Illinois Official Reports

Appellate Court

Enbridge Energy, Ltd. Partnership v. Village of Romeoville,

2020 IL App (3d) 180060

Appellate Court 

Caption

ENBRIDGE ENERGY, LIMITED PARTNERSHIP, a Delaware 

Limited Partnership, Plaintiff-Appellee and Cross-Appellant, v. THE 

VILLAGE OF ROMEOVILLE, an Illinois Municipal Corporation, 

and OLDCASTLE APG SOUTH, INC., d/b/a Northfield Block 

Company, a Delaware Corporation, Defendants (The Village of 

Romeoville, an Illinois Municipal Corporation, Defendant and CrossAppellee, and Oldcastle APG South, Inc., d/b/a Northfield Block 

Company, a Delaware Corporation, Defendant-Appellant and CrossAppellee).

District & No. Third District 

No. 3-18-0060

Rule 23 order filed

Rehearing denied

Motion to

publish allowed

Opinion filed

November 19, 2019

January 9, 2020

January 31, 2020

January 31, 2020

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 11-L-727; the Hon. 

Barbara N. Petrungaro, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded with directions.
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Counsel on

Appeal

J. Timothy Eaton, Jonathan B. Amarilio, Ioana M. Guset, and Allison 

E. Czerniak, of Taft Stettinius & Hollister LLP, of Chicago, and Kent 

F. Slater, John M. Spesia, and Jacob E. Gancarczyk, of Spesia & 

Taylor, of Joliet, for appellant.

Gerald A. Ambrose, Tacy F. Flint, Steven E. Sexton, Angelo J. Suozzi, 

and Abigail B. Molitor, of Sidley Austin LLP, of Chicago, for appellee 

Enbridge Energy, Ltd. Partnership.

Michael D. Bersani and Yordana Wysocki, of Hervas, Condon & 

Bersani, P.C., of Itasca, for appellee Village of Romeoville.

Panel JUSTICE SCHMIDT delivered the judgment of the court, with 

opinion.

Justices Carter and McDade concurred in the judgment and opinion. 

OPINION

¶ 1 This case concerns a $45,491,625 judgment for damages resulting from the release of crude 

oil in Romeoville, Illinois, in favor of plaintiff, Enbridge Energy, Limited Partnership, and 

against defendant, Oldcastle APG South, Inc., d/b/a Northfield Block Company, on a breach 

of contract claim.

¶ 2 Defendant raises multiple contentions on appeal, asserting that either reversal of the trial 

court’s denial of its motion for judgment notwithstanding the verdict or a new trial is required 

because (1) plaintiff’s breach of contract claim was based on evidence of improper installation 

of the water service line, which is barred by the statute of repose; (2) the trial court improperly 

admitted evidence of prior leaks in its water service line; (3) the jury found plaintiff failed to 

fulfill all of its obligations under the parties’ easement agreement; (4) the trial court erred by 

refusing to give a special interrogatory; and (5) the trial court erred by instructing the jury that 

defendant owed plaintiff a duty. 

¶ 3 Plaintiff cross-appeals, maintaining that (1) the trial court erred in denying its request for 

prejudgment interest on its damages for breach of contract and (2) judgment should be entered 

in its favor on defendant’s affirmative defense of contributory negligence. In reply, defendant 

asserts that this court lacks jurisdiction to consider plaintiff’s cross-appeal concerning the 

jury’s contributory negligence verdict because (1) no judgment was ever entered on that verdict 

and (2) it is an impermissible contingent appeal. 

¶ 4 Plaintiff also filed a contingent appeal as to a second defendant, the Village of Romeoville 

(Village), maintaining that the trial court erred in granting the Village’s renewed motion for 

summary judgment because disputed issues of material fact precluded it. However, plaintiff 

asserts that we need not consider its contingent appeal if we affirm the judgment against 

defendant.
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¶ 5 We affirm in part and reverse in part.

¶ 6 I. BACKGROUND

¶ 7 At the outset, we note that the record in this case is voluminous. Further, the large size of 

the electronic documents makes it difficult to access the record and nearly impossible to 

navigate within each document once accessed. While we have reviewed the record, we rely 

largely on the parties’ recitation of the facts relevant to this appeal.

