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Illinois Bell Telephone Co. v. Lake County Grading Co. of Libertyville

May 01, 2000

ILLINOIS BELL TELEPHONE COMPANY, D/B/A AMERITECH ILLINOIS,
PLAINTIFF-APPELLANT,
V.
LAKE COUNTY GRADING COMPANY OF LIBERTYVILLE, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 98--CH--139 Honorable Haskell M. Pitluck, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

Plaintiff, Illinois Bell Telephone Company, d/b/a Ameritech Illinois, appeals from the judgment of the circuit court of McHenry County dismissing count I of its second amended complaint for injunctive relief brought against defendant, Lake County Grading Company of Libertyville, Inc. Pursuant to section 13 of the Illinois Underground Utility Facilities Damage Prevention Act (220 ILCS 50/13 (West 1996)), plaintiff had sought a preliminary and permanent injunction requiring defendant to modify its work practices.

Count I of plaintiff's second amended complaint alleged as follows. Plaintiff, an Illinois telecommunications carrier engaged in providing telecommunications services in McHenry County and other parts of the state, provides services that are essential to the health, welfare, and economic well-being of its customers in the communities it serves. In doing so, plaintiff relies heavily upon underground distribution facilities located in public rights-of-way, dedicated easements, or private property pursuant to permission. When such facilities are cut, damaged, or destroyed by those engaged in excavation or demolition activities, "vital public services are disrupted and public safety may be impaired until emergency and permanent repairs can be made." Defendant is engaged in excavation and underground construction.

To prevent damage to underground utility, telecommunications, and cable TV facilities, the legislature enacted the Underground Utility Facilities Damage Prevention Act (Act). The Act established the respective legal duties, responsibilities, and liabilities of public utilities, telecommunication carriers, and cable TV companies (underground utility facilities), on the one hand, and excavators and contractors, on the other hand. Pursuant to section 4 of the Act (220 ILCS 50/4 (West 1996)), the duties and responsibilities of any person engaged in excavation or demolition were to take reasonable actions to identify the exact location of underground utility facilities by hand digging or other means; to plan the excavation or demolition so as to avoid damaging such facilities; to call the "State-Wide One-Call Notice System" not less than 48 hours or more than 14 days before commencing work so as to allow the underground utility facilities to mark the approximate locations of such facilities; to provide support for the underground utility facilities during the excavation or demolition; and to properly backfill its excavation with such materials as are necessary to avoid damage to the underground utility facilities.

Plaintiff alleged that on 21 separate occasions over the past 4 years defendant had violated its duties under the Act by engaging in "a pattern of careless and negligent conduct," which had resulted in damage to plaintiff's underground utility facilities and in the interruption of telecommunications services to the public. Plaintiff listed the specific occasions on which defendant had damaged its underground utility facilities. Plaintiff provided the date and location of the damage, the type of damage to the facility, the manner in which the damage occurred, the statutory violation committed by defendant's conduct, and the cost of repairing the damage. Plaintiff alleged that, unless defendant was enjoined pursuant to section 13 of the Act, a continuing likelihood existed that defendant would damage plaintiff's underground utility facilities in the course of its ongoing excavation and underground construction activities in "McHenry County and surrounding counties." Plaintiff further alleged that recurrent damage to its facilities inconvenienced the public by interrupting telephone service, potentially impaired E-9-1-1 and other emergency and alarm services, disrupted economic activity, impaired plaintiff's reputation for reliable service, and caused economic harm to plaintiff through immeasurable lost revenues from failed telecommunications. According to plaintiff, although the repair costs for the facilities damaged by defendant had been paid or compromised, except as noted in counts II through X of the complaint, liability for plaintiff's damages had proved to be an insufficient deterrent to defendant's careless and negligent conduct.

