dissenting:
I respectfully dissent.
This court has repeatedly held that a reviewing court will not substitute its judgment for that of the trial court in a bench trial, unless the trial court’s judgment is against the manifest weight of the evidence. First Baptist Church of Lombard v. Toll Highway Authority, 301 Ill. App. 3d 533, 542 (1998); Chicago Pizza, Inc. v. Chicago’s Pizza Franchise Limited USA, 384 Ill. App 3d 849, 859 (2008), citing Dargis v. Paradise Park, Inc., 354 Ill. App. 3d 171, 177 (2004). “A judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on evidence.” Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 154 (2001).
The trial judge is in a superior position to judge the credibility of the witnesses and to determine the weight to be given their testimony. Buckner v. Causey, 311 Ill. App. 3d 139, 144 (1999). When a bench trial contains contradictory testimony that could support conflicting conclusions, an appellate court will not disturb the trial court’s factual findings, unless a contrary finding is clearly apparent. Buckner, 311 Ill. App. 3d at 144.
In the case at bar, the majority concludes on page 11 of its slip opinion (392 Ill. App. 3d at 238) that “[biased on our review of the record, Mr. Getto did not directly challenge the meter’s accuracy.” I disagree.
Estimated water reads are based on prior usage. When Getto received a $120,019.49 water bill, far above what the previous usage had been, he knew something was wrong, and he called the water department and requested a review. Getto’s expert opined that it was not “ ‘reasonable or probable’ ” (392 Ill. App. 3d at 236) that 7.27 million cubic feet of water could have been consumed without some sort of “catastrophic event” that would have been noticed by someone. Getto’s expert explained that “that volume of water would fill the building in question 52 times from basement to roof.” To provide an example of a catastrophic event, Getto’s expert stated that, if a water main broke and were allowed to flow unrestricted for 24 hours a day, 7 days a week, it would take “a couple of months” to deliver the volume of water at issue. Getto’s expert observed that “74 million gallons of water is not going to happen through a toilet leak in this period of time.”
Yet there was no evidence of a catastrophic event. Getto’s expert testified that he saw “no signs of anything to indicate that any sort of rupture of the magnitude that would have been required for that amount of water to enter the building.”
Getto’s expert earned his degree in civil engineering from Northwestern University and worked for several companies, including 11 years for Commonwealth Edison. During the Chicago flood of 1992, the president of the Board of Trade asked the president of Commonwealth Edison to send an engineer to cope with the flooding in their building. The Commonwealth Edison president selected Getto’s expert, who calculated the water flow, devised a method to stem it, and kept the Board of Trade operational during the emergency.
The City’s expert admitted that he had never inspected the property. Therefore, all of the City’s expert testimony was given without ever having been at the property. Although the City’s expert opined that “it was possible” for the building to have consumed 7.27 million cubic feet of water through “ ‘a combination of scores of small events’ ” (emphasis added) (392 Ill. App. 3d at 237) there was no evidence of “scores” of events in the building. As an example of a “combination of scores of small events,” the City’s expert stated that there were “60 fixtures and pipes and hose bibs” in the building, and this volume of water could have been consumed if there was leakage “in each and every one of those” (Emphasis added.) Yet, the City’s expert never went to the premises to see if there was any evidence of these “events.” Based on that, the trial court could reasonably infer that the City knew that there was no evidence of “scores of small events” in the building.
I agree with the majority that, under the ordinance, liability turned on evidence of the water meter’s accuracy. I disagree with the majority that “the evidence presented at trial conclusively established that the meter was registering correctly.” 392 Ill. App. 3d at 240. The city’s machinist opined that water meter tests indicated the meter was registering at 100%, but the testimony of both experts that 7.27 million cubic feet of water usage could not occur without a catastrophic event — or “scores” of small catastrophes — is much more compelling. As noted, there was no evidence of either a catastrophe, or scores of small catastrophes; therefore, the trial court could have reasonably found that the water meter was defective. The trial court stated that it ruled for Getto based on the City’s inability to explain how the water meter registered 7.27 million cubic feet of water. This is the same as ruling that the evidence proved that the meter was defective. I agree with the majority that there is no requirement in the Municipal Code that the City explain the amount of water registered by a meter or explain what happens to water once it has been registered by a meter. However, the Municipal Code does not control the rules of evidence, and we presume the trial court took all the evidence into consideration in rendering its decision.
In this case, I cannot say that the trial court’s decision is against the manifest weight of the evidence. Surely, the opposite conclusion is not apparent (Buckner, 311 Ill. App. 3d at 144), and the trial court’s findings do not “appear to be unreasonable, arbitrary, or not based on evidence” (Judgment Services, 321 Ill. App. 3d at 154). I would affirm the trial court.