Even as City Hall has announced a new city initiative to help replace residential lead water lines, Illinois’ highest state court has bottled up a class action that threatened to flood City Hall with legal claims over elevated lead contamination risk from the old lead water lines.
On Sept. 24, the Illinois Supreme Court overturned the ruling of a state appeals court, ruling a Cook County judge was correct in finding the Chicago homeowners needed to do more than simply claim the lead in their water was dangerous to hold up their claims that the city had harmed them and essentially illegally taken their properties.
The decision was authored by Chief Justice Anne M. Burke.
Illinois Supreme Court Chief Justice Anne M. Burke
| Illinoiscourts.gov
Burke’s husband, Ed Burke, serves as an alderman on the Chicago City Council, and had, for decades, served as chairman of the City Council’s powerful Finance Committee, before he was indicted on charges of allegedly shaking down developers to steer business to his law firm.
Burke was joined in the decision by fellow justices Rita B. Garman, Lloyd A. Karmeier and Mary Jane Theis.
“In this case, plaintiffs have alleged only that the City’s replacement of water mains and meters has made the proposed class members’ property ‘more dangerous,’” Burke wrote. “The concept of ‘dangerousness’ is not susceptible to objective measurement and, thus, cannot by itself be damage under the Illinois takings clause.”
The decision ends the class action that has moved through Chicago courts since it was filed in Cook County Circuit Court in 2016. In that complaint, attorneys with the firms of Hagens Berman Sobol Shapiro LLP, of Chicago, and the Freydin Law Firm, of Skokie, accused the city of endangering the health of Chicago residents.
The case was filed on behalf of named plaintiffs Ilya Peysin and Gordon Berry.
The action centered on work the city has undertaken since 2008 to replace city water lines made of lead, to gradually reduce the large number of Chicago properties that receive drinking water through lead pipes.
To reduce the risk of lead contamination, the city has long treated its drinking water with chemicals to react with lead and create a coating in the pipes to prevent lead from contaminating drinking water.
However, when coated pipes are disturbed by activity, such as city work to replace other water lines, lead can again enter the water. In their complaint, plaintiffs alleged the city’s work led to elevated lead levels in their water long after the city completed its water line replacement work.
Particularly, they claimed the city heightened the risk of lead contamination by connecting pipes made of copper or galvanized steel to the lead service lines that enter homes, which causes more lead to leach into the drinking water used by those customers.
The plaintiffs asserted the heightened danger of lead contamination has amounted to a so-called inverse condemnation of their property. Essentially, they argue the city’s actions made their properties worth substantially less, without compensating them for the harm.
The plaintiffs have asked the courts to order the city to replace residential lead service lines throughout the city, and pay for medical monitoring for city residents who may have been exposed to lead in their drinking water.
Cook County Judge Raymond Mitchell dismissed the lawsuit, saying the plaintiffs didn’t suffer any “special” harm that also may not have been spread across the city.
However, on appeal, a split three-justice panel of the Illinois First District Appellate Court in Chicago sided with the plaintiffs. The majority said the plaintiffs “sufficiently alleged a present injury in consuming lead-contaminated water, even if they have yet to develop physical ailments linked to such consumption.”
The city then took the case to the state Supreme Court, where justices said the appeals court got the case wrong.
The majority said the “increased risk of harm” was not sufficient to sustain the class action.
“Almost anything that a person does while living and working in the world can create a risk of harm to others,” Chief Justice Burke wrote. “The long-standing and primary purpose of tort law is not to punish or deter the creation or this risk but rather to compensate victims when the creation of risk tortiously manifests into harm.”
In the opinion, Burke said the request for medical monitoring was all but superfluous.
“Without an increased risk of future harm, plaintiffs would have no basis to seek medical monitoring,” Burke wrote. “In other words, plaintiffs’ allegation that they require ‘diagnostic medical testing’ is simply another way of saying they have been subjected to an increased risk of harm.
“And, in a negligence action, an increased risk of harm is not an injury.”
The chief justice and the court’s majority also rejected the claims related to inverse condemnation.
Burke noted the plaintiffs never presented any allegations either their properties – much less properties across the city – had lost value “because of any increased danger caused by the City’s work.”
And Burke and the majority said the plaintiffs all continue to use city water, through the “dangerous” lead service lines, while also presenting no evidence that the city violated any federal or state regulations in the way in which it has repaired the water lines.
In a footnote, the high court justices noted Chicago City Hall has recently announced new programs to help fund replacement of lead water service lines for qualifying residences throughout the city. They said they were unsure what impact those new programs may have on their decision in the class action.
Justices Thomas L. Kilbride, P. Scott Neville and Michael Burke took no part in the decision, according to the posted opinion.
Kilbride and Neville are both on the ballot this fall. Kilbride is seeking retention from the state’s Third Appellate District which includes Will and Kankakee counties and a large swath of north central and western Illinois.
Neville is seeking election to the court from the state’s First Appellate District, which includes only Cook County. Neville was appointed to the court in 2018 following the retirement of Justice Charles E. Freeman.
Both Kilbride and Neville are Democrats.
Michael Burke, a DuPage County Republican, was appointed to the state Supreme Court seat for the Illinois Second District Appellate Court in March 2020, following the retirement of Justice Robert R. Thomas.
The state Supreme Court heard arguments on the Chicago lead water lines class action in January 2020.
Michael Burke is scheduled to stand for election in 2022.