Nichols v. City of Chicago Heights , 2015 IL App (1st) 122994 ( 2015 )

Illinois Official Reports
Appellate Court
Nichols v. City of Chicago Heights, 2015 IL App (1st) 122994
Appellate Court CHARLOTTE NICHOLS, RODGER BOLDEN, RAUL TENIENTE,
Caption CARMEN TENIENTE, JUANITA DIXON, MICHAEL FOSTER,
LINCOLN HAMILTON, KAREN HAMILTON, MICHAEL
IFLAND, SUSAN IFLAND and CAMILLE WILLIAMS, on Behalf
of Themselves and on Behalf of All Others Similarly Situated, a
Proposed Class Action, Plaintiffs-Appellants, v. THE CITY OF
CHICAGO HEIGHTS, Defendant-Appellee.
District & No. First District, Fourth Division
Docket No. 1-12-2994
Filed April 30, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CH-3803; the
Review Hon. Thomas Allen, Judge, presiding.
Judgment Affirmed.
Counsel on William J. Sneckenberg, of Sneckenberg, Thompson & Brody, LLP,
Appeal of Chicago, and David R. Dubin, of Macuga, Liddle & Dubin, P.C., of
Detroit, Michigan, for appellants.
Thomas G. Gardiner, Barry C. Owen, and Kyle P. Carson, all of
Gardiner Koch Weisberg & Wrona, of Chicago, for appellee.
Panel PRESIDING JUSTICE FITZGERALD SMITH delivered the
judgment of the court, with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs Charlotte Nichols, Rodger Bolden, Raul Teniente, Carmen Teniente, Juanita
Dixon, Michael Foster, Lincoln Hamilton, Karen Hamilton, Michael Ifland, Susan Ifland, and
Camille Williams are a group of individuals1 whose homes were damaged in flooding during a
two-day rainstorm in April 2006. Heavy rainfall occurred on April 16-17, 2006 (the occurrence
period) and sewer water containing pollutants, feces, dirt, debris, and other noxious matter
from the sewerage system overflowed into plaintiffs’ homes located in Chicago Heights.
Plaintiffs brought suit against defendant City of Chicago Heights (the City), arguing that the
City is responsible for the damage to their homes. Plaintiffs’ second amended complaint
asserted two claims against the City: (1) operational negligence; and (2) negligence under the
doctrine of res ipsa loquitur. Following substantial hearings, discovery, depositions, and
motions filed, the City filed a motion for summary judgment pursuant to section 2-1005 of the
Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)), arguing it was immune from suit
under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS
10/2-201 (West 2008)) (Tort Immunity Act or Act). The City supported its motion in part with
an affidavit by Michael A. Sabo. Plaintiffs filed a motion to strike the Sabo affidavit. After
hearing arguments on the motions, the trial court denied the motion to strike the Sabo affidavit
and granted summary judgment in favor of the City. Plaintiffs appeal the trial court’s ruling
that the City of Chicago Heights is immune from the claims of negligence related to the
maintenance and operation of its sewer systems and its subsequent grant of summary judgment
in favor of the City of Chicago Heights. Plaintiffs contend that summary judgment was granted
in error because: (1) the City was not entitled to discretionary immunity where the plaintiffs’
claims arose from the City’s ministerial act of maintaining its sewer system, rather than from a
discretionary act; and (2) there was sufficient evidence to establish genuine issues of material
fact regarding plaintiffs’ negligence claim under the theory of res ipsa loquitur. In addition,
plaintiffs contend the trial court erred in denying their motion to strike the Sabo affidavit. For
the following reasons, we affirm.
1
Plaintiffs have not been certified as a class.
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¶2 I. BACKGROUND2
¶3 On April 16-17, 2006, a rainstorm hit the Chicago area.3 Plaintiffs allege that their homes,
all located in the City of Chicago Heights, flooded with raw sewage as a result of this rainfall.
Following the rainfall, the basements of approximately 5% of Chicago Heights residents
allegedly flooded.
¶4 The City of Chicago Heights owns, maintains, and operates a separated sewer system in
which storm water and sanitary wastewater travel in separate lines and to different end points.
¶5 Plaintiffs filed their original complaint against Chicago Heights in February 2007, alleging
negligence, trespass, and nuisance, and seeking class action certification as a result of the
flooding. In April 2007, plaintiffs filed an amended complaint alleging various claims,
including trespass, nuisance, res ipsa negligence, operational negligence, negligent design,
and unconstitutional taking. Several of these claims were dismissed. In August 2008, plaintiffs
filed their second amended complaint alleging claims for maintenance and operational
negligence, as well as res ipsa loquitur negligence. This is the complaint at issue here.
¶6 The record on appeal includes a September 13, 2005, letter written from Anthony DeLuca,
mayor of the City of Chicago Heights, to James L. Daugherty, district manager of Thorn Creek
Basin Sanitary District. The letter describes the efforts the City was making in the maintenance
and operation of the sewer system. It states:
“RE: TCBSD Infiltration/Inflow Limits Ordinance
Dear Mr. Daugherty:
The purpose of this letter is to present our proposed I/I compliance schedule as
requested by your March 7, 2005 letter.
Since submitting a similar compliance schedule in 1993, the City of Chicago
Heights has actively pursued sanitary sewer rehabilitation efforts over the past decade.
From 1994-97, the City also performed 2,705 manhole inspections (100% city-wide),
dye water flood tested 137 high priority locations in 1995, and conducted a city-wide
house-to-house survey of 8,302 buildings (91%).
In the mid-1990s, the City obtained a $3.2 million low interest loan from IEPA that
funded over 500 manhole repairs, 1,678 vertical feet of manhole lining, 50-sewer point
repairs, and cured-in-place lining of 47,451’ of sewer mains in the northwest area of the
2
At the outset, we note that plaintiffs’ appellate brief contains violations of supreme court rules.
Illinois Supreme Court Rule 341(h) (eff. Feb. 6, 2013) requires the appellant to include a statement of
facts containing the facts necessary to an understanding of the case, stated accurately and fairly without
argument or comment. The statement of facts presented in plaintiffs’ appellate brief, however, is replete
with comment and argument. For example, on page 7, plaintiffs state, “[i]f the City had properly
maintained its sewer system, the destruction of Plaintiffs’ homes and properties would never have
occurred.” On page 8, in a discussion of City policy regarding sewer maintenance and inspection,
plaintiffs baldly state, “[t]he origins of and basis for this policy are a mystery.” We caution plaintiffs to
be mindful of the rules that have been established in order to provide meaningful and expeditious
review of issues presented on appeal. See, e.g., Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490,
494 (2002).
3
The parties disagree as to the magnitude of the storm. Plaintiffs contend that the storm “was
considered to be between a 10-year 15-hour and 25-year 15-hour rainfall event.” Defendant contends
the storm was “torrential,” “historic,” and “within the range of a 100-year rain event.” Both parties
agree that it was a heavy rain, which is sufficient for our purposes here.
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City. Subsequently in 1996-97, the City performed an additional 9 point repairs, 144
manhole repairs, and 12,600’ of sewer lining throughout the Saratoga Farms and
Bradley Terrace subdivisions. Since 1997, the City has invested an additional
$1,100,000 toward 31,300’ of additional sewer lining. These efforts have greatly
reduced I/I entering the sanitary sewer system. The building surveys and manhole
inspections referenced above identified approximately 7.5 MGD of I/I that remains in
the City’s system. Manhole rehabilitation is generally found to be cost-effective due to
the relatively low repair cost and significant I/I reductions achieved, and it is estimated
that repairing all defective manholes in the City would cost approximately $2,500,000.
