## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

Donovan v. County of Lake , 2011 IL App (2d) 100390

Appellate Court Caption CHRISTOPHER DONOVAN, A MANDA DO NOVAN, R OBERT COOPER, a nd MARY COOPE R, Ind ividually and on Be

half of A ll Pe rsons Similarly Situate d, Plaintiffs-Appellants, v. THE COUNTY OF LAKE, Defenda

nt-Appellee.

District & No. Second District Docket No. 2–10–0390

Filed July 8, 2011

Held ( Note: Thi s syllab u s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisions for th e convenience of the reader. ) In an action seeking to prevent defendant county from issuing r

evenue bonds repayable sole

ly by customers of a

water system for the costs of

co nst ructing a new system, the ne gligence count was bar red by the Moorman doctrine, the county w as shielded from liability by the To r t Immun ity Act, plaintiffs forfeited their argumen t th at the breach of
contract count was improperly dismissed, and summar y judgment wa s properl y entered for defendants on counts alleging

that the c ounty

was notauthorized to charge the system’s customers exclusively for the replac ement, since th e county had direct statutory authority to issue bonds pay

able sole ly b y the sy stem’s cu stomers.

Decision Under Review Appeal fr om th e C ir cu it Co ur t o f La ke Co un ty, No. 09–L–197; the Hon. Chr istop her

C. Starck

and the H on. Mitche

ll L. H offman, Judges, presi ding.

Judgment Affirmed.-2-

Counsel on Appeal Howard Philip Levine, of

DeAno & Scarry

LL C, and Shawn M. Collins and Aaron W. Rapier, both of Collins Law Firm , P.C ., and Patrick A. Salvi, of Salvi, Schostok & Pritchard P.C., of Waukeg an, for a

ppellant s.

Michael J. Waller, State’s Attorney, of Wauk egan ( Daniel L. Jasica, Assis tant State’s Attorney, of c ounsel), and James C. Bakk, of Waukegan, for appellee.

Panel JUSTICE BIRKETT delivered the judg ment of the court, with opinion. Justices McLaren and Hutc hinson concu rred in the judgment and opinion.

OPINION

¶ 1 Plaintiff

s, Christopher Donovan, Amanda Donovan, Robert Cooper, and Mary

Cooper, resi de nts of the Glennshire subdivision in the Village of Hawthorne Woods (Village ), brought a class action against defendant, the County of Lake (County), seeking to prevent the County from issuing revenue

bonds rep ay able sole

ly b y customers o f the Haw thorne Woo dsGlennshire (HWG) water system (w ater s ystem), f or the costs of con struc ting a new water sys tem. Judge Christopher C. Starck granted th e Co unt y’s m ot io n t o di sm is s co unt s I an d II of plaintiff s’ amended com

plaint and transferred the remaining c ounts to the court’s chancery division. In th e ch anc ery d iv is io n, J udg e Mi tch ell L. Hoffman granted summary judgment in favor of the County

on counts I

II and I V of plain tiffs’ second ame

nded comp laint. For the following reasons , we aff

irm the or ders of t he trial c ourt.

¶ 2 I. FACTS ¶ 3 A. Background ¶ 4 The water sy stem was o rigina ll y constructed between 1954 and 1962 and served 224 residences by de liver ing w ater from 20 shallow wells. Each well served less than 15 residences, which classified the sy stem as a “non-community wa ter supply” and there fore not subject to public water syste m standards. See 415 IL

CS 5/3.145 (West 2008). ¶ 5 The well s in the water system ha ve water distribution mains, or piping, measuring 1 1/2
to 2 inches in diameter and are located mai nly in the back and fron t ya rds of pr ivate residences. Half of the water system was never under the Village’ s control and was acquired by the Co unty in 1 973 un der an a greemen t to w hich t he Vil lage was not a party. I n 1975, the Vill age contracted with the County for the Co

unty to take ov er the op eration and owne

rship of the portion of the water sy stemthe Village controlled (contract hereinafter re

ferred to as the 1975 contract). ¶ 6 In the

1975 cont

ract, the County

agreed to make a

ny improveme

nts to the water

system-3-

that wer e re qui red by th e Ill in oi s En vi ron men tal Pro tec ti on A gen cy (IEP A). Italso provided that, for oper

ating, maintaining, or pa

yin g debts f

or improv ements to the water sy stem, the County was authorized to charge individual customers rates as required. Further, the contract providedthat “[ t] he County will from time to time issue revenue bonds to expand and improve the water s upply facilities. Said revenue bonds shall be retired by funds derived from the local system.” ¶ 7 In operating the water sy stem, the County sampled and tested the water monthly at

each of the 20 wells and se

nt the re sults of tho se tests to the IEPA. Between Septe mber 2000 and August 2005, three test

results showed coliform exceeding the maximum contamin ant level. ¶ 8 In 2006, the C ounty obtained a permit f

rom the I EPA to insta

ll interim chlorina tio n facilities for

the water sy stem. Those facilities were constructed and made ope rational before August 2006. On Se

ptember 19, 2007, t

he County

submitted t

o the Villa

ge for its approval engineering

and design plans for an I

EPA-compliant

water system, a

long with an application for a Village permit to site the new water sy stem’s distribution piping in the Villa ge’s rightof-way s and publi c easem ents. ¶ 9 Since the Villa ge had permitte d a compe

