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Dial v. City of O'fallon





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Alvin H. Maeys, Jr., Judge, presiding.


Following a jury trial in the circuit court of St. Clair County, the defendant, the city of O'Fallon, was found liable to the plaintiff, Geraldine Dial, for causing sewer water to back up into the plaintiff's house. Mrs. Dial was awarded $23,000 in damages. The appellate court affirmed the judgment of the trial court. (75 Ill. App.3d 782.) We granted leave to appeal.

The defendant raises two issues on appeal. The primary issue is whether the city's conduct was sufficient to constitute a trespass to land. The second issue is whether the trial court erred in denying the defendant the right to present certain evidence concerning the reason why the city had caused the sewer water to back up onto plaintiff's property.

The pertinent facts of the case are not disputed. The city of O'Fallon installed a sewer system in about 1926. In 1961, due to backups into homes serviced by the system, the city built an overflow outlet on East Madison Street. The overflow was to relieve pressure in the sewer system during periods of heavy rainfall; it proved successful in preventing backups into nearby homes. However, when water escaped through the overflow, raw sewage was also discharged into an open ditch that flowed into a neighboring pond. In December 1974, the city of O'Fallon closed the overflow. During trial, the trial court refused to allow the city to present evidence that it closed the overflow because it violated State environmental regulations and as part of a settlement of a nuisance suit filed against the city for dumping raw sewage into the pond.

On January 10, 1975, and on subsequent dates, sewage backed up into the plaintiff's house following heavy rainfall. The January 10 backup was the worst, causing water to accumulate in the plaintiff's finished basement to a height of 25 1/2 inches. The lower level of the plaintiff's modern, ranch-style home contained a family room with fireplace and built-in bookshelves, bedroom, closet, bath and utility room with washer, dryer, furnace and water heater. The walls were watermarked, and the tile floor was damaged, as were the furnishings, appliances and many irreplaceable family items such as family photographs and slides. The lower level of the house was virtually unusable for a year, and the plaintiff had to expend considerable time, effort and money in repairing the floor, repainting the walls, and replacing and removing damaged personalty.

During the trial, the city engineer testified that the city knew the blocking of the overflow would cause some backup, although they were not aware that it would be as severe as it was. From January until April or May 1975, when the city reopened the overflow, the city attempted to alleviate the pressure in the sewer system by pumping the water from the sewers into open ditches during periods of heavy rain. The defendant used either large or small pumps, depending upon the amount of water in the system. The backups into Mrs. Dial's home ended after the overflow was reopened in April or May 1975. During trial, the plaintiff valued the personal property destroyed by the inundations at $3,500. In addition, she called as an expert witness a real estate appraiser who testified that the value of her home had depreciated 30% due to the water damage.

Plaintiff was one of several homeowners who had filed a complaint against the city; however, plaintiff's case was severed from the others for trial. Her case, as were the others, was alleged in three counts, each seeking recovery for the damages caused by the backing up of the water into her home on separate theories: negligence, trespass to land, and strict liability. The strict liability count was stricken. Although no reference is made to this fact in the briefs, it appears from a colloquy by the court and counsel prior to the trial of plaintiff's case that the city of O'Fallon had liability insurance and that the insurance company had settled the negligence count and that a covenant not to sue had been executed. The colloquy also discloses that the insurance company was not defending the trespass to land count because there had been a declaratory judgment that the trespass to land action was not covered by the insurance policy but that the negligence action was. Since we do not have the file in the action in which the declaratory judgment was entered, and since we have not examined the covenant not to sue, we can express no opinion as to the propriety of the settlement of the negligence count and proceeding to trial on the count based on the theory of trespass to land. From all of the allegations, however, it appears that the separate counts were simply stating different theories of recovery for one injury.

On appeal, the city contends that although negligent in maintaining the sewer system, its conduct does not give rise to liability on the theory of trespass to land.

Historically, the requirements for the common law action of trespass were that the invasion be a direct result of the defendant's act and interfere with plaintiff's interest in the exclusive possession of his land. Trespass was strictly distinguished from the action of case and, for the most part, these two forms of action were mutually exclusive. Case was proper where the injury was consequential rather than direct. Most harms arising out of negligence could be more conveniently remedied in case since it was not necessary to allege and prove that the harm was the direct and immediate result. (1 F. Harper & F. James, Torts secs. 1.2 to 1.4, at 5-16 (1956); W. Prosser, Torts sec. 13, at 63-68 (4th ed. 1971).) In 1933 this State, as other States had done, adopted revised procedures of pleading in the Civil Practice Act, section 31 of which, prior to its amendment in 1976, provided:

"Neither the names heretofore used to distinguish the different ordinary actions at law, nor any formal requisites heretofore appertaining to the manner of pleading in those actions, respectively, are necessary or appropriate * * *. This section does not affect in any way the substantial averments of fact necessary to state any cause of action either at law or in equity." (Ill. Rev. Stat. 1975, ch. 110, par. 31.)

Before that, section 36 of the Practice Act of 1907 had abolished distinctions between actions of trespass and trespass on the case. (Ill. Ann. Stat., ch. 110, par. 31, Historical and Practice Notes (Smith-Hurd 1968).) Following these statutory enactments, it became important to distinguish between an intentional trespass to land and those which were the result of negligent conduct, only for the purpose of determining whether it was necessary to prove actual damages. 1 F. Harper & F. James, Torts sec. 1.4, at 12 (1956).

The conduct which today forms the basis of liability for the invasion of the interest in the exclusive possession of land may be of three general types: (1) conduct intended to cause an intrusion on the plaintiff's premises; (2) negligent conduct that causes an intrusion; and (3) conduct that is ultrahazardous and causes an intrusion, so that liability is said to be strict or absolute. The second type of invasion listed above is now governed by the general principles of negligence, and the third is thought of as included in the principles governing extrahazardous conduct, leaving only the first type of invasion wherein recovery may be sought purely on the basis of the tort of trespass. 1 F. Harper & F. James, Torts sec. 1.4, at 11-12 (1956).

We may summarize the Restatement (Second) of Torts on this subject as follows: (1) One is subject to liability for an intentional intrusion on land irrespective of whether he causes harm to a legally protected interest. (Restatement (Second) of Torts sec. 158, at 277 (1965).) (2) One is liable for negligent or reckless intrusion on land if he thereby causes harm to a legally protected interest. (Restatement (Second) of Torts sec. 165, at 300 (1965).) (3) And one is not liable for an unintentional nonnegligent intrusion on land even though the entry causes harm to a legally protected interest. (Restatement (Second) of Torts sec. 166, at 304 (1965).) Under section 158 of the Restatement (intentional intrusion), or section 165 (negligent or reckless intrusion), a person is liable not only for his own entry but also if he causes a thing or third person to enter the land of another.

Although the allegations of the complaint refer only to a trespass without specifying whether the intrusion was intentional or negligent, it is apparent that the issue to be tried in our case was that of an intentional trespass to land and not a negligent intrusion. The colloquy between court and counsel before the trial started, which we discussed above, clearly demonstrates this. Counsel for the defendant stated he viewed the trespass alleged as an intentional tort. He moved to strike part of paragraph 6 of the trespass count because that allegation sounded in negligence. Since the insurance company had settled the negligence count and the negligence "portion of the case" had been disposed of, the court struck that part of paragraph 6 objected to. According to the Restatement, a person may be liable for an intentional intrusion on land for directly casting an object upon the property of ...

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