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

• Decision Date: 18 July 1991
• Docket Number: No. 83 C 8230.,83 C 8230.
• Citation: 771 F. Supp. 911
• Parties: WARNER/ELEKTRA/ATLANTIC CORPORATION; Warner Communications Inc.; and Fireman's Fund Insurance Co., As Subrogee for Warner/Elektra/Altantic Corporation and Warner Communications Inc., Plaintiffs, v. COUNTY OF DuPAGE, ILLINOIS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

771 F. Supp. 911

WARNER/ELEKTRA/ATLANTIC CORPORATION; Warner Communications Inc.; and Fireman's Fund Insurance Co., As Subrogee for Warner/Elektra/Altantic Corporation and Warner Communications Inc., Plaintiffs, v. COUNTY OF DuPAGE, ILLINOIS, Defendant.

No. 83 C 8230.

United States District Court, N.D. Illinois, E.D.

July 18, 1991.

Thomas J. Skeffington and Kevin P. Caraher, Clausen Miller Gorman Caffrey & Witous, P.C., Chicago, Ill., for plaintiffs.

Byron D. Knight, Charles C. Hoppe, Jr., and Mark V. Puccio, Knight, Hoppe, Fanning & Knight, Ltd., Des Plaines, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ILANA DIAMOND ROVNER, District Judge.

I. INTRODUCTION

Plaintiffs Warner/Elektra/Atlantic Corporation and Warner Communications, Inc. (collectively, "Warner"), together with their insurer, Fireman's Fund Insurance Co. ("Fireman's Fund"), brought this action to recoup the losses they sustained when the warehouse which Warner leased in Bensenville, Illinois was flooded on two occasions in the summer of 1982. The flooding damaged or destroyed a number of record albums, cassettes, and eight-track tapes stored in the warehouse. All defendants except the County of DuPage, Illinois ("DuPage"), settled with plaintiffs in advance of trial.¹ Plaintiffs asserted two claims against DuPage, one sounding in negligence and the other in inverse condemnation. In essence, the theory of plaintiffs' case against DuPage was that when DuPage had widened and resurfaced a segment of Thorndale Road adjacent to the Warner property in the 1970s and reconfigured a drainage culvert under the roadway, it had created conditions which, during two heavy rainstorms in 1982, caused water to overflow a drainage canal and flood the Warner property.

On March 22, 1991, after 11 days of trial, the jury returned a special verdict in favor of plaintiffs on both claims. In full, the special verdict form was completed as follows:

SPECIAL VERDICT FORM

A. As to plaintiffs' negligence claim:

1. Was the County of DuPage negligent as stated to you in these instructions?

Yes X No _

2. If the answer to No. 1 is yes, was the negligence of DuPage County a proximate cause of damage to the plaintiffs?

Yes X No _

3. If you answered yes to numbers 1 and 2, were the plaintiffs contributorily negligent as stated to you in these instructions?

Yes X No _

4. If you answered yes to number 3, was such contributory negligence a cause of plaintiffs' own damage?

Yes X No _

5. If you answered yes to number 4, assuming that 100% represents the total combined negligence of all persons or entities whose negligence proximately contributed to the plaintiffs' damage, including the plaintiffs and DuPage County and all other persons and entities, what percentage of such negligence do you find is attributable solely to the plaintiffs?

70%

B. As to plaintiffs' inverse condemnation claim:

1. Did the 1978 elevation of Thorn-dale Road by or under the direction of the County of DuPage proximately cause water to accumulate and overflow the water drainage canal onto the Warner property?

Yes X No _

2. Did the 1978 extension and modification of the culvert underneath Thorn-dale Road by or under the direction of the County of DuPage proximately cause water to accumulate and overflow the water drainage canal onto the Warner property?

Yes X No _

3. If you answered yes to No. 1 or No. 2 or both, did the accumulated and overflowing water cause damage to the plaintiffs' property?

Yes X No _

Three matters remain before the Court at this juncture. First, the Court must make the ultimate determination, in light of the jury's special verdict as to plaintiffs' inverse condemnation claim, whether or not there has been a compensable taking entitling plaintiffs to compensation. Second, there is a dispute as to whether comparative fault principles apply to inverse condemnation, so as to require a reduction of the damages which plaintiffs may recover under that claim commensurate with the degree of plaintiffs' contributory negligence. Finally, there is a further dispute between the parties as to whether or not the Illinois Contribution Among Joint Tortfeasors Act, Ill.Rev.Stat. ch. 70, ¶ 302(c) (1989) (the "Contribution Act"), applies to the inverse condemnation claim, such that the amounts which plaintiffs have previously obtained from DuPage's co-defendants in settlement must be set off against plaintiffs' recovery under this claim as they are against recovery under the negligence claim. The Court takes each matter in turn below.