The manhole rehabilitation work is known and proposed to be completed in a
multi-year program as budget constraints allow. We also intend to perform flow
monitoring at strategic locations to isolate subareas containing high I/I concentrations,
additional dye flood testing and sewer televising in these high flow subareas, and
associated rehabilitation work identified by these investigations. It is estimated that the
investigative work will cost $150,000 City-wide.
The City’s current budget includes the repayment of the $3.2 million loan to IEPA
through the year 2016 from sewer fees collected from users. Therefore, available funds
for sewer rehabilitation efforts during the next decade will remain similar to the past
several years ($250,000/yr) until the loan debt is serviced.
Therefore, the following compliance schedule is proposed:
[2006 to 2014 year-by-year proposed spending on items such as flow monitoring
and sewer televising, manhole rehabilitation, and sewer lining, with a total estimated
cost of $3,250,000.]
We are confident that our continued commitment to significant investments into
rehabilitating our sewer system infrastructure will result in the City’s compliance with
the District’s I/I limits over time, and look forward to working with the District toward
achieving this goal.
At this time Robinson Engineering has prepared a full set of manhole rehabilitation
plans for the entire City. After the compliance schedule is agreed upon we subdivide
the plans to meet the financial constraints of the yearly budget. After your approval of
the plans and specifications we will be able to immediately go to bid for the manhole
rehabilitation project.”
¶7 The record on appeal also includes the October 2011 affidavit of Michael A. Sabo. This
affidavit reads in its entirety:
“I, Michael A. Sabo, after first being duly sworn on oath, depose and state that if I
were sworn as a witness I could competently testify to the following:
1. I am over the age of eighteen and make this affidavit of my own personal
knowledge.
2. I am a resident of Chicago Heights, Illinois.
3. Between 1999 and 2007, I was Alderman of the 6th District of Chicago Heights,
with an office at 1601 Chicago Road, Chicago Heights, IL 60411.
4. Between 2007 and 2009, I was the Director of City Services and Projects for the
City of Chicago Heights.
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5. Since 2009, I’ve been the Director [of] Street, Sewer, and Vehicle Maintenance
Departments for the City of Chicago Heights.
6. Between 2004 and 2007, the City of Chicago Heights’ legislation was enacted in
the form of ordinances passed by a majority vote of the City Council.
7. Until 2011, the City Council comprised the mayor and six aldermen. A seventh
alderman was added in 2011.
8. The City of Chicago Heights owns, maintains and operates a separated sewer
system in which storm water and sanitary wastewater travel in separate lines and to
different end points.
9. The storm water that enters the City’s storm sewer system is discharged in local
waterways.
10. The wastewater that enters the City’s sanitary sewers from the homes of City
residents and businesses travels through the City’s system to Thorn Creek Basin
Sanitary District where it is treated before being discharged into local waterways.
11. Thorn Creek has the ability to regulate the amount of wastewater that flows
from the City’s sanitary sewer system into the Thorn Creek Treatment plant.
12. If for any reason the flow from the City’s sewer system into the Thorn Creek
facility was stopped or slowed, this could cause the City’s system to backup and result
in backups in the homes and businesses of City residents.
13. The City of Chicago Heights Municipal Code places the responsibility for the
installation, connection and maintenance of sewer lines that connect to the City’s
system upon the City’s residents and businesses.
14. A blockage in a City resident’s lateral lines could and often does cause sewage
backups into the resident’s home and/or the backup of sewage into other residents’
homes.
15. The City Council adopted as the standard for operations and maintenance of its
municipal sewer systems to have a system that can handle events involving less than a
50 year storm.
16. The Mayor and City Council were aware that the City’s sewer system was in
need of repair in March 1993.
17. The Chicago Heights City Council alone has the authority to allocate funds for
and initiate a plan to maintain, repair and/or upgrade the City’s sewer system.
18. In 1993, following notification of the City’s violation of a Thorn Creek
ordinance, the City Council voted on a sewer rehabilitation program.
19. The purpose of the sewer rehabilitation plan initiated in 1993 was to upgrade
the City’s sewer system and bring Chicago Heights into compliance with Thorn Creek
ordinances.
20. In March 1993, the City Council voted to authorize over $1,100,000 in private
sector and public sector investigations to isolate and identify sources of infiltration and
inflow into its sanitary sewer system.
21. Between 1994 and 1997, this investigation phase included dye water flood
testing of 137 high priority locations, 2,705 manhole inspections, a house-to-house
survey, with internal and external inspections of 8,302 buildings in Chicago
Heights–(91% of all buildings in the city).
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22. Beginning in 1997, the City began its initial phase of sewer rehabilitation,
comprising over a $1,000,000 in rehabilitation work, funded in part by a $3.2 million
low interest loan from the Illinois Environmental Protection Agency.
23. The above projects required the city to retire its debt at a rate of $220,000
annually.
24. After 1997, 31,300 additional feet of sewer lining were deployed.
25. In 2005, the City Council made the policy decision, in full cooperation with
Thorn Creek, that the work required to bring the sewer system into compliance with
infiltration limits would be completed in 2015.
26. All determinations with respect to the prioritization of sewer system
rehabilitation and upgrades discussed above were made prior to April 16-17, 2006.
27. The type of flooding that Plaintiffs’ allege they suffered in this case can occur in
the homes of Chicago Heights’ residents as a result of an obstruction in the sanitary
sewer system despite the City’s regular maintenance and inspection of the system.
28. The March 3, 2006 letter from Chicago Heights Mayor to Thorn Creek Basin
Sanitary District attached hereto as Exhibit A, is a true and correct copy of said letter,
and said letter was made in the regular course of business, and it was the regular course
of business to make such a memorandum or record at the time of such an event or
within a reasonable time thereafter. This letter is maintained as a regular business
record by the City of Chicago Heights Street, Sewer, and Vehicle Maintenance
Department of which I am Director.
29. Before any repair, maintenance or upgrade project can begin, the City Council
must allocate funding for the project, and, in doing so, consider the overall needs and
safety of City residents and allocate budgetary resources accordingly.”
¶8 Also included in the record on appeal is a letter from the City of Chicago Heights mayor
Anthony DeLuca to James L. Daugherty, district manager for the Thorn Creek Basin Sanitary
District, dated March 3, 2006. It reads, in pertinent part:
“RE: [Thorn Creek Basin Sanitary District] Infiltration/Inflow Limits Ordinance
Dear Mr. Daugherty,
The purpose of this letter is to respond to your December 28th, 2005 letter
requesting the City of Chicago Heights to submit a revised sewer rehabilitation
Compliance Schedule. A revised schedule providing recommendations for system
rehabilitation to achieve compliance with Thorn Creek Basin Sanitary District
(TCBSD) Ordinance No. 328 is enclosed. The intended plan is to serve as an expansion
of our current rehabilitation program by outlining tasks and budget assignments
designed to bring the system into compliance. The schedule includes system
investigations and systematic rehabilitation designed to remove, isolate and pinpoint
Inflow/Infiltration (I/I) sources throughout the City’s sanitary sewer transport system.
