Van Meter v. Darien Park Dist.

• Decision Date: 17 October 2003
• Docket Number: No. 90541.,90541.
• Citation: 799 N.E.2d 273,278 Ill.Dec. 555,207 Ill.2d 359
• Parties: William VAN METER et al., Appellants, v. The DARIEN PARK DISTRICT et al., Appellees.
• Court: Illinois Supreme Court

799 N.E.2d 273

207 Ill.2d 359

278 Ill.Dec. 555

William VAN METER et al., Appellants, v. The DARIEN PARK DISTRICT et al., Appellees.

No. 90541.

Supreme Court of Illinois.

October 17, 2003.

Spina, McGuire & Okal, P.C., Elmwood Park (Timothy H. Okal, of counsel), for appellants.

Howard K. Priess II, Telly J. Liapis and D.J. Sartorio, of Tressler, Soderstrom, Maloney & Priess, Chicago, for appellee Darien Park District.

Russell W. Hartigan and Paul C. Jakubiak, of Hartigan & Cuisinier, P.C., Chicago, for appellee City of Darien.

Norton, Mancini, Argenati, Weiler & DeAno, Wheaton (James L. DeAno, of counsel), for appellee Village of Downers Grove.

Joseph E. Birkett, State's Attorney, Wheaton (Margaret M. Healy and Anthony E. Hayman, Assistant State's Attorneys, of counsel), for appellee County of Du Page.

Justice KILBRIDE delivered the opinion of the court:

The plaintiffs, William and Patricia Van Meter, filed a complaint against the Darien Park District, the City of Darien, the Village of Downers Grove, the County of Du Page, and five private defendants, alleging that surface water flooded their home upon completion of an adjacent municipal recreation area called Westwood Park (the park). The municipal defendants filed motions to dismiss, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)), alleging that they were entitled to discretionary immunity under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/2-201 (West 1994)). The Du Page County circuit court granted the municipal defendants' motions to dismiss, and the appellate court affirmed. No. 2-99-0009, 316 Ill.App.3d 1300, 268 Ill.Dec. 912, 779 N.E.2d 526 (unpublished order under Supreme Court Rule 23). We granted the plaintiffs' petition for leave to appeal (177 Ill.2d R. 315) and now reverse.

I. BACKGROUND

The plaintiffs' 20-count complaint alleged negligence, res ipsa loquitur, and trespass and unlawful taking claims against the municipal defendants. In their complaint, the plaintiffs alleged that they own a single-family residence in Darien. According to the plaintiffs, the defendants started designing and planning the park on property between Darien and Downers Grove in March 1992. Together with engineers and architects, the defendants produced a "Landscape Development Plan," depicting drainage of surface and subsurface water, as well as changes in the elevation of the property affecting the natural flow of water. The Darien Park District approved the plan in conjunction with requirements imposed by the City of Darien, the Village of Downers Grove and Du Page County. Pursuant to the plan, the defendants, through their contractors, constructed a storm water drainage and detention system to restrict water from the environs of the park development and to prevent water from flowing in its natural course.

The plaintiffs alleged that the defendants owed "a duty to the Plaintiffs to provide adequate drainage for the passage of water from and/or around Plaintiffs' property and not to alter the natural flow of water so as to cause water to back-up and flood Plaintiffs' real estate and residence." The plaintiffs further alleged that the defendants knew or should have known, when they approved the park plans, that the alterations in the natural flow of water would cause flooding problems for neighboring residents. According to the plaintiffs, the defendants breached this duty by failing to design, plan, supervise, observe, or manage properly the construction of Westwood Park. The plaintiffs specified several defects in the park construction, including an insufficient storm water drainage system that (1) alters the groundwater elevation; (2) restricts the natural flow of water; and (3) diverts water from adjoining property onto the plaintiffs' property.

The plaintiffs charged that the defendants negligently caused flooding on the plaintiffs' property and that the defendants negligently failed to correct the defects in the park design and construction "after being placed on notice that the use of those public improvements have [sic] created conditions that are not reasonably safe." The plaintiffs asserted that, before 1996, the year the project was completed, they suffered no flooding. In their trespass/unlawful taking counts, the plaintiffs alleged that the park construction has caused and still causes flooding on their property. This "continuing trespass," a purported "constant diversion" of water, has robbed them of the "peaceable enjoyment, occupation, possession, and use of their residence" and lowered the value of their property.

