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05/06/88 Martin Urban Et Al., v. the Village of Inverness

May 6, 1988

MARTIN URBAN ET AL., PLAINTIFFS-APPELLANTS

v.

THE VILLAGE OF INVERNESS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

530 N.E.2d 976, 176 Ill. App. 3d 1, 125 Ill. Dec. 567 1988.IL.691

Date Filed: May 6, 1988; Modified on Denial of Rehearing November 18, 1988.

Appeal from the Circuit Court of Cook County; the Hon. Harold A. Siegan, Judge, presiding.

Rehearing Denied November 22, 1988.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ,* P.J., concurs. JUSTICE MURRAY, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiffs, Martin Urban, Philip Urban and David Peterson, initiated this action to enjoin the Village of Inverness (the Village) and the Inverness Park District (the Park District), from (1) unnaturally increasing the flow of water over plaintiffs' properties; (2) blocking the natural flow of water, which caused water to collect on plaintiffs' properties; and (3) for damages to the structures on plaintiffs' properties caused by flood. The trial court granted defendants' motions for summary judgment. The plaintiffs appeal and contend for reversal that the affidavits and exhibits attached to defendants' motions for summary judgment were insufficient to grant the motions as a matter of law and that the two-year statute of limitations of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8-101) does not bar the instant action. Defendant, the Village of Inverness, contends on this appeal that it had no duty to prevent or forestall the flooding of plaintiffs' properties. The Park District contends that not only was plaintiffs' action barred by the statute of limitations, but, also, the Park District did not create and was under no duty to repair the condition which caused the flooding, and summary judgment on behalf of the Park District was therefore appropriate. Conversely, plaintiffs urge that there were genuine issues of the material facts as to the causes and circumstances of the flooding, which necessitated a trial and prohibited entry of summary judgment. The facts follow.

On April 18, 1980, Martin Urban, Philip Urban and David Peterson, owners of real estate in the Village of Inverness, brought an action against the Village and the Park District. The complaint for injunctive relief alleged that defendants, the Village and the Park District, diverted and increased the normal flow of water and thereby unnaturally increased the flow of water over the plaintiffs' properties, that the defendants failed to properly maintain a drainage to the plaintiffs' properties, and allowed crushed drain tile to interrupt the natural flow of water from the plaintiffs' properties into Salt Creek. The complaint further alleged that defendant, the Park District, blocked or crushed the drain tile and graded the properties as to interrupt the ordinary flow of water from the plaintiffs' properties, thereby causing a damming and flooding effect and blocking the natural flow of water into Salt Creek. The defendants filed motions for summary judgment, asserting, inter alia, that plaintiffs' causes of action against them were barred by the statute of limitations.

The record reflects that in 1972 plaintiff David Peterson coauthored and signed a letter to Cook County Board President George Dunne. In that letter, Peterson and his neighbors, the previous owners of the Martin and Philip Urban properties, complained of the "flood condition" affecting their area. Also in his deposition, Peterson testified as follows:

"Q. When did you first become aware of the collection or accumulation of water on the property that's involved in this lawsuit?

A. 1972.

Q. When was the next time after 1972 that the property flooded?

A. 1978.

Q. When was the next time the flooding occurred on the property?

A. '79.

Q. How many incidents are we talking about altogether?

A. Three.

Q. So this is the last time that is the subject of the lawsuit is the '79 one?

A. Yes."

In his deposition, Peterson also stated that he did complain to George Dunne about the problem in 1972.

Also, plaintiff Philip Urban testified in his deposition that prior to purchasing his property, he was informed by his predecessors of the flooding conditions in the area. Philip Urban testified as follows:

"Q. Did you have any Discussions with Mr. Bessemer regarding the conditions of the property ...


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