good morning also may please the court my name is benji colby i represent maine township and my colleagues and i are before this court to ask you to reverse the appellate court's decision and affirm the circuit court's dismissal of this case in our motion to dismiss we focus this appeal on two main issues the st we ask this court to affirm the circuit court's dismissal of this case on the public to the rule and also to find and also to reverse the appellate court and affirm the circuit court's finding law nd whether the purpose of that new law is hindered by the retroactive application of that rule to this case and rd whether the retroactive application to this case will result in a hardship i'm going to sovereign immunity for local public unities and this court found at that established a new rule of law and it caused a hardship to those public entities because because they would not have accounted for that exposure in and i don't think that point's all that controversial so i'm going to move to the hardship issue which which also balances in favor of the nonracial act of application of form into this case and it's easy to see how because the flooding in this case the place in two thousand and eight that's the underlying issue in this case the lawsuit was filed in two thousand and nine our clients were added to this lawsuit in two thousand and ten and we filed our st motion to dismiss asking this we were added in two thousand and nine we father st motion to dismiss asking the court to dismiss the case on the public due to rule two thousand and ten a full six years before coleman was ever even decided the public duty rule was alive and well at the time and we counted on the public to do rule in limiting liability and finding that no duty existed for the governmental flood prevention services that we provided and then from two thousand and ten until two thousand and fifteen when we were eventually granted our motions to dismiss as we expected we be on the public to your will the plaintiffs went through three iterations of complaints eventually landing on the current operative complaint which is the so called amended th amended class action complaint meaning the complaint only on its face that's the name of our current complaint complaints before that were dismissed on being legally insufficient but there were six hundred and fifty pages long that footnotes to replete with legal conclusions so finally in two thousand and fifteen we got our dismissal that we' been asking for for so long and then eight months later of course coleman pulls the rug out from underneath us and bosses the public to the rule altogether so the hardship here is that the minister the municipal the financier were unable to plane for that duty run it were unable to account for in reserve for the risk roll self insured in eighty's and and now are exposed potentially to a different kind of liability in increased defense costs in a and expensive class action case the st district would actually agreed with us that we would put experiences hardship the significant hardship is what is what the st district called it but the st district found that the plainest would also face a hardship because of homeowners applied non retroactively to this case th the plaintiff's claims are dismissed and indeed that's a hardship but that's not the correct analysis because the factor is whether the retroactive application of coleman to the case would cause a hardship in this case coleman doesn't cause a hardship for the plaintiffs if it's applied to this case coleman reinstated claims that didn't exist for them in the st place the hardship to exist in this case to the defendants only causes a hardship to the defendants not to the plaintiffs and so because a new principle of law has been announced and because it causes the hardship to the defend its next case those two factors balance overwhelmingly in favor of the non retroactive application of coleman to this case over sixty years of supreme court pre other is the rd factor though and it's kind of a cherry on top because it also balances in favor of the defendants in this case and the last factor is whether the non retroactive application of coleman to this case will hinder the overarching purposes of the com new rule of abolition of public duty rule and the case of alice in vs a village of around lake park tells us that that factor balances in favor of non retroactive application of coleman if the current case this case has unique facts and timing so that the non retroactive application of common to this case will not hinder the application of common going full in the st district our st appellate district also agreed with us on that point actually they found that the unique posture of this case in the complicated pleadings history in the timing distinguishes case from other types of cases that as i discussed before from two thousand and eleven through two thousand and fifteen the various iterations of the complaint and so because of that unique procedural posture the st district found that the non the non retroactive application of common to this case when impact other cases unlikely in further that's bolstered by the special limitations that those municipalities are able to account for their exposure in the potential defense costs and rely on other defenses like the toward immunity act and can reserve for those types of exposures so given that unique posture this factor  f not retroactive application of coleman to this case balances in favor of the defendants here the st district all found ultimately that this factor leaned in favor of the plaintiffs and they did that in looking to the stated as being that the public to rule over time has been muddled and caused inconsistent results in the st district in particular look to a nd district case that had come out salvia versus the village of plague zurich which had found that the public rule  rule is another flooding case in it and that court had found that the public do rule did not apply to the case because it had been abolished and that case came out later two thousand and sixteen but the st district erred in that analysis too because there was no analysis retroactivity and the salahi's in fact the the lawyers in that case briefed and argued the case prior to coleman ever coming out and then after coleman was decision the appellate after coleman's decision was was handed down then the from property ownership and that's not