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Thursday, April 18, 2013

Township Not Liable for Flooding Under Tort Immunity Act

The Illinois Appellate Court recently held that the Tort Immunity Act applied to a claim brought against a township highway commissioner for damages to property from the alteration of the flow of surface water.   In Pleasant Hill Cemetery Association v. Morefield, 2013 IL App (4th) 120645 (April 10, 2013), a Cemetery Association and its tenant farmer sued the township highway commissioner for allegedly damaging the cemetery’s farmland. The Association alleged that the highway commissioner altered the surface flow of water, which disrupted the farmland’s drainage patterns.
At trial, the highway commissioner contended that the Association’s claims were barred by Section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act. That Section provides that "a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused."  The court agreed and granted the highway commissioner’s motion to dismiss.
On appeal, the Illinois Appellate Court affirmed the trial court’s decision. The Court reasoned that because damaging land by altering the flow of surface water is a nuisance, and because a nuisance is a tort, the Tort Immunity Act applied.  Further, the Court determined that the highway commissioner was not liable under the “willful and wanton” exception to the Act, because altering the flow of the surface water was done for road safety improvements. The Court agreed with the highway commissioner that the safety of drivers on the road outweighed the risk of disrupting farmland drainage patterns.
Post Authored by Erin Baker, Ancel Glink 

1 comment:

  1. This is a terrible result. In Whiteside and Carroll Counties hundreds of acres of farmland have lost their federal flood protection eligibility and home owners are forced to buy flood insurance because the County Road Commissioner install bridges too low over drainage district dikes. One such bridge is south east of Thomson and the other is South of Morrison. The financial losses in farm land values, rental rates, and flood year crop losses are staggering.