into the Thorn Creek treatment plant."
Plaintiffs argue that this statement contradicts Sabo's deposition testimony in which he
testified he did not have firsthand knowledge of the Thorn Creek treatment plant's ability to
regulate wastewater intake, admitted he could not remember the memo he used to form the
basis of paragraph 11, and did not attach that memo to his affidavit. Plaintiffs argue that "the
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affidavit fails to demonstrate that the affiant, if sworn as a witness, can testify competently to
the matter."
¶ 55 Paragraph 12 of the Sabo affidavit provides:
"12. If for any reason the flow from the City's sewer system into the Thorn
Creek facility was stopped or slowed, this could cause the City's system to backup
and result in backups in the homes and businesses of City residents."
Plaintiffs argue that this is speculative and violates Supreme Court Rule 191 because: 1) it is
a conclusion unsupported by facts; and 2) Sabo does not have personal knowledge of the
underlying facts.
¶ 56 Paragraph 14 provides:
"14. A blockage in a City resident's lateral lines could and often does cause
sewage backups into the resident's home and/or the backup of sewage into other
residents' homes."
Plaintiffs argue this paragraph contains an improper conclusion and "fails to set forth with
particularity the basis of the statements, consists only of the conclusions of the affiant
unsupported by facts, and fails to affirmatively show that the affiant, if sworn as a witness,
can testify competently to the matter."
¶ 57 Paragraph 15 of the Sabo affidavit provides:
"15. The City Council adopted as the standard for operations and maintenance
of its municipal sewer systems to have a system that can handle events involving less
than a 50 year storm."
Plaintiffs argue this paragraph violates Supreme Court Rule 191 because it contains the
conclusion that the standard adopted by the City was to have a sewer system that could
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handle events involving less than a 50-year storm, but Sabo testified in his deposition that he
did not know whether the resolution at issue applied to operations and maintenance or
whether it related only to design. Plaintiffs also argue that the resolution forming the basis
for the opinion should have been attached to the affidavit.
¶ 58 Paragraph 17 of the Sabo affidavit provides:
"17. The Chicago Heights City Council alone has the authority to allocate funds
for and initiate a plan to maintain, repair and /or upgrade the City's sewer system."
Plaintiffs argue that paragraph 17 "contains a legal opinion regarding authority to manage the
City's sewer system, and fails to set forth any facts in support of that opinion," that it fails to
set forth with particularity the basis of the statements and fails to show that the affiant could
competently testify to the matter.
¶ 59 Paragraph 25 of the Sabo affidavit provides:
"25. In 2005, The City Council made the policy decision, in full cooperation
with Thorn Creek, that the work required to bring the sewer system into compliance
with infiltration limits would be completed in 2015."
Plaintiffs challenge paragraph 25, arguing it contains an improper conclusion unsupported by
facts, and argue that the resolution at issue should have been attached to the affidavit.
¶ 60 Paragraph 27 of the Sabo affidavit provides:
"27. The type of flooding that Plaintiffs allege they suffered in this case can
occur in the homes of Chicago Heights' residents as a result of an obstruction in the
sanitary sewer system despite the City's regular maintenance and inspection of the
system."
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Plaintiffs argue this paragraph conflicts with the requirements of Rule 191 because it
contains a conclusion without supporting facts, it fails to "set forth with particularity the basis
of the statements," and fails to affirmatively show that the witness could testify competently
to the matter.
¶ 61 At the hearing on the motion for summary judgment, the trial court did not appear to
rely on the Sabo affidavit. It ruled on the motion to strike the affidavit, however, and noted:
"THE COURT: I heard your arguments on [the motion to strike] so I
should rule on that, too, and I think I'm going to allow that affidavit to stand but
I'll state some of the reasons for the record.
Mr. Sabo was the Alderman between 1999 and 2007. Then after that, '07 to
'09, he was Director of City Services, and he talks about the legislative
enactments and ordinances. And I respect that what [plaintiffs' attorney is] saying
that he doesn't attach the ordinances or these resolutions that he's referencing, but
as a firsthand witness and as a person that was in the city council during the
timeframe that most of the paragraphs that he's referencing, I think he can speak
to his firsthand knowledge and memory without the specific ordinances or
resolutions. So even those and I think he can state what maybe not the Mayor's
policy was or the awareness but I think he can even say what the Mayor's
awareness was. I mean they're at City Council meetings and he's there and he's
able to say in a broad sense what was going on and certainly from the paper and
the documents that are flying around here, I think everybody in town knew what's
going on with respect to the sewer problems. So I'm going to deny the motion to
strike the affidavit also."
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¶ 62 Sabo was one of six aldermen for the City of Chicago Heights before, during, and after
the April 2006 rainstorm. Sabo's affidavit established that, based on his service as an
alderman from 1999 to 2007, he had detailed knowledge regarding the functioning of the city
council and the City's maintenance and operation of its sewer system over a period of years
both prior to and subsequent to the April 2006 flood at issue. His affidavit also established
that he served as the director of city services and projects between 2007 and 2009, and then
as the director of street, sewer, and vehicle maintenance departments for the City from 2009
forward. This experience, in combination with the facts contained in Sabo's affidavit,
including his specific statement that the affidavit was based on his "own personal
knowledge," are sufficient to establish that he had personal knowledge of the facts contained
in his affidavit. See, e.g., Piser, 405 Ill. App. 3d at 349 (Rule 191 is satisfied if it appears,
from the document as a whole, that the affidavit is based upon the personal knowledge of the
affiant and there is a reasonable inference that the affiant could competently testify to its
contents at trial.). We find no abuse of discretion in the trial court's denial of plaintiffs'
motion to strike.
¶ 63 III. CONCLUSION
¶ 64 For all of the foregoing reasons, the decision of the circuit court of Cook County is
affirmed.
¶ 65 Affirmed.
Related
Cite This Page — Counsel Stack
2015 IL App (1st) 122994, 31 N.E.3d 824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-city-of-chicago-heights-illappct-2015.