correct either in fact the public duty rule has existed in unity with those with those duties for over a one hundred years and the duties that are alleged in this case are not the types of failing to that you don't own failing to mobilize tanker trucks to pump water into filling to sandbag at the rate of ten thousand dollars sandbags for hour and failing to mobilize people to to disperse those sandbags failing to put up flood protection barriers failing to redesign the creek and this is a creek all together and those are governmental services that they have left in their complaint that breached the duty but those aren't the typical pothole or defective sidewalk or slip and fall that you find owned or or or least it does not include it actually specifically exempts easements and ownership in this case is not plated the reason why is because the main drain quote main drain that runs through this neighborhood is actually pretty  act also bars point of taking claims but i want to focus on the underlying taking claim itself which fails and was not properly pled for two independent reasons st the claim for taking by in action has never been recognized in either the federal  illinois takings clauses and nd a taking does not occur when a private entity causes the intrusion on private property four years ago another attorney from the metropolitan water reclamation district stood before you and hampton versus the end of your day and argue that did the distinctions between the illinois takings clause and the federal takings clause should compel this court to disregard federal precedent and not follow limited lockstep approach this court rejected that argument today we stand before you today asking you just to follow hampton and add here to the clear uniform nearly eighty year history of federal precedent that found in action is insufficient to state a taking place starting as far back as in one thousand and thirty nine in the united states versus a skull and burger case the us supreme court found that failure to protect a property from flooding is insufficient to state a take place continuing all the way through the federal circuit's decision in st bernard parish government versus the united states where the federal circuit found that once again a failure to maintain or a failure to modify is insufficient to state a claim for taking under the us constitution the court there noted that a failure to modify or maintain may give rise to a tort claim but it can not give rise to a taking clinton this court's decision in hampton relied on arkansas fish and game commission vs the united states where the s supreme court found that for a temporary taking to beasts temporary flooding to state taking claim the flooding must be the st suitable or intended result of government action authorized government action that this court used that language all we are asking for is that to be applied to this case here because as mr jacoby mentioned what point of her actually pleading is a failure to act no illinois case has ever held that a failure to act is sufficient to state a claim for taking no federal cases ever said that failure to act is sufficient state of plan for taking and the reason behind that is because the takings clause is not designed to cure all harm that may come from government action or from government activity rather it's designed to address a specific situation where government comes in takes your property and does something with it right whether it's build a courthouse build a road or build a sewer they have to pay l your definition it has never been held that by any court with an illinois and it has never been held that by any federal court in fact in mazes versus the city of chicago which is a case that the plaintiffs cited that is again another district case the district was building in intercepting sewer in the city of chicago we still not intercepting suit the district was responsible for taking the city of chicago wasn't because all the city of chicago did was granted an easement and approve the plans that the permit it here is to certain regulations is passive public protection it is not active individual assistance so therefore liability could not have been conditioned on that again that would be a massive expansion of what takings the taking clause does is if simply issuing a permit then effectively every time any building and house anything was built that would be government action that could justify a taking of what effectively would happen and one of the problems with doing so was it would convert government into insurers of all property within their jurisdiction it would also potentially muddy and confuse the waters of what is relatively a straightforward claim takings if the government comes in and takes your property the responsible for it but in a situation where it's a failure to act as has been alleged here by the plaintiffs there are five different units of government that they allege failed to act to protect them from flooding four different layers of government to municipalities  township the county a special district they could have also asserted a claim against the state of illinois at the end of a condemnation proceeding we're buying something with our money we're buying a property interest in this situation where it's a failure to act what property interest does each of those five entities get at the end who is responsible for maintaining that property that they're purchasing these are questions that would necessarily be raised if the court extended takings liability to an action and they would not exist if this court held with the uniform body of case law that in fact the federal level and this court's own language that affirmative government action is necessary and and that leads them to  the nd point is that a taking does not occur when a private entity causes the intrusion in this situation the plaintiffs have alleged that the water that intrude invaded their homes and it's in par twenty two of the amended th amended complaint amending the complaint only on its face states that all stormwater which invaded the plaintiff's home originated from advocate property with the exception of in significant tributary stormwater to the robin meade robin de main drain they don't assert that advocates property contribute a portion they say that all of the storm water that came to their home was from advocates property and the rd district in serranos versus the city