dissenting:
Though the majority holds that the trial court “improperly dismissed” the plaintiffs’ claims (207 Ill. 2d at 367), it does not answer the question presented by this case: namely, whether the municipal defendants are entitled to immunity under section 2 — 201 of the Tort Immunity Act for their park-planning decisions. Instead, without any invitation from the parties, the majority transforms this case from an immunity case into a pleading case, stretching to do procedurally what it could not do substantively — remand to give the plaintiffs another day in court. While I applaud the majority’s conclusion as a noble attempt to achieve an equitable result for the plaintiffs, this conclusion is both legally indefensible and unnecessary.
By filing a motion to dismiss under section 2 — 619(a)(9) of the Code of Civil Procedure, the defendants acknowledged that the plaintiffs have a viable tort claim (see Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993)), but they also contended that “other affirmative matter” in the form of a defense under section 2 — 201 of the Act defeats the claim because their park-planning decisions were discretionary. Because the defendants did not support their motion with evidentiary materials, the question thus becomes whether the existence of this defense appears on the face of the plaintiffs’ complaint. See Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997).
The majority concludes that the defendants here failed to meet “their burden [under section 2 — 619(a)(9)] of establishing their affirmative defense” under the Act. 207 Ill. 2d at 380. Following Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335 (1998), the majority bifurcates its section 2 — 201 analysis. First, the majority states that the face of the plaintiffs’ complaint does not indicate the defendants’ park-planning decisions were “policy decisions” requiring them to balance competing interests before choosing a course of action. Second, the majority states that the face of the plaintiffs’ complaint does not indicate the defendants’ park-planning decisions were “discretionary” or unique to their particular offices.
Though the majority does not refer to section 2 — 619(a)(6) in its discussion of the section 2 — 201 case law, the majority in effect raises the level of pleading specificity required before a court can find an “other affirmative matter” defense on the face of the complaint. Even a cursory examination of these cases, however, reveals that we have never sought such a close connection between the plaintiffs’ allegations and the immunity claimed by the defendants.
Snyder v. Curran Township, 167 Ill. 2d 466 (1995), involved a jury trial, and Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466 (2001), involved a summary judgment motion, not section 2 — 619(a)(9) motions to dismiss. In In re Chicago Flood Litigation, 176 Ill. 2d 179 (1997), which involved motions to dismiss under both section 2 — 615 and section 2 — 619, we stated that the plaintiffs did not allege there was a prescribed method for repairing the tunnel or for notifying landowners of its breach. We then observed: “[T]he City had to make several decisions following its notice of the tunnel breach. *** All of these decisions were within the City’s discretion, which is afforded immunity against liability.” Chicago Flood, 176 Ill. 2d at 197. Without dissecting the complaint, we simply concluded that the City’s decisions were discretionary.
Then came Harinek, where we refined our understanding of discretionary immunity by holding that a municipal defendant’s activities must be both policy-determining and discretionary. In Harinek, the plaintiff alleged that the City of Chicago fire department “planned, controlled, operated, and implemented” a fire drill and that the City’s fire marshall, pursuant to a plan, positioned the plaintiff near a door that struck her during the drill. Harinek, 181 Ill. 2d at 342. After reviewing the plaintiffs allegations, we held that they “describe acts and omissions of the fire marshal in determining fire department policy” (Harinek, 181 Ill. 2d at 342) and “the fire marshal’s conduct described in the complaint clearly constituted an exercise of discretion” (Harinek, 181 Ill. 2d at 343). Again, we did not engage in a probing examination of the complaint to determine whether its allegations implicated an immunity defense under section 2 — 201 before concluding that the City’s activities were discretionary. Finally, in Arteman v. Clinton Community Unit School District No. 15, 198 Ill. 2d 475 (2002), our most recent pronouncement on discretionary policy immunity, we briefly referred to the allegations of the plaintiffs’ complaint, but only in the background of the opinion, and concluded the school district’s activities were discretionary.
