2020 IL 125017
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 125017)
DENNIS TZAKIS et al., Appellees and Cross-Appellants, v.
MAINE TOWNSHIP et al., Appellants and Cross-Appellees.
Opinion filed November 19, 2020.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Anne M. Burke and Justices Garman, Karmeier, Neville, and
Michael J. Burke concurred in the judgment and opinion.
Justice Kilbride took no part in the decision.
OPINION
¶1 The primary issue we are asked to address is whether our decision in Coleman
v. East Joliet Fire Protection District, 2016 IL 117952, abolishing the common-
law public duty rule, applies retroactively to this case. The circuit court of Cook
County dismissed plaintiff property owners’ “amended fifth amended complaint”
(hereinafter the sixth amended complaint) against defendant local public entities.
The circuit court found that the public duty rule applied to all of defendants’ alleged
conduct and the new law set forth in Coleman applied only prospectively here. The
appellate court affirmed in part and reversed in part the judgment of the circuit
court. 2019 IL App (1st) 170859, ¶ 107. For the following reasons, we affirm the
judgment of the circuit court.
¶2 BACKGROUND
¶3 This appeal arises from a lawsuit initially filed by plaintiffs on February 11,
2009, concerning flood damage to their property in the Robin-Dee community area
of Maine Township after heavy rains on September 13, 2008. 1 Plaintiffs filed suit
against several local public entities including the three defendants in this appeal—
Maine Township, the City of Park Ridge (Park Ridge), and the Metropolitan Water
Reclamation District of Greater Chicago (District). Plaintiffs alleged that
defendants breached a variety of duties owed to them with respect to a stormwater
drainage system located near their properties.
¶4 On January 13, 2012, plaintiffs filed their sixth amended complaint. 2 Plaintiffs
alleged that defendants, in coordination with private partners, developed the Prairie
Creek Stormwater System (PCSS). According to the complaint, the PCSS is a
stormwater system consisting of the central main drain that runs through the Robin-
Dee neighborhood; retention/detention basins for stormwater storage including
three basins, along with the tributary stormwater sewers that feed the basins; and
the tributary stormwater sewers “under the streets collect[ing] street stormwater
runoff which then drain[s] to the [m]ain [d]rain or its storage components.”
1
This lawsuit seeks damages resulting from the flooding event on September 13, 2008. Plaintiffs
filed four additional lawsuits against defendants after subsequent flooding occurred. The trial court
consolidated those lawsuits (Nos. 10-CH-38809, 11-CH-29586, 13-CH 10423, and 14-CH 6755)
with this one, and its subsequent dismissal order applied to all five lawsuits.
2
The complaint is 299 pages long and contains more than 1500 allegations, including numerous
allegations that plaintiffs were allowed to strike out with black lines. Additionally, the appendix to
the record fails to describe in any detail the nature of each document, order, or exhibit contained
therein. See Ill. S. Ct. R. 342 (eff. Oct. 1, 2019). We have attempted to summarize the allegations
contained in the complaint and the relevant documents contained in the record.
-2-
Defendants were allegedly involved in approving the drainage and sewer systems
as far back as the 1960s.
¶5 Advocate Health and Hospital Corporation (Advocate) operates a hospital
adjacent to plaintiffs’ neighborhood. In 1976, Advocate submitted a development
plan to Park Ridge that proposed modifications to Advocate’s drainage system. It
was further alleged that Park Ridge approved the proposal and that Advocate’s
alterations from the 1976 routing of the main drain resulted in increased water flow
into the Robin-Dee community.
¶6 In 1987, plaintiffs’ neighborhood experienced significant flooding. In response,
Maine Township, Park Ridge, and the City of Glenview, “along with other entities,”
commissioned Harza Engineering Services (Harza) to investigate. In 1990, Harza
issued a report, which identified maintenance and design defects in the PCSS that
allegedly posed the risk of future flooding. Specifically, Harza identified design
and maintenance defects in Advocate’s drainage system, including the portions
adjacent to plaintiffs’ property. The report indicated that the defects impaired the
system’s drainage capacity in certain areas to a level substantially below any
reasonably safe standard for the collection, transportation, and discharge of
stormwater within the PCSS.
¶7 At some point between 1987 and 2002, Advocate hired the engineering firm
Gewalt Hamilton Associates, Inc. (Gewalt), to draft and implement a development
plan for property contiguous to the hospital. This development included
modifications to the drainage system and the topography of the property itself. Park
Ridge and the District issued permits related to this development of Advocate’s
property.