ting wa ter suppl y sy stem, Aqua

Illi nois , to be installed in the Village subsequent to the 1975 contract, in order for the new water sy stem to be constructed, the Village require d the County to: (1) connect the water sy ste m to the Aqua Illinois water sy stem; and (2) obtain its new water supply by buy ing water in bulk from Aqua I llinois. ¶ 10 To fulfill

the Villa ge’s r equirem ents, the County negotiate d a “Water Supply and

Sales Agree ment” with the Village

and with Aqua I

llinois. Th

is contra ct was ef fecti ve Ma y 12, 2009 (the 2009 contract). ¶ 11 In the 2009 contract, the parties acknowl edged

that the 2 009 contr

act was a supplement
to the 1975 contract. The parties also acknowledg ed that the water sy stem was not orig inally constructed

to public water system standa rds and that the water sy stem was at that time more than 50 years old. The

parties noted that the IEPA had cited t he water system f

or various violations of

state drinking-water standards and that the I llinois Attorney Genera

l had filed aga inst the County

an enfor cement a ction tha t sought t he repla cement o f the wat

er sy ste m with a state-code-compliant public water sy stem (PWS). ¶ 12 Among other things, the 2009 contract provided for Village authorization of a surch arge to water system c

ustomers ’ water bills to retire subordinate revenue bonds issued by the County to fund the

construction of the

new wate

r sy stem. ¶ 13 Regarding the local fu nding for the con st ruction of the new water sy stem, the 2009
contract, parag

raph 3(g )(2)(I

), speci fically

provides :

“ Funding Mechanism for new HWG PWS. The Village acknowledge s and agrees that the pr op os ed Co un ty- is su ed su bo rd in at e r ev en ue bo nd s, se cu re d b y a surcharge on the water bills to HWG a

rea Custo mers, is an appropriate funding mechanism by which the County

is authorized, under

the terms of the 1975 Contract between the Village a nd Co un ty, to charge and collect from HWG a

rea Custo mers, for the proposed new Codecompliant HWG PWS construction and related costs. The

Village agree s that the C ounty is authorized, upon issuance of said County subord inate r evenue bonds, to charge and-4- collect from HWG ar eaCustomers, a surcharge on the water bills of HWG area Customers to retire said County-issued subordinate r evenue bonds.” ¶ 14 The construction permit for the new water sy stem was issued on May 8, 2009, and identi fiedthe appr

oved wat er supply distributi on piping

as “17,2 07 feet o f 4-inch

water ma in
, 2,490 feet of 6-inch water main, 12,373 feet of 8-inch water main, and 1,885 feet of 10-inch
water main.” The replacement water sy stem would be an entirely new, cod e-complian t public water sy stem, with

distributi on piping

located in public r

ight-of -way s and eas ements. ¶ 15 The initial estimates for the cost of building the new water sy stemranged from $23,000
to $25,000 per water sy stem residen ce/parc el. However, following approval of the 2009
contract and th e Co unty’s subsequent bidding out of the project, the actual cost for
constructing the

new wate

r sy stem is $11, 600 per r

esidenc e/parc el. ¶ 16 Before fixing the amount of the revenue bonds to be issued to fund the construction of the new water sy stem , the Coun ty provided notice to the wa ter system customers of the $11,600-per-residence/parce l cost and offered the customers an opportunity to prepa y that
amount in a lump sum. Of the 227 parcels served by t he wate r sy stem, 144 c

ustomers p

repaid the lump-s um amount. ¶ 17 For the 83 customers who had not prepaid, the Count y adopted and a

pproved a subordinate revenue bond ordinance for the amount of $1,220,000, secured by a surch arge

on those cus tomers’ w ater bill s, to fund the remaining portion of the construction costs, and related projects, for the new water sy stem. Sale

of those subordinate revenue bonds closed

on November 2, 2009, and the w ater sy stem contr actor wa s given a

“Notice to Proceed” on November 3, 2009. ¶ 18 Plaintiff

s’ initial complaint was filed on February 25, 2009. Plaintiffs filed an amended complaint on June 2, 2009, and a second amended complaint on August 27, 2009.

¶ 19 B. Plaintiffs’ Complaint ¶ 20 In count I of the amended c omplaint, plaintiffs alleged a cause of action for negligence. Ge ne ra ll y, plaintiff

s alleg ed that the County

was oblig ated to chlorinate the water sy stem’s groundwater

and that, because

the County

fai led to do so, excessive amounts of coliform

were detected on at

lea st three occasions reported to the I EPA between 2000 and 2005. Plaintiffs alleged that the County had duties to responsibly operate a nd maintain the water system and that t he County

breach ed its dutie s by

failing to do the following: ( 1) chlor inate the water sy stem; (2) provide s afe, pot ab le water ; (3) rep air or re place w ater mains with monies from an a

dequate capital improveme

nts fund; (4) set

aside reserves sufficient to fund necessary ca pital impr

ovements ; (5) res ponsibly operate the wate r sy stem; (6) responsi

bly mai ntain the water sy stem; (7) make improvements to the water sy stem as required by th e IEPA; and (8) otherwise

