Warner/Elektra/Atlantic Corp. v. County of DuPage

• Decision Date: 09 June 1993
• Docket Number: 91-3886,Nos. 91-3847,s. 91-3847
• Citation: 991 F.2d 1280
• Parties: WARNER/ELEKTRA/ATLANTIC CORPORATION, et al., Plaintiffs-Appellants/Cross-Appellees, v. COUNTY OF DuPAGE, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1280

991 F.2d 1280

WARNER/ELEKTRA/ATLANTIC CORPORATION, et al Plaintiffs-Appellants/Cross-Appellees, v. COUNTY OF DuPAGE, Defendant-Appellee/Cross-Appellant.

Nos. 91-3847, 91-3886.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 1, 1992.

Decided April 19, 1993.

Rehearing and Rehearing En Banc

Denied June 9, 1993.

Edward M. Kay, James T. Ferrini, Susan Condon, Imelda Terrazino, Thomas J. Skeffington, Kevin P. Caraher, Clausen, Miller, Gorman, Caffrey & Witous, Chicago, IL, for plaintiffs-appellants.

Byron D. Knight, Sarah Hansen Sotos, Charles C. Hoppe, Jr., Knight, Hoppe, Fanning & Knight, Des Plaines, IL, for defendant-appellee.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and WILL, Senior District Judge. ^*

POSNER, Circuit Judge.

Damage from flooding gave rise to this diversity suit, which presents interesting questions of eminent domain. The principal plaintiff (and the only one that need be mentioned) is Warner Communications, Inc. The defendant is DuPage County, Illinois. The damage for which Warner seeks compensation (stipulated at $4.2 million) was to cassettes, compact discs, record albums, videotapes, and similar merchandise stored in a large warehouse in Bensenville, a village in DuPage County. At this warehouse, which Warner has leased since 1978, Warner receives, processes, and sorts all merchandise returned by Warner customers anywhere in the nation and all overstocked merchandise from Warner's regional distribution centers. It is a busy facility, receiving as many as ten truckloads of merchandise a day. Much of this merchandise when received is stored temporarily on the floor of the warehouse or on pallets raised four inches above the floor.

A drainage ditch runs east along the northern edge of the parcel of land on which the warehouse is located and then turns north and about 800 feet from the warehouse crosses under Thorndale Road, a county highway. Until 1978 the drainage ditch was carried under the highway in a straight culvert having a diameter of 60 inches. In 1978 the county widened the highway from two to four lanes. Repaving incident to the widening raised the surface of the highway four and a half inches and the straight culvert was replaced with one that had two right-angle bends in it.

The warehouse is on low-lying land. Rainwater occasionally collected in the warehouse's parking lot and also in the loading dock, which was sunk beneath ground level, but had not entered the warehouse itself until July 22, 1982, when torrential rains caused the drainage ditch to overflow its banks and flood the warehouse to a height of four or five inches above the floor, damaging merchandise lying on it. Warner made immediate efforts to prevent a recurrence of such damage in a future flood by placing all items on pallets or shelves raised as much as sixteen inches above the floor. But this project had not been completed when on August 7, 1982, another storm caused another flood. This flood raised the water level ten inches above the floor of the warehouse, causing further damage to merchandise that had been left on the floor or on low pallets. There was evidence that the raising of Thornton Road had contributed to the flooding of the warehouse by preventing water that had collected south of the road from crossing the road, and that the bends in the culvert had had a similar effect by slowing the rate at which water flowed through the culvert under and to the north of the road rather than collecting south of the road.

Warner's complaint had two counts, the first charging negligence, the second inverse condemnation. The case went to the jury with a special-verdict form that (so far as material to this appeal) instructed the jury to determine whether the county had been negligent, whether Warner had been negligent, and, in the event that both parties had been negligent, how much of the responsibility for the damage should be apportioned to Warner. The jury found negligence on the part of the county but found that Warner had been negligent too and that 70 percent of the flood damage had been due to Warner's negligence. This reduced Warner's damages to $1.2 million, and since it had already obtained $2.2 million from settlements with other defendants the jury's verdict entitled Warner to no money from the county on the negligence count. The judge entered judgment in favor of Warner for $0 and then held that the county was liable to Warner in inverse condemnation also but that this liability too should be reduced in accordance with the jury's determination of comparative negligence. 771 F.Supp. 911 (N.D.Ill.1991). So because of the settlements Warner was again not entitled to any money from the county.

