Independent Trust Corp. v. City of Chicago
Annotate this Case
FOURTH DIVISION
March 31, 1998
No. 1-96-2978
INDEPENDENT TRUST CORPORATION, and ) APPEAL FROM THE
FIRST MANAGEMENT REALTY CORPORATION, ) CIRCUIT COURT OF
) COOK COUNTY
Plaintiffs-Appellants, )
)
v. )
)
THE CITY OF CHICAGO DEPARTMENT OF )
WATER, )
)
Defendant-Appellee. )
)
----------------------------------------)
LUMBERMENS MUTUAL CASUALTY a/s/o )
CORPORATION SUPPLY CO., )
)
Plaintiff-Appellant, )
)
v. )
)
THE CITY OF CHICAGO, a Municipal )
Corporation, )
)
Defendant-Appellee. )
)
----------------------------------------)
PAGO PAGO II, INC., )
)
Plaintiff-Appellant, )
)
v. )
)
THE CITY OF CHICAGO, a Municipal ) HONORABLE
Corporation, ) DAVID G.LICHTENSTEIN
) JUDGE PRESIDING.
Defendant-Appellee. )
JUSTICE McNAMARA delivered the opinion of the court:
These three consolidated cases arose from an incident on
February 20, 1994, in which water flooded the basement of the
building located on the corner of Wells and Randolph Streets,
known as 205 West Randolph Street in the City of Chicago (the
building). The plaintiffs in all three actions allege that the
city negligently maintained, inspected, or repaired an
underground pipe near their property. The six-inch-diameter pipe
in question, a dedicated hydrant lead, connected a fire hydrant
adjacent to 205 West Randolph to an eight-inch-diameter water
main running north and south under the west side of North Wells
Street. Finding that the hydrant lead was "firefighting
equipment or facilities" within the meaning of section 5-103(a)
of the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act)(745 ILCS 10/5-103(a)(1994)), the
circuit court granted the city's motion to dismiss all three
cases pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (1994)). Plaintiffs appeal.
We reverse. The relevant facts are as follows.
The City of Chicago operates a water department which serves
as the exclusive provider of water to all residential and
commercial customers within the city. The water department
installs, repairs, inspects, and maintains underground water
pipes, including an eight-inch-diameter main on the west side of
Wells Street running north and south in front of the building.
From this eight-inch-diameter main three six-inch-diameter
underground branch pipes extend toward the building. Two of the
branch pipes provide water service to buildings at or near 205
West Randolph. The third branch pipe was about 10 feet long and
connected to and provided water to a fire hydrant located on the
sidewalk adjacent to the building. This pipe will be referred to
by this court as a "hydrant lead."[fn1] The hydrant lead is
dedicated, meaning that its sole function is to provide water to
the hydrant.
Plaintiffs Independent Trust Corp. (ITC) and First
Management Realty Corp. own and operate the building located at
205 West Randolph Street, Chicago, Illinois. Plaintiffs Pago
Pago II, Inc. (Pago Pago), and Corporation Supply Company, Inc.
(Corporation Supply), each operated a business in the building at
the time of the incident.
On February 20, 1994, the water department received a call
regarding a water leak at the building. The building's basement
and sub-basement were flooded with in excess of 10 feet of water.
Water department personnel responded to the scene, removed water
from the building, and investigated the cause of the flooding.
Water department employees excavated the area around the hydrant,
exposing the hydrant base and the hydrant lead. The hydrant base
was disconnected from the hydrant lead. Water department
employees observed multiple hairline cracks in the hydrant lead.
Based on the water department's investigation, these cracks in
the hydrant lead caused the water damage. The hydrant itself was
not damaged, defective, or in any way the cause of the water
damage. Indeed, the hydrant was removed and later used elsewhere
in the city. The hydrant lead was then plugged.
One fire department employee responded to the scene on a
"non-emergency" call. The firefighter left the scene without
taking any action because the care and maintenance of underground
water pipes are not the responsibility of the fire department.
Lumbermens Mutual Casualty Company, as subrogee of
Corporation Supply, filed case number 95 L 2221 against the city
on February 14, 1995. ITC filed case number 95 L 2325 against
the city on February 14, 1995. Pago Pago filed case number 95 L
2567 on February 17, 1995. All three plaintiffs alleged that the
city negligently maintained, inspected, or repaired an
underground pipe near the building.
The city answered all three complaints and pled as
affirmative defenses the immunities conferred by sections 3-102
and 5-103(a) of the Tort Immunity Act (745 ILCS 10/3-102, 5-
103(a) (1994)). The three cases were consolidated on October 4,
1995, upon motion of the city.