operate the wate r sy stem in a r

easonab le fashio n so as not t o cause damage to plaintif

fs. ¶ 21 In their appellate brief , as support for their claim that the County

was oblig ated tomake improveme

nts to the water system, plaintiffs cite to section 2 of the 1975 contract, entitled, “Oblig ations of

the County .” That section pro vides, in p ertinen t part:-5- “[T] he County agr

ees to take over operation and maintenance of the existing wat e r system and make the necessary

improvements to the water sy stem as may be re quired by the Illinois E.P.A.” ¶ 22 Plaintiffs claimed that the County’s bre aches of its duties proximately caused damages to plaintif fs. Plainti ffs alle ged the

following

as damag es: “[C]osts in cur red for bot tl ed w ate r an d fi lt rat io n. In addition, Plaintiffs and the Class has suffered and will continue to suffer property damages. Property

values in the proposed class areas have bee n impacted by De fendant’s negligence , and such negligence thre atens to cause Plaintiffs and the Class at least $25,000 per home for the cost of replacing the Water System.” ¶ 23 In count II

of the amended complaint, plaintiffs alleged a c ause of action for b re ach of

con tract, as third-party be

neficiaries of the 1975 contract. Specifica lly, plaintiffs asser

ted that the County

is requir ed to prop erly

operate and

maintain t

he wate r sy stem, that

the County

is required to ma ke im pr ov em en ts to th e w at er sys te m a s r eq ui re d b y t he IEP A, and that the County has failed to do bot h. Plaintif fs claimed unspec ified da mages r esulting from thes e alleged breaches of co ntract. ¶ 24 With respect to the County’s a uthority under t

he 197 5 contract to issue revenue bonds
to pay for the c ost of con struction of a new water sy stem, in the

ir brief ’s statem ent of fa cts, plaintiffs cite to section 6 of the 1975 contract, entitled “Expansion and Improve ment of the County Water Sy stem.” Th at sectio n provide s, in pert inent par t: “The County shall expand an d im prove these facilities when the need arises f or expansion of the Lake

County Water Sy stem within

the Villa ge of H awthorne Woods. The County

will from time to time issue revenue bonds to expand and improve the water supply facilities. Said revenue bonds shall be retired by funds derived from the Sy stem.” ¶ 25 Plaintiffs allege that the water sy stem does not requ ire expan sion wit hin the Village. Instead, t he water system requires r eplacement because the County did not operate and maintain the water sy stem properly over time. Since sec tion 6 does not apply, plaintiffs allege , the Count

y do es not hav e contra

ctual au thority to issue su ch reve

nue bonds

. ¶ 26 In count I

II of the amended complaint, plaintiffs sought a declara tory judgment that

the C ounty is not authorized, by statute or under the ter ms of the 1975 contract, to cha rge th e water sy stem custo mers exclu sively for the c ost of re

placing the wate r sy stem. ¶ 27 CountIV, a

dded in the

second a mended c omplaint, s ought an injunc tion, premised on count II I’s claims that the County possessed no statutory authority , and no c ontractua l authority under the 1975 contract, to charge the wa ter system customers exclusively for the
cost of replacing the water sy stem. Plaintiffs alleged that the County ha d advisedthe water system customers that they had 3 0 day s withinwhich to pay a lump sum, alleg ed to be $23,000 per residence, that represente d eachcustomer ’s pro rata share of the cost to replace the water system. Plaintiffs conte nded that injunctive relief was appropriate and

necessary to preserve the status quo. ¶ 28 Neither

plaintiff

s’ amend ed compla

int nor the irsecond amen ded complaint acknowl edged

the 2009 c ontract

.-6-

¶ 29 Before

plaintiff s filed the

ir second amende d comp laint, defend ants move d to dismiss
counts I, I I, and I II of the amended complaint. On September 9, 2009, the trial court entered

an order dismissing counts I and I I of the amended c omplaint. With regard to count I, the
court found that the negligence cla ims were barred by

the Moorman doctrine (see Moorman Manufacturing Co. v. National Tank Co. , 91 Ill. 2d 69 (1982)) as well as section 2–201 of the Local Governmental a nd G over nmental E

mployees Tort

Immun ity A ct (745 I LCS 10/2–201 (West

2008). The trial court dis missed count II without pr

ejudice and foun d that, if the breach-of-contract count we re to be repled, it would have to be repled under the 2009 contract. Judge Starck then transferre d the remaining counts to the chancery division. ¶ 30 O n Novem ber 9, 2009, the County filed a motion to dismiss counts I II and IV of

the secondamended

complain t. See 735 IL

CS 5/2–619(a)(9) (West 2008). By agreement of the parties, the motion to di sm iss was treated by the trial court as a motion for summary judgment. See 735 IL

CS 5/2–1005 (West 2008). ¶ 31 With reg ard to whether the County had statutory

authority to issue the reve nue bonds and
to make the

m pay able

from the f

unds ge nerate d solely

from the water sy stem customers, the
court found that the phrase “any waterworks properties” in section 5–15017 of the Counties Code was critical. 55 IL

CS 5/5–15017 (West 2008). The court noted that the Counties Code definedthe term “waterworks sy stem” as a waterworks sys tem in its e ntirety or any integral part thereof . See 55 IL

CS 5/5– 15002

(We st 2008). Therefore, the court held that the Counties Code auth orized the County to issue re

venue bo nds payable

solely from a portion of the waterworks properties. See 55 I LCS 5/5–15017 (West 2008). ¶ 32 The trial court

also found that the 2009 contract, together with the applicable terms of the 1975 contract, impliedly authorized the Villag e to sha re with the County the autho

rity providedby section 11–139–8 of the I llinois Municipal Code, which thus author ized the Cou nty to issue bonds payable solely by the water

system customers. See 65 ILC S 5/11–139–8 (West 2008). Accordingly , the trial court ent e red an order granting summary judgment to the Co un ty on both counts. Plaintiffs filed a motion to reconsider, which was denied.