¶8 In August 2002, a rainstorm again caused major flooding to the Robin-Dee
neighborhood. Stormwater accumulated within Advocate’s drainage system.
Plaintiffs alleged that the system’s discharge component was undersized, which
caused water to build up and overflow from the system, causing the flooding.
¶9 After the 2002 event, the Illinois Department of Natural Resources conducted
a study that discovered “numerous bottleneck and obstructions to flow as the causes
of the invasive flooding” in the Robin-Dee community. The study provided
recommendations that could be made to reduce future flooding. Thereafter,
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Advocate and Gewalt submitted plans to modify the drainage system at the hospital,
which were approved by Park Ridge and the District. Plaintiffs alleged that the
plans to modify did not address the three undersized components of Advocate’s
drainage system. Additionally, the plan allegedly did not remedy certain
bottlenecks that led to an insufficient means to drain water from Advocate’s
property.
¶ 10 On September 13, 2008, stormwater overflowed the retention basins on
Advocate’s property, causing flooding to plaintiffs’ property and leading to the
damages that they seek to recover in this lawsuit. Plaintiffs alleged that culverts
intended to discharge water from the basins were insufficient because the discharge
from the basins bottlenecked. Once the bottleneck reached capacity and the basins
filled, water discharged over the top of the basins onto Advocate’s property and
then flooded plaintiffs’ property below. Plaintiffs alleged that the stormwater drains
were insufficient to drain water from the streets into the PCSS. They further alleged
that defendants controlled the Prairie Creek main drain and its various segments as
well as the property for stormwater management.
¶ 11 Concerning Maine Township, plaintiffs alleged that it was responsible for
stormwater management within the jurisdiction, which included plaintiffs’
neighborhood, and it had supervised all stormwater projects. Additionally, Maine
Township “owned[,] possessed and/or controlled” the portions of the PCSS within
its jurisdiction. Plaintiffs alleged that Maine Township had mobilized trucks for
sand delivery to their neighborhood in anticipation of the flooding event that
occurred on September 13, 2008. Maine Township had also provided sandbags on
prior occasions when there had been flooding.
¶ 12 Concerning Park Ridge, plaintiffs alleged that the city had owned, controlled,
planned, and designed the public improvements to the PCSS within its jurisdiction.
The city allegedly had the most actual knowledge of Advocate flooding among the
local public entities and was in the best position to make changes to the Advocate-
Gewalt plans given the serious repetitive flooding history. Plaintiffs alleged that
“Park Ridge did not compel Advocate[ ] to revise their North and South
Development Plan to provide more stormwater storage.” Plaintiffs further alleged
that Park Ridge was aware of the repetitive invasive flooding to the Robin-Dee
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community because it had deployed police and public safety personnel to the area
during flooding events.
¶ 13 Concerning the District, plaintiffs alleged that it was the regional local public
entity charged with operation of stormwater management across jurisdictions and
that it “own[ed] and/or control[led] all drains, basins, structures, components and
other stormwater improvements” within the PCSS system. Despite having
knowledge of design and maintenance defects within the PCSS, the District
allegedly did not take “corrective measures to remedy and/or protect the plaintiffs
against the foreseeable dangerous conditions existing on its PCSS properties posed
by excess stormwater.” Plaintiffs further alleged that the District approved plans
from Advocate relating to Advocate’s design of PCSS components on its property.
