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WARNER/ELEKTRA/ATLANTIC CORP. v. COUNTY OF DUPAGE

March 21, 1991

WARNER/ELEKTRA/ATLANTIC CORPORATION; WARNER COMMUNICATIONS INC.; and FIREMAN'S FUND INSURANCE CO., As Subrogee for WARNER/ELEKTRA/ATLANTIC CORPORATION and WARNER COMMUNICATIONS INC., Plaintiffs,
v.
COUNTY OF DUPAGE, ILLINOIS, Defendant


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 Pending before the Court is the motion of defendant County of DuPage ("DuPage") for a directed verdict. For the reasons set forth below, the Court denies the motion.

 II. ANALYSIS

 Because this is a diversity case, the Court must look to Illinois law for guidance on the defendant's motion for directed verdict. See Consolidated Bearings Co. v. Ehret-Krohn Corp., 913 F.2d 1224, 1227 (7th Cir. 1990). The Illinois standard for such verdicts is set forth in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967), where the Illinois Supreme Court remarked:

 
Verdicts ought to be directed . . . only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

 See Consolidated Bearings, 913 F.2d at 1224; Schultz v. American Airlines, Inc., 901 F.2d 621, 623 (7th Cir. 1990). Having heard the evidence presented in plaintiffs' case, the Court cannot conclude that the evidence so overwhelmingly favors defendant that a verdict in plaintiffs' favor could not stand.

 A. Inverse Condemnation Claim

 DuPage initially argues that it is entitled to a directed verdict on plaintiffs' claim for inverse condemnation because plaintiffs have established that the Warner property was flooded on only two occasions. This argument is premised upon a line of cases which holds that real property cannot be deemed "taken" unless the property is flooded frequently or continuously. See, e.g., Starcevich v. City of Farmington, 110 Ill. App. 3d 1074, 443 N.E.2d 737, 741, 66 Ill. Dec. 811, 815 (3d Dist. 1982) (complaint failed to state a cause of action for taking because alleged injuries complained of were not sufficiently frequent or permanent in nature). However, DuPage's argument misses the point in two respects. First, the Illinois constitution protects property owners from uncompensated taking or damaging. See Department of Transportation of the State of Illinois v. Rasmussen, 108 Ill. App. 3d 615, 439 N.E.2d 48, 54, 64 Ill. Dec. 119, 125 (2d Dist. 1982). This Court has previously ruled that the infrequency of the flooding at issue in this case precludes a claim for taking, but leaves room for a claim of damaging. (Memorandum Opinion and Order of June 23, 1986 at 4.) Although, as DuPage argues, there are some eminent domain and inverse condemnation cases in which the finding of damage was based upon acts or events of a permanent nature, see, e.g., Rasmussen, 439 N.E.2d at 54-55, 64 Ill. Dec. at 125-26 (recognizing damage claim for impairment of access to property resulting from construction of highway overpass), a claim for damage may also stand upon acts or events which are transient. DuPage not only overlooks the distinction between taking and damage but the differing effects which flooding has upon real and personal property. Real property can only be deemed "taken" by flooding which occurs on a frequent or continuous basis, because isolated or intermittent flooding does not deprive its owner of the use and enjoyment of the property. When the property is personal, however, one flood may be more than sufficient to cause permanent damage or destruction. Thus, cases from other jurisdictions have recognized inverse condemnation claims for injury to personal property which arose from infrequent flooding. See Hawkins v. City of La Grande, 102 Ore. App. 502, 795 P.2d 556, 558-59, review allowed, 310 Or. 547, 800 P.2d 789 (1990) (rejecting contention that single incident of flooding can never result in compensable taking; although temporary flooding of plaintiffs' property did not support an inverse condemnation for taking of plaintiffs' land, it did support such a claim for the taking of plaintiffs' personal property destroyed in the flooding); Skeen v. State, 550 S.W.2d 713 (Tex. Civ. App. 1977) (finding owner entitled to judgment on inverse condemnation for water damage to real and personal property which resulted when her land was flooded on two occasions due to elevation of nearby highway and design of adjacent culverts and service roads). Plaintiffs, through the testimony of Warner employees Al Abrams, C. Robert Mascari and Larry Stanley, have presented ample evidence that the flood damage which occurred to the albums, cassette tapes, and other items stored in the Warner warehouse in July and August, 1982 was irreparable. Such evidence suffices to permit plaintiffs' inverse condemnation claim to reach the jury.

