PLEASANT HILL CEMETERY ASSOCIATION and KEITH SMITH, Plaintiffs-Appellants, v. TIMOTHY MOREFIELD, Road Commissioner of the Arrowsmith Township Road District, Defendant-Appellee.
No. 4-12-0645
Appellate Court of Illinois, Fourth District
April 10, 2013
2013 IL App (4th) 120645
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
Plaintiff’s action seeking damages arising from defendant road commissioner’s alteration of the surface flow of water onto plaintiff’s farmland was barred by the Tort Immunity Act, regardless of plaintiff’s contention that the complaint was not an action in tort, since, even assuming that the Act applies only to actions in tort, unreasonably altering the flow of surface water amounts to the tort of nuisance.
Decision Under Review
Appeal from the Circuit Court of McLean County, No. 11-MR-245; the Hon. Paul G. Lawrence, Judge, presiding.
Judgment
Affirmed.
Mercer Turner (argued), of Law Office of Mercer Turner, P.C., of Bloomington, for appellants.
Robert J. Lenz (argued), of Bloomington, for appellee.
Panel
JUSTICE APPLETON delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Knecht concurred in the judgment and opinion.
OPINION
¶ 1 The plaintiffs in this case are Pleasant Hill Cemetery Association (Association) and Keith Smith. The Association owns some farmland, which Smith, as a tenant farmer, rents from the Association. The defendant is Timothy Morefield, the highway commissioner of Arrowsmith Township. Plaintiffs brought this case against Morefield for allegedly altering the surface flow of water, and thereby damaging the farmland, by some work he did on 3200 East Road in Arrowsmith Township.
¶ 2 Invoking the immunity in section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (
¶ 3 In their appellate briefs, plaintiffs offer no convincing rationale for holding the immunity in
I. BACKGROUND
¶ 5 The amended complaint has two counts, both of which allege that defendant violated the “Drainage Law” by making “unreasonable and material changes to the natural drainage patterns” on land that the Association owned and which Smith, as a tenant farmer, had been renting from the Association. Count I is the Association’s action against defendant. Count II is Smith’s action against defendant.
¶ 6 Both counts allege as follows. “In multiple phases during 2008 through 2010, the Defendant constructed a new farm drainage system, all related to and along 3200 East Road, which materially affects the farm real estate of the [Association], which is contiguous to 3200 East Road” and “immediately downstream from the changes.”
¶ 8 In count I, the Association specifically describes the property damages it allegedly has incurred as a result of defendant’s alteration of the natural drainage patterns. For this property damage, the Association seeks compensation in an amount in excess of $50,000. Count I alleges:
“9. The changes created by the Defendant in the natural drainage pattern created the following adverse conditions for the [Association’s] farm real estate, which have damaged the Plaintiff:
(a) a reduction in tillable acres,
(b) a reduction in the productivity due to the need to delay planting,
(c) increased erosion,
(d) a need to replace existing drainage tile which will become uncovered as a result of erosion, and
(e) a need to install additional drainage tile to remove the additional volume of water flowing onto the premises, which does not drain away since the additional inflow was not placed into an existing drainage pattern[ ],
which collectively has reduced the value of the [Association’s] farm real estate by an amount in excess of $50,000.00, which damage the [Association] is seeking herein.
10. Plaintiff’s use and enjoyment of his affected land has been unreasonably and substantially invaded, creating a confiscatory effect.
11. The changes described *** above proximately caused the damage Plaintiff has suffered.”
¶ 9 Likewise, in count II, Smith alleges:
“9. The changes created by the Defendant in the natural drainage pattern caused the following adverse conditions for the [Association’s] farm real estate, which have damaged [Smith] by reducing his income:
(a) a reduction in tillable acres,
(b) a reduction in the productivity due to the need to delay planting,
(c) increased erosion, and
(d) a need to install additional drainage tile to remove the additional volume of water onto the premises, which does not drain away since the additional inflow was not placed into an existing drainage pattern.
10. [Smith’s] use and enjoyment of his affected land has been unreasonably and
substantially invaded, creating a confiscatory effect.
11. The changes described *** above proximately caused the damage Plaintiff has suffered, which amount [sic] to a reduction in farm income in excess of $50,000.00[ ].”
¶ 10 The prayer in both counts is for a “Judgment against Defendant in an amount in excess of $50,000.”
¶ 11 Pursuant to
¶ 12 Defendant acknowledged that
¶ 13 Along with his motion for dismissal, defendant filed his affidavit, in which he averred as follows:
“1. Affiant is an adult resident of the State of Illinois, is under no legal disability, and makes this Affidavit of his own personal knowledge.
2. I am the duly elected Highway Commissioner of Arrowsmith Township, County of McLean, State of Illinois.
3. During the Spring of 2010 I made a policy decision in my official capacity as Township Road Commissioner by making a judgment call that it best served all of the interests in my township that I honor Plaintiffs’ request to clean out and deepen the township road drainage ditch on the west side of 3200 East Road.
