Illinois’ highest state court in Gordon Berry, et al, v. The City of Chicago has rejected a proposed class action that threatened to overwhelm Chicago with claims over elevated lead contamination risk from its old lead water lines. On September 24, 2020, the Illinois Supreme Court overturned the ruling of a state appeals court, ruling a Circuit Court of Cook County judge was correct in finding Chicago homeowners needed to do more than simply claim the lead in their water was dangerous in order to hold up their claims that the City of Chicago had harmed them and essentially illegally taken their properties.
The decision was authored by Chief Justice Anne M. Burke. “In this case, plaintiffs have alleged only that the City’s replacement of water mains and meters has made the proposed class members’ property ‘more dangerous,’” Burke reasoned. “The concept of ‘dangerousness’ is not susceptible to objective measurement and, thus, cannot by itself be damage under the Illinois takings clause.”
The decision ends the class action that has moved through Chicago courts since it was filed in the Circuit Court of Cook County in 2016. In that complaint, the plaintiffs accused the city of endangering the health of Chicago residents. The action centered on work the city has undertaken since 2008 to replace city water lines made of lead to gradually reduce the large number of Chicago properties that receive drinking water through lead pipes. To reduce the risk of lead contamination, the city has long treated its drinking water with chemicals to react with lead and create a coating in the pipes to prevent lead from contaminating drinking water. However, when coated pipes are disturbed by activity, such as city work to replace other water lines, lead can again enter the water. In their complaint, the plaintiffs alleged the city’s work led to elevated lead levels in their water long after the city completed its water line replacement work.
Additionally, the plaintiffs claimed the city heightened the risk of lead contamination by connecting pipes made of copper or galvanized steel to the lead service lines that enter homes, which causes more lead to leach into the drinking water used by those customers. The plaintiffs asserted the heightened danger of lead contamination has amounted to a so-called inverse condemnation of their property and argued the city’s actions made their properties worth substantially less, without compensating them for the harm. The plaintiffs asked the courts to order the city to replace residential lead service lines throughout the city, and pay for medical monitoring for city residents who may have been exposed to lead in their drinking water.
Circuit Court of Cook County Judge Raymond Mitchell dismissed the lawsuit, saying the plaintiffs did not suffer any “special” harm that also may not have been spread across the city. However, on appeal, a split three-justice panel of the Illinois First District Appellate Court sitting in Chicago sided with the plaintiffs. The majority said the plaintiffs “sufficiently alleged a present injury in consuming lead-contaminated water, even if they have yet to develop physical ailments linked to such consumption.”
The City of Chicago appealed the case to the Illinois Supreme Court, where justices said the appeals court got the case wrong. The majority opinion found the “increased risk of harm” was not sufficient to sustain the class action. Chief Justice Burke further determined that “[a]lmost anything that a person does while living and working in the world can create a risk of harm to others…The long-standing and primary purpose of tort law is not to punish or deter the creation or this risk but rather to compensate victims when the creation of risk tortiously manifests into harm.”
In the opinion, Burke said the request for medical monitoring was all but superfluous. “Without an increased risk of future harm, plaintiffs would have no basis to seek medical monitoring.” “In other words, plaintiffs’ allegation that they require ‘diagnostic medical testing’ is simply another way of saying they have been subjected to an increased risk of harm. And, in a negligence action, an increased risk of harm is not an injury.” The chief justice and the court’s majority also rejected the claims related to inverse condemnation. Burke noted the plaintiffs never presented any allegations either their properties―much less properties across the city―had lost value “because of any increased danger caused by the city’s work.” And Burke and the majority said the plaintiffs all continue to use city water, through the “dangerous” lead service lines, while also presenting no evidence that the city violated any federal or state regulations in the way in which it has repaired the water lines. In a footnote, the Illinois Supreme Court justices noted Chicago City Hall has recently announced new programs to help fund replacement of lead water service lines for qualifying residences throughout the city, but did not indicate that these new programs had any impact on their decision in rejecting the class action.
It remains to be seen if the reasoning of the Illinois Supreme Court will have any influence over other courts across the United States. Most certainly, however, plaintiffs and defendants in lead water lines cases should take guidance from Berry decision.