When it rains, it shouldn't pour on municipalities — if they are careful.

1. when it rains,
it shouldn’t pour on Municipalities
(if they are careful)
By: Thomas G. Gardiner
Gardiner Koch Weisberg & Wrona
Chicago - Naperville - Lake Geneva

2. THOMAS G. GARDINER is a partner of the law firm of Gardiner Koch
Weisberg & Wrona. He has thirty-four years of experience practicing in
both federal and state courts in Illinois and elsewhere. Tom has
represented municipalities in cases involving civil rights, wrongful
conviction, TIF issues, annexation disputes, business development
disputes, zoning matters, class action claims, personal injury, wrongful
death, premises liability, contract disputes, and employment matters.
His experience includes many cases in which the claims involve
millions of dollars. Tom graduated from University of Illinois with
highest honors in finance. He graduated from Northwestern University
School of Law, where he served as Editor-in-Chief of a law review.
Before starting Gardiner Koch Weisberg & Wrona he clerked for Judge
John Grady at the District Court for the Northern District of Illinois,
worked as a supervisor of trial lawyers at the Cook County State’s
Attorney Office, and worked at large law firms.

5. WERE WE RUNNING UP HILL AGAINST
THE WIND?
• Trtanj v. Granite City, 5th District, 2008
-Violation of the IEPA Regulations
-Failure to hook up a pump = Liability
• Gutstein v. Evanston, 1st District, 2010
-No Immunity
-Homeowner fell in unimproved alley
-Policy decisions made by Public Officials, Not Public
Works Supervisor
• Hanley v. City of Chicago, 1st District, 2003
-No Immunity
-Elected Officials made policy decisions
-Supervisors implemented

6. Anatomy of Victory:
Nichols v. Chicago Heights
Plaintiff
Planned Class Action
5% of Homeowners
Claims for Millions of $$$$$
Claims
Negligence in Operations and Res Ipsa Loquitur
Chicago Heights in violation of Local Sanitary District requirements at the time
of flooding
Discovery/ Documents

7. Victory for the Defense
• No Trial
• No Class Certification
• Motion for Summary Judgment brought prior to class certification
• Immunity for Discretionary Decisions
– Maintenance, Repair, Operation of Sewer System
• Letter from the Mayor
• Plan in Place
• Engineer’s Input
– Donovan v County of Lake , 2nd District, 2011 (failure to chlorinate drinking water)
• Compliance with the IEPA
– Regulations are not mandatory
– Municipality must determine means and methods to address problems.
• Res IPSA Defeated
– No exclusive control of system

21. Trial Court Decision
• ¶ 19 After hearing arguments, the trial court granted the City’s motion for summary
judgment, specifically ruling that plaintiffs’ claims were barred by discretionary
immunity, and finding the City was making decisions based upon what it could
afford. The court stated:
THE COURT :*** [T]he was that I see this, it is discretion that these people
don’t hire ten guys to go clean the sewers once a month and it is discretion that
they don’t take out a $10 million loan and redo all the sewer lines and it is
discretion also that they don’t hire an outside contractor to go through with
vactortrucks and clean every manhole and every sewer.”

22. ¶27 Section 2-201 of the Act Provides that “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 (West 2008); In re Chicago Flood Litigation, 176 Ill. 2d 179, 193-94
(1997). Our supreme court has defined the terms “discretionary” and “ministerial” as follows:
“[D]iscretionary acts are those which are unique to a
particular public office, while ministerial acts are
those which a person performs on a given state of
facts in a prescribed manner, in obedience to the

23. • ¶31 Whether a municipality engages in a
program of public improvement is a
discretionary matter, but the manner in which the
municipality implements the program is
ministerial.