¶ 8 A. Factual Background and Pretrial Proceedings

¶ 9 Plaintiff operates crude oil pipelines throughout the United States. Defendant, a unit of 

Oldcastle, Inc., manufactures concrete products such as landscaping blocks.

¶ 10 In 1968, plaintiff assumed control of a 34-inch diameter high-grade steel, oil pipeline 

known as “Line 6A” installed earlier that year by its predecessor. The pipeline wall is over a 

quarter-inch thick and the exterior of the pipe is insulated with a tape coating. Line 6A runs 

from Superior, Wisconsin, to Griffith, Indiana, carrying 450,000 barrels of oil a day. Part of 

the pipeline passes through Romeoville, Illinois, pursuant to a written easement agreement 

entered into between the parties’ predecessors. The easement granted plaintiff a “right-of-way 

and perpetual easement to construct, operate, maintain, inspect (including aerial patrol), 

remove, replace and reconstruct one or more pipelines *** for the transportation of oil.” It also 

granted defendant “the right at any time to install parking lots, driveways, streets, utilities, 

drainage systems, sewers and water lines in, over, under and across the easement, provided 

such use of the right of way does not unreasonably interfere with the operation of the 

pipelines.” The oil pipeline runs directly under the Village’s Parkwood Avenue, parallel to a 

water main owned and operated by the Village.

¶ 11 In 1977, defendant’s predecessor installed a six-inch diameter, ductile cast iron water 

service line with a cement lining to provide an industrial-level supply of water (85 pounds per 

square inch) to its building located at 717 Parkwood Avenue. The water service line is 

approximately 800 feet long with a majority of the line located on defendant’s property. The 

water service line ran perpendicular to and approximately six inches below plaintiff’s oil 

pipeline. In 1992, defendant purchased the property located at 717 Parkwood Avenue. In 2003, 

Oldcastle APG South, Inc., purchased defendant.

¶ 12 On the morning of September 9, 2010, a neighboring business of defendant reported a 

water leak on defendant’s driveway apron where it met Parkwood Avenue. A few hours later, 

witnesses observed crude oil bubbling to the surface at the same location. Once notified of the 

oil leak, plaintiff shut down its oil pipeline and sent crews to the scene to contain the leak. In 

the weeks and months that followed, plaintiff paid in excess of $40 million to remediate the 

oil leak.

¶ 13 When the oil and water pipelines were excavated, a 11⁄2-inch hole was found on the bottom 

of the oil pipeline that was located directly above where defendant’s water service line crossed 

below the oil pipeline. The water service line was corroded and had three large holes directly 

below the hole on the oil pipeline.

¶ 14 In December 2013, plaintiff filed an eight-count second amended complaint against 

defendant and the Village raising claims of negligence (counts I, IV), negligent trespass (counts 

II, V), intentional trespass (counts III, VI), breach of contract (count VII), and fraud (count 
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VIII). In relevant part, plaintiff claimed that defendant (1) neglected its duty to maintain its 

water line in a condition which would prevent damage to the property of others (count I), 

(2) negligently trespassed when water from its water service line leaked into plaintiff’s rightof-way (count II), (3) intentionally trespassed into plaintiff’s right-of-way because defendant 

knew that its water service line had a “longstanding history” of leaking (count III), (4) breached 

the easement agreement when it impeded or interfered with plaintiff’s operation of the oil 

pipeline (count VII), and (5) submitted fraudulent invoices to plaintiff claiming that it had to 

close its manufacturing plant as a result of the oil spill (count VIII). Defendant denied all 

material allegations and asserted contributory negligence and failure to mitigate as affirmative 

defenses.

¶ 15 The parties then engaged in substantial pretrial motion practice, including the filing of 

cross-motions for summary judgment and multiple motions in limine. On August 10, 2016, the 

trial court granted the Village’s renewed motion for summary judgment. Also relevant to this 

appeal, the court (1) denied defendant’s motion in limine to bar plaintiff from offering evidence 

of prior leaks in the water service line, (2) granted plaintiff’s motion in limine to exclude 

evidence of other oil pipeline spills, and (3) denied defendant’s motion in limine to bar plaintiff 

from offering evidence related to the installation of the water service line, but all parties agreed 

that the court would give a limiting instruction to the effect that defendant was not responsible 

for the installation of the water service line.

