The opinion
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Date: 2019.10.07
Appellate Court 15:35:49 -05'00'
Berry v. City of Chicago, 2019 IL App (1st) 180871
Appellate Court GORDON BERRY and ILYA PEYSIN, Plaintiffs-Appellants, v. THE
Caption CITY OF CHICAGO, Defendant-Appellee.
District & No. First District, Sixth Division
Docket No. 1-18-0871
Filed May 22, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 16-CH-02292; the
Review Hon. Raymond W. Mitchell, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Elizabeth A. Fegan and Mark T. Vazquez, of Hagens Berman Sobol
Appeal Shapiro LLP, and Philip H. Corboy Jr., of Corboy & Demetrio, P.C.,
both of Chicago, David Freydin and Timothy A. Scott, of Freydin Law
Firm LLP, of Skokie, and Steve W. Berman, of Hagens Berman Sobol
Shapiro LLP, of Seattle, Washington, for appellants.
Edward N. Siskel, Corporation Counsel (Benna Ruth Solomon,
Assistant Corporation Counsel, of counsel), and Kirkland & Ellis LLP
(Richard C. Godfrey, J. Andrew Langan, Andrew R. Running, and R.
Chris Heck, of counsel), both of Chicago, for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justice Cunningham concurred in the judgment and opinion.
Justice Connors dissented, with opinion.
OPINION
¶1 Plaintiffs, Gordon Berry and Ilya Peysin, appeal the order of the circuit court dismissing
their class action complaint alleging negligence and inverse condemnation, which they filed
after the defendant City of Chicago (City) replaced the water main and/or water meter servicing
their homes. On appeal, plaintiffs contend the court erred in dismissing their complaint where
(1) the complaint sufficiently alleged a claim of negligence and plaintiffs properly sought
medical monitoring as relief, based on the City’s actions in replacing/repairing its lead pipe
water service and water meters, and (2) plaintiffs sufficiently alleged a claim of inverse
condemnation where the City’s actions caused the release of high levels of lead in their water
supply over time, resulting in damage to plaintiffs’ property. For the following reasons, we
reverse and remand for further proceedings.
¶2 JURISDICTION
¶3 The trial court dismissed plaintiffs’ complaint with prejudice on March 29, 2018. Plaintiffs
filed their notice of appeal on April 20, 2018. Accordingly, this court has jurisdiction pursuant
to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017),
governing appeals from final judgments entered below.
¶4 BACKGROUND
¶5 The following facts are alleged in plaintiffs’ complaint.
¶6 Lead is a well-documented environmental contaminant “that is highly poisonous to
humans” and “bioaccumulates in the body over time.” Exposure to lead harms the nervous
system and can lead to various ailments, “including neuropathy, motor nerve dysfunction,
weakened immunity to disease, renal failure, gout, hypertension, muscle and joint pain,
memory and concentration problems, and infertility.” The effect of lead in the body is far more
problematic in children and is connected to stunted brain development, reduction in
intelligence quotient (IQ), intense aggression, and other behavior issues. Even low levels of
lead exposure in children “have been linked to damage to the central and peripheral nervous
system, learning disabilities, shorter stature, impaired hearing, and impaired formation and
function of blood cells.”
¶7 Since the human body does not remove lead from the system, it accumulates over time and
can remain for years in soft tissue, organs, bones, and teeth. Thus, the effect of lead on children
can be “ ‘long lasting’ ” if not “ ‘permanent.’ ” Moreover, the effects of lead may not appear
for years. Blood lead testing is a universally recognized and reliable method of testing lead
levels because results can be compared “to the published standard of 10 µg/dL, established by
the Center[s] for Disease Control” and Prevention (CDC).
¶8 In 1986, an amendment to the Safe Drinking Water Act (42 U.S.C. § 300f et seq.), imposed
a ban on the use of lead pipes in public water systems. Safe Drinking Water Act Amendments
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of 1986, Pub. L. No. 99-339, 100 Stat. 642. Up until this point, the City required residents to
install lead service lines “even in the face of all the public health warnings over the past
century.” As a result, “nearly 80 percent of the properties in Chicago receive their drinking
water via lead pipes.” Over time, lead pipes can corrode resulting in the “ ‘transfer of dissolved
or particulate lead into the drinking water.’ ” To minimize this risk, defendant treats its water
supply with “Blended Polyphosphate,” which causes a chemical reaction that coats “the
interior of water mains, house services, and plumbing in an attempt to prevent the pipes from
corroding” and leaching lead into the drinking water.
¶9 This treatment is not foolproof, however, and the protection can fail when “construction or
street work, water and sewer main replacement, meter installation or replacement, or plumbing
repairs” are performed. When the City replaces the water main or meter, the “[d]rilling,
digging, as well as moving or bending [of] the pipes can all cause the interior coating to flake
off and the polyphosphate protection to fail.” When the water is turned back on, “the violent
rush of water into the pipes disrupts the protective coating,” putting residents at further risk of
lead exposure. Unsafe lead levels can persist “for weeks or months after the disturbance.”
¶ 10 Also, in reconnecting the residential lead service lines to the water mains after replacement
or repair, the City performs a “partial” replacement in which it replaces a portion of the lead
service line with copper. When sections of a lead pipe are replaced with copper, a galvanic cell
(a battery) is created that can cause the release of lead into water as the pipes corrode.
Organizations such as the American Academy of Pediatrics and the CDC Advisory Committee
on Childhood Lead Poisoning Prevention have expressed concern about elevated water lead
levels from partial lead service line replacements. This particular repair is discouraged by the
United States Environmental Protection Agency’s (EPA) science advisory board and the
American Water Works Association. But it is standard procedure in Chicago when crews
damage lead pipes during water main work. Cities such as Washington D.C. and Boston have
ceased their accelerated lead service line replacement programs due to these dangers.
¶ 11 Between 2005 and 2011, the EPA tested the water of homes connected to lead service lines
in Chicago to determine whether the Lead and Copper Rule (Rule), the existing federal
regulation for sampling water, sufficiently identified high lead levels in the water supply. The
Rule “seeks to manage lead levels in drinking water by setting a ‘lead action level.’ ” Currently,
“ ‘the lead action level is exceeded if the concentration of lead in more than 10 percent of tap
water samples collected during any monitoring period … is greater than 0.015 mg/L.’ ” Using
the Rule, the EPA found that “[o]f the 13 sites where there had been a recently documented
physical disturbance *** virtually all of them produced samples that exceeded the lead action
level under the Lead and Copper Rule,” which was “in stark contrast” to samples taken from
undisturbed sites. In October 2013, the commissioner of the Chicago Department of Water
Management wrote a letter to alderman about the concerns raised in the study. The City,
however, found that the water is “absolutely safe to drink.”
¶ 12 The City began modernizing its water system in 2008 and since 2009 has conducted more
than 1600 water main and sewer replacement projects. The American Water Works
Association recommends that “immediately following a lead service line replacement, cold
water should be run for at least 30 minutes at full flow after removing the faucet aerator” to
flush out any lead debris that may have resulted from the replacement. It instructs that residents
should begin at the lowest level of their homes and open the cold water taps fully, letting the
water run for at least 30 minutes. After the 30 minutes, “they should turn off each tap starting
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with the taps in the highest level of the home.” The EPA also recommends that a household
with lead service lines should flush pipes for three to five minutes whenever the water has not
been used for several hours. Residents “should be warned that they should not consume tap
water, open hot water faucets, or use an icemaker or filtered water dispenser until after flushing
is complete.”
¶ 13 Prior to 2013, the City informed residents after replacing water mains only that the water
may be shut off a couple of times. In September 2013, the City began to advise residents to,
after replacement of their old water main,
“please open all your water faucets and hose taps and flush your water for 3 to 5
minutes. Sediment and metals can collect in the aerator screen located at the tip of your
faucets. These screens should be removed prior to flushing. This flushing will help
maintain optimum water quality by removing sediment, rust, or any lead particulates
that may have come loose from your property’s water service line as a result of the
water main replacement.”
¶ 14 Plaintiff Berry resides at 5411 S. Harper Avenue in Chicago. The City replaced the water
main on his block in 1998, and replaced the water meter at his home in 2009. In replacing the
water meter, the City disturbed the lead service lines running to his home, causing the interior
protective coating to be compromised. Violent flushing of the water when it was turned back
on caused more damage to the interior coating. The water meter was reconnected using
galvanized pipes that placed Berry and his family at further risk of lead contamination. In
January 2016, a routine check-up revealed that Berry’s two-year-old granddaughter, who
resided with him, had high lead levels in her blood.
¶ 15 On February 11, 2016, the City tested the water at Berry’s residence, and results showed
that it contained 17.2 parts per billion (ppb) of lead. The EPA’s recommended lead action level
is 15 ppb. On March 4, 2016, the City collected another 10 samples of drinking water from the
residence, and the tests revealed results reaching as high as 22.8 ppb. Berry was not informed
of these results until early May 2016, when an investigative reporter informed him that his
residence appeared on a list showing addresses where the water supply tested for significant
lead content. Berry’s water was tested again, and the 10 samples taken showed lead levels
ranging from 7.6 ppb to 30.8 ppb. Berry’s granddaughter and her parents have since moved
out of his home. Plumbers have confirmed that Berry’s service line is lead, and Berry received
quotes to replace the remaining portion of the lead service line that range from $14,000 to
$19,000.
¶ 16 Plaintiff Peysin resides at 6529 N. Albany Avenue in Chicago, with his wife and children.
In April 2015, the City replaced 2536 feet of water main on North Albany Avenue, which
included the water main in front of Peysin’s home. The letter did not warn Peysin of the
potential for lead exposure as a result of the replacement but only advised that he “open all
[his] water faucets and hose taps and flush [his] water for 3 to 5 minutes” in order to remove
“sediment, rust, or any lead particulates that may have come loose from your property’s water
service line.”
¶ 17 Peysin’s water was tested on October 28, 2016, and the results showed that after five
minutes of flushing, the lead level registered at 5.8 ppb, which was deemed “Significant.” The
report indicated that lead may be leaching into the tap water from the service line, and a
plumber confirmed that Peysin’s service line is lead. The report further advised Peysin that,
although running water for a minute or more before using can help reduce lead exposure, it
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“will not work” in his case because the lead level in his water was “Significant” or “Serious”
after prolonged flushing.
¶ 18 The initial class action complaint against the City was filed on February 18, 2016, alleging
one count of negligence and one count of inverse condemnation. The City filed a motion to
dismiss, which the trial court granted without prejudice because plaintiffs had not adequately
pled exposure absent documentary evidence. Plaintiffs thereafter tested their water and filed
an amended complaint on January 9, 2017.
¶ 19 Count I of plaintiffs’ amended complaint alleged that the City owed them “a duty to
exercise reasonable care in providing safe drinking water, free from dangerous contaminants
such as lead that would expose them to the unnecessary health risks documented herein.”
Defendants failed to exercise such care when “it did not take any measures to warn or protect
Plaintiffs and Class members from lead exposure and, instead, *** misrepresent[ed] the safety
of the water.” As a result, “[d]efendant’s negligence proximately caused Plaintiffs’ and the
Class members’ damages and their increased risk of harm as documented herein.” As relief,
plaintiffs sought the establishment of a trust fund to pay for medical monitoring and the
notification of all class members in writing that medical monitoring may be necessary to
diagnose lead poisoning.
¶ 20 Count II alleged that, in conducting water main and water meter replacements, the City
“irreversibly damage[d] the service lines of Plaintiffs and the class by making them more
dangerous.” The City’s use of copper to reconnect the lead service lines owned by the plaintiffs
further caused the release of lead into the drinking water because it causes the lead pipe to
corrode “more aggressively than it would under normal circumstances.” As a result,
“Plaintiffs’ property is damaged insofar as it is more dangerous than before.” Plaintiffs sought
“compensation for the damage to their lead service lines caused by the City’s work” in the
amount “necessary to fully replace their lead service lines with copper piping.”
