Berry v. City of Chi.

• Decision Date: 22 May 2019
• Docket Number: No. 1-18-0871,1-18-0871
• Citation: 133 N.E.3d 1201,2019 IL App (1st) 180871,433 Ill.Dec. 921
• Parties: Gordon BERRY and Ilya Peysin, Plaintiffs-Appellants, v. The CITY OF CHICAGO, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 180871

133 N.E.3d 1201

433 Ill.Dec. 921

Gordon BERRY and Ilya Peysin, Plaintiffs-Appellants,

v.The CITY OF CHICAGO, Defendant-Appellee.

No. 1-18-0871

Appellate Court of Illinois, First District, SIXTH DIVISION.

May 22, 2019

JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Gordon Berry and Ilya Peysin, appeal the order of the circuit court dismissing their class action complaint alleging negligence and inverse condemnation, which they filed after the defendant City of Chicago (City) replaced the water main and/or water meter servicing their homes. On appeal, plaintiffs contend the court erred in dismissing their complaint where (1) the complaint sufficiently alleged a claim of negligence and plaintiffs properly sought medical monitoring as relief, based on the City's actions in replacing/repairing its lead pipe water service and water meters, and (2) plaintiffs sufficiently alleged a claim of inverse condemnation where the City's actions caused the release of high levels of lead in their water supply over time, resulting in damage to plaintiffs' property. For the following reasons, we reverse and remand for further proceedings.

¶ 2 JURISDICTION

¶ 3 The trial court dismissed plaintiffs' complaint with prejudice on March 29, 2018. Plaintiffs filed their notice of appeal on April 20, 2018. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing appeals from final judgments entered below.

¶ 4 BACKGROUND

¶ 5 The following facts are alleged in plaintiffs' complaint.

¶ 6 Lead is a well-documented environmental contaminant "that is highly poisonous to humans" and "bioaccumulates in the body over time." Exposure to lead harms the nervous system and can lead to various ailments, "including neuropathy, motor nerve dysfunction, weakened immunity to disease, renal failure, gout, hypertension, muscle and joint pain, memory and concentration problems, and infertility." The effect of lead in the body is far more problematic in children and is connected to stunted brain development, reduction in intelligence quotient (IQ), intense aggression, and other behavior issues. Even low levels of lead exposure in children "have been linked to damage to the central and peripheral nervous system, learning disabilities, shorter stature, impaired hearing, and impaired formation and function of blood cells."

¶ 7 Since the human body does not remove lead from the system, it accumulates over time and can remain for years in soft tissue, organs, bones, and teeth. Thus, the effect of lead on children can be " ‘long lasting’ " if not " ‘permanent.’ " Moreover, the effects of lead may not appear for years. Blood lead testing is a universally recognized and reliable method of testing lead levels because results can be compared "to the published standard of 10 µg/dL, established by the Center[s] for Disease Control" and Prevention (CDC).

¶ 8 In 1986, an amendment to the Safe Drinking Water Act ( 42 U.S.C. § 300f et seq. ), imposed a ban on the use of lead pipes in public water systems. Safe Drinking Water Act Amendments of 1986, Pub. L. No. 99-339, 100 Stat. 642. Up until this point, the City required residents to install lead service lines "even in the face of all the public health warnings over the past century." As a result, "nearly 80 percent of the properties in Chicago receive their drinking water via lead pipes." Over time, lead pipes can corrode resulting in the " ‘transfer of dissolved or particulate lead into the drinking water.’ " To minimize this risk, defendant treats its water supply with "Blended Polyphosphate," which causes a chemical reaction that coats "the interior of water mains, house services, and plumbing in an attempt to prevent the pipes from corroding" and leaching lead into the drinking water.

¶ 9 This treatment is not foolproof, however, and the protection can fail when "construction or street work, water and sewer main replacement, meter installation or replacement, or plumbing repairs" are performed. When the City replaces the water main or meter, the "[d]rilling, digging, as well as moving or bending [of] the pipes can all cause the interior coating to flake off and the polyphosphate protection to fail." When the water is turned back on, "the violent rush of water into the pipes disrupts the protective coating," putting residents at further risk of lead exposure. Unsafe lead levels can persist "for weeks or months after the disturbance."