¶ 33 II. AN ALYS IS ¶ 34 We ini tially note that plaintiffs do not frame their issues on appeal with respe ct to th e four counts raised in the i r compla ints. Howe

ver, for purposesof clar

ity w e will add

ress plaintiff s’ arguments in th

e context o f each c ount alle ged in th e compla int.

¶ 35 A. Count I–Neglig ence ¶ 36 First, we will ad dress wheth er the trial court erred in dismissing count I of plaintiff s’ amend ed compla

int when it held that the negligence claims wer e barred by

the Moorman doctrine as well as section 2–201 of the Local Gover nmental andGovernmental Employees Tort I mmunity Act. ¶ 37 The County

filed its motion to dismi ss plaintif fs’ amended compl aint purs uant to section 2–619.1 of th e Code of C ivil Procedure (Code). 735 IL CS 5/2–619.1 (West 2008). In that-7-

motion, the County

argue d that the

complain t sh ould be dism

issed pursuant to sections 2–615 and 2–619 of the Code. Regardless of whether the c ourt dismissed plaintiffs’ complaint pursuant to section

2–615 or 2

–619, or a

combinat i on of bo th sections pursuant to section 2–619.1, our standard of

review is the same. We review the trial court’s order of dismissal de novo

. Kea n v. Wa l-Mart Stores, Inc. , 235 I ll. 2d 351, 3 61 (2009) . In doing so, we will accept as true all well-pleaded factual alleg a tions. Morris v. Illinois Central R.R. Co. , 382 Ill. App. 3d 884, 886 (2008).

¶ 38 1. The Moorman Doctrine ¶ 39 In count I of the amended c omplaint, plaintiffs alleg ed th at the County had duties to responsi bly operate and maintain the water sy stem and that the County

breached its duties by failing to do the following: (1) chlorinate the wate r system; (2) provide sa

fe, pot able water; (3) rep air or re

place w ater mains with

monies from an adequate capital improveme

nts fund; (4) set a side res erves sufficien t to fund necessar

y c apit al improveme

nts; (5) r esponsibl y operate the water sy stem; (6) responsi bly maintain t

he wate r sy stem; (7) make

improveme

nts to the water sy stem as required by the IEPA; and

(8) otherwis e opera

te the wa ter sy stem in

a r easonab le fashion so as not to cause damage to plaintiffs. Plaintiffs contended that the County ’s brea

ches of its duties pr

oximately caused t he following dama

ges: “[C]osts incurred for

bottled water

and filtration. In addition, Plaintiffs and the Class has suffered and will continue to suffer property damages. Property

values in the proposed class areas have been impacted by D efendant’s negligenc e, and such negligence threatens to cause Plaintiffs and the Class at least $25,000 per home for the cost of replacing the Water System.” ¶ 40 In dismissing count I, the trial court held that plaintiffs’ alleged damag es involved out-ofpocket expenses a

nd marke t-value loss t o real pr

operty , which a

re consi dered e conomic losses not recoverable under the Moorman doctrine. ¶ 41 On appeal, plaintiffs argue that the damages alleged in count I a re not barred under the Moorman doctrine

for the f ollowing reasons : (1) plaintiffs did not allege that the damages

were caused by a

defect in the water

system itself, but instead they alleged that theCounty’s conduct caused their damages; (2) the cost to repair or replace property that is damaged by

a defendant’s negligenc e is not solely economic loss; (3) the County ’s negligence caused the
water in the system to b e u nfit for d rinking , and that

dange rous situa tion was sufficien

tly sudden and calamitous to be considered an exception to the Moorman doctrine ; and (4) this

case is analogous to Village of Deerfield v. Commonwealth Edison Co. , 399 Ill. App. 3d 84 (2009), where we found that the Moorman do ct ri ne di d n ot ap pl y. ¶ 42 In Moorman , 91 Ill. 2d at 91, the I llinois Supreme Court held t hat a pla inti ff cannot

recov er solely economic loss under a tort theory of neg

ligence. In Moorman , “econ omic loss”

was described as “damages for inadequate value, costs of repair a nd re placement, or consequential loss of profits–withoutany cla im of personal injury or da mage to other propert y.” (Internal quotation marks omitted.) Moorman , 91 Ill. 2d at 8 2. Alt hough th e Moorman case invo lved

productsliability , our supr eme cour t later a pplied the economic -loss ruleto claims that services were performed ne gligently . See Anderson Electric, Inc. v.-8-

