2019 IL App (1st) 170859
Ill. App. Ct.2019Background
- Plaintiffs (homeowners in Maine Township) allege stormwater flooding of their homes on Sept. 13, 2008, caused by defects in the Prairie Creek Stormwater System and by drainage modifications at an adjacent hospital (Advocate).
- The amended fifth amended complaint (filed 2012) named several public entities (Park Ridge, Maine Township, Metropolitan Water Reclamation District) asserting negligence, negligent nuisance, negligent trespass, statutory duties under the Tort Immunity Act, and a takings claim under the Illinois Constitution.
- Defendants moved to dismiss under section 2-615 (public duty rule) and section 2-619 (Tort Immunity Act immunities). The trial court dismissed in 2015 under the public duty rule.
- After the Illinois Supreme Court abolished the public duty rule in Coleman (2016), plaintiffs moved to reconsider; the trial court briefly vacated its dismissal but then reinstated it, holding Coleman should not apply retroactively.
- The appellate court considered whether Coleman applies retroactively and whether alternative bases (Tort Immunity Act or pleading failures) independently supported dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of Coleman (abolishing public duty rule) | Coleman should apply retroactively so plaintiffs’ suit can proceed | Coleman should not apply retroactively; defendants relied on settled pre-Coleman law and would suffer unfair prejudice | Court: Coleman created new law but presumption of retroactivity stands; Aleckson factors do not overcome it here → Coleman applies retroactively (reversed trial court on public duty rule) |
| Applicability of public duty rule to stormwater/public improvements | Public duty rule inapplicable or never applied to public improvements/owned sewers | Public duty rule barred duties to individual homeowners (prior to Coleman) | Court: because Coleman abolished the rule and is retroactive, public duty rule cannot be used to dismiss; court did not rule definitively on whether public duty historically applied to such improvements |
| Sufficiency of common-law claims (nuisance, trespass, takings) | Facts alleged support negligent nuisance, negligent trespass, and inverse condemnation/takings | Claims insufficient or causation not adequately pleaded; dismissal proper | Court: negligent nuisance, negligent trespass, and takings claims survive 2-615 dismissal (sufficiently pleaded); adjacent-landowner/dominant-estate and certain statutory-duty counts fail |
| Tort Immunity Act defenses (various sections) as alternate grounds for dismissal | Plaintiffs argued statutory duties are codifications of common law; counts survive | Defendants invoked multiple immunities (2-201 discretionary/policy, 2-104 permits, 2-105 inspections, 3-110 waterways) | Court: most immunity defenses insufficient on the pleadings to warrant 2-619 dismissal; some statutory-duty counts were dismissed because statute codifies common law and plaintiffs had mischaracterized them as standalone statutory duties |
Key Cases Cited
- Coleman v. East Joliet Fire Protection Dist., 2016 IL 117952 (Illinois Supreme Court abolished the common-law public duty rule)
- Hampton v. Metro. Water Reclamation Dist., 2016 IL 119861 (temporary flooding can constitute a taking under Illinois Constitution)
- Village of Bloomingdale v. CDG Enters., 196 Ill. 2d 484 (Tort Immunity Act grants immunities but does not create duties)
- Van Meter v. Darien Park Dist., 207 Ill. 2d 359 (standards for Tort Immunity Act discretionary-immunity analysis)
- Tosado v. Miller, 188 Ill. 2d 186 (factors governing retroactive/prospective application of court decisions)
- Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82 (framework for when a later court may limit retroactivity)
- In re Chicago Flood Litigation, 176 Ill. 2d 179 (nuisance and takings principles; distinction between nuisance and trespass)
- Seben, City of Chicago v. Seben, 165 Ill. 371 (1897) (historical treatment of municipal liability for sewers; discussed but distinguished)