On January 30, 1996, the city filed a motion to dismiss the
complaints pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (1994)). The city asserted
that the plaintiffs' claims were barred by section 5-103(a) of
the Tort Immunity Act (745 ILCS 10/5-103(a) (1994)), which
confers immunity for injuries "resulting from the condition of
fire protection or firefighting equipment or facilities."
Following a hearing on the motion, the circuit court found that
the hydrant lead was firefighting equipment and therefore section
5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994))
immunized the city from plaintiffs' claims. The circuit court
granted the city's motion and dismissed the cases with prejudice.
Plaintiffs appeal.
On appeal plaintiffs contend that (1) the circuit court
erred in dismissing the complaints because plaintiffs' complaints
assert claims upon which relief can be granted, since municipal
water providers are not covered under the Tort Immunity Act; (2)
the circuit court erred in granting defendant's motion to dismiss
because section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-
103(a)(1994)) does not encompass underground water mains; and (3)
the water department is liable because section 5-103(a) of the
Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) codifies the "no
duty" rule.
When reviewing the dismissal of a complaint, the pertinent
inquiry is whether the allegations, when viewed in the light most
favorable to the plaintiff, are sufficient to set forth a cause
of action upon which relief may be granted. Toombs v. City of
Champaign, 245 Ill. App. 3d 580, 615 N.E.2d 50 (1993). Our
review of the dismissal is de novo. Toombs, 245 Ill. App. 3d at
583.
Our supreme court abolished sovereign immunity in 1959 in
Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959). In response the legislature enacted
the Tort Immunity Act in 1965. Barnett v. Zion Park District,
171 Ill. 2d 378, 665 N.E.2d 808 (1996). Under the Tort Immunity
Act, governmental units are liable in tort on the same basis as
private tortfeasors unless a valid statute dealing with tort
immunity imposes conditions on that liability. Barnett, 171 Ill. 2d at 386. Immunity, therefore, must be predicated upon a
specific statutory enactment, and governmental units are immune
only to the extent the General Assembly has provided such
immunity. Barnett, 171 Ill. 2d at 386. The provisions of the
Tort Immunity Act are in derogation of the common law and
therefore must be strictly construed. Aikens v. Morris, 145 Ill. 2d 273, 583 N.E.2d 487 (1991).
We agree with plaintiffs that the Tort Immunity Act does not
grant general immunity to municipal water providers. Therefore,
as a general rule, municipal water providers are liable for their
negligent conduct, unless their specific conduct is encompassed
within a specific section of the Tort Immunity Act. Barnett, 171 Ill. 2d at 386.
The specific statutory enactment at issue in this case is
section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-
103(a)(1994)), which provides in pertinent part:
"Neither a local public entity, nor a public
employee acting in the scope of his employment, is
liable for an injury resulting from the condition of
fire protection or firefighting equipment or
facilities."
We reject defendant's contention that the immunity granted
by section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-
103(a)(1994)) applies because "the condition of the hydrant --
that it was no longer attached to its lead -- caused plaintiffs'
injuries." This contention is simply not supported by the
record. The record indicates that the injuries resulted from one
or more cracks in the hydrant lead, not from any problem with or
condition of the hydrant. Further we note that defendant's
statement that the plaintiffs have all agreed that the injuries
occurred because the hydrant broke off its dedicated lead is a
gross mischaracterization of the record. Throughout the
proceedings plaintiffs have maintained that there was no problem
with the hydrant but, rather, the damage was caused by an
underground water pipe which broke.
This case then boils down to one issue - is the pipe that
carries water from a water main to a fire hydrant "firefighting
equipment or facilities"? The circuit court found that it was,
we find that it is not.
When interpreting section 5-103(a) of the Tort Immunity Act
(745 ILCS 10/5-103(a)(1994)), our primary goal is to ascertain
and give effect to the intention of the legislature. Barnett v.
Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996). We
look primarily at the language used in the Tort Immunity Act to
determine legislative intent. Barnett, 171 Ill. 2d at 388. The
plain language of section 5-103(a) of the Tort Immunity Act (745
ILCS 10/5-103(a)(1994)) is clear - it immunizes the city for
injuries resulting from the condition of "firefighting equipment
or facilities." The terms "firefighting equipment" and
"facilities" are not defined in the statute and therefore must be
given their ordinary and popularly understood meanings. Niven v.