¶ 14 In the complaint, plaintiffs brought the following counts against each of the
three defendants before us: (1) “negligence: dominant estate overburdening
stormwater,” premised on allegations that defendants knew or should have known
of the foreseeable harm of invasive flooding into plaintiffs’ neighborhood due to
the history of flooding and that they owed nondelegable duties to manage properly
the stormwater so as to prevent harm to plaintiffs from excess stormwater
overburdening the drainage system; (2) “negligent nuisance,” premised on
allegations that defendants negligently caused an accumulation of water from the
drainage system to invade and interfere with plaintiffs’ property; (3) “negligent
trespass,” premised on allegations that water invaded plaintiffs’ property due to
defendants’ failure to properly manage the stormwater systems; (4) “statutory duty
to maintain property,” premised on allegations that defendants failed to exercise
ordinary care to maintain their property in a reasonably safe condition as required
by section 3-102(a) of the Tort Immunity Act; (5) “duty to remedy [a] dangerous
plan,” premised on allegations that defendants had a duty to compel Advocate to
redesign its drainage plans under section 3-103 of the Tort Immunity Act, which
set forth a duty for a local public entity to correct known unsafe conditions related
to the design and/or engineering of an approved plan; and (6) “taking real and
personal property,” premised on allegations that defendants’ conduct constituted a
taking of private property without just compensation in violation of the Illinois
Constitution (Ill. Const. 1970, art. I, § 15). In the takings counts, plaintiffs alleged
that their property became partially or totally uninhabitable by defendants’ conduct
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in “failing to redesign the PCSS Robin-Dee Main Drain” and “failing to redesign
its PCSS Properties.” 3
¶ 15 On August 15, 2014, Maine Township, Park Ridge, and the District each filed
motions to dismiss the complaint. The motions asserted, in pertinent part, that the
complaint should be dismissed under section 2-615 of the Code of Civil Procedure
(Code) (735 ILCS 5/2-615 (West 2014)) because they owed no duty to plaintiffs
under the public duty rule and plaintiffs had not alleged any special duty owed to
them. 4
¶ 16 On April 3, 2015, the trial court granted defendants’ motions based on the
public duty rule. The court found that plaintiffs had not alleged sufficient facts to
infer the existence of any actionable duty on the part of defendants. The court found
that the public duty rule applied to all of defendants’ alleged conduct and that no
special duty existed.
¶ 17 On May 4, 2015, defendants filed a motion for a finding that there was no just
reason to delay enforcement or appeal from the trial court’s order. See Ill. S. Ct.
R. 304(a) (eff. Feb. 26, 2010). In response, plaintiffs asserted that the trial court’s
order did not encompass the takings clause counts, and the parties engaged in
additional briefing on that issue.
¶ 18 On January 22, 2016, before that issue was resolved, this court abolished the
public duty rule in Coleman. The public duty rule provided that a local
governmental entity does not owe any duty to individual members of the public to
provide adequate governmental services. Coleman, 2016 IL 117952, ¶ 37.
¶ 19 On February 8, 2016, plaintiffs filed a motion to reconsider the dismissal of the
complaint based on Coleman. Defendants responded that the new law established
in Coleman should only be applied prospectively. The trial court initially granted
plaintiffs’ motion to reconsider, vacating its dismissal order.
3
Additional counts had been asserted against defendants, which were dismissed. Plaintiffs
ultimately proceeded only on these six claims against each defendant.
4
On March 25, 2010, defendants filed their first motion to dismiss. They raised the public duty
rule and continued to assert that argument in subsequent motions to dismiss.
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¶ 20 On February 1, 2017, based on additional argument, the trial court vacated that
order and reinstated the dismissal. The trial court found that the new law set forth
in Coleman should not be retroactively applied in this case, noting that defendants
had been raising the public duty rule since their initial motion to dismiss in 2010
and continued to raise it in their subsequent motions to dismiss. The trial court also
found that the retroactive application of the law would involve substantially more
litigation preparation than could have been predicted and that “[t]his is a hardship
on the [defendants] and their taxpayers considering the unpredictable and
unexpected reversal of longstanding law, the complexity of the case, and the
passage of time.”
¶ 21 The appellate court reversed, in part, finding that Coleman did apply
retroactively and, therefore, the public duty rule did not apply to plaintiffs’ claims.
2019 IL App (1st) 170859, ¶ 49. The appellate court, on other grounds, affirmed
the trial court’s dismissal of the counts premised on adjacent property owner
liability, the duty to maintain property, and the duty to remedy a dangerous plan.5
Id. ¶ 107. The appellate court found, however, that plaintiffs’ claims under the
takings clause, as well as their tort claims of negligent nuisance and negligent
trespass, were sufficient to withstand a motion to dismiss under section 2-615 of
the Code. Id.
¶ 22 This court allowed defendants’ petition for leave to appeal. Ill. S. Ct. R. 315(a)
(eff. July 1, 2018).
¶ 23 ANALYSIS
¶ 24 I. The Public Duty Rule
¶ 25 Defendants contend that the appellate court erred by applying Coleman
retroactively in this case and, thus, holding that the public duty rule is inapplicable
to plaintiffs’ claims against them.
