Berry v. City of Chi.

• Court: Illinois Supreme Court
• Writing for the Court: CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with opinion.
• Citation: Berry v. City of Chi., 2020 IL 124999, 181 N.E.3d 679, 450 Ill.Dec. 327 (Ill. 2020)
• Decision Date: 24 September 2020
• Docket Number: Docket No. 124999
• Parties: Gordon BERRY et al., Appellees, v. The CITY OF CHICAGO, Appellant.

2020 IL 124999

181 N.E.3d 679

450 Ill.Dec. 327

Gordon BERRY et al., Appellees,

v.The CITY OF CHICAGO, Appellant.

Docket No. 124999

Supreme Court of Illinois.

Opinion filed September 24, 2020.

Mark A. Flessner, Corporation Counsel (Benna Ruth Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant Corporation Counsel, of counsel), and Richard C. Godfrey, J. Andrew Langan, Andrew R. Running, and R. Chris Heck, of Kirkland & Ellis LLP, both of Chicago, for appellant.

Mark T. Vazquez, of Hagens Berman Sobol Shapiro LLP, of Chicago, Steve W. Berman, of Hagens Berman Sobol Shapiro LLP, of Seattle, Washington, Elizabeth A. Fegan and Timothy A. Scott, of Fegan Scott LLC, and Philip H. Corboy Jr., of Corboy & Demetrio, P.C., both of Chicago, and David Freydin, of Freydin Law Firm LLP, of Skokie, for appellees.

Albert Ettinger, of Chicago, and Neil Levine, of Denver, Colorado, for amicus curiae Public Justice P.C.

OPINION

CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with opinion.

¶ 1 In January 2017, named plaintiffs, Gordon Berry and Ilya Peysin, filed a two-count amended class-action complaint against the defendant, the City of Chicago (City), on behalf of "all residents of the City of Chicago who have resided in an area where the City has replaced water mains or meters between January 1, 2008, and the present." The complaint raises claims of negligence and inverse condemnation in relation to the City's replacement of water meters and water main pipes, as well as the partial replacement of lead service lines that run between the water mains and residences throughout the City.¹

¶ 2 The circuit court dismissed the complaint with prejudice for failure to state a cause of action pursuant to section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2016) ). On appeal, the appellate court, with one justice dissenting, reversed the dismissal and remanded for further proceedings. 2019 IL App (1st) 180871, 433 Ill.Dec. 921, 133 N.E.3d 1201.

¶ 3 We granted the City's petition for leave to appeal ( Ill. S. Ct. R. 315 (eff. July 1, 2018)) and now reverse the judgment of the appellate court.

¶ 4 BACKGROUND

¶ 5 The following facts are alleged in plaintiffs' amended complaint. We accept them as true for purposes of our review. Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006).

¶ 6 The City supplies water to its residents in part through water mains and service lines. The water mains are owned by the City and typically run beneath streets in residential areas. The service lines connect the water mains to individual residences. The portion of the service line that lies beneath a resident's property and connects to the home is owned by the resident. The remaining portion, across the property line and closest to the water main, is owned by the City.

¶ 7 Until 2008, approximately 80% of the City's residential service lines were made of lead. Older lead pipes can corrode, resulting in the transfer or leaching of lead particles into the water. This presents a health hazard because lead is a poisonous metal that can be toxic to humans when ingested.

¶ 8 To reduce the possibility of lead leaching from the service lines, the City treats its water supply with "Blended Polyphosphate." This chemical reacts with lead and forms a protective coating on the inside of the lead pipes, thereby reducing the risk of lead entering the water supply by means of corrosion. This treatment, however, is not foolproof. The protective coating can be compromised when it is disturbed as a result of "construction or street work, water and sewer main replacement, meter installation or replacement or plumbing repairs" or by the rush of water that occurs when the residence's water supply is turned back on following a temporary shutoff.