Siqueira, 109 Ill. 2d 357, 487 N.E.2d 937 (1985); Roach v.
Springfield Clinic, 157 Ill. 2d 29, 623 N.E.2d 246 (1993).
We reject defendant's contention that the separate hydrant
lead is a "facility." The term "facilities" has been defined as
referring to city fire "department structures and their
locations." Harinek v. City of Chicago, 283 Ill. App. 3d 491,
495, 670 N.E.2d 869 (1996), aff'd in part & rev'd in part sub
nom. Harinek v. 161 North Clark Street, Ltd. Partnership, No.
82155 (February 20, 1998). Clearly, a separate water pipe
attached to a fire hydrant does not fall within this definition.
Furthermore, the hydrant lead does not fall within the
ordinary and popularly understood meaning of "firefighting
equipment." A hydrant itself would certainly be considered
"firefighting equipment." However, this case does not deal with
a hydrant but, rather, with a separate water pipe. The pipe is
not part of the hydrant but, rather, is a component part of the
city's underground water system. The supreme court decision in
City of Chicago v. Selz, Schwab & Co., 202 Ill. 545, 67 N.E. 386
(1903), although decided before the enactment of the Tort
Immunity Act, is instructive on this point. In a factually
identical case, our supreme court referred to the six-inch-
diameter pipe connecting the fire hydrant to the water main as a
part of the city's waterworks system. Selz, 202 Ill. at 546.
The fact that the pipe supplies water to the hydrant does
not make it "firefighting equipment." The defendant argues that
because the hydrant lead was a dedicated pipe whose sole purpose
was to carry water to the hydrant, the hydrant lead is
firefighting equipment. However, a study of the present
situation illuminates the flaw in defendant's logic. The hydrant
in question was removed and the hydrant lead pipe was plugged.
The hydrant lead is still a dedicated pipe, although not
presently in use. If there was a problem with the hydrant lead
today without the hydrant attached, there would be no question
that the hydrant lead was not firefighting equipment. A pipe is
a pipe and the sole function of a pipe is to carry water. The
particular end use of that water does not miraculously transform
the pipe into "firefighting equipment".
Under the plain language of section 5-103(a) of the Tort
Immunity Act (745 ILCS 10/5-103(a)(1994)), the immunity must stop
at the hydrant. To extend the immunity beyond the hydrant to the
separate hydrant lead would be a departure from the plain
language of the Tort Immunity Act. Our supreme court has made it
clear that we must not depart from the plain language of the Tort
Immunity Act by reading into it exceptions, limitations or
conditions that conflict with the express legislative intent. In
re Chicago Flood Litigation, 176 Ill. 2d 179, 680 N.E.2d 265
(1997); Barnett v. Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996). Furthermore, extending the scope of immunity
beyond the hydrant to the pipe that supplies water to the hydrant
would in essence immunize the water department from any
responsibility for it's negligence in the care and maintenance of
the entire underground water system, as all component parts of
the system provide water to some extent, for use in firefighting.
The defendant makes several arguments which beg the central
question. We agree that section 5-103(a) of the Tort Immunity
Act (745 ILCS 10/5-103(a)(1994)) cannot be read to contain an
exception for "firefighting equipment and facilities" that are
maintained by a municipal water provider. However, this does not
change the fact that the hydrant lead, regardless of who
maintains it, is not "firefighting equipment or facilities."
Similarly, whether section 5-103(a) is or is not limited to
injuries resulting from fires or fire suppression does not change
the fact that the hydrant lead is not "firefighting equipment or
facilities."
We find that the hydrant lead is not "firefighting equipment
or facilities" within the meaning of section 5-103(a) of the Tort
Immunity Act (745 ILCS 10/5-103(a)(1994)). Therefore, the city
is not immune from liability in this case and the circuit court
erred in dismissing plaintiffs' complaints.
In light of the above analysis, we find it unnecessary to
address plaintiffs' argument regarding codification of the "no
duty" rule.
Accordingly, for the reasons set forth above, we reverse the
judgement of the circuit court of Cook County and remand for
further proceedings.
Reversed and remanded.
CERDA, P.J., and SOUTH, J., concur.
[fn1]The parties refer to this six-inch branch pipe as "a
water main," "a pipe" and a "hydrant lead." We find these terms
interchangeable, but will refer to it as a hydrant lead for
consistency.