5
On appeal, plaintiffs abandoned their dominant estate overburdening claim but argued that the
facts gave rise to an “adjacent property owner claim.” The appellate court found no basis to apply
such liability to defendants. See 2019 IL App (1st) 170859, ¶¶ 68, 71.
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¶ 26 The trial court dismissed plaintiffs’ sixth amended complaint, pursuant to
section 2-615 of the Code (735 ILCS 5/2-615 (West 2014)), due to the lack of duty
owed under the public duty rule and the failure to allege any special duty. A motion
to dismiss under section 2-615 challenges the legal sufficiency of the complaint by
alleging defects on its face. Simpkins v. CSX Transportation, Inc., 2012 IL 110662,
¶ 13. A cause of action should not be dismissed pursuant to that section unless it is
clearly apparent that no set of facts can be proved that would entitle the plaintiff to
recovery. Id. We review de novo a dismissal under section 2-615. Id.
¶ 27 Generally, when a court files an opinion, the decision is presumed to apply both
retroactively and prospectively. Tosado v. Miller, 188 Ill. 2d 186, 196 (1999). This
presumption can be overcome in two types of circumstances. First, the issuing court
itself may expressly state that its decision will be applied prospectively only.
Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 86 (1997). Second, a court
may, under certain circumstances, override the presumption by declining to give
the previous opinion retroactive application with respect to the parties appearing
before it. Id.
¶ 28 This court in Coleman did not expressly address whether the decision
abolishing the public duty rule would only apply prospectively. When no such
express statement has been made, we have recognized that the following three
factors are relevant in determining whether a prospective application is proper:
“(1) whether the decision to be applied nonretroactively established a new
principle of law, either by overruling clear past precedent on which litigants
may have relied or by deciding an issue of first impression whose resolution
was not clearly foreshadowed; (2) whether, given the purpose and history of the
new rule, its operation will be retarded or promoted by prospective application;
and (3) whether substantial inequitable results would be produced if the former
decision is applied retroactively.” Tosado, 188 Ill. 2d at 197 (citing Aleckson,
176 Ill. 2d at 92-94).
¶ 29 As to the first factor, defendants correctly assert that Coleman clearly
established a new principle of law by overturning decades of existing precedent.
The lead, special concurrence, and dissenting opinions all recognized that the
outcome of the case abandoned or abolished the public duty rule, and this court
explicitly stated that it was overruling past precedent. See Coleman, 2016 IL
-8-
117952, ¶¶ 53-54 (lead opinion of Kilbride, J., joined by Burke, J.); id. ¶ 67
(Freeman, J., specially concurring, joined by Theis, J.); id. ¶ 80 (Thomas, J.,
dissenting, joined by Garman, C.J., and Karmeier, J.).
¶ 30 As to the second factor, defendants contend that a prospective application
would not frustrate the purpose and history of the new rule announced in Coleman,
while plaintiffs assert the opposite view.
¶ 31 The holding in Coleman abolishing the public duty rule was the result of two
rationales. The lead opinion recognized that this court had consistently held that the
rule survived the abolition of sovereign immunity and the passage of the Tort
Immunity Act, but it found that the time had come to abandon the rule and its
special duty exception. Id. ¶ 52 (Kilbride, J., joined by Burke, J.). Three reasons
were identified for abolishing the public duty rule: (1) its application was muddled
and inconsistent, (2) continued application of the rule was incompatible with the
limited legislative grant of immunity for willful and wanton conduct and (3) public
policy is primarily the determination of the legislature and, because the general
assembly enacted statutory immunities, the rule was obsolete. Id. ¶ 54. The special
concurrence reasoned that the public duty rule should be abolished because it was
rooted in the same concepts underlying sovereign immunity and that, when the
1970 Constitution abolished all forms of nonstatutory immunity, the judiciary’s
power to apply the public duty doctrine ceased to exist as a means of assessing
municipal tort liability. Id. ¶ 68 (Freeman, J., specially concurring, joined by Theis,
J.).
¶ 32 We recognize, as noted by the appellate court, that the facts and timing of this
case and our disposition of Coleman are unique. If defendants had obtained a
dismissal based upon the public duty rule when they first raised the issue in 2010,
the judgment would have been final and appealable well prior to this court’s 2016
decision in Coleman. Given the circumstances of this case and based upon the
varied reasons provided by the two rationales for abolishing the public duty rule,
we cannot say the new law announced in Coleman would be thwarted by applying
a prospective application here.
