Nichols v. City of Chi. Heights

• Decision Date: 30 April 2015
• Docket Number: No. 1–12–2994.,1–12–2994.
• Parties: Charlotte NICHOLS, Rodger Bolden, Raul Teniente, Carmen Teniente, Juanita Dixon, Michael Foster, Lincoln Hamilton, Karen Hamilton, Michael Ifland, Susan Ifland and Camille Williams, on Behalf of Themselves and on Behalf of All Others Similarly Situated, a Proposed Class Action, Plaintiffs–Appellants, v. The CITY OF CHICAGO HEIGHTS, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

31 N.E.3d 824

Charlotte NICHOLS, Rodger Bolden, Raul Teniente, Carmen Teniente, Juanita Dixon, Michael Foster, Lincoln Hamilton, Karen Hamilton, Michael Ifland, Susan Ifland and Camille Williams, on Behalf of Themselves and on Behalf of All Others Similarly Situated, a Proposed Class Action, Plaintiffs–Appellants

v.The CITY OF CHICAGO HEIGHTS, Defendant–Appellee.

No. 1–12–2994.

Appellate Court of Illinois, First District, Fourth Division.

April 30, 2015.

William J. Sneckenberg, of Sneckenberg, Thompson & Brody, LLP, of Chicago, and David R. Dubin, of Macuga, Liddle & Dubin, P.C., of Detroit, Michigan, for appellants.

Thomas G. Gardiner, Barry C. Owen, and Kyle P. Carson, all of Gardiner Koch Weisberg & Wrona, of Chicago, for appellee.

OPINION

Presiding Justice FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs Charlotte Nichols, Rodger Bolden, Raul Teniente, Carmen Teniente, Juanita Dixon, Michael Foster, Lincoln Hamilton, Michael Ifland, Susan Ifland, and Camille Williams are a group of individuals¹ whose homes were damaged in flooding during a two-day rainstorm in April 2006. Heavy rainfall occurred on April 16–17, 2006 (the occurrence period) and sewer water containing pollutants, feces, dirt, debris, and other noxious matter from the sewerage system overflowed into plaintiffs' homes located in Chicago Heights. Plaintiffs brought suit against defendant City of Chicago Heights (the City), arguing that the City is responsible for the damage to their homes. Plaintiffs' second amended complaint asserted two claims against the City: (1) operational negligence; and (2) negligence under the doctrine of res ipsa loquitur. Following substantial hearings, discovery, depositions, and motions filed, the City filed a motion for summary judgment pursuant to section 2–1005 of the Code of Civil Procedure (735 ILCS 5/2–1005 (West 2010) ), arguing it was immune from suit under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2–201 (West 2008) (Tort Immunity Act)). The City supported its motion in part with an affidavit by Michael A. Sabo. Plaintiffs filed a motion to strike the Sabo affidavit. After hearing arguments on the motions, the trial court denied the motion to strike the Sabo affidavit and granted summary judgment in favor of the City. Plaintiffs appeal the trial court's ruling that the City of Chicago Heights is immune from the claims of negligence related to the maintenance and operation of its sewer systems and its subsequent grant of summary judgment in favor of the City of Chicago Heights. Plaintiffs contend that summary judgment was granted in error because: (1) the City was not entitled to discretionary immunity where the plaintiffs' claims arose from the City's ministerial act of maintaining its sewer system, rather than from a discretionary act; and (2) there was sufficient evidence to establish genuine issues of material fact regarding plaintiffs' negligence claim under the theory of res ipsa loquitur. In addition, plaintiffs contend the trial court erred in denying their motion to strike the Sabo affidavit. For the following reasons, we affirm.

¶ 2 I. BACKGROUND²

¶ 3 On April 16–17, 2006, a rainstorm hit the Chicago area.³ Plaintiffs allege that their homes, all located in the City of Chicago Heights, flooded with raw sewage as a result of this rainfall. Following the rainfall, the basements of approximately 5% of Chicago Heights residents allegedly flooded.

¶ 4 The City of Chicago Heights owns, maintains, and operates a separated sewer system in which storm water and sanitary wastewater travel in separate lines and to different end points.

¶ 5 Plaintiffs filed their original complaint against Chicago Heights in February 2007, alleging negligence, trespass, and nuisance, and seeking class action certification as a result of the flooding. In April 2007, plaintiffs filed an amended complaint alleging various claims, including trespass, nuisance, res ipsa negligence, operational negligence, negligent design, and unconstitutional taking. Several of these claims were dismissed. In August 2008, plaintiffs filed their second amended complaint alleging claims for maintenance and operational negligence, as well as res ipsa loquitur negligence. This is the complaint at issue here.