Ledbetter Erection Corp. , 115 Ill. 2d 146, 153 (1986). I n Anderson , the court hel d that a plaintiff seeking to recover purely ec onomic losses due to the defeated expectations of a commercial bargain cannot recover in tort, regardless of the pl aint iff’s inability to recove r in contract. Anderson , 115 Ill. 2d at 153. ¶ 43 The eco nomic-los s rule applies even to plaintiffs who have incurred physical damage to their propert y if the dama

ge is caused by

disappointed commercial expectations, gradual deterioration, internal breakage, or other nonacci dental cau ses, rather than by a dangerous
event. In re Chicago Flood Litigation , 176 Ill. 2d 179, 200 (19 97) . For damages to be

recove rable in tort, the

sudden, d anger

ous, or ca

lamitous oc currence must sti ll result in personal injury or proper

ty damag e. Without injury to a plaintiff’s per son or propert y, a claim present s an economic loss not recoverable in tort. In re Chicago Fl ood Litiga tion , 176 I ll. 2d at 201. ¶ 44 Plaintiff

s first argue that the Moorman doctrine should not apply here because they are claiming that

the County’s negligent conduct in failing to prope rly maintain the water

system caused their damages, not that

the water system itself was defective. Specifically, the y point
to the County’s failure to chlor inate the water sy stem, which caused excessive levels of coliform to be pre sent in

the water supply. As support f or this contention, plaintiffs note that the plaintiff in Moo rman a lleged a defect in the storag e tank itself, and therefore the court

correctly held that the damages alleged w ere solely economic losses. Plaintiffs contras t Moorman to th e instant c ase, whe re they have all eged th at the da

mages w ere pro ximately caused b y the County ’s opera tion and ma

intenanc e of the w ater sy stem. ¶ 45 We are not p ersuaded by plaintiff s’ reasoning. Four years aft er the su preme court rendered its decision in Moorman , it applie d the eco nomic-los s ruleto claims that services

were performed negligently . See Anderson Electric, Inc. , 115 I ll. 2d 146. The Anderson court also held that “[a] plaintiff seeking to recover purely eco n omic losses due to defeated expectations of a commercial bargain ca nnot recover in tort, regardless of the plaintiff’s inability to recover unde

r an action in contract.” Anderson , 115 Ill. 2d at 153. ¶ 46 Her e, accord ing to plain tiffs ’ alle gation s, th e Coun ty was pro vidi ng water service t o plaintiffs pursuant to a contract with the Village. I f plaintiffs’ expectations regarding how the County

performed that service were not met, then the Moorman doctrine clearly applies. ¶ 47 Next, plaintiffs contend that the cost to repair or replace pr operty that is damag ed by a defendant’s neglig ence is n ot solely economic

loss. As supportfor this contention, plaintiffs citeto City of Oakbrook Terrace v. Hinsdale Sanitary District
, 172 Ill. App. 3d 653 (1988). In Oakbrook Terrace , this court held that damages to the city ’s streets resulting from the defend ant’s negligent installation of storm sewers were not solely economic los ses

. Oakbrook Terrace , 172 I

ll. App. 3d at

661. Her e, plaint iffs con tend that their water su pply

was made unsafe by
, inter alia , the Count y’ s refusa l to chlorin ate the water. Therefore, plaintiff s’ assert, the compelled replacement of the wa ter system is a d irect result of the County’s negligence, and

the cost of replacing the

water sy stem is a r

ecover able damage, ju st as the cost to replace the streets was rec overable in Oakbrook Terrace

. ¶ 48 We disagr

ee with pl aintiffsthat Oa kbrook Terrace can be likened to the instant case. Here, the cost to

replac e the wa

ter sy stem can

not be com

pared to the cost to repair the city ’s-9-

streets in Oakbrook Terrace. In Oakbrook Terrace , the dama ges to the city ’s stree

ts were a direct result of the defendant’s neglig ent installation of storm sewers. Here, however, even viewedin the light most favorable to plaintiffs, thefactual allegations in plaintiffs’ complaint indicate tha t the wat er system did not have to be c ompletely replac ed simply because the County did not chlorinate the water. Specifically , the complaint alleges that the water system didhave chlorination faciliti es installed in 2006, almost three yea rs before plaintiffs filed their initial c omplaint. Since even plaintiffs’ factual allegations do not show a direct relation ship between the County’ s failure to chlorinate prior to 2006 and the ne ed for the more-tha n-50-y ear-ol d water s yst

em to be r

eplace d, plaintif

fs’ arg ument is wi

thout meri

t. ¶ 49 Plaintiffs also claim that the County ’s neglig ence ca used the w ater in th

e sy stem to be unfit for dri nkin g, which was a dangerous situation sufficiently sudden and calamitous to be considered

an exception to the Moorman doctrine. As support for this contention, plaintiffs citeto In re Chicago Flood Litigation , 176 Ill. 2d 179, and Muirfield Village-Vernon Hills, LLC v. K. Reinke, Jr., & Co. , 349 Ill. App. 3d 178 (2004). ¶ 50 In In re Chicago Flood Litigation , our su preme court held that the plaintiffs were permitted to seek

recove ry for per ishable inventory lost due to an interruption in electrical service caused by a

flood. Based upon

this h oldin g, pl ainti ffs a

rgu e tha t “[b]y analogy, it is only logica l that plaintiffs he

re be allowed to

pursue th eir damages caused by

unfit drinking
water. Both electrical

s erv ice and potable water are utilities of every day life. When a defendant’s negligence interrupts a utility , as in the Chicag o F lood Litigation , or perm its p ollutants in one, as here, the suddenness or dange rousness of those occurrences distinguishes those

