In re Chicago Flood Litigation

NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.

Nos. 80460, 80535 cons.--Agenda 26--September 1996.
In re CHICAGO FLOOD LITIGATION.
Opinion filed February 20, 1997.

JUSTICE FREEMAN delivered the opinion of the court:
In April 1992, the underground freight tunnel system in the
central business district of Chicago flooded. Numerous named
plaintiffs (class plaintiffs) represent individuals and businesses
that claim property damage and economic loss as a result. ITT
Hartford (Hartford), the subrogee of several additional claimants,
opted out of the certified class. Class plaintiffs and Hartford
each brought an action in the circuit court of Cook County against
defendants, the City of Chicago (City) and the Great Lakes Dredge
and Dock Company (Great Lakes). Class plaintiffs and Hartford
sought damages for their various alleged injuries.
The trial court granted in part and denied in part the City's
and Great Lakes' motions to dismiss. 735 ILCS 5/2--615, 2--619
(West 1994). The court also certified several questions for
interlocutory appeal (155 Ill. 2d R. 308), and found that there was
no just cause to delay appeal of several additional issues (155
Ill. 2d R. 304(a)).
In an unpublished order (Nos. 1--93--207, 1--93--209, 1--93--
318, 1--93--1570, 1--93--1602, 1--93--1848, 1--93--1902, 1--94--
387, 1--94--388 cons. (unpublished order under Supreme Court Rule
23)), the appellate court upheld all but two of the trial court's
rulings. We allowed class plaintiffs' and Hartford's separate
petitions for leave to appeal (155 Ill. 2d R. 315) and consolidated
the causes for review; the City cross-appeals (155 Ill. 2d R.
318(a)). We now affirm the appellate court in part and reverse in
part.

BACKGROUND
A motion to dismiss under either section 2--615 or section 2--
619 of the Code of Civil Procedure (735 ILCS 5/2--615, 2--619 (West
1994)) admits all well-pled allegations in the complaint and
reasonable inferences to be drawn from the facts. Anderson v.
Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001,
1012 (1995); Pechan v. DynaPro, Inc., 251 Ill. App. 3d 1072, 1083-
84 (1993); Davis v. Weiskopf, 108 Ill. App. 3d 505, 509 (1982). The
complaints allege as follows. An old, underground freight tunnel
system (tunnel) is located under the central business district of
Chicago, commonly known as the Loop, and the Chicago River. Many
buildings in the Loop are connected directly or indirectly to the
tunnel. Before 1959, the tunnel was used to transport freight in
the Loop. Since 1959, the City has owned the tunnel and, since the
1970s, has leased the tunnel to a number of utility and telecom-
munication companies to carry their service lines. The tunnel
crosses under the Chicago River at different locations, including
near the Kinzie Street bridge.
In May 1991, the City entered into a contract with Great
Lakes, which provided that Great Lakes would remove and replace
wood piling clusters at five Chicago River bridges, including the
Kinzie Street bridge. The contract warned Great Lakes not to drive
the pilings "at any other location than that specified by the City
*** [because] even slight position changes may cause serious damage
to various underground *** structures." The contract further
provided that if Great Lakes failed to heed this warning, Great
Lakes would be liable to repair such damages at its own expense.
By September 1991, Great Lakes informed the City that it had
fully completed the work. However, Great Lakes had installed the
pilings at the Kinzie Street bridge in a location other than
originally designated in the contract. During pile driving at the
bridge, Great Lakes caused a breach in the tunnel wall by
physically breaking, weakening, or creating excessive pressure on
the tunnel wall.
In January 1992, a television crew using the tunnel discovered
the breach in the tunnel wall at the Kinzie Street bridge. By
February 1992, the television crew notified the City of the tunnel
damage. During March and early April 1992, City employees inspected
the tunnel, photographed the damage, and recommended immediate
repairs.
On or about April 13, 1992, the tunnel breach opened. In a
sudden torrent and continuing flow, the Chicago River rushed into
the tunnel and, ultimately, into buildings connected to the tunnel.
Approximately 200,000 persons were evacuated from numerous Loop
buildings. On April 14, the Governor of the State of Illinois
declared the Loop and surrounding areas a state disaster area. The
next day, the President of the United States declared the area a
federal disaster area. Thousands of Loop building occupants were
unable to return to their respective places of business for days or
weeks thereafter while emergency repairs and cleaning took place.
Class plaintiffs and Hartford sought damages for various alleged
losses proximately caused by the flood, including: injury to their
property; lost revenues, sales, profits, and good will; lost wages,
tips, and commissions; lost inventory; and expenses incurred in
obtaining alternate lodging.

Class Plaintiffs' Complaint
Class plaintiffs' complaint contains 10 counts, five of which
are directed against the City. Class plaintiffs alleged that the
City failed to: (1) properly contract for, administer, and
supervise Great Lakes' pile driving activities; (2) exercise
ordinary care to maintain, repair, and protect the tunnel both
before and after the breach (but only up to the time of the actual
flood); and (3) warn class plaintiffs of the dangerous condition
caused by the tunnel breach when the City learned of it. Class
plaintiffs allege that these acts constitute willful and wanton
misconduct (count III) and negligence (count IV). Class plaintiffs
also alleged that the City and Great Lakes were engaged in
abnormally dangerous (count VII) and ultrahazardous (count VIII)
activities--pile driving and maintaining the tunnel--and were
strictly liable for any resulting damages. Class plaintiffs also
alleged that they were the third-party beneficiaries of the
contract between the City and Great Lakes, which both parties
breached (count V). Class plaintiffs subsequently voluntarily
dismissed this count.
The trial court granted the City's motion to dismiss the
strict tort liability counts. The court also ruled that the Moorman
doctrine (see Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982)) barred from recovery those plaintiffs who did
not allege physical property damage, but rather only economic loss.
The court also ruled that the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1--101
et seq. (West 1994)) immunized much of the City's alleged negli-
gence. As part of class plaintiffs' appeal, the trial court
certified the following questions for review (155 Ill. 2d R. 308):
(1) whether the City's proprietary use of the tunnel precludes
immunity under the Tort Immunity Act; (2) whether the Tort Immunity
Act immunizes any of the City's alleged failures to adequately
contract for, supervise, or monitor the river piling work; and (3)
whether the Moorman doctrine bars the claims of those plaintiffs
who allege only economic loss. The court also allowed class
plaintiffs to appeal (155 Ill. 2d R. 304(a)) from the dismissal of
the abnormally dangerous and ultrahazardous counts.
The trial court denied the City's motion to dismiss as to the
failure-to-repair and the failure-to-warn theories in the
negligence count, and the willful and wanton misconduct count. The
court denied the motion also as to those plaintiffs seeking
recovery for perishable inventory lost as a result of interrupted
utility service and for unspecified property damage. As part of the
City's appeal, the trial court certified the following questions
for review: (1) whether the City is not liable to class plaintiffs
as a matter of law for its failure to promptly repair the tunnel or
to warn class plaintiffs of the tunnel damage, because either the
Tort Immunity Act immunizes the City, or the City did not owe class
plaintiffs a duty to perform those acts; (2) whether there is a
willful and wanton exception to the discretionary act immunity
granted to the City by the Tort Immunity Act; and (3) whether the
Moorman doctrine bars the claims of those plaintiffs who seek tort
recovery for loss of perishable inventory and unspecified property
damage.