To remind the District just how committed the City is to transport system
improvements, we will summarize our efforts, to date. Since formal notification of its
noncompliance with TCBSD ordinance in March 1993, the City of Chicago Heights
has authorized over $1,100,000 in private sector and public sector investigations to
isolate and identify sources of infiltration and inflow into its sanitary sewer system.
Since 1997 the City has performed over a $1,000,000 in rehabilitation work. As part of
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our initial phase of sewer rehabilitation, the City (funded by a $3.2 million low interest
loan from the Illinois Environmental Protection Agency), completed several sewer
improvements on the City’s northwest side in 1997. It is important for the District to
recognize the City is retiring the debt for the 1997 improvements at a rate of $220,000
annually. The remaining debt retirement period exceeds the 10-year rehabilitation
program suggested by the District. The work performed is listed below:
Work performed between 1996-1997
Bradley Terrace
Approximately 4,100 lineal feet of pipelining,
5 point repairs, and
33 manhole repairs
Saratoga Farms and its tributaries
8,500 lineal feet of sanitary sewer lining
4 point repairs
111 manhole repairs
Manhole Inspections 1994-1997
2,705 sanitary sewer manholes–100% of all known manholes within the
City
Dye Water Flood Testing (spring 1995)
A total of 137 high priority locations were tested by National Power
Rodding Corporation
House-to-house survey
A citywide building-to-building survey was conducted from 1994 to 1997, and
consisted of internal and external inspections of 8,302 of the 9,123 buildings (91%)
existing in the City. Survey crews were unable to gain entry into 821 buildings (9%).
Of the 9,123 buildings, a total of 6,812 buildings, or 75%, are suspected to contain at
least one type of connection contributing I/I to the sanitary sewer system. A summary
of the investigation is described below.
Detailed in a May 1997 report prepared by Robinson Engineering, Ltd., estimated
that a total of 5.706 MGD I/I is contributed to the City’s sanitary sewer system from
private property sources.
Work performed after 1997
31,300 lineal feet of sanitary sewer lining
2 point repairs
The above work resulted in over $1,100,000 in public sector rehabilitation repairs
to reduce infiltration and inflow into its sanitary sewer system. These efforts have
greatly reduced I/I entering the sanitary sewer system.
The rehabilitation of all defects found in the entire system is almost never
cost-effective. In any system, however, some rehabilitation is always cost-effective.
The system costs for most sewage collection and treatment systems of any significant
size depend upon its capacity, or the flow it can handle. The desirable extent of
rehabilitation can only be determined objectively by economic and practical
considerations. We are committed to the rehabilitation program and have reviewed
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Baxter & Woodman’s first year recommendations listed in its November 7, 2005 letter
to the District. We have therefore, revised our program accordingly.
Sewer System Inventory and Mapping:
A newly computerized base map and sewer system atlas will be developed. We
intend to include storm sewers on the initial mapping. The initial impact to update the
City’s sanitary sewer atlas and incorporate all system data into a Geographic
Information System database would allow data to be linked into the updated map which
would assist the City in developing a long term I/I reduction program.
Flow Monitoring:
Attached is a map containing the major sewer service areas in Chicago Heights.
The map identifies 6 major trunk sewers where we propose to monitor flow rates for a
3-month period. These initial data will be used to determine the location of where to
install flow meters for the next round of flow monitoring. If the monitoring locations
selected on the attached map are not to the District’s liking, please advise where you
would like us to measure.
Sewer Televising and Cleaning
Based on initial flow monitoring results, areas will be selected for televising and
cleaning. Plans and specifications will be prepared for the work and bid out. The result
will identify were sewer rehabilitation is recommended. A report summarizing our
findings will be prepared.
Progress Report:
An engineering report will be prepared identifying worst areas for further
investigation. A compliance schedule for further investigation will be prepared.
Preliminary cost estimates for the work and a financial needs analysis will be included.
Based on the first year investigations, the rehabilitation scope, probable project
costs, funding needs, allocations and long-term program to maintain the City’s sanitary
sewer system would be determined. Attached is a project schedule outlining
work-flow. The cost for the first year program is outlined in Table 2 below.
Table 2 Compliance Schedule–Year One (2006)
Proposed Schedule Budget
Flow monitoring 6 locations $25,000
Internal Television Inspection $90,000
GIS Mapping $130,000
Engineering Report $35,000
Debt Service Payment $220,000
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Total $500,000
The City intends to adopt and implement this plan for I/I reduction to reduce
wastewater treatment operating cost, maximize collection system hydraulic capacity,
and meet TCBSN requirements. Once the initial investigation and evaluation are
complete, the City will address its user charge program to determine if additional
revenue is needed to implement rehabilitation projects per your recommendations in
order to come into compliance within the I/I limits by 2015.
The priorities for maintenance activities have been revised to reflect District
directives within the current sewer user charge system. It is recognized that flexibility
in implementation will be necessary due to the ever-changing circumstances common
with municipal infrastructure systems and budgets.
If you have any questions concerning this matter, please feel free to contact the
undersigned.
s/ Anthony DeLuca, Mayor”
¶9 The record on appeal also includes an invoice from Robinson Engineering to “City of
Chicago Heights, Mayor and City Council,” dated April 13, 2006, regarding “2006 Sewer
Maintenance–Flow Monitoring.” It reflects “services performed” through March 31, 2006 as:
“perform flow monitoring, prepare proposal for sewer cleaning, review sewer cleaning
proposals, meeting with Chicago Heights staff and TCBSD.” The invoice reflects 120.75 hours
of labor by “senior project manager,” “engineering technician 2,” “CADD technician,” and
“resident engineer,” for a total charge of $10,059.75.
¶ 10 The record also includes an April 12, 2006, letter from Thomas Nagle, project engineer for
Robinson Engineering, to Matthew Fares, chief of staff, City of Chicago Heights. It states:
“Re: Heavy Cleaning of Large Diameter Sewer
Proposal Tabulation & Recommendation
Dear Mr. Fares:
As you know we are in the process of flow monitoring the City sanitary sewage
flows into the Thorn Creek Basin Sanitary District. In order to monitor the flows we
have installed meters in select manholes. These meters were installed to study the
effects of the Inflow and Infiltration (I and I) due to the spring rains in the Chicago
Heights sewer system. The meters have sensors designed to measure depth of flow in
the sewer as well as the velocity of the flow. Due to heavy silt accumulation in the
sewers at three locations, the sensors have been covered with silt and cannot accurately
measure the flow. Therefore it was agreed to take proposals for cleaning of the sewer in
the location of the meters.
On April 11, 2006 at 2:30 PM at the City Council Chambers we received proposals
for heavy cleaning of large diameter sewer. The proposals were found to be correct and
in order as submitted, and are as follows:
R&R Septic & Sewer Service, Inc…………….$16,170.00
Municipal Sewer Services, Inc………………...$26,401.20
National Power Rodding Corp……………...…$45,960.50
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Therefore, we recommend that the contract be awarded to the low bidder, R&R
Septic & Sewer Service, Inc. in the amount of Sixteen Thousand, One Hundred
Seventy Dollars and Zero Cents ($16,170.00).”
