Chicago Flood Litigation, In re
| Decision Date | 20 February 1997 |
| Docket Number | 80535,Nos. 80460,s. 80460 |
| Citation | 680 N.E.2d 265,176 Ill.2d 179 |
| Parties | , 223 Ill.Dec. 532 In re CHICAGO FLOOD LITIGATION. |
| Court | Illinois Supreme Court |
Chicago Corp. Counsel by Susan S. Sher, Lawrence Rosenthal, Deputy Corporation Counsel, Theodore R. Tetzlaff, Jenner & Block, Chicago, Carney & Brothers, Ltd., McDermott, Will & Emery, Winston & Strawn, Cassiday, Schade & Gloor, Lord, Bissell & Brook, Larry D. Drury, Susman, Saunders & Buehler, Lawrence Walner, Lawrence Walner and Associates, Denise Y. Staniec, Kostow & Daar, Clausen Miller P.C., Robbins, Kaplan, Miller & Ciresi, Cooney and Conway, Lynn A. Goldstein, The First National Bank of Chicago, Steven E. Nieslawski, Cahill, Christian & Kunkle, Ltd., John D. Cassiday, Cassiday, Schade & Gloor, Chicago, for ITT Hartford.
Lawrence Rosenthal, Deputy Corporation Counsel, Chicago, for City of Chicago.
In April 1992, the underground freight tunnel system in the central business district of Chicago flooded. Numerous named plaintiffs (class plaintiffs) represent individuals and businesses that claim property damage and economic loss as a result. ITT Hartford (Hartford), the subrogee of several additional claimants, opted out of the certified class. Class plaintiffs and Hartford each brought an action in the circuit court of Cook County against defendants, the City of Chicago (City) and the Great Lakes Dredge and Dock Company (Great Lakes). Class plaintiffs and Hartford sought damages for their various alleged injuries.
The trial court granted in part and denied in part the City's and Great Lakes' motions to dismiss. 735 ILCS 5/2-615, 2-619 (West 1994). The court also certified several questions for interlocutory appeal (155 Ill.2d R. 308), and found that there was no just cause to delay appeal of several additional issues (155 Ill.2d R. 304(a)).
In an unpublished order (Nos. 1-93-0207, 1-93-0209, 1-93-0318, 1-93-1570, 1-93-1602, 1-93-1848, 1-93-1902, 1-94-387, 1-94-388 cons. (unpublished order under Supreme Court Rule 23)), the appellate court upheld all but two of the trial court's rulings. We allowed class plaintiffs' and Hartford's separate petitions for leave to appeal (155 Ill.2d R. 315) and consolidated the causes for review; the City cross-appeals (155 Ill.2d R. 318(a)). We now affirm the appellate court in part and reverse in part.
A motion to dismiss under either section 2-615 or section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1994)) admits all well-pled allegations in the complaint and reasonable inferences to be drawn from the facts. Anderson v. Anchor Organization for Health Maintenance, 274 Ill.App.3d 1001, 1012, 211 Ill.Dec. 213, 654 N.E.2d 675 (1995); Pechan v. DynaPro, Inc., 251 Ill.App.3d 1072, 1083-84, 190 Ill.Dec. 698, 622 N.E.2d 108 (1993); Davis v. Weiskopf, 108 Ill.App.3d 505, 509, 64 Ill.Dec. 131, 439 N.E.2d 60 (1982). The complaints allege as follows. An old, underground freight tunnel system (tunnel) is located under the central business district of Chicago, commonly known as the Loop, and the Chicago River. Many buildings in the Loop are connected directly or indirectly to the tunnel. Before 1959, the tunnel was used to transport freight in the Loop. Since 1959, the City has owned the tunnel and, since the 1970s, has leased the tunnel to a number of utility and telecommunication companies to carry their service lines. The tunnel crosses under the Chicago River at different locations, including near the Kinzie Street bridge.
In May 1991, the City entered into a contract with Great Lakes, which provided that Great Lakes would remove and replace wood piling clusters at five Chicago River bridges, including the Kinzie Street bridge. The contract warned Great Lakes not to drive the pilings "at any other location than that specified by the City * * * [because] even slight position changes may cause serious damage to various underground * * * structures." The contract further provided that if Great Lakes failed to heed this warning, Great Lakes would be liable to repair such damages at its own expense.
By September 1991, Great Lakes informed the City that it had fully completed the work. However, Great Lakes had installed the pilings at the Kinzie Street bridge in a location other than originally designated in the contract. During pile driving at the bridge, Great Lakes caused a breach in the tunnel wall by physically breaking, weakening, or creating excessive pressure on the tunnel wall.
In January 1992, a television crew using the tunnel discovered the breach in the tunnel wall at the Kinzie Street bridge. By February 1992, the television crew notified the City of the tunnel damage. During March and early April 1992, City employees inspected the tunnel, photographed the damage, and recommended immediate repairs.
On or about April 13, 1992, the tunnel breach opened. In a sudden torrent and continuing flow, the Chicago River rushed into the tunnel and, ultimately, into buildings connected to the tunnel. Approximately 200,000 persons were evacuated from numerous Loop buildings. On April 14, the Governor of the State of Illinois declared the Loop and surrounding areas a state disaster area. The next day, the President of the United States declared the area a federal disaster area. Thousands of Loop building occupants were unable to return to their respective places of business for days or weeks thereafter while emergency repairs and cleaning took place. Class plaintiffs and Hartford sought damages for various alleged losses proximately caused by the flood, including: injury to their property; lost revenues, sales, profits, and good will; lost wages, tips, and commissions; lost inventory; and expenses incurred in obtaining alternate lodging.