plaintiffs’ tort damages from other situ ations whe

n merely economic

loss result.” ¶ 51 Plaintiffs’ analysis is flawed. The court in In re Chicago Flood Litigation did notallow the pl ai nt if

fs to se ek re co ve ry for their lost peris hable inv entory because electri city

was a “utility of every day

life,” nor did the court

hold that the loss of electricity wa s a sudden or dangerous event

that c onstituted an exception to the Moorman doctrine. Instead, the cour t held tha t, to recover in negligence , there must be a showing of harm above and be yond disappointed expectations. In re Chicago Flood Litigation , 176 Ill. 2d at 201. The court specific ally

noted that the plaintiffs were no t seeking damages for the loss of continuous electrical service, which wa s a disappointed commercial expectation. Instead, the plaintiffs

were seeking

damage s for pro

perty loss, in th e for m o f l os t p er is ha bl e i nv en to ry, as a res ult of a tortious event. The court held that such damageswere above a nd beyond the pla

intiffs’ commercial expectation of continuous electrical service and that t herefo re those losses fe ll outside the definition of economic l oss and we re rec overabl e in tort. In re Chicago Flood Litigation , 176 Ill. 2d at

202. Here, plaintiffs have not alleged a ny actual property

loss that

was above and bey ond their disappointed commercial expectations, and, therefore, In re Chicago Flood Litigation is not analogous to the instant case. ¶ 52 Plaintiffs also cite to Muirfield as support for

their proposition that the County’s failure
to chlorina te the water in the water sy stem prior to 2006 caused a dangerous situation that

was su ff ic ie nt ly sudden a nd calamitous to be considered an exception to the Moorman doctrine.-10-

¶ 53 In Muirfield

, an infestation of mold and bacteria in a newhome was held to be a sudden and calamitous event so as to fa ll within the exception to the Moorman doctrine. The Muirfield court noted that, “[w]hen characterizing an event as sudden and

calamitous[,] the focus is upon ‘the suddenness of the occurrence of an event –the point when the injury occurs
** *–whe re such occurrence causes pe rsonal injury or dama

ge to property

external to the defect ive produ ct which e

xposes a pa

rty to an unre asonable

risk of injury to himself or

his pr op er ty, rather than the suddenness or length of time within which the defect or cause of the

occurrence develops*** and ma nifests it self

in the su dden and calamitous occurrence.’ ” (Emphasi s in original.) (Inter nal quotation marks omitted.) Muirfield , 349 Ill. App. 3d at 194 (quoting American Xyrofin, Inc. v. Allis-Chalmers Corp.
, 230 Ill. App. 3d 662, 671 (1992)). ¶ 54 The court

then held that, although the

mold an d b ac te ri al in fe st at io n g re w g ra du al ly, the manifestation was sudden and calamitous, dam a ging the plaintiffs’ personal proper ty and causing them to flee their house or experience the likelihood of personal injury. Muirfield
, 349 Ill. App. 3d at

194. In the instant case, there was no sudden or calamitous manifestation of an event. The alleged dang erous event, the unfit drinking water, manifested itself ove r a five-ye ar period when the water tested high for coliform levels on three di ffere

nt occas ions. This in no way ca

n be considered a sudden or calamitous event, and therefore, the exception to the Moorman do ct ri ne do es no t a pp ly. ¶ 55 Plaintiffs also argue that the instant case is similar to and should be controlled by Village of Deerfie ld . In Village of

Deerfie ld , damage claims for peri shable inventory lost during electri c outages were allowed to proceed beca use the c laims were for “other property .” Plaintiffs argue that the

spoiled food in Village of Deerfie ld

is analogous to the unfit water in this case. ¶ 56 We are not persuaded. The costs of bottled wat er and filtration, as well as impacted property va

lues, are not “property”

that plaintiffs possessed and that w as ruine d as a re sult of th e C ou nt y’s ne gl ig en ce . A cc or di ng ly, Village of Deerfie ld

is inapplicable to the instant

case. ¶ 57 For

a ll these r

easons, w e hold tha

t the tria l court pr operly dismisse d count I of

th e amended complaint because plaintiffs’ alleged damages we re barred by

the Moorman doctrine.

¶ 58 2. Tort I mmunity ¶ 59 Plaintiffs als o argu e that t he trial court erred in ruling that section 2–201 of the Local Governmental and Governm ental Empl oyees Tort I mmunity Act (Tort I

mmunity Act) barre

d
count I of the amended c omplaint. See 745 IL CS 10/2–201 (West 2008). Plaintiffs argue that the County did not establish its defense under the Tor t Immunity

