Salvi v. Village of Lake Zurich
2016 IL App (2d) 150249
| Ill. App. Ct. | 2017Background
- Marita Salvi (successor trustee) owned property with an office building adjacent to a stormwater detention pond reconstructed and maintained by the Village of Lake Zurich pursuant to a 2000 Easement Agreement among the Church, Village, and Library.
- The Easement Agreement limited impervious coverage to 60% per parcel and granted the Village rights/duties to rehabilitate and maintain the pond; plaintiff alleged the Village performed work contrary to the Agreement and county Watershed Ordinance.
- After Village and Library developments and pond work, heavy rains in June 2013 caused the pond to overflow and flood the building’s lower floor; plaintiff sued the Village (tort counts I–III; contract count VI as third‑party beneficiary; mandamus count VII).
- The Village moved to dismiss under a hybrid 2‑615/2‑619.1 motion invoking the Tort Immunity Act and other defenses; the trial court dismissed all counts and treated the flood as an "act of God."
- On appeal, the court analyzed whether Tort Immunity provisions applied to each count and whether counts VI (contract) and VII (mandamus) stated viable claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tort Immunity bars tort claims (Counts I–III) | Salvi argues Village’s active reconstruction/maintenance and permitting violated Watershed Ordinance and common‑law duties, causing flooding | Village argues statutory immunities (e.g., §2‑103, §3‑105) and that weather/act of God caused flooding | Reversed dismissal of Counts I–III; Tort Immunity provisions cited did not bar claims as alleged (Village’s activity/noncompliance alleged) |
| Whether §2‑103 (failure to enforce) or permit immunities apply | Salvi: claims allege noncompliance/active misconduct, not mere nonenforcement | Village: claims rest on Watershed Ordinance and thus are immune under §2‑103 and permit immunities | §2‑103 and permit immunities inapplicable where plaintiff alleges active noncompliance and negligent design/maintenance |
| Whether plaintiff is a third‑party beneficiary of Easement Agreement (Count VI) | Salvi: Agreement protects pond and contiguous properties; building was the foreseeable beneficiary | Village: Salvi wasn’t a party and Agreement doesn’t expressly intend to benefit her | Dismissal of Count VI affirmed for failure to plead intended third‑party beneficiary; dismissal vacated as to prejudice (leave to amend possible) |
| Whether mandamus is available to compel pond/parcel work (Count VII) | Salvi seeks orders to reduce impervious coverage, modify pond, report violations, build berms, and redesign pond | Village: requested relief is discretionary/operational and not subject to mandamus; other remedies exist | Dismissal of Count VII affirmed with prejudice: mandamus inappropriate where relief is discretionary/private duty and tort remedy available |
Key Cases Cited
- Zimmerman v. Village of Skokie, 183 Ill. 2d 30 (Ill. 1998) (discusses public duty rule and governmental duty principles)
- Van Meter v. Darien Park District, 207 Ill. 2d 359 (Ill. 2003) (Tort Immunity Act immunities are affirmative defenses and must be proved by government)
- Coleman v. East Joliet Fire Protection District, 2016 IL 117952 (Ill. 2016) (abolished common‑law public duty rule)
- Marshall v. Burger King Corp., 222 Ill. 2d 422 (Ill. 2006) (standards for 2‑615 motions attacking legal sufficiency)
- Ziencina v. County of Cook, 188 Ill. 2d 1 (Ill. 1999) (application of §3‑105 to weather‑related street/sidewalk claims)
- Dial v. City of O'Fallon, 81 Ill. 2d 548 (Ill. 1980) (distinguishing municipal public duties from private/neighborly acts creating liability)