II. ANALYSIS

A. Liability on the Inverse Condemnation Claim

In the midst of the trial of this case, DuPage's counsel suggested for the first time that the plaintiffs' inverse condemnation claim presented a legal issue which properly was for the Court, rather than the jury, to decide. In response to this articulated concern, and consistent with precedent holding that there is no right to a jury trial on a determination of liability on an inverse condemnation claim, the Court determined that the best course would be to reserve the ultimate determination of liability to itself, but submit factual inquiries underlying this determination to the jury. See Minute Order dated March 15, 1991; see generally Marshall v. Dept. of Water & Power of City of Los Angeles, 219 Cal. App.3d 1124, 268 Cal.Rptr. 559, 568-69 (1990). After DuPage's counsel subsequently declined plaintiffs' suggestion that the entire claim be submitted to the Court, the special verdict form was revised to include inquiries directed to the matter of proximate cause. These inquiries were patterned upon those set forth in Skeen v. State, 550 S.W.2d 713, 715 (Tex.Civ.App. 1977), which concerned an inverse condemnation claim based upon facts comparable to those underlying plaintiffs' claim in this case.

As set forth above, the jury affirmatively answered each of the inquiries regarding plaintiffs' inverse condemnation claim. That is, the jury found that both the 1978 elevation of Thorndale Road and the modification and extension of the culvert beneath it caused water to accumulate and overflow the water drainage canal onto the Warner property, and that the flooding in turn caused damage to plaintiffs' property. In light of these findings, which establish that DuPage's conduct in making modifications to public improvements was a proximate cause of damage to Warner's property, the Court finds that there has been a compensable damaging of Warner's personal property for a public use² and that DuPage is therefore liable to plaintiffs in inverse condemnation. Cf. Hillsborough County v. Gutierrez, 433 So.2d 1337, 1340 (Fla.App.1983) (in inverse condemnation action, where court found that drainage ditches adjacent to plaintiffs' property were constructed by county in such a way as to create flood conditions on the property, plaintiffs were entitled to recover value of personal property damaged by flooding); Skeen, 550 S.W.2d at 715 (where jury found that elevation of highway and manner of construction of culverts and service roads caused an overflow of flood waters onto plaintiffs' property on two occasions, resulting in damage to plaintiffs' real and personal property, plaintiffs were entitled to recover damages on theory of inverse condemnation); Granone v. County of Los Angeles, 231 Cal.App.2d 629, 42 Cal.Rptr. 34, 46 (1965) (where evidence disclosed that drainage channel and culverts had not been designed and constructed consistently with sound engineering practice and were negligently maintained, resulting in accumulation of debris, blockage of flow during rainstorm, and flooding of plaintiffs' land and destruction of plaintiffs' crops, defendants were liable in inverse condemnation). See also Marshall, 268 Cal.Rptr. at 567 ("a governmental entity may be held strictly liable, irrespective of fault, where a public improvement constitutes a substantial cause³ of the plaintiff's damages even if only one of several concurrent causes").⁴

B. Reduction for Warner's Contributory Negligence

On the eve of trial, the parties stipulated to the amount of damages which plaintiffs had incurred, based upon the Court's prior rulings as to the correct measure of damages. The amount agreed upon was $4,160,385.00.⁵ Plaintiffs have prevailed on both of their claims, although the jury concluded that Warner was 70 percent contributorily negligent. Plaintiffs concede that to the extent that an award of damages is based upon their negligence claim, it must be reduced by 70 percent to reflect Warner's contributory negligence. This reduction would entitle plaintiffs to recover $1,248,115.50 on their negligence claim (subject to setoff under the Contribution Act for the prior settlements, as discussed in the following section). DuPage argues that the same reduction should apply to the inverse condemnation claim, thereby precluding plaintiffs from recovering a greater amount under that theory. Plaintiffs contest application of comparative fault principles to their inverse condemnation claim, arguing that because such a claim is not based upon tort theory, tort principles such as comparative fault should not apply.

At the outset, the Court must dispose of DuPage's threshold argument that having prevailed upon their negligence claim, plaintiffs are barred from an alternate recovery upon their claim of inverse condemnation. DuPage suggests that because inverse condemnation arose as a means to circumvent the doctrine of sovereign immunity which typically barred tort claims against governmental entities, see Van Alstyne, "Inverse Condemnation: Unintended Physical Damage," 20 Hastings L.J. 431, 440-41 & n. 51 (1969); Granone v. County of Los Angeles, supra, 42 Cal.Rptr. at 45, it should be unavailable in cases where this immunity does not apply.⁶ This contention is incorrect. A similar argument was rejected in Lanning v. State Highway Commission, 15 Or.App. 310, 515 P.2d 1355 (1973). There the plaintiffs alleged that the defendant...