¶ 21 The City filed a motion to dismiss the amended complaint, arguing that plaintiffs have not
alleged physical injuries or shown damage to their water service lines. The City also argued
that the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity
Act) (745 ILCS 10/2-201 (West 2016)) barred plaintiffs’ claims against the City. Attached to
its motion was the affidavit of Andrea R.H. Putz, the water quality manager of the City’s
department of water management. In the affidavit, Putz stated that the City replaced the 54th
Street water main in 1998, which connects to the Harper main servicing Berry’s home. The
Harper water main has not been replaced. Berry’s water meter was replaced in 2005. The
affidavit disputed plaintiffs’ allegations that the elevated levels of lead found in Berry’s water
resulted from the City’s disturbance of the water main or lead service lines servicing his home
but stated instead that it came from the lead pipes located in his basement.
¶ 22 After a hearing, the trial court dismissed both counts of plaintiffs’ amended complaint
pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West
2016)). As to count I, the court determined that “[n]o Illinois authority has permitted [a claim
for medical monitoring] absent an allegation of a present injury.” Since plaintiffs “readily
concede that they lack a present injury,” the court found their claim for medical monitoring to
be “based solely on a potential risk for future harm,” which is not recoverable under Jensen v.
Bayer AG, 371 Ill. App. 3d 682 (2007). The trial court dismissed count II, plaintiffs’ inverse
condemnation claim, based on its finding that such a claim requires an allegation of special
damage to property in excess of that sustained by the public generally. The court found that
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the damages alleged by plaintiffs resulting from the City’s work on the water pipes and meters
was “borne equally by all residents of the City of Chicago attendant to *** the replacement of
lead water mains.” Plaintiffs filed their timely appeal.
¶ 23 ANALYSIS
¶ 24 The trial court dismissed plaintiffs’ complaint pursuant to section 2-615 of the Code. A
section 2-615 motion to dismiss challenges only the legal sufficiency of the complaint based
on defects apparent on the face of the complaint. DeHart v. DeHart, 2013 IL 114137, ¶ 18.
“The critical inquiry in deciding a section 2-615 motion to dismiss is whether the allegations
of the complaint, when considered in a light most favorable to the plaintiff, are sufficient to
state a cause of action upon which relief can be granted.” Gonzalzles v. American Express
Credit Corp., 315 Ill. App. 3d 199, 206 (2000). In making this determination, courts must
accept as true all well-pleaded facts and reasonable inferences that can be drawn from those
facts. DeHart, 2013 IL 114137, ¶ 18. A plaintiff need not prove his case at this pleading stage
but must only allege sufficient facts to state the elements necessary to his cause of action.
Visvardis v. Eric P. Ferleger P.C., 375 Ill. App. 3d 719, 724 (2007). We review an order
granting a section 2-615 motion to dismiss de novo. DeHart, 2013 IL 114137, ¶ 18.
¶ 25 I. Count I—Negligence
¶ 26 “In a negligence action, the plaintiff must plead and prove the existence of a duty owed by
the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the
breach.” Bruns v. City of Centralia, 2014 IL 116998, ¶ 12. The City argues that we should
affirm the dismissal of plaintiffs’ negligence count because they conceded that they suffered
no present injury. However, according to the record plaintiffs conceded only a lack of “present
physical injury,” not that no injury occurred at all. After the supposed confession, plaintiffs’
counsel responded that in Lewis v. Lead Industries Ass’n, 342 Ill. App. 3d 95 (2003), they
“made it very clear that there wasn’t a present physical injury as well.” Counsel further states,
“What is the injury? The truth is that the city has created an environment in which all of these
residents now must get tested to determine the extent of their potential physical injury.”
¶ 27 As courts have recognized, the Restatement (Second) of Torts broadly defines an injury
“as an invasion of a person’s interest, even if there is no immediate harm or that harm is
speculative.” White v. Touche Ross & Co., 163 Ill. App. 3d 94, 101 (1987) (citing Restatement
(Second) of Torts § 7 cmt. a (1965)). Accepting plaintiffs’ allegations as true, the City’s
negligent conduct in replacing water mains and water meters servicing plaintiffs’ homes
caused a high level of a dangerous contaminant, lead, to leach into their water. We can
reasonably infer from these allegations that plaintiffs and their families drank the contaminated
water serviced to their homes, thus exposing their bodies, and the organs, tissues, and bones
therein, to lead. Plaintiffs set forth in their complaint that the human body does not transform
lead in the system and therefore lead bioaccumulates and can remain in the tissues and bones
for many years before a person develops an illness. Exposure to lead harms the nervous system
and can lead to various ailments and behavior issues in children. Even low levels of lead
exposure in children “have been linked to damage to the central and peripheral nervous system,
learning disabilities, shorter stature, impaired hearing, and impaired formation and function of
blood cells.” We find that plaintiffs have sufficiently alleged a present injury in consuming
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lead-contaminated water, even if they have yet to develop physical ailments linked to such
consumption.
¶ 28 The City, however, points out that plaintiffs seek medical monitoring costs as damages and
argues that this relief is only available to plaintiffs who have demonstrated a present physical
injury. Otherwise, the City argues, plaintiffs are actually seeking damages only for an increased
risk of future harm, which our supreme court disallowed in Dillon v. Evanston Hospital, 199
Ill. 2d 483 (2002), and Williams v. Manchester, 228 Ill. 2d 404 (2008).
¶ 29 In Dillon, the plaintiff brought a medical malpractice action alleging that the doctor treating
her for breast cancer inadvertently left in her chest a nine-centimeter fragment of the catheter
used to administer chemotherapy. Dillon, 199 Ill. 2d at 487. The plaintiff did not know that the
catheter was not removed in its entirety. Id. A routine X-ray taken more than two years later
revealed that the fragment had migrated to her heart with the tip embedded in the wall of the
right atrium or right ventricle. Id. at 487-88. Plaintiff decided, based on the opinions of doctors,
to leave the catheter fragment in her heart because it would be more dangerous to remove the
fragment than to leave it in place. Id. at 488. The case proceeded to trial, and the jury awarded
plaintiff $1.5 million for past pain and suffering, $1.5 million for future pain and suffering, and
$500,000 for the increased risk of future injuries. Id. at 488-89. The appellate court affirmed
the judgment. Id. at 489.
¶ 30 On appeal to the supreme court, the defendants argued that the trial court erred in
instructing the jury it could award damages based on the increased risk of future injuries where
it was not reasonably certain plaintiff would suffer those injuries in the future. Id. at 496-97.
The evidence at trial showed that plaintiff’s risk of future infection ranged between close to
0% up to 20%, her risk of arrhythmia was less than 5%, the risks of perforation and migration
were small, and the risk of embolization was low to nonexistent. Id. at 497.
¶ 31 The supreme court acknowledged that it “has historically rejected assessing damages for
future injuries.” Id. However, the court felt compelled to revisit the issue and noted “a trend
toward allowing compensation for increased risk of future injury as long as it can be shown to
a reasonable degree of certainty that the defendant’s wrongdoing created the increased risk.”
Id. at 500. The court found there is no element of speculation in awarding damages where the
plaintiff has competent evidence that the defendant negligently caused her to bear the burden
of an increased risk of future injury. Id. at 501. In this situation, “the treatment of an increased
risk of future injury as a present injury does not run afoul of the general rule.” Id. The court
determined that the trial court did not err in allowing the jury to award damages for an increased
risk of future injuries because “a plaintiff must be permitted to recover for all demonstrated
injuries.” (Emphasis in original.) Id. at 504. In other words, where the plaintiff has shown a
present injury, she may obtain relief for an increased risk of future harm as an element of
damages. See id. at 503-04.
¶ 32 In Williams, the plaintiff was 10½ weeks pregnant with Baby Doe when she was involved
in a serious accident while riding as a passenger in an automobile. Williams, 228 Ill. 2d at 407.
She was taken to the hospital where an X-ray revealed she suffered a broken hip and broken
pelvis from the accident. Id. at 408. After discussing with doctors about the various treatments
for her and possible effects on the fetus, plaintiff decided to terminate her pregnancy
approximately one week after the accident. Id. at 412. Plaintiff subsequently filed a complaint
against the defendant in which one count sought damages for injuries to Baby Doe, “ ‘including
radiation and medication exposure’ ” due to plaintiff receiving a computerized axial
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tomography (CAT) scan and pelvic X-rays while she was pregnant. Id. at 414. She attached an
affidavit by a doctor who opined that Baby Doe’s radiation exposure produced an increased
risk of future injury. Id. at 415.
¶ 33 The supreme court noted, however, that plaintiff’s experts “did not opine that Baby Doe’s
radiation exposure resulted in an actual, present injury, but rather that the fetus incurred an
increased risk of future harm.” Id. at 424-25. The court declined to expand Dillon so as to
equate an increased risk of future harm with a present injury, especially where the plaintiff did
not present any evidence of damages because “there can be no legal injury without damages.”
Id. at 425-26. The court did not find that Baby Doe’s exposure to X-rays or medication could
not be a present, actionable injury. Rather, the court determined that plaintiff’s proof of injury
was insufficient because the testimony showed only that Baby Doe incurred an increased risk
of future harm with no present damages. Id. at 427.
¶ 34 Dillon and Williams require only that plaintiffs establish a present injury in which they
suffer damages and express no requirement that plaintiffs’ injury be a present physical harm
or ailment in order to recover in tort. Viewing the complaint in the light most favorable to
plaintiffs, they sufficiently allege a present injury due to their consumption of water containing
high levels of lead. Furthermore, plaintiffs’ complaint alleges the need for medical testing due
to plaintiffs’ consumption of lead-contaminated water. Their complaint states that blood lead
testing is a universally recognized and reliable method of testing lead levels because results
can be compared “to the published standard of 10µg/dL, established by” the CDC. As damages
they seek the costs of such testing and monitoring.
¶ 35 These damages clearly flow from plaintiffs’ injury and are not speculative, as they are
capable of proof within a reasonable degree of medical certainty. See Lewis, 342 Ill. App. 3d
at 101. Where such testing is made necessary by defendant’s breach of duty, courts have found
that the testing itself is “a present injury compensable in a tort action.” Id. at 101-02; Friends
for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 826 (D.C. Cir. 1984). We find
that plaintiffs have sufficiently alleged facts to support their claims of injury and damages due
to the City’s negligence. We reiterate that our focus here is simply whether plaintiffs alleged
sufficient facts to state a cause of action, not whether they presented sufficient evidence to
prevail on every element of their claims. Plaintiffs need not prove their case at this pleading
stage. Visvardis, 375 Ill. App. 3d at 724.
¶ 36 Jensen, a case relied on by the City and the trial court below, does not require a different
result. In Jensen, the plaintiff was prescribed and took Baycol to lower his cholesterol after he
suffered a heart attack. Jensen, 371 Ill. App. 3d at 685. In August 2001, defendant, the
manufacturer of Baycol, issued a statement that it was removing Baycol from the market
because some users of Baycol and other statin drugs reported development of rhabdomyolysis
as a serious and potentially fatal side effect. Id. at 684. Plaintiff filed an action in which he
claimed that defendant’s product subjected him to unnecessary future health risks that require
medical monitoring. Id.
¶ 37 Plaintiff testified that he took Baycol from May 2000 to August 2001. He suffered from
pain in his calves and legs, and he concluded that the pain resulted from his taking Baycol. Id.
at 685. The pain, however, did not cause plaintiff to miss work, nor did he know of any
increased risk to his future health from his prior use of Baycol. Id. Plaintiff testified that he has
no reason to believe that his future health is at risk from his consumption of Baycol. Id. The
record contained deposition testimonies of two medical professionals. Id. Each physician
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acknowledged that all statin drugs carry the risk of rhabdomyolysis; however, the benefits of
lowering cholesterol “ ‘way outweigh the risks of a very, very rare event taking place.’ ” Id. at
685-86. Plaintiff’s current physician stated that, although plaintiff had used Baycol in the past,
he did not find it necessary that plaintiff undergo any special testing or monitoring. Id. at 686.
The trial court granted defendant’s motion for summary judgment on the medical monitoring
count, finding no evidence that plaintiff needed future medical monitoring due to his past use
of Baycol. Id. at 687.