4. At my direction, and in my discretion as Township Highway Commissioner, the drainage ditch in the township road right-of-way on the west side of 3200 East Road was clean [sic] out and deepen [sic] during the Spring of 2010.
5. During 2010 I made a policy decision in my official capacity as Township Road Commissioner by making a judgment call that it best served all of the interests in my township that the natural flow of water from east to west be dispersed underneath 3200 East Road rather than flowing over the roadway.
6. In my official capacity as Township Highway Commissioner I judged that it was
necessary as a matter of public safety that the natural flow of water from east to west be directed underneath 3200 East Road rather than flowing over the top of the roadway where it was washing out the shoulders and thereby creating a hazardous condition.
7. In support of my policy decision to direct the water, as it continued its natural flow to the west, under 3200 East Road rather than on top of it, I directed that improvements be made to 3200 East Road during June of 2010 removing one old culvert and installing three new culverts in the same location.
8. In my discretion as Township Highway Commissioner I directed that the three new culverts installed during June of 2010 replacing the one old culvert underneath 3200 East Road were all of a larger size than the old culvert.
9. All Arrowsmith Township Road District improvements made to 3200 East Road, Arrowsmith Township by and at my direction during the time I have served as Arrowsmith Township Highway Commissioner were the result of policy decisions I made in my official capacity balancing competing interests and making a judgment call as to what solution would best serve each of the competing interests in my jurisdiction.
10. All Arrowsmith Township Road District improvements made to 3200 East Road, Arrowsmith Township by and at my direction during the time I have served as Arrowsmith Township Highway Commissioner were the result of discretionary acts unique to the office of Township Highway Commissioner undertaken by me.”
¶ 14 Plaintiffs filed no counteraffidavit.
II. ANALYSIS
A. Our Standard of Review
¶ 17 On appeal from the dismissal of a complaint as barred by affirmative matter (
¶ 18 We accept as true all well-pleaded facts in the complaint. Hellweg, 2011 IL App (1st) 103604, ¶ 5. Conclusions do not qualify as “well-pleaded facts.” Hanks v. Cotler, 2011 IL App (1st) 101088, ¶ 17. If the amended complaint contains conclusions–either legal conclusions or conclusory factual allegations–we disregard them unless they are earned by specific allegations of fact. Id.
¶ 19 Whenever it would be reasonably defensible to draw an inference in the plaintiff’s favor from the well-pleaded facts, we draw that inference. Id. In other words, we look at the complaint in its best possible light. Hellweg, 2011 IL App (1st) 103604, ¶ 5.
¶ 20 In scrutinizing the complaint, we take for granted that it states a cause of action, because a motion for dismissal pursuant to
¶ 21 Unless the affirmative matter is already apparent on the face of the complaint, the defendant must support the affirmative matter with an affidavit or with some other material that could be used to support a motion for summary judgment. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). The plaintiff then must come forward with a counteraffidavit refuting the evidentiary facts in the defendant’s affidavit, or else those facts will be deemed admitted. Id. Given the affidavits and pleadings, we decide whether there is a genuine issue of material fact that should have precluded the dismissal of the complaint, or, alternatively, if there is no genuine issue of material fact, we decide whether the dismissal was legally justified. Id. at 116-17.
B. Plaintiffs’ Contention That Their Actions Do Not Sound in Tort
¶ 23 Plaintiffs quote the appellate court’s reasoning in Raintree Homes, Inc. v. Village of Long Grove, 335 Ill. App. 3d 317, 320 (2002), that “the Tort Immunity Act *** applies only to actions in tort.” That case, however, went to the supreme court, and the supreme court was unconvinced by the appellate court’s reasoning that the Tort Immunity Act applied only to tort actions. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 261 (2004) (“we do not adopt or approve of the appellate court’s reasoning that the Tort Immunity Act categorically excludes actions that do not sound in tort“). In any event, plaintiffs argue that their actions, which allege violations of the “Drainage Law,” are not actions in tort and that, hence,
¶ 24 Assuming, for the sake of argument, that the Tort Immunity Act applies only to actions in tort, plaintiffs’ actions do sound in tort. Damaging someone’s land by unreasonably altering the flow of surface water is a nuisance (Meyers v. Kissner, 149 Ill. 2d 1, 10-11 (1992)), and a nuisance is a tort (In re Chicago Flood Litigation, 176 Ill. 2d 179, 207 (1997)). In fact, the Restatement (Second) of Torts has a section devoted to this type of tort, section 833, entitled “Interference With the Flow of Surface Waters.” Restatement (Second) of Torts § 833 (1979). Comment b of section 833 describes the same tortious interference with water drainage that plaintiffs allege in their amended complaint:
“When one person drains or cultivates his land, grades it or builds roads, structures or embankments upon it, he usually interferes with the flow of surface waters upon or across it; and this interference often causes harm to a neighbor in the use and enjoyment of his land. That harm may arise from the backing up of water on the neighbor’s land or from an increase in the flow of the water or from a change in its direction or velocity. *** Whatever the particular situation may be, the same general rules apply in determining liability for the invasion of the neighbor’s interest in the use and enjoyment of his land as apply when an invasion results through vibrations, noise, smoke or the pollution of waters. In all these cases the type of interest invaded is the same, the only difference being in the manner in which the invasion is caused and in the type of conduct that causes it.” Restatement (Second) of Torts § 833 cmt. b (1979).
