Zimmer v. Village of Willowbrook

• Decision Date: 12 March 1993
• Docket Number: No. 2-92-0053,2-92-0053
• Citation: Zimmer v. Village of Willowbrook, 242 Ill.App.3d 437, 610 N.E.2d 709, 182 Ill.Dec. 840 (Ill. App. 1993)
• Parties: , 182 Ill.Dec. 840 Rodney C. ZIMMER, et al., Plaintiffs-Appellants, v. The VILLAGE OF WILLOWBROOK, et al., Defendants-Appellees.
• Court: Appellate Court of Illinois

Page 709

610 N.E.2d 709

242 Ill.App.3d 437, 182 Ill.Dec. 840

Rodney C. ZIMMER, et al., Plaintiffs-Appellants, v.The VILLAGE OF WILLOWBROOK, et al., Defendants-Appellees.

No. 2-92-0053.

Appellate Court of Illinois Second District.

March 12, 1993.

John R. Wimmer, Downers Grove, for Rodney C. Zimmer, Grace Olech and Phyllis S. Zimmer.

Gerald M. Gorski, Kenneth R. Menzel, Gorski & Good, Wheaton, Allan C. Alongi, Hinsdale, Francis J. Leyhane III, Condon & Cook, Chicago, for Village of Willowbrook and Cecil Allen.

Justice QUETSCHdelivered the opinion of the court:

Plaintiffs, Rodney and Phyllis Zimmer(the Zimmers) and Thaddeus and Grace Olech(the Olechs), sued defendant the Village of Willowbrook(Willowbrook) for flooding damages allegedly resulting from Willowbrook's installation and enlargement of certain culverts near plaintiffs' property.Plaintiffs also sued defendantCecil Allen(Allen) for flooding damages allegedly resulting from a pond, culverts and drains which Allen constructed on his property.Plaintiffs further sought a mandatory injunction requiring Allen to remove the pond, culverts and drains from his land.The trial court granted Willowbrook's motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure(Ill.Rev.Stat.1991, ch. 110, par. 2-619), finding that plaintiffs' cause of action was time barred by section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)(Ill.Rev.Stat.1991, ch. 85, par. 8-101).The trial court granted Allen's motion for summary judgment, finding that plaintiff's legal cause of action against Allen was time barred by section 13-205 of the Code of Civil Procedure(Ill.Rev.Stat.1991, ch. 110, par. 13-205), and that laches barred plaintiffs' claim for equitable relief.Pursuant to Supreme Court Rule 304(a), the court made an express written finding that there was no just reason to delay enforcement or appeal.(134 Ill.2d R. 304(a).)Plaintiffs appeal.

The issues raised on plaintiffs' appeal from the trial court's granting of Willowbrook's section 2-619 motion to dismiss are: (1) whether the limitations period set forth under section 8-101 of the Tort Immunity Act or section 13-214(a) of the Code of Civil Procedure(Ill.Rev.Stat.1991, ch. 110, par. 13-214(a)) applies in the action against Willowbrook; and (2) when the applicable limitations period begins to run.The issues raised on plaintiffs' appeal from the trial court's granting of Allen's motion for summary judgment are: (1) whether the limitations period set forth under section 13- 214(a) or section 13-205 applies in the action against Allen; (2) when the applicable limitations period begins to run; (3) whether laches bars plaintiffs' action seeking equitable relief from the flooding of their property; and (4) whether Allen must own property adjacent to the Olechs in order to be held liable to the Olechs for negligent trespass.

I

We first consider plaintiffs' claim against Willowbrook.Plaintiffs filed their first complaint against Willowbrook on August 8, 1989, and their second amended complaint on January 11, 1991.Plaintiffs own properties near Bentley Avenue and 65th Street, and they allege that Willowbrook enlarged one culvert on Bentley Avenue and installed one culvert on 65th Street "to allow storm water from no less than 80 culverts and 35 sump pumps to pass water onto the Zimmer property and the property of the other Plaintiffs."Plaintiffs complained that Willowbrook's actions unreasonably altered and increased the volume and rate of the flow of water onto plaintiffs' land.In affidavits filed in response to Willowbrook's section 2-619 motion to dismiss, the Zimmers claimed that their property was flooded in the spring of 1987, the spring of 1990, and from the beginning of 1991 until the middle of June 1991.The Olechs claimed that their property was flooded in the spring of 1987, 1990, and 1991.

In its motion to dismiss, Willowbrook asserted that plaintiffs' action was time barred by section 8-101.Section 8-101 states:

"No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued."Ill.Rev.Stat.1991, ch. 85, par. 8-101.