Act because som e of the duties th at we re al le ge dl y br ea ch ed we re no t d is cr et io na ry. Sp ec if ic al ly, plaintiffs claim that the County was mandated by law to provide s afe wa

ter and t o chlorin ate it. Se e 35 I

ll. Adm. Code 601.101, 653.601 through 653.608 (2010). ¶ 60 Section 2–201 of the Tort Immunity Act extends the most significant protectionafforded
to public employees under the Act. Van Meter

v. Darien Park District , 207 Ill. 2d 359, 370 (2003). T hat sect ion provid

es:-11- “Except as otherwis e provided by Statute, a

public em

ploy ee serving in a p ositi o n involving the dete rmination of policy or the exerc ise of discretion is not liable for an injury resul ting fr om his act or omission in determining policy whe n acting in the exercise of such discretion even though abused.”745 IL CS 10/2–201 (West 2008). Our supr eme cour t has def ined the t erms “dis cretion ary ” and “ministeria l” as foll ows:

“ ‘[D]iscretionary acts ar

e those which are unique

to aparticular public

office , while ministerial acts are those which a person perfor ms on a given state o f fac ts in a prescribed

manner, in obedie

nce tothe mandate of legal authority , and without reference
to the official’s discretion as to thepro priety of the a ct.’ ” (Emphasis omitted.) Van Meter
, 207 I

ll. 2d at 371 -72 (q uoti ng Synder v. Curran Township , 167 Ill. 2d 466, 474 (1995)). ¶ 61 Since the immunities afforded to governmental entities operate a s an affirmative defe nse, those entities bear the burden of properly raising and proving their immunity under the Tort Immun ity Act. 745 I

LCS 10/ 2–201 (Wes t 2008); Zimmerman v. Village of Skokie , 183 I ll. 2d 30, 44 (1998). ¶ 62 Here, althoug

h the Count

y ma y ha ve been legall y mandated to chlorinate the water and
to provide safe drinking water, our foc us is the manner

in which the County car

ried out, or failedto carr

y ou t, those du

ties. For example, a s to plainti ffs’ factual allegations relating to three IEPA reports of

coliform violations between 2000 and 2005, each require d the Count

y to decide the appropriate means and method to repa ir the violation
, i.e

. , whethe r to install chlorination facilities on the existing site or to c ompletely

rebuild th

e water sys tem, as well

as how to fund the repair. Further, the majority of the allegations in the amended complaint relate to the required replacement of the wate r system and

whether customers should bear the entire cost. Those allegations relate to how to replace a more- than-50- ye ar-old

water system and invoke dis c ret ionary dec isions on the part of the County. See In re Chicago Flood Litigation
, 176 I

ll. 2d at 19 4 (a munic ipal cor poration acts judicially , or exerc ises its discretion, when it selects and adopts a plan in the making of public improvements). Ac co rd in gl y, we find th at the Coun ty me t its burde n of esta blishing that coun t I sho uldhave been barred

because the County

was shiel ded from

liability under section 2–201 of the Tort Immun ity A ct.

¶ 63 B. Count II –Breach of Contract ¶ 64 CountII

of the amen ded complaint was a caus e of action for breach of contract. Sp ec if ic al ly, plaintiffs alleged that, as third-party beneficiaries of the 1975 contract, they had

a right to have the County properly ope

rate and maintain the water sy stem and make improveme

nts in the water sy stem as mandated by the IEPA. The trial court dismissed count II without pr

ejudice and rule d that, if

plaintiffs were to reple ad this count, they should do so under the 2009 contract. The record reflects that plaintiffs did not do so, and the dismissal was made with prejudice. ¶ 65 In their notice of appea l, plaintiffs sought reversal of: (1) the September 9, 2009, order dismissing

counts I and I I of p laintiff

s’ amended complaint; (2) the January 5, 2010, order granting the County

summary

judgmen t on countsII

I an d IV o f th e secon d amended-12-

c omplaint; and (3) the March 23, 2010, order deny ing plaintiffs’ motion to recons ider th e January 5, 2010, orde r . However, although in their brief’s statement of facts, plaintiffs discuss count

II ’s allegations and make various claims reg arding certain sections of the 1975
contract, in the ar

gument s ection they

do not rai se this i ssue orcite to an y a uthority to support their argumen t that the tr ial co urt er red in dism issi ng t his count. Accordingly , we find that plain

tiffs hav e forfe

ited this argument on appeal. See Kinkaid v. Ames Department Stores, Inc. , 283 Ill. App. 3d 555, 570 (1996) (issues raised in a notice of appeal but not raised before the appellate court a re forfeited). ¶ 66 Even if we were to ignore plaintiffs’ forfeiture, it is clear that any la wsuit brought on a
contract that has been modified, as the1975 con tract wa s modified by t he 2009 c ontract , must be broug ht on the modified contract. Schwinder v. Austin Bank of Chicago , 348 I ll. App. 3d 46 1 , 469 (2004) (when a contract is modified by a subsequent agreement, any lawsuit to enforce theagreement must be brought on the modified agreement and not on the original agree

ment). Th

erefor e, the tr ial cour t did not er

r in dismiss i ng this coun t for plaintiff s’ failur e to plea d it under the 2009 c ontract

.