March 31, 1998
No. 1-96-2978
INDEPENDENT TRUST CORPORATION, and ) APPEAL FROM THE
FIRST MANAGEMENT REALTY CORPORATION, ) CIRCUIT COURT OF
) COOK COUNTY
Plaintiffs-Appellants, )
)
v. )
)
THE CITY OF CHICAGO DEPARTMENT OF )
WATER, )
)
Defendant-Appellee. )
)
----------------------------------------)
LUMBERMENS MUTUAL CASUALTY a/s/o )
CORPORATION SUPPLY CO., )
)
Plaintiff-Appellant, )
)
v. )
)
THE CITY OF CHICAGO, a Municipal )
Corporation, )
)
Defendant-Appellee. )
)
----------------------------------------)
PAGO PAGO II, INC., )
)
Plaintiff-Appellant, )
)
v. )
)
THE CITY OF CHICAGO, a Municipal ) HONORABLE
Corporation, ) DAVID G.LICHTENSTEIN
) JUDGE PRESIDING.
Defendant-Appellee. )
JUSTICE McNAMARA delivered the opinion of the court:
These three consolidated cases arose from an incident on
February 20, 1994, in which water flooded the basement of the
building located on the corner of Wells and Randolph Streets,
known as 205 West Randolph Street in the City of Chicago (the
building). The plaintiffs in all three actions allege that the
city negligently maintained, inspected, or repaired an
underground pipe near their property. The six-inch-diameter pipe
in question, a dedicated hydrant lead, connected a fire hydrant
adjacent to 205 West Randolph to an eight-inch-diameter water
main running north and south under the west side of North Wells
Street. Finding that the hydrant lead was "firefighting
equipment or facilities" within the meaning of section 5-103(a)
of the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act)(745 ILCS 10/5-103(a)(1994)), the
circuit court granted the city's motion to dismiss all three
cases pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (1994)). Plaintiffs appeal.
We reverse. The relevant facts are as follows.
The City of Chicago operates a water department which serves
as the exclusive provider of water to all residential and
commercial customers within the city. The water department
installs, repairs, inspects, and maintains underground water
pipes, including an eight-inch-diameter main on the west side of
Wells Street running north and south in front of the building.
From this eight-inch-diameter main three six-inch-diameter
underground branch pipes extend toward the building. Two of the
branch pipes provide water service to buildings at or near 205
West Randolph. The third branch pipe was about 10 feet long and
connected to and provided water to a fire hydrant located on the
sidewalk adjacent to the building. This pipe will be referred to
by this court as a "hydrant lead."[fn1] The hydrant lead is
dedicated, meaning that its sole function is to provide water to
the hydrant.
Plaintiffs Independent Trust Corp. (ITC) and First
Management Realty Corp. own and operate the building located at
205 West Randolph Street, Chicago, Illinois. Plaintiffs Pago
Pago II, Inc. (Pago Pago), and Corporation Supply Company, Inc.
(Corporation Supply), each operated a business in the building at
the time of the incident.
On February 20, 1994, the water department received a call
regarding a water leak at the building. The building's basement
and sub-basement were flooded with in excess of 10 feet of water.
Water department personnel responded to the scene, removed water
from the building, and investigated the cause of the flooding.
Water department employees excavated the area around the hydrant,
exposing the hydrant base and the hydrant lead. The hydrant base
was disconnected from the hydrant lead. Water department
employees observed multiple hairline cracks in the hydrant lead.
Based on the water department's investigation, these cracks in
the hydrant lead caused the water damage. The hydrant itself was
not damaged, defective, or in any way the cause of the water
damage. Indeed, the hydrant was removed and later used elsewhere
in the city. The hydrant lead was then plugged.
One fire department employee responded to the scene on a
"non-emergency" call. The firefighter left the scene without
taking any action because the care and maintenance of underground
water pipes are not the responsibility of the fire department.
Lumbermens Mutual Casualty Company, as subrogee of
Corporation Supply, filed case number 95 L 2221 against the city
on February 14, 1995. ITC filed case number 95 L 2325 against
the city on February 14, 1995. Pago Pago filed case number 95 L
2567 on February 17, 1995. All three plaintiffs alleged that the
city negligently maintained, inspected, or repaired an
underground pipe near the building.
The city answered all three complaints and pled as
affirmative defenses the immunities conferred by sections 3-102
and 5-103(a) of the Tort Immunity Act (745 ILCS 10/3-102, 5-
103(a) (1994)). The three cases were consolidated on October 4,
1995, upon motion of the city.