C. Plaintiffs’ Attempt To Relabel, as Restitution, the Damages That They Explicitly Seek in Their Amended Complaint
¶ 26
¶ 27 Plaintiffs’ actions, however, are significantly different from the action in Raintree, both in legal theory and in the remedy sought. In Raintree, a village ordinance required the plaintiffs to pay “impact fees” in return for each building permit the village issued to them. Id. at 252. The plaintiffs sought a declaratory judgment that the village lacked statutory and constitutional authority to enact such an ordinance, and they also sought a refund of the impact fees they had paid to the village. Id. at 253. The village moved for the dismissal of the amended complaint, pursuant to section 2-619(a)(5) of the Code of Civil Procedure (
¶ 28 In the present case, by contrast, plaintiffs do not bring an action for declaratory judgment; they bring a tort action–and as its name announces, the Tort Immunity Act applies to tort actions. Also, as plaintiffs repeatedly say in their amended complaint, they seek an award of damages. They do not seek restitution. As the supreme court explained in Raintree, restitution is measured by the defendant’s unjust gain, whereas damages are measured by the plaintiff’s loss. Raintree, 209 Ill. 2d at 257. In paragraphs 9 and 11 of both counts of the amended complaint, plaintiffs purport to measure their monetary remedy by the property damage they allegedly have suffered. Hence, they seek damages, not restitution.
¶ 30 In Van Meter v. Darien Park District, 207 Ill. 2d 359, 375 (2003), the supreme court reiterated its holding from previous cases, that, in order for a public employee to have immunity under section 2-201 of the Tort Immunity Act (
¶ 31 Plaintiffs seem to be arguing that the Tort Immunity Act immunizes public employees only insomuch as they make lawful choices. The trouble with that argument is that it makes the Tort Immunity Act pointless. A tort is, by definition, contrary to law–it is a civil wrong, a breach of a legal duty, for which the law affords a remedy (Black’s Law Dictionary 1496 (7th ed. 1999))–and by immunizing a public employee from tort liability, the Tort Immunity Act necessarily immunizes the public employee from liability for choosing the “unlawful way,” provided that the public employee’s conduct is not willful and wanton (
¶ 32
E. The Theory That Defendant Is Guilty of Willful and Wanton Conduct and Therefore Not Immune
¶ 34 Plaintiffs argue that, under section 3-108 of the Tort Immunity Act (
¶ 35 More to the point, defendant could have responsibly decided that eliminating a threat to public safety was worth the additional burden that might be placed on the Association’s land. Plaintiffs assert in their amended complaint that defendant had a “common law and statutory obligation to maintain natural drainage patterns.” On the contrary, that is not the law. Instead, case law has adopted a standard of “reasonableness of use” (Templeton v. Huss, 57 Ill. 2d 134, 141 (1974)): essentially, a nuisance standard, under which the benefits to the higher property, from the altered drainage pattern, are weighed against the harm to the lower property (Swigert v. Gillespie, 2012 IL App (4th) 120043, ¶ 32; Dovin v. Winfield Township, 164 Ill. App. 3d 326, 335-36 (1987), overruled on other grounds by Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill. 2d 179 (1989)).
¶ 36 It was not willful and wanton conduct on defendant’s part to decide that the safety of drivers outweighed the risk of disrupting the drainage patterns on the Association’s land. According to defendant’s unrebutted affidavit, water flowing over 3200 East Road had been washing away the shoulders of the road, endangering drivers, and to keep the water from washing away the shoulders, defendant installed additional and larger culverts under the road, so that the water would flow under the road instead of over it. “When supporting affidavits have not been challenged or contradicted by counteraffidavits or other appropriate means, the facts stated therein are deemed admitted.” (Internal quotation marks omitted.) Thurman, 2011 IL App (4th) 101024, ¶ 21. To be guilty of willful and wanton conduct, defendant had to pursue “a course of action which show[ed] *** an utter indifference to or conscious disregard for the safety of others or their property.”
¶ 37 In sum, in our de novo review, we find no genuine issue of material fact that would have precluded the dismissal of the amended complaint, and we conclude that the dismissal was legally justified because, under
¶ 39 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 40 Affirmed.