¶ 11 As noted, prior to the flood, the City contracted with Robinson Engineering to install
several flow monitors throughout the City’s sanitary sewer. Those monitors recorded the
amount and velocity of flow traveling within the City’s sewer during the rainstorm at issue
here. In 2007, Robinson Engineering submitted the results of this monitoring to the City in a
written report, which is included in the record on appeal. According to the report, prior to the
flood, the City was “experiencing serious sanitary sewer transport problems,” including
excessive silt and debris buildup within the sewers, and inflow and infiltration problems.
¶ 12 Plaintiffs’ expert, Rick Arbour, opined that the flooding experienced by the plaintiffs could
have been avoided if the City had done appropriate preventative maintenance of the sewer
system. Arbour’s affidavit, included in the record on appeal, states in pertinent part, that he has
“over 49 years of Operation and Maintenance (O&M) experience, all of which is directly or
indirectly related to Sanitary Sewer Systems,” and that he was hired by plaintiffs to offer an
opinion as to the flooding of their homes. Arbour explained that the City’s sanitary sewer is a
separated system, meaning that sanitary sewage is discharged into a system separate from the
storm water system. He explained that excessive rain water is not supposed to enter or affect a
sewer system like Chicago Heights “unless the sewer system has a problem with inflow and
infiltration; which clearly the City does.” He further explained:
“9. Inflow and infiltration are terms used to denote two types of clear water that can
make their way into a sewer system. Inflow enters the sanitary sewer system from sump
pumps, area/footing drains, roof leaders, manholes or other connections to the sewer
system. Infiltration, or ground water, enters the sewer system from defects in the
system’s main line and the private lateral lines owned by individual residents.
10. Any defect in a sewer, for example, pipe sags, offset joints, protruding taps,
cracks, debris, or root intrusion or pipe installed at less than the recommended slope
can cause debris to pile up and slow the flow of sewage, or in the case of a blockage,
stop the flow of water in the pipe, completely. A stoppage of this nature will cause the
flow to ‘back-up’ or surcharge the pipe upstream of the blockage. Further, any time
there is a crack or a break in the pipe, this leads to excessive infiltration of groundwater
into the sanitary sewer. This will result in the surcharging to occur at a higher rate.”
¶ 13 He went on to opine that the City knew there was a problem with inflow and infiltration,
but did not fix it, and generally failed to adequately maintain its system. As a result, the
hydraulic conveyance capacity was reduced.
¶ 14 Arbour attested:
“16. This failure to perform any needed maintenance added to the system’s
preexisting problems and most definitely played a significant role in the Plaintiffs’
basement flooding. The inescapable conclusion is that the City knew, in the event of a
rain storm, that its system would be inundated with clear water which would
overburden the system and likely cause a backup into homeowner’s basements. The
City was well aware of these conditions prior to the flooding of Plaintiffs’ homes and
yet it did nothing to remedy the situation.”
¶ 15 Arbour opined:
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“7. Based upon the evidence that I have reviewed, it is my professional opinion that
the flooding of the Plaintiffs’ homes on April 16-17, 2006 was caused by excessive
inflow and infiltration compounded by accumulated debris in the line which reduced
the hydraulic conveyance capacity of the system. More specifically, the flooding
occurred due to:
a. the insufficient capacity in the sewer system caused by excessive inflow and
infiltration that consumed capacity intended to [convey] wastewater and,
b. a lack of preventative maintenance that allowed system wide defects to
develop in the sewer that severely reduced the hydraulic capacity of the
Defendant’s sanitary sewer system.”
¶ 16 The City moved for summary judgment on plaintiffs’ claims, arguing that the protections
afforded the City by the Tort Immunity Act rendered the City immune from plaintiffs’ claims,
and because plaintiffs’ negligence claims under the theory of res ipsa loquitur failed where
indisputable facts established that the city was not in exclusive control over the
instrumentalities that allegedly resulted in the flooding suffered by plaintiffs. The City argued
that it was immune from plaintiffs’ claims pursuant to section 2-201 of the Tort Immunity Act.
In support of this contention, it argued for immunity because the decisions regarding the
maintenance and operation of the Chicago Heights sewer system “were unique to the office of
the City of Chicago Heights City Council” and the “City Council alone had the authority and
discretion to make decisions related to the allocation of funds, balancing the priorities of
sewage maintenance against that [of] the rest of the Chicago Heights infrastructure.” It argued
that the city council of the City of Chicago Heights had the sole discretionary authority to
provide for the maintenance, repair, and operation of the City’s sewer and water systems, that
there was no prescribed manner in which the City was to act in the maintenance, repair, and
operation of its sewer and water systems, and that the City deliberated as to what maintenance
and upgrades to its sewer system were advisable in light of budgetary and other concerns.
Some of these deliberations took place in the weeks just prior to the April 16-17 rainfall.
¶ 17 The City also contended it did, in fact, take action to maintain, repair, and upgrade the
sewer system prior to April 2006. One particular area in which the City took action prior to
April 2006 was work meant to eliminate inflow and infiltration into the sewer systems, a
problem largely caused by illegal connections to the system by Chicago Heights residents.
¶ 18 The City also argued that summary judgment was proper regarding the claim of negligence
under the theory of res ipsa loquitur because plaintiffs could not prove the City had exclusive
control over the instrumentalities that allegedly caused the injuries suffered as a result of the
flooding.
¶ 19 After hearing arguments, the trial court granted the City’s motion for summary judgment,
specifically ruling that plaintiffs’ claims were barred by discretionary immunity, and finding
the City was making decisions based upon what it could afford. The court stated:
“THE COURT: *** [T]he way that I see this, it is discretion that these people don’t
hire ten guys to go clean the sewers once a month and it is discretion that they don’t
take out a $10 million loan and redo all the sewer lines and it is discretion also that they
don’t hire an outside contractor to go through with vactor trucks and clean every
manhole and every sewer.”
The trial court further held that there was no genuine issue of material fact that the City did not
have sufficient control over the sewer system where “there’s all kind of entries and intrusions
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into this sewer line that would allow somebody even remotely taking some action that could
have caused the sewer to overflow.” The court granted the motion for summary judgment as to
the count alleging negligence under the doctrine of res ipsa loquitur.
¶ 20 In addition, the trial court denied plaintiffs’ motion to strike the Sabo affidavit because
Sabo, as an alderman between 1999 and 2007, and the director of city services from 2007 to
2009, could “speak to his firsthand knowledge and memory with the specific ordinances or
resolutions” and could speak to what the mayor’s awareness was because “they’re at City
Council meetings and he’s there and he’s able to say in a broad sense what was going on and
certainly from the paper and the documents that are flying around here, I think everybody in
town knew what’s going on with respect to the sewer problems.”
¶ 21 Plaintiffs appeal the grant of summary judgment.
¶ 22 II. ANALYSIS
¶ 23 A. Governmental Immunity
¶ 24 Plaintiffs first contend the trial court erred in granting summary judgment where the City is
not entitled to discretionary immunity under the Act. Specifically, plaintiffs argue that their
claims arose from the City’s ministerial–not discretionary–act of failing to maintain its sewer
system. We disagree.
¶ 25 At the summary judgment stage, a plaintiff is not required to prove its case. See Jackson v.
TLC Associates, Inc., 185 Ill. 2d 418, 423 (1998). That is, the purpose of summary judgment is
not to try a question of fact, but only to determine whether one exists. See Jackson, 185 Ill. 2d
at 423. Thus, summary judgment is proper only when the pleadings, affidavits, depositions,
and admissions of record, construed strictly against the moving party, show there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Morris v. Margulis, 197 Ill. 2d 28, 35 (2001); 735 ILCS 5/2-1005 (West 2010). This relief is an
appropriate tool to employ in the expeditious disposition of a lawsuit in which “ ‘the right of
the moving party is clear and free from doubt.’ ” Morris, 197 Ill. 2d at 35 (quoting Purtill v.
Hess, 111 Ill. 2d 229, 240 (1986)). Although the burden is on the moving party to establish that
summary judgment is appropriate, the nonmoving party must present a bona fide factual issue
and not merely general conclusions of law. Caponi v. Larry’s 66, 236 Ill. App. 3d 660, 670
(1992). A genuine issue of material fact exists where the facts are in dispute or where
reasonable minds could draw different inferences from the undisputed facts. Morrissey v.
Arlington Park Racecourse, LLC, 404 Ill. App. 3d 711, 724 (2010); see also In re Estate of
Ciesiolkiewicz, 243 Ill. App. 3d 506, 510 (1993). When determining whether a genuine issue of
material fact exists, courts construe the pleadings liberally in favor of the nonmoving party.
Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). “Summary judgment is to be encouraged
in the interest of prompt disposition of lawsuits, but as a drastic measure it should be allowed
only when a moving party’s right to it is clear and free from doubt.” Pyne v. Witmer, 129 Ill. 2d
351, 358 (1989). We review summary judgment rulings de novo (Espinoza v. Elgin, Joliet &
Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995)), and we will only disturb the decision of the trial
court where we find that a genuine issue of material fact exists. Addison v. Whittenberg, 124
Ill. 2d 287, 294 (1988). In our review, we may affirm on any basis found in the record
regardless of whether the trial court relied on those grounds or whether its reasoning was
correct. Illinois State Bar Ass’n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill. App.
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3d 156, 163 (2004); see also Pepper Construction Co. v. Transcontinental Insurance Co., 285
Ill. App. 3d 573, 576 (1996).
¶ 26 The Tort Immunity Act recognizes that local governmental units are liable in tort, but
limits this liability with a list of immunities based on specific government functions. See
Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). Governmental
entities bear the burden of properly raising and proving that they are immune under the Act in
order to bar plaintiffs’ recovery. Van Meter v. Darien Park District, 207 Ill. 2d 359, 370
(2003). The purpose of the Tort Immunity Act is “to protect local public entities and public
employees from liability resulting from the operation of government.” Ware v. City of
Chicago, 375 Ill. App. 3d 574, 577-78 (2007).
¶ 27 Section 2-201 of the Act provides that “a public employee serving in a position involving
the determination of policy or the exercise of discretion is not liable for an injury resulting
from his act or omission in determining policy when acting in the exercise of such discretion
even though abused.” 745 ILCS 10/2-201 (West 2008); In re Chicago Flood Litigation, 176 Ill.
2d 179, 193-94 (1997). Our supreme court has defined the terms “discretionary” and
“ministerial” as follows:
“ ‘[D]iscretionary acts are those which are unique to a particular public office, while
ministerial acts are those which a person performs on a given state of facts in a
prescribed manner, in obedience to the mandate of legal authority, and without
reference to the official’s discretion as to the propriety of the act.’ ” (Emphases
omitted.) Van Meter, 207 Ill. 2d at 371-72 (quoting Snyder v. Curran Township, 167 Ill.
2d 466, 474 (1995)).
¶ 28 Section 2-201 immunity protects against both negligent and willful and wanton conduct.
Chicago Flood Litigation, 176 Ill. 2d at 195-96. Section 2-209 of the Act allows municipalities
to shelter under the immunity granted to public employees covered by immunity pursuant to
section 2-201:
“A local public entity is not liable for an injury resulting from an act or omission of its
employee where the employee is not liable.” 745 ILCS 10/2-109 (West 2008).
¶ 29 For immunity to apply, a defendant’s act or omission must be both “the determination of
policy” and “the exercise of discretion.” Harinek, 181 Ill. 2d at 341. Policy determinations
involve “ ‘those decisions which require the municipality to balance competing interests and to
make a judgment call as to what solution will best serve each of those interests.’ ” Harinek,
181 Ill. 2d at 342 (quoting West v. Kirkham, 147 Ill. 2d 1, 11 (1992)).
¶ 30 Our supreme court has recognized that “the distinction between discretionary and
ministerial functions resists precise formulation, and that the determination whether acts are
discretionary or ministerial must be made on a case-by-case basis.” Snyder, 167 Ill. 2d at 474.
¶ 31 Whether a municipality engages in a program of public improvement is a discretionary
matter, but the manner in which the municipality implements the program is ministerial.
Snyder, 167 Ill. 2d at 474. Our supreme court explored the concept of discretionary versus
ministerial acts in Chicago Flood Litigation:
“ ‘Official action is judicial where it is the result of judgment or discretion. Official
duty is ministerial, when it is absolute, certain and imperative, involving merely the
execution of a set task, and when the law which imposes it, prescribes and defines the
time, mode and occasion of its performance with such certainty, that nothing remains
for judgment or discretion. [Citation.] A [municipal] corporation acts judicially, or
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exercises discretion, when it selects and adopts a plan in the making of public
improvements, such as constructing sewers or drains; but as soon as it begins to carry
out [the] plan, it acts ministerially, and is bound to see that the work is done in a
reasonably safe and skillful manner.’ ” Chicago Flood Litigation, 176 Ill. 2d at 194
(quoting City of Chicago v. Seben, 165 Ill. 371, 378 (1897)).
¶ 32 Where an official’s conduct requires deliberation or the exercise of judgment, his or her
actions are discretionary and not ministerial in nature. Donovan v. County of Lake, 2011 IL
App (2d) 100390, ¶ 62.
¶ 33 In the case at bar, plaintiffs are unable to point to a particular act or omission that this Court
can analyze to determine whether it was ministerial or discretionary. Instead, plaintiffs ask this
court to determine that the City’s conduct as a whole in regard to the maintenance and upkeep
of its sewer systems prior to the occurrence period was ministerial. We reject this reasoning, as
the record on appeal supports the conclusion that the City was acting in its discretionary
function. Therefore, we find the trial court properly ruled that the City is immune from
plaintiffs’ claims of negligence where the decisions the City made regarding the maintenance
and improvement of its sewer system were discretionary in nature.
¶ 34 The letters from the mayor, in particular, evidence that the City had a plan which it was
implementing. For example, the mayor’s March 2006 letter, dated a full month before the
rainstorm and subsequent flooding at issue here, included a plan that “serve[d] as an expansion
of [the City’s] current [sewer] rehabilitation program by outlining tasks and budget
assignments designed to bring the [sewer] system into compliance.” It included “system
investigations and systematic rehabilitation designed to remove, isolate and pinpoint
Inflow/Infiltration (I/I) sources throughout the City’s sanitary sewer transport system.” It then
outlined the actions the City had already taken, including an authorization of over $1,100,000
in private sector and public sector investigations to isolate and identify sources of infiltration
and inflow into the sanitary sewer system; performance of over $1 million in rehabilitation
work since 1997, noting that as “part of our initial phase of sewer rehabilitation, the City
(funded by a $3.2 million low interest loan from the Illinois Environmental Protection
Agency), completed several sewer improvements on the City’s northwest side in 1997.” It also
noted that it continues to retire the sewer improvement debt at a rate of $220,000 per year. By
that letter, the mayor then outlined specific sewer projects the City had completed since 1994,
resulting in “over $1,100,000 in public sector rehabilitation repairs to reduce infiltration and
inflow into its sanitary sewer system.” He noted the work “greatly reduced” inflow and
infiltration entering the sanitary sewer system.
¶ 35 Additionally, the mayor’s September 2005 letter also evidenced a plan to improve the
City’s sewer systems. That letter also outlined work that had been completed on the sewer,
including dye water flood testing of 137 “high priority” locations. The mayor noted that
manhole rehabilitation is “generally found to be cost-effective due to the relatively low repair
cost and significant I/I reductions achieved,” and then proposed a 14-year plan to rehabilitate
the City’s manholes, as well as work on sewer lining, flow monitoring, and sewer televising.
¶ 36 In addition, the record includes proof of work being completed on the City’s sewers prior
to the April 2006 rainstorm, as evidenced by the March 2006 invoice from Robinson
Engineering for “services performed,” including “perform flow monitoring, prepare proposal
for sewer cleaning, review sewer cleaning proposals, meeting with Chicago Heights staff and
TCBSD.” The April 12, 2006, Robinson Engineering letter shows that it had installed meters in
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select manholes in order to monitor flow and study the effects of the inflow infiltration into the
sewer system, and found that the sensors on the monitors were subsequently covered with silt
and unable to accurately measure the flow. The letter then described the proposals taken for
“heavy cleaning of large diameter sewer” that were received at the city council chambers, and
recommended a contract be awarded for the work to be completed.
¶ 37 All of this supports our conclusion that the City was acting in its discretionary capacity,
that is, acting in a manner requiring deliberation and the exercise of judgment, rather than
merely executing a set task. See, e.g., Donovan, 2011 IL App (2d) 100390, ¶ 62 (where an
official’s conduct requires deliberation or the exercise of judgment, his or her actions are
discretionary and not ministerial in nature); see also Chicago Flood Litigation, 176 Ill. 2d at
194 (“Official action is judicial where it is the result of judgment or discretion. Official duty is
ministerial, when it is absolute, certain and imperative, involving merely the execution of a set
task, and when the law which imposes it, prescribes and defines the time, mode and occasion
of its performance with such certainty, that nothing remains for judgment or discretion.”
(Internal quotation marks omitted.)).
¶ 38 Moreover, the mayor’s September 2005 letter describing how, “[a]fter the compliance
schedule is agreed upon we subdivide the plans to meet the financial constraints of the yearly
budget” shows the mayor and the city council were trying to stretch the City’s dollars and use
the City’s resources to fix the problem, recognizing the problem existed and attempting to find
a solution within its budgetary constraints. That fits precisely within the definition of a policy
determination under the Tort Immunity Act, that is, “ ‘those decisions which require the
municipality to balance competing interests and to make a judgment call as to what solution
will best serve each of those interests.’ ” Harinek, 181 Ill. 2d at 342 (quoting West, 147 Ill. 2d
at 11). Also consistent with making a policy determination is the following passage from the
mayor’s March 6, 2006, letter to a local sanitary district official:
“The rehabilitation of all defects found in the entire system is almost never
cost-effective. In any system, however, some rehabilitation is always cost-effective.
The system costs for most sewage collection and treatment systems of any significant
size depend upon its capacity, or the flow it can handle. The desirable extent of
rehabilitation can only be determined objectively by economic and practical
considerations. We are committed to the rehabilitation program ***.”
¶ 39 Again, this letter, dated just weeks before the rainstorm at issue here, demonstrates that the
mayor and the City were balancing competing interests and making continued and ongoing
judgment calls as to what set of action would best serve those competing interests. See
Harinek, 181 Ill. 2d at 342.
¶ 40 Plaintiffs’ argument that tort immunity should not apply in this case because the City’s
“method of operating the sewers” violated Illinois Environmental Protection Agency (IEPA)
regulations is unavailing. In Donovan, the Second District upheld the trial court’s dismissal of
a class plaintiffs’ negligence claim against the county because the government defendant was
immune from liability pursuant to the Tort Immunity Act. The Donovan plaintiffs alleged that
the county was obligated by the IEPA to chlorinate the water system’s groundwater and that,
because the county failed to do so, excessive amounts of bacteria were detected on various
occasions. Donovan, 2011 IL App (2d) 100390, ¶ 7. The plaintiffs claimed, in pertinent part,
that the county was mandated by law to provide water of safe quality, and was obligated to
chlorinate the groundwater it distributed to the plaintiffs and their neighbors. Donovan, 2011
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IL App (2d) 100390, ¶ 20. The trial court dismissed the claims, finding the county immune
from the suit. Donovan, 2011 IL App (2d) 100390, ¶ 59. The plaintiffs appealed, arguing that
the county was not immune because some of the duties it allegedly breached were ministerial
rather than discretionary. Donovan, 2011 IL App (2d) 100390, ¶ 59. The appellate court
rejected this claim, finding:
“Here, although the County may have been legally mandated to chlorinate the
water and to provide safe drinking water, our focus is on the manner in which the
County carried out, or failed to carry out, those duties. For example, as to plaintiffs’
factual allegations relating to three IEPA reports of coliform violations between 2000
and 2005, each required the County to decide the appropriate means and method to
repair the violation, i.e., whether to install chlorination facilities on the existing site or
to completely rebuild the water system, as well as how to fund the repair. Further, the
majority of the allegations in the amended complaint relate to the required replacement
of the water system and whether customers should bear the entire cost. Those
allegations relate to how to replace a more-than-50-year-old water system and invoke
discretionary decisions on the part of the County. See In re Chicago Flood Litigation,
176 Ill. 2d at 194 (a municipal corporation acts judicially, or exercises its discretion,
when it selects and adopts a plan in the making of public improvements). Accordingly,
we find that the County met its burden of establishing that count I should have been
barred because the County was shielded from liability under section 2-201 of the Tort
Immunity Act.” (Emphasis in original.) Donovan, 2011 IL App (2d) 100390, ¶ 62.
Similarly, here, the City’s decisions, even if they were in violation of IEPA regulations, are
considered discretionary and are shielded from liability under section 2-201 of the Tort
Immunity Act.
¶ 41 We understand plaintiffs’ frustration that their homes were flooded with waste and we, like
the trial court below, recognize that this flooding may have been avoided had the City’s sewers
been better maintained. However, a municipality must function while balancing many
interests, including a limited budget. Here, the City had a plan and was moving forward on that
plan, balancing, as a municipality must, many interests. Even if its conduct were negligent, we
would still find that it was immune from suit under section 2-201. See Chicago Flood
Litigation, 176 Ill. 2d at 195-96. We find no error in the grant of summary judgment on Count
II in favor of the City where the City is subject to immunity under the Tort Immunity Act.
¶ 42 B. Res Ipsa Loquitur
¶ 43 Next, plaintiffs contend the trial court erred in granting summary judgment in the City’s
favor on count I, res ipsa loquitur negligence. Specifically, plaintiffs argue that the evidence
shows the flooding of the plaintiffs’ basements “could not have occurred without an act of
negligence by the City” and, therefore, summary judgment is in error. Plaintiffs claim the City
was negligent in both its maintenance and operation of the sanitary sewer. We disagree.
¶ 44 To establish their claim for negligence, plaintiffs were required to allege facts establishing
defendant owed them a duty of care, defendant breached the duty of care, and the alleged
breach proximately caused plaintiffs’ injuries. Swain v. City of Chicago, 2014 IL App (1st)
122769, ¶ 14. “The mere happening of an accident does not entitle a plaintiff to recover. A
plaintiff must come forward with evidence of negligence on the part of the defendant and with
evidence that the defendant’s negligence was a proximate cause of the plaintiff’s injuries.
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Proximate cause can only be established when there is a reasonable certainty that the
defendant’s acts caused the injury.” (Emphasis in original.) Payne v. Mroz, 259 Ill. App. 3d
399, 403 (1994). Proximate cause may not be based on “mere speculation, guess, surmise or
conjecture.” Castro v. Brown’s Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 553 (2000).
Generally, the issue of cause is a question of fact for the jury, but the lack of proximate cause
may be determined by the court as a matter of law where the facts alleged failed to sufficiently
demonstrate both cause in fact and legal cause. Vertin v. Mau, 2014 IL App (3d) 130246, ¶ 10.
¶ 45 “The doctrine of res ipsa loquitur requires that (1) the occurrence is one that ordinarily
does not occur in the absence of negligence; and (2) the defendant had exclusive control of the
instrumentality that caused the injury.” Britton v. University of Chicago Hospitals, 382 Ill.
App. 3d 1009, 1011 (2008). The Third District has explained the doctrine thus:
“Res ipsa loquitur involves a species of circumstantial evidence permitting the trier of
fact to draw an inference of negligence [citation]; the doctrine permits circumstantial
evidence as proof of negligence where direct evidence is primarily within the control of
the defendant [citation]. Once properly invoked, the doctrine operates to shift the
burden of going forward with the evidence to the defendant, though any presumption of
negligence may then be rebutted by the defendant. [Citations.]” Taylor v. City of
Beardstown, 142 Ill. App. 3d 584, 592 (1986).
¶ 46 The requisite control element of res ipsa loquitur is not a rigid standard, but instead is a
flexible one in which the key question is whether the probable cause of the plaintiff’s injury
was a cause that the defendant had a duty to the plaintiff to anticipate or guard against. Heastie
v. Roberts, 226 Ill. 2d 515, 532 (2007). It is enough that the defendant has the right or power of
control as well as the opportunity to exercise that right, or that he is under a duty that he cannot
delegate. Lynch v. Precision Machine Shop, Ltd., 93 Ill. 2d 266, 273 (1982). Nonetheless, it
must be shown that the plaintiff’s injury can be traced to a specific instrumentality or cause for
which the defendant was responsible or that he was responsible for all reasonable causes to
which the incident could be attributed. Raleigh v. Alcon Laboratories, Inc., 403 Ill. App. 3d
863, 869 (2010) (quoting Napoli v. Hinsdale Hospital, 213 Ill. App. 3d 382, 388 (1991)). Thus,
the defendant’s responsibility for a specific cause of an event is proven by eliminating the
responsibility of any other person for that cause. Lynch, 93 Ill. 2d at 273. A plaintiff is not
required, however, to eliminate all other possible causes for the injury. Gatlin v. Ruder, 137 Ill.
2d 284, 299 (1990). Additionally, the inference may be drawn where the defendant shares
control with another individual. Lynch, 93 Ill. 2d at 273; see also Loizzo v. St. Francis Hospital,
121 Ill. App. 3d 172, 179-80 (1984) (in medical malpractice action, res ipsa loquitur does not
apply where negligence may be attributed to one of several individuals and no principle
renders them liable in solido or where the injury may have been caused by a person who was
not a joint actor or was not in control of an injured patient). Furthermore, where res ipsa
loquitur is to be applied, all parties who could have caused the plaintiff’s injuries are joined as
defendants. Smith v. Eli Lilly & Co., 137 Ill. 2d 222, 257 (1990).
¶ 47 Initially, we note we have already determined herein that, even if the City were negligent in
its maintenance of the sewer, we would still find it was immune from suit under section 2-201
of the Tort Immunity Act. See Chicago Flood Litigation, 176 Ill. 2d at 195-96. Regardless,
even beyond the issue of immunity, we also find the city is not guilty of negligence pursuant to
the doctrine of res ipsa loquitur where the City simply did not have sufficient control of the
sewer system.
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¶ 48 Plaintiff’s expert, Rick Arbour, listed numerous ways clear water could enter the sewer
system, slowing the system or overwhelming its hydraulic capacity. For instance, he noted that
inflow could enter the sanitary sewer system from “sump pumps, area/footing drains, roof
leaders, manholes or other connections to the sewer system.” Infiltration, or ground water, can
enter the sewer system from “defects in the system’s main line and the private lateral lines
owned by individual residents.” He further explained that “[a]ny defect in a sewer, for
example, pipe sags, offset joints, protruding taps, cracks, debris, or root intrusion or pipe
installed at less than the recommended slope can cause debris to pile up and slow the flow of
sewage, or in the case of a blockage, stop the flow of water in the pipe, completely. A stoppage
of this nature will cause the flow to ‘back-up’ or surcharge the pipe upstream of the blockage.
Further, any time there is a crack or a break in the pipe, this leads to excessive infiltration of
groundwater into the sanitary sewer. This will result in the surcharging to occur at a higher
rate.” According to plaintiffs’ expert, then, while the City’s failure to perform maintenance
“added to the system’s preexisting problems” and played a “significant role” in the flooding of
plaintiffs’ homes, there were also many other avenues from which this water could have
infiltrated the system, overwhelming the system and eventually causing the surcharge into
plaintiffs’ basements. We find no error in the trial court’s grant of summary judgment in favor
of the City on count I where plaintiffs are unable to show the City was sufficiently in control of
the system for the doctrine of res ipsa loquitur to apply.
¶ 49 C. The Motion to Strike the Sabo Affidavit
¶ 50 Finally, plaintiffs contend the trial court erred in denying their motion to strike the Sabo
affidavit because the motion violated Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013). We
disagree.
¶ 51 Supreme Court Rule 191 governs the requirements of affidavits used in support of a motion
for summary judgment. Rule 191 states, in pertinent part:
“Affidavits in support of and in opposition to a motion for summary judgment under
section 2-1005 of the Code of Civil Procedure *** shall be made on the personal
knowledge of the affiants; shall set forth with particularity facts upon which the claim,
counterclaim, or defense is based; shall have attached thereto sworn or certified copies
of all documents upon which the affiant relies; shall not consist of conclusions but of
facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a
witness, can testify competently thereto.” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).
¶ 52 A Rule 191 affidavit “is actually a substitute for testimony taken in open court and should
meet the same requisites as competent testimony.” Harris Bank Hinsdale, N.A. v. Caliendo,
235 Ill. App. 3d 1013, 1025 (1992). An affidavit that is conclusory and does not include facts
upon which the affiant relies is in violation of Rule 191. Landeros v. Equity Property &
Development, 321 Ill. App. 3d 57, 63 (2001). However, Rule 191 is satisfied if it appears, from
the document as a whole, that the affidavit is based upon the personal knowledge of the affiant
and there is a reasonable inference that the affiant could competently testify to its contents at
trial. Piser v. State Farm Mutual Automobile Insurance Co., 405 Ill. App. 3d 341, 349 (2010).
“It is the function of a trial court to determine the admissibility of evidence, and its rulings will
not be disturbed absent an abuse of discretion.” Piser, 405 Ill. App. 3d at 349-50.
¶ 53 In the case at bar, at the time of the hearing, Sabo had been the director of the department of
street, sewer and vehicle maintenance for the City since 2009, and his experience with the City
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went back much further. In his affidavit, Sabo outlines his long experience with the City,
including acting as alderman on the city council from 1999 to 2007, as director of the
department of city services and projects from 2007 to 2009, and as director of the department
of street, sewer and vehicle maintenance from 2009 to the time he swore the affidavit. Sabo
specifically averred in his affidavit that he made the affidavit “of [his] own personal
knowledge.”
¶ 54 Plaintiffs challenge paragraphs 11, 12, 14, 15, 17, 25, and 27 of the Sabo affidavit.
Paragraph 11 provides:
“11. Thorn Creek has the ability to regulate the amount of wastewater that flows
from the City’s sanitary sewer system into the Thorn Creek treatment plant.”
Plaintiffs argue that this statement contradicts Sabo’s deposition testimony in which he
testified he did not have firsthand knowledge of the Thorn Creek treatment plant’s ability to
regulate wastewater intake, admitted he could not remember the memo he used to form the
basis of paragraph 11, and did not attach that memo to his affidavit. Plaintiffs argue that “the
affidavit fails to demonstrate that the affiant, if sworn as a witness, can testify competently to
the matter.”
¶ 55 Paragraph 12 of the Sabo affidavit provides:
“12. If for any reason the flow from the City’s sewer system into the Thorn Creek
facility was stopped or slowed, this could cause the City’s system to backup and result
in backups in the homes and businesses of City residents.”
Plaintiffs argue that this is speculative and violates Supreme Court Rule 191 because: 1) it is a
conclusion unsupported by facts; and 2) Sabo does not have personal knowledge of the
underlying facts.
¶ 56 Paragraph 14 provides:
“14. A blockage in a City resident’s lateral lines could and often does cause sewage
backups into the resident’s home and/or the backup of sewage into other residents’
homes.”
Plaintiffs argue this paragraph contains an improper conclusion and “fails to set forth with
particularity the basis of the statements, consists only of the conclusions of the affiant
unsupported by facts, and fails to affirmatively show that the affiant, if sworn as a witness, can
testify competently to the matter.”
¶ 57 Paragraph 15 of the Sabo affidavit provides:
“15. The City Council adopted as the standard for operations and maintenance of its
municipal sewer systems to have a system that can handle events involving less than a
50 year storm.”
Plaintiffs argue this paragraph violates Supreme Court Rule 191 because it contains the
conclusion that the standard adopted by the City was to have a sewer system that could handle
events involving less than a 50-year storm, but Sabo testified in his deposition that he did not
know whether the resolution at issue applied to operations and maintenance or whether it
related only to design. Plaintiffs also argue that the resolution forming the basis for the opinion
should have been attached to the affidavit.
¶ 58 Paragraph 17 of the Sabo affidavit provides:
“17. The Chicago Heights City Council alone has the authority to allocate funds for
and initiate a plan to maintain, repair and /or upgrade the City’s sewer system.”
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Plaintiffs argue that paragraph 17 “contains a legal opinion regarding authority to manage the
City’s sewer system, and fails to set forth any facts in support of that opinion,” that it fails to set
forth with particularity the basis of the statements and fails to show that the affiant could
competently testify to the matter.
¶ 59 Paragraph 25 of the Sabo affidavit provides:
“25. In 2005, The City Council made the policy decision, in full cooperation with
Thorn Creek, that the work required to bring the sewer system into compliance with
infiltration limits would be completed in 2015.”
Plaintiffs challenge paragraph 25, arguing it contains an improper conclusion unsupported by
facts, and argue that the resolution at issue should have been attached to the affidavit.
¶ 60 Paragraph 27 of the Sabo affidavit provides:
“27. The type of flooding that Plaintiffs allege they suffered in this case can occur
in the homes of Chicago Heights’ residents as a result of an obstruction in the sanitary
sewer system despite the City’s regular maintenance and inspection of the system.”
Plaintiffs argue this paragraph conflicts with the requirements of Rule 191 because it contains
a conclusion without supporting facts, it fails to “set forth with particularity the basis of the
statements,” and fails to affirmatively show that the witness could testify competently to the
matter.
¶ 61 At the hearing on the motion for summary judgment, the trial court did not appear to rely
on the Sabo affidavit. It ruled on the motion to strike the affidavit, however, and noted:
“THE COURT: I heard your arguments on [the motion to strike] so I should rule on
that, too, and I think I’m going to allow that affidavit to stand but I’ll state some of the
reasons for the record.
Mr. Sabo was the Alderman between 1999 and 2007. Then after that, ‘07 to ‘09, he
was Director of City Services, and he talks about the legislative enactments and
ordinances. And I respect that what [plaintiffs’ attorney is] saying that he doesn’t attach
the ordinances or these resolutions that he’s referencing, but as a firsthand witness and
as a person that was in the city council during the timeframe that most of the paragraphs
that he’s referencing, I think he can speak to his firsthand knowledge and memory
without the specific ordinances or resolutions. So even those and I think he can state
what maybe not the Mayor’s policy was or the awareness but I think he can even say
what the Mayor’s awareness was. I mean they’re at City Council meetings and he’s
there and he’s able to say in a broad sense what was going on and certainly from the
paper and the documents that are flying around here, I think everybody in town knew
what’s going on with respect to the sewer problems. So I’m going to deny the motion to
strike the affidavit also.”
¶ 62 Sabo was one of six aldermen for the City of Chicago Heights before, during, and after the
April 2006 rainstorm. Sabo’s affidavit established that, based on his service as an alderman
from 1999 to 2007, he had detailed knowledge regarding the functioning of the city council
and the City’s maintenance and operation of its sewer system over a period of years both prior
to and subsequent to the April 2006 flood at issue. His affidavit also established that he served
as the director of city services and projects between 2007 and 2009, and then as the director of
street, sewer, and vehicle maintenance departments for the City from 2009 forward. This
experience, in combination with the facts contained in Sabo’s affidavit, including his specific
statement that the affidavit was based on his “own personal knowledge,” are sufficient to
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establish that he had personal knowledge of the facts contained in his affidavit. See, e.g., Piser,
405 Ill. App. 3d at 349 (Rule 191 is satisfied if it appears, from the document as a whole, that
the affidavit is based upon the personal knowledge of the affiant and there is a reasonable
inference that the affiant could competently testify to its contents at trial.). We find no abuse of
discretion in the trial court’s denial of plaintiffs’ motion to strike.
¶ 63 III. CONCLUSION
¶ 64 For all of the foregoing reasons, the decision of the circuit court of Cook County is
affirmed.
¶ 65 Affirmed.
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