Willowbrook argued that plaintiffs' cause of action accrued when Willowbrook replaced the culverts in 1981.Willowbrook contended that this case was factually analogous to Firestone v. Fritz(1983), 119 Ill.App.3d 685, 75 Ill.Dec. 83, 456 N.E.2d 904.In Firestone, the defendant Fritz constructed a retaining wall and placed fill on his property.Approximately 20 years later, Fritz replaced the retaining wall with a new wall.The Firestones alleged that the retaining wall and fill caused surface water to drain onto their property in unnatural quantities, destroying their garage.The court held that any cause of action accrued upon the completion of the original retaining wall.The court stated:

"Whether, in Illinois, separate causes of action accrue at each successive injury by an unnatural overflow requires a further analysis of the cause of the overflow.When a structure is placed on dominant land which unreasonably increases the flow onto the servient land, a cause of action may accrue upon the completion of the structure if it is a permanent structure which is necessarily injurious by reason of its construction.[Citation.]If, however, the structure is not apparently injurious, but may be used in a way which may or may not result in injury, the cause of action does not accrue until the use of the structure causes injury.[Citations.]The fact that flooding may be uncertain in time, duration and extent does not prevent an improvement, which displays obvious potential to cause an unnatural overflow upon completion, from constituting an immediate, permanent injury.[Citations.]"Firestone, 119 Ill.App.3d at 687-88, 75 Ill.Dec. 83, 456 N.E.2d 904.

The trial court agreed that the principles set forth in Firestone governed this case and that plaintiffs' cause of action accrued at the time the replacement culverts were installed in 1981.The court decided that the one-year limitations period of section 8-101 applied.Plaintiffs therefore had until 1982 to bring their cause of action.Plaintiffs did not file their action against Willowbrook until August 1989.The trial court granted Willowbrook's motion to dismiss.

Plaintiffs argue that section 13-214(a) is the applicable statute of limitations.Section 13-214 states in relevant part:

"As used in this Section'person' means any individual, any business or legal entity, or any body politic.

(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission."(Ill.Rev.Stat.1991, ch. 110, par. 13-214(a).)

Plaintiffs contend that a question of fact exists as to when they should have reasonably known of Willowbrook's act or omission and therefore the trial court should not have granted Willowbrook's motion for summary judgment.

The law in Illinois is well established that where there are two statutory provisions, one general and the other specific, the particular provision prevails.(Bowes v. City of Chicago(1954), 3 Ill.2d 175, 205, 120 N.E.2d 15.)This is especially true where the specific provision was enacted more recently.(Bowes, 3 Ill.2d at 205, 120 N.E.2d 15.)However, in this case, neither statutory provision can be considered "general."This court has stated that section 8-101 is a "special"statute which supersedes any pertinent general limitations period.(Stanley v. Denning(1970), 130 Ill.App.2d 628, 631, 264 N.E.2d 521.)Section 13-214(a) has been classified as a "specific"statute of limitations.Hernon v. E.W. Corrigan Construction Co.(1992), 149 Ill.2d 190, 196, 172 Ill.Dec. 200, 595 N.E.2d 561.

Therefore, in order to determine which limitations period controls, we must decide which of these two statutory provisions is more specifically applicable to this case.Section 8-101 provides a limitations period for civil actions commenced against a local entity.(Ill.Rev.Stat.1991, ch. 85, par. 8-101.)Section 13-214(a) is a more recent statute of limitations than section 8-101, and it expressly applies to any "body politic" which is sued in an action based on tort for an act or omission in the construction of an improvement to real property.Ill.Rev.Stat.1991, ch. 110, par. 13-214(a).

The primary rule of statutory construction requires that the intention of the legislature should be ascertained and given effect.(County of Du Page v. Graham, Anderson, Probst & White, Inc.(1985), 109 Ill.2d 143, 151, 92 Ill.Dec. 833, 485 N.E.2d 1076.)Courts should first look to the language of the statute as the best indication of the intent of the drafters.(County of Du Page, 109 Ill.2d at 151, 92 Ill.Dec. 833, 485 N.E.2d 1076.)Courts cannot declare that the legislature did not mean what the plain language of the statute imports.County of Du Page, 109 Ill.2d at 151-52, 92 Ill.Dec. 833, 485 N.E.2d 1076.

Our supreme court has held that the language of section 13-214(a) clearly and unambiguously includes bodies politic within the ambit of the statute.(County of Du Page, 109 Ill.2d at 151, 92 Ill.Dec. 833, 485 N.E.2d 1076.)We determine that the legislature intended for section 13-214(a), which was enacted after section 8-101, to constitute a limited exception to section 8-101.Thus, actions against a body politic for an act or omission in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property must...