24. • ¶37 All of this supports our conclusion that the City was acting in its discretionary capacity, that is,
acting in a manner requiring deliberation and the exercise of judgment, rather than merely executing a set
task.
• ¶ 38 Moreover, the mayor’s September 2005 letter describing how, “[a]fter the compliance schedule
is agreed upon we subdivide the plans to meet the financial constraints of the yearly budget” shows the
mayor and the city council were trying to stretch the City’s dollars and use the City’s resources to fix the
problem, recognizing the problem existed and attempting to find a solution within its budgetary
constraints. That fits precisely within the definition of a policy determination under the Tort Immunity
Act, that is, “those decisions which require the municipality to balance competing interests and to make a
judgment call as to what solution will best serve each of those interest.”
• ¶39 Again, this letter, dated just weeks before the rainstorm as issue here, demonstrates that the
mayor and the City were balancing competing interests and making continued and ongoing judgment
calls as to what set of action would best serve those competing interests.

25. Donovan Decision
Donovan, 2011 IL App (2d) 100390, ¶59.
“Here, although the County may have been legally mandated
to chlorinate the water and to provide safe drinking water, our
focus is on the manner in which the County carried out, or
failed to carry out, those duties. For example, as to the
plaintiffs’ factual allegations relating to three IEPA reports of
coliform violations between 2000 and 2005, each required the
County to decide the appropriate means and method to repair
the violation, i.e., whether to install chlorination facilities on
the existing site or to completely rebuild the water system, as
well as how to fund the repair.

26. • ¶41 We understand plaintiffs’ frustration that their homes
were flooded with waste and we, like the trial court below,
recognize that this flooding may have been avoided had the
City’s sewers been better maintained. However, a
municipality must function while balancing many interests,
including a limited budget. Here, the City had a plan and
was moving forward on that plan, balancing, as a
municipality must, many interests. Even if its conduct were
negligent, we would still find that it was immune from suit
under section2-201.

27. Take Away
• Document Discretion in implementing policy
• Document Financial Choices
• Document Prioritization of Projects
• Document Discretionary Reasons
• Coordination: Elected Officials; Public Works/ Wastewater
committees; Budget; Implementation

28. Your Shawshank Redemption ?

29. LEAD IN THE WATER
WHAT’S A TOWN TO DO ?

30. Flint, Michigan

31. Flint, MI

33. Crestwood, IL

34. Crestwood, Illinois

35. NEW CASE
DEVYN CORP. v. CITY OF BLOOMINGTON
ONE MORE ECONOMIC TOOL

39. NEW CASES

40. Coleman v. East Joliet Fire Protection District, 2016 IL 117952
MARCUS COLEMAN, as Successor Adm’r of the Estate of Coretta Coleman, Deceased,
Appellant, v. EAST JOLIET FIRE PROTECTION DISTRICT et al., Appellees.
Docket No. 117952
¶1 The common-law “public duty rule” provides that a local governmental entity and its
employees owe no duty of care to individual members of the general public to provide
governmental services such as police and fire protection services.
¶2 A wrongful death and survival action was filed on behalf of the estate of Coretta Coleman
against defendants, East Joliet Fire Protection District and its ambulance crew,
¶11 …The ambulance crew arrived at the house at 6:51 p.m., 41 minutes after Coretta made the
initial 911 call.
¶37 “the courts of this State have held as a matter of common law that municipalities are generally
not liable for failure to supply police or fire protection [citation], nor are they liable for injuries
negligently caused by police officers or fire fighters while performing their official duties
[citation]. An exception to these rules has been recognized where the municipality owes the
injured party a special duty that is different from its duty to the general public.” Leone, 156 Ill.2d
at 37.

41. ¶38 The long-standing public duty rule “is grounded in the principle that the duty of the
governmental entity to ‘preserve the well-being of the community is owed to the public at large
rather than to specific members of the community.’” Zimmerman, 183 Ill.2d at 31 (quoting
Schaffrath v. Village of Buffalo Grove, 160 Ill. App. 3d 99, 1003 (1987)).
¶54 We believe that departing from stare decisis and abandoning the public duty rule and its
special duty exception is justified for three reasons: (1) the jurisprudence has been muddles and
inconsistent in the recognition and application of the public duty rule and its special duty
exception; (2) application of the public duty rule is incompatible with the legislature’s grant of
limited immunity in cases of willful and wanton misconduct; and (3) determination of public
policy is primarily a legislative function and the legislature’s enactment of statutory immunities
has rendered the public duty rule obsolete.
¶61… Accordingly, we hereby abolish the public duty rule and its special duty exception.
Therefore, in cases where the legislature has not provided immunity for certain governmental
activities, traditional tort principles apply. Obviously, if the legislature determines that the public
policy requires it, it may codify the public duty rule, but we defer to the legislature in determining
public policy.

42. UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Melisa Mays, individually and as next friend of three
minor children, Michael Mays, Jacqueline Pemberton,
Keith John Pemberton, Elnora Carthan, and Rhonda Kelso, CLASS ACTION
individually and as next friend of one minor child,
all on behalf of themselves and a class of all others similarly situated,
Plaintiffs, Case No. 15- vs.
Hon.
Governor Rick Snyder, in his official capacity, and the
State of Michigan for prospective relief only; Daniel
Wyant, Liane Shekter Smith, Adam Rosenthal, Stephen
Busch, Patrick Cook, Michael Prysby, Bradley Wurfel all
in their individual capacities; Darnell Earley, Gerald
Ambrose, Dayne Walling, Howard Croft, Michael
Glasgow and Daugherty Johnson in their individual and
official capacities, and the City of Flint, a municipal corporation, jointly and severally,
Defendants.
__________________________________________________________________________________________
William Goodman P14173 Trachelle C. Young P63330 Michael L. Pitt P24429
Julie H. Hurwitz P34720 Trachelle C Young & Associates Cary S. McGehee P42318
Goodman & Hurwitz, PC PLLC Beth M. Rivers P36614
1394 E. Jefferson Ave. Detroit, MI 48207 2501 N Saginaw St Pitt McGehee Palmer & Rivers, PC
313-567-6170 Flint, MI 48505-4443 117 W. Fourth Street, Suite 200
bgoodman@goodmanhurwitz.com 810-239-6302 Royal Oak, MI 48067
jhurwitz@goodmanhurwitz.com trachelleyoung@gmail.com 248-398-9800

43. ¶ 76. At this time, public interest groups investigating the
growing crisis noted that Flint did not have records of which used
had or did not have lead service pipes or plumbing. Flint was
required by Federal law to maintain these records so that Flint
and the MDEQ could alter those users who were most at risk and
that proper testing could be carried out. The absence of these
required records was increasing the risk of harm to many Flint
water users.

44. 2016 IL 119861
IN THE SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 119861)
JENICE HAMPTON et al., Appellees, v. METROPOLITAN WATER
RECLAMATION DISTRICT OF GREATER CHICAGO, Appellant.
Opinion filed July 8, 2016.
CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Thomas, Karmeier, and Theis
concurred in the judgment and opinion. Justice Burke specially concurred, with opinion, joined by Justices Freeman and
Kilbride.
OPINION
Plaintiffs, a class of property owners, filed complaints against the Metropolitan Water
Reclamation District of Greater Chicago (the District), based on allegations of flooding on their properties
following a rainstorm. The circuit court consolidated the complaints. Plaintiffs assert that the District caused
the flooding by diverting stormwater into nearby creeks. Plaintiffs claim that the flooding constitutes a taking
for which they are entitled to just compensation under the Illinois takings clause. The District moved to
dismiss the consolidated complaint based on this court’s decision in People ex rel. Pratt v. Rosenfield, 399
ILL. 247 (1948). The District contends that, based on Pratt, a temporary flooding can never constitute a
taking under the Illinois Constitution. More recently, however, the United States Supreme Court concluded
that temporary flooding can constitute a taking under the federal constitution. Arkansas Game & Fish
Comm’n v. United States, 568 U.S. ___, 133 S. Ct. 511 (2012). The Cook County circuit court denied the
Districts motion to dismiss the Illinois taking clause claim and certified the following question pursuant to
Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010): “Does Arkansas Game and Fish Commission v. U.S.[,]
133 S. Ct. 511 (2012), overrule the Illinois Supreme Court’s holding in People ex rel. Pratt v. Rosenfield, 399
Ill. 247 (1948)[,] that temporary flooding is not a taking?”