Warner appeals. The county cross-appeals. Although the filing of a cross-appeal is unnecessary and indeed improper when the cross-appellant is merely defending the judgment of the district court, whether on the district court's grounds or on any other grounds, Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976) (per curiam); Byron v. Clay, 867 F.2d 1049, 1050-51 (7th Cir.1989), the district court did not enter judgment for the county. It entered judgment for Warner, albeit a judgment for $0. The cross-appeal attacks the judgment, contending that the judge should have entered judgment for the county. Since the county is thus seeking an alteration in the judgment, albeit a technical one, the cross-appeal may appear to be proper--especially since the judge should have entered judgment for Warner for $1.2 million and deemed it satisfied. Warner had established liability and damages. A judgment in the plaintiff's favor for zero dollars is particularly anomalous in a tort case, since, as we tirelessly repeat (most recently in Stromberger v. 3M Co., 990 F.2d 974, 976-77 (7th Cir.1993)), without an injury there is no tort.

But we do not think in fact that the county was entitled to cross appeal. The district court's judgment, realistically, was for the county. That judgment, that result, the county can defend on the ground that Warner has no claim, rather than just no net damages, since either way the zero-dollars outcome would be preserved. Maybe the county is worried (though it hasn't said so) that the judgment might be given collateral estoppel effect in a future suit against it, perhaps by some other flood victim; for an appealable though not appealed finding is usable as collateral estoppel even if the finding was against the winning party. Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 99 n. 6, 74 S.Ct. 414, 420 n. 6, 98 L.Ed. 532 (1954). But since an unappealable finding does not collaterally estop, LaBuhn v. Bulkmatic Transport Co., 865 F.2d 119, 122 (7th Cir.1988); Restatement (Second) of Judgments § 27, comment h (1982); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4421 at pp. 199-201 (1981), it would be bootstrapping to use the collateral estoppel effect of an appealable finding to show that an appeal is necessary to ward off collateral estoppel. If an appellant is complaining not about a judgment but about a finding (here that the county was negligent and also an inverse condemnor)--on the bottom line it prevailed--the appeal does not present a real case or controversy. So it must be dismissed for want of jurisdiction, and the finding will thus have no collateral estoppel effect. Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 59 S.Ct. 860, 83 L.Ed. 1263 (1939), as interpreted in Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 337, 100 S.Ct. 1166, 1173, 63 L.Ed.2d 427 (1980), is distinguishable because the Court believed that the finding that the winning party sought to appeal might have collateral estoppel effect.

There is no suggestion that any of the other defendants in this case is seeking contribution or indemnity from the county, in which event the question whether the county had engaged in wrongful conduct might affect the county's pocketbook after all. Nor does the county suggest that the judgment, like a judgment for nominal damages, has any implications for costs (which might in some cases include attorney's fees). To repeat, you can appeal, or cross-appeal, only if you have something tangible (it need not be large) to gain from the appeal. The county has not. It can get all the relief it wants merely by defending the district court's judgment on a different ground.

We turn to Warner's appeal. With respect to the negligence count the principal issue is the jury's reasonableness in attributing 70 percent of the responsibility for the flood damage to Warner's own negligence. Warner argues that it wasn't negligent at all but that, if it was, its negligence surely wasn't a 70 percent cause of the damage to its tapes and other property, especially when one considers that some of the responsibility should be ascribed to the builder of the warehouse, and to the Village of Bensenville, which issued the certificate of occupancy. The builder and the village, Warner argues, knew better than Warner did that the warehouse was located in a low-lying area near a drainage ditch that might well overflow and flood the warehouse.

There is no merit to Warner's argument that it wasn't negligent at all--more precisely that no rational jury could have found it negligent on the basis of the evidence presented at the trial. The parking lot and the loading dock had flooded four times between Warner's occupying the warehouse in 1978 and the flooding of the warehouse in 1982. Cf. Brotherhood Shipping Co. v. St. Paul Fire & Marine Ins. Co., 985 F.2d 323, 328-29 (7th Cir.1993). A rational jury might consider it careless of Warner to have left millions of dollars worth of delicate, water-sensitive merchandise lying around on the floor of a warehouse when it should have been obvious that a severe rainstorm might send water into the warehouse itself...