Raabe v. Messiah Evangelical Lutheran Church of Port Byron

Citations: 615 N.E.2d 15; 245 Ill. App. 3d 539; 185 Ill. Dec. 720; 1993 Ill. App. LEXIS 808Docket: 3-92-0578

Court: Appellate Court of Illinois; June 3, 1993; Illinois; State Appellate Court

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Willi R. Raabe and Diane R. Raabe filed a lawsuit against Messiah Evangelical Lutheran Church and J. Darwin and Susan Olsen, seeking damages and an injunction due to recurring flooding of their home in Port Byron, Illinois. The trial court granted summary judgment in favor of the Church and the Olsens, while denying summary judgment for Brinkman Pessman Lumber Co., leading to appeals from both plaintiffs and Brinkman, which were consolidated.

The plaintiffs have owned their home since 1974, located downhill from the defendants' property across Highway 84. After the Church built a parking lot in 1979, the plaintiffs began to experience flooding during heavy rains, with water and debris entering their home annually. Testimonies indicated that heavy rains caused water to flow from the Church parking lot onto Brinkman Lumber Co.'s property, leading to the construction of a fence by Brinkman to redirect the water. This fence exacerbated the flooding issue for the plaintiffs, culminating in severe flooding during a heavy rain in June 1990 that damaged their home and driveway. The plaintiffs filed their complaint in 1991, seeking relief for the ongoing water damage and related issues.

Count I of the complaint alleges that the Church's installation of a parking lot altered the natural drainage, redirecting stormwater runoff to a highway ditch and subsequently onto the plaintiffs' property during heavy rainfall on June 16, 1990. The plaintiffs claim negligent construction of the parking lot, seeking $13,915 for property damage and $32,000 for loss of value due to a foundation crack, along with an injunction to restore original grading or install a storm sewer. Count II accuses defendant Brinkman of constructing a fence that redirected stormwater runoff onto the plaintiffs' property, resulting in flooding on June 16, 1990, and requests both monetary damages and an injunction for fence removal and restoration of natural drainage. Count III states that the defendants Olsen purchased part of the Church's property in March 1990 but have not modified the parking lot or drainage systems that continue to cause damage. The plaintiffs seek damages and an injunction against the Church in Count I. A related Count IV against other purchasers was dismissed due to their acquisition occurring post-flooding, and this dismissal is not contested on appeal.

The key appellate issue is whether the trial court erred in granting summary judgment for the Church and the Olsens. The court determined the plaintiffs' claims were not barred by the five-year statute of limitations for real property damage (section 13-205) but were instead subject to a four-year limitation pertaining to improvements to real property (section 13-214). The court found that the plaintiffs were aware of their cause of action against the Church by April 7, 1980, when they filed a previous lawsuit related to similar flooding issues, which was dismissed with prejudice after a settlement. The court referenced legal principles from Firestone v. Fritz, establishing that a cause of action for unreasonable increased drainage can accrue upon completion of a permanent structure, while injuries from non-apparent structures may only accrue upon actual use causing injury. The ruling emphasized that significant potential for flooding, even if uncertain in occurrence, can constitute an immediate, permanent injury.

Plaintiffs contend that if recurrent and intermittent overflows stem from negligent use or natural events rather than directly from construction, the statute of limitations for claims begins anew with each overflow. This argument references Kurtz v. County of Logan, where flooding began after the defendant County modified a bridge and highway, leading to a ruling that each flood could represent a distinct harm, thus resetting the limitations period under the five-year statute of limitations for realty damage. The trial court in the current case determined that plaintiffs’ damages originated from the construction of a parking lot and fence without appropriate drainage modifications. However, a recent Illinois Supreme Court decision in Meyers v. Kissner clarified that such construction can constitute a continuing nuisance, allowing for repeated causes of action. The court ruled that the maintenance of a structure causing ongoing water diversion is a continuous nuisance, enabling plaintiffs to choose when to file suit without being barred by the limitations period. In the current matter, evidence of annual flooding and water diversion by the defendants' construction supports the conclusion that a continuing nuisance exists, allowing plaintiffs to recover damages incurred within the five years preceding their complaint without being restricted by the statute of limitations.

Plaintiffs' legal claim arises with each instance of flooding, allowing them to choose when to file their suit. For ongoing violations like flooding, they can only recover damages from the five years preceding the complaint. This interpretation aligns with Meyers v. Kissner, extending to all claims for damages to real estate from recurrent flooding, irrespective of whether the damage stems from initial construction or ongoing maintenance. The issue at hand is treated as a continuing nuisance with repeated damages, regardless of the statute of limitations cited by the defendants. The ruling applies to both Brinkman's fence and the Church-owned parking lot, eliminating the need to classify the fence as an improvement under section 13-214. The court determines that neither section 13-205 nor section 13-214 prevents the plaintiffs from pursuing their claim. The defendants, particularly the Church, argue that the plaintiffs' action is barred by res judicata due to a previous 1980 case dismissal with prejudice, which they claim adjudicated all issues in the original complaint. However, the court clarifies that recurring flood damages establish a new cause of action each time flooding occurs, allowing for recovery for each unique instance of damage, but only for damages incurred in the prior five years. Consequently, the court reverses the trial court's summary judgment in favor of the defendants, affirms the denial of Brinkman's summary judgment motion, and remands the case for further proceedings against Brinkman, the Church, and the Olsens.