Further, the majority does not even apply the pleading rule it creates. The complaint here was certainly no less descriptive than that in Harinek. As the majority correctly observes, the plaintiffs
“allege substantially identical conduct on the part of each municipal defendant relating to the defendants’ involvement in the planning and development of Westwood Park. With respect to each defendant, plaintiffs assert that the defendants ‘breached their duty to the plaintiffs by causing or allowing a change in the natural groundwater elevation and flow of groundwater to occur resulting in water from adjoining lands to gather on plaintiffs’ property and the flooding of plaintiffs’ real estate and residence.’ ” 207 Ill. 2d at 369.
In fact, the plaintiffs alleged much more. According to their amended complaint, one or more of the defendants “commenced the design and planning for construction” of the park project; retained a civil engineering firm and an architectural firm for the project; “jointly produced a Schedule of Drawings and specifications” or a plan for the project depicting water drainage; “caused to be designed and constructed a storm water drainage and detention system *** [and other] improvements to real estate”; approved the plan and accepted the public improvements to the park; and were “otherwise involved in the design, planning, supervision, observation and/or management of this construction.”
Certainly, these activities involved balancing competing interests and making decisions unique to these defendants. It defies reason to conclude that the defendants planned a park and implemented that plan without deciding among alternatives and that these decisions were not unique to these defendants. Who. else besides the defendants here — the Darien Park District, the City of Darien, the Village of Downers Grove, and the County of Du Page — would make such decisions regarding a park situated between Darien and Downers Grove in Du Page County? These allegations on their face clearly describe a discretionary policy decision, and the defendants were clearly entitled to immunity. Instead, the majority concludes that this case should be remanded to the trial court where the municipal defendants will, in all likelihood without delay, file legally dispositive affidavits asserting that they balanced competing interests before choosing a park plan and that this activity was unique to their offices. The plaintiffs have won this battle, but they will ultimately lose the war.
The majority’s decision does unnecessary violence to our case law, in light of the plaintiffs’ ability to pursue other avenues of relief. Though the plaintiffs have not asked for it, injunctive relief, against which the Act provides no protection, is available in municipal flooding cases. 745 ILCS 10/2 — 101 (West 1998); see Romano v. Village of Glenview, 277 Ill. App. 3d 406, 411 (1995) (a municipality’s decision to dig retaining ponds on a golf course near the plaintiff homeowners’ property, which resulted in flooding, was an “unreasonable” interference with homeowners’ property rights and not subject to immunity from injunctive relief); Salzman v. Sumner Township, 162 Ill. App. 3d 92, 95 (1987) (an award of money damages against a municipality for diverting the natural flow of surface waters “would be inadequate”); see also Barrington Hills Country Club v. Village of Barrington, 357 Ill. 11 (1934); Springer v. City of Chicago, 308 Ill. 356 (1923); Elser v. Village of Gross Point, 223 Ill. 230 (1906); Young v. Commissioners of Highways, 134 Ill. 569 (1890); Smith v. City of Woodstock, 17 Ill. App. 3d 948 (1974); Larson v. Village of Capron, 3 Ill. App. 3d 764 (1972).
Additionally, though the plaintiffs have not pleaded them, constitutional claims under 42 U.S.C. § 1983 are not barred by the Act. See Firestone v. Fritz, 119 Ill. App. 3d 685, 689 (1983), citing Hampton v. City of Chicago, 484 F.2d 602, 607 (7th Cir. 1973); see also Howlett v. Rose, 496 U.S. 356, 376, 110 L. Ed. 2d 332, 353, 110 S. Ct. 2430, 2443 (1990). The flooding of private property caused by a public improvement may effect an unconstitutional taking.
“A city may elevate or depress its streets, as it thinks proper, but if, in so doing, it turns a stream of mud and water upon the grounds and into the cellars of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, upon what ground of reason can it be insisted, that the city should be excused from paying for the injuries it has directly wrought?