The defendants each filed motions to dismiss, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)), asserting that plaintiffs' claims were barred by defendants' affirmative defense of immunity under section 2-201 of the Act (745 ILCS 10/2-201 (West 1994)). On September 17, 1998, the trial court dismissed the plaintiffs' claims against the Darien Park District, Darien, and Downers Grove under section 2-201 of the Act, providing governmental entities with immunity from liability for acts or omissions arising from a determination of policy and an exercise of discretion. 745 ILCS 10/2-201 (West 1994); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 341, 230 Ill.Dec. 11, 692 N.E.2d 1177 (1998). On December 3, 1998, the trial court denied the plaintiffs' motion to reconsider, stating:

"[W]hat could be more discretionary than trying to decide how the landscape is going to be reconfigured to accommodate this park that they wanted to put here? I mean, that's almost discretionary by definition, isn't it?

You have to decide how you're going to change the landscape. You have to decide how you're going to reconfigure the surface flow of water because the park doesn't do any good if it's under water.

And so everybody sits around the table and decides how are we going to do this and what's our best judgment as to how we should design this so it does a minimum amount of damage to the surrounding properties and redirects the surface flow of the waters, so that we can build this park here.

What's more discretionary than that? If I apply the ad hoc test to these facts, how do I not conclude that the design of this park was a discretionary function?

* * *

I think that even taking the facts as alleged in the plaintiff's [sic] complaint as true and indulging all reasonable inferences therefrom in favor of the plaintiff, that my conclusion to be drawn from those facts is that this is a discretionary function on behalf of the municipalities which, in fact, immunizes them therefore under 2-201."

Because other counts remained pending against the private defendants, the trial court found that its dismissal was final as to the Darien Park District, Darien, and Downers Grove and that there was no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)). On January 21, 1999, the court dismissed the plaintiffs' claims against Du Page County under section 2-201. This order also contained Rule 304(a) language.

The appellate court affirmed the trial court's dismissals, holding that the defendants enjoyed immunity under section 2-201. The appellate court stated in pertinent part as follows:

"Defendants, through their employees, used their skill, judgment, and ultimately their discretion to consider the design of the park, its landscaping, and the type of construction. Employees of the defendants, in each of their respective municipal capacities, balanced competing interests when determining whether and how the flow of water should be directed and restricted.

The Act provides for immunity of public entities, such as defendants, which, through their employees, exercised their judgment and discretion when they determined how to design, plan, supervise, observe, or manage the construction of Westwood Park. Therefore, to the extent any adoption of a plan or design of the construction of Westwood Park by defendants caused plaintiffs' damages, the Act precludes recovery from defendants." No. 2-99-0009, 316 Ill.App.3d 1300, 268 Ill.Dec. 912, 779 N.E.2d 526 (unpublished order under Supreme Court Rule 23).

We allowed plaintiff's petition for leave to appeal. 177 Ill.2d R. 315. Before this court, plaintiffs argue that the trial and appellate courts misapplied section 2-201 of the Act. For the reasons that follow, we agree and reverse.

II. ANALYSIS

In the matter before us, the parties dispute whether the circuit court properly granted defendants' section 2-619(a)(9) motions to dismiss plaintiffs' complaint on the basis that section 2-201 of the Tort Immunity Act completely immunized defendants from liability for the acts and omissions stated in plaintiffs' complaint. According to plaintiffs, the circuit court improperly dismissed their complaint because defendants did not establish that their alleged actions were "discretionary" within the meaning of section 2-201. Defendants counter that the circuit court properly dismissed plaintiffs' complaint under section 2-619(a)(9) because, despite their duty not to alter the natural flow of water onto another's land, they are entitled to absolute immunity regarding all of their decisions with respect to the planning and construction of Westwood Park because all decisions involved the exercise of discretion. Accordingly, defendants argue, their actions fall squarely within the purview of the immunity provided under section 2-201 of the Act. We disagree. For the reasons discussed below, we hold that the circuit court improperly dismissed plaintiffs' claims as to these municipal defendants.

The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily proved issues of fact at the outset of litigation. Zedella v. Gibson, 165 Ill.2d 181, 185, 209 Ill.Dec. 27, 650 N.E.2d 1000 (...