Cook County Record

Wednesday, January 29, 2020

Lutheran General neighbors get new chance to sue cities for OKing hospital's stormwater discharge


By Scott Holland | May 31, 2019

Advocate lutheran general hospital
Advocate Lutheran General Hospital | Zol87 from Chicago, Illinois, USA [CC BY-SA 2.0 (]

CHICAGO — A state appeals panel breathed new life into a lawsuit suburban homeowners brought against municipalities, claiming they should be held liable for allowing Advocate Lutheran General Hospital to discharge stormwater they say has flooded their properties.

Defendants in the class action complaint include Glenview, Niles, Park Ridge, Maine Township and the Metropolitan Water Reclamation District of Chicago.  Park Ridge, Maine Township and the MWRD requested a dismissal, claiming they didn’t owe a duty to any individual, but only to the community at large.

Though a Cook County judge granted that dismissal in 2015, the Illinois Supreme Court abolished the publish duty rule in its 2016 opinion in Coleman v. East Joliet Fire Protection District. Following that, the county court first granted plaintiffs’ motion to reconsider, but six months later vacated that order and reinstated the dismissal.

Justice Robert Gordon |

The plaintiffs appealed that decision to the Illinois First District Appellate Court, arguing the public duty rule should be applied retroactively and that no other basis existed to dismiss the initial complaint. Justice Robert Gordon wrote the opinion issued May 30; Justices Margaret McBride and Jesse Reyes concurred.

Gordon quoted the Coleman opinion, in which the Supreme Court held “the time has come to abandon the public duty rule and its special duty exception. … In cases where the legislature has not provided immunity for certain governmental activities, traditional tort principles apply.”

The panel said the public duty rule has been applied to many different government services, but agreed it “has not been considered in the context of a public improvement.” It also found it is the first court to consider applying Coleman retroactively, and said the Supreme Court didn’t expressly address retroactive application.

“There is no way to read Coleman without concluding that the Supreme Court was making new law by overturning longstanding precedent,” Gordon wrote. “It was eminently reasonable for defendants to rely on the public duty rule in challenging plaintiffs’ claims against them, and there is no basis for claiming that Coleman did not represent a change in law.”

Still, the panel reasoned, there is dispute over whether the public duty rule would apply regardless of the Coleman outcome. Gordon wrote the plaintiffs would’ve appealed the April 2015 dismissal, putting the panel in position of considering the underlying circumstances. Ultimately, the panel said the trial court erred in finding Coleman couldn’t apply retroactively and reversed dismissal based on the public duty rule.

The panel agreed the plaintiffs sufficiently alleged the defendants’ conduct caused the alleged damages. However, it also said the county court was right to dismiss counts under the Tort Immunity Act because the plaintiffs insisted on alleging a statutory, rather than a common law, violation. It also dismissed counts based on common law negligence, saying the defendants aren’t liable because they’re not adjacent landowners.

Counts of negligent nuisance survived, as the plaintiffs alleged “defendants negligently permitted an accumulation of storm water runoff in their drainage and sewage systems due to their management of the systems, which caused flood water to invade and interfere with plaintiffs’ property.” The negligent trespass claims also survived, Gordon said, as the defendants approved the hospital’s plans and the panel already found the plaintiffs’ intentional trespass claims against the hospital sustainable.

The panel also refused to dismiss claims the flooding could be seen as improper taking of private property in violation of the state constitution. Although the government defendants didn’t own the property, Gordon said, they were directly involved in approving the hospital’s infrastructure plans. At this point, the question isn’t if the plaintiffs will win on their takings claim, only that they have a plausible argument to bring to the pleading stage.

Gordon said while some of the surviving claims might be subject to the defendants’ tort immunity, “we cannot agree with their position that they are wholly immune from liability such that dismissal is warranted.”

According to Cook County court records, the plaintiffs have been represented by attorneys with the firm of William J. Sneckenberg & Associates, of Chicago.

Defendants have been represented by the firm of Cassiday Schade LLP, of Chicago.

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Organizations in this Story

Cassiday Schade LLPIllinois Supreme CourtIllinois First District Appellate CourtCircuit Court of Cook CountySneckenberg, William J Assocs

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