Hartford's Complaint
Hartford is the subrogee of several additional individuals and
businesses that it insures. Hartford opted out of the certified
class and filed a complaint, which it subsequently amended, against
the City and Great Lakes. Hartford's complaint included a strict
tort liability claim based on an ultrahazardous activity theory and
a nuisance claim.
The trial court granted the City's and Great Lakes' motion to
dismiss these claims. The court again ruled that pile driving is
not an ultrahazardous activity. The court also dismissed the
nuisance claim as to Hartford's subrogors who did not incur any:
(1) invasion of their property by the flood waters; and (2)
property damage, but rather only an economic loss (Moorman). The
court allowed Hartford to appeal immediately from the dismissal of
these counts (155 Ill. 2d R. 304(a)).
We note that a federal court, in an admiralty proceeding, has
stayed all flood-related litigation as to Great Lakes. Claims
against Great Lakes fall within federal admiralty jurisdiction and
must be pursued in federal court under the Limitation of Vessel
Owner's Liability Act (46 U.S.C. 181 et seq. (1982)). See Jerome
B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. ___,
130 L. Ed. 2d 1024, 115 S. Ct. 1043 (1995).

Appellate Court
The appellate court consolidated all of the certified
questions and interlocutory appeals and disposed of them in an
unpublished order (134 Ill. 2d R. 23). Regarding the Tort Immunity
Act, the appellate court upheld the following rulings of the trial
court. The Tort Immunity Act applied to class plaintiffs' and
Hartford's claims regardless of whether the City's acts were
"proprietary" or "governmental." Section 3--108 of the Act
immunized the City for failure to supervise or monitor Great Lakes'
work. Also, section 2--201 of the Act immunized the City for its
decision to replace the pilings, but did not, as a matter of law,
immunize the City for a failure to repair or warn. Reversing the
trial court, the appellate court held that section 2--201 immunizes
the City for willful and wanton misconduct.
The appellate court upheld the trial court's rulings that the
Moorman doctrine barred the claims of those plaintiffs who alleged
only an economic loss, but did not bar the claims of those
plaintiffs who suffered damage in the form of inventory lost due to
interrupted utility service. Regarding Hartford's nuisance claim,
the appellate court upheld the trial court's denial of recovery for
those plaintiffs who did not suffer a physical invasion of their
property by the flood waters. However, reversing the trial court,
the appellate court held that the Moorman doctrine did not bar an
otherwise proper nuisance claim. The appellate court also upheld
the dismissal of class plaintiffs' and Hartford's abnormally
dangerous or ultrahazardous activities claims. Class plaintiffs,
Hartford, and the City all appeal.

DISCUSSION
When ruling on a motion to dismiss, either for failure to
state a cause of action (735 ILCS 5/2--615 (West 1994)) or because
the claims are barred by other affirmative matter that avoids the
legal effect of or defeats the claim (735 ILCS 5/2--619(a)(9) (West
1994)), the trial court must interpret all pleadings and supporting
documents in the light most favorable to the nonmoving party. The
court should grant the motion only if the plaintiff can prove no
set of facts that would support a cause of action. On appeal,
review is de novo. See Pechan, 251 Ill. App. 3d at 1083; Toombs v.
City of Champaign, 245 Ill. App. 3d 580, 583 (1993). In the present
case, the parties' contentions fall under four main headings: (1)
Tort Immunity Act, (2) Moorman Doctrine, (3) Nuisance, and (4)
Abnormally Dangerous or Ultrahazardous Activity.

Tort Immunity Act
Class plaintiffs contend that the appellate court erred in
holding that: (1) the City's proprietary use of the tunnel does not
preclude immunity under the Tort Immunity Act; (2) the Act
immunizes the City from liability for its alleged failure to
supervise and monitor the river piling work performed by Great
Lakes; and (3) there is no willful and wanton exception to the
discretionary immunity granted to the City by the Act. On cross-
appeal, the City contends that the appellate court erred in holding
that the Act does not immunize the City from liability for
allegedly failing to promptly repair the tunnel or warn class
plaintiffs of the tunnel damage.

Governmental/Proprietary Function
Class plaintiffs allege that the City was engaged in a
proprietary function, as opposed to a governmental function, by
leasing the tunnel to utility and telecommunication companies.
Thus, according to class plaintiffs, the Tort Immunity Act does not
apply to this case, and the City is not immune from liability as a
matter of law.
The trial court rejected this contention, reasoning that the
Act did away with the governmental/proprietary function
distinction. The appellate court affirmed, relying on its decision
in Corral v. Chicago Park District, 277 Ill. App. 3d 357 (1995). We
agree with the trial and appellate courts.
Under the doctrine of sovereign or governmental immunity, a
governmental unit is immune from tort liability. The doctrine
originates in the common law principle that "the King can do no
wrong," and the more logical and practical principle that there can
be no legal right against the authority that makes the law on which
the right depends. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506 (1990) (and authorities cited therein). The
doctrine of sovereign immunity runs counter to the basic concept of
tort law that liability follows negligence. Molitor v. Kaneland
Community Unit District No. 302, 18 Ill. 2d 11, 20 (1959); accord
18 McQuillen on Municipal Corporations 53.02.10, at 131-32 (3d
rev. ed. 1993); C. Rhyne, The Law of Local Government Operations
32.2, at 1042 (1980).
To mitigate the harshness and injustice of the sovereign
immunity doctrine, courts and state legislatures developed
exceptions to the rule. A major exception that was engrafted onto
the common law doctrine of sovereign immunity was the
governmental/proprietary function distinction. 18 McQuillen on
Municipal Corporations 53.02.10, at 132 (3d rev. ed. 1993); C.
Rhyne, The Law of Local Government Operations 32.2, at 1042
(1980).
Under this exception to governmental immunity, when a
municipality performs a governmental function, the municipality is
acting as the arm or agent of the state and, thus, is immune from
liability for the torts committed by its officers and employees.
When the municipality performs a proprietary or corporate function,
the municipality is liable for the tortious conduct of its officers
and employees. Whether a governmental function exists is determined
from the nature of the duty to be discharged or the act to be done.
If the duty or act involves the general public benefit, rather than
a corporate or business undertaking for the municipality's
corporate benefit, then the function is governmental whether the
duty be directly imposed on the municipality or is voluntarily
assumed. Merrill v. City of Wheaton, 379 Ill. 504, 507-08 (1942);
Gebhardt v. Village of LaGrange Park, 354 Ill. 234, 236, 238
(1933); accord 18 McQuillen on Municipal Corporations 53.23,
53.29 et seq. (3d rev. ed. 1993); C. Rhyne, The Law of Local
Government Operations 32.2, at 1042 (1980).
This court conceded long ago that the governmental/proprietary
function distinction is vague and difficult to apply. It is not
often easy to determine in a particular case whether the activity
is governmental or proprietary. Roumbos v. City of Chicago, 332 Ill. 70, 74-75 (1928). Further, a study of cases from other states
reveals a wide, unreconcilable divergence as to what functions or
activities are governmental and what are proprietary. Many states
have abandoned the distinction. 18 McQuillen on Municipal
Corporations 53.24.10 (3d rev. ed. 1993); C. Rhyne, The Law of
Local Government Operations 32.2, at 1042-44 (1980).
However, as we have repeatedly noted, this court abolished
sovereign immunity in 1959. Molitor, 18 Ill. 2d at 21-22. In
response to Molitor, the legislature in 1965 enacted the Tort
Immunity Act. Also, the 1970 Illinois Constitution abolishes the
doctrine of sovereign immunity, except as the legislature may
provide by statute. Ill. Const. 1970, art. XIII, 4. The Tort
Immunity Act adopted the general principle that local governmental
units are liable in tort, but limited this liability with an
extensive list of immunities based on specific government func-
tions. Based on these developments, governmental units are liable
in tort on the same basis as private tortfeasors unless a tort
immunity statute imposes conditions upon that liability. Barnett v.
Zion Park District, 171 Ill. 2d 378, 386 (1996); Burdinie, 139 Ill. 2d at 506-07.
We have explained that the governmental/proprietary function
distinction was developed as an exception to and engrafted onto the
sovereign immunity doctrine. We have noted that the sovereign
immunity doctrine has been abolished and that a governmental unit
is liable in tort on the same basis as a private tortfeasor absent
an immunity statute. Accordingly, we hold that the
governmental/proprietary function distinction does not preclude the
application of the Tort Immunity Act. See Barnett, 171 Ill. 2d at
387-88; List v. O'Connor, 19 Ill. 2d 337, 340 (1960); Corral v.
Chicago Park District, 277 Ill. App. 3d 357, 361-64 (1995); Smith
v. Godin, 61 Ill. App. 3d 480, 481 (1978).

