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08/03/89 Gordon G. Gass Et Al., v. Metro-East Sanitary

August 3, 1989

GORDON G. GASS ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES

v.

METRO-EAST SANITARY DISTRICT ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

542 N.E.2d 1229, 186 Ill. App. 3d 1077, 134 Ill. Dec. 722 1989.IL.1194

Appeal from the Circuit Court of Madison County; the Hon. Andrew Matoesian, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. HARRISON and RARICK, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The plaintiffs, Gordon G. Gass and Mary Jane Gass, initially sought in a four-count complaint filed on April 10, 1984, compensatory damages for negligence, punitive damages, injunctive relief, and a writ of mandamus against the defendants, Metro-East Sanitary District and Walter Greathouse, who was chairman of the Metro-East Sanitary District. In an amended three-count complaint filed on April 18, 1984, the plaintiffs sought compensatory damages, punitive damages, and equitable relief. The plaintiffs alleged that "from and after January 1, 1981, to the present" the defendants had been charged, pursuant to sections 4-15 and 1-1 et seq. of chapter 42 (Ill. Rev. Stat. 1981, ch. 42, pars. 4-15, 501-1 et seq.), with the responsibility of maintaining the Cahokia Canal, located in Madison and St. Clair Counties. They alleged further that the defendants had been guilty of failure to inspect the canal, failure to maintain it, failure to prevent accumulation of silt and debris in it, and failure to take adequate steps to prevent erosion on its banks. As a result, they alleged, flooding of plaintiffs' farmlands had occurred, having destroyed crops planted there in 1981, 1982, and 1983.

Thereafter, on May 23, 1984, the defendants moved to dismiss the complaint on a number of grounds. They contended, inter alia, that the defendant sanitary district owed no legal duty to the plaintiffs, and that, even if such a cause of action existed, it was barred by what was described as "the statute of limitations" without further elaboration. They argued also that punitive damages cannot be recovered against a municipal corporation. The trial court allowed the defendants' motion as to the prayer for punitive damages but denied it in all other respects.

Thereafter, on January 9, 1987, the plaintiffs moved to amend their amended complaint by interlineation so as to allege damages arising out of the destruction of their crops in 1984 as well. On February 10, 1987, the defendants moved to dismiss the plaintiffs' complaint because proper notice of injury had not been provided to them pursuant to sections 8-102 and 8-103 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, pars. 8-102, 8-103) (hereafter referred to as the Tort Immunity Act) or section 1-5 of the Metro-East Sanitary District Act of 1974 (Ill. Rev. Stat. 1981, ch. 42, par. 501-5). Section 8-102, which was repealed effective November 25, 1986, provided that "any person who is about to commence any civil action for damages" against a local public entity must provide notice to that entity within one year from the date of injury or the date the cause of action accrued; section 8-103 provides that if this notice is not given, the person who was injured is forever barred from bringing suit. (Ill. Rev. Stat. 1981, ch. 85, pars. 8-102, 8-103.) Section 1-5 of the Metro-East Sanitary District Act of 1974 provides in pertinent part:

"No claim for compensation shall be made or suit for damages filed against such district on account of any damage to property, unless notice in writing is filed with the board within 6 months after the occurrence of the damage or injury giving the name and residence address of the owner of the property damaged, its location and the probable extent of the damage sustained." (Ill. Rev. Stat. 1981, ch. 42, par. 501-5.)

It is undisputed that the plaintiffs gave no notice to defendants in advance of filing suit on April 10, 1984. In the alternative the defendants asserted that the plaintiffs should be prohibited from claiming any damages that had allegedly occurred "two years prior" to filing. The defendants maintained that their duty to provide flood protection was a general duty owed to the public at large and that, in the absence of an allegation of facts demonstrating a special duty owed by a municipal corporation to a plaintiff, which duty is different from the duty owed to the public at large, a plaintiff's complaint is substantially insufficient and should be dismissed.

