Tzakis v. Berger Excavating Contractors, Inc.

• Decision Date: 30 May 2019
• Docket Number: No. 1-17-0859,1-17-0859
• Parties: Dennis TZAKIS, Zenon Gil, Cathy Ponce, Zaia Giliana, Julia Cabrales, and Juan Solis, on Behalf of Themselves and All Other Persons Similarly Situated, a Proposed Class Action, Plaintiffs-Appellants, v. BERGER EXCAVATING CONTRACTORS, INC.; Advocate Health and Hospitals Corporation d/b/a Advocate Lutheran General Hospital; Cook County; Gewalt Hamilton Associates, Inc.; The Village of Glenview ; Maine Township; The Metropolitan Water Reclamation District of Greater Chicago; The Village of Niles ; and the City of Park Ridge, Defendants (The Metropolitan Water Reclamation District of Greater Chicago, The City of Park Ridge, and Maine Township, Defendants-Appellees).
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 170859
142 N.E.3d 288
436 Ill.Dec. 185

Dennis TZAKIS, Zenon Gil, Cathy Ponce, Zaia Giliana, Julia Cabrales, and Juan Solis, on Behalf of Themselves and All Other Persons Similarly Situated, a Proposed Class Action, Plaintiffs-Appellants,
v.
BERGER EXCAVATING CONTRACTORS, INC.; Advocate Health and Hospitals Corporation d/b/a Advocate Lutheran General Hospital; Cook County; Gewalt Hamilton Associates, Inc.; The Village of Glenview ; Maine Township; The Metropolitan Water Reclamation District of Greater Chicago; The Village of Niles ; and the City of Park Ridge, Defendants

(The Metropolitan Water Reclamation District of Greater Chicago, The City of Park Ridge, and Maine Township, Defendants-Appellees).

No. 1-17-0859

Appellate Court of Illinois, First District, Fourth Division.

May 30, 2019

Stuart M. Brody, of Thompson, Brody & Kaplan, of Chicago, Timothy H. Okal, of Spina, McGuire & Okal, of Elmwood Park, and Phillip G. Bazzo, of Flood Law Institute, of Lincoln Park, Michigan, for appellants.

Susan T. Morakalis, James J. Zabel, and Ellen M. Avery, of Chicago, for appellee Metropolitan Water Reclamation District of Greater Chicago.

Howard C. Jablecki, of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee City of Park Ridge.

Benjamin Jacobi, of O’Halloran Kosoff Geitner & Cook, LLC, of Northbrook, for other appellee.

JUSTICE GORDON delivered the judgment of the court, with opinion.

436 Ill.Dec. 193

¶ 1 The instant appeal arises from a lawsuit filed by plaintiffs concerning property damage to their homes resulting from storm water flooding. Plaintiffs, who reside in Maine Township, allege that defendant, Advocate Health and Hospitals Corporation (Advocate), which operates a hospital adjacent to plaintiffs' neighborhood, constructed its hospital in such a way that the hospital's storm water drainage system discharged onto plaintiffs' properties and caused flooding. Plaintiffs further allege that the local public entities, namely, the Village of Glenview (Glenview), Maine Township, the Metropolitan Water Reclamation District of Greater Chicago (District), the Village of Niles (Niles), and the

142 N.E.3d 297

436 Ill.Dec. 194

City of Park Ridge (Park Ridge),¹ breached a variety of duties owed to the homeowners with respect to the drainage system. The defendants participating in the instant appeal—Park Ridge, the District, and Maine Township—sought dismissal of the complaint on the basis of the public duty rule, claiming that they did not owe a duty to any individual plaintiff but only to the community at large. In 2015, the trial court dismissed the complaint pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2014) ), finding that the public duty rule applied. However, in 2016, the Illinois Supreme Court abolished the public duty rule in Coleman v. East Joliet Fire Protection District , 2016 IL 117952, 399 Ill.Dec. 422, 46 N.E.3d 741, and the trial court granted plaintiffs' motion to reconsider. Six months later, however, the trial court vacated its order and reinstated the dismissal. Plaintiffs now appeal, arguing that the supreme court's decision should be applied retroactively and the public duty rule is not available to defendants, and further arguing that no other basis existed for dismissing their complaint. For the reasons that follow, we affirm in part and reverse in part.

¶ 2 BACKGROUND

¶ 3 We considered the complaint with respect to defendant Advocate in Tzakis v. Advocate Health & Hospitals Corp. , 2015 IL App (1st) 142285-U, 2015 WL 9273436. As it is the same complaint at issue in both appeals—plaintiffs' "amended fifth amended complaint"—we incorporate our prior description of the allegations where applicable in the instant appeal.