Failure to Supervise
Class plaintiffs contend that the City negligently failed to
supervise Great Lakes' pile driving. In granting the City's motion
to dismiss, the trial court reasoned that it need not determine
whether the City's alleged negligence was "discretionary" or
"ministerial" because the City's acts were immunized by section 3--
108(a) of the Tort Immunity Act (745 ILCS 10/3--108(a) (West
1994)).
The appellate court affirmed the dismissal. In addition to
relying on the plain language of section 3--108(a), the court
additionally concluded that the City's supervision of Great Lakes'
pile driving constituted a discretionary activity that immunized
the City from liability. We agree with the appellate court.
Tort Immunity Act section 3--108(a) provides in pertinent
part:
"3--108. (a) Except as otherwise provided by this
Act *** neither a local public entity nor a public
employee is liable for an injury caused by a failure to
supervise an activity on or the use of any public
property." 745 ILCS 10/3--108(a) (West 1994).
In interpreting this and every other section of the Act, our
primary goal is to ascertain and give effect to the intent of the
legislature. We seek the legislative intent primarily from the
language used in the Tort Immunity Act. We evaluate the Act as a
whole; we construe each provision in connection with every other
section. If we can ascertain the legislative intent from the plain
language of the Act itself, that intent must prevail, and we will
give it effect without resort to other interpretive aids. We must
not depart from the plain language of the Act by reading into it
exceptions, limitations, or conditions that conflict with the
express legislative intent. Barnett, 171 Ill. 2d at 388-89.
The language of section 3--108(a) is unambiguous. Therefore,
as the appellate court reasoned, to override the immunity under
that section, class plaintiffs must identify some other provision
of the Tort Immunity Act that otherwise limits that immunity.
The discretionary immunity doctrine is codified in sections 2-
-109 and 2--201 of the Tort Immunity Act (745 ILCS 10/2--109, 2--
201 (West 1994)). See Snyder v. Curran Township, 167 Ill. 2d 466,
468-69, 473 (1995); see generally D. Baum, Tort Liability of Local
Governments and their Employees: An Introduction to the Illinois
Immunity Act, 1966 U. Ill. L.F. 981, 988-1000. At common law, a
municipality is afforded immunity from liability for the
performance of discretionary acts. However, the municipality is not
immune from liability for the performance of ministerial tasks.
City of Chicago v. Seben, 165 Ill. 371, 377-78 (1897). Although the
abolition of sovereign immunity also meant the demise of the
governmental/proprietary distinction, the discretionary/ministerial
distinction survives. See Mora v. State, 68 Ill. 2d 223, 233-34
(1977), quoting Lusietto v. Kingan, 107 Ill. App. 2d 239, 244
(1969); Eck v. McHenry County Public Building Comm'n, 237 Ill. App.
3d 755, 762-63 (1992); accord 18 McQuillen on Municipal
Corporations 53.04.10 (3d rev. ed. 1993); C. Rhyne, The Law of
Local Government Operations 32.2, at 1044, 32.21, at 1063 (1980).
This court has explained the discretionary immunity doctrine
as follows:
"It is well settled, that municipal corporations have
certain powers which are discretionary or judicial in
character, and certain powers which are ministerial. ***
Municipal corporations will not be held liable in damages
for the manner in which they exercise, in good faith,
their discretionary powers of a public, or legislative,
or quasi judicial character. But they are liable to
actions for damages when their duties cease to be
judicial in their nature, and become ministerial.
[Citations.] Official action is judicial where it is the
result of judgment or discretion. Official duty is
ministerial, when it is absolute, certain and imperative,
involving merely the execution of a set task, and when
the law which imposes it, prescribes and defines the
time, mode and occasion of its performance with such
certainty, that nothing remains for judgment or
discretion. [Citation.] A corporation acts judicially, or
exercises discretion, when it selects and adopts a plan
in the making of public improvements, such as
constructing sewers or drains; but as soon as it begins
to carry out that plan, it acts ministerially, and is
bound to see that the work is done in a reasonably safe
and skillful manner." Seben, 165 Ill. at 377-78.
Class plaintiffs contend that once the City approved the pile
driving plan, its actions ceased to be discretionary and became
ministerial. Thus, according to class plaintiffs, the City is
liable for its alleged negligent supervision of Great Lakes.
We agree with the appellate court that the City's supervision
of Great Lakes's pile driving was discretionary rather than
ministerial. The cases recognize "that, depending upon the
situation, what might be considered a repair can be a discretionary
matter." Kennell v. Clayton Township, 239 Ill. App. 3d 634, 641
(1992), citing Lusietto, 107 Ill. App. 2d at 244. In the present
case, the contract between the City and Great Lakes provided that
"the contractor shall not drive the piles at any other location
than that specified by the City," and authorized the City to change
its specifications. Thus, the City retained the discretion to
locate the pilings in any location it thought best. See Lusietto,
107 Ill. App. 2d at 244. This was a matter within the City's
discretion for which there is immunity under the Act.