¶ 9 In addition, there may be a heightened risk of future lead contamination when, during the replacement of a water main, the City-owned portion of a lead service line is replaced with copper or galvanized pipe but the remaining, privately owned portion of the line is left in place. This is because the resulting connection between the new pipe and the old lead pipe triggers a chemical reaction known as galvanic corrosion, a process that occurs when two dissimilar metals come into contact in the presence of water.²

¶ 10 In 2008, the City began modernizing its water system by removing and replacing antiquated water meters and more than 900 miles of the City's antiquated water mains. From 2008 through 2013, the City provided no warnings or instructions to residents who might be affected by the modernization projects. Instead, City residents were informed only that they might experience periodic shutoffs of their water while the work was being performed. It was not until September 2013 that the City began instructing affected residents to run all of their faucets for three to five minutes after having their water service turned back on, so as to flush out "sediment, rust, or any lead particulates that may have come loose from [the] property's water service line as a result of the water main replacement."

¶ 11 Plaintiff Gordon Berry resides in the 5400 block of South Harper Avenue in Chicago. In 1998, the City replaced the water main on his block. In 2009, the City replaced the water meter at his home, which was located outside the front of the home in a small pit or well between the sidewalk and the street. Berry alleges that, when replacing the water meter, the City disturbed the lead service line running to his home, causing the interior protective coating to be compromised, and that the flushing of the water when it was turned back on caused additional displacement of the interior coating. Further, the water meter was reconnected using galvanized iron pipes, which increased the risk of lead corrosion in the service line.

¶ 12 In January 2016, Berry's wife, his son, his son's wife, and his two-year-old granddaughter lived with him at his residence. At that time (approximately 18 years after the water main was replaced and 7 years after his water meter was replaced), a routine checkup revealed that Berry's two-year-old granddaughter had heightened levels of lead in her blood. On February 11, 2016, the City took three samples of the water at Berry's residence. The results showed that the water contained 17.2 parts per billion (ppb) of lead, which is higher than the Environmental Protection Agency's (EPA) recommended lead "action level" of 15 ppb. Berry was not informed of the exact levels of lead; rather, he was told that the water should be retested.

¶ 13 On March 4, 2016, the City collected another 10 samples of drinking water from Berry's residence. These tests revealed levels of lead 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 as having "significant" lead content. Berry's water was tested a third time on May 13, 2016. This time the testing showed lead levels ranging from 7.6 ppb to 30.8 ppb in the 10 samples taken. Berry's granddaughter and her parents have since moved out of his home.

¶ 14 Berry continues to use the City-supplied water but has installed water filters in his home in order to eliminate any lead. Plumbers have confirmed that Berry's service line is lead. Replacement of this line, according to quotes Berry received, would cost between $14,000 and $19,000. Berry does not allege that he or any current member of his household is suffering from any physical impairment or dysfunction caused by the ingestion of lead-contaminated water.

¶ 15 Plaintiff Ilya Peysin resides in the 6500 block of North Albany Avenue in Chicago, with his wife and children. In April 2015, the City replaced 2536 feet of water main on North Albany Avenue, which included the water main in front of Peysin's home. In connection with that work, the City sent Peysin a letter advising him to "open all [his] water faucets and hose taps and flush [his] water for 3 to 5 minutes" in order to remove "sediment, rust, or any lead particulates that may have come loose from your property's water service line." Peysin's water was tested by a private firm on October 28, 2016, and the results showed that, after five minutes of flushing, the lead level registered at 5.8 ppb, which was below the EPA action level of 15 ppb but still considered "Significant." The testing firm's report indicated that lead may be leaching into the tap water from the service line, and a plumber confirmed that Peysin's service line is lead. The report further advised Peysin that, although running water for a minute or more before using can help reduce lead exposure, it "will not work" in his case because the lead level in his water was "Significant" or "Serious" after prolonged flushing. Like Berry, Peysin does not allege that he or any current member of his household is suffering from any physical impairment or dysfunction caused by the ingestion of lead-contaminated water.

¶ 16 On January 9, 2017, plaintiffs filed a two-count amended class-action complaint in the circuit court of Cook County. In count I, titled "Negligence," plaintiffs allege that the City has a duty to exercise reasonable care in supplying water to its residents. According to plaintiffs, the City violated this duty when it performed the construction work to replace water mains and meters and when it failed to warn residents about the risks of lead exposure from lead service lines associated with such work. Plaintiffs further allege that the City's negligence "proximately caused Plaintiffs' and the Class members' damages and their increased risk of harm as documented herein." As relief, plaintiffs seek the establishment of "a trust fund *** to pay for the medical monitoring of all Class members" and notification of all class members in writing "that they may require frequent medical...