2013 IL App (4th) 120645
Ill. App. Ct.2013Background
- Plaintiffs Pleasant Hill Cemetery Association and Keith Smith own/lease farmland; Morefield is Arrowsmith Township Road Commissioner.
- Plaintiffs allege Morefield altered surface water flow on 3200 East Road, damaging the farmland in 2008–2010.
- Counts allege violations of the Drainage Law via unreasonable changes to natural drainage patterns causing property damage and reduced farming income.
- Defendant moved to dismiss under 2-619(a)(9) asserting immunity under 745 ILCS 10/2-201 (Tort Immunity Act).
- Trial court dismissed with prejudice; plaintiffs appealed; defendants submitted uncontradicted affidavit of policy-based decisions.
- Court reviews de novo whether immunity applies and whether willful/wanton conduct defeats immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does immunity apply under 2-201 to the drainage-alteration actions? | Association urges no immunity for tort-like drainage actions. | Morefield asserts immunity for discretionary policy decisions. | Yes, Morefield has immunity under 2-201. |
| Do the claims sound in tort, triggering the Tort Immunity Act? | Actions are not torts, labeled as Drainage Law relief. | Actions are torts (nuisance) and reach immunity. | Actions sound in tort and are subject to the Tort Immunity Act. |
| Is the relief sought restitution excluded by 2-101, or damages barred by 2-201? | Seeking restitution rather than damages under 2-101. | Relief is damages; thus immunity applies. | Relief sought is damages; immunity applies. |
| Is there a non-immunity exception for willful and wanton conduct under 3-108? | Willful/wanton conduct would override immunity. | Affidavits show no willful/wanton conduct; not enough to defeat immunity. | No willful/wanton exception; no defeat of immunity. |
| Did defendant's flood-control decisions amount to an unreasonable use under nuisance standards? | Decisions violated reasonable drainage obligations harming land. | Policy-based decisions balanced public safety with land impact; reasonable. | Defendant's actions were reasonable; not a nuisance and within immunity. |
Key Cases Cited
- Meyers v. Kissner, 149 Ill. 2d 1 ( Ill. 1992) (nuisance-like drainage tort recognized)
- In re Chicago Flood Litigation, 176 Ill. 2d 179 ( Ill. 1997) (tort-type interference with surface water acknowledged)
- Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248 ( Ill. 2004) (limits on 2-101 restitution vs damages; restitution relief not in tort context)
- Van Meter v. Darien Park District, 207 Ill. 2d 359 ( Ill. 2003) (immunity requires policy determination and discretion)
- Templeton v. Huss, 57 Ill. 2d 134 ( Ill. 1974) (standard of reasonableness of use in nuisance context)
- Swickert v. Gillespie, 2012 IL App (4th) 120043 ( Ill. App. 4th 2012) (affirmative findings require reasonableness rather than willfulness)
- Dovin v. Winfield Township, 164 Ill. App. 3d 326 ( Ill. App. 2nd Dist. 1987) (nuisance standards apply to drainage issues)
- Advincula v. United Blood Services, 176 Ill. 2d 1 ( Ill. 1996) (abuse of discretion standard for immunity)
- Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558 ( Ill. 2006) (affirms that pleadings can be used to test sufficiency under 2-619)