In Re Chicago Flood Litigation
223 Ill. Dec. 532, 680 N.E.2d 265, 176 Ill. 2d 179 (1997)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under the Illinois Tort Immunity Act, a local public entity's discretionary acts, including policy determinations and the failure to act, are immunized from liability for both negligence and willful and wanton misconduct. Separately, the economic loss doctrine bars tort recovery for solely financial losses not accompanied by personal injury or property damage.
Facts:
- The City of Chicago owned an old underground freight tunnel system located beneath its central business district and the Chicago River.
- The City leased portions of the tunnel system to various utility and telecommunication companies.
- In May 1991, the City contracted with Great Lakes Dredge and Dock Company (Great Lakes) to remove and replace wood pilings at several river bridges, including the Kinzie Street bridge.
- The contract warned Great Lakes that even slight changes in piling location could cause serious damage to underground structures.
- By September 1991, Great Lakes had installed pilings at the Kinzie Street bridge in a location different than specified, causing a breach in the adjacent underground tunnel wall.
- In January 1992, a television crew discovered the breach and notified the City of the damage by February 1992.
- During March and early April 1992, City employees inspected the damaged tunnel, photographed it, and recommended immediate repairs.
- On April 13, 1992, the tunnel wall gave way, allowing the Chicago River to flood the tunnel system and numerous connected buildings, causing extensive property damage and economic disruption.
Procedural Posture:
- Numerous individuals and businesses (class plaintiffs), along with insurer ITT Hartford, sued the City of Chicago and Great Lakes Dredge & Dock Company in the circuit court of Cook County for damages from the flood.
- The trial court granted in part and denied in part the defendants' motions to dismiss the various claims.
- The trial court ruled that the Moorman economic loss doctrine barred claims from plaintiffs who alleged only financial losses without property damage.
- The trial court certified several questions for interlocutory appeal to the Illinois Appellate Court, an intermediate appellate court.
- The appellate court consolidated the appeals and affirmed most of the trial court's rulings, but reversed the trial court on one key issue, holding that Section 2-201 of the Tort Immunity Act does immunize willful and wanton misconduct.
- The class plaintiffs and Hartford (as appellants) petitioned the Illinois Supreme Court for leave to appeal, and the City (as appellee) cross-appealed from the appellate court's decision.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Illinois Tort Immunity Act immunize a city from liability for injuries arising from its discretionary failure to repair a known dangerous condition or warn the public, even if its conduct is willful and wanton?
Opinions:
Majority - Justice Freeman
Yes, the Illinois Tort Immunity Act immunizes a city from liability for its discretionary acts, including its failure to repair or warn. Section 2-201 of the Act provides broad immunity for injuries resulting from an employee's act or omission in determining policy or exercising discretion. The court reasoned that the common law governmental/proprietary function distinction was abolished by the Tort Immunity Act, so the Act applies regardless of the nature of the City's activity. The court found that decisions about how and when to repair the tunnel and whether to warn the public were discretionary policy determinations, not ministerial tasks, because there was no prescribed method for carrying them out. Crucially, the court held that Section 2-201 does not contain an exception for willful and wanton misconduct. Because other sections of the Act explicitly include such exceptions, the legislature's omission in Section 2-201 was intentional, meaning the immunity covers both negligence and willful/wanton conduct.
Concurring-in-part-and-dissenting-in-part - Justice McMorrow
No, the Illinois Tort Immunity Act should not immunize the City for its willful and wanton misconduct or its failure to repair a known danger. The dissent argues that the majority errs by holding that Section 2-201 protects willful and wanton conduct, asserting that historical precedent, such as City of Chicago v. Seben, requires 'good faith' for discretionary immunity to apply, which is incompatible with willful and wanton misconduct. Furthermore, the dissent contends that once the City knew of the dangerous tunnel breach, the duty to repair or warn was no longer a discretionary policy choice but became a ministerial duty. Citing Seben again, the dissent notes that while adopting a plan is discretionary, 'the keeping of them in repair' is a ministerial duty for which a municipality is liable.
Analysis:
This decision significantly expands the scope of municipal tort immunity in Illinois by establishing that the discretionary function immunity under Section 2-201 is absolute, shielding even willful and wanton conduct. By classifying the City's failure to act on a known, serious danger as a protected discretionary choice, the court makes it substantially more difficult for plaintiffs to hold government entities liable for policy-level negligence or inaction. The ruling forces future litigants to prove that a government actor violated a specific, mandated, and non-discretionary (ministerial) duty. The case also solidifies the application of the economic loss rule in mass tort scenarios, preventing recovery for businesses that suffered purely financial harm without direct physical property damage.