¶ 16 B. The Jury Trial 

¶ 17 The two-week trial commenced in June 2017 and included the following evidence.

¶ 18 Plaintiff’s oil pipeline is protected from corrosion via an external coat of tape wrapping 

and by a cathodic protection system, which emits a low level of electricity along the pipeline. 

Defendant’s ductile cast iron water service line has no external coating and was not protected 

by a cathodic system. Following the water and oil leaks at issue here, both lines were 

excavated. The portion of the water service line at issue, which was located approximately six 

inches below the oil pipeline, showed evidence of corrosion and had three holes on the top of 

the water line. Other sections of the water service line surrounding the holes appeared to be in 

good condition. The oil pipeline appeared to be in good condition, except that the bottom of 

the oil pipeline, which was located directly above the water service line, had a round 11⁄2-inch 

diameter hole with the edges pushed inward where it was penetrated by a jet of water from the 

water service line that had entrained surrounding soil material. In addition, the tape coating 

around the oil pipeline was missing or torn from the area surrounding the hole.

¶ 19 1. Plaintiff’s Evidence

¶ 20 Plaintiff’s expert in metallurgy, Dr. John Beavers, inspected both the oil pipeline and the 

water service line and observed that the hole on the top of the water service line aligned 

perfectly with the hole on the underside of the oil pipeline. He also observed that the tape 

coating on the oil pipeline was damaged and falling off, accompanied by gouge marks on the 

underside of the oil pipeline in the area of the hole. He believed this damage occurred during 

the installation of the water service line in 1977. 

¶ 21 He further testified that the oil pipeline failed as a result of erosion caused by the water jet 

from defendant’s corroded water service line. In particular, Beavers believed that electric

current from the oil pipeline’s cathodic protection system escaped as a result of the damage to 
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the tape coating that occurred during the installation of the water service line. The stray current 

then bounced between the two pipelines eventually corroding the water service line. In his 

opinion, the corrosion to the water service line would have been less severe if the distance 

between the two lines were greater. Beavers described this as a “very rare” and “unusual 

occurrence” that had happened only one other time in his 44 years of experience.

¶ 22 Paul Fleming, an expert in water systems, agreed with Beavers that the water service line 

corroded due to stray electrical currents from a cathodic protection system in the area. He also 

agreed that the oil pipeline probably failed due to the eroding effect of the water jet from the 

water service line. Like Beavers, Fleming stated that the conditions leading up to the failure 

were “unusual” and “rare.” 

¶ 23 Fleming also testified that the water service line had leaked seven times between 1995 and 

2009, a number he described as “highly excessive.” While Fleming could not identify the 

locations or the causes of any of the prior leaks, he acknowledged that at least three of the leaks 

occurred near defendant’s building, approximately 500 feet away from the site of the oil leak. 

Although he opined at trial that these leaks were relevant, he admitted testifying in his 

deposition that any leaks near defendant’s building had little relevance to the corrosion of the 

water service line under Parkwood Avenue. Fleming believed the water service line leaked in 

this instance due to corrosion caused by stray currents from cathodic protection.

¶ 24 Daniel Bromberek, the Village’s director of public works, worked for the Village for 32 

years. Prior to the September 2010 incident, he did not know the depth of the oil pipeline, the 

water service line, or the length of separation between the two. He observed the excavation of 

the pipelines following the leak. Aside from the corroded portion of the water service line 

located directly beneath the oil pipeline, the water service line appeared undamaged. The 

previous water leaks he knew of occurred near defendant’s building. He was unaware of any 

prior leaks under Parkwood Avenue. 

¶ 25 Richard Adams, plaintiff’s former president of operations, testified that plaintiff ran in-line 

inspections to test its oil pipelines every year or two and that it conducted periodic aerial 

patrols, none of which revealed any problems in the area. He confirmed that plaintiff used 

cathodic protection around its oil pipeline. Plaintiff notified landowners near the oil pipeline 

of the pipeline’s existence annually. Plaintiff also marked the location of the pipeline with 

above ground markers that also included contact information in case of an emergency. Adams 

had viewed the excavation of the pipelines and noted that the oil pipeline failure was “unique.”