Class plaintiffs' complaint contains 10 counts, five of which are directed against the City. Class plaintiffs alleged that the City failed to: (1) properly contract for, administer, and supervise Great Lakes' pile driving activities; (2) exercise ordinary care to maintain, repair, and protect the tunnel both before and after the breach (but only up to the time of the actual flood); and (3) warn class plaintiffs of the dangerous condition caused by the tunnel breach when the City learned of it. Class plaintiffs allege that these acts constitute willful and wanton misconduct (count III) and negligence (count IV). Class plaintiffs also alleged that the City and Great Lakes were engaged in abnormally dangerous (count VII) and ultrahazardous (count VIII) activities-pile driving and maintaining the tunnel-and were strictly liable for any resulting damages. Class plaintiffs also alleged that they were the third-party beneficiaries of the contract between the City and Great Lakes, which both parties breached (count V). Class plaintiffs subsequently voluntarily dismissed this count.
The trial court granted the City's motion to dismiss the strict tort liability counts. The court also ruled that the Moorman doctrine (see Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982)) barred from recovery those plaintiffs who did not allege physical property damage, but rather only economic loss. The court also ruled that the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 1994)) immunized much of the City's alleged negligence. As part of class plaintiffs' appeal, the trial court certified the following questions for review (155 Ill.2d R. 308):(1) whether the City's proprietary use of the tunnel precludes immunity under the Tort Immunity Act; (2) whether the Tort Immunity Act immunizes any of the City's alleged failures to adequately contract for, supervise, or monitor the river piling work; and (3) whether the Moorman doctrine bars the claims of those plaintiffs who allege only economic loss. The court also allowed class plaintiffs to appeal (155 Ill.2d R. 304(a)) from the dismissal of the abnormally dangerous and ultrahazardous counts.
The trial court denied the City's motion to dismiss as to the failure-to-repair and the failure-to-warn theories in the negligence count, and the willful and wanton misconduct count. The court denied the motion also as to those plaintiffs seeking recovery for perishable inventory lost as a result of interrupted utility service and for unspecified property damage. As part of the City's appeal, the trial court certified the following questions for review: (1) whether the City is not liable to class plaintiffs as a matter of law for its failure to promptly repair the tunnel or to warn class plaintiffs of the tunnel damage, because either the Tort Immunity Act immunizes the City, or the City did not owe class plaintiffs a duty to perform those acts; (2) whether there is a willful and wanton exception to the discretionary act immunity granted to the City by the Tort Immunity Act; and (3) whether the Moorman doctrine bars the claims of those plaintiffs who seek tort recovery for loss of perishable inventory and unspecified property damage.
Hartford is the subrogee of several additional individuals and businesses that it insures. Hartford opted out of the certified class and filed a complaint, which it subsequently amended, against the City and Great Lakes. Hartford's complaint included a strict tort liability claim based on an ultrahazardous activity theory and a nuisance claim.
The trial court granted the City's and Great Lakes' motion to dismiss these claims. The court again ruled that pile driving is not an ultrahazardous activity. The court also dismissed the nuisance claim as to Hartford's subrogors who did not incur any:...
To continue reading
Request your trial
-
S. Cal. Gas Co. v. Superior Court of L. A. Cnty.(In re S. Cal. Gas Leak Cases)
... ... P.2d 745.) Based on concerns about limitless liability and unending 247 Cal.Rptr.3d 642 litigation, as well as on long-standing legal consensus, we considered that prospect "doubtful." ( Ibid .) ... Court, for example, reached the same result for similar reasons in litigation flowing from a flood caused by human error that inundated downtown Chicago in 1992. (See 7 Cal.5th 404 In re Chicago ... ...
-
Jane Doe 20 v. Bd. Of Educ. Of The Cmty. Unit Sch. Dist. No. 5
... ... v. Park Forest-Chicago ... Heights, 315 F.3d 817, 824 (7th Cir.2003), ... quoting Davis v. Monroe County Bd. of ... school students." Id. Nabozny explicitly ... left these possibilities open for future litigation. Id. [680 F.Supp.2d 977] Alton and Nabozny, therefore, do not ... unequivocally preclude a ... against both negligent and willful and wanton conduct. In re Chicago Flood Litigation, 176 I11.2d 179, 195-96, 223 Ill.Dec ... 532, 680 N.E.2d 265 (1997). For 2-201 ... ...
-
Mach Mold Inc. v. Clover Associates, Inc.
... ... KM Industrial Machinery Co.; GES Exposition Services; City of Chicago; F.H. Paschen, S.N. Nielsen, Inc.; Illinois Bell Telephone; & People's Gas Light & Coke Co ... litigation. Its contentions that Mach Mold did not own the machine or ... Page 1027 ... have the risk of ... In Doyle, a group of homebuyers who were required to purchase flood insurance sued the City of Marengo for issuing occupancy permits without first obtaining letters of ... ...
-
Loeffel Steel Products, Inc. v. Delta Brands, Inc.
... ... Connelly, Matthew Patrick Connelly, William Edward Snyder, Connelly, Roberts & McGivney, Chicago, IL, for Plaintiff ... H.N. Cunningham, III, James C. Baker, Roberts, Cunningham ... See In re Chicago Flood Litigation, 176 Ill.2d 179, 200, 223 Ill.Dec. 532, 680 N.E.2d 265, 275 (1997); Mars, Inc. v ... ...