¶ 33 Turning to the third factor, defendants argue that it would be inequitable to
apply Coleman retroactively. They assert that they have consistently raised the
public duty rule in their motions to dismiss over a period of years and that the
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conduct alleged by plaintiffs all occurred between 8 and 56 years before the public
duty rule was abolished. Plaintiffs respond that they have suffered significant
damages as a result of defendants’ conduct surrounding the stormwater system and
that it would not be inequitable, or cause defendants hardship, to find that the public
duty rule does not bar this cause of action from proceeding.
¶ 34 Our decision in Molitor v. Kaneland Community Unit District No. 302, 18 Ill.
2d 11 (1959), is most helpful to understanding why it would be proper to apply a
prospective-only application to Coleman. In Molitor, this court abolished
governmental tort immunity of school districts for the negligence of their
employees. Id. at 24-25. In departing from stare decisis, we recognized that justice
and policy required such a departure but were cognizant of the fact that a retroactive
application of the decision may have resulted in great hardship to school districts
that had relied upon prior decisions upholding the doctrine of tort immunity. Id. at
26. Consequently, we held that justice would best be served by holding that, except
as to the plaintiff who brought the case successfully challenging governmental tort
immunity, the new rule should apply only to cases arising out of future occurrences.
Id. at 26-27. We found that result would be in accord with a substantial line of
authority endorsing the theory that a decision overruling past precedent should be
given only prospective application whenever injustice or hardship due to reliance
on the overruled decision would be averted. Id. at 27.
¶ 35 Here, as the trial court highlighted in dismissing the complaint, between
February 11, 2009, when the initial complaint was filed, and January 13, 2012,
when the sixth amended complaint was filed, numerous motions to dismiss had
been filed by defendants. Their first such motion was filed on May 25, 2010, raising
the application of the public duty rule. Defendants continued to argue for the
application of the rule in their subsequent motions to dismiss. Their position on the
public duty rule ultimately prevailed, and the trial court dismissed the complaint
against them prior to this court’s issuance of Coleman.
¶ 36 Plaintiffs seek to hold defendants liable for actions surrounding the review,
approval, construction, maintenance, and operation of a stormwater system going
back 60 years. At the time of any alleged conduct in the complaint, the public duty
rule existed. If Coleman were applied retroactively, it would result in this 11-year-
old case requiring even more litigation, including a possible change in the legal
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theory of the case advanced by defendants, due to the unexpected abolishment of
the long-standing public duty rule. As in Molitor, we find that a prospective
application of Coleman is proper and would avoid substantial inequitable results
for defendants who have relied upon the public duty rule throughout the long course
of this litigation.
¶ 37 For these reasons, we find the factors favor limiting Coleman to a prospective-
only application in this case. See, e.g., Exelon Corp. v. Department of Revenue, 234
Ill. 2d 266, 285-86 (2009) (giving prospective application to our holding that an
electric utility was entitled to a certain tax credit; because the issue was a matter of
first impression, its resolution was not clearly foreseen, and retroactive application
was not necessary and could cause difficulties and uncertainty); Gilbert v.
Sycamore Municipal Hospital, 156 Ill. 2d 511, 529-30 (1993) (giving prospective
application to our holding overruling past precedent that a plaintiff’s settlement
with an agent would automatically extinguish the vicarious liability of the principal,
regardless of a reservation of rights, because retroactive application would have
been unjust and caused great hardship); Gibellina v. Handley, 127 Ill. 2d 122, 138
(1989) (giving prospective application to a new supreme court rule because it
represented a clear departure from prior precedent and fairness so required).
¶ 38 Having determined that Coleman does not apply retroactively to this case, we
turn to defendants’ argument on the merits—namely that the trial court correctly
concluded that the public duty rule barred the claims.
¶ 39 The public duty rule, as it existed prior to Coleman, provided that a local
governmental entity is not liable in tort and owed no duty to individual members of
the public when performing customary governmental duties for the public at large.
Harineck v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 345 (1998).
The rationale behind the rule was that “a municipality’s duty is to preserve the
‘well-being of the community’ and that such a duty is ‘owed to the public at large
rather than to specific members of the community.’ ” Zimmerman v. Village of
Skokie, 183 Ill. 2d 30, 44 (1998) (quoting Schaffrath v. Village of Buffalo Grove,
160 Ill. App. 3d 999, 1003 (1987)). An exception to the public duty rule was the
“special duty exception,” where the local governmental entity owed a special duty
of care to a particular individual that was different from the duty it owed to the
general public. Coleman, 2016 IL 117952, ¶ 41.
