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Independent Trust Corp. v. City of Chicago Department of Water

March 31, 1998

INDEPENDENT TRUST CORPORATION, AND FIRST MANAGEMENT REALTY CORPORATION, PLAINTIFFS-APPELLANTS,
v.
THE CITY OF CHICAGO DEPARTMENT OF WATER, DEFENDANT-APPELLEE. LUMBERMENS MUTUAL CASUALTY A/S/O CORPORATION SUPPLY CO., PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE. PAGO PAGO II, INC., PLAINTIFF-APPELLANT,
v.
THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY HONORABLE DAVID G.LICHTENSTEIN, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice McNAMARA delivered the opinion of the court:

These three consolidated cases arose from an incident on February 20, 1994, in which water flooded the basement of the building located on the corner of Wells and Randolph Streets, known as 205 West Randolph Street in the City of Chicago (the building). The plaintiffs in all three actions allege that the city negligently maintained, inspected, or repaired an underground pipe near their property. The six-inch-diameter pipe in question, a dedicated hydrant lead, connected a fire hydrant adjacent to 205 West Randolph to an eight-inch-diameter water main running north and south under the west side of North Wells Street. Finding that the hydrant lead was "firefighting equipment or facilities" within the meaning of section 5-103(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)(745 ILCS 10/5-103(a)(1994)), the circuit court granted the city's motion to dismiss all three cases pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (1994)). Plaintiffs appeal. We reverse. The relevant facts are as follows.

The City of Chicago operates a water department which serves as the exclusive provider of water to all residential and commercial customers within the city. The water department installs, repairs, inspects, and maintains underground water pipes, including an eight-inch-diameter main on the west side of Wells Street running north and south in front of the building. From this eight-inch-diameter main three six-inch-diameter underground branch pipes extend toward the building. Two of the branch pipes provide water service to buildings at or near 205 West Randolph. The third branch pipe was about 10 feet long and connected to and provided water to a fire hydrant located on the sidewalk adjacent to the building. This pipe will be referred to by this court as a "hydrant lead." *fn1 The hydrant lead is dedicated, meaning that its sole function is to provide water to the hydrant.

Plaintiffs Independent Trust Corp. (ITC) and First Management Realty Corp. own and operate the building located at 205 West Randolph Street, Chicago, Illinois. Plaintiffs Pago Pago II, Inc. (Pago Pago), and Corporation Supply Company, Inc. (Corporation Supply), each operated a business in the building at the time of the incident.

On February 20, 1994, the water department received a call regarding a water leak at the building. The building's basement and sub-basement were flooded with in excess of 10 feet of water. Water department personnel responded to the scene, removed water from the building, and investigated the cause of the flooding. Water department employees excavated the area around the hydrant, exposing the hydrant base and the hydrant lead. The hydrant base was disconnected from the hydrant lead. Water department employees observed multiple hairline cracks in the hydrant lead. Based on the water department's investigation, these cracks in the hydrant lead caused the water damage. The hydrant itself was not damaged, defective, or in any way the cause of the water damage. Indeed, the hydrant was removed and later used elsewhere in the city. The hydrant lead was then plugged.

One fire department employee responded to the scene on a "non-emergency" call. The firefighter left the scene without taking any action because the care and maintenance of underground water pipes are not the responsibility of the fire department.

Lumbermens Mutual Casualty Company, as subrogee of Corporation Supply, filed case number 95 L 2221 against the city on February 14, 1995. ITC filed case number 95 L 2325 against the city on February 14, 1995. Pago Pago filed case number 95 L 2567 on February 17, 1995. All three plaintiffs alleged that the city negligently maintained, inspected, or repaired an underground pipe near the building.

The city answered all three complaints and pled as affirmative defenses the immunities conferred by sections 3-102 and 5-103(a) of the Tort Immunity Act (745 ILCS 10/3-102, 5-103(a) (1994)). The three cases were consolidated on October 4, 1995, upon motion of the city.

On January 30, 1996, the city filed a motion to dismiss the complaints pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (1994)). The city asserted that the plaintiffs' claims were barred by section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a) (1994)), which confers immunity for injuries "resulting from the condition of fire protection or firefighting equipment or facilities." Following a hearing on the motion, the circuit court found that the hydrant lead was firefighting equipment and therefore section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) immunized the city from plaintiffs' claims. The circuit court granted the city's motion and dismissed the cases with prejudice. Plaintiffs appeal.

On appeal plaintiffs contend that (1) the circuit court erred in dismissing the complaints because plaintiffs' complaints assert claims upon which relief can be granted, since municipal water providers are not covered under the Tort Immunity Act; (2) the circuit court erred in granting defendant's motion to dismiss because section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) does not encompass underground water mains; and (3) the water department is liable because section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) codifies the "no duty" rule.

When reviewing the dismissal of a complaint, the pertinent inquiry is whether the allegations, when viewed in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. Toombs v. City of Champaign, 245 Ill. App. 3d 580, 615 N.E.2d 50 (1993). Our review of the dismissal is de novo. Toombs, 245 Ill. App. 3d at 583.

Our supreme court abolished sovereign immunity in 1959 in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959). In response the legislature enacted the Tort Immunity Act in 1965. Barnett v. Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996). Under the Tort Immunity Act, governmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions on that liability. Barnett, 171 Ill. 2d at 386. Immunity, therefore, must be predicated upon a specific statutory enactment, and governmental units are immune only to the extent the General Assembly has provided such immunity. Barnett, 171 Ill. 2d at 386. The provisions of the Tort Immunity Act are in derogation of the common law and therefore must be strictly construed. Aikens v. Morris, 145 Ill. 2d 273, 583 N.E.2d 487 (1991).

We agree with plaintiffs that the Tort Immunity Act does not grant general immunity to municipal water providers. Therefore, as a general rule, municipal water providers are liable for their negligent conduct, unless their specific conduct is encompassed within a specific section of the Tort Immunity Act. Barnett, 171 Ill. 2d at 386.

The specific statutory enactment at issue in this case is section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994)), ...


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