of mccomb stated traditionally takings claims arise from government action alone not for multiple causes that would include actions of private actors that is what is being asserted here if there are multiple actors that type of a claim belongs in a tort claim if one can exist if plaintiff's claims exist here against anybody that exists against advocate not the municipalities not anybody that may have issued a permit again no case has ever held in illinois that public entities are responsible for paying takings damages for in an intrusion caused by a private entity immunity to the claims themselves in order to do that it's important to look at the purpose of the toward a meeting at it toward immunity act itself and that's stated expressly in the statute to protect local public entities and public employees from liability arising from the operation of government of the toward me and he act to any damages to or loss of property alleged in the civil action whether that's based on the constitution of the state of illinois or on common law and that inclusion of constitutional claims was intentionally added to the to immunity act to cover or to address cases that have been decided in the past so when we're looking at all the claims that are present in the in this case before the court the tortie media does have general put ability to all the claims that have been raised and specifically and most importantly is the section two to a one discretionary immunity that's provided to local public entities and the appellate court did address this in looking at this specific basis for dismissal and they did state that appellate court did not look at was the actual allegations that are played in the complaint themselves and the plaintiff expressively pled that there was exercise of discretion in by the public entities in this case they talked numerous times about conscious disregard for flooding concerns talked about reports and studies that were looked at in a valley you waited and the conscious of the alleged conscious disregard by the local pet public entities that alone shows that there wasn't  these specific communities but rejected those saying that they don't apply to local public entities own property but again in this case something we're dealing with or not there's no allegations that there's property owned by the local public entity and there's nothing to support owed to owed to the plaintiffs if there's no ownership interest by the local public entities and the plaintiffs themselves can point to no cases that depart from that standard that was set forth in the van meter case that you need you can only have that duty owed to landowners they rely exclusively on the receiving rd of torts which has hasn't been adopt would buy this quarter apply the score to any such it jason land order cases and there's certainly no reason to do it in maintenance and according to the plaintiff they're asking this court to define it depart from a longstanding precedent that the toward immunity act does not provide independent cause of action and that's supported again by the purpose of the act itself which is to  provide immunities and defenses that's the express purpose of the tour to media itself and that it aligns with what this court found in the monsoon case just a couple years ago that expressly said the same thing  not create independent statutory causes of action and there's no reason to depart from that precedent in this case and that's for multiple reasons first off if you look at duty but more importantly a question whenever colleagues argued that the allegations in this complaint and you know the complaint was two hundred and twenty pages lon depends on what's alleged your honor and in this case they're alleging a violation of with providing of government services as a whole and that's where the public duty rule comes into play we're not talking about a three thousand one hundred and two a claim the st was civic maintenance a property into important and as my colleagues mentioned can connect together because the public duty role as it was in effect prior to coleman talks about providing government services to the public as a whole not maintaining the sidewalk i don't think you'll be arguing this if this was a trip and fall on the essentially seek to impose strict liability against the municipality if there's a unsafe design and they claim that that nd sentence removes any immunity but that that that argument that logic doesn't fit with the purpose of the tort of the at itself and it doesn't even fit with other provisions of the tort immunity act you have other provisions such as section twenty two or two about law enforcement that gives immunity for execution and force in the law but removes it for willful and wanton conduct that doesn't mean that a separate cause of action is stated under section two to all two it's simply a limitation on the immunities that would otherwise apply to a municipality i think your seen is a most important operative controlling fact in this case and that is the point is damages arose occurred and they continue to occur as a result of inherently an artificial and  condition i'm property that's either owned possess or in some manner controlled by the defendants that condition is a public storm water sources to it's not a river it's not the mississippi it's not a waterway it's a public storm water sewer system and the o p s defendants and one fashion or another were involved in the erection of that system and are currently involved in the operation of that system and they expect the plaintiffs to use that system of mechanism of damages is important it's important for a number of reasons and the very fact that this is a public improvement impacts everything from the and i have an exact same size copy is a diagram of the curry creek storm water sewer system and i want to point out how it works briefly because it's important for a number of factors this is a public storm water system ok it's not pavilion basin it's on africa property we acknowledge that properties private but the bases are created for the purposes of handling a public storm water system in effect park which was intimately involved in that particular process and water reclamation district why because park ridge is going to be sending their water their upstream water into these basins as part of their sources them and they signed off on that permit stating the owner of the  charge through a pipe a