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.
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.
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.
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 allegations which might have suggested a duty on the part of DuPage to take affirmative action separate and apart from the improvements it had undertaken to make to Thorndale Road and the underlying culvert. DuPage's concerns in this regard have therefore been allayed.
C. Proximate Cause
DuPage argues that there is a lack of evidence suggesting that the 1978 modifications to Thorndale Road and the culvert were a proximate cause of the flooding of the Warner property. That contention holds no merit. Gudmundson testified repeatedly that based upon his study of the conditions in the area and upon data for a 30-year rainfall, the post-1978 elevation of the roadway and configuration of the culvert caused the flooding.
Nonetheless, DuPage suggests that the requisite evidence of proximate cause is absent because such testimony is based, to a certain degree, upon suppositions as to what occurred on the events in question. This argument ignores the fact that findings of negligence are often based upon post facto recreations of events which necessarily rely to some extent upon theories and assumptions as to what likely occurred, as opposed to definitive proof of what actually occurred. The only limitation upon evidence in this regard is that expert opinion upon causation must be expressed to a reasonable degree of scientific certainty. See Memorandum Opinion and Order of February 17, 1991 at 25, citing, inter alia, Rodrian v. Seiber, 194 Ill. App. 3d 504, 507, 551 N.E.2d 772, 773-74, 141 Ill. Dec. 585, 586-87 (5th Dist. 1990) (although an "expert may not state a judgment or opinion based on conjecture," "an expert opinion couched in terms of probabilities or possibilities based upon certain assumed facts is not improper or inadmissible"). DuPage does not argue that the expert testimony offered in this case fails to meet this criterion. To the contrary, both of the experts who testified on behalf of the parties indicated without reservation that they were able to offer their opinions to a reasonable degree of engineering certainty based upon the data available to them. Accordingly, there is nothing fatally deficient the proof of negligence which plaintiffs have tendered.
D. Statutory Immunity
DuPage argues that its course of conduct with respect to its 1978 work upon Thorndale Road and the culvert is cloaked with immunity pursuant to the Illinois Local Governmental and Governmental Employees Tort Immunity Act, Ill. Rev. Stat. ch. 85, §§ 2-103, 3-102(a), 3-103 (1981) (the "Act").
As this Court noted in its June 27, 1989 opinion denying DuPage's motion for summary judgment, under the version of the Act in effect at the time of the events underlying this case, a local government waived its immunities and defenses under the Act by purchasing liability insurance as DuPage had. See Memorandum Opinion and Order of June 27, 1989 at 8; see also Ill. Rev. Stat., ch. 85, para. 9-103(c) (1981).
Nonetheless, DuPage argues that to the extent it maintained a self-insured retention for liability below a certain amount, it does not waive the immunity defenses otherwise available under the Act. As set forth below, the Court deems that argument to have been waived. Alternatively, the Court concludes that such defenses would not require a directed verdict in DuPage's favor, because the premises for liability in this case are not contrary to the provisions of the Act upon which DuPage relies.
1. Waiver of Statutory Immunity via Purchase of Insurance
DuPage correctly argues that any waiver of immunity under the former version of para. 9-103(c) is co-extensive only with the amount of its insurance coverage; in other words, to the extent a local government is self-insured, it has not waived its statutory immunity from an award of damages. As the Illinois Supreme Court explained in Antiporek v. Village of Hillside, 114 Ill. 2d 246, 499 N.E.2d 1307, 1308, 102 Ill. Dec. 294, 295 (1986):
Tort immunity is intended to protect governmental funds, assuring that they will be directed and used for governmental purposes. If, however, the municipality decides to protect individuals against its negligent conduct by acquiring commercial insurance, the immunity is waived since government funds are no longer in jeopardy and immunity would inure to the benefit of private investors who have assumed the risk of insurers. Conversely, when a municipality self-insurers [sic], it bears all risks itself, and settlements or awards are paid directly from government coffers. Section 9-103(c) does not come into play in such circumstances because there is no concern that private investors, paid to assume certain risks, will attempt to assert immunities and shirk responsibilities they have assumed.
(Citations omitted.) This same principle applies when a local government has obtained commercial insurance for liability beyond a certain amount, but is self-insured for liability below that amount. See Carr v. City of Chicago, 630 F. Supp. 932, 936 (N.D. Ill. 1986) (Shadur, J.) ("§ 9-103(c) provides for the insurer's waiver only 'within the limits of said policy. . . .' Illinois courts construe the scope of the waiver coextensively with the type and amount of damages the insurance policy covers."); Beckus v. Chicago Board of Education, 78 Ill. App. 3d 558, 397 N.E.2d 175, 33 Ill. Dec. 842 (1st Dist. 1979) (where defendant was insured for liability in excess of $ 1 million and maintained a self-insurance retention for liability up to that amount, defendant had not waived its statutory immunity from liability below $ 1 million); Collins v. School District No. 189, St. Clair County, 115 Ill. App. 3d 100, 450 N.E.2d 387, 389, 70 Ill. Dec. 914, 916 (5th Dist. 1983) (where insurance policy excluded liability for punitive damages, defendant had not waived liability as to claims for such damages in purchasing the insurance). DuPage represents without contradiction from plaintiffs that it maintained a self-insured retention of $ 100,000 for each event within the scope of its insurance policy, or a total of $ 200,000 for the two flood events at issue in this case. Thus, DuPage contends that its statutory immunity remains intact up to the amount of $ 200,000. For two reasons, this argument fails.
First, although this case has been pending for nearly eight years, DuPage has not raised this argument until now. The issue was not raised in DuPage's motion for summary judgment (indeed, as the Court noted in denying that motion, DuPage did not rely upon the provisions of the Act at all, see Memorandum Opinion and Order of June 27, 1989 at 8); it was not raised in DuPage's trial memorandum, nor was it raised in the pretrial order. Plainly this was not an argument the merits of which depended upon the evidence which plaintiffs would produce at trial; consequently, there is no excuse for the failure to assert this argument at an earlier date. Indeed, shortly before trial, plaintiffs moved to strike the statutory immunity defenses which DuPage had belatedly included it its affirmative defenses. When DuPage appeared in court upon the motion on November 13, 1990, the Court inquired of DuPage's counsel how it intended to proceed upon these defenses and expressed the concern that such defenses might raise legal issues which should be resolved in advance of trial. In response, DuPage's counsel made no mention of the argument it raises now. Subsequently, in its decision denying the motion to strike the affirmative defenses, the Court observed:
The Court does have some concerns as to what, if anything, DuPage plans to make of the immunity defenses. DuPage has not filed any dispositive motion based upon these defenses, and the date for such motions has long since passed. Moreover, the Court has previously noted in dictum in this litigation that the assertion of immunity under the Illinois Local Governmental and Governmental Employees Tort Immunity Act is barred where, as here, the governmental entity has purchased liability insurance. See Memorandum Opinion and Order of June 27, 1989 at 7-8. Thus, it is not at all clear why DuPage has invoked this act. DuPage should, of course, be fully prepared to address the relevance of its statutory immunity defenses and the manner in which they must be addressed in the forthcoming pretrial order. Should the Court subsequently ascertain that these defenses require pretrial motions which DuPage has not filed or that the resuscitation of these defenses in response to the second amended complaint poses undue burdens which have not been called to the Court's attention, the court may reconsider this ruling and determine that DuPage has indeed waived these defenses.