dissenting in part and concurring in part:
The second amended complaint which was dismissed contained two counts. Count I was directed against defendant Mellinger and count II against the village. The allegations of breach of duty by the defendants are contained in paragraphs 6 of the respective counts. Because of defects in those allegations, I consider count I to fail to state a cause of action against defendant Mellinger. I would affirm the action of the trial court in dismissing that count. On the other hand, I agree with the majority to the extent that at least a portion of the allegations of breach of duty in count II are sufficient to state a cause of action and that the affirmative matters raised in bar of action are not applicable. Accordingly, I agree that the portion of the order dismissing that count should be reversed and that portion of the cause remanded.
Subparagraphs (A) through (D) of paragraph 6 of count I allege violations of sections 7.8.3.3., 7.11.1., and 7.11.2. of the 1974 Land Subdivision Ordinance of the Village of Mt. Zion. Although some of the conduct alleged in those subparagraphs may be tortious, I find nothing stated there which would constitute a violation of any of the cited ordinance provisions. They do not prohibit a subdivider from allowing surface water to enter a sanitary sewer. The subparagraphs contain no allegation that Mellinger connected a sewer to the village sewers without obtaining permission of the village engineer.
The remaining subparagraph, (E), stated that defendant Mellinger: “Installed a sewer system on said Rolling Green Estates which was in turn connected to the sanitary sewer system serving the southeast portion of the said Village of Mt. Zion, including the properties owned by the Plaintiffs herein, which was inadequate to handle the drainage of surface water from a 40-acre parcel of real estate such as that upon which it was located.”
The various misconduct alleged, including the foregoing, was stated in paragraph 7 to have caused surface water to enter the sanitary sewer system of the village causing a backup in that system. In that context, subparagraph (E) makes no sense. Had the sewer allegedly installed in the subdivision and connected to the village sanitary system had greater capacity, it would have increased rather than decreased the rapidity of the flow of water into the village sanitary sewer and compounded the backup problem in that sewer.
The allegations of breach of duty against the village were contained in paragraph 6 of count II. Subparagraphs (A) through (C) charge violations of the cited ordinance. Subparagraph (A) stated that the village failed to inspect the sewer being constructed in the subdivision to see if Mellinger was illegally utilizing portions of the village sanitary sewer. As the allegations failed to set forth any violations that might have been disclosed by proper inspection, I consider the allegations to be too vague and general to serve as the basis for a cause of action. Subparagraph (B) of paragraph 6 seems to claim that the village violated the cited ordinance provisions by allowing Mellinger to connect a sanitary sewer to the village sanitary sewer when the connecting sewer system was insufficient to drain the surface water from the tract involved. Here again I do not find any terms of the cited provisions of the ordinance which would prohibit this. Subparagraph (C) alleges the losing or misplacing of a “plug” which should have been installed in the village sanitary sewer system in order to avoid excessive surcharging of water in that system. The cited provisions of the ordinance also failed to contain any prohibition against this type of mistake.
Subparagraph (D) of paragraph 6 of count II makes no reference to the ordinances but charges the village with having designed or directed the design of the present sanitary sewer system, with reference to the property of the plaintiffs, to contain a pipe of a diameter insufficient to adequately handle the regular and normal flow of drainage through the system. It also alleges that the design was inadequate at the time of its use. This subparagraph can serve as the basis of a cause of action. A city or village is under a duty to design a drainage system sufficient to take a reasonably expected flow. Burford v. Village of La Grange (1967), 90 Ill. App. 2d 210, 234 N.E.2d 120.