¶ 10 Also, in reconnecting the residential lead service lines to the water mains after replacement or repair, the City performs a "partial" replacement in which it replaces a portion of the lead service line with copper. When sections of a lead pipe are replaced with copper, a galvanic cell (a battery) is created that can cause the release of lead into water as the pipes corrode. Organizations such as the American Academy of Pediatrics and the CDC Advisory Committee on Childhood Lead Poisoning Prevention have expressed concern about elevated water lead levels from partial lead service line replacements. This particular repair is discouraged by the United States Environmental Protection Agency's (EPA) science advisory board and the American Water Works Association. But it is standard procedure in Chicago when crews damage lead pipes during water main work. Cities such as Washington D.C. and Boston have ceased their accelerated lead service line replacement programs due to these dangers.

¶ 11 Between 2005 and 2011, the EPA tested the water of homes connected to lead service lines in Chicago to determine whether the Lead and Copper Rule (Rule), the existing federal regulation for sampling water, sufficiently identified high lead levels in the water supply. The Rule "seeks to manage lead levels in drinking water by setting a ‘lead action level.’ " Currently, " ‘the lead action level is exceeded if the concentration of lead in more than 10 percent of tap water samples collected during any monitoring period ... is greater than 0.015 mg/L.’ " Using the Rule, the EPA found that "[o]f the 13 sites where there had been a recently documented physical disturbance * * * virtually all of them produced samples that exceeded the lead action level under the Lead and Copper Rule," which was "in stark contrast" to samples taken from undisturbed sites. In October 2013, the commissioner of the Chicago Department of Water Management wrote a letter to alderman about the concerns raised in the study. The City, however, found that the water is "absolutely safe to drink."

¶ 12 The City began modernizing its water system in 2008 and since 2009 has conducted more than 1600 water main and sewer replacement projects. The American Water Works Association recommends that "immediately following a lead service line replacement, cold water should be run for at least 30 minutes at full flow after removing the faucet aerator" to flush out any lead debris that may have resulted from the replacement. It instructs that residents should begin at the lowest level of their homes and open the cold water taps fully, letting the water run for at least 30 minutes. After the 30 minutes, "they should turn off each tap starting with the taps in the highest level of the home." The EPA also recommends that a household with lead service lines should flush pipes for three to five minutes whenever the water has not been used for several hours. Residents "should be warned that they should not consume tap water, open hot water faucets, or use an icemaker or filtered water dispenser until after flushing is complete."

¶ 13 Prior to 2013, the City informed residents after replacing water mains only that the water may be shut off a couple of times. In September 2013, the City began to advise residents to, after replacement of their old water main,

"please open all your water faucets and hose taps and flush your water for 3 to 5 minutes. Sediment and metals can collect in the aerator screen located at the tip of your faucets. These screens should be removed prior to flushing. This flushing will help maintain optimum water quality by removing sediment, rust, or any lead particulates that may have come loose from your property's water service line as a result of the water main replacement."

¶ 14 Plaintiff Berry resides at 5411 S. Harper Avenue in Chicago. The City replaced the water main on his block in 1998, and replaced the water meter at his home in 2009. In replacing the water meter, the City disturbed the lead service lines running to his home, causing the interior protective coating to be compromised. Violent flushing of the water when it was turned back on caused more damage to the interior coating. The water meter was reconnected using galvanized pipes that placed Berry and his family at further risk of lead contamination. In January 2016, a routine check-up revealed that Berry's two-year-old granddaughter, who resided with him, had high lead levels in her blood.

¶ 15 On February 11, 2016, the City tested the water at Berry's residence, and results showed that it contained 17.2 parts per billion (ppb) of lead. The EPA's recommended lead action level is 15 ppb. On March 4, 2016, the City collected another 10 samples of drinking water from the residence, and the tests revealed results reaching as high as 22.8 ppb. Berry was not informed of these results until early May 2016, when an investigative reporter informed him that his residence appeared on a list showing addresses where the water supply tested for significant lead content. Berry's water was tested again, and the 10 samples taken showed lead levels ranging from 7.6 ppb to 30.8 ppb. Berry's granddaughter and her parents have since moved out of his home. Plumbers have confirmed that Berry's service line is lead, and Berry received quotes to replace the remaining portion of the lead service line that range from $ 14,000 to $ 19,000.

¶ 16 Plaintiff Peysin...