¶ 38 This court affirmed the trial court’s determination, finding that plaintiff offered “nothing
in support of his medical monitoring claim other than his own allegation that Baycol caused
him leg cramps” while he was taking it. Id. at 692. Plaintiff alleged no present injury. The court
distinguished Lewis, finding that it did not address whether a plaintiff may bring a claim for
medical monitoring for potential future harm where he has shown no present injury. Id. at 693.
Jensen is distinguishable. Here, taking plaintiffs’ factual allegations as true, they have
sufficiently alleged a present injury necessitating medical monitoring. 1
¶ 39 The City also argues that the single recovery principle precludes plaintiffs’ claim for the
costs of medical monitoring because if “future injuries actually appeared, then there would be
a trial each time an injury occurred to determine causation and damages for that injury.” “The
single recovery principle requires that all damages, future as well as past, must be presented
and considered at the time of trial.” Dillon, 199 Ill. 2d at 502. Thus, “[a]n entire claim arising
from a single tort cannot be divided and be the subject of several actions, regardless of whether
or not the plaintiff has recovered all that he or she might have recovered.” Id. However, as
plaintiffs point out, the present complaint is the only one they have filed, and no other actions
have been filed. This court should not find plaintiffs’ allegations barred based on what might
happen in the future. Such a determination would be improperly speculative and premature at
this time. Golden Rule Insurance Co. v. Schwartz, 203 Ill. 2d 456, 469 (2003).
¶ 40 Nor do we find persuasive the City’s argument that the Moorman doctrine applies to bar
plaintiffs’ claim. The doctrine, derived from Moorman Manufacturing Co. v. National Tank
Co., 91 Ill. 2d 69, 86 (1982), provides that the remedy for economic loss, or “loss relating to a
purchaser’s disappointed expectations due to deterioration, internal breakdown or
nonaccidental cause,” lies in contract rather than theories of tort. The City’s argument that the
doctrine applies presumes that plaintiffs’ claim for medical monitoring costs represents purely
economic damages. Plaintiffs’ alleged injuries and claimed damages, however, do not relate to
disappointed expectations based on contract law. Instead, their medical monitoring claims stem
from the harm they suffered because the City’s alleged misconduct caused high levels of lead
to leach into the water they consumed. Such claims are more in line with tort theory, and thus,
we find the Moorman doctrine inapplicable. See id.
¶ 41 The City next argues that we should affirm the dismissal of plaintiffs’ negligence claims
because they are barred by the Tort Immunity Act. 2 Such immunity is an “affirmative matter”
1
The City also cites a Michigan case, Henry v. Dow Chemical Co., 701 N.W.2d 684 (Mich. 2005),
in support of its argument that medical monitoring is not a cognizable claim for plaintiffs’ injuries. We
need not look to the law of other jurisdictions, however, when Illinois law is more than sufficient on
the issue. K&K Iron Works, Inc. v. Marc Realty, LLC, 2014 IL App (1st) 133688, ¶ 47.
2
While the trial court did not dismiss plaintiffs’ complaint based on section 2-619 or consider the
tort immunity issue in its order, the parties raised the issue before the trial court and in their briefs, and
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properly raised under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2016)).
Van Meter v. Darien Park District, 207 Ill. 2d 359, 377 (2003). A section 2-619 motion to
dismiss admits the legal sufficiency of plaintiffs’ complaint, but raises defects, defenses, or
other affirmative matters that defeat plaintiffs’ claims. Mack Industries, Ltd. v. Village of
Dolton, 2015 IL App (1st) 133620, ¶ 19. The affirmative matter “must be apparent on the face
of the complaint” or “be supported by affidavits or certain other evidentiary materials.” Van
Meter, 207 Ill. 2d at 377. The defendant bears the initial burden of establishing the affirmative
defense. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997). In determining a
section 2-619 motion to dismiss, courts “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 standard of review is de novo. Van Meter, 207 Ill. 2d at 368.
¶ 42 The City argues that section 2-201 of the Tort Immunity Act applies here. Section 2-201
provides:
“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 (West 2016).
Policy decisions made by a municipality “require the municipality to balance competing
interests and to make a judgment call as to what solution will best serve each of those interests.”
West v. Kirkham, 147 Ill. 2d 1, 11 (1992). On the other hand, discretionary acts are “those
which are unique to a particular public office.” Snyder v. Curran Township, 167 Ill. 2d 466,
474 (1995). “Municipal defendants are required to establish both of these elements in order to
invoke immunity under section 2-201.” Van Meter, 207 Ill. 2d at 379. Municipal actions that
involve “ ‘merely the execution of a set task *** [such] that nothing remains for judgment or
discretion’ ” are considered ministerial and are not subject to immunity. In re Chicago Flood,
176 Ill. 2d at 193-94.
¶ 43 The City argues that it was determining policy when it decided to modernize the water
system and that deciding what precautions to advise residents to take was an exercise of
discretion. While the decision to replace lead water pipes may be viewed as a policy
determination, plaintiffs here do not challenge the City’s decision to modernize their water
system. Instead, plaintiffs take issue with how the City conducted the replacement project after
the decision was made to modernize and with how residents were advised to treat their water
afterwards. It is not apparent from the face of plaintiffs’ complaint that the City’s advice was
unique to a particular public office or discretionary. In fact, plaintiffs’ complaint alleged
otherwise. Plaintiffs alleged that, according to the American Water Works Association,
“immediately following a lead service line replacement, cold water should be run for at least
30 minutes at full flow after removing the faucet aerator” to flush any lead debris that may
have resulted from the replacement. Their complaint also set forth the manner in which the
flushing should occur: residents should begin at the lowest level of their homes and open the
cold water taps fully, letting the water run for at least 30 minutes. After the 30 minutes, “they
should turn off each tap starting with the taps in the highest level of the home.” The EPA
cautions that residents “should be warned that they should not consume tap water, open hot
it is an issue of law. Therefore, this court may consider the issue on appeal. See Brugger v. Joseph
Academy, Inc., 326 Ill. App. 3d 328, 330 (2001).
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water faucets, or use an icemaker or filtered water dispenser until after flushing is complete.”
Plaintiffs’ complaint, liberally construed, alleged that advising and warning residents in this
situation is akin to an “execution of a set task” where “nothing remains for judgment or
discretion.”
¶ 44 This is in contrast to the complaint in In re Chicago Flood, a case cited by the City. In that
case, the City hired a dredging company to replace bridge piling clusters, and a tunnel wall
under the Chicago River was breached during pile driving. A number of downtown businesses
were flooded as a result of the breach, and in their complaint the plaintiffs alleged, among other
things, that the City failed to warn them about the danger of flood after learning of the breach.
Id. at 184-86. The supreme court found the City’s actions discretionary in nature, rather than
ministerial, because the plaintiffs “do not allege that there was any prescribed method for how
to repair the tunnel and how quickly, or how to warn class plaintiffs of the tunnel breach.” Id.
at 196-97. Plaintiffs here, however, have set forth a prescribed method of advising residents to
flush, and how to flush, the water in their homes after lead pipe work.
¶ 45 Furthermore, although the City submitted Putz’s affidavit in support of its motion to
dismiss, the affidavit does not state facts to support the City’s argument that its actions were
discretionary. Instead, her affidavit disputes plaintiffs’ factual allegations concerning the
source of the lead in plaintiff Berry’s water. Where the affirmative matter is merely evidence
upon which a defendant expects to challenge an ultimate fact stated in the complaint, it is
insufficient to support a section 2-619 motion to dismiss. In re Marriage of Vaughn, 403 Ill.
App. 3d 830, 835-36 (2010). Since the City has not established both elements of section 2-201
immunity under the Tort Immunity Act, dismissal of plaintiffs’ negligence claim pursuant to
section 2-619 of the Code would be error.
¶ 46 The City briefly argues that section 2-107 of the Tort Immunity Act and common-law
immunity also bar plaintiffs’ negligence claims. Section 2-107 provides that a “local public
entity is not liable for injury caused by any action of its employees that is libelous or slanderous
or for the provision of information either orally, in writing, by computer or any other electronic
transmission, or in a book or other form of library material.” 745 ILCS 10/2-107 (West 2016).
The City merely argues, without further analysis, that plaintiffs’ complaint seeks to impose
liability based on the City’s provision of information, which is barred by section 2-107. The
City also argues that absolute immunity applies to protect government officials from liability
for statements made within the scope of official duties. The City again merely concludes that
count I claims that City officials should have made statements about the water in plaintiffs’
homes and “[s]uch officials are immune from liability for making or omitting such statements.
Therefore, the City is immune as well, under settled Illinois law.”
¶ 47 We find that the City has not met its burden to establish this affirmative defense. “Because
the Tort Immunity Act is in derogation of the common law, it must be strictly construed against
the public entities involved.” Van Meter, 207 Ill. 2d at 380. At the very least, questions of fact
exist as to whether the City’s provision of information falls within the protections of this
section precluding dismissal under section 2-619. See id. Furthermore, the cases cited in the
City’s brief involve claims for defamation. See Dolatowski v. Life Printing & Publishing Co.,
197 Ill. App. 3d 23 (1990); Harris v. News-Sun, 269 Ill. App. 3d 648 (1995); Morton v.
Hartigan, 145 Ill. App. 3d 417 (1986). Plaintiffs’ complaint, however, makes no claim for
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defamation. 3
¶ 48 II. Count II—Inverse Condemnation
¶ 49 Plaintiffs argue that the trial court improperly dismissed count II of their complaint,
pursuant to section 2-615 of the Code, where they sufficiently alleged a claim for inverse
condemnation. An inverse condemnation claim is a claim for the governmental taking of a
property interest without compensation, where no condemnation proceeding has been initiated.
City of Chicago v. ProLogis, 236 Ill. 2d 69, 76-77 (2010). As our supreme court found, “the
Illinois takings clause reaches beyond the scope of the federal takings clause” to provide a
remedy when government action damages private property. Hampton v. Metropolitan Water
Reclamation District, 2016 IL 119861, ¶ 27. This constitutional provision, however, “was not
intended to reach every possible injury that might be occasioned by a public improvement.”
Belmar Drive-In Theater Co. v. Illinois State Toll Highway Comm’n, 34 Ill. 2d 544, 550 (1966).
Rather,
“[p]roperty is considered damaged for purposes of the takings clause if there is ‘any
direct physical disturbance of a right, either public or private, which an owner enjoys
in connection with his property; a right which gives the property an additional value; a
right which is disturbed in a way that inflicts a special damage with respect to the
property in excess of that sustained by the public generally.’ ” Hampton, 2016 IL
119861, ¶ 27 (quoting Citizens Utilities Co. of Illinois v. Metropolitan Sanitary District
of Greater Chicago, 25 Ill. App. 3d 252, 256 (1974)).
¶ 50 In their complaint, plaintiffs allege that the City embarked on a project to replace water
mains and water meters throughout Chicago. In replacing the water mains and meters,
however, plaintiffs allege that the City disturbed the polyphosphate interior coating of nearby
lead pipes, causing its protection to be compromised. Furthermore, after replacing the water
mains and meters, the City reconnected the service lines to certain property owners by
performing a partial lead service line replacement, which can cause more lead to release into
the water over time. Plaintiffs allege that, as a result, property owners with lead service lines
in areas where a water main or meter was replaced have been, and continue to be, exposed to
dangerous levels of lead in their water.
¶ 51 Plaintiffs, as property owners, have the right to the use and enjoyment of their property
without interference. Cuneo v. City of Chicago, 379 Ill. 488, 493 (1942). They have the rightful
expectation that they will be able to use their properties to maintain a home. Hampton, 2016
IL 119861, ¶ 26. The dangerous contamination of water coming into plaintiffs’ residences,
water that is consumed and used by the residents, certainly interferes with the use and
enjoyment of their property. However, plaintiffs must also allege special damages in order to
recover for “ ‘the lawful damaging of private property for public use.’ ” Id. ¶ 27.