Willful and Wanton Misconduct
Class plaintiffs alleged that the City's acts constituted
willful and wanton misconduct. The trial court denied the City's
motion to dismiss, concluding that Tort Immunity Act section 2--201
did not afford the City discretionary immunity. The court ruled
that section 2--201 contained an exception for willful and wanton
misconduct. The appellate court reversed, holding that section 2--
201 does not contain an exception for willful and wanton
misconduct. We agree with the appellate court.
Section 2--201 provides as follows:
"2--201. Except as otherwise provided by Statute,
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." 745 ILCS
10/2--201 (West 1994).
The plain language of section 2--201 is unambiguous. That
provision does not contain an immunity exception for willful and
wanton misconduct. Where the legislature has chosen to limit an
immunity to cover only negligence, it has unambiguously done so.
Since the legislature omitted such a limitation from the plain
language of section 2--201, then the legislature must have intended
to immunize liability for both negligence and willful and wanton
misconduct. See Barnett, 171 Ill. 2d at 391-92; West v. Kirkham,
147 Ill. 2d 1, 6-7 (1992). Cases holding to the contrary (e.g.,
Barth v. Board of Education, 141 Ill. App. 3d 266, 272-74 (1986)
(holding that section 2--201 did not immunize willful and wanton
misconduct)) are overruled on this point.

Failure to Repair or Warn
The trial court ruled that section 2--201 of the Act did not
afford the City discretionary immunity for allegedly failing to
promptly repair the tunnel or to warn class plaintiffs of the
tunnel breach. The trial court noted class plaintiffs' allegations
that the City "did nothing" to repair the tunnel or to warn class
plaintiffs. The trial court reasoned that section 2--201 affords
immunity only to the exercise of discretion and not for failing to
act.
The appellate court affirmed. The appellate court reasoned
that it could not find the City immune under section 2--201 as a
matter of law because the record lacked facts as to "determinations
regarding the decisions or omissions the City made. It must be
ascertained what decisions were made, when they were made, by whom,
and in what capacity."
We disagree with the trial and appellate courts. Class
plaintiffs do not allege that there was any prescribed method for
how to repair the tunnel and how quickly, or how to warn class
plaintiffs of the tunnel breach. Thus, the City's actions cannot be
considered ministerial. See Seben, 165 Ill. at 378.
On the contrary, as the City notes, the City had to make
several decisions following its notice of the tunnel breach. Such
decisions included who would repair the tunnel, i.e., Great Lakes,
the City itself, or an independent contractor; if an independent
contractor, then how would the contractor be hired and on what
terms. As to the failure-to-warn claim, the City had to decide
whether warning the public would cause panic and, if so, whether
that warning was justified. All of these decisions were within the
City's discretion, which is afforded immunity against liability.

Conclusion
In sum, we answer the certified questions as follows. The
City's proprietary use of the tunnel does not preclude the
application of the Tort Immunity Act. Also, the City is afforded
discretionary immunity against liability for any alleged negligence
in failing to supervise or monitor Great Lakes' pile driving, for
any alleged willful and wanton misconduct, and for any alleged
negligence in failing to promptly repair the tunnel or warn class
plaintiffs of the tunnel damage.

Moorman Doctrine
Class plaintiffs next contend that the appellate court erred
in holding that the Moorman doctrine bars recovery for those
plaintiffs who incurred solely economic losses. On cross-appeal,
the City contends that the appellate court erred in holding that
Moorman does not bar recovery for those plaintiffs who: (1) lost
perishable inventory as a result of interrupted electrical service,
and (2) incurred "unspecified" property damage. We address these
certified questions based on their importance and in furtherance of
our responsibility to maintain a sound and uniform body of
precedent. 134 Ill. 2d R. 366(a)(5). Our answers to these
certified questions do not affect the applicability of the Tort
Immunity Act to these claims.

Solely Economic Losses
Pursuant to Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d 69 (1982), the trial court barred from recovery those
plaintiffs who did not allege physical property damage, but rather
only economic loss. The appellate court affirmed, and we agree.
At common law, solely economic losses are generally not
recoverable in tort actions. In re Illinois Bell Switching Station
Litigation, 161 Ill. 2d 233, 240 (1994). The economic loss rule, as
a general proposition, is "the prevailing rule in America" (4 F.
Harper, F. James & O. Gray, Torts 25.18A, at 619 (2d ed. 1986)),
and is supported by "the vast majority of commentators and cases"
(Moorman, 91 Ill. 2d at 87-88).
One of the policies behind the economic loss rule is the
recognition that the economic consequences of any single accident
are virtually limitless. As the State notes, "[i]f defendants were
held liable for every economic effect of their negligence, they
would face virtually uninsurable risks far out of proportion to
their culpability, and far greater than is necessary to encourage
potential tort defendants to exercise care in their endeavors." The
economic loss rule avoids the consequences of open-ended tort
liability. See In re Illinois Bell Switching Station Litigation,
161 Ill. 2d at 246-47; Moorman, 91 Ill. 2d at 88; 4 F. Harper, F.
James & O. Gray, Torts 25.18A, at 622-23 (2d ed. 1986).
In Moorman, this court enunciated the economic loss rule, and
held that a products liability plaintiff cannot recover solely
economic loss under the tort theories of strict liability,
negligence, and innocent misrepresentation. Moorman, 91 Ill. 2d at
91. This court described economic loss as " `damages for inadequate
value, costs of repair and replacement of the defective product, or
consequent loss of profits--without any claim of personal injury or
damage to other property ***' [citation]." (Emphasis added.)
Moorman, 91 Ill. 2d at 82.
In Anderson Electric, Inc. v. Ledbetter Erection Corp., 115 Ill. 2d 146 (1986), this court applied the economic loss rule to
claims that services were performed negligently. This court also
held that "[a] plaintiff seeking to recover purely economic losses
due to defeated expectations of a commercial bargain cannot recover
in tort, regardless of the plaintiff's inability to recover under
an action in contract." Anderson, 115 Ill. 2d at 153.
This court in Moorman articulated three exceptions to the
economic loss rule: (1) where the plaintiff sustained damage, i.e.,
personal injury or property damage, resulting from a sudden or
dangerous occurrence (Moorman, 91 Ill. 2d at 86); (2) where the
plaintiff's damages are proximately caused by a defendant's
intentional, false representation, i.e., fraud (Moorman, 91 Ill. 2d
at 88-89); and (3) where the plaintiff's damages are proximately
caused by a negligent misrepresentation by a defendant in the
business of supplying information for the guidance of others in
their business transactions (Moorman, 91 Ill. 2d at 89). See In re
Illinois Bell Switching Station Litigation, 161 Ill. 2d at 240-41.
None of these exceptions are present in this case.
Class plaintiffs complain that the application of the economic
loss rule to the present case "permits identically situated
plaintiffs in the same case to be treated differently for recovery
of their damages based solely on the fortuity that one may have
suffered property damage along with economic damage." However, the
tort recovery requirement of injury to person or property is not a
"fortuity." As we explained in In re Illinois Bell Switching
Station Litigation, 161 Ill. 2d at 241:
"The Moorman holding is bottomed upon the theory that
tort law affords a remedy for losses occasioned by
personal injuries or damage to one's property, but
contract law and the Uniform Commercial Code offer the
appropriate remedy for economic losses occasioned by
diminished commercial expectations not coupled with
injury to person or property. The Moorman court concluded
that qualitative defects are best handled by contract
rather than tort law. Tort law [is] `appropriately suited
for personal injury or property damage resulting from a
sudden or dangerous occurrence' whereas the remedy for a
`loss relating to a purchaser's disappointed expectations
due to deterioration, internal breakdown or nonaccidental
cause *** lies in contract.' Moorman, 91 Ill. 2d at 86."
Class plaintiffs also characterize the flood as "sudden" or
"calamitous." Thus, according to class plaintiffs, "under the
recognized exception to Moorman for sudden, calamitous events ***
the Courts below should have ruled as a matter of law that Moorman
does not apply to this case and is not a bar to economic damages."
We cannot accept this argument. As we earlier explained, an
exception to the economic loss rule is where the plaintiff
sustained personal injury or property damage resulting from a
sudden or dangerous occurrence. Moorman, 91 Ill. 2d at 86. Courts
do not speak of a calamitous, sudden, or dangerous event or
occurrence to avoid the economic loss rule, but rather to
distinguish tort damages from mere economic loss. In other words,
the event, by itself, does not constitute an exception to the
economic loss rule. Rather, the exception is composed of a sudden,
dangerous, or calamitous event coupled with personal injury or
property damage.
Clearly, the economic loss rule applies to losses incurred
without any personal injury or property damage. Moorman, 91 Ill. 2d
at 82. However, the economic loss rule applies even to plaintiffs
who have incurred physical damage to their property if the damage
is caused by disappointed commercial expectations, gradual
deterioration, internal breakage, or other nonaccidental causes,
rather than a dangerous event. Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 177-78 (1982) (and authorities cited therein); Moorman, 91 Ill. 2d at 86. For damages to be recoverable in tort, the sudden,
dangerous, or calamitous occurrence must still result in personal
injury or property damage. Absent injury to a plaintiff's person or
property, a claim presents an economic loss not recoverable in
tort. See Northern Illinois Gas Co. v. Vincent DiVito Construction,
214 Ill. App. 3d 203, 218-19 (1991). We agree with the trial and
appellate courts that those plaintiffs who did not incur personal
injury or property damage may not recover solely economic losses.