¶ 6 The record on appeal includes a September 13, 2005, letter written from Anthony DeLuca, mayor of the City of Chicago Heights, to James L. Daugherty, district manager of Thorn Creek Basin Sanitary District. The letter describes the efforts the City was making in the maintenance and operation of the sewer system. It states:

“RE: TCBSD Infiltration/Inflow Limits Ordinance

Dear Mr. Daugherty:

The purpose of this letter is to present our proposed I/I compliance schedule as requested by your March 7, 2005 letter.

Since submitting a similar compliance schedule in 1993, the City of Chicago Heights has actively pursued sanitary sewer rehabilitation efforts over the past decade. From 1994–97, the City also performed 2,705 manhole inspections (100% city-wide), dye water flood tested 137 high priority locations in 1995, and conducted a city-wide house-to-house survey of 8,302 buildings (91%).

In the mid–1990s, the City obtained a $3.2 million low interest loan from IEPA that funded over 500 manhole repairs, 1,678 vertical feet of manhole lining, 50–sewer point repairs, and cured-in-place lining of 47,451' of sewer mains in the northwest area of the City. Subsequently in 1996–97, the City performed an additional 9 point repairs, 144 manhole repairs, and 12,600' of sewer lining throughout the Saratoga Farms and Bradley Terrace subdivisions. Since 1997, the City has invested an additional $1,100,000 toward 31,300' of additional sewer lining. These efforts have greatly reduced I/I entering the sanitary sewer system. The building surveys and manhole inspections referenced above identified approximately 7.5 MGD of I/I that remains in the City's system. Manhole rehabilitation is generally found to be cost-effective due to the relatively low repair cost and significant I/I reductions achieved, and it is estimated that repairing all defective manholes in the City would cost approximately $2,500,000. The manhole rehabilitation work is known and proposed to be completed in a multi-year program as budget constraints allow. We also intend to perform flow monitoring at strategic locations to isolate subareas containing high I/I concentrations, additional dye flood testing and sewer televising in these high flow subareas, and associated rehabilitation work identified by these investigations. It is estimated that the investigative work will cost $150,000 Citywide.

The City's current budget includes the repayment of the $3.2 million loan to IEPA through the year 2016 from sewer fees collected from users. Therefore, available funds for sewer rehabilitation efforts during the next decade will remain similar to the past several years ($250,000/yr) until the loan debt is serviced.

Therefore, the following compliance schedule is proposed:

[2006 to 2014 year-by-year proposed spending on items such as flow monitoring and sewer televising, manhole rehabilitation, and sewer lining, with a total estimated cost of $3,250,000.]

We are confident that our continued commitment to significant investments into rehabilitating our sewer system infrastructure will result in the City's compliance with the District's I/I limits over time, and look forward to working with the District toward achieving this goal.

At this time Robinson Engineering has prepared a full set of manhole rehabilitation plans for the entire City. After the compliance schedule is agreed upon we subdivide the plans to meet the financial constraints of the yearly budget. After your approval of the plans and specifications we will be able to immediately go to bid for the manhole rehabilitation project.”

¶ 7 The record on appeal also includes the October 2011 affidavit of Michael A. Sabo. This affidavit reads in its entirety:

“I, Michael A. Sabo, after first being duly sworn on oath, depose and state that if I were sworn as a witness I could competently testify to the following:

1. I am over the age of eighteen and make this affidavit of my own personal knowledge.

2. I am a resident of Chicago Heights, Illinois.

3. Between 1999 and 2007, I was Alderman of the 6th District of Chicago Heights, with an office at 1601 Chicago Road, Chicago Heights, IL 60411.

4. Between 2007 and 2009, I was the Director of City Services and Projects for the City of Chicago Heights.

5. Since 2009, I've been the Director [of] Street, Sewer, and Vehicle Maintenance Departments for the City of Chicago Heights.

6. Between 2004 and 2007, the City of Chicago Heights' legislation was enacted in the form of ordinances passed by a majority vote of the City Council.

7. Until 2011, the City Council comprised the mayor and six aldermen. A seventh alderman was added in 2011.

8. The City of Chicago Heights owns, maintains and operates a separated sewer system in which storm water and sanitary wastewater travel in separate lines and to different end points.

9. The storm water that enters the City's storm sewer system is discharged in local waterways.

10. The wastewater that enters the City's sanitary sewers from the homes of City residents and businesses travels through the City's system to Thorn Creek Basin Sanitary District where it is treated before being discharged into local waterways.

11. Thorn Creek has the ability to regulate the amount of wastewater that flows from the City's sanitary sewer system into the Thorn Creek Treatment plant.

12. If for any reason the flow from the City's sewer system into the Thorn Creek facility was stopped or slowed, this could cause the City's system to backup and result in backups in the homes and businesses of City residents.

13. The City of Chicago Heights Municipal Code places the responsibility for the installation, connection and maintenance of sewer lines that connect to

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