¶ 52 The City argues that the number of potential plaintiffs could be large and thus plaintiffs’
damages cannot be characterized as special damages. The cases cited, however, do not support
this argument. In City of Chicago v. Union Building Ass’n, 102 Ill. 379, 391-92 (1882), the
3
The parties disagree whether the Tort Immunity Act applies to plaintiffs’ inverse condemnation
claim. We need not decide that particular issue at this time because, even if it did apply, we find that
the City has not established this affirmative defense as to plaintiffs’ inverse condemnation claim for the
same reasons.
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court found that no “special or peculiar injury” to property resulted from the partial closure of
La Salle Street because “[p]recisely the same injury will result to every one, wherever located,
having to pass that route.” In Parker v. Catholic Bishop of Chicago, 146 Ill. 158, 168 (1893),
the court defined special injury or damage as “differing in kind from those affecting the general
public.” It found that the plaintiff, “having to go a few feet further to gain access” from an
adjacent street, suffered the “same kind” of damage as that sustained by “ ‘all other persons in
the city that might have occasion to go that way’ ” and affirmed the dismissal of the action. Id.
at 168-69. In Department of Public Works & Buildings v. Horejs, 78 Ill. App. 2d 284, 291
(1966), property owners claimed that a newly constructed expressway embankment obstructed
their light, air, and view. The complaining property owners, however, were “not abutting
owners to the highway embankment construction, nor was the embankment built on the road
which fronts [their] property; nor was the expressway constructed on or across any part of the
property taken from [them].” Id. at 292. The court determined that the alleged damages were
suffered in “common to all property owners in the area and the law provides them no basis for
compensation.” Id.
¶ 53 These cases do not establish that damages suffered by numerous plaintiffs cannot be
“special damages.” Rather, they illustrate that the proper focus in determining special damages
is ascertaining the type of damage suffered by the property owner due to the City’s actions and
whether or not it is the same damage suffered by the general public. In their complaint,
plaintiffs here allege that the City’s replacement of water mains and meters disrupted the
protective coating of their lead service lines, causing harmful levels of lead to leach into their
water. They allege that the City further damaged their property when it partially replaced lead
service lines when reconnecting water service to the newly replaced water mains. As a result,
these lead service lines have become “more dangerous” than lines that have not been partially
replaced or are not made of lead. We find that plaintiffs’ complaint sufficiently alleges they
have incurred excess damages beyond that experienced by the public generally.
¶ 54 The City also argues that plaintiffs’ inverse condemnation claim should be dismissed
because the public improvement work the City performed was “necessarily incident to property
ownership” and damages flowing from such actions are not afforded relief under the law.
Instead, “[s]uch injury is deemed to be damnum absque injuria” or “loss without injury in the
legal sense.” Belmar, 34 Ill. 2d at 550. In Belmar, the plaintiff owned an outdoor movie theater
adjacent to a toll-road service center, or oasis, built by the Illinois State Toll Highway
Commission. Id. at 546. Plaintiff filed a complaint alleging that the bright artificial lights
emanating from the oasis dispel the darkness on neighboring property, making the exhibition
of outdoor movies impossible. Id. The court found that plaintiff’s use of the property was a
sensitive one and the damages claimed, the bright lights, resulted only from the property’s
location next to the oasis. Id. at 550-51. While plaintiff did suffer damages, the court deemed
such injury “damnum absque injuria” because “the property owner is compensated for the
injury sustained by sharing the general benefits which inure to all from the public
improvement.” Id.
¶ 55 Belmar is distinguishable. Plaintiffs here did not share in the general benefits of the
replaced water mains where such replacement, they alleged, actually made their water more
dangerous than that consumed by the general public. Nor do plaintiffs’ damages stem from a
sensitive use of their property, as was the case in Belmar. The City argues that accepting
plaintiffs’ theory here “would greatly expand the scope of inverse condemnation claims and
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obstruct needed public improvements.” We disagree. Our supreme court has limited recovery
to plaintiffs who plead and prove special damages “in excess of that sustained by the public
generally.” Rigney v. City of Chicago, 102 Ill. 64, 81 (1881). Such a limitation should reduce
the number of claims from property owners only incidentally affected by public improvements.
¶ 56 Since we find that plaintiffs have sufficiently pled their claims, dismissal pursuant to
section 2-615 of the Code was error.
¶ 57 For the foregoing reasons, the judgment of the circuit court is reversed and the cause
remanded for further proceedings.
¶ 58 Reversed and remanded.
¶ 59 JUSTICE CONNORS, dissenting:
¶ 60 Water is essential for life and should be safe to drink. Lead is a toxic chemical that
accumulates in one’s body over time and is highly poisonous to humans. There may be a
complaint that would state a claim to appropriately consider the levels of lead in Chicago’s
water and the cause thereof, but this is not that complaint. Although plaintiffs’ allegations paint
a concerning picture, they are insufficient to state a claim for either negligence or inverse
condemnation under current Illinois law, and contrary to the majority, I decline to misconstrue
our supreme court’s precedent in order to make the complaint viable. Therefore, I respectfully
dissent and would affirm the trial court’s decision to dismiss counts I and II.
¶ 61 A. Count I: Negligence
¶ 62 It is axiomatic that, “[t]o state a cause of action for negligence, a plaintiff must plead the
existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury
proximately caused by the breach, and damages.” Boyd v. Travelers Insurance Co., 166 Ill. 2d
188, 194-95 (1995). The primary issue in this case is whether plaintiffs have stated a cause of
action for common-law negligence without alleging that they suffer from a present physical
(or actual) injury. In my opinion, they have not. I believe that based on our supreme court’s
decision in Williams v. Manchester, 228 Ill. 2d 404 (2008), the single recovery principle, the
Moorman doctrine, and general public policy considerations, the majority recognizes a claim
that runs contrary to Illinois law.
¶ 63 It is undisputed that plaintiffs do not suffer from any present physical injury and are
completely asymptomatic. Nonetheless, the majority finds they have stated a claim for
negligence because “plaintiffs have sufficiently alleged a present injury in consuming lead-
contaminated water, even if they have yet to develop physical ailments linked to such
consumption.” Supra ¶ 27. The majority’s holding is significant, not only because it is the first
of its kind in Illinois and is contrary to our supreme court’s decision in Williams, but also
because plaintiffs have never made the argument that mere exposure or consumption suffices
as a present injury in order to bring a negligence claim.
¶ 64 The majority reaches its holding by accepting as true plaintiffs’ allegations that defendant’s
negligent conduct caused a high level of lead to leach into their water. The majority then makes
the inference that “plaintiffs and their families drank the contaminated water serviced to their
homes, thus exposing their bodies, and the organs, tissues, and bones therein, to lead.” That
the majority finds it necessary to infer that plaintiffs’ bodies, organs, tissues, and bones were
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exposed to lead is extremely telling. To me, it indicates that plaintiffs have not, in fact, alleged
that their injury is exposure to, or consumption of, lead in their water. If plaintiffs had alleged
that, the majority would not need to make such an inference. In the lower court and on appeal,
plaintiffs have instead consistently asserted that the cost of medical testing sufficed as a present
injury and relied on Lewis v. Lead Industries Ass’n, 342 Ill. App. 3d 95 (2003), as support. It
is apparent from the briefing in the trial court and the parties’ appellate briefs that the crux of
plaintiffs’ contentions hinged on Lewis. Interestingly, however, the majority barely addresses
Lewis and fails to provide any insight as to the facts of that case or its holding. Similarly lacking
is the majority’s analysis of the single-recovery principle and the Moorman doctrine. I write
separately to take a deeper look into Williams, Lewis, the single-recovery principle, the
Moorman doctrine, and other policy considerations that I believe are necessary to the
resolution of this appeal.
¶ 65 1. Dillon and Williams
¶ 66 The majority concludes that the mere consumption of, or exposure to, lead-contaminated
water suffices as a present injury, such that plaintiffs have stated a claim for negligence. I find
this conclusion problematic for various reasons, not least of which is that it is directly contrary
to our supreme court’s decision in Williams and that no court in Illinois has ever rendered such
a holding.
¶ 67 In order to explain Williams, it is necessary to first mention our supreme court’s decision
in Dillon v. Evanston Hospital, 199 Ill. 2d 483 (2002). In Dillon, the court acknowledged that
it had “historically rejected assessing damages for future injuries” but was compelled to revisit
that rule based on “a trend toward allowing compensation for increased risk of future injury as
long as it can be shown to a reasonable degree of certainty that the defendant’s wrongdoing
created the increased risk.” Id. at 497-500. The court, quoting a Connecticut case, recognized
that part of the basis for this trend was that “ ‘[o]ur legal system provides no opportunity for a
second look at a damage award so that it may be revised with the benefit of hindsight.’ ” Id. at
501 (quoting Petriello v. Kalman, 576 A.2d 474, 483 (Conn. 1990)). As a result, our supreme
court adopted a new rule that “better comports with this state’s principle of single recovery”
(id. at 502), which provided “simply that a plaintiff must be permitted to recover for all
demonstrated injuries” and that “[t]he burden is on the plaintiff to prove that the defendant’s
negligence increased the plaintiff’s risk of future injuries” (emphasis in original) (id. at 504).
Although not mentioned by the majority in this case, the supreme court in Dillon explained its
reasoning as follows:
“An entire claim arising from a single tort cannot be divided and be the subject of
several actions, regardless of whether or not the plaintiff has recovered all that he or
she might have recovered. This is true even to prospective damages. There cannot be
successive actions brought for a single tort as damages in the future are suffered, but
the one action must embrace prospective as well as accrued damages.” Id. at 502.
Our supreme court also explained that its previous decisions that did not recognize the
increased risk of future injury as a compensable injury were decided over 80 years ago, and
that scientific advances had made it easier for the medical community to more accurately
determine the probability of future injuries. Id. at 503. Therefore, the risk of undue speculation
was lessened. Id.
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¶ 68 Subsequently, our supreme court addressed a related issue in Williams. In Williams, the
plaintiff sought damages for the death of her unborn fetus, Baby Doe. Williams, 228 Ill. 2d at
407. The plaintiff opted to terminate her pregnancy after an X-ray revealed she suffered a
broken pelvis in a car accident caused by the defendant’s negligence and was told that she
would have to remain bedridden and may not ever walk normally again if she stayed pregnant.
Id. at 408. The trial court granted summary judgment, a split panel of the appellate court
reversed, and our supreme court affirmed the trial court’s decision. Id. at 415, 427. Although
our supreme court recognized that the appellate court’s observation that, “ ‘[a]side from the
additional element of the occurrence of death, the elements of a wrongful death claim are
identical to those of a common law negligence claim’ ” (id. at 421-22) was correct, it reversed
the appellate court’s decision, noting that the appellate court had incorrectly identified the
actionable injury in the plaintiff’s wrongful death claim as Baby Doe’s death. Id. at 423. The
court explained that, “a wrongful-death action is premised on the deceased’s potential, at the
time of death, to bring an action for injury” and that “it was ‘not until the death occurred could
the court examine whether there was a viable wrongful injury which would permit the case to
proceed.’ ” Id. at 423-24. The court determined that Baby Doe could not have maintained a
claim for personal injury against the defendant because a doctor testified that Baby Doe was
not injured during the accident and the plaintiff admitted that she never claimed Baby Doe was
injured in the crash but rather was injured in the hospital following the crash. Id. at 424. The
court also found significant that, at oral argument, “[the] plaintiff expressly conceded that, for
purposes of summary judgment, the record did not contain sufficient evidence that Baby Doe
suffered a present, actionable injury as a result of the radiation exposure” and that the doctors
who testified “did not opine that Baby Doe’s radiation exposure resulted in an actual, present
injury, but rather that the fetus incurred an increased risk of future harm.” Id. at 424-25.
