Trtanj v. City of Granite City

• Decision Date: 15 February 2008
• Docket Number: No. 5-07-0002.,5-07-0002.
• Citation: 884 N.E.2d 741,379 Ill.App.3d 795
• Parties: Albert TRTANJ and Mary Trtanj, for the Use of State Farm Fire and Casualty Company, Plaintiffs-Appellants, v. The CITY OF GRANITE CITY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

884 N.E.2d 741

379 Ill.App.3d 795

Albert TRTANJ and Mary Trtanj, for the Use of State Farm Fire and Casualty Company, Plaintiffs-Appellants, v. The CITY OF GRANITE CITY, Defendant-Appellee.

No. 5-07-0002.

Appellate Court of Illinois, Fifth District.

Rule 23 Order Filed February 15, 2008.

Motion to Publish Granted March 24, 2008.

March 24, 2008.

John P. Cunningham, Daniel G. Hasenstab, Brown & James, P.C., Belleville, for Appellants.

Ronald A. Roth, Dawn Kamadulski O'Leary, Roth, Evans & Lading, P.C., Granite City, for Appellee.

Presiding Justice STEWART delivered the opinion of the court:

The plaintiffs appeal an order of the circuit court of Madison County granting a summary judgment in favor of the defendant, the City of Granite City (Granite City). We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND

Plaintiffs Albert and Mary Trtanj (the Trtanjs) own a residence on Oaklawn Drive in Granite City, Illinois. This action was brought by plaintiff State Farm Fire and Casualty Company (State Farm) against Granite City on behalf of the Trtanjs to recover damages to the Trtanjs' residence and personal property as a result of sewage backing up into their basement on July 22, 2001. State Farm paid a portion of the damages suffered by the Trtanjs and brought this lawsuit pursuant to State Farm's right of subrogation under an insurance policy issued to the Trtanjs.

The record establishes that Granite City's sewage system is a gravity-fed sewer system in which the sewage flows by gravity through sewer pipes to a certain depth and, at that point, lift stations lift the sewage to a new height so that the gravitational flow continues through the sewer pipes. The lift stations utilized by Granite City operate on electrical pumps. On the night of July 22, 2001, a rainstorm caused a power outage to three of Granite City's sewage lift stations, including the Terrace Lane lift station, which is located directly downstream from the Trtanjs' residence. Although the electricity flow to the lift station's pumps ceased during the power outage, sewage flow to the lift station continued. The sewage level at the Terrace Lane lift station rose to its maximum capacity, and sewage then began backing up along the sewer pipe system upstream from the lift station and eventually into the Trtanjs' basement.

The superintendent of streets for Granite City at the time of this incident, Gerald Lakin, testified about the procedures Granite City follows when there is a power outage to a sewage lift station. When there is a power outage to a lift station's electric pump, a battery-powered alarm notifies the Granite City police department, and the police department then notifies the city's street department of the power outage. Workers from the street department then retrieve, set up, and run a bypass pump at the lift station until electrical power is restored.

According to Lakin, when the power went out on July 22, 2001, they had to set up bypass pumps at three different lift stations, including the Terrace Lane lift station. The street department chose to set up the bypass pump at the Terrace Lane lift station last. They chose the order in which to set up the bypass pumps based on the volume of sewage that normally flowed into the respective stations. Lakin stated in his deposition that from the time everyone arrived at the street department's facility, it took approximately one hour to set up each bypass pump. Therefore, the Terrace Lane lift station pump was down more than two or three hours before its bypass pump was hooked up and running.

Lakin also stated that the city's storm water drainage system was a totally separate system from the city's sewer system. However, according to Lakin, the main sewer pipe servicing the Trtanjs' home was made of clay, and the city had problems with outside water infiltrating this clay sewer pipe, especially during periods of heavy rain. Outside storm water infiltrating into the sewer main decreased the sewer main's capacity to handle sewage flow and lessened the time it took for sewage to back up into the Trtanj s' basement after the power outage. Lakin testified that the city was aware of outside water infiltration upstream from the Terrace Lane lift station but did not make any effort to reduce the amount of infiltration.

Granite City's superintendent of streets at the time of the hearing, Rick Fancher, testified that it should only take 15 minutes for the street crew to arrive at a lift station with a portable pump once the station's power outage alarm sounds and that it takes 15 minutes to hook up a portable bypass pump at the lift station once it arrives. Fancher testified that it should never take two or three hours for the street crew to get a portable pump to a lift station.