sewer pipe it goes into what's known as we call the main drain it's a ten foot channelize drain kind of like a major canal ten feet wide it collects that water now it's a ten foot open channel that makes sense that ten put open channel runs now through main township the main isn't up in this case because main township uses that system at that particular point and how because there are tributary street source drains that drain and have to drain someplace they drain into that ten foot channel which is all fine and good except not i guess rocket science as a result of that bottleneck that particular pipe there it's a condor ground culvert it's not even open it's underground and it's only five feet in diameter so now park ridge and the district it manages everything and now main township are now all expected that ten feet of water is going to fit inside a five foot pipe not to be positions b almost sounds like a movie star recently my cousin denny this is some kind of magical pipe it isn't and that's the problem as a result of that particular condition the water surcharges and backs up the water actually reverse its flow to the to our clients homes who rely upon their streets are draining into the channel can't do it and what's worse is the water keeps surcharging and because the ballard basin and  against the one hundred years to stickle recurrent event is the minimum accepted level this is hers of talking to them in one thousand nine hundred now that that problem hasn't been changed and i and i get it but the important point here in terms of bringing up this history the important point about the fact that this is a public sore it impacts the public duty rule because of the fact we submit and it's in our in our briefs and we've argued it repeatedly is that the public duty rule i know we hear about coleman and director and rep application but the public duty rule has never been applied in the context of damages arising say from the fact that the public the rules never been applied to a car and the context of damages arising out of a public improvement ok the actions of the o p s in this particular case also support a takings claim that was brought up during their opening argument the question about whether an act issuance of a permit would be sufficient perhaps to bring in government action but if you're talking about a permit requested by a private person to build a private thing that only private people use maybe so that's not this case this case involves a permit submitted to a governmental body the reclamation district it was signed off by park ridge correct an unknown unsafe condition yes this time is that yes we are talking yes ok yes now the but in terms of talking about the affirmative action and only cited to hampton hampton recognize  temporary flooding is sufficient to create a taking and of the constitution going to reason the plane to fail in hampton was because they couldn't establish that the district knew or should have known that putting would occur that they can't make that allegation here they clearly what have you think the absent creek was about well i can't say that in this case the district took a pump and pump the water out of the main ten foot main drain into our clients homes no but they might as well done that because they create an impossible situation of trying to send ten feet of water into a five foot drain and the end result of that was to turn our clients homes into the basin they didn't want to build a basin by the way which we allege in the complaint and established by the i d f are a basin it could have been built in a soccer field and according the idea in our would have reduced the risk of flood flooding by eighty four percent but they didn't want to do that instead to the plaintive in mater if applicable and as long as you agree or brings that up in their reply they're bringing up the case of list l i s t and the problem with citations that cases in this particular case change the law for that cause of action forward wouldn't have had any effect in any of that in this case ok in this particular case the difference in time is our cause of action heroes of september of two thousand and eight the cause of action in  time was also important is that during the entire period of time certainly they wanted to argue the public duty rule but we were also opposing and i appreciate their professionalism in bringing up the public do to rule in this case but w was it ever brought up it wasn't ok and therefore i submit in terms of the chevron standards they cannot really argue that they relied upon the public to the rule because i can't find one anywhere where they did  also important i mean other side of the coin we talk about the equity side we rely on the fact that the public duty rule has never been applied in the cases involving damages in the context of a public improvement what about us and no only that how do we rely upon the fact that there that will did not apply we also are the ones who suffered catastrophic damages now this is a two thousand night case there are two thousand and eight cases sis's cases been this this case is consolidated there's four other total of four cases involving repeated incidents here so we're talking about plaintiffs who who've repeatedly lost everything because their homes have been turned into the retention basins that the district didn't want to build a main township didn't want to build or park ridge didn't care about because they're upstream and long as you get the water away from us we're fine with that but that's that's simply inapplicable i'd like to go very dangerous risk i mean it's a system built upon a five year storm cycle that's just plain ridiculous now so that if the risk exists there the problem that the appellate court had was a fact that we did not  which involved a restatement of torts in those particular cases while dealers did talk about the restatement and particular case i think the defendant owned the property but the court if you look at the opinion repeated talks about why we think that it's it's a natural extension if you will or follow through for the court to adopt restatement forty nine dollars which pertains to possessor of land and causing injury to somebody outside the land and likewise reach restatement fifty four dollars is entitled duty of a land of possessor to those not on possession of the land there's not much of an extension there when you say ok a contractor is going to be