On January 30, 1996, the city filed a motion to dismiss the
complaints pursuant to section 2-619(a)(9) of the Code of Civil
Procedure (735 ILCS 5/2-619(a)(9) (1994)). The city asserted
that the plaintiffs' claims were barred by section 5-103(a) of
the Tort Immunity Act (745 ILCS 10/5-103(a) (1994)), which
confers immunity for injuries "resulting from the condition of
fire protection or firefighting equipment or facilities."
Following a hearing on the motion, the circuit court found that
the hydrant lead was firefighting equipment and therefore section
5-103(a) of the Tort Immunity Act (745 ILCS 10/5-103(a)(1994))
immunized the city from plaintiffs' claims. The circuit court
granted the city's motion and dismissed the cases with prejudice.
Plaintiffs appeal.
On appeal plaintiffs contend that (1) the circuit court
erred in dismissing the complaints because plaintiffs' complaints
assert claims upon which relief can be granted, since municipal
water providers are not covered under the Tort Immunity Act; (2)
the circuit court erred in granting defendant's motion to dismiss
because section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-
103(a)(1994)) does not encompass underground water mains; and (3)
the water department is liable because section 5-103(a) of the
Tort Immunity Act (745 ILCS 10/5-103(a)(1994)) codifies the "no
duty" rule.
When reviewing the dismissal of a complaint, the pertinent
inquiry is whether the allegations, when viewed in the light most
favorable to the plaintiff, are sufficient to set forth a cause
of action upon which relief may be granted. Toombs v. City of
Champaign, 245 Ill. App. 3d 580, 615 N.E.2d 50 (1993). Our
review of the dismissal is de novo. Toombs, 245 Ill. App. 3d at
583.
Our supreme court abolished sovereign immunity in 1959 in
Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 163 N.E.2d 89 (1959). In response the legislature enacted
the Tort Immunity Act in 1965. Barnett v. Zion Park District,
171 Ill. 2d 378, 665 N.E.2d 808 (1996). Under the Tort Immunity
Act, governmental units are liable in tort on the same basis as
private tortfeasors unless a valid statute dealing with tort
immunity imposes conditions on that liability. Barnett, 171 Ill. 2d at 386. Immunity, therefore, must be predicated upon a
specific statutory enactment, and governmental units are immune
only to the extent the General Assembly has provided such
immunity. Barnett, 171 Ill. 2d at 386. The provisions of the
Tort Immunity Act are in derogation of the common law and
therefore must be strictly construed. Aikens v. Morris, 145 Ill. 2d 273, 583 N.E.2d 487 (1991).
We agree with plaintiffs that the Tort Immunity Act does not
grant general immunity to municipal water providers. Therefore,
as a general rule, municipal water providers are liable for their
negligent conduct, unless their specific conduct is encompassed
within a specific section of the Tort Immunity Act. Barnett, 171 Ill. 2d at 386.
The specific statutory enactment at issue in this case is
section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-
103(a)(1994)), which provides in pertinent part:
"Neither a local public entity, nor a public
employee acting in the scope of his employment, is
liable for an injury resulting from the condition of
fire protection or firefighting equipment or
facilities."
We reject defendant's contention that the immunity granted
by section 5-103(a) of the Tort Immunity Act (745 ILCS 10/5-
103(a)(1994)) applies because "the condition of the hydrant --
that it was no longer attached to its lead -- caused plaintiffs'
injuries." This contention is simply not supported by the
record. The record indicates that the injuries resulted from one
or more cracks in the hydrant lead, not from any problem with or
condition of the hydrant. Further we note that defendant's
statement that the plaintiffs have all agreed that the injuries
occurred because the hydrant broke off its dedicated lead is a
gross mischaracterization of the record. Throughout the
proceedings plaintiffs have maintained that there was no problem
with the hydrant but, rather, the damage was caused by an
underground water pipe which broke.
This case then boils down to one issue - is the pipe that
carries water from a water main to a fire hydrant "firefighting
equipment or facilities"? The circuit court found that it was,
we find that it is not.
When interpreting section 5-103(a) of the Tort Immunity Act
(745 ILCS 10/5-103(a)(1994)), our primary goal is to ascertain
and give effect to the intention of the legislature. Barnett v.
Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996). We
look primarily at the language used in the Tort Immunity Act to
determine legislative intent. Barnett, 171 Ill. 2d at 388. The
plain language of section 5-103(a) of the Tort Immunity Act (745
ILCS 10/5-103(a)(1994)) is clear - it immunizes the city for
injuries resulting from the condition of "firefighting equipment
or facilities." The terms "firefighting equipment" and
"facilities" are not defined in the statute and therefore must be
given their ordinary and popularly understood meanings. Niven v.
