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
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.
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