Lost Perishable Inventory
The trial court ruled that the economic loss rule does not bar
recovery in tort for those plaintiffs who lost perishable inventory
as a result of interrupted electrical service. The appellate court
affirmed. We agree.
When property damage is caused by disappointed commercial
expectations, the economic loss rule bars recovery in tort.
Redarowicz, 92 Ill. 2d at 177-78. Rather, "[t]o recover in
negligence there must be a showing of harm above and beyond
disappointed expectations." Redarowicz, 92 Ill. 2d at 177. For
example, in Redarowicz, the court held that plaintiff's property
damage was caused by a construction defect, which was a
disappointed commercial expectation. Thus, plaintiff's damages were
solely economic losses. However, the court indicated that had
plaintiff suffered personal injury or other property damage, he
would have been able to recover in tort:
"This is not a case where defective construction created
a hazard that resulted in a member of the plaintiff's
family being struck by a falling brick from the chimney.
The adjoining wall has not collapsed on and destroyed the
plaintiff's living room furniture. The plaintiff is
seeking damages for the costs of replacement and repair
of the defective chimney, adjoining wall and patio. While
the commercial expectations of this buyer have not been
met by the builder, the only danger to the plaintiff is
that he would be forced to incur additional expenses for
living conditions that were less than what was bargained
for." (Emphasis added.) Redarowicz, 92 Ill. 2d at 178.
In the present case, class plaintiffs do not seek damages for
the loss of continuous electrical service, which is a disappointed
commercial expectation. See In re Illinois Bell Switching Station
Litigation, 161 Ill. 2d at 240-41. Rather, class plaintiffs seek
damages for property loss, in the form of lost perishable
inventory, as a result of a tortious event. Such damages are above
and beyond class plaintiffs' disappointed commercial expectation in
continuous electrical service. Thus, these losses fall outside the
definition of economic loss and are recoverable in tort. See Scott
& Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 388 (1986);
Moorman, 91 Ill. 2d at 86.

Unspecified Property Damage
The trial court also ruled that the economic loss rule did not
bar recovery for those plaintiffs who incurred "unspecified"
property damage. The appellate court affirmed. We disagree.
Class plaintiffs must plead facts identifying the type of
property damage that they incurred. See People ex rel. Fahner v.
Carriage Way West, Inc., 88 Ill. 2d 300, 308 (1981). The conclusory
allegation of unspecified property damage is insufficient to show
that their damages are recoverable in tort, and cannot withstand a
motion to dismiss. See Knox College v. Celotex Corp., 88 Ill. 2d 407, 426-28 (1981).
We note class plaintiffs' argument that subsequent discovery
has produced and will continue to produce evidence of the type of
property damage alleged. Thus, according to class plaintiffs, the
City has been or will be advised of the specific property damage
alleged. To dismiss the claims for lack of specificity in the
complaint would be pointless because class plaintiffs would simply
replead with more specificity to conform to currently known facts.
Of course, this argument lacks merit. This was a section 2--
615 motion to dismiss. The motion attacks only the legal
sufficiency of the complaint. The only matters for the court to
consider in ruling on the motion are the allegations of the
pleadings themselves, rather than the underlying facts. Thus, the
court may not consider affidavits, the products of discovery,
documentary evidence not incorporated into the pleadings, or other
evidence in ruling on a section 2--615 motion. Urbaitis v.
Commonwealth Edison, 143 Ill. 2d 458, 475 (1991); See Barber-Colman
Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1068-69
(1992).

Conclusion
In sum, we answer the certified questions as follows. The
Moorman doctrine bars the claims of those plaintiffs who allege
only economic loss. However, the Moorman doctrine does not bar the
claims of those plaintiffs who seek tort recovery for loss of
perishable inventory due to interrupted electrical service. Also,
the Moorman doctrine bars the claims of those plaintiffs who seek
tort recovery for unspecified property damage. These answers do not
affect the applicability of the Tort Immunity Act to these claims.

Nuisance
The trial court dismissed Hartford's nuisance claim as to
those plaintiffs who did not suffer a physical invasion of their
property by the flood waters. The appellate court upheld this
denial of recovery, and Hartford appeals therefrom. Also, the trial
court, pursuant to Moorman, dismissed Hartford's nuisance claim as
to those plaintiffs who did not incur any property damage, but
rather incurred only an economic loss. However, the appellate court
reversed the trial court's application of Moorman to the nuisance
claim. The appellate court held that the Moorman doctrine does not
apply to nuisance claims. On cross-appeal, the City assigns error
to this holding.