¶ 4 Plaintiffs filed their amended fifth amended complaint on January 20, 2012. According to the complaint, Park Ridge, Cook County, Maine Township, and the District, "among other local public entities," in coordination with private partners, developed the Prairie Creek Stormwater System, which was a manmade storm water system of drains, retention basins, and storm water sewers, and the local public entities controlled the development of the system beginning with the original 1960 plat approvals. The Prairie Creek Stormwater System received most of the storm water runoff within the Prairie Creek Watershed, a watershed of over one mile, extending upstream from plaintiffs' homes. Advocate acquired a parcel of real property adjacent to plaintiffs' neighborhood some time prior to 1976, which was also located within the watershed; as one of the parties admitted in oral argument, the property was on a flood plain. In 1976, Advocate submitted a development plan to Park Ridge that proposed modifications to Advocate's drainage system. Park Ridge approved the plans and they were subsequently implemented. In October 1976, the Illinois Department of Transportation issued a report stating that "a large portion of the subdivision set out in [Advocate's development plan]," including plaintiffs' neighborhood, "was and is subject to flood risks."

¶ 5 According to the complaint, in 1987, plaintiffs' neighborhood sustained catastrophic flooding, in response to which Park Ridge, Maine Township, and Glenview, "along with other entities," hired Harza Engineering Services (Harza) to investigate the flooding. In 1990, Harza issued a report that identified design and maintenance defects in Advocate's drainage system, including the portions adjacent

142 N.E.3d 298

436 Ill.Dec. 195

to plaintiffs' properties. The report indicated that these defects impaired the system's drainage capacity to a level "substantially below any reasonably safe standard." Plaintiffs allege that Harza's report placed Park Ridge, Maine Township, and Glenview and "possibly other [defendants]" on actual or constructive knowledge of the flood risk to plaintiffs' homes.

¶ 6 The complaint alleges that sometime after 1987 but before 2002, Advocate hired Gewalt Hamilton Associates, Inc. (Gewalt), an engineering firm, to draft and implement a development plan for the hospital property that included modifications to the drainage system and topography that altered the property's "natural drainage areas." In August 2002, a rainstorm caused storm water to accumulate within the hospital's drainage system. Plaintiffs allege that an "undersized" discharge component caused water to build up and "catastrophically overflow" the drainage system, again flooding plaintiffs' homes.

¶ 7 The complaint alleges that in 2002 or 2003, the Illinois Department of Natural Resources conducted a study in response to the 2002 flooding in conjunction with local municipal authorities, including Park Ridge, Maine Township, and Glenview. The study found "numerous bottlenecks and obstructions to flow as the causes of the invasive flooding." The study also detailed potential remedies, including specific improvements to Advocate's drainage system. After 2002 but before September 13, 2008, Advocate and Gewalt developed plans to modify the hospital property's drainage system, including components identified as problematic in the 2002 study. However, plaintiffs allege that, on information and belief, Advocate's plan did not include modifications to three undersized components of the drainage system, despite Advocate's knowledge of the flood risk these components posed to plaintiffs. On September 13, 2008, storm water overwhelmed the hospital's drainage system and caused the flooding in plaintiffs' homes and property, leading to the instant lawsuit.²

¶ 8 With respect to the District, the complaint alleged that the District was the regional local public entity charged with multijurisdiction operation of storm water management and "owns and/or controls all drains, basins, structures, components and other stormwater improvements" within the Prairie Creek Stormwater System. The complaint further alleged that the District owned and operated the interceptors that received sewage from local sanitary sewers owned and controlled by Glenview and Park Ridge and transported it for treatment to one of the District's wastewater treatment plants. With respect to Park Ridge, the complaint alleged that Park Ridge had the most actual knowledge of Advocate flooding and was in the best position to make changes to Advocate's plans for its drainage system but failed to demand that Advocate make the necessary changes. The complaint further alleged that Park Ridge did not advise the District of the flooding problems and that Park Ridge deployed its police and/or department of public safety to the area during instances of flooding. With respect to Maine Township, the complaint alleged that the Maine Township Highway Department had mobilized and readied trucks for sand delivery to plaintiffs' neighborhood in anticipation of the September 13, 2008, flooding and had provided sandbags "[o]n

142 N.E.3d 299

436 Ill.Dec. 196

many prior occasions" when there had been catastrophic flooding. The complaint further alleged that Maine Township was responsible for...