¶ 69 Next, the court addressed whether Baby Doe’s increased risk of future harm from radiation
exposure was a present injury for which the fetus could have brought an action for damages
against defendant. Id. at 425. The court rejected this premise for two reasons. First, the court
stated, “as a matter of law, an increased risk of future harm is an element of damages that can
be recovered for a present injury—it is not the injury itself.” (Emphases in original.) Id. The
court compared the case before it with Dillon and explained that in that case, the present injury
was the catheter embedded in the plaintiff’s heart. Id. Unlike the plaintiff in Dillon, Baby Doe
had no such present injury. Second, the court stated that, “even if we were to convert or expand
Dillon so as to describe an increased risk of future harm as a present injury, plaintiff, as a
matter of fact, has not presented any evidence that Baby Doe was injured as a result of the
increased risk.” Id. at 426.
¶ 70 Here, the majority concludes, “Dillon and Williams require only that plaintiffs establish a
present injury in which they suffer damages and express no requirement that plaintiffs’ injury
be a present physical harm or ailment in order to recover in tort.” Supra ¶ 34. I disagree with
this conclusion and believe the majority’s decision fails to follow the holding of Williams. “It
is well settled that this court is bound to follow the supreme court’s precedent, and ‘when our
supreme court has declared law on any point, only [the supreme court] can modify or overrule
its previous decisions, and all lower courts are bound to follow supreme court precedent until
such precedent is changed by the supreme court.’ ” Certain Underwriters at Lloyd’s, London
v. Reproductive Genetics Institute, 2018 IL App (1st) 170923, ¶ 19 (quoting Rosewood Care
Center, Inc. v. Caterpillar, Inc., 366 Ill. App. 3d 730, 734 (2006)).
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¶ 71 Although perhaps not explicit, the supreme court’s analysis in Williams indicated that mere
exposure to a potentially harmful substance, i.e., radiation, is not an actionable present injury
in a wrongful death case. This can be said with certainty because the plaintiff in Williams was
unable to pursue a wrongful death claim on behalf of Baby Doe because the fetus had not
suffered any injury, even though Baby Doe had been exposed to radiation when the plaintiff
was X-rayed. 4 If mere exposure to a harmful or toxic substance, such as radiation or lead, was
sufficient to establish an actionable injury, then the court would have found the unborn fetus
had suffered an injury, since it was undisputed that the plaintiff underwent an X-ray while
pregnant with the fetus. However, the court did not find that exposure equates to an injury and
instead found that exposure amounted to an “increased risk of future harm,” which “is not the
injury itself.” (Emphasis in original.) Williams, 228 Ill. 2d at 425.
¶ 72 Ultimately, it is perplexing how the majority can rectify its holding with Williams. Despite
acknowledging Williams’s holding that the unborn fetus’s radiation exposure was merely an
increased risk of harm and that an increased risk of harm is not a present injury, the majority
expressly finds “that plaintiffs have sufficiently alleged a present injury in consuming lead-
contaminated water, even if they have yet to develop physical ailments linked to such
consumption.” Supra ¶ 27. Although Williams involved a wrongful death claim, the same
principles apply here because both a wrongful death claim and a common-law negligence claim
require an actionable injury. Williams made clear that a plaintiff cannot recover for an
increased risk of future injury without showing a present physical (or actual) injury, and thus
I would affirm the trial court’s decision to grant summary judgment on count I.
¶ 73 2. Lewis
¶ 74 Next, I find it necessary to address Lewis, 342 Ill. App. 3d 95, the primary case upon which
plaintiffs relied but that the majority barely addresses. In Lewis, the plaintiffs brought a six-
count putative class action on behalf of themselves and all other similarly situated parents and
guardians of minor children who had undergone or would undergo medical screening,
assessment, or monitoring for lead poisoning or latent diseases associated with lead poisoning.
Id. at 98. The numerous defendants consisted of promoters, manufacturers, marketers, and
distributors of lead pigment for use in paint. Id. “Common to each count was a prayer seeking
an order compelling the defendant to reimburse and pay the plaintiffs and the members of the
4
Further support for my reading of Williams is found in an unpublished federal case. Although
unpublished federal decisions are not binding or precedential in Illinois courts, nothing prevents this
court from using the same reasoning and logic as used in an unpublished federal decision.
CitiMortgage, Inc. v. Parille, 2016 IL App (2d) 150286, ¶ 37. In Rowe v. Unicare Life & Health
Insurance Co., No. 09 C 2286, 2010 WL 86391, at *6 (N.D. Ill. Jan. 5, 2010), the court held that,
“[b]eyond simply establishing that the increased risk of future harm is not a present injury, the Williams
decision also rules out the possibility that in this case the exposure of personal information might be
the present injury providing the basis for recovery of damages for increased risk of future harm.” Rowe
further explained, “[the plaintiff] may collect damages based on the increased risk of future harm he
incurred, but only if he can show that he suffered from some present injury beyond the mere exposure
of his information to the public.” Id. Rowe also mentioned Dillon and explained that, “[w]hile it may
seem odd to allow [the plaintiff] to collect damages based on his vulnerability to identity theft only if
he can prove a substantively different type of present injury such as emotional distress, this result is in
concert with the principles that led the Dillon Court to its decision in the first place.” Id.
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putative class for the costs of all medical screenings, assessments, and monitoring of their
minor children.” Id. at 99. The circuit court granted the defendants’ section 2-615 motion to
dismiss, which asserted that the plaintiffs’ complaint failed to allege a present injury or facts
in support of proximate cause. Id. The circuit court determined that the relief sought by the
plaintiffs could be characterized as damages for an increased risk of future harm. Id. at 100.
On appeal, the plaintiffs argued that the court below misconstrued their relief sought because
they did not seek relief for an increased risk of future harm and sought compensation only for
the cost of medical testing made necessary by the defendants’ manufacturing, marketing, and
sale of a dangerous product. Id. at 100-01.
¶ 75 This court began its analysis by recognizing that, “in order for a plaintiff to recover
damages for an increased risk of future harm in a tort action, he or she must establish, among
other things, that the defendant’s breach of duty caused a present injury which resulted in that
increased risk.” Id. at 101 (citing Dillon, 199 Ill. 2d at 496-507). The court pointed out that the
plaintiffs primarily relied on Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746
F.2d 816 (D.C. Cir. 1984), to support their contention that an action seeking recovery for the
cost of medical examinations is distinct from a claim seeking damages for an increased risk of
harm of developing a future injury or disease. Lewis, 342 Ill. App. 3d at 101. The Lewis court
stated that, “In Friends for All Children, the court reasoned that ‘an individual has an interest
in avoiding expensive diagnostic examinations just as he or she has an interest in avoiding
physical injury.’ ” Id. (quoting Friends for All Children, Inc., 746 F.2d at 826). The court then
expressed its agreement with Friends for All Children and recognized the following:
“There is a fundamental difference between a claim seeking damages for an
increased risk of future harm and one that seeks compensation for the cost of medical
examinations. The injury which is alleged, and for which compensation is sought, in a
claim seeking damages for an increased risk of harm is the anticipated harm itself. The
injury that is alleged, and for which compensation is sought, in a claim seeking
damages for a medical examination to detect a possible physical injury is the cost of
the examination. Unlike a claim seeking damages for an increased risk of future harm,
a claim seeking damages for the cost of a medical examination is not speculative and
the necessity for such an examination is capable of proof within a ‘reasonable degree
of medical certainty.’ If a defendant’s breach of duty makes it necessary for a plaintiff
to incur expenses to determine if he or she has been physically injured, we find no
reason why the expense of such an examination is any less a present injury
compensable in a tort action than the medical expenses that might be incurred to treat
an actual physical injury caused by such a breach of duty.” Id. at 101-02.
¶ 76 Lewis concluded by stating that, although it had “determined that the trial court erred in
concluding that the injury claimed by the plaintiffs was not compensable in a tort action,” it
was further tasked with determining whether the plaintiffs had pled sufficient facts to satisfy
the causation elements of their claims. Id. at 102. The court ultimately affirmed the dismissal
of counts I and II on the causation issue because the plaintiffs failed to identify which of the
defendants manufactured or supplied the lead pigment used in the paint to which their children
were exposed. Id. at 103-04.
¶ 77 In this case, plaintiffs assert that, because Lewis recognized that the expense of a medical
examination caused by a defendant’s negligence is a present injury compensable in a tort
action, the trial court improperly dismissed count I of their first amended complaint for lack of
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a present injury. Interestingly, the majority ignores the plaintiffs’ argument and finds that
plaintiffs sufficiently alleged an injury “due to their consumption of water containing high
levels of lead.” Supra ¶ 34. Although the majority only briefly addresses Lewis, I find it
necessary to fully address that case based on plaintiffs’ heavy reliance thereon. Lewis is
problematic for numerous reasons.
¶ 78 First and most significantly, I respectfully disagree with Lewis’s conclusion that, “[t]here
is a fundamental difference between a claim seeking damages for an increased risk of future
harm and one that seeks compensation for the cost of medical examinations.” Lewis, 342 Ill.
App. 3d at 101. Such a distinction is not apparent, and I disagree with the following reasoning
from Lewis:
“Unlike a claim seeking damages for an increased risk of future harm, a claim seeking
damages for the cost of a medical examination is not speculative and the necessity for
such an examination is capable of proof within a ‘reasonable degree of medical
certainty.’ ” Id.
The majority explicitly cites Lewis for this proposition but fails to explain how the damages in
this case are not speculative. Although I agree that the cost of a single medical examination, as
was at issue in Lewis, would be easy to ascertain, in this case, plaintiffs’ prayer for relief
requests “the establishment of a medical monitoring program that includes *** a trust fund, in
an amount to be determined, to pay for the medical monitoring of all Class members; and
[n]otifying all Class members in writing that they may require frequent medical monitoring
necessary to diagnose lead poisoning.” That frequent testing may be required, coupled with the
plaintiffs’ allegation that lead bioaccumulates in the body over time, indicates that plaintiffs
are not seeking a one-time-only test. Plaintiffs allege no facts regarding how often, or for what
duration, a person would need testing. Thus, the cost of plaintiffs’ damages is, in fact, much
more speculative than Lewis indicated it would be in such a case.
¶ 79 Additionally, the majority ignores that plaintiffs’ first amended complaint includes the
following five explicit references to an increased risk of harm:
“2. ***The City has also failed to advise Plaintiffs and the Class of its intention to
only partially, rather than fully, replace their lead service pipes at the time of
construction and the resulting increased risk of lead exposure over time as a result of
the City’s work.
3. As a result of Defendant’s negligent and reckless conduct, Plaintiffs, their
children, grandchildren, and the Class are at a significantly increased risk of exposure
to a known hazardous substance and lead poisoning. ***
***
9. ***As a result of the City’s project, Peysin and his family are now at an increased
risk for problems associated with ingesting lead.
***
90. As a result of Defendant’s negligent and reckless conduct, Plaintiffs, their
families, and the Class have been significantly exposed to a known hazardous substance
and, consequently, are at an increased risk of lead poisoning. ***
***
103. Defendant’s negligence proximately caused Plaintiffs’ and the Class
members’ damages and their increased risk of harm as documented herein.”
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¶ 80 Based on these allegations, I simply do not see a contrast between a claim seeking medical
monitoring damages and a claim for damages for an increased risk of future harm.
Additionally, courts at the state and federal level have recognized that “a claim for medical
monitoring is essentially ‘a claim for future damages.’ ” See Bower v. Westinghouse Electric
Corp., 522 S.E.2d 424, 429-30 (W. Va. 1999) (quoting Ball v. Joy Technologies, Inc., 958 F.2d
36, 39 (4th Cir. 1991)). I find this view more consistent with principles of Illinois tort law,
such as the single-recovery principle and the Moorman doctrine, which will be analyzed later
in this dissent.
¶ 81 Lewis’s reliance on Friends for All Children, Inc., a federal decision from the District of
Columbia, is also problematic. The complaint in Friends for All Children, Inc. was brought on
behalf of numerous Vietnamese orphans who survived an aviation disaster in South Vietnam
in 1975 and alleged that, due to both the “decompression of the troop compartment and the
crash itself, these survivors suffered, inter alia, from a neurological development disorder
generically classified as Minimal Brain Dysfunction (‘MBD’).” 746 F.2d at 818-19. The
district court granted partial summary judgment in favor of the plaintiffs, who were children
adopted by non-U.S. parents, finding that “approximately forty adopted Vietnamese children
living in France faced irreparable injury unless they promptly obtained diagnostic
examinations” and granted the plaintiffs’ motion for a mandatory preliminary injunction
ordering the defendant to create a fund from which the examination costs could be drawn. Id.
