Court of Appeals of Illinois, First District, Fourth Division
CHARLOTTE NICHOLS, RODGER BOLDEN, RAUL TENIENTE, CARMEN TENIENTE, JUANITA DIXON, MICHAEL FOSTER, LINCOLN HAMILTON, KAREN HAMILTON, MICHAEL IFLAND, SUSAN IFLAND and CAMILLE WILLIAMS, on Behalf of Themselves and on Behalf of All Others Similarly Situated, a Proposed Class Action, Plaintiffs-Appellants,
THE CITY OF CHICAGO HEIGHTS, Defendant-Appellee
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County, Illinois. No. 07CH3803. The Honorable Thomas Allen, Judge Presiding.
FOR APPELLANTS: William J. Sneckenberg, Sneckenberg, Thompson & Brody, LLP, Chicago, IL; David R. Dubin, Macuga, Liddle & Dubin, P.C., Detroit, MI.
FOR APPELLEE: Thomas G. Gardiner, Barry C. Owen, Kyle P. Carson, Gardiner Koch Weisberg & Wrona, Chicago, IL.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.
[¶1] Plaintiffs Charlotte Nichols, Rodger Bolden, Raul Teniente, Carmen Teniente, Juanita Dixon, Michael Foster, Lincoln Hamilton, Karen Hamilton, Michael Ifland, Susan Ifland, and Camille Williams are a group of individuals whose homes were damaged in flooding during a two-day rainstorm in April 2006. Heavy rainfall occurred on April 16-17, 2006 (the occurrence period) and sewer water containing pollutants, feces, dirt, debris, and other noxious matter from the sewerage system overflowed into plaintiffs' homes located in Chicago Heights. Plaintiffs brought suit against defendant City of Chicago Heights (the City), arguing that the City is responsible for the damage to their homes. Plaintiffs' second amended complaint asserted two claims against the City: (1) operational negligence; and (2) negligence under the doctrine of res ipsa loquitur. Following substantial hearings, discovery, depositions, and motions filed, the City filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)), arguing it was immune from suit under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201 (West 2008) (Tort Immunity Act). The City supported its motion in part with an affidavit by Michael A. Sabo. Plaintiffs filed a motion to strike the Sabo affidavit. After hearing arguments on the motions, the trial court denied the motion to strike the Sabo affidavit and granted summary judgment in favor of the City. Plaintiffs appeal the trial court's ruling that the City of Chicago Heights is immune from the claims of negligence related to the maintenance and operation of its sewer systems and its subsequent grant of summary judgment in favor of the City of Chicago Heights. Plaintiffs contend that summary judgment was granted in error because: (1) the City was not entitled to discretionary immunity where the plaintiffs' claims arose from the City's ministerial act of maintaining its sewer system, rather than from a discretionary act; and (2) there was sufficient evidence to establish genuine issues of material fact regarding plaintiffs' negligence claim under the theory of res ipsa loquitur. In addition, plaintiffs contend the trial court erred in denying their motion to strike the Sabo affidavit. For the following reasons, we affirm.
[¶2] I. BACKGROUND
[¶3] On April 16-17, 2006, a rainstorm hit
the Chicago area. Plaintiffs allege that their homes, all located in the City of Chicago Heights, flooded with raw sewage as a result of this rainfall. Following the rainfall, the basements of approximately 5% of Chicago Heights residents allegedly flooded.
[¶4] The City of Chicago Heights owns, maintains, and operates a separated sewer system in which storm water and sanitary wastewater travel in separate lines and to different end points.
[¶5] Plaintiffs filed their original complaint against Chicago Heights in February 2007, alleging negligence, trespass, and nuisance, and seeking class action certification as a result of the flooding. In April 2007, plaintiffs filed an amended complaint alleging various claims, including trespass, nuisance, res ipsa negligence, operational negligence, negligent design, and unconstitutional taking. Several of these claims were dismissed. In August 2008, plaintiffs filed their second amended complaint alleging claims for maintenance and operational negligence, as well as res ipsa loquitur negligence. This is the complaint at issue here.
[¶6] The record on appeal includes a September 13, 2005, letter written from Anthony DeLuca, mayor of the City of Chicago Heights, to James L. Daugherty, district manager of Thorn Creek Basin Sanitary District. The letter describes the efforts the City was making in ...