¶ 26 Michael Price, a right-of-way agent for plaintiff, testified that plaintiff used pipeline 

markers on the sides of road crossings, water crossings, and property lines to identify the 

location of its pipelines. Plaintiff documented the locations where utilities and facilities owned 

by other companies crossed its oil pipeline, but defendant’s water service line was not 

documented on plaintiff’s 2010 alignment sheets. Price also testified that plaintiff was a 

member of the Joint Utility Locating Information for Excavators (JULIE), an organization that 

provides excavators with on-demand information concerning utility assets, since 1983.

¶ 27 Gary Sommers, plaintiff’s facility integrity specialist, testified that between 2000 and 2016, 

plaintiff ran eight in-line inspections of its pipeline and found no irregularities. According to 

Sommers, plaintiff was unaware of the water service line. On cross-examination, Sommers 

acknowledged that a 2008 in-line inspection detected an anomaly, or metal in close proximity 

to the oil pipeline at 717 Parkwood Avenue, but agreed that plaintiff did not conduct any further 
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inspection or investigation into the anomaly. The 2008 in-line inspection found approximately 

667 metal objects in close proximity to the oil pipeline. 

¶ 28 Wayne Wright, the vice president of plant support for defendant, testified as an adverse 

witness. He was unaware of any inspections being conducted on the water service line prior to 

September 2010. 

¶ 29 Paul Yungmann, a site manager in defendant’s maintenance department, testified that he 

was unaware of any steps taken by anyone at defendant’s direction to ensure that the water 

service line remained in good condition. He was also unaware of any policies with respect to 

conducting regular inspections of the water service line.

¶ 30 Derek Shelton worked for Water Services, a water meter distributor that provides leak 

detection services. Shelton explained the procedure used to detect and survey water leaks. On 

September 9, 2010, defendant called Shelton to locate a water leak beneath Parkwood Avenue. 

Using specialized equipment, he was able to detect a leak 30 feet east of the valve beneath 

Parkwood Avenue. On cross-examination, Shelton admitted that he did not remember the exact 

location of the leak and conceded that his proffered location of the leak could be incorrect due 

to the vibrations from the oil leak. He further explained that it is typical for municipalities to 

retain his company for leak detection. While he had done leak testing on a water line for an 

industrial building when a leak was not suspected, it was rare to test lateral service lines unless, 

when testing main lines, a leak was detected. He acknowledged that his equipment could not 

detect corrosion but only existing leaks. To his knowledge, there were no federal or state laws 

that required either a municipality or a private landowner to conduct leak detection surveys.

¶ 31 2. Defendant’s Evidence

¶ 32 Gerald Dewitt, plaintiff’s senior cathodic protection specialist, testified as an adverse 

witness as follows. Plaintiff protected its oil pipeline from corrosion by using a cathodic 

protection system that injects electrical current into the ground. Federal guidelines require 12 

inches of separation between pipelines although plaintiff preferred 3 feet of separation. In 

2009, plaintiff installed additional electrical anodes over its oil pipeline in Romeoville as part 

of its cathodic protection system but did not adequately document the presence of the anodes 

on its alignment sheets.

¶ 33 Dr. Alfred Pettinger, an expert on pipeline failures, testified as follows. Defendant’s water 

service line became damaged as the result of stray electrical current. The electrical current 

from plaintiff’s cathodic protection traveled to the area where the oil pipeline coating was 

damaged then strayed over to defendant’s defenseless water service line creating “an electric 

galvanic reaction which basically cause[d] iron to become converted to iron oxide [i.e., rust], 

which is corrosion.” The stray current took approximately 33 years to corrode the water service 

line and cause the accident. Further, the quality of plaintiff’s tape coating on the pipeline and 

the damage to that tape were the most significant contributing factors to the oil leak. 

¶ 34 Pettinger further testified that an oil pipeline operator has a duty to minimize damage to 

other pipelines caused by its cathodic protection system. The oil pipeline operator must know 

of crossings with other lines, conduct patrols over the right-of-way, inspect the pipeline, and 

keep records of the pipeline’s location and any other facilities located near it. Pettinger stated 

that Romeoville is a “high consequence area” that requires a “higher standard” of care from 

the oil pipeline operator. In his opinion, plaintiff met the “absolute minimum” standard of care 
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but stated it should have discovered the existence of the water service line at some point during 

the last 30 years.

