People ex rel. Birkett v. City of Chicago, No. 2-00-0615

• Court: United States Appellate Court of Illinois
• Citation: 325 Ill. App.3d 196,758 N.E.2d 25,259 Ill.Dec. 180
• Docket Number: No. 2-00-0715., No. 2-00-0615
• Parties: The PEOPLE ex rel. Joseph E. BIRKETT, Plaintiff-Appellant, v. The CITY OF CHICAGO, Defendant-Appellee. The Roman Catholic Diocese of Joliet, Plaintiff-Appellant, v. The City of Chicago, Defendant-Appellee.
• Decision Date: 10 October 2001

758 N.E.2d 25
325 Ill. App.3d 196
259 Ill.Dec. 180

The PEOPLE ex rel. Joseph E. BIRKETT, Plaintiff-Appellant,
v.
The CITY OF CHICAGO, Defendant-Appellee.
The Roman Catholic Diocese of Joliet, Plaintiff-Appellant,
v.
The City of Chicago, Defendant-Appellee

Nos. 2-00-0615, 2-00-0715.

Appellate Court of Illinois, Second District.

October 10, 2001.

Rehearing Denied November 14, 2001.

758 N.E.2d 26

Joseph E. Birkett, Du Page County State's Attorney, Margaret M. Healy, Nancy J. Wolfe, Paul F. Bruckner, Assistant

758 N.E.2d 27

State's Attorneys, Wheaton, for People ex rel. Joseph E. Birkett

Joseph V. Karaganis, John W. Kalich, Karaganis, White & Magel, Ltd., Chicago, for Roman Catholic Diocese of Joliet.

Mara S. Georges, Corporation Counsel, Lawrence Rosenthal, Deputy Corporation Counsel of the City of Chicago, Benna Ruth Solomon, Suzanne M. Loose, Chief Assistants Corporation Counsel, Chicago, for City of Chicago.

Ronald N. Schultz, Legal Director, Kathleen Elliott, City of Rockford Department of Law, Rockford, for City of Rockford.

Justice RAPP delivered the opinion of the court:

Plaintiffs, the Roman Catholic Diocese of Joliet (Diocese) and the People of the State of Illinois ex rel. Joseph E. Birkett (the People), separately sued defendant, the City of Chicago (City), for nuisance. Plaintiffs alleged that aircraft arriving at and departing from the City's O'Hare International Airport generate noise that interferes with the operation of the Diocese's schools. The trial court dismissed the nuisance counts of plaintiffs' complaints based on the City's immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1-101 (West 1998)). Plaintiffs' appeals have been consolidated.

I. FACTS AND PROCEDURAL HISTORY

In a three-count complaint filed against the City on September 25, 1997, the Diocese alleged injury to the operation of Immaculate Conception Elementary School and Immaculate Conception High School, both located in Elmhurst. The complaint alleged in count I that the noise created by jet aircraft arriving at and departing from the City's O'Hare International Airport constituted a continuing nuisance. The complaint prayed for a judgment against the City in an amount sufficient to cover the costs of nuisance abatement through soundproofing of the school buildings, a judgment in excess of the cost of nuisance abatement to compensate the Diocese for other nuisance injuries not abated by soundproofing the buildings, and the Diocese's costs of the suit.

The City filed a motion to dismiss the Diocese's complaint alleging, inter alia, that count I should be dismissed pursuant to section 2-619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 1998)) because the City is immune from tort liability pursuant to the Tort Immunity Act. Judge Rodney W. Equi considered the parties' briefs and then heard oral argument on the motion to dismiss on October 14, 1998. Judge Equi dismissed count I with prejudice, finding that the City was immune from liability for the alleged nuisance under the Tort Immunity Act.

On September 8, 1999, the People of the State of Illinois filed a complaint against the City alleging a public nuisance. The complaint sought a judgment against the City in an amount sufficient to cover the costs of soundproofing the Immaculate Conception school buildings and the People's costs of the suit.

On October 25, 1999, the City filed a motion to dismiss the People's complaint pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 1998)). The City's motion alleged, inter alia, that the People's complaint should be dismissed pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1998)) because the City is immune from public nuisance tort liability under the Tort Immunity Act.

758 N.E.2d 28

On November 10, 1999, the trial court entered an agreed order consolidating the two actions for purposes of conducting discovery and pretrial motions. On January 20, 2000, the Diocese filed a motion for reconsideration of the October 14, 1998, dismissal of count I

On March 23, 2000, Judge James W. Jerz heard argument on the City's motion to dismiss the People's complaint and the Diocese's motion for reconsideration. In a memorandum of decision and order entered on April 28, 2000, the trial court dismissed the People's complaint, finding the City immune from public nuisance tort liability under the Tort Immunity Act. The trial court held that the City's conduct alleged in the complaint was discretionary in nature within the meaning of sections 2-201 and 2-109 of the Tort Immunity Act (745 ILCS 10/2-201, 2-109 (West 1998)). In a separate memorandum of decision and order entered on April 28, 2000, the trial court denied the Diocese's motion to reconsider Judge Equi's order dismissing count I of their complaint.

On May 10, 2000, the Diocese filed a motion seeking a declaration that sections 1-204 and 2-201 of the Immunity Act (745 ILCS 10/1-204, 2-201 (West 1998)) are unconstitutional under the United States Constitution and the Illinois Constitution. After hearing argument, the trial court denied the Diocese's motion.

On May 30, 2000, the trial court entered an order pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), finding no just reason for delaying enforcement or appeal of the October 14, 1998, and April 28, 2000, orders. The Diocese and the People timely appeal.

II. DISCUSSION

The Diocese seeks the reversal of the dismissal of its nuisance claim, arguing that (1) there is no local governmental immunity from liability resulting from nuisance; (2) the Tort Immunity Act is unconstitutional; and (3) the trial court erred in dismissing its nuisance claim because there was no showing of a discretionary act. The People seek the reversal of the order dismissing their nuisance claim, arguing that a claim for nuisance is not subject to the immunity provisions of the Tort Immunity Act. We begin by noting that the trial court's dismissal of these claims pursuant to section 2-619 of the Code is given de novo review on appeal. See Provenzale v. Forister, 318 Ill.App.3d 869, 874, 252 Ill.Dec. 808, 743 N.E.2d 676 (2001).

Before 1959, local governmental units in Illinois were immune from tort liability pursuant to the common-law doctrine of sovereign immunity. However, our Supreme court abolished sovereign immunity in Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 25, 163 N.E.2d 89 (1959). In response to Molitor, the legislature enacted the Tort Immunity Act, under which local governmental units are liable in tort, but their liability is limited by an extensive list of immunities based on specific governmental functions. Burdinie v. Village of Glendale Heights, 139 Ill.2d 501, 506, 152 Ill.Dec. 121, 565 N.E.2d 654 (1990). Also the 1970 Illinois Constitution abolished sovereign immunity "[e]xcept as the General Assembly may provide by law." Ill. Const. 1970, art. XIII, § 4.

The trial court dismissed plaintiffs' nuisance claims against the City based on the immunity provided in section 2-201 of the Tort Immunity Act, which provides:

"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion

758 N.E.2d 29

even though abused." 745 ILCS 10/2-201 (West 1998).

In turn, the municipality's immunity is found in section 2-109 of the Tort Immunity Act, which provides:

"A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 1998).

Plaintiffs argue that, because no local governmental immunity from liability for nuisance existed at common law, there was no such immunity created when the legislature enacted the Tort Immunity Act. Plaintiffs base this argument on authority holding that the Tort Immunity Act codified common-law immunities and did not create new immunities. See ...