¶ 67 C. Co unt s III an d IV ¶ 68 CountII

I of the second amended complaint sought a declaration that the County was not authorized, by statute or under the terms of the 1975 contract, to charge the w ater system customers exclusively for the cost of re placing the water system. Cou nt IV of the second amended complaint sought an injunction against the County premised upon plaintiffs’ clai m s in cou nt III. ¶ 69 In granting the County summary judgme

nt on both counts, the court hel d that: (1) the Counties Code auth orized the County to issue revenue bo nds payable solely from a portion of the waterworks properties (55 I LCS 5/5–15017 (West 2008)); and(2) the 2 009 contr act, together with the applicable terms of the 1975 contract, impliedly authorized the Village to share with the County the authority provided by section 11–139–8 of the Illinois Municipal Code, which thus authorized the County to issue re

venue bo nds payable sole ly by the water system customers (65 I

LCS 5/11–139–8 (West 2008)). ¶ 70 On appeal, plaintiff s argue that the tr

ial cour t erred in gran ting summa

ry judgment for the County

on c ounts II

I and I V, because the Counties Code makes no provision for repayme ntof the revenue bonds by anything but

the County ’s entire

waterw orks prop erties. ¶ 71 The cardina

l rule of statuto ry construction requ

ires cou rts to ascertain and give effect to the le gi sl at ur e’ s i nt en t. Th e s ta tu to ry langu age, g iven its pla

in and ord

inary meaning , best indicates the legislature’s intent. Abruzzo v. City of Park Ridge , 231 Ill. 2d 324, 332 (2008). When the statutory lang

uage is clear and unambiguous, a court must give effect to the statute’s plain meaning. People v. Benton , 322 Ill. App. 3d 958, 960 (2001). ¶ 72 The term

“water works sy stem” is de

fined in th

e CountiesCode as f

ollows: “Defini tions. When used in this Divis ion the te rm ‘wate rworks sy st em’ means and includes a water

works sy stem in its entirety, or a ny integr al part thereof, including

mains, hyd rants, meters, valves, standpi pes , storag e tanks, p umps, tank s, intake s, wells, impounding re se rv oi rs , m ac hi ne ry, purification plants, softening apparatus, and all other-13- elementsuseful in

connection with a

water su pply or water distributi on sy stem.” 55 IL CS 5/5–15002 (West 2008). ¶ 73 The County ’s author ity t o issue sub ordinate

revenue bonds f or water supp ly

project s derives from section 5–15017 of the Counties Code. That statute provides , in pertin

ent part : “Revenue bonds. In order to pay the cost of the construction, acquisition by condemnation, purchase or otherwise of any waterworks properties , or sewa ge facilities,

or a combina

tion thereof, or wa ste manag ement facilities, as the case may be, and the improvement

or extension fromtime to time thereof, *** the county boa rd may issue

and sell r evenue

bonds payable solely from the income and revenue derived from the operation of the waterworks properties , or sewage facilities, or a co m bination thereof,

or waste management

faciliti es, as the

case ma y be ***.” (E mphasis a

dded.) 5 5 IL

CS 5/5–15017 (West 2008). ¶ 74 Plaintiffs initially note that the County , as a non -home-r ule unit of gove rnment, is bound by Dillon’s rule and therefore possesses only those powers tha t are specifically

conveye d by the constitution or by statute. See Village of Sugar Grove v. Rich , 347 I ll. App. 3d 689, 694 (2004). We agree that the County is bound by Dillon’s rule. ¶ 75 We have reviewed the pertinent sections of the Coun ties Code and agree with the trial court that section 5–15017 a uthorizes t

he County

to issue re

venue bo nds payable sole ly by the water system

cus to mer s. In that section, the County is given the a uthority to issue revenue bonds payable solely

from the income and revenue derived from the opera tion of “any waterworks propert

ies” in or der to pa y th e cost of th e const

ruction of any w aterworks propert ies. 55 IL CS 5/5–15017 (West 20 08) . The definition section of the Counties Code defines “waterworks sy stem” as inc ludi ng a “waterworks sy stem in its entirety, or any integralpart thereof

.” (Empha sis added .) 55 IL CS 5/5–15002 (West 2008). We need not look outside the terms of

those sectionsto deter

mine the legislatu

re’s inte nt to authorize the County to issue revenue bonds pay able by only the people being served by that particular
water sys tem. See Beecher Medical Center, Inc. v. Turnock, 207 Ill. App. 3d 751, 754 (1990) (a fundame ntal rule of statutory construction

require s that, whe

n an act d efines it s own term s, those terms must be construed according to the act’ s definitions). ¶ 76 For these reasons, we find that the trial court

properl y g ranted s ummary

judgmen t to the County on counts III

and IV of the second a

mended complaint. Since we have ruled that the C o unty had direct statutory a

uthority to issue revenue bonds pa yable solely

by the water system customers, we need not address plaintiffs’ arg ument that

the trial court also erred

in ruling that the 2 009 contr act, tog eth erwith the a

pplicabl e terms of

the 1975 c ontract , impliedly authorized the Vill age to share with the County the authority provided by section 11–139–8 of the Illinois MunicipalCode, which thus authorized the County to issue revenue bonds payable solely

by the water

system customers (65 I

LCS 5/11–139–8 (West 2008)).

¶ 77 II I. CONCL

USION ¶ 78 Ac co rd in gl y, we affi rm the judg

ment of the tri al court di sm is si ng c oun ts I and II of plaintiff s’ amended co mplai nt. We also affirm the judgment of the trial court gr anting the County summary judgmen t on countsII

I an d IV o f the sec ond amend ed compla

int.-14-

¶ 79 The judgments of the circuit court of L ake County are

affirmed. ¶ 80 Affirmed.