 DuPage briefly suggests two concerns which purportedly counsel against the recognition of inverse condemnation claims in cases like this one: (1) that there is apparently no Illinois decision explicitly recognizing an inverse condemnation claim for injuries to personal property; and (2) that recognition of such a claim would open the floodgates to similar claims in other cases. However, DuPage has cited no case from any jurisdiction which rejects inverse condemnation claims based upon damage to personal property, nor has it marshalled any argument contrary to the many cases from other jurisdictions which have recognized such claims. See Memorandum Opinion and Order of March 4, 1991 (denying DuPage's motion for judgment on the pleadings as to Count II of plaintiffs' third amended complaint) at 3-4. *fn1" The mere fact that Illinois has not yet expressly acknowledged this species of inverse condemnation claims does not suggest a reluctance to do so, nor does it supply a valid basis for this Court to dismiss the claim, as DuPage would apparently have the Court do. *fn2"

 DuPage's concern that the recognition of inverse condemnation claims for the loss of personal property will burden local governments with a new and expansive breed of liability is unfounded. Other jurisdictions have accepted such claims without evident fiscal calamity. Moreover, DuPage's suggestion that recognition of such claims will subject local governments to claims for injuries to personal property in all types of circumstances -- automobile accidents involving governmental employees, for example (see Motion for Directed Verdict at 6) -- is unfounded. DuPage ignores the fact that the particular proof required by an inverse condemnation -- the taking or damaging of property proximately caused by a public improvement -- limits such claims to a relatively narrow range of circumstances.

 B. Duty to Undertake a Drainage Analysis

 DuPage contends that it cannot be held to any duty to undertake a drainage analysis insofar as such analysis would have affected the modifications which it made in 1978 to Thorndale Road and the culvert below and which, according to plaintiffs, was a proximate cause of the flooding which gave rise to this litigation. This dispute has arisen in the context of the "issues" jury instruction plaintiffs have modeled after Illinois Pattern Jury Instruction (Civil) No. 20.01. There, plaintiffs contended that DuPage was negligent in the design and construction of the widened roadway and extension and modification of the culvert because, inter alia, DuPage failed to undertake a drainage analysis to assess the impact of the changes it made. See Plaintiff's Proposed Jury Instruction No. 39, para. (g); Defendant's Revised Proposed Jury Instruction No. 13 at 1, para. (d). DuPage contends that such a contention is improper in light of the well-established principle that Illinois municipalities have no duty to undertake public improvements. See, e.g., City of Freeport v. Isbell, 83 Ill. 440, 442 (1876). However, as DuPage itself acknowledges, once a municipality undertakes to construct or modify a public improvement such as Thorndale Road or the culvert beneath it, the municipality has a duty to ensure that the improvement is reasonably safe. See County of DuPage's Memorandum of Law in Support of the County's Objection to Paragraph D of Revised Jury Instruction Number 39 at 1-2. See also Resnik v. Michaels, 52 Ill. App. 2d 107, 110, 201 N.E.2d 769, 770 (1st Dist. 1964) ("A municipality is responsible for the negligent construction of public works and for its failure to maintain them, but it is not obligated, and is not liable for its neglect or refusal, to undertake such projects."); accord Ross v. City of Chicago, 168 Ill. App. 3d 83, 522 N.E.2d 215, 218, 118 Ill. Dec. 760, 763 (1st Dist. 1988). Given the evidence presented in this case, DuPage's concern is not well founded.

 Plaintiffs' contention is not that DuPage was bound in the abstract to undertake a drainage analysis and ascertain what actions were required to improve the drainage conditions of the watershed feeding into the Thorndale Road culvert. Rather, plaintiffs argue that in raising the roadway extending and modifying the culvert, DuPage failed to consider (by means of a drainage analysis) what impact the changes might have upon the existing drainage conditions in the area, and that the modifications which the County made rendered the culvert unsafe. This argument is supported by testimony from plaintiffs' expert witness, Robert Gudmundson, to the effect that the flow capacity of the culvert was diminished by the addition of 90-degree bends and that the elevation of flood water waiting to pass through the culvert was increased by the elevation of the roadway. *fn3" The jury, of course, must decide whether the improvements which DuPage undertook in 1978 were effectively "unsafe." However, plaintiffs' contention that they were, and that consequently DuPage is liable in negligence, is contrary neither to the law nor to the evidence presented in plaintiffs' case. The Court has modified the jury instruction regarding the issues in the case to delete ...


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