Doyle v. Vill. of Tinley Park

• Decision Date: 28 September 2018
• Docket Number: No. 1-17-0357,1-17-0357
• Citation: 115 N.E.3d 1069,2018 IL App (1st) 170357,426 Ill.Dec. 147
• Parties: Patricia DOYLE and Brian Doyle, Plaintiffs-Appellants, v. The VILLAGE OF TINLEY PARK and Malone & Moloney, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 170357

115 N.E.3d 1069

426 Ill.Dec. 147

Patricia DOYLE and Brian Doyle, Plaintiffs-Appellants,

v.The VILLAGE OF TINLEY PARK and Malone & Moloney, Inc., Defendants-Appellees.

No. 1-17-0357

Appellate Court of Illinois, First District, SECOND DIVISION.

September 28, 2018

Peter G. Hallam and Jonathan R. Koyn, of Flossmoor, for appellants.

Michael R. Hartigan, of Hartigan & O’Connor P.C., of Chicago, for appellee Village of Tinley Park.

James E. DeBruyn, of DeBruyn, Taylor & DeBruyn Ltd., of Orland Park, for other appellee.

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs Patricia and Brian Doyle purchased a home in a Tinley Park subdivision in 2004. Several years later, the Doyles began to experience drainage problems on their property which allegedly caused structural damage to the home. The Doyles brought a negligence suit against the developer of the subdivision, Malone & Moloney, Inc. (Malone),¹ and the Village of Tinley Park. The Doyles alleged that Malone failed to install a properly working storm drain system, in breach of an annexation agreement entered into by Malone and the village in 1990. The Doyles further alleged that the damage was exacerbated by the village's delay in addressing the drainage problem.

¶ 2 The trial court dismissed the claims against Malone, finding that the Doyles lacked standing to sue under the annexation agreement either as successor owners of the property or as third-party beneficiaries. The trial court also granted summary judgment to the village, finding that it was immune from suit under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/2-201 (West 2012) ), which immunizes public employees "serving in a position involving the determination of policy or the exercise of discretion" for their actions "in determining policy when acting in the exercise of such discretion." The Doyles now appeal. We agree with the trial court and affirm.

¶ 3 BACKGROUND

¶ 4 Malone is the developer of the Brookside Glen subdivision in Tinley Park. On January 11, 1990, Malone entered into an annexation agreement with the village regarding development of the subdivision. The agreement defines the property subject to the agreement as follows:

"The Subject Property is generally bounded on the north by 191st Street, on the east by Harlem Avenue, on the west generally by 88th Avenue but extending as far west as 92nd Avenue, and on the south by several different housing developments. The Subject Property contains approximately 828 acres and is contiguous with the Village of Tinley Park."

In relevant part, Malone agreed to design and construct storm sewers so that the subdivision's storm water runoff would be retained within a central detention system.

¶ 5 In 2004, the Doyles contracted with Malone to build a residence at 7606 Bayfield Drive in the Brookside Glen subdivision. The contract contained a limited warranty providing that Malone would fix any defects due to faulty construction brought to its attention within a year from the date of closing. The sale closed on May 30, 2004, and the Doyles have lived at the house since its completion.

¶ 6 Sometime in 2007 or 2008, the Doyles began to notice a problem with their sump pump: during times of rain or heavy snow, they could hear it ejecting water every few seconds, at a higher rate than their neighbors' pumps. Although the Doyles never had water in their basement, they were concerned as to why their pump was overactive. The pump stopped working in July 2008, and the Doyles replaced it, but the issue persisted.

¶ 7 Patricia Doyle first contacted the village about the problem in fall 2009, via a phone call to the Department of Public Works. She was told to have a plumber check the sump pump and sprinkler system for leaks. After two plumbers found no leaks, the Doyles filed a drainage complaint with the village on March 23, 2010. At this time, the Doyles had not yet observed any structural damage to their home, but there was serious erosion around the storm drain on the west side of the house: the surrounding dirt had caved in, and the ground in the area had dropped by several feet.

¶ 8 On April 9, 2010, a public works crew was dispatched to the Doyles' house. The crew placed stone, soil, and grass seed around the storm drain in the area of the cave-in but did not take further measures to remedy the cause of the sinkhole. The crew was sent at the direction of Mary Dobyns, a foreman for the village's Streets Department. Dobyns later explained that although she assigns crews to jobs, what they do "is their call once they get there." If a crew believes that a problem is beyond its expertise, it is supposed to call Dobyns. The April 9 crew did not call her.