On appeal, the defendant argued that the District of Columbia’s tort law had never recognized
a cause of action for compensation for diagnostic examinations designed to discover whether
a plaintiff has been injured, unless that plaintiff first proved actual physical injury. Id. at 824.
The court recognized the lack of clarity in tort law in that jurisdiction but predicted that the
District of Columbia would allow a plaintiff to maintain an action for diagnostic examinations
in the absence of proof that he or she suffered a physical injury. Id. at 824-25. The court
reasoned that in light of the Restatement (Second) of Torts’s definition of “ ‘injury’ ”—“ ‘the
invasion of any legally protected interest of another’ ”—it would be tough to dispute that “an
individual has an interest in avoiding expensive diagnostic examinations just as he or she has
an interest in avoiding physical injury.” Id. at 826 (quoting Restatement (Second) of Torts § 7
(1965)).
¶ 82 In reaching its conclusion, the court in Friends for All Children, Inc., stated as follows:
“To aid our analysis of whether tort law should encompass a cause of action for
diagnostic examinations without proof of actual injury, it is useful to step back from
the complex, multi-party setting of the present case and hypothesize a simple, everyday
accident involving two individuals, whom we shall identify simply as Smith and Jones:
Jones is knocked down by a motorbike which Smith is riding through a red light.
Jones lands on his head with some force. Understandably shaken, Jones enters a
hospital where doctors recommend that he undergo a battery of tests to determine
whether he has suffered any internal head injuries. The tests prove negative, but
Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic
examinations.
From our example, it is clear that even in the absence of physical injury Jones ought
to be able to recover the cost for the various diagnostic examinations proximately
caused by Smith’s negligent action.” Id. at 825.
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¶ 83 I find it worthwhile to set forth this hypothetical because it served as the basis of the court’s
holding in Friends for All Children, Inc., which then served as a basis for Lewis. If the above
hypothetical was converted to allegations of a complaint, I believe that such a complaint would
undoubtedly state a claim for negligence in Illinois. I believe the physical impact of being
knocked down by a motorbike and the resulting pain, bruising, bleeding, or other physical
symptom, however minor, that would have inevitably occurred are sufficient to constitute a
present physical injury, which would allow a plaintiff to recover for medical monitoring
damages. Perhaps the question would then become what if the plaintiff did not have any pain,
bruising, bleeding, or other physical symptom? It is perplexing why someone who was not in
pain, who was not experiencing any physical symptoms, and who did not have any visual
physical injury would undergo substantially costly medical examinations. However, even if no
outward physical manifestations of injury were apparent, a physical impact has been found to
be sufficient to constitute a physical injury in certain circumstances. 5 For example, in claims
seeking recovery for negligent infliction of emotional distress, our supreme court has
confirmed that “a direct victim’s claims for negligent infliction of emotional distress must
include an allegation of contemporaneous physical injury or impact.” (Emphasis added.)
Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 38. Thus, I disagree with the logic
from Friends For All Children, Inc. because Illinois law would allow recovery for medical
monitoring damages in the hypothetical the court relied upon to recognize medical monitoring
damages as compensable without present physical injury.
¶ 84 Second, Lewis is not convincing because its recognition that the cost of medical testing was
compensable absent a present, physical injury was premised on the fact that the court there
“[found] no reason why the expense of such an examination is any less a present injury
compensable in a tort action than the medical expenses that might be incurred to treat an actual
physical injury caused by such a breach of duty.” (Emphasis added.) Lewis, 342 Ill. App. 3d at
101-02. It is not clear whether the defendant in Lewis raised the same arguments as defendant
here, i.e., the applicability of the single-recovery principle, the applicability of the Moorman
doctrine, and the public policy considerations weighing against allowing recovery without
present physical injury.
¶ 85 Third, some confusion exists in Lewis as a result of the court’s apparent use of the terms
“injury” and “damage” interchangeably. In Lewis, the court stated that it found “no reason why
the expense of such an examination is any less a present injury compensable in a tort action
than the medical expenses that might be incurred to treat an actual physical injury caused by
such a breach of such duty” (emphasis added) (id.), but in Lewis v. NL Industries, Inc., 2013
IL App (1st) 122080, a subsequent appeal of the same case, the court referred to its prior
decision in Lewis as accepting “plaintiffs’ theory that the cost of lead testing or assessment
could constitute a compensable damage” (emphasis added) (id. ¶ 2). This is not a distinction
without a difference. In setting forth the elements of a cause of action for negligence, injury
and damages are often denoted separately. See Boyd, 166 Ill. 2d at 194-95. Additionally, it has
long been recognized that “[a] legal injury is a wrongful act resulting in damages. As a general
5
As a brief aside, I, again, note that plaintiffs have not argued that the exposure to lead in their
drinking water was a present physical injury sufficient to state a claim. If they had, such an argument
would be meritless because our supreme court has already recognized that mere exposure to a harmful
substance is not sufficient to constitute a present physical injury. See Williams, 228 Ill. 2d at 424-26
(finding that radiation exposure is not a present physical injury).
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rule, to constitute a valid cause of action, there must be both injury and damages. An action
cannot be maintained for an injury without damage.” Franks v. North Shore Farms, Inc., 115
Ill. App. 2d 57, 65 (1969). Thus, I further decline to rely on Lewis because confusion exists as
a result of the court’s initial use of the term “injury” and later use of the term “damage” when
referring to the same item.
¶ 86 Fourth, Lewis’s holding hinged on a causation issue, not an injury issue as we are faced
with here. Based on the foregoing, I reject plaintiffs’ reliance on Lewis.
¶ 87 3. Single-Recovery Principle
¶ 88 Further support for my position that plaintiffs were required to plead a present physical (or
actual) injury in order to state a claim for medical monitoring damages is apparent when one
attempts to rectify plaintiffs’ lack of present physical injury with the single-recovery principle.
The majority fails to fully address this issue and merely makes the unexplained conclusion that
“[t]his court should not find plaintiffs’ allegations barred based on what might happen in the
future.” Supra ¶ 39.
¶ 89 In Illinois, we follow the single-recovery principle, which holds that “there may not be
more than one recovery of damages for a single, indivisible injury.” Saichek v. Lupa, 204 Ill.
2d 127, 140 (2003). This means that, when a plaintiff sustains an injury, he cannot divide up
his claim and bring successive actions to obtain additional damages. Id. This is true
“ ‘regardless of whether or not the plaintiff has recovered all that he or she might have
recovered’ in the initial proceeding.” Id. (quoting Dillon, 199 Ill. 2d at 502). “This rule is
founded on the premise that litigation should have an end and that no person should be
unnecessarily harassed with a multiplicity of lawsuits.” Rein v. David A. Noyes & Co., 172 Ill.
2d 325, 340 (1996).
¶ 90 Plaintiffs assert that their claims do not implicate the single-recovery principle because the
purpose of claim preclusion is to prevent future actions on grounds that could have been raised,
not to hinder future actions on grounds that did not yet exist in an earlier action. Plaintiffs do
not cite any Illinois case law to support their point and primarily rely on a federal case from
Pennsylvania, Gates v. Rohm & Haas Co., 265 F.R.D. 208 (E.D. Pa. 2010), aff’d, 655 F.3d
255 (3d Cir. 2011). I decline to rely on Gates because in addition to being a federal decision
from another state, in that case, the court was tasked with deciding whether to grant class
certification and did not decide whether Illinois law applied or what effect the “Illinois so-
called single recovery rule” would have if Illinois law did apply. Id. at 219.
¶ 91 Instead, I opt to rely on our supreme court’s decision in Dillon, which, as previously stated,
placed express importance on the single-recovery principle. I find that plaintiffs’ claim for
medical monitoring damages absent a present physical injury is unworkable in light of the
single-recovery principle. If plaintiffs were allowed to recover damages for medical
monitoring without any physical symptoms, then under the single-recovery principle, they
would also have to seek compensation for personal injuries that did not yet (or may never)
exist. Until plaintiffs manifested a physical injury, it would be impossible to determine what
treatment and corresponding compensation was merited. Additionally, plaintiffs have not cited
any binding precedent that supports their contention that the single recovery rule does not
prevent future actions on grounds that did not yet exist. As such, I find that the single-recovery
principle weighs against recognition of medical monitoring damages absent a present physical
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injury.
¶ 92 4. Moorman Doctrine
¶ 93 The majority also fails to fully address this issue and merely finds that, because the
plaintiffs’ claims are “more in line with tort theory,” the Moorman doctrine does not apply.
Supra ¶ 40. Likely, this is because the majority ignores plaintiffs’ argument that the cost of
medical testing is a present compensable injury. Plaintiffs contend that the Moorman doctrine,
or economic loss doctrine, has no application here, where their injury does not meet the
definition of solely economic damages. “At common law, solely economic losses are generally
not recoverable in tort actions.” In re Chicago Flood Litigation, 176 Ill. 2d 179, 198 (1997).
In Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69, 85-86 (1982), our supreme
court held that the plaintiff purchaser of a grain storage tank was unable to recover in tort from
the manufacturer for solely economic loss based on defects in the tank. The plaintiff had pled
theories of liability sounding in strict liability, negligence, and innocent misrepresentation. Id.
at 72. The court recognized that claims involving “qualitative defects” in products are “best
handled by contract, rather than tort.” Id. at 85-86.
¶ 94 The Moorman doctrine was further examined in In re Chicago Flood Litigation, a case
wherein the plaintiffs (individuals and businesses) brought suit against the City of Chicago and
another defendant for negligence, willful and wanton misconduct, and strict liability as a result
of massive flooding that occurred in the Chicago Loop, and sought “damages for various
alleged losses proximately caused by the flood, including: injury to their property; lost
revenues, sales, profits, and good will; lost wages, tips, and commissions; lost inventory; and
expenses incurred in obtaining alternate lodging.” 176 Ill. 2d at 185-86. The trial court granted
the city’s motion to dismiss because the Moorman doctrine barred recovery for those plaintiffs
who only alleged economic loss rather than physical property damage, and the appellate court
affirmed for plaintiffs who only alleged an economic loss but did not bar the claims of the
plaintiffs who alleged damage in the form of lost inventory due to disruption of utility service.
Id. at 186-88.
¶ 95 Our supreme court agreed with the trial and appellate courts that “those plaintiffs who did
not incur personal injury or property damage may not recover solely economic losses.” Id. at
201. The court explained that “the tort recovery requirement of injury to person or property is
not a ‘fortuity,’ ” (id. at 199) because as recognized in Moorman, “ ‘[t]ort law [is]
“appropriately suited for personal injury or property damage resulting from a sudden or
dangerous occurrence” whereas the remedy for a “loss relating to a purchaser’s disappointed
expectations due to deterioration, internal breakdown or nonaccidental cause *** lies in
contract.” ’ ” Id. at 200 (quoting In re Illinois Bell Switching Station Litigation, 161 Ill. 2d 233,
240-41 (1994), quoting Moorman, 91 Ill. 2d at 86). The court also rejected the plaintiffs’
argument that the flood was a sudden or calamitous event, reasoning that the exception to the
Moorman doctrine that the plaintiffs sought to invoke was made up of “a sudden, dangerous,
or calamitous event coupled with personal injury or property damage” and that the exception
would not apply to losses incurred without any personal injury or property damage. Id. at 200-
01. The court concluded that, “[a]bsent injury to a plaintiff’s person or property, a claim
presents an economic loss not recoverable in tort.” Id. at 201.
¶ 96 Here, plaintiffs first argue that the Moorman doctrine does not apply because their
complaint is not rooted in contractual or commercial expectations. Defendant asserts that
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plaintiffs’ view of the rule is outdated and was rejected by our supreme court in City of Chicago
v. Beretta U.S.A. Corp., 213 Ill. 2d 351 (2004). In Beretta, the court recognized, “Although the
economic loss doctrine is rooted in the theory of freedom of contract, it has grown beyond its
original contract-based policy justifications of maintaining the fundamental distinction
between contract and tort and protecting the freedom of parties to allocate risk by contract.”