Physical Invasion
In its complaint, Hartford alleged that its subrogors were
evacuated from their places of business. Hartford concludes that
the evacuation was an unreasonable and substantial invasion of
plaintiffs' property. Thus, according to Hartford, the complaint
states a cause of action for nuisance as to all of its subrogors.
A private nuisance is a substantial invasion of another's
interest in the use and enjoyment of his or her land. The invasion
must be: substantial, either intentional or negligent, and
unreasonable. Pasulka v. Koob, 170 Ill. App. 3d 191, 208 (1988);
Statler v. Catalano, 167 Ill. App. 3d 397, 403 (1988). The standard
for determining if particular conduct constitutes a nuisance is the
conduct's effect on a reasonable person. Belmar Drive-In Theatre
Co. v. Illinois State Toll Highway Comm'n, 34 Ill. 2d 544, 547
(1966).
The type of invasion that nuisance protects differs from the
type of invasion that trespass protects. "A trespass is an invasion
of the interest in the exclusive possession of land, as by entry
upon it. *** A nuisance is an interference with the interest in the
private use and enjoyment of the land, and does not require
interference with the possession." Restatement (Second) of Torts
821D, Comment d, at 101 (1979); see Colwell Systems, Inc. v.
Henson, 117 Ill. App. 3d 113, 116-17 (1983).
Agreeing with the trial court, the appellate court held that
"some type of invasion is necessary to state an action for nuisance
and that the physical invasion of water constituted such an
invasion. *** [W]e affirm the trial court's decision to dismiss
only those plaintiffs whose property was not physically invaded by
the flood."
Hartford assigns error to this holding. Hartford argues that
"[t]he sine qua non of nuisance is not `invasion' of plaintiff's
premises, but rather the use of land by one party that interferes
with the ability of another to enjoy and use his own property.
Invasion may be coincidental to a successful claim for private
nuisance, but it is not mandatory."
We cannot accept Hartford's contention. It is true that a
private nuisance is described as a substantial interference with
another's use and enjoyment of his or her property. Nonetheless,
that interference is generally and traditionally thought of as an
invasion, albeit a nontrespassory one. See Restatement (Second) of
Torts 821D, at 100 (1979); 3 J. Lee & B. Lindahl, Modern Tort Law
35.04, at 197 (1990).
In other words, the interference with the use and enjoyment of
property must consist of an invasion by something perceptible to
the senses. In private nuisance, the typical activity at issue does
not result in a crass physical invasion, as in trespass, but rather
results in an invasion of another's use and enjoyment of his or her
property. 1 F. Harper, F. James & O. Gray, Torts 1.23, at 82-83
(2d ed. 1986); 3 J. Lee & B. Lindahl, Modern Tort Law 35.10, at
203 (1990); see, e.g., Woods v. Khan, 95 Ill. App. 3d 1087, 1090
(1981) ("The invasion of their land [by odors and flies] was both
substantial and intentional").
This court has repeatedly described a nuisance as "something
that is offensive, physically, to the senses and by such
offensiveness makes life uncomfortable." Rosehill Cemetery Co. v.
City of Chicago, 352 Ill. 11, 30 (1933) (and cases cited therein).
"Typical examples would be smoke, fumes, dust, vibration, or noise
produced by defendant on his own land and impairing the use and
enjoyment of neighboring land." 1 F. Harper, F. James & O. Gray,
Torts 1.23, at 76 (2d ed. 1986); see 3 J. Lee & B. Lindahl, Modern
Tort Law 35.11 (1990). Thus, as the appellate court noted,
Illinois courts have allowed nuisance actions where the alleged
invasion consisted of, e.g., noise and odors (People ex rel.
Traiteur v. Abbott, 27 Ill. App. 3d 277, 282 (1975)), or odors and
flies from a poultry farm (Woods, 95 Ill. App. 3d at 1090); another
example of a nuisance is the shooting of a bullet into another's
home (Statler, 167 Ill. App. 3d at 403).
In the present case, Hartford does not allege that those
businesses whose property was not physically invaded by the flood
waters suffered any other type of invasion of the use and enjoyment
of their property. There is no allegation of noxious fumes or
disagreeable odors, other types of seepage, disagreeable noises, or
any other type of invasion. We assume that the evacuation of those
businesses was psychologically depressing. However, absent any
perceptible element that would influence the physical senses to
make the location of those businesses less desirable, the complaint
fails to state a cause of action for private nuisance. See
Rosehill, 352 Ill. at 28-30.

Moorman
Also, pursuant to Moorman, the trial court dismissed
Hartford's nuisance claim as to those plaintiffs who did not incur
any injury to their persons or property, but rather incurred only
economic loss. The appellate court reversed, holding that the
Moorman doctrine does not bar an otherwise proper nuisance claim.
The trial court correctly recognized that private nuisance is
a tort. Restatement (Second) of Torts 822, Comment a, at 109
(1979); W. Keeton, Prosser & Keeton on Torts 87, at 622 (5th ed.
1984). Although the appellate court recognized this, it
nevertheless held that the rule of Moorman does not apply to
nuisance claims, reasoning that:
"the application of Moorman to nuisance actions would
completely gut the very basis of the action in that most
nuisance claims are based upon a non-physical force such
as noise, odor, smoke, dust, or even flies. Clearly, in
these cases, there is no property damage in a Moorman
context, yet such actions have all been sustained in
Illinois courts."
The trial court correctly applied Moorman to Hartford's
nuisance claim. The court recognized the previously discussed
policy behind the economic loss rule that the economic consequences
of any single accident are virtually limitless. As stated earlier,
the economic loss doctrine avoids the consequences of open-ended
tort liability. Moorman, 91 Ill. 2d at 88; see In re Illinois Bell
Switching Station Litigation, 161 Ill. 2d at 246-47. We agree with
the trial court that "there is no reason to treat the tort of nui-
sance *** differently from any other tort." Accord Dick Meyers
Towing Service, Inc. v. United States, 577 F.2d 1023, 1025 n.4 (5th
Cir. 1978); In re Complaint of Marine Navigation Sulphur Carriers,
Inc., 507 F. Supp. 205, 210 (E.D. Va. 1980), aff'd, 638 F.2d 700
(4th Cir. 1981).
A plaintiff in a private nuisance action may recover all
consequential damages flowing from the injury to the use and enjoy-
ment of his or her person or property. See Schatz v. Abbott
Laboratories, Inc., 51 Ill. 2d 143 (1972). However, recovery of
damages for solely economic loss is not permissible. See 4 F.
Harper, F. James & O. Gray, Torts 25.18A, at 622-23 (2d ed. 1986).