responsible to somebody getting h land they don't own of them but and only because a big tree the condition there's not much of an extension we have of the of the law we have a situation here where the o p s the district or what have you they ha allegations in your complaint and now you're saying that you're making a completely new argument put it that the that the jason ownership claim was allowed by the appellate course i didn't argue that particular case or handle upon he ruled that yes a room with the facts may what would make otherwise ordinary establish a claim except for the fact that the are that the artificially dangerous condition is not situated on land that's owned by the defendants our position is is that since is a torque case and i believe justice court decided to a property law case that the two are or are different with respect to our statutory claims ok one of that statute specifically talks about liability under article three it says a local public entity is not liable not liable under this article was relieving talking about not liable under this highlights some of the issues that we've faced throughout this litigation in terms of what is being alleged what claims are and in particular what claim still exists i think we have now made it's been made clear that they've abandoned  the dominant state overburdening claim which is alleged in their complaint and they claim that the appellate court granted them leave to amend their complaint that never occurred they were allowed to argue it but the complaint still stands property either owned or leased by a public entity it is not possessing it is owned or leaks that's from the from three dash want to one of the toward immunity act of what public property is is so for those claims that are premise on the alleged this statutory duties that are statutory cause of action again which they've abandoned any common law negligence claims for failure to maintain or operation of a plant that is not public property under even what they've alleged here is not public property under the toward immunity act because they don't allege that we own or lease any portion of an adjacent property or any part of it and with respect to prairie creek and it is prairie creek that is what the harbor report calls it that's what the idea in our report calls it is a study of flooding along prairie creek they may claim that it is somehow been converted into a public improvement but what they don't allege and they don't tell this court is who did what along that storm water system who created that bottom that's not alleged in fact what they allege in this case is that that was developed by a private entity and so now what the expansion of liability that we're talking about here is is massive because it's again a development that was built by a private entity potentially authorized at some point by cook county that is now being foisted upon main township park ridge and the district when we never built it we didn't control but because water flows downhill towards the creek that somehow that is now ours or that the district and this  very personal to me that the district controls everything we have we are responsible for nearly ninety percent of the land area in cook county if we are responsible for all storm water systems within the entire  which has never privately constructed publicly constructed owned by other entities we would cease to exist as an agency because we simply could not meet that standard and that is not what the general assembly didn't granting us stormwater management authority they didn't convert us into the property owner of all storm water systems that that simply doesn't exist it's been invented by the plaintiffs and it would be in extreme detriment to the district if all of a sudden we now are responsible for ensuring that all storm water systems protect everybody from where they start all the way to the end to the and and that's not to say that that isn't our goal we have hundreds of engineers who are working today as ice speak to try and fix and help flooding across the county main township in the city park ridge work to help their residents we're not saying that we don't have an interest in helping people that's what we do that's why we're public servants that's why we are here but the question is are we liable if we don't do it perfectly or we liable if we don't intrude on advocates property and maintain it or enlarge something the that cannot be the situation here and that would be a massive expansion not just for the three entities here but for every municipality if the standard is now anywhere within your jurisdiction if you're aware of flooding that you have a responsibility of fixing it to the detriment of being liable either for a taking or for negligence at any point that can't be this is not a situation where we built something and it is failing this is not a three hundred and twelve situation  where they excite the city of chicago versus even our seven vs city chicago that was a situation where somebody stepped into a hole on public property and twisted their equal or broke their leg i'm sorry that is clearly a situation that would be covered by by a duty that we owe we don't owe a duty to fix problems on other people's property with the prospect of liability on the other hand and specific to park ridge and the district's permitting system that permit was held up in is attached is a sanitary sewer ridge system permit it's to make sure that the waste water flows from advocates property into the system so that it eventually get treated by our plants it is not about a storm water system because when that permit was issued we didn't have storm water authority if it's not their park ridge does own the lateral sewers that connect its residents to our intercept eventually be waste to allow waste water to be treated but they don't own every ditch on their it within their municipality that's never been held and there's no evidence there's no allegations that that should be the case  and i just want to reiterate unless the the court has any additional questions for the potential liability that it would be forced on local public entities throughout the state if plaintiffs claims are allowed to proceed based on the fact of a failure to maintain other and to other property developer built maintained by private entities it would be ruinous to local government services we can provide and we ask this court to affirm the tr