Id. at 422. The court further explained that the plaintiffs had alleged solely economic damages
because the damages were based on “costs incurred in the absence of harm to a plaintiff’s
person or property.” Id. at 423. I agree with defendant’s contentions on this point, and contrary
to the majority, I find that merely because plaintiffs’ allegations do not arise from a contractual
relationship does not preclude the application of the Moorman doctrine. In this case, the only
loss alleged by plaintiffs in their negligence count is an economic one, i.e., the cost of medical
testing and monitoring, and thus Moorman applies.
¶ 97 In Moorman, the court set forth three exceptions to the economic loss rule that our supreme
court has subsequently summarized as follows:
“(1) where the plaintiff sustained damage, i.e., personal injury or property damage,
resulting from a sudden or dangerous occurrence [citation]; (2) where the plaintiff’s
damages are proximately caused by a defendant’s intentional, false representation, i.e.,
fraud [citation]; and (3) where the plaintiff’s damages are proximately caused by a
negligent misrepresentation by a defendant in the business of supplying information
for the guidance of others in their business transactions [citation].” (Emphasis in
original.) In re Chicago Flood Litigation, 176 Ill. 2d at 199.
Plaintiffs argue that even if the economic loss rule was implicated, then the first exception
listed in Moorman applies because contamination is a form of property damage that does not
constitute a solely economic loss. Defendant responds that no exception applies because any
alleged damage was not caused by a sudden, dangerous, or calamitous occurrence. I agree.
Although plaintiffs’ count II for inverse condemnation seeks compensation for alleged
property damage to their service lines, plaintiffs have not alleged they sustained any personal
injury. Plaintiffs have not cited, and I have not found, any case where an allegation of property
damage in one count was sufficient to recover for personal injury damages in another count
where no present physical injury to the plaintiff’s person existed. I decline to make such a
finding here.
¶ 98 Even assuming arguendo that plaintiffs adequately alleged compensable property damage
in count I, which they have not, the Moorman doctrine would still prevent plaintiffs from
stating a claim here because their alleged property damage did not result from a sudden,
dangerous, or calamitous event, as is required for the relevant exception to preclude application
of the doctrine. Compare Donovan v. County of Lake, 2011 IL App (2d) 100390, ¶ 54 (holding
that no sudden or calamitous event occurred where the alleged water contamination
“manifested itself over a five-year period”), with Board of Education of City of Chicago v. A,
C & S, Inc., 131 Ill. 2d 428, 450 (1989) (recognizing that preventing “recovery in tort merely
because the physical harm did not occur suddenly would defeat the underlying purposes of
strict products liability”). Neither plaintiffs’ opening brief nor their reply provides an
explanation or argument as to how the alleged lead contamination resulted from a sudden,
dangerous, or calamitous event. Further, plaintiffs’ complaint made clear that their allegations
stemmed from corrosion that would occur “over time,” albeit at a more rapid pace. As such,
count I of plaintiffs’ complaint seeking purely economic damages for the cost of medical
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testing violates the Moorman doctrine and does not fall under one of its exceptions.
¶ 99 5. Other Policy Considerations
¶ 100 In addition to running afoul of our supreme court’s decision in Williams, the single-
recovery principle, and the Moorman doctrine, recognition of medical monitoring damages for
plaintiffs’ negligence claim absent present physical injury would have various negative policy
implications. The United States Supreme Court recognized that allowing such a claim could
lead to an essentially limitless pool of plaintiffs because it is widely accepted that “tens of
millions of individuals may have suffered exposure to substances that might justify some form
of substance-exposure-related medical monitoring.” Metro-North Commuter R.R. Co. v.
Buckley, 521 U.S. 424, 442 (1997). The high number of potential plaintiffs, coupled with the
uncertainty as to the amount of liability, could result in a flood of less important cases that
would absorb resources that are better left available to those who are more seriously harmed.
Defendants do not have access to an unlimited supply of financial resources, and requiring a
present physical injury sufficiently quells an influx of litigation that might deplete a
defendant’s financial resources that are more productively utilized by actually injured
plaintiffs. In the same vein, the Supreme Court of Michigan aptly recognized the following:
“To recognize a medical monitoring cause of action would essentially be to accord
carte blanche to any moderately creative lawyer to identify an emission from any
business enterprise anywhere, speculate about the adverse health consequences of such
an emission, and thereby seek to impose on such business the obligation to pay the
medical costs of a segment of the population that has suffered no actual medical harm.”
Henry v. Dow Chemical Co., 701 N.W.2d 684, 703 (Mich. 2005).
The following reasoning from that case is also sound:
“The present physical injury requirement establishes a clear standard by which judges
can determine which plaintiffs have stated a valid claim, and which plaintiffs have not.
In the absence of such a requirement, it will be inevitable that judges *** will be
required to answer questions that are more appropriate for a legislative than a judicial
body ***.” Id. at 691.
¶ 101 The foregoing logic from Henry comports with our state’s view of tort law. Although not
recognized by the majority as such, the majority’s decision is the first of its kind in this state,
and it is pertinent to note that a broad range of holdings from the highest state courts across the
country exists. 6 The divergence among the states illustrates that this is an area of law where
6
Many states have rejected medical monitoring damages without present physical injury. See
Caronia v. Philip Morris USA, Inc., 5 N.E.3d 11, 18 (N.Y. 2013) (refusing to recognize a judicially
created independent cause of action for medical monitoring because allowing such a claim, absent
evidence of present physical injury or property damage, would have been “a significant deviation from
[New York’s] tort jurisprudence”); Lowe v. Philip Morris USA, Inc., 183 P.3d 181, 187 (Or. 2008)
(holding that negligent conduct that results only in a significantly increased risk of future injury that
requires medical monitoring did not give rise to a claim for negligence); Paz v. Brush Engineered
Materials, Inc., 2006-FC-00771-SCT (¶ 5) (Miss. 2007) (“Creating a medical monitoring action would
be contrary to Mississippi common law, which does not allow recovery for negligence without showing
an identifiable injury ***.”); Henry, 701 N.W.2d at 692 (rejecting medical monitoring as a separate
cause of action and also as a form of damages in a tort action because the only noneconomic injury
alleged by the plaintiffs was their fear of future physical injury); Wood v. Wyeth-Ayerst Laboratories,
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there is neither a majority rule nor discernible trend. Based on my analysis of Illinois
jurisprudence, I find that the trial court properly dismissed plaintiffs’ count I for negligence
based on plaintiffs’ failure to allege present physical (or actual) injury to person or property,
in addition to damages that result from said injury.
¶ 102 6. Defendant’s Section 2-619 Motion to Dismiss
¶ 103 As a final matter on count I, I take issue with the majority’s decision to make advisory 7
rulings on defendant’s section 2-619 motion to dismiss. Defendants filed a motion to dismiss
pursuant to section 2-619.1 of the Code, which allows combined motions pursuant to section
2-615, section 2-619, and section 2-1005. 735 ILCS 5/2-619.1 (West 2016). Section 2-619.1
does not authorize distinctive claims pursuant to section 2-615, 2-619, or 2-1005 to be
commingled. Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 20.
“Combined motions pursuant to section 2-619.1 retain procedural distinctions between section
2-615, section 2-619, and section 2-1005 based motions, and parties are not free to ignore these
distinctions.” Id. Additionally, a motion to dismiss for failure to state a claim (section 2-615)
tests the legal sufficiency of the complaint based on defects apparent on its face (735 ILCS
5/2-615 (West 2016)), whereas a motion to dismiss based on an affirmative matter (section 2-
619) admits the legal sufficiency of the complaint, admits all well-pleaded facts and all
reasonable inferences therefrom, and asserts that an affirmative matter outside the complaint
bars or defeats the causes of action (id. § 2-619(a)(9)), such as tort immunity.
¶ 104 Here, the trial court’s March 29, 2018, order, granting defendant’s motion to dismiss
explicitly stated, “In disposing of this motion to dismiss on the narrowest possible grounds, the
Court finds it unnecessary to address many of Defendant’s arguments and does not reach any
of the grounds for dismissal urged under section 2-619.” The order also specifically stated that
Division of American Home Products, 82 S.W.3d 849, 857 (Ky. 2002) (rejected prospective medical
monitoring claim without present injury); Hinton ex rel. Hinton v. Monsanto Co., 813 So. 2d 827, 829
(Ala. 2001) (“Although we acknowledge that other jurisdictions have recognized medical monitoring
as a distinct cause of action or as a remedy under other tort causes of action, even in the absence of a
present physical injury, we do not and need not know how such jurisdictions coordinated that
recognition with the traditional tort-law requirement of a present injury.”).
Conversely, some states allow recovery for medical monitoring damages without the plaintiff
showing a present, physical injury. See Sadler v. PacifiCare of Nevada, Inc., 340 P.3d 1264, 1270 (Nev.
2014) (holding that “a plaintiff may state a cause of action for negligence with medical monitoring as
the remedy without asserting that he or she has suffered a present physical injury” (emphasis in
original)); Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 719 (Mo. 2007) (en banc) (finding
that there is no need for proof of a present physical injury in a medical monitoring case); Simmons v.
Pacor, Inc., 674 A.2d 232, 239-40 (Pa. 1996) (finding that despite the absence of physical manifestation
of any asbestos-related disease, the plaintiffs were able to recover for such regular medical testing and
evaluation as is reasonably necessary and consistent with contemporary scientific principles); Potter v.
Firestone Tire & Rubber Co., 863 P.2d 795, 824 (Cal. 1993) (en banc) (holding that “the cost of medical
monitoring is a compensable item of damages where the proofs demonstrate, through reliable medical
expert testimony, that the need for future monitoring is a reasonably certain consequence of a plaintiff’s
toxic exposure and that the recommended monitoring is reasonable”).
7
I refer to the majority’s conclusion on the section 2-619 motion as “advisory” because it states that
“dismissal of plaintiffs’ negligence claim pursuant to section 2-619 of the Code would be error,”
implicitly acknowledging that the trial court never ruled on this motion. (Emphasis added.) Supra ¶ 45.
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defendant’s motion to dismiss “pursuant to section 2-615” is granted. Thus, the trial court did
not enter a judgment on defendant’s section 2-619 motion to dismiss. Despite it being
abundantly clear that the trial court did not consider or rule on defendant’s section 2-619
motion to dismiss, the majority takes it upon itself to conduct analysis and make a conclusion
on the issue.
¶ 105 The majority cites Brugger v. Joseph Academy, Inc., 326 Ill. App. 3d 328 (2001), as support
for its consideration of defendant’s section 2-619 motion, even though it was not ruled upon
by the trial court. In Brugger, the trial court granted the defendant’s motion for summary
judgment “on the grounds that [the defendant] was a ‘local public entity’ entitled to supervisory
immunity for negligence and willful and wanton misconduct under sections 1-206 and 3-108(a)
of the Tort Immunity Act.” Id. at 330. On appeal, the plaintiff asserted that the trial court
incorrectly found that the defendant, a private school, was protected under the Tort Immunity
Act. Id. The defendant argued that the plaintiff waived review of the issue by failing to raise it
in the trial court. Id. The court stated, “Review of the record indicates that [the plaintiff] raised
the argument in the trial court that the Tort Immunity Act did not immunize [the defendant]
from liability. Further, a reviewing court may consider an issue where, as here, the issue is one
of law and is fully briefed and argued by the parties. [Citations.]” Id. at 330-31.