The plaintiffs filed their initial complaint against Granite City on July 5, 2002, and they filed an amended complaint on July 15, 2005. In count I of the amended complaint, the plaintiffs alleged that Granite City's negligence in its operation and maintenance of the city's sewer system proximately caused the damage to the Trtanjs' real and personal property. In count II of the amended complaint, they alleged a cause of action against Granite City for a temporary nuisance arising from the sewage backup, and in count III of the amended complaint, they alleged a cause of action against Granite City for a trespass.

On May 12, 2006, Granite City filed a motion for a summary judgment. In its motion for a summary judgment, Granite City argued that the plaintiffs' claims were barred under the statute of repose (735 ILCS 5/13-214 (West 2006)), that it was entitled to discretionary immunity under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201 (West 2006)), and that it was not liable for the plaintiffs' damages because the sewer backup occurred during an extraordinary rainstorm. On November 29, 2006, the circuit court entered the following order granting Granite City's motion for a summary judgment:

"This matter comes for hearing on Defendant's Motion for Summary Judgment filed 12 May 2006. Arguments heard; counsel granted leave to file supporting documentation. Now after having had an opportunity to review the authority presented by both sides, the Court hereby grants Defendant's Motion for Summary Judgment." (Emphasis in original.)

The plaintiffs filed a timely notice of appeal on December 27, 2006.

ANALYSIS

A summary judgment is appropriate when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2006); People ex rel. Department of Labor v. General Electric Co., 347 Ill. App.3d 72, 78, 282 Ill.Dec. 555, 806 N.E.2d 1143 (2004). Because a summary judgment is a drastic method of terminating litigation, the reviewing court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Turner Investors v. Pirkl, 338 Ill.App.3d 676, 681, 273 Ill.Dec. 423, 789 N.E.2d 323 (2003). A summary judgment must be granted with caution to avoid preempting a litigant's right to fully present the factual basis of his claim. Lamkin v. Towner, 246 Ill.App.3d 201, 204, 186 Ill.Dec. 151, 615 N.E.2d 1208 (1993). In ruling on a summary judgment motion, the circuit court must construe the pleadings, affidavits, depositions, and admissions on file strictly against the moving party and liberally in favor of the opponent, and the court should grant the motion only if these materials establish without doubt that the moving party is entitled to a summary judgment. Lamkin, 246 Ill.App.3d at 204, 186 Ill.Dec. 151, 615 N.E.2d 1208.

On an appeal from the grant of a summary judgment, the appellate court's review is de novo and is limited to determining whether the trial court correctly found that no issue of material fact existed and, if none existed, whether the trial court correctly entered a judgment as a matter of law. General Casualty Co. of Illinois v. Carroll Tiling Service, Inc., 342 Ill.App.3d 883, 889, 277 Ill.Dec. 616, 796 N.E.2d 702 (2003). In the present case we hold that there are material issues of fact which preclude the entry of a summary judgment in favor of Granite City on all theories of liability.

The plaintiffs allege in their amended complaint that sewage backed up into their basement because city workers did not respond to the power outage in a timely manner. Granite City's former superintendent of streets testified that it took them more than two or three hours to install the bypass pump at the Terrace Lane lift station, but Granite City's superintendent of streets at the time of the hearing testified that it should take no longer than 15 minutes to arrive at the station with the bypass pump and no longer than 15 minutes to install the bypass pump. He stated that it should never take more than two hours for a street crew to arrive at a lift station following a power outage. In addition, there is evidence that the clay pipe used as the sewer main servicing the Trtanjs' home allowed outside water to infiltrate the sewer main and that this infiltration diminished the sewer main's capacity to handle sewage flow. There is evidence that Granite City knew of the outside water infiltration and knew this infiltration diminished the capacity of the sewer system. We believe that these facts, construed strictly against Granite City and liberally in favor of the plaintiffs, establish material issues of fact that would preclude a summary judgment. Genuine issues of material fact exist concerning whether Granite City's acts or omissions in the operation and maintenance of its sewage system caused the damage to the Trtanjs' real and personal property.

In its motion for a summary judgment, Granite City argued three...