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¶ 40 The public duty rule had been applied in various circumstances where parties
sought to impose liability on a public entity’s provision of services for the benefit
of the public. See, e.g., Taylor v. Bi-County Health Department, 2011 IL App (5th)
090475, ¶ 36 (holding that, under the public duty rule, a county health department
did not owe an individual duty to require that a child be provided with a specific
vaccine); Donovan v. Village of Ohio, 397 Ill. App. 3d 844, 850 (2010) (holding
that the public duty rule barred claims based on the village’s failure to maintain its
911 emergency telephone system); Ware v. City of Chicago, 375 Ill. App. 3d 574,
581 (2007) (holding the city did not owe the plaintiffs an individual duty to protect
them from a porch collapse); Sims-Hearn v. Office of the Medical Examiner, 359
Ill. App. 3d 439, 444 (2005) (holding that, under the public duty rule, the office of
the medical examiner did not owe a duty of care to individual citizens to perform
duties such as autopsies).
¶ 41 Plaintiffs have presented, as the appellate court recognized, shifting arguments
as to the applicability of the public duty rule to defendants’ alleged failures
surrounding the municipal stormwater system here. Most of plaintiffs’ arguments
were raised for the first time on appeal to that court, in their reply brief or at oral
argument. See 2019 IL App (1st) 170859, ¶¶ 24-26. Similarly, plaintiffs’ arguments
before this court on the applicability of the rule have been less than clear and
consistent. Plaintiffs now assert that defendants’ “argument is fundamentally
flaw[ed] because [the] claims [in the complaint] arise out of both the failure to
maintain public property as well as the planning, design and construction of public
property[,] and it was that property which created, what [defendants] always knew,
was an unreasonable risk of harm to [them].”
¶ 42 Plaintiffs do not challenge the trial court’s determination that the complaint
does not support a cause of action based on any special duty, and we see no basis
for them to do so. To the extent that plaintiffs allege that defendants failed to
provide adequate public services in the design, maintenance, improvement, and/or
operation of the stormwater system here, that duty ran to the public at large and not
to individual members of the public such as plaintiffs. See Alexander v. Consumer
Illinois Water Co., 358 Ill. App. 3d 774, 779 (2005) (holding that summary
judgment for the defendant village was proper on the plaintiffs’ claims for sewer
backup damages because even if the village owed a general duty to the public to
prevent sewer backups, the public duty rule barred legal liability to individual
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members of the public); Town of Cicero v. Metropolitan Water Reclamation
District of Greater Chicago, 2012 IL App (1st) 112164, ¶ 41 n.4. (affirming the
dismissal of the complaint on other grounds but noting that the public duty rule
would appear to bar claims against the District based on flooding and sewer backup
damage because a public entity may not be held liable for its failure to provide
adequate governmental services); Remet Corp. v. City of Chicago, 509 F.3d 816,
820 (7th Cir. 2007) (holding that, under the public duty rule, the city had no duty
to provide uninterrupted water service for fire protection). For these reasons, we
find the trial court properly held that the public duty rule applied to the allegations
contained in the complaint.
¶ 43 II. Plaintiffs’ Takings Claim
¶ 44 Next, we address defendants’ claim that the appellate court erred by holding
that plaintiffs stated a takings claim under the Illinois Constitution.
¶ 45 The Illinois takings clause states: “Private property shall not be taken or
damaged for public use without just compensation as provided by law. Such
compensation shall be determined by a jury as provided by law.” Ill. Const. 1970,
art. I, § 15. This court has defined a taking as a physical invasion of private property
or the radical interference with a private property owner’s use and enjoyment of the
property. Hampton v. Metropolitan Water Reclamation District, 2016 IL 119861,
¶ 24 (citing Forest Preserve District v. West Suburban Bank, 161 Ill. 2d 448, 456-
57 (1994)).
¶ 46 This court has also held that a taking occurs when real estate is physically
invaded “ ‘by superinduced additions of water *** so as to effectually destroy or
impair its usefulness.’ ” Id. (quoting Horn v. City of Chicago, 403 Ill. 549, 554
(1949)). Flooding that does not cause this level of destruction is not a taking. Id.
(citing People ex rel. Pratt v. Rosenfield, 399 Ill. 247, 252 (1948)); see Hartwig v.