¶ 106 The scenario before this court is not similar to Brugger. While it is true that a reviewing
court may affirm on any basis in the record, there must first be a judgment entered by the circuit
court for us to affirm. Estate of Powell v. John C. Wunsch, P.C., 2013 IL App (1st) 121854,
¶ 32. In Brugger, the trial court granted the defendant’s summary judgment motion specifically
based on the issue of tort immunity. Here, unlike Brugger, the circuit court did not enter a
judgment on defendant’s section 2-619 motion to dismiss based on tort immunity, and thus
even though it was briefed by the parties, the majority should not have addressed that issue for
the first time on appeal. See, e.g., City of Chicago v. Latronica Asphalt & Grading, Inc., 346
Ill. App. 3d 264, 276-77 (2004) (refusing to address the merits of the defendant’s section 2-
615 motion to dismiss because “it was never addressed or even ruled on by the trial court in
reaching its decision”). Even more troubling is the fact that the majority seemingly decides the
contested issue of whether tort immunity applies in the context of an inverse condemnation
claim by cursorily stating in a footnote that “even if it did apply, we find that [defendant] has
not established this affirmative defense as to plaintiffs’ inverse condemnation claim for the
same reasons.” Supra ¶ 47 n.3. Such a conclusion is concerning.
¶ 107 B. Count II: Inverse Condemnation
¶ 108 I also dissent from the majority’s decision that the trial court improperly dismissed count
II for inverse condemnation. The majority’s decision analyzes a number of cases cited by the
parties and concludes that “[t]hese cases do not establish that damages suffered by numerous
plaintiffs cannot be ‘special damages.’ ” Supra ¶ 53. Although I agree that there is no law that
states that inverse condemnation claims brought by numerous plaintiffs are not allowable, I
believe the majority has ignored the fact that plaintiffs have failed to allege that they suffered
any damages beyond that which would be experienced by a member of the general public
whose water main or meter was replaced.
¶ 109 “Property is considered damaged for purposes of the takings clause if there is ‘any direct
physical disturbance of a right, either public or private, which an owner enjoys in connection
with his property; a right which gives the property an additional value; a right which is
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disturbed in a way that inflicts a special damage with respect to the property in excess of that
sustained by the public generally.’ ” Hampton v. Metropolitan Water Reclamation District,
2016 IL 119861, ¶ 27 (quoting Citizens Utilities Co. of Illinois v. Metropolitan Sanitary
District of Greater Chicago, 25 Ill. App. 3d 252, 256 (1974)). Our supreme court has also
recognized:
“[I]t has long been established that there are certain injuries, necessarily incident to the
ownership of property, which directly impair the value of private property and for
which the law does not, and never has, afforded any relief, examples being the
depreciation caused by the building of fire houses, police stations, hospitals, cemeteries
and the like in close proximity to private property. [Citations.] Such injury is deemed
to be damnum absque injuria—loss without injury in the legal sense—on the theory
that the property owner is compensated for the injury sustained by sharing the general
benefits which inure to all from the public improvement.” Belmar Drive-In Theatre Co.
v. Illinois State Toll Highway Comm’n, 34 Ill. 2d 544, 550 (1966).
¶ 110 The trial court dismissed plaintiffs’ count II, finding that “the damage to [p]laintiffs is not
special: it is a damage borne equally by all residents of the City of Chicago attendant to a
public improvement, namely the replacement of lead water mains.” (Emphasis in original.) I
agree with this assessment. In Rigney v. City of Chicago, 102 Ill. 64, 81 (1881), our supreme
court first recognized that, in order to recover damages in an inverse condemnation action, a
plaintiff must show, inter alia, that “he has sustained a special damage with respect to his
property in excess of that sustained by the public generally.” Various cases decided since then
illustrate the manner and context in which this language has been applied, though none have
addressed a factual scenario identical to the one before us.
¶ 111 In City of Chicago v. Union Building Ass’n, 102 Ill. 379, 381, 391 (1882), a building
association filed suit against the City, alleging that as a result of City action, a portion of
La Salle Street would become impassable as a thoroughfare and thus would cause great
damage to the plaintiffs’ property, which was located 3½ away. The building association
argued that it had an individual interest that was distinct from others because its lot had
contributed to the costs of extending and opening La Salle Street, in special assessments made
for benefits received. Id. at 391. Our supreme court determined that the business association
did not suffer special damages, and only sustained damages “of the same kind as those
sustained by the general public, differing, if at all, only in degree.” (Emphasis in original.) Id.
at 393.
¶ 112 Similarly, in Parker v. Catholic Bishop of Chicago, 146 Ill. 158, 168 (1893), our supreme
court held that the owner of property adjacent to an alley that was to be permanently closed off
did not suffer damages special from that of the general public. The court explained that “special
injury, or damages differing in kind from those affecting the general public are the gist of the
right of private action.” Id. The property owner did not suffer special damages because,
although she had to go a few feet further to access her property, that was the “same kind of
damage that will be sustained by all other persons in the city that might have occasion to go
that way.” (Internal quotation marks omitted.) Id.
¶ 113 Conversely, in Department of Transportation v. Rasmussen, 108 Ill. App. 3d 615, 621-22
(1982), the owners of a gas station brought an inverse condemnation claim for damages to their
land after access to their property was materially impaired as a result of highway overpass
construction, leading to a decrease in the property’s value. On appeal, the court rejected the
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Department of Transportation’s argument that the gas station owners merely experienced the
same circuitousness as the general public. Id. at 621. The court reasoned that a claimant must
show “a direct physical disturbance peculiar to his property; depreciation suffered in common
by all lands in the vicinity of an improvement is not compensable.” Id. Because the
construction specifically limited ingress and egress to their property, the gas station owners
were entitled to recover. Id. at 623-24.
¶ 114 Here, plaintiffs contend that the circuit court’s decision to dismiss their inverse
condemnation claim was erroneously based on the large number of potential claimants in this
action. It is not the number of plaintiffs that is fatal to plaintiffs’ claim but rather that plaintiffs
Berry and Peysin have allegedly suffered the same kind of damage as one another and the same
kind of damage as any other resident with lead service lines, i.e., 80% of the city’s population,
would suffer if the city replaced a nearby water main. Plaintiffs’ count II alleged that, as a
result of defendant’s water main and meter replacement projects, their services lines are more
dangerous because their lead pipes now corrode more aggressively than under normal
circumstances. Plaintiffs’ complaint sought certification of the following class: “All residents
of the City of Chicago who have resided in an area where the City has replaced the water mains
or meters (including, but not limited to, those areas defined in attached Exhibit A) between
January 1, 2008, and the present.” Exhibit A to the complaint does not appear in the record.
However, we are aware of the contents of Exhibit A because the trial court’s order included a
footnote that stated, “Exhibit A to Plaintiffs’ First Amended Complaint consists of a 58-page
listing of various streets throughout Chicago where work on water mains has occurred since
2009.” Plaintiffs’ complaint also alleged the following:
“25. As early as the mid-1800’s, public health official and medical journals warned
of the dangers of lead to humans and openly questioned the use of lead. By the late-
1800’s, some states had begun advising ‘cities and towns to avoid the use of lead pipes’
altogether, as ‘there was little doubt in the public health community that lead water
pipes were to be avoided.’ Consequently many cities had already begun banning their
use as of the 1920’s, ‘conclud[ing] that the engineering advantages of lead were
outweighed by the public health risks ***.’
26. Chicago did not ban the use of lead in plumbing and public water systems. In
fact, Chicago did the opposite; up until the federal ban in 1986, the City actually
required residents to install lead service lines, even in the face of all the public health
warnings over the past century.
27. Due to its own building code, the City thus contains ‘a legacy of millions’ of
lead service lines throughout the city and not surprisingly has more than any other U.S.
municipality, such that nearly 80 percent of the properties in Chicago receive their
drinking water via lead pipes. Unfortunately, these older pipes can corrode, ‘result[ing]
in the transfer of dissolved or particulate lead into the drinking water.’ ” (Emphasis in
original.)
¶ 115 Plaintiffs’ allegations make clear that their alleged damages are not “special.” Plaintiffs’
damages are of the same kind as their neighbors and 80% of the properties in Chicago, who
have lead service lines and are connected to water mains that have been or will need to be
replaced. Plaintiffs’ complaint also stated that defendant performed water infrastructure
projects in more than 1600 areas and that damages allegedly sustained, except as to amount,
were common to all members of the putative class. To allege only a difference in degree or
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amount of damages is not sufficient; a plaintiff must also allege a difference in kind of
damages. See Metropolitan West Side Elevated R.R. Co. v. Goll, 100 Ill. App. 323, 332 (1902)
(“It is not enough that the damage exceeds merely in amount that sustained by the public
generally. It must be greater in kind—that is, greater by reason of its peculiar nature; for if only
greater in degree no recovery can be had.”). Plaintiffs’ count II fails to state a claim because it
essentially alleges that plaintiffs and all potential class members have the same kind of
damages that vary only in amount. It is perplexing how plaintiffs can argue that their damages
were both common and special. Perhaps the inability to rectify these concepts is the reason the
parties did not cite, and we did not find, any compensable class action claims for inverse
condemnation damages.
¶ 116 If this was not a putative class action alleging commonality, our analysis would still be the
same because there is nothing that makes Berry’s or Peysin’s damages different from the public
generally, i.e., their neighbors who are connected to the same water main that defendant
replaced, or from all persons who lived in a residence where defendant partially replaced a lead
service line or water main. Plaintiffs argue that the public cannot “generally” sustain damage
when water main or meter replacement takes place on a specific street, in a specific part of the
city, and thus only affects only a few homes. However, this argument ignores that a plaintiff
must allege a direct disturbance that was “peculiar” to his property because “depreciation
suffered in common by all lands in the vicinity of an improvement is not compensable.” See
Rasmussen, 108 Ill. App. 3d at 621. According to plaintiffs’ complaint, anyone who resided in
one of the more than 1600 locations where defendant performed a partial lead service line
replacement would have experienced the same damages, i.e., pipes that corrode more
aggressively and are more dangerous. Thus, plaintiffs’ alleged damages are of the same kind
as the general public.
¶ 117 Even if I found plaintiffs’ damages to be sufficiently “special,” which I have not, count II
for inverse condemnation was still properly dismissed because the water infrastructure repairs
that allegedly caused the damage to plaintiffs’ service lines were necessarily incident to
property ownership. In Belmar Drive-In Theatre Co., the operator of a drive-in movie theatre
brought an action against the highway commission seeking damages based on allegations that
bright lights emanating from a toll-road service center made it impossible to show outdoor
movies and caused the theatre’s business to decline. 34 Ill. 2d at 546. On appeal, our supreme
court found that the theatre’s claimed injury was based solely on “the exceptionally sensitive
and delicate use to which plaintiff devotes its own property” and that such injuries are not
compensable. Id. at 548-50. The court held that, although the sensitive and delicate nature of
the theatre’s use of the land was enough to demonstrate the claim’s inadequacy, the claim was
also deficient because “there are certain injuries, necessarily incident to the ownership of
property, which directly impair the value of private property and for which the law does not,
and never has, afforded any relief.” Id. at 550. For example, the depreciation caused by the
building of fire houses, police stations, hospitals, and cemeteries in close proximity to private
property has never been compensable. Id. The court explained, “Such injury is deemed to be
damnum absque injuria—loss without injury in the legal sense—on the theory that the property
owner is compensated for the injury sustained by sharing the general benefits which inure to
all from the public improvement.” Id.
¶ 118 I find that plaintiffs’ alleged damages are of a nature that renders them necessarily incident
to the ownership of property and thus plaintiffs have failed to state a claim. Plaintiffs’
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allegations indicate that their alleged property damage is incident to their ownership of
property in Chicago, where the use of lead service lines was mandated until 1986, and
defendant has opted to partially replace those lines in thousands of locations throughout the
city in order to avoid the consequences from corrosion over time. As previously mentioned,
plaintiffs alleged that “nearly 80 percent of the properties in Chicago receive their drinking
water via lead pipes.” Thus, any alleged damage that resulted from defendant’s infrastructure
repair or maintenance to its water system would necessarily be incident to property ownership
in this city, in the same way that any general benefit received from such repairs, such as the
reduction of service interruptions, preventing holes and cracks that could allow bacteria, and
preventing wastewater leaks, is also common to all owners. Therefore, I respectfully dissent
and would affirm the trial court’s dismissal of count II.
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