Abnormally Dangerous or Ultrahazardous Activity
Class plaintiffs and Hartford next contend that the appellate
court erred in upholding the trial court's dismissal of their
strict tort liability claims. Class plaintiffs and Hartford allege
that pile driving and the maintenance of a tunnel under a riverbed
are abnormally dangerous or ultrahazardous activities.
A defendant who performs an abnormally dangerous or
ultrahazardous activity (terms which we regard as synonymous) is
subject to liability for harm to the person, land, or chattels of
a plaintiff resulting from the activity, although the defendant has
exercised the utmost care to prevent the harm. Restatement (Second)
of Torts 519, at 34 (1977). This doctrine derives from an English
case, Fletcher v. Rylands, L.R. 3 H.L. 330 (1868). Rylands has come
to stand for the principle that "the defendant will be liable when
he damages another by a thing or activity unduly dangerous and
inappropriate to the place where it is maintained, in the light of
the character of that place and its surroundings." W. Keeton,
Prosser & Keeton on Torts 78, at 547-48 (5th ed. 1984). This
general principle is recognized in Illinois. See, e.g., Miller v.
Civil Constructors, Inc., 272 Ill. App. 3d 263, 265-66, 269 (1995);
Continental Building Corp. v. Union Oil Co., 152 Ill. App. 3d 513,
515-16 (1987); Fallon v. Indian Trail School, Addison Township
School District No. 4, 148 Ill. App. 3d 931, 933-34 (1986).
This is referred to as "strict" tort liability because the
defendant's negligence or lack thereof is irrelevant. Rather, the
liability arises out of the abnormal danger of the activity itself,
and the risk that it creates, of harm to those in the vicinity. It
is based on a policy of the law that imposes upon anyone, who for
her own purposes creates an abnormal risk of harm to her neighbors,
the responsibility of relieving against that harm when it does in
fact occur. In other words, the defendant's enterprise is required
to pay its way by compensating for the harm it causes because of
its special, abnormal, and dangerous character. Restatement
(Second) of Torts 519, Comment d, at 35 (1977); see G.L. Leasing
Co. v. Union Electric Co., 54 F.3d 379, 386-87 (7th Cir. 1995).
Section 520 of the Restatement (Second) of Torts sets forth
the following factors to be considered in defining an abnormally
dangerous or ultrahazardous activity:
"(a) existence of a high degree of risk of some harm
to the person, land or chattels of others;
(b) likelihood that the harm that results from it
will be great;
(c) inability to eliminate the risk by the exercise
of reasonable care;
(d) extent to which the activity is not a matter of
common usage;
(e) inappropriateness of the activity to the place
where it is carried on; and
(f) extent to which its value to the community is
outweighed by its dangerous attributes." Restatement
(Second) of Torts 520, at 36 (1977).
Illinois courts have traditionally used the terms
"ultrahazardous," "abnormally dangerous," "intrinsically
dangerous," or "inherently dangerous" to refer to "that type of
danger which is inherent in the instrumentality itself at all
times" and not "danger which arises from mere casual or collateral
negligence of others with respect to it under the particular
circumstances. More concisely, it means dangerous in its normal or
nondefective state." Fallon, 148 Ill. App. 3d at 935, citing Clark
v. City of Chicago, 88 Ill. App. 3d 760, 763 (1980). The trial
court correctly noted that this description correlates to the first
and third factors of the Restatement analysis. However, liability
for abnormally dangerous or ultrahazardous activities is not a
matter of these factors alone. All of the factors are to be
considered. Restatement (Second) of Torts 520, Comment h, at 39
(1977).
Any single factor in section 520 alone is not necessarily
sufficient for the conclusion that an activity is abnormally
dangerous or ultrahazardous. Conversely, it is not necessary that
each factor be present, especially if other factors weigh heavily:
"The essential question is whether the risk created is so
unusual, either because of its magnitude or because of
the circumstances surrounding it, as to justify the
imposition of strict liability for the harm that results
from it, even though it is carried on with all reasonable
care. In other words, are its dangers and
inappropriateness for the locality so great that, despite
any usefulness it may have for the community, it should
be required as a matter of law to pay for any harm it
causes, without the need of a finding of negligence."
Restatement (Second) of Torts 520, Comment f, at 37-38
(1977).
The question whether an activity is abnormally dangerous or
ultrahazardous is one of law for the court. Restatement (Second) of
Torts 520, Comment l, at 42 (1977).
Reviewing the six Restatement factors, the appellate court
agreed with the trial court that neither pile driving nor the
maintenance of the tunnel was an abnormally dangerous or
ultrahazardous activity. The appellate court concluded that class
plaintiffs' and Hartford's complaints lacked sufficient facts to
support the first three factors.
We note class plaintiffs' and Hartford's argument that pile
driving is inherently or intrinsically dangerous. They reason that
since pile driving produces uncontrollable vibrations and
concussions similar to blasting, which courts generally consider to
be inherently or intrinsically dangerous, then pile driving should
likewise be subject to strict tort liability. See, e.g., Cincinnati
Terminal Warehouses, Inc. v. Contractor, Inc., 324 N.E.2d 581, 582
(Ohio App. 1975) (collecting cases). However, other courts have
rejected this analogy, reasoning:
"In our opinion, the common factor, vibrations, is not
sufficient to place the case under consideration in the
same category as blasting cases. Machines, motors and
instrumentalities which cause vibrations are in such
common use in present-day activities and the probability
of damage from their use is so variable that the mere
fact that all of them cause vibrations is not a
reasonable basis for common classification for liability.
There are many cases involving damage by vibrations set
in motion by instrumentalities other than explosives,
e.g., pile drivers, drills, pavement breakers, etc. The
overwhelming majority require allegation and proof of
negligence. [Citations.]" Trull v. Carolina-Virginia Well
Co., 264 N.C. 687, 691-92, 142 S.E.2d 622, 625 (1965).
We agree with the appellate court that class plaintiffs' and
Hartford's complaints failed to sufficiently allege facts to meet
the first three factors of section 520. The complaints pled their
conclusion--pile driving is inherently or intrinsically dangerous--
without pleading sufficient facts showing why. Such a complaint
cannot withstand a motion to dismiss. See Knox, 88 Ill. 2d at 426-
28.
Regarding the fourth factor of section 520, the appellate
court concluded that pile driving is common to construction
projects, and that underground tunnels and similar structures are
commonly maintained by public and private entities in commercial
and noncommercial settings. We disagree with this conclusion as it
relates to pile driving. It appears to stand for the general
proposition that a common industry practice cannot be considered to
be abnormally dangerous or ultrahazardous.
The Restatement (Second) of Torts 520, Comment i, at 39
(1977), explains that "[a]n activity is a matter of common usage if
it is customarily carried on by the great mass of mankind or by
many people in the community." This comment gives the following
examples of activities that are not matters of common usage:
driving a tank; blasting; the manufacture, storage, transportation,
and use of high explosives; and drilling for oil. Restatement
(Second) of Torts 520, Comment i, at 40 (1977). The common and
deciding characteristic is that few persons engage in these
activities. In this case, tunnels under riverbeds are created,
maintained, and used by the great mass of humanity, or at least by
thousands of persons in Chicago every day. However, relatively few
persons engage in pile driving.
Regarding the fifth factor, the appellate court noted that the
only way to replace the deteriorated pilings around the Kinzie
Street bridge was to drive more pilings into the river. Even if
pile driving were inherently or intrinsically dangerous (see
Fallon, 148 Ill. App. 3d at 935; Restatement (Second) of Torts
520(a), (c) (1977)), the Restatement comment to the fifth factor
explains that some such activities "can be carried on only in a
particular place. *** If these activities are of sufficient value
to the community (see Comment k), they may not be regarded as
abnormally dangerous when they are so located, since the only place
where the activity can be carried on must necessarily be regarded
as an appropriate one." Restatement (Second) of Torts 520, Comment
j, at 41-42 (1977).
Regarding the sixth factor, the appellate court correctly
noted that the Loop is accessible only by many of the bridges that
link it with the rest of the city, and that the piling replacement
project was necessary to maintain the bridges as part of the public
transportation system. The appellate court also correctly noted
that "the management of underground tunnels [specifically, we note,
tunnels under riverbeds] to move freight, transport commuters,
house utility lines, and disperse waste is a necessary urban
activity."
After considering the factors of section 520 of the
Restatement (Second) of Torts, we agree with the appellate court's
conclusion that the pile driving and the maintenance of the tunnel
were not abnormally dangerous or ultrahazardous activities.
Accordingly, we uphold the trial court's dismissal of class
plaintiffs' and Hartford's strict tort liability claims.

