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12/17/87 Eleanor J. Bridgman, v. the Sanitary District of

December 17, 1987

ELEANOR J. BRIDGMAN, PLAINTIFF-APPELLANT

v.

THE SANITARY DISTRICT OF DECATUR ET AL., DEFENDANTS-APPELLEES (WIEGAND & STORRER, INC., DEFENDANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

517 N.E.2d 309, 164 Ill. App. 3d 287, 115 Ill. Dec. 107 1987.IL.1869

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE SPITZ delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ

The present case was initiated by the plaintiff acting pro se. She filed a one-count complaint alleging damages against five separate defendants. Each of the defendants filed a motion to dismiss the initial complaint and subsequently plaintiff retained counsel. The motions to dismiss were allowed and two defendants were omitted from further proceedings.

Plaintiff subsequently filed her first-amended complaint in the present cause, and this complaint was framed in four separate counts. The first count pertained to the Sanitary District of Decatur (sanitary district). Plaintiff alleged in count I of her first-amended complaint that she was the owner of 2375 Mesa Drive in Decatur, Illinois, where she maintained her personal residence. She alleged that her water was supplied by a well located on the premises, that this well was supplied by subsurface waters consisting of the water table below her property, and that this water was used for drinking, bathing, washing, and other domestic needs. The complaint further alleged that the Decatur sanitary district constructed a ditch on the property which adjoined her property and that this ditch caused her property to be completely dewatered. It alleged that the Decatur sanitary district used a granular fill within the ditch and that the granular fill caused water to be removed from her premises and diverted so as to cause a waste of subsurface water and interfere with her right to have reasonable use of the subsurface water for domestic purposes. The complaint further alleged that the removal of the subsurface water caused her well to become contaminated with the impurities from other sources and the plaintiff was thereafter unable to obtain sufficient water by digging a deeper well. She alleged that as a result of the removal of her source of water that her property had been devalued and that she had been deprived of any available source of water for use for her domestic needs.

Count II of the amended complaint, directed at Bainbridge, Gee, Milanski and Associates, Inc. (Bainbridge), alleged that the Decatur sanitary district had employed Bainbridge to design the specifications, plans, and designs and that the specifications, plans, and designs called for the use of a granular fill. Plaintiff alleged in count II that the use of the granular fill in the plans and specifications was a negligent design and that as a result of this negligence the subsurface water was permanently removed from the plaintiff's land and that she was therefore without any water source and her property value was reduced.

Count III and count IV were both directed against Wiegand and Storrer, Inc. (Wiegand). Count III alleged that Wiegand was employed by the Decatur sanitary district as a contractor for the purpose of constructing the sanitary sewer and that Wiegand knew or should have known that the construction of the sewer in accordance with the plans and specifications would permanently dewater plaintiff's land and alter the water table that existed. The complaint further alleged that Wiegand negligently failed to act on its knowledge or imputed knowledge to take steps to prevent damage to plaintiff's well and water table when it should have known that a modification of the plans was necessary to prevent the injury complained of. The complaint further alleged in count III that the diversion of the subsurface waters deprive the plaintiff of

her right to have reasonable use of her subsurface water for domestic purposes.

Count IV alleged in addition to the previous matters that Wiegand had failed to restore the land to its original surface dimensions and provide adequate drainage for surface water. The complaint alleged that as a result of the failure to restore the land to its original dimensions that the surface water now collects and stands on the plaintiff's land to her damage. As a result of the standing water on the plaintiff's land, plaintiff's property is alleged to have been substantially diminished in value.

Defendant Decatur sanitary district filed a motion to dismiss count I of the complaint alleging three reasons for granting the motion. The first reason was that section 3-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 3-103) barred the plaintiff from any action against the Decatur sanitary district. The second basis for the motion was that the complaint lacked any allegation of notice as required by section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8-102). It alleged that since no notice was given the civil action was barred. The third reason alleged in the motion to dismiss was that the law of Illinois prohibits the plaintiff from bringing a cause of action for interference with subsurface waters.

Defendant Bainbridge filed a motion for judgment on the pleadings. The motion for judgment on the pleadings alleged that count II should be dismissed since no cause of action lies for interference with subsurface waters under Illinois law.

Defendant Wiegand filed a motion for judgment on the pleadings and to strike and dismiss. Three reasons were stated in the motion for dismissal of count III. The first reason was that an independent contractor owes no duty to third persons to Judge the plans, specifications, or instructions which he is merely contracted to follow. The second reason cited for dismissal of count III was that the plaintiff has no remedy under Illinois law for a diversion of subsurface waters. The third reason cited was that the plaintiff cannot recover damages for the injuries alleged to have been sustained in count III, those being the costs of obtaining alternative water, the lack of availability of an alternate water supply, and the diminution of value to plaintiff's real estate.

Wiegand addressed count IV in its motion to dismiss and repeated the contention that a contractor cannot be sued where it follows the specifications given by the owner, and that the economic loss is not recoverable under a negligence theory. In addition, defendant Wiegand alleged it had no duty to the plaintiff to avoid diversion of the natural flow of water and that any cause of action, ...


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