Siqueira, 109 Ill. 2d 357, 487 N.E.2d 937 (1985); Roach v.
Springfield Clinic, 157 Ill. 2d 29, 623 N.E.2d 246 (1993).
We reject defendant's contention that the separate hydrant
lead is a "facility." The term "facilities" has been defined as
referring to city fire "department structures and their
locations." Harinek v. City of Chicago, 283 Ill. App. 3d 491,
495, 670 N.E.2d 869 (1996), aff'd in part & rev'd in part sub
nom. Harinek v. 161 North Clark Street, Ltd. Partnership, No.
82155 (February 20, 1998). Clearly, a separate water pipe
attached to a fire hydrant does not fall within this definition.
Furthermore, the hydrant lead does not fall within the
ordinary and popularly understood meaning of "firefighting
equipment." A hydrant itself would certainly be considered
"firefighting equipment." However, this case does not deal with
a hydrant but, rather, with a separate water pipe. The pipe is
not part of the hydrant but, rather, is a component part of the
city's underground water system. The supreme court decision in
City of Chicago v. Selz, Schwab & Co., 202 Ill. 545, 67 N.E. 386
(1903), although decided before the enactment of the Tort
Immunity Act, is instructive on this point. In a factually
identical case, our supreme court referred to the six-inch-
diameter pipe connecting the fire hydrant to the water main as a
part of the city's waterworks system. Selz, 202 Ill. at 546.
The fact that the pipe supplies water to the hydrant does
not make it "firefighting equipment." The defendant argues that
because the hydrant lead was a dedicated pipe whose sole purpose
was to carry water to the hydrant, the hydrant lead is
firefighting equipment. However, a study of the present
situation illuminates the flaw in defendant's logic. The hydrant
in question was removed and the hydrant lead pipe was plugged.
The hydrant lead is still a dedicated pipe, although not
presently in use. If there was a problem with the hydrant lead
today without the hydrant attached, there would be no question
that the hydrant lead was not firefighting equipment. A pipe is
a pipe and the sole function of a pipe is to carry water. The
particular end use of that water does not miraculously transform
the pipe into "firefighting equipment".
Under the plain language of section 5-103(a) of the Tort
Immunity Act (745 ILCS 10/5-103(a)(1994)), the immunity must stop
at the hydrant. To extend the immunity beyond the hydrant to the
separate hydrant lead would be a departure from the plain
language of the Tort Immunity Act. Our supreme court has made it
clear that we must not depart from the plain language of the Tort
Immunity Act by reading into it exceptions, limitations or
conditions that conflict with the express legislative intent. In
re Chicago Flood Litigation, 176 Ill. 2d 179, 680 N.E.2d 265
(1997); Barnett v. Zion Park District, 171 Ill. 2d 378, 665 N.E.2d 808 (1996). Furthermore, extending the scope of immunity
beyond the hydrant to the pipe that supplies water to the hydrant
would in essence immunize the water department from any
responsibility for it's negligence in the care and maintenance of
the entire underground water system, as all component parts of
the system provide water to some extent, for use in firefighting.
The defendant makes several arguments which beg the central
question. We agree that section 5-103(a) of the Tort Immunity
Act (745 ILCS 10/5-103(a)(1994)) cannot be read to contain an
exception for "firefighting equipment and facilities" that are
maintained by a municipal water provider. However, this does not
change the fact that the hydrant lead, regardless of who
maintains it, is not "firefighting equipment or facilities."
Similarly, whether section 5-103(a) is or is not limited to
injuries resulting from fires or fire suppression does not change
the fact that the hydrant lead is not "firefighting equipment or
facilities."
We find that the hydrant lead is not "firefighting equipment
or facilities" within the meaning of section 5-103(a) of the Tort
Immunity Act (745 ILCS 10/5-103(a)(1994)). Therefore, the city
is not immune from liability in this case and the circuit court
erred in dismissing plaintiffs' complaints.
In light of the above analysis, we find it unnecessary to
address plaintiffs' argument regarding codification of the "no
duty" rule.
Accordingly, for the reasons set forth above, we reverse the
judgement of the circuit court of Cook County and remand for
further proceedings.
Reversed and remanded.
CERDA, P.J., and SOUTH, J., concur.
[fn1]The parties refer to this six-inch branch pipe as "a
water main," "a pipe" and a "hydrant lead." We find these terms
interchangeable, but will refer to it as a hydrant lead for
consistency.
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