¶ 35 Chris Drey, the Village’s former water superintendent, did not know the exact location of 

the oil pipeline underneath Parkwood Avenue; he did not know that it intersected with the 

water service line. Plaintiff failed to provide him with requested information regarding the 

exact location of its oil pipeline. Drey stated that water leak detections are generally conducted 

in response to discrepancies in a water audit or when water is observed on the surface rather 

than as a matter of course. On cross-examination, Drey acknowledged that he could have called 

JULIE to determine the location of the oil pipeline, but he clarified JULIE is used for digging 

projects and emergency situations, not for marking utilities in the community at large. Finally, 

Drey stated that the public brochures sent out by plaintiff expressly state that its pipeline 

markers should not be used as a reference for the exact location of the pipeline.

¶ 36 Defendant’s site manager, Leonard Lee, testified that he never received any pamphlets, 

brochures, or any other written documents from plaintiff regarding its oil pipeline. Lee knew 

the oil pipeline ran beneath defendant’s property, but he was unaware of its exact location. Lee 

further stated that he did not maintain the water service line and he was unaware of any steps 

taken by defendant to ensure the water line remained in good repair.

¶ 37 George Huth, a former crossing coordinator for plaintiff, testified that his primary 

responsibility was to respond to JULIE requests and determine the location of the oil pipeline 

in relation to the requestor’s potential work. In order to determine the location, he consulted 

the information contained on plaintiff’s alignment sheets, which he explained are maps 

containing the oil pipeline’s location in relation to roads, utilities, and installations.

¶ 38 Michael Price, plaintiff’s right-of-way specialist, acknowledged that plaintiff could have, 

but did not, conduct walking and driving patrols of its oil pipeline as part of its maintenance 

protocol. Price agreed that no facilities or utilities were marked on plaintiff’s alignment sheet. 

¶ 39 Troy Toweson, also a crossing coordinator for plaintiff, observed the excavation of a sewer 

line located near the oil pipeline in 2009. Toweson agreed that the sewer line was not 

documented on plaintiff’s alignment sheet and he did not file a crossing report to update the 

alignment sheet to show its existence.

¶ 40 Harry Rossio, a laborer for the Village, repaired a sewer backup on defendant’s property 

in January 2009. The repair required excavation of the area around the sewer line 

approximately seven feet from plaintiff’s oil pipeline. Rossio stated that one of plaintiff’s 

employees monitored the repair. During the repair, defendant’s water service line was plainly 

visible; Rossio stated it appeared to be in good condition.

¶ 41 John Talbot, a civil engineer, testified that no evidence connected the causes of the prior 

water service line leaks to the condition that caused the leak at issue. He reviewed the Village’s 

work orders for the prior leaks and determined that three of them occurred along the face of 

defendant’s building, approximately 600 feet away from the location of the later leak. He had 

no information regarding the location or cause of the other water line leaks. Talbot was unsure 

whether defendant performed proactive maintenance of the water service line, but he noted 

defendant was not required to perform leak detection services without evidence of a water leak. 

In his opinion, no proactive maintenance of defendant’s water service line would have detected 

a leak beneath Parkwood Avenue before it occurred. However, Talbot did agree that the overall 

condition of a water service line can be indicated by the frequency of leaks.
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¶ 42 3. Rebuttal Evidence

¶ 43 On rebuttal, Shane Finneran, a senior engineer for the Computational Modeling Group, 

testified as an expert in analyzing corrosion from stray electrical current. He rejected 

Pettinger’s conclusions that the oil spill resulted from improper installation of the water service 

line in conjunction with plaintiff’s cathodic protection system emitting stray current. Finneran 

described Pettinger’s method as oversimplified. He further stated that the mathematical 

equation Pettinger used to gauge plaintiff’s stray electrical current was not a method generally 

used in the industry to analyze stray current. Finneran noted that other sources in the area, other 

than plaintiff and Nicor, used electrical current and that Pettinger failed to consider these other 

sources in his calculation. In Finneran’s opinion, the levels of Nicor and plaintiff’s current 

calculated by Pettinger were too low on their own to cause the level of corrosion observed on 

the water service line in just 33 years. According to Finneran, it was impossible to determine 

what caused the water service line to corrode but that any corrosion related to plaintiff’s 

cathodic protection system would be negligible. On cross-examination, Finneran 

acknowledged that the modeling method Dr. Pettinger employed is sometimes used in the 

industry for preliminary design assessments of cathodic protection systems.