It is said that the city must grade streets and direct the flow of waters as best as it can for the interests of the public. Undoubtedly, but if the public interest requires that the lot of an individual shall be rendered unfit for occupancy, either wholly or in part, in this process of grading or drainage, why should not the public pay for it to the extent to which it deprives the owner of its legitimate use? Why does not the constitutional provision apply as well to secure the payment for property partially taken for the use or convenience of a street, as when wholly taken and converted into a street? *** To the extent to which the owner is deprived of its legitimate use and in so far as its value is impaired, to that extent he should be paid.
*** In our opinion, the theory that private rights are ever to be sacrificed to public convenience or necessity, without full compensation, is fraught with danger, and should find no lodgment in American jurisprudence. ***
* * *
*** We are unable to see why the property of an individual should be sacrificed for the public convenience without compensation. We do not think it sufficient to call it damnum absque injuria. We know our Constitution was designed to prevent these wrongs. We are of opinion, that, for injuries done to the property of the [business owner], by turning a stream of mud and water upon his premises, or by creating in the immediate neighborhood of his dwelling an offensive and unwholesome pond, if the jury find these things to have been done, the city *** must respond in damages.” Nevins v. City of Peoria, 41 Ill. 502, 510-11, 515 (1866).
Accord City of Dixon v. Baker, 65 Ill. 518, 520 (1872) (“If municipal corporations can raise the grade of streets at discretion, and not provide suitable gutters to carry off the surface water, and thus overflow the lands abutting upon the streets, with impunity, then the owners of lots in our towns and cities are entirely at the mercy of the authorities of the municipality”); see Graham v. Keene, 143 Ill. 425 (1892); Stack v. City of East St. Louis, 85 Ill. 377 (1877); City of Bloomington v. Brokaw & Gregory, 77 Ill. 194 (1875); City of Aurora v. Reed, 57 Ill. 29 (1870); City of Aurora v. Gillett, 56 Ill. 132 (1870); Drainage District #1 v. Village of Green Valley, 69 Ill. App. 3d 330, 335 (1979); Dwyer v. Village of Glen Ellyn, 314 Ill. App. 572 (1942) (abstract of op.); City of Highland v. Auer, 235 Ill. App. 327 (1925); see generally G. Ratcliff, Private Rights under Illinois Drainage Law, 1960 U. Ill. L.F. 198, 208 (“A city has no right to change a watercourse without being liable to an adjoining landowner for any resulting damage”); K. Roberts, Note, Tort Liability of Municipal Corporations in Illinois, 1951 U. Ill. L.E 637, 645 (“The law seems to be well settled in Illinois that a municipal corporation may not construct public works and improvements in such a way as to cause surface water to flow in a different manner or in a substantially increased quantity upon the land of private owners”).2
In short, the majority need not warp our case law under section 2 — 201 of the Act just to give the plaintiffs’ tort claims an illusory second life. Though section 2 — 201 bars the plaintiffs’ tort claims, properly pleaded injunctive relief and constitutional claims could survive under the Act. I dissent.
JUSTICE GARMAN joins in this dissent.
The State also would be liable for such damage. See, e.g., Branding v. State, 31 Ill. Ct. Cl. 455, 457 (1977) (“one who negligently alters the natural flow of water on the property of an adjacent landowner, thereby causing damage, is liable to such abutting landowner”); Eckmann v. State, 45 Ill. Ct. Cl. 282 (1993); Vickroy v. State, 31 Ill. Ct. Cl. 489 (1977); Mount v. State, 31 Ill. Ct. Cl. 299 (1977); Shilling v. State, 24 Ill. Ct. Cl. 395 (1963); Doerr v. State, 22 Ill. Ct. Cl. 314 (1956); see also Herget National Bank of Pekin v. Kenney, 105 Ill. 2d 405 (1985).