United States, 485 F.2d 615, 619 (Ct. Cl. 1973) (“ ‘The essential inquiry [in taking
cases arising out of a flood situation] is whether the injury to the claimant’s property
is in the nature of a tortious invasion of his rights or rises to the magnitude of an
appropriation of some interest in his property permanently to the use of the
Government.’ ” (quoting National By-Products, Inc. v. United States, 405 F.2d
1256, 1273-74 (Ct. Cl. 1969))).
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¶ 47 In Hampton, we instructed that there are additional facts in determining whether
a temporary flooding constitutes a taking, including the time and duration of the
flooding, whether the invasion of the property was an intentional act or a
foreseeable result of an authorized government action, and the character of the land
and the owner’s reasonable investment-backed expectations regarding the use of
the land. Hampton, 2016 IL 119861, ¶ 25 (citing Arkansas Game & Fish Comm’n
v. United States, 568 U.S. 23, 39 (2012)). We ultimately held that the temporary
flooding of the residential properties in Hampton was not a compensable taking
under the state constitution. The property owners only alleged one instance of
flooding, the flooding was not alleged to be recurring, water did not remain on
properties for a prolonged period of time, they did not allege that the damage caused
by the flooding could not be satisfactorily repaired, and there was no allegation that
the flooding was intentional or that the District knew or should have known that
flooding would occur. Id. ¶ 26.
¶ 48 Here, in the takings claim counts, plaintiffs alleged that defendants had caused
plaintiffs’ properties “to become partially and/or totally uninhabitable by [their]
actions and/or inactions,” which resulted in the flooding damage to their properties.
Concerning Maine Township, plaintiffs simply alleged that these damages were
caused by their “conduct in failing to redesign its PCSS Robin-Dee Main Drain and
in failing to sand bag a barrier to [the] North Development stormwater after
knowing that the design and construction was dangerous.” Similarly, as to Park
Ridge and the District, plaintiffs simply alleged the damages were caused by their
“conduct in failing to redesign its PCSS Properties after knowing that the design
and construction was dangerous.” 6
¶ 49 Property loss is compensable as a “taking” when the government intended to
invade a protected property interest or the invasion was the direct or foreseeable
result of authorized government action. See id. ¶ 25; see also Arkansas Game &
Fish, 568 U.S. at 39. Because plaintiffs failed to allege that the water flowing onto
their property causing the flood damage was the intended or foreseeable result of
6
Before this court, plaintiffs now attempt to argue that the issuance of permit(s) for the
development of the stormwater system by one or more of the defendants may support a takings
claim. No allegation surrounding the issuance of permit(s), however, was contained in any of the
taking counts in the sixth amended complaint.
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authorized government actions by one or more of the defendants, we find the trial
court properly dismissed the takings claim counts.
¶ 50 III. Plaintiffs’ Cross-Appeal
¶ 51 We now turn to plaintiffs’ cross-appeal. They assert that the appellate court
erred by dismissing the counts premised on adjacent property owner liability, the
duty to maintain property, and the duty to remedy a dangerous plan. If the latter
two counts are not reinstated, plaintiffs request that they be allowed to replead them.
¶ 52 As to the purported “adjacent property owner liability count,” that claim was
made for the first time before the appellate court, when plaintiffs were allowed to
abandon their counts against defendants for “dominant estate overburdening.” See
2019 IL App 1st 170859, ¶ 68. Simply put, there are no counts for us to reinstate
because the ones asserting adjacent property owner liability were not contained in
the sixth amended complaint and were not a basis of the trial court’s order under
review. Concerning the remaining two counts, we have already found that the trial
court correctly held the public duty rule applied to plaintiffs’ claims against
defendants. For the same reasons, the trial court properly dismissed the counts
premised on a duty to maintain property and a duty to remedy a dangerous plan
because defendants did not owe a discernible duty to plaintiffs. Finally, there is no
basis or purpose to allow plaintiffs to replead these counts.
¶ 53 CONCLUSION
¶ 54 Accordingly, the judgment of the appellate court is affirmed in part and reversed
in part, and the judgment of the circuit court dismissing plaintiffs’ sixth amended
complaint is affirmed.
¶ 55 Appellate court judgment affirmed in part and reversed in part.
¶ 56 Circuit court judgment affirmed.
¶ 57 JUSTICE KILBRIDE took no part in the consideration or decision of this case.
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