¶ 44 C. The Instructional Conference, Verdict, and Judgment

¶ 45 Prior to closing arguments, the trial court granted plaintiff’s oral motion for leave to amend 

its breach of contract claim over defendant’s objection. The court also ruled that defendant 

owed a duty to plaintiff as a matter of law under a Village ordinance and instructed the jury 

accordingly. The court then refused a special interrogatory submitted by defendant that would 

have inquired whether the jury believed the corrosion to the water service line was the result 

of acts and omissions that occurred during its installation.

¶ 46 Thereafter, the jury returned a verdict for plaintiff on its negligence, negligent trespass, and 

breach of contract claims but found plaintiff 45% contributorily negligent on its negligencerelated claims. At plaintiff’s election, in July 2017, the trial court entered a judgment in 

plaintiff’s favor only on the breach of contract claim in the amount of $45,491,625. In 

September 2017, plaintiff filed a motion for judgment notwithstanding the verdict on 

defendant’s affirmative defense of contributory negligence. Also, in September 2017, 

defendant filed a posttrial motion that requested a judgment notwithstanding the verdict on the 

negligence, negligent trespass, breach of contract claims, and alternatively, a motion for a new 

trial. In January 2018, the court denied all posttrial motions.

¶ 47 Defendant appeals. Plaintiff cross-appeals as to defendant and filed a contingent crossappeal as to the Village.

¶ 48 II. ANALYSIS

¶ 49 A. Defendant’s Appeal

¶ 50 Defendant first asserts that the trial court erred in denying its motion for judgment 

notwithstanding the verdict on plaintiff’s breach of contract claim because plaintiff presented 

no admissible evidence of defendant’s alleged insufficient maintenance of the water service 

line. In the alternative, defendant contends that it is entitled to a new trial because the court 

improperly admitted evidence of prior water leaks.
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¶ 51 We review de novo a trial court’s ruling on a motion for judgment notwithstanding the 

verdict. Thornton v. Garcini, 382 Ill. App. 3d 813, 817 (2008). 

“A motion for judgment notwithstanding the verdict should only be granted in those 

limited cases where all of the evidence and the inferences therefrom, viewed in the light 

most favorable to the nonmoving party, so overwhelmingly favor the movant that no 

contrary verdict based on that evidence could ever stand.” Id.

We may not reweigh the evidence, make credibility determinations, or substitute our judgment 

for the jury’s merely because the jury could have drawn other inferences or conclusions or 

because this court believes another result to be more reasonable. Id.

¶ 52 Defendant asserts that the judgment in favor of plaintiff on its breach of contract claim 

must be reversed because plaintiff presented no admissible evidence of defendant’s alleged 

insufficient maintenance of its water service line. Specifically, defendant maintains that 

“[n]early all of [plaintiff’s] evidence *** related to installation errors” is barred by the statute 

of repose and that “the slight maintenance-related evidence plaintiff did muster was 

erroneously admitted into evidence, leaving the judgment without any valid record support.” 

According to defendant, the installation error evidence and the prior leak evidence were the 

only evidence advanced by plaintiff that could support its claims. “In other words[,] without 

this inadmissible evidence, [plaintiff] had no case.” Defendant then asserts that the contract 

claim presented by plaintiff is a “thinly-veiled version of the same claims barred by the statute 

of repose.”

¶ 53 In reply, plaintiff contends that it need not show defendant failed to maintain its water 

service line to prevail on its breach of contract claim. Rather, plaintiff contends that the very 

fact that defendant’s water service line leaked and “drilled a hole into plaintiff’s oil pipeline” 

is sufficient, on its own, to show defendant breached its contractual duty to ensure that the 

water service line did not “unreasonably interfere with the operation of [plaintiff’s] pipelines.” 

¶ 54 Initially, we reject plaintiff’s strict-liability type contention. Plaintiff cites no authority, nor 

did our research reveal any, that would support a finding of unreasonable interference of an 

easement based solely on an underground water leak and the subsequent damage that results. 