CONCLUSION
For the foregoing reasons, the judgment of the appellate court
is affirmed in part and reversed in part, the judgment of the
circuit court is affirmed in part and reversed in part, and the
cause is remanded to the circuit court of Cook County.

Appellate court judgment affirmed in part
and reversed in part;
circuit court affirmed in part
and reversed in part;
cause remanded.

JUSTICE McMORROW, concurring in part and dissenting in part:
I dissent from two of the holdings in the majority opinion.
For the reasons more fully stated in my dissenting opinion in
Barnett v. Zion Park District, 171 Ill. 2d 378, 399 (McMorrow, J.,
dissenting) and because I do not believe that the legislature
intended to immunize willful and wanton misconduct, I dissent from
the majority's holding that willful and wanton misconduct is
shielded by the immunity contained in section 2--201 of the Tort
Immunity Act. Additionally, I dissent from the majority's holding
that the discretionary immunity doctrine insulates the City, as a
matter of law, from liability for failing to repair the tunnel
damage upon notice of the breach and for failing to warn plaintiffs
of the risks of harm resulting from the breach. I briefly address
each point in turn.
The majority's disposition of the willful and wanton counts in
the complaint is premised on the reasoning that tortious conduct of
a willful and wanton nature is immunized by a particular provision
of the Tort Immunity Act whenever such conduct is not expressly
excluded from the immunity provision in issue. As I noted in my
dissent in Barnett, the rationale underlying a grant of immunity
for simple negligence is different in kind from any justification
for immunizing tortious conduct that is intentionally harmful or
willful and wanton. This critical distinction has long been noted
in Illinois decisions. See, e.g., McCormick v. Burt, 95 Ill. 263,
266 (1880) (recognizing immunity for good-faith errors in public
official's discretionary judgment, where no allegations were made
that official acted "either wantonly or maliciously" (emphasis
added)); accord Barth v. Board of Education, 141 Ill. App. 3d 266,
273-74 (1986). Today, the majority expressly overrules Barth and
other cases which hold that section 2--201 of the Tort Immunity Act
does not immunize willful and wanton misconduct. I do not join in
this ruling.
I further note that the decision upon which the majority
relies for much of its explanation of the discretionary immunity
doctrine, City of Chicago v. Seben, 165 Ill. 371 (1897), stated,
"Municipal corporations will not be held liable in damages for the
manner in which they exercise, in good faith, their discretionary
powers of a public, or legislative, or quasi judicial character."
(Emphasis added.) Seben, 165 Ill. at 377-78, quoted in slip op. at
10-11. As the Seben court implicitly recognized in the above
passage, good faith is a component of discretionary immunity. Good
faith is incompatible with willful and wanton misconduct.
My second point of departure from the majority opinion
involves the application of discretionary immunity to those counts
of the complaint alleging that the City breached its duty to repair
the tunnel damage upon notice of the breach and to warn class
plaintiffs of the harm presented by the breach. The trial court
denied the City's motion to dismiss those counts of the complaint,
and the appellate court affirmed the denial of that motion to
dismiss. In reversing the appellate court on this issue, the
majority concludes that the City is entitled to what is, in effect,
unlimited immunity under the discretionary immunity doctrine. The
majority explains that plaintiffs are barred from proceeding on the
counts based on the City's failure to repair and failure to warn
because the plaintiffs "do not allege that there was any prescribed
method for how to repair the tunnel and how quickly, or how to warn
class plaintiffs of the tunnel breach. Thus, the City's actions
cannot be considered ministerial. See Seben, 165 Ill. at 378."
(Emphasis added.) Slip op. at 13.
It would appear from the above holding that the majority bases
the City's discretionary immunity upon the failure of plaintiffs to
plead specified methods, rules, or policies governing repairs and
warnings. This suggests that such methods, rules, or policies
actually exist, or that the existence of preformulated "rules of
repair" or warning procedures is essential to stating a cause of
action for failure to repair and warn. No authority is cited for
this novel interpretation of the discretionary immunity doctrine,
except for Seben. However, Seben does not hold that a
municipality's inaction or failure to repair a known potentially
dangerous condition is immunized if there are no set policies or
rules in place for directing the specific repair. Indeed, it is
curious that the majority does not acknowledge that the Seben
court's analysis actually favors a finding that the acts or
omissions in the case at bar were ministerial rather than
discretionary. The Seben court affirmed a verdict in favor of an
injured plaintiff despite the City's attempt to characterize its
acts or omissions in connection with an open and uncovered catch
basin as discretionary and therefore immune. The court noted, "A
municipal corporation acting in good faith is not liable for any
error of judgment in constructing a system of drainage. *** The
adoption of a general plan of sewerage involves the performance of
a duty of a quasi judicial character, but the construction and
regulation of sewers and the keeping of them in repair, *** are
ministerial duties, and the municipality, which constructs and owns
such sewers, is liable for the negligent performance of such
duties." (Emphasis added.) Seben, 165 Ill. at 378-79. It would
appear, therefore, that the reasoning and result in Seben require
the opposite holding from the one reached by the majority on the
issue of failure to repair.
In justifying the City's failure to warn as a discretionary
decision cloaked with immunity, the majority states that the City
"had to decide whether warning the public would cause panic and, if
so, whether that warning was justified." Slip op. at 13. I cannot
join in this reasoning insofar as it implies that the legal
standard for deciding whether failure to warn of a known danger is
immunized as a matter of law is whether such a warning might cause
panic.
I note also that the burden of establishing entitlement to
immunity, as an affirmative defense, is on the City. The Tort
Immunity Act contains no express immunity for failing to repair a
known hazardous condition on City property or for failing to warn
affected individuals of the risks of harm. As the majority
acknowledges in its opinion, private entities and public entities
are equally liable in tort, except as the legislature expressly
provides through the passage of express immunity statutes. Because
I am not persuaded that the discretionary immunity doctrine
insulates the City from liability for failure to repair the tunnel
and warn potential victims that they lay in harm's way, I do not
join the majority's decision to grant the City immunity as a matter
of law on this issue.
For the reasons stated, I dissent in part from the opinion of
the majority.