¶ 9 Over the next several months, Patricia called the Department of Public Works several more times to inform them that their sump pump was "not shutting off during rain." By September 30, 2010, Patricia observed that the rim of the storm drain was collapsing, and all of the soil and rock added in April had fallen into the bottom of the drain. She called the Department of Public Works again, stating that the sinkhole on her property was dangerous and that additional work needed to be done. She was told that Dobyns was on medical leave, but a work order would be submitted for the property. On November 15, 2010, a second work crew came to the house. Patricia observed them placing more stone around the storm drain as they did in April.

¶ 10 Around December 2010, the Doyles first noticed structural damage to their home: the floor was slanted on the ground level and in the basement, and the support beams in the basement were, in Patricia's words, "heaving up."

¶ 11 On February 18, 2011, Patricia sent an e-mail regarding the damage to Kelly Borak, the superintendent of the Streets Department. In response, the village sent a third work crew on March 2, 2011. The crew performed a dye test by pouring dye into the storm drain. Within 20 to 30 minutes, the dye appeared in the Doyles' sump pump pit, evidencing that the storm pipe was leaking water. The next day, March 3, the work crew returned to the house and performed a camera test by sending a robot with a camera attachment into the storm drain. The camera footage confirmed that the pipe was compromised in several locations.

¶ 12 Later that day, Patricia e-mailed Borak to discuss these findings. Borak apologized to Patricia for how long it took to identify the cause of the drainage problem, saying, "[T]he list of drainage complaints is more than we can accommodate and we do not have the manpower to complete the drainage complaints in a timely manner." She assured Patricia that the village was working with the board of trustees to remedy the problem.

¶ 13 After discussing the matter with Dobyns, Borak determined that the village could not fix the damaged pipe on its own. Dobyns was in charge of soliciting bids from contractors. On March 31, 2011, a contractor hired by the village installed a sleeve into the storm pipe on the west side of the Doyles' property to repair the leak. After installing the sleeve, the contractor dumped excess water into the storm drain down the street and then left. Minutes later, Patricia heard her sump pump starting to operate. She called the Department of Public Works and told them that the problem was not fixed.

¶ 14 Further tests by the village on April 11 and 12 showed that the storm pipe under the street—a different pipe than was repaired on March 31—was also leaking. In an e-mail on April 25, Borak advised Patricia: "I have been collecting prices to repair the storm pipe in the street. After we have 3 comparable quotes then it must be presented to the Village Manager for approval. This will take some time."

¶ 15 On May 2, 2011, Patricia sent an e-mail to Mayor Zabrocki expressing frustration that the problem had not yet been fixed. In response, several village officials, including Trustee Thomas Staunton, came to the Doyles' house on July 1 to view the damage and discuss solutions. According to Patricia, Staunton said that the village would not repair the storm pipe under the street because it was "insignificant and not worth [the village's] while." He also told the Doyles, "Go ahead and sue us. Tinley Park has no money and we are protected by tort immunity."

¶ 16 Notwithstanding Staunton's words, the village hired a second contractor to repair the storm pipe under the street on July 27, 2011. This repair was more extensive than the March 31 repair in that it involved removal and replacement of the pipe. After this repair, the Doyles experienced no further problems with their sump pump.

¶ 17 The Doyles filed suit against Malone and the village on December 27, 2011, seeking compensation for the damage to their property. In count V of their third amended complaint, the Doyles alleged that Malone breached its 2004 contract with them by failing to build their residence "in a good workmanlike manner." In counts III and IV, the Doyles alleged that Malone breached its duty to install a sewage system that was adequate to properly drain water from properties in the subdivision, in violation of the 1990 annexation agreement between Malone and the village. The Doyles argued that they had standing to enforce the annexation agreement based upon the agreement's successor liability clause, which provided:

"This Agreement shall be binding upon and inure to the benefit of the parties hereto, successor owners of record of the Subject Property, assignees, lessees and upon any successor municipal authorities of said Village and successor municipalities * * *."

The Doyles claimed that they could enforce the agreement as successor owners of a residence in the Brookside Glen subdivision. Alternately, the Doyles argued that they were third-party beneficiaries of the agreement.²

¶ 18 As for the village, the Doyles alleged that the damage to their home was...