Further, plaintiff never pursued this claim below. At trial, plaintiff based its breach of contract 

claim on defendant’s alleged failure to maintain the water service line. In fact, plaintiff’s 

proposed jury instruction for its breach of contract claim stated that “[plaintiff] has the burden 

of proving *** [defendant] breached the *** easement agreement in the following ways. By 

failing to maintain the water service line so that it would not unreasonably interfere with 

[plaintiff’s] operation of Line 6A.” Thus, in order to prevail on its breach of contract claim, 

plaintiff bore the burden of proving that defendant failed to maintain the water service line so 

that it would not unreasonably interfere with the oil pipeline. The evidence presented showed 

that the water line leak was caused by corrosion from stray current emanating from Enbridge’s 

pipeline and was not the result of deficient maintenance.

¶ 55 We need not decide if the contract claim was barred by the statute of repose because 

plaintiff failed to meet its burden. In reviewing the evidence introduced by plaintiff, we turn 

first to that of prior leaks. Evidence of prior occurrences is admissible to establish notice of a 

dangerous condition. Rucker v. Norfolk & Western Ry. Co., 77 Ill. 2d 434, 441 (1979). The 

prior occurrences need only be substantially similar to the accident in question; they need not 

be identical. Id. “To make the proof of other independent accidents competent, the condition 

or thing shown to be the common cause of danger in such accidents must be the condition or 
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thing contributing to the danger of the accident complained of.” Moore v. Bloomington, 

Decatur & Champaign R.R. Co., 295 Ill. 63, 67 (1920). It is within the trial court’s discretion 

to decide whether evidence is relevant and admissible, and a reviewing court will not disturb 

the trial court’s decision absent a clear abuse of that discretion. In re Marriage of Bates, 212 

Ill. 2d 489, 522 (2004). An abuse of discretion occurs only where no reasonable person would 

take the position adopted by the trial court. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 

177 (2003).

¶ 56 Here, plaintiff was using the prior leak evidence for the dual purpose of showing a 

particular danger or hazard and defendant’s notice of the generally hazardous nature of the 

water line. Nonetheless, there was no foundation laid at trial by plaintiff as to the reasonable 

similarity of the prior leaks and the leak at issue. See Trimble v. Olympic Tavern, Inc., 239 Ill. 

App. 3d 393, 398-99 (1993) (Evidence of prior accidents in slip and fall case was not 

admissible to show the existence of a particular danger because “the plaintiff did not establish, 

as a foundation, the similarity between the prior accidents and her own.”). No one identified 

the exact locations of these prior leaks or their causes. It was shown at trial that the causes and 

origins of the prior leaks have eluded the parties, and none of the evidence proves that the 

previous water leaks were caused by corrosion from stray current or from the general 

deterioration of defendant’s water line. Plaintiff’s own expert acknowledged that at least three 

of the prior leaks occurred near defendant’s building, more than 500 feet away from the site of 

the incident at issue. One of plaintiff’s experts even admitted during his deposition that these 

three leaks were not relevant to the corrosion of the water service line producing a water jet 

that caused the hole in the oil pipeline. See Ill. R. Evid. 402 (eff. Jan. 1, 2011) (“Evidence 

which is not relevant is not admissible.”). The trial court abused its discretion in admitting the 

prior leak evidence.

¶ 57 Plaintiff argues that even without the evidence of prior leaks on the water service line, the 

record sufficiently shows defendant did “absolutely nothing to maintain its water service line.” 

In support of its contention, plaintiff cites to the testimony of three of defendant’s employees 

who allegedly testified that defendant “did absolutely nothing to maintain its water service 

line.” Plaintiff misrepresents the testimony. According to our review of the record, these 

witnesses merely testified that they were unaware of any regular inspections of the water 

service line to ensure the line remained in good repair. Further, plaintiff presented no evidence 

to show that it is standard practice to routinely inspect water service lines to ward off future 

leaks nor did it present any evidence to show what such inspections would entail. There was 

testimony that it is rare to perform inspections on lateral water service lines, such as the line at 

issue, unless a leak is detected during the inspection of the main line. The only real evidence 

that plaintiff submitted to support its claim was that defendant’s water service line leaked 7 

times in the 15 years preceding the oil spill, which, as explained above, was inadmissible.

