By: Catherine Weiler

The Illinois Supreme Court’s January Term oral arguments begin Tuesday, January 14, 2020, with additional oral arguments scheduled for January 15th and 22nd. A total of 10 cases will be heard – 4 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

• Whitaker v. Wedbush Secs., Inc.               No. 124792              January 15, 2020
• McAllister v. Illinois Workers’ Comp. Comm’n   No. 124848    January 15, 2020
• Dynak v. Board of Educ. of Wood Dale School Dist. 7              No. 125062        January 22, 2020
• Restore Constr. Co., Inc. v. Board of Educ. of Proviso Township High Schools Dist. 209 No. 125133        January 22, 2020

• Levin v. Retirement Bd. of the Cook County Employees’ and Officers’ Annuity and Benefit Fund of Cook County              No. 125141        January 22, 2020
• Berry v. City of Chicago  No. 124999        January 22, 2020

Below is a summary for one of these cases, Berry v. City of Chicago.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

Berry v. City of Chicago

This appeal raises three issues: (1) whether a plaintiff who is exposed to lead in drinking water, but who has not developed any physical symptoms from such exposure, has suffered sufficient present injury to state a claim for negligence; (2) whether an injury suffered by many individuals can constitute the type of special damage necessary to maintain a cause of action for inverse condemnation; and (3) whether the immunity for discretionary decisions in section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201) applies to a local government’s decision to follow recommendations from a private body.

Plaintiffs sued the City of Chicago, alleging that, in replacing water mains and meters near their homes, the City caused their drinking water to have increased levels of lead. Plaintiffs had not developed physical symptoms from their exposure to lead, but had drunk the contaminated water. Plaintiffs’ complaint asserted claims of negligence based on their exposure to lead and inverse condemnation based on damage to their water pipes. The City moved to dismiss the complaint under section 2-615 of the Code of Civil Procedure, asserting that Plaintiffs had not suffered sufficient physical injury to assert a claim for negligence and that they had not suffered special damage to their property necessary to state a claim of inverse condemnation. The City also asserted that it exercised discretion in replacing the water mains and meters such that the City was immune under section 2-201 of the Tort Immunity Act. The circuit court granted the City’s motion to dismiss, finding that Plaintiffs had not suffered a physical injury sufficient to maintain their negligence claim or special damages necessary to maintain their inverse condemnation claim.

The appellate court reversed. The court held that Plaintiffs’ consumption of lead-contaminated water was a sufficient present injury to state a claim for negligence because of the increased risk of physical injury created by the consumption of lead. The court also held that Plaintiffs suffered special damages when the City’s work interfered with their use and enjoyment of their homes even though many individuals were affected by the increased lead levels. Finally, the court held that section 2-201 of the Tort Immunity Act did not apply because, while the City exercised discretion in developing its plans for replacing the water mains and meters, Plaintiffs alleged that the City was simply executing that plan by following guidelines for water main and meter replacement set by the American Water Works Association.

Justice Connors dissented, arguing that Plaintiffs had not suffered sufficient injury because they had no developed physical symptoms from their exposure to lead and that they had not suffered special damages because many people all suffered the same damage to their property.

In its petition for leave to appeal, the City argued that, under Illinois Supreme Court precedent including Moorman Mfg. Co. v. Nat'l Tank Co., 91 Ill. 2d 69 (1982) and Williams v. Manchester, 228 Ill. 2d 404 (2008), Plaintiffs could not maintain their negligence claim based on the increased risk of injury; actual, present injury to person or property is required. The City also argued that Plaintiffs failed to state a claim for inverse condemnation because an injury suffered by a large number of plaintiffs cannot be special damage required to state such a claim. Finally, the City claimed that section 2-201 applied to Plaintiffs’ claims because the City exercised discretion in following the guidelines of the American Water Works Association.