On June 5, 1987, the trial court denied defendants' motion to dismiss, ruling that the original complaint constituted sufficient notice to the defendant, but limited any recovery for damages to only those damages that had occurred six months prior to the filing of the complaint. The trial court allowed the plaintiffs' motion to amend their complaint to allege injuries to their property that had occurred after the filing of the complaint but stated that "the six month rule applies as stated above."

On September 18, 1987, the plaintiffs again moved to amend their amended complaint by interlineation, this time so as to allege injuries arising out of the destruction of their crops in 1984, 1985, 1986, and 1987. On October 9, 1987, the trial court denied the plaintiffs' motion for leave to amend, stating that they must file a separate lawsuit and that the "six month notice requirement applies, that isany new allegations of negligence can relate back only six months from date of filing." The court expressly denied leave to amend "to allege damages incurred during period of time: April 10, 1984 through April 9, 1987."

Thereafter the plaintiffs moved on October 20, 1987, that the court reconsider its order of October 9, 1987, or in the alternative to make a finding that there is no just reason to delay an appeal pursuant to Supreme Court Rule 304 (107 Ill. 2d R. 304). On October 27, 1987, the defendants moved for summary judgment. On April 22, 1988, the trial court denied the motions of both parties. In its order the court stated that the basis for its orders of June 5 and October 9, 1987, was "the Court's interpretation of the plaintiffs' failure to abide by the six month statutory notice provision found at Ill. Rev. Stat. ch. 42, 501-5, commonly known as the Metro East Sanitary District Act of 1974." The court agreed with the plaintiffs that it would be wasteful of the resources of both the parties and the court to require the plaintiffs to put on their entire case in order to appeal the order limiting their recovery to injury allegedly sustained from October 10, 1983, to April 10, 1984. The court questioned whether an appeal under Supreme Court Rule 304 or 308 was more appropriate since

"[t]he answer to this question depends, in good part, on the view taken of the claim for relief presented by the plaintiffs.

The defendants have argued that a separate cause of action arises for the plaintiffs on each occasion of flooding of their land and crops, which separate cause of action is subject to the notice requirement and statute of limitations applicable to causes of action against the Metro-East Sanitary District. If this view is taken of the plaintiffs' claim for relief, then the Court's refusal to allow the plaintiffs to seek damages for injury to their land and crops which allegedly occurred at a time other than the six months immediately preceding April 10, 1984, amounts to a final Disposition of several other causes of action possessed by the plaintiffs: that is, those causes of action arising from floods which occurred before October 10, 1983, or after April 10, 1984.

This view is one which the Court has already taken in its rulings of June 5, 1987, and October 9, 1987, and, to be consistent, the Court will adhere to that view. The Court, therefore, finds, pursuant to Illinois Supreme Court Rule 304(a), that there is no just reason for delaying enforcement of -- or appeal from -- its orders of June 5, 1987, and October 9, 1987, which denied the plaintiffs' motions for leave to amend their Amended Complaint and which thereby finally disposed of the plaintiffs' causes of action arising from flooding of their land which occurred before October 10, 1983, or after April 10, 1984.

The Court notes, however, that -- if the plaintiffs' view of its claim for relief (that they are asserting a claim based upon a single, continuing injury) were taken -- the Court's orders of June 5, 1987, and October 9, 1987, would not dispose of entire claims for relief but, instead, would merely rule on questions presented by a single claim for relief not yet entirely disposed of. Under that view of the plaintiffs' claim for relief, it would be more appropriate to allow the plaintiffs to appeal immediately from the orders of June 5, 1987, and October 9, 1987, pursuant to Illinois Supreme Court Rule 308."

To insure the plaintiffs' ability to appeal under one of the two supreme court rules, the trial court made the findings required by Rule 308. The court set forth the questions of law as to which there is a substantial ground for difference of opinion as follows:

"1. Have the plaintiffs alleged that they have suffered, and are suffering, an ongoing injury at the hands of the defendants?

2. Should the plaintiffs be barred from seeking damages for that part of the injury to their land which occurred more than six months before their filing of their initial complaint in this case on April 10, 1984?

3. Should the plaintiffs be barred from updating their amended complaint by further amending it to seek damages for that part of the injury to their land which has ...


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