45. • In asserting their claim of violation of the Takings Clause, plaintiffs allege that their
homes, personal belongings, basements, and other private property were damaged or
destroyed as a result of the flooding. Plaintiffs also allege that members of the class were
deprived of the use of their homes because of the backup from the public sewers and the
overtopping of the creeks. Plaintiffs’ complaint does not further explain how the
flooding deprived members of the use of their homes, the extent of the damage, how
long the properties remained flooded, or whether the damage caused by the flooding had
been or could be repaired.
• In Pratt, the plaintiffs alleged that their properties were damaged when an old viaduct
was removed and replaced. 399 Ill. at 248. In replacing the viaduct, the grade of the
street bordering the plaintiffs’ properties was changed. Id. at 249. The plaintiffs alleged
that, as a result, surface water ran into their buildings, requiring them to change the floor
levels in order to continue using the building. Id. The plaintiffs filed a petition for a write
of mandamus requiring the city an related agencies and officials to file a petition to
determine damages. Id. The defendants refused to pay the damages or institute eminent
domain proceedings. Id. The supreme court noted that “[i]t [was] not alleged that the []
waters accumulate and remain on the premises and thereby prevent the use thereof,” and
that the “[r]unning surface waters are not constantly present but are temporary and come
as a result of rain or snow.” Id. at 251. Based on these findings, the court concluded that
“[t]he allegations [were] not sufficient to indicate a physical invasion *** and there
[was] no showing that any property was actually taken in connection with the
improvement.” Id. at 252. Therefore, the court affirmed the circuit court’s dismissal of
the petition for a writ of mandamus. Id.

46. • In particular, the Pratt court’s focus on the issue of whether the damage “prevent[ed] the
use” of the property indicates that damage that does prevent the use of property may
constitute a taking. Id. 251.
• Consistent with this conclusion, the United State Supreme Court in Arkansas Game &
Fish Comm’n held that temporary flooding can give rise to a takings claim, when the
flooding directly and immediately interferes with the owner’s enjoyment and use of the
land. 568 U.S. at ___, 133 S. Ct. at 519. In Arkansas Game & Fish Comm’n, the United
States Army Corps of Engineers released upstream waters in such a way that the
Commission’s property was flooding during the peak growing season for timber. Id. at
___, 133 S. Ct. at 516. The flooding was temporary but recurred consistently over a
period of six years. Id. at ___, 133 S. Ct. at 516. The Commission owned the property
for the purpose of growing timber and to protect the wildlife that lived there. Id. at ___,
133 S. Ct. at 515-16. The flooding made it impossible for timber to grow productively
on the property, and as a result, the wildlife ecosystem was destroyed.
• The Court in Arkansas Game & Fish Comm’s set forth additional factors that assist in
determining whether a temporary flooding constitutes a taking.
• These factors include the time and duration of the flooding, whether the invasion of the
property was intentional or whether it was a foreseeable result of an authorized
government action, and the character of the land and the owner’s reasonable investment-
backed expectations regarding the land’s use.

47. Willie Pearl Burrell Trust v. City of Kankakee, 2016 IL App (3d)
150655 (June 10, 2016) Kankakee Co. (CARTER) Affirmed.
Court properly granted summary judgment for City. Plaintiff
trust owns several properties in City, and procured rental
licenses for properties. Plaintiff applied for renewal of rental
licenses, but City took no action on applications as Plaintiff
owed City over $43,000 for unpaid tickets for violations of
Municipal Code. Plaintiff sought writ of mandamus to
compel Defendant to comply with ordinance and act upon
applications. Plain language of ordinance indicates that City
is without authority to issue licenses to person who is
indebted to City. Requirement that Plaintiff pay its debts to
City prior to obtaining license renewal is not a taking.
(SCHMIDT and WRIGHT, concurring.)

48. NEW STATUTE ON
ADMINISTRATIVE DECISIONS
Public Act 099-0293
Section 5. The Illinois Municipal Code is amended by
changing Section 1-2.2-55 as follows:
(65 ILCS 5/1-2.2-55)
(c) In place of a proceeding under subsection (b) of this
Section,… unless stayed by a court of competent
jurisdiction, the findings, decision, and order of the
hearing officer may be enforced in the same manner as a
judgment entered by a court of competent jurisdiction.