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Vil. of Wilsonville v. Earthline Corp.

OPINION FILED NOVEMBER 3, 1978.

THE VILLAGE OF WILSONVILLE ET AL., PLAINTIFFS-APPELLEES,

v.

EARTHLINE CORPORATION, DEFENDANT-APPELLANT. — (THE PEOPLE EX REL. MACOUPIN COUNTY, INTERVENOR-APPELLEE.)



APPEAL from the Circuit Court of Macoupin County; the Hon. JOHN W. RUSSELL, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The defendant, Earthline Corporation, appeals from the order of the trial court which denied its "SUGGESTION OF DAMAGES FOR WRONGFUL INJUNCTION," filed pursuant to section 12 of the Injunction Act (Ill. Rev. Stat. 1977, ch. 69, par. 12), and sustained the plaintiffs' objections to defendant's pleading.

A preliminary injunction was issued upon the complaint of the plaintiffs prohibiting defendant from storing chemical wastes at a landfill site situated in the Village of Wilsonville and adjacent thereto. On July 18, 1977, in an order pursuant to Supreme Court Rule 23 (58 Ill.2d R. 23), this court directed the trial court to vacate the preliminary injunction which had been issued. In its suggestion of damages defendant alleged that it suffered $25,000 in damages as the result of the issuance of the preliminary injunction which had been vacated.

On appeal, plaintiffs contend that the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 1-101 et seq.), hereinafter referred to as the Immunity Act, shields them from the assessment of damages provided by section 12 of the Injunction Act. Defendant urges that the court erred in finding the plaintiffs immune from the sanctions provided in section 12. It also contends that the court erred in denying defendant's motion which sought a change of venue for the hearing which it urges is mandated by section 12. On June 22, 1978, this court ordered that the issue concerning the change of venue be stricken from appeal because that issue was not yet appealable.

Section 12 of the Injunction Act (Ill. Rev. Stat. 1977, ch. 69, par. 12) provides:

"In all cases where an injunction is dissolved by any court in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party damnified by such injunction, and may award execution to collect the same.

In Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill.2d 11, 163 N.E.2d 89, the supreme court repudiated the judicial doctrine of sovereign immunity. The Illinois Constitution of 1970 now provides:

"Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." (Ill. Const. 1970, art. 13, § 4.)

By its plain language, that constitution expressly does not undertake to forbid a legislative provision of non-liability for the State or its governmental subdivisions.

In 1965, the legislature adopted "An Act in relation to the tort immunity of local public entities and their employees * * *" (Ill. Rev. Stat. 1977, ch. 85, par. 1-101 et seq.). That statute adopts the following definitions:

"`Employee' includes an officer, member of a board, commission or committee, servant or employee, whether or not compensated, but does not include an independent contractor." Ill. Rev. Stat. 1977, ch. 85, par. 1-202.

"`Injury' means death, injury to a person, or damage to or loss of property. It includes any other injury that a person may suffer to his person, reputation, character or estate which does not result from circumstances in which a privilege is otherwise conferred by law * * *." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 85, par. 1-204.

"`Local public entity' includes a county, township, municipality, municipal corporation, * * * and all other local governmental bodies. * * *" ...


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