Attorneys for the city and park district are citing the state's Tort Immunity Act in their effort to dismiss led to the damage of homes during 2010 summer storms, according to court records.
The act shields government agencies and their workers. In particular, attorneys for the city and park district suggest they had no “actual or constructive notice” to conditions that caused damage.
The city faces a total of three lawsuits accusing it of, among other things, negligence in the way it operates its sanitary sewer system and then failing to properly report overflows to the state. Two cases—separate lawsuits by resident and State Farm Insurance—are tied to specific losses caused by flooding after storms in 2010, while the Illinois Attorney General has sought legal action over the general operation of and reporting on the city’s sewer system.
State Farm Case
The park district is named only in the State Farm case, which accuses the district of placing large piles of wood chips near, and allowing them to collect in, nearby sewer grates. The result of that wood chip buildup was a sewer backup that caused damage to the Larch Avenue home of Michael and Beth Concannon. State Farm wants to recoup a little more than $50,000 paid out by the insurance company to the Concannons to cover the damage and their deductible, according to the suit.
In a joint motion to dismiss filed Oct. 7, the park district said it cannot be sued because there is no evidence to suggest it knew of the wood chip piles and since it has nothing to do with the city sewer system.
“(State Farm) nowhere pleads any facts to establish that the park district should have known of the alleged ‘build up’ of wood chips in the sewer grate and/or sewer,” the motion states.
State Farm has until Nov. 21 to respond. A hearing on the dismissal is scheduled for Dec. 14.
In the Arezina case, the city takes a similar stance, claiming it had no previous knowledge that its system “was not reasonably safe” as related to Arezina’s home.
His lawsuit alleges flooding “was caused by the city's negligent failure to properly operate and maintain its storm and sanitary systems.”
"We're alleging the city knew there was a risk of flooding based on years of experience with flooding as identified by the Illinois EPA," Arezina's attorney, Rick Hoffman, said last month.
Arezina's case was filed as a class action lawsuit to include other Elmhurst residents hit by sewer flooding damage. Arezina and Hoffman held a meeting at Sept. 22 to encourage residents to come forward if they had flooding damage last summer. The 10 people who showed up at that meeting were urged to "be good citizens" and add their names and their neighbors' names to a signup sheet. Hoffman also suggested they could go door to door to find more residents interested in the class action.
"We're pursuing a class action because, as a lawyer, it is our job to find the right tools to advance our client's interest. That happens to be a class action," said Hoffman, who is handling the case on contingency. "Ultimately, if we can only show 50 homes affected, the exposure to the city isn't that great and our ability to negotiate isn't as powerful. If we can show hundreds—or thousands—now we carry much more leverage."
Again, using language from the Tort Immunity Act, the city states it cannot be held liable unless proven it had “actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remove or protect against such conditions,” according to its motion to dismiss filed Oct. 17.
A hearing on whether to dismiss Arezina’s lawsuit is scheduled for Dec. 8. His attorney is expected to respond to the dismissal motion by Nov. 7.
"They're defending it," Hoffman said. "We like our case, but there are no guarantees."
Illinois EPA Case
In July, the Illinois Attorney General filed for an injunction against the city seeking to force Elmhurst to remedy sewer-system problems that resulted in at least 50 sewer overflows—which forced water into residential basements or discharged untreated water into Salt Creek—in recent years.
Residents at Arezina's meeting last month said they were "appalled" to hear claims of only 50 homes affected by flooding. Arezina said he believes the number is in the thousands, but the city has not been forthcoming in providing those numbers.
"All you had to do is drive up and down the street and see everyone's (belongings) on the curb," he said. "We know it's 500, 1,000. It could be 2,000."
The city has said it is working with the attorney general and Illinois Environmental Protection Agency officials on solutions to the sewer issues. A Nov. 15 hearing is scheduled in that case.
Hoffman said last month that if his firm determines the city and EPA are not providing meaningful remedies, they will sue in federal court to get an injunction ordering the city to "take different steps."
There will be civil penalties, attorney fees," he said. "It's fairly significant. We are not looking for them to build the best mousetrap, but we want to make sure steps the city takes are real and meaningful, not just a band-aid."