DuPage Judge Grants Summary Judgment for Village on Sewer Backup Claims

May 2, 2019

The Honorable Dorothy French-Mallen in DuPage County, Illinois granted summary judgment on an orthodontist’s negligence claim against the Village of Itasca in Emil M. Marogil Orthodontics, P.C., et al., v. Village of Itasca, et al. Case No. 2015 L 784 (DuPage Co. Cir. Ct., April 24, 2019). Plaintiffs, Dr. Emil Marogil, his professional corporation, and a limited liability company he owned filed suit against the Village of Itasca over a sewer intrusion onto the premises where Dr. Marogil had his orthodontic practice located.

The orthodontic practice was located in the middle unit of a strip mall located just south of Irving Park Road in Itasca. On May 12, 2015, the Village was alerted to water exiting a manhole on Irving Park Road west of the strip mall’s lateral sewer connection. A Village employee responded to the area, and used a water-jetting truck to clear what appeared to be a blockage in the Village’s main sewer line. The following day, the employee returned to check the area to make sure flow remained undisturbed. Upon his inspection, he noticed a potential blockage in the same area as the previous day’s blockage. The employee again used a water-jetter to clear the blockage. However, this time upon his use of the device, sewer water began rising in the manhole in which he was operating. He, and another employee then moved the truck further downstream and used the jetter to clear the next segment of sewer line. In the interim, the strip mall experienced a backup of sewer water on the premises.

The orthodontist and his limited liability company initially filed suit against his landlord on a myriad of liability theories and later amended his complaint to allege negligence and willful and wanton negligence against the Village for their decision to use the water-jetter to clean the sewer pipe. In May 2016, the Village prevailed on a motion to dismiss Plaintiffs’ complaint pursuant to the Illinois Tort Immunity Act. Afterwards, the professional corporation and the limited liability company filed an amended complaint alleging that the Village’s employees negligently operated the water-jetter truck during the sewer maintenance causing the sewer backup.

The Court found that due to the Village’s prior use of the water-jetting truck without incident that the Village did not owe a duty to the orthodontic practice because the manner in which the Village had used the truck in the past had never caused a similar incident. Additionally, the likelihood of the sewer intrusion happening in the manner that it did was too remote to be foreseeable. Moreover, the Court found that even if a duty had been owed, the Village employee exercised his judgment in the face of competing interests, such as the flow of traffic at the time, his own responsibilities and Village resources in the manner that he used the water-jetting truck. Therefore, the Village was entitled to discretionary immunity under the Tort Immunity Act. The Court granted summary judgment in the Village’s favor. The Village was represented by Charles Hervas and Tony Fioretti.

Emil M. Marogil Orthodontics, P.C., et al., v. Village of Itasca, et al. Case No. 2015 L 784 (DuPage Co. Cir. Ct., April 24, 2019).

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