Park Ridge homeowners have retained a window of hope in their campaign to hold neighboring Advocate Lutheran General Hospital liable for flooding.
After the Cook County Circuit Court dismissed two counts of the homeowners’ class-action complaint, the First District Appellate Court reversed one of those dismissals in an unpublished order issued in December.
The issue arose from a Sept. 13, 2008, storm and a subsequent Feb. 12, 2009, class action complaint alleging the hospital’s storm drainage system was designed to drain into neighboring residential properties. That suit named eight additional defendants that were not parties to this appeal, including Berger Excavating Contractors, Cook County, Gewalt Hamilton Associates, the village of Glenview, Maine Township, Metropolitan Water Reclamation District of Greater Chicago and the city of Park Ridge.
Named plaintiffs in the action included Dennis Tzakis, Julia Cabrales, Zenon Gil, Zaia Giliana, Cathy Ponce and Juan Solis.
Advocate has owned Lutheran General since 1976. The hospital modified natural drainage patterns several times, and the complaint alleged the involved parties are on the record as being aware of increased flood risk as far back as October 1976. The appeal in question involved the homeowners’ Jan. 20, 2012, amended fifth complaint — specifically counts 10 and 11 of a 13-count document, for intentional nuisance and intentional trespass, respectively.
A month after the homeowners filed the fifth complaint, the hospital moved to dismiss all counts. Regarding count 10, the hospital said the homeowners’ claim was legally insufficient as private nuisance can only apply to unreasonable or unlawful use of one’s own property, and factually insufficient because the homeowners didn’t allege facts showing the hospital acted intentionally.
For count 11, the hospital said the homeowners’ “allegations were incomprehensible and unanswerable” and also did not demonstrate the hospitals’ intent.
Judge Sophia H. Hall presided over the Cook Country Circuit Court that on Dec. 20, 2013, granted the dismissal of counts 10 and 11. On both counts, the court agreed the homeowners did not present an argument the hospital acted intentionally.
The appellate court agreed with the hospital’s contention the homeowners forfeited the right to appeal count 10 since they failed to raise any arguments or cite any authority regarding count 10 in their opening appellate brief.” Though the homeowners cited six cases in their opening brief, they all addressed the trespass claim, not the nuisance complaint.
For count 11, appellate justices said it had to determine if the homeowners had “alleged sufficient facts to support the inference (Advocate) knew to a substantial certainty that its actions would cause flooding to plaintiffs’ homes.” And although the homeowners’ filing did rely heavily on conclusory allegations, it also included enough specific alleged facts to support the inference the hospital acted with knowledge it might cause neighboring homes to flood, justices said.
The homeowners’ “allegations, taken as a whole, illustrate a pattern of flooding starting in 1976, before defendant acquired its property adjacent to plaintiffs’ homes,” according to the order. Further, they “include sufficient specific facts to support the inference that defendant was aware of the recurring flood pattern that caused damage to plaintiffs’ homes” and that the corrective action it took would not fully solve the runoff problems plaguing the neighborhood.
The order explained that, although count 11 does have “several arguably conclusory allegations,” the allegations contained enough supporting specifics to allow the case to continue.
Justice Robert E. Gordon delivered the appellate order; justices Jesse Reyes and Bertina E. Lampkin concurred.
Plaintiffs in the case were represented by the firm of Defrees & Fiske, of Chicago.
Advocate was defended by Cassiday Schade, of Chicago.