Under section 13 of the Act plaintiff sought relief in the form of a preliminary and permanent injunction requiring defendant to modify its work practices so as to bring it into compliance with the requirements of the Act. In particular, plaintiff asked that defendant be compelled to (a) refrain from excavating with a backhoe, bulldozer, grader, jackhammer, auger, directional bore, or similar equipment within 18 inches of plaintiff's underground utility facilities; (b) expose, by hand digging or the use of compressed air agitator and vacuum technology, and protect plaintiff's underground utility facilities located within 18 inches of defendant's excavation or underground construction activities; (c) provide vertical and lateral support, when needed, to those underground utility facilities exposed during and after defendant's excavation and underground construction activities; (d) backfill all excavations in a manner that will protect and support plaintiff's underground utility facilities; and (e) notify plaintiff within one hour of any damage by defendant's work to plaintiff's underground utility facilities.

Pursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 1998)), defendant filed a motion to dismiss count I of plaintiff's second amended complaint. Defendant asserted that plaintiff's allegations were insufficient to support the relief requested because the Act specifically provided for the award of monetary damages and fines as a remedy for any damage to plaintiff's underground utility facilities resulting from ongoing excavation. Additionally, defendant maintained that section 13 of the Act did not provide for ongoing injunctive relief but was intended to apply to "specific, identified sites."

Defendant also asserted that plaintiff had made no showing that the public safety or preservation of uninterrupted necessary utility services was endangered by any "prospective" act by defendant or that defendant was proposing to engage in specific excavation in a negligent or unsafe manner that would result in damage to plaintiff's underground utility facilities. Additionally, defendant asserted that the fact that plaintiff's facilities had been damaged 21 times over 4 years was not per se evidence that defendant's excavation work was or would be performed in a negligent or unsafe manner. Also, defendant maintained that plaintiff had not set forth facts disclosing that defendant had failed to perform in the manner plaintiff was asking the court to compel defendant to perform.

Defendant asserted further that for the court to grant injunctive relief it would have to assume that on every job defendant would excavate in a negligent or unsafe manner, that there would be damage to plaintiff's facilities, that the damage would be the result of defendant's negligent and unsafe excavation and not from any incorrect information provided by plaintiff or from some unrelated cause, that public safety or the preservation of uninterrupted necessary utility services would be endangered by defendant's conduct, and that defendant was proposing to use excavation procedures that were likely to damage plaintiff's underground utility facilities.

Plaintiff filed a response to defendant's motion to dismiss alleging that count I of plaintiff's second amended complaint pleaded the specific elements of a cause of action for injunctive relief under section 13 of the Act. Plaintiff alleged further that, although the Act contained a provision that provided money damages to plaintiff for damage to its facilities, it was the injury to the public and not the damage to plaintiff that supported the grant of injunctive relief under section 13.

Plaintiff also maintained that injunctive relief under section 13 was not limited to specific, identified jobsites and that such a conclusion was nonsensical because it would effectively "gut" section 13 and defeat its remedial purpose. According to plaintiff, it had no advance knowledge of where defendant planned to perform work or what equipment or work practices it intended to employ. Furthermore, section 13 required plaintiff to allege only that defendant's conduct "is likely to result" in damage to plaintiff's underground utility facilities.

Without setting forth any basis for its ruling, the trial court dismissed count I of plaintiff's second amended complaint. This appeal ensued.

A trial court should not dismiss a complaint under section 2-615 unless it clearly appears that plaintiff can prove no set of facts under the pleadings which would entitle it to the relief sought. Green v. Chicago Tribune Co., 286 Ill. App. 3d 1, 4-5 (1996). In reviewing the trial court's order on a motion to dismiss, this court applies a de novo standard of review. In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997).

On appeal, plaintiff contends that, pursuant to section 13 of the Act, it set forth a cause of action for injunctive relief and, therefore, the trial court should not have dismissed count I of its complaint. Preliminarily, we note that where a statute expressly authorizes injunctive relief, a plaintiff need only show defendant's violation of the Act and that plaintiff has standing to pursue the cause. People v. Fiorini, 143 Ill. 2d 318, 346 (1991); People v. Staunton Landfill, Inc., 245 Ill. App. 3d 757, 768 (1993). The general rules of equity requiring a showing of ...


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