¶ 58 Moreover, plaintiff’s experts testified that the water leak would not have occurred but for 

the damage to the tape coating on the oil pipeline that occurred during the installation of the 

water service line. As a result of the damage to the tape coating, stray current from plaintiff’s 

cathodic protection system escaped, bounced between the two pipelines at their intersection, 

eventually corroding the water service line that, in turn, released a jet of water that bored a hole 

into the oil pipeline above it. This evidence relates solely to the installation of the water service 

line by defendant’s predecessor and is barred by the statute of repose. See 735 ILCS 5/13-

214(b) (West 2016) (No action based on contract may be brought against any person for an act 
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or omission of such person in the construction of an improvement to real property after 10 

years have elapsed from the time of such act or omission.). Thus, this evidence cannot be used 

to support plaintiff’s contract claim. 

¶ 59 Even assuming the admission of the prior leak evidence was proper, plaintiff failed to prove 

that defendant’s insufficient maintenance of its water service line caused the oil pipeline to 

fail. Plaintiff’s own evidence and experts indicate the culmination of this incident was the result 

of a series of events started when the water line was installed in 1977, not deficient 

maintenance. In its case in chief, plaintiff put on two experts, Beavers and Fleming, who 

testified that stray current from the damaged oil pipeline corroded the water line resulting in 

the water leak. On rebuttal, plaintiff put an additional expert, Finneran, on the stand. Finneran’s 

testimony contradicted not only defendant’s expert, Pettinger, but both Beavers’s and 

Fleming’s testimony. By presenting testimony from an expert in rebuttal that contradicted 

testimony from both experts that plaintiff presented in its case-in-chief, the jury was 

undoubtedly baffled. Plaintiff’s case amounts to smoke and mirrors, and as a result, it has not 

carried its burden. Having found that the prior leak evidence and the installation error evidence 

are inadmissible, we agree with defendant that plaintiff has no basis on which to base any of 

its claims.

¶ 60 Because we grant defendant judgment notwithstanding the verdict on the above-mentioned 

claim, we need not address defendant’s remaining contentions on appeal as they are rendered 

moot.

¶ 61 B. Plaintiff’s Cross-Appeal Against Defendant

¶ 62 In its cross-appeal against defendant, plaintiff first asserts that the trial court erred in 

denying plaintiff prejudgment interest on its damages for breach of contract. Next, plaintiff 

contends that in the event we disturb the judgment on its breach of contract claim—which we 

do—judgment should be entered in its favor on defendant’s contributory negligence 

affirmative defense.

¶ 63 Confronted with plaintiff’s request for us to review the negligence verdict, having already 

contemplated reasonableness in the contract claim, we do so. Plaintiff’s claims based in 

negligence are as equally unsupported as its claims arising from the contract. “It is the 

plaintiff’s burden to allege and prove all of the elements of a negligence claim, including a 

duty owed by the defendant, a breach of that duty, and that the breach was the proximate cause 

of the plaintiff’s injuries.” Monson v. City of Danville, 2018 IL 122486, ¶ 23.

¶ 64 Proximate cause is ordinarily a question of fact to be presented to the jury; it can only be 

decided as a matter of law where reasonable men cannot draw divergent inferences from the 

undisputed facts. Novander v. City of Morris, 181 Ill. App. 3d 1076, 1078 (1989). “The term 

‘proximate cause’ embodies two distinct concepts: cause in fact and legal cause.” Turcios v. 

The DeBruler Co., 2015 IL 117962, ¶ 23. Legal cause is established only when it can be said 

that the injury was reasonably foreseeable. Id. ¶ 24; see also Suwanski v. Village of Lombard, 

342 Ill. App. 3d 248, 255 (2003) (“[A] negligent act is a legal proximate cause of an injury if 

the injury is of the type that a reasonable person would foresee as a likely result of his 

conduct.”); Diehl v. Polo Cooperative Ass’n, 328 Ill. App. 3d 576, 582 (2002) (“An injury will 

be found to be beyond the scope of the defendant’s duty if it appears highly extraordinary that 

the breach of the duty should have caused the particular injury.”). “Courts ask whether the 

injury is the type of injury that a reasonable person would see as a ‘likely result’ of his or her 
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conduct, or whether the injury is so ‘highly extraordinary’ that imposing liability is not 

justified.” