The opinion of the court was delivered by: Justice Kilbride
Docket No. 90541-Agenda 31-May 2001.
The plaintiffs, William and Patricia Van Meter, filed a complaint against the Darien Park District, the City of Darien, the Village of Downers Grove, the County of Du Page, and five private defendants, alleging that surface water flooded their home upon completion of an adjacent municipal recreation area called Westwood Park (the park). The municipal defendants filed motions to dismiss, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)), alleging that they were entitled to discretionary immunity under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/2-201 (West 1994)). The Du Page County circuit court granted the municipal defendants' motions to dismiss, and the appellate court affirmed. No. 2-99-0009 (unpublished order under Supreme Court Rule 23). We granted the plaintiffs' petition for leave to appeal (177 Ill. 2d R. 315) and now reverse.
The plaintiffs' 20-count complaint alleged negligence, res ipsa loquitur, and trespass and unlawful taking claims against the municipal defendants. In their complaint, the plaintiffs alleged that they own a single-family residence in Darien. According to the plaintiffs, the defendants started designing and planning the park on property between Darien and Downers Grove in March 1992. Together with engineers and architects, the defendants produced a "Landscape Development Plan,"depicting drainage of surface and subsurface water, as well as changes in the elevation of the property affecting the natural flow of water. The Darien Park District approved the plan in conjunction with requirements imposed by the City of Darien, the Village of Downers Grove and Du Page County. Pursuant to the plan, the defendants, through their contractors, constructed a storm water drainage and detention system to restrict water from the environs of the park development and to prevent water from flowing in its natural course.
The plaintiffs alleged that the defendants owed "a duty to the Plaintiffs to provide adequate drainage for the passage of water from and/or around Plaintiffs' property and not to alter the natural flow of water so as to cause water to back-up and flood Plaintiffs' real estate and residence." The plaintiffs further alleged that the defendants knew or should have known, when they approved the park plans, that the alterations in the natural flow of water would cause flooding problems for neighboring residents. According to the plaintiffs, the defendants breached this duty by failing to design, plan, supervise, observe, or manage properly the construction of Westwood Park. The plaintiffs specified several defects in the park construction, including an insufficient storm water drainage system that (1) alters the groundwater elevation; (2) restricts the natural flow of water; and (3) diverts water from adjoining property onto the plaintiffs' property.
The plaintiffs charged that the defendants negligently caused flooding on the plaintiffs' property and that the defendants negligently failed to correct the defects in the park design and construction "after being placed on notice that the use of those public improvements have [sic] created conditions that are not reasonably safe." The plaintiffs asserted that, before 1996, the year the project was completed, they suffered no flooding. In their trespass/unlawful taking counts, the plaintiffs alleged that the park construction has caused and still causes flooding on their property. This "continuing trespass," a purported "constant diversion" of water, has robbed them of the "peaceable enjoyment, occupation, possession, and use of their residence" and lowered the value of their property.
The defendants each filed motions to dismiss, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1994)), asserting that plaintiffs' claims were barred by defendants' affirmative defense of immunity under section 2-201 of the Act (745 ILCS 10/2-201 (West 1994)). On September 17, 1998, the trial court dismissed the plaintiffs' claims against the Darien Park District, Darien, and Downers Grove under section 2-201 of the Act, providing governmental entities with immunity from liability for acts or omissions arising from a determination of policy and an exercise of discretion. 745 ILCS 10/2-201 (West 1994); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). On December 3, 1998, the trial court denied the plaintiffs' motion to reconsider, stating:
"[W]hat could be more discretionary than trying to decide how
the landscape is going to be reconfigured to accommodate this park
that they wanted to put here? I mean, that's almost discretionary
by definition, isn't it?
You have to decide how you're going to change the landscape. You
have to decide how you're going to reconfigure the surface flow of
water because the park doesn't do any good if it's under water.
And so everybody sits around the table and decides how are we
going to do this and what's our best judgment as to how we should
design this so it does a minimum amount of damage to the
surrounding properties and redirects the surface flow of the
waters, so that we can build this park here.
What's more discretionary than that? If I apply the ad hoc test
to these facts, how do I not conclude that the design of this park
was a discretionary function?
I think that even taking the facts as alleged in the plaintiff's
[sic] complaint as true and indulging all reasonable inferences
therefrom in favor of the plaintiff, that my conclusion to be
drawn from those facts is that this is a discretionary function on
behalf of the municipalities which, in fact, immunizes them
therefore under 2-201."
Because other counts remained pending against the private defendants, the trial court found that its dismissal was final as to the Darien Park District, Darien, and Downers Grove and that there was no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)). On January 21, 1999, the court dismissed the plaintiffs' claims against Du Page County under section 2-201. This order also contained Rule 304(a) language.
The appellate court affirmed the trial court's dismissals, holding that the defendants enjoyed immunity under section 2-201. The appellate court stated in pertinent part as follows:
"Defendants, through their employees, used their skill,
judgment, and ultimately their discretion to consider the design
of the park, its landscaping, and the type of construction.
Employees of the defendants, in each of their respective municipal
capacities, balanced competing interests when determining whether
and how the flow of water should be directed and restricted.
The Act provides for immunity of public entities, such as
defendants, which, through their employees, exercised their
judgment and discretion when they determined how to design, plan,
supervise, observe, or manage the construction of Westwood Park.
Therefore, to the extent any adoption of a plan or design of the
construction of Westwood Park by defendants caused plaintiffs'
damages, the Act precludes recovery from defendants." No.
2-99-0009 (unpublished order under Supreme Court Rule 23).
We allowed plaintiff's petition for leave to appeal. 177 Ill. 2d R. 315. Before this court, plaintiffs argue that the trial and appellate courts misapplied section 2-201 of the Act. For the reasons that follow, we agree and reverse.
In the matter before us, the parties dispute whether the circuit court properly granted defendants' section 2-619(a)(9) motions to dismiss plaintiffs' complaint on the basis that section 2-201 of the Tort Immunity Act completely immunized defendants from liability for the acts and omissions stated in plaintiffs' complaint. According to plaintiffs, the circuit court improperly dismissed their complaint because defendants did not establish that their alleged actions were "discretionary" within the meaning of section 2-201. Defendants counter that the circuit court properly dismissed plaintiffs' complaint under section 2-619(a)(9) because, despite their duty not to alter the natural flow of water on another's land, they are entitled to absolute immunity regarding all of their decisions with respect to the planning and construction of Westwood Park because all decisions involved the exercise of discretion. Accordingly, defendants argue, their actions fall squarely within the purview of the immunity provided under section 2-201 of the Act. We disagree. For the reasons discussed below, we hold that the circuit court improperly dismissed plaintiffs' claims as to these municipal defendants.
The purpose of a section 2-619 motion to dismiss is to dispose of issues of law and easily proved issues of fact at the outset of litigation. Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). Specifically, section 2-619(a)(9) of the Code of Civil Procedure permits involuntary dismissal where "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1998). An " `affirmative matter,' in a section 2-619(a)(9) motion, is something in the nature of a defense which negates the cause of action completely ***." Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486 (1994). The moving party thus admits the legal sufficiency of the complaint, but asserts an affirmative defense or other matter to defeat the plaintiff's claim. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993). Immunity under the Act is an affirmative matter properly raised in a section 2-619(a)(9) motion to dismiss. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). When a court rules on a section 2-619 motion to dismiss, it "must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party." In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997). Our review of a section 2-619 dismissal is de novo. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997).
In 1959, this court abolished sovereign immunity from tort claims for municipalities. Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). In 1965, the General Assembly responded by enacting the Local Governmental and Governmental Employees Tort Immunity Act. Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43 (1998). The 1970 Illinois Constitution validated both Molitor and the Act. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 344 (1998); see Ill. Const. 1970, art. XIII, §4 ("Except as the General Assembly may provide by law, sovereign immunity in this State is abolished"); see also Comment, Illinois Tort Claims Act: A New Approach to Municipal Tort Immunity in Illinois, 61 Nw. U. L. Rev. 265 (1966).
The Act serves to protect local public entities and public employees from liability arising from the operation of government. 745 ILCS 10/1-101.1(a) (West 1998); see Epstein, 178 Ill. 2d at 375. *fn1 By providing immunity, the General Assembly sought to prevent the dissipation of public funds on damage awards in tort cases. See Bubb, 167 Ill. 2d at 378. The Act does not create new duties; rather, it " `merely codifies those duties existing at common law[ ] to which the subsequently delineated immunities apply.' " Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001), quoting Barnett v. Zion Park District, 171 Ill. 2d 378, 386 (1996). Since the Act was enacted in derogation of the common law, it must be strictly construed. Snyder v. Curran Township, 167 Ill. 2d 466, 477 (1995). Unless an immunity provision applies, municipalities are liable in tort to the same extent as private parties. See Barnett, 171 Ill. 2d at 386.
In the matter at bar, plaintiffs, in their amended complaint, allege substantially identical conduct on the part of each municipal defendant relating to the defendants' involvement in the planning and development of Westwood Park. With respect to each defendant, plaintiffs assert that the defendants "breached their duty to the plaintiffs by causing or allowing a change in the natural groundwater elevation and flow of groundwater to occur resulting in water from adjoining lands to gather on plaintiffs' property and the flooding of plaintiffs' real estate and residence." At common law, a landowner bears a duty not to increase the natural flow of surface water onto the property of an adjacent landowner. See Templeton v. Huss, 57 Ill. 2d 134, 141 (1974); Daum v. Cooper, 208 Ill. 391, 397-98 (1904); see generally 36 Ill. L. & Prac. §3, at 53 (1958) ("an upper landowner has no legal right to collect and discharge on to a servient estate any surface water which would not naturally flow in the direction of the servient estate"); 36 Ill. L. & Prac. §6, at 55-56 (1958) (stating that "[a] landowner may maintain an action to recover the damages suffered by him where another landowner improperly drains surface water onto his land. *** An action in chancery will also lie to enjoin a property owner from improperly draining surface waters onto another's land to the injury of the latter"). This common law duty applies equally to private and public landowners. Accordingly, a local public entity bears a common law duty not to increase the natural flow of surface water onto the property of an adjacent landowner.
Our inquiry, however, is not concluded. After determining that a duty exists, we must next address whether provisions of the Tort Immunity Act immunize the municipal defendants in the matter at bar from liability for alleged breaches of this duty. As stated, the Tort Immunity Act adopted the general principle that " `local governmental units are liable in tort but limited this [liability] with an extensive list of immunities based on specific government functions.' " Zimmerman, 183 Ill. 2d at 43, quoting Burdinie, 139 Ill. 2d at 506. Moreover, "the existence of a duty and the existence of an immunity are separate issues." Barnett, 171 Ill. 2d at 388. The question thus becomes whether the Act insulates the defendants from the plaintiffs' viable common law tort claims. See Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 490 (2001) ("to determine whether [an] entity is liable for the breach of a duty, we look to the Tort Immunity Act, not the common law"). Because the immunities afforded to governmental entities operate as an affirmative defense, those entities bear the burden of properly raising and proving their immunity under the Act. It is only when the governmental entities have met this burden that a plaintiff's right to recovery is barred. Zimmerman, 183 Ill. 2d at 44; Bubb, 167 Ill. 2d at 378.
The trial and appellate courts held that defendants here met that burden, finding that section 2-201 provides immunity in this case. Section 2-201 extends the most significant protection afforded to public employees under the Act. D. Baum, Tort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act, 1966 U. Ill. L.F. 981, 994. According to section 2-201:
"Except as otherwise provided by Statute, a public employee
serving in a position involving the determination of policy or the
exercise of discretion is not liable for an injury resulting from
his act or omission in determining policy when acting in the
exercise of such discretion even though abused." 745 ILCS 10/2-201
We first extensively discussed the scope of section 2-201 immunity in Snyder v. Curran Township, 167 Ill. 2d 466 (1995). In Snyder, the plaintiff lost control of her van when she encountered a sharp turn at the top of a hill on a rural road. The plaintiff sued Curran Township for its negligent failure to place a warning sign before the curve in conformity with the Illinois Vehicle Code, and the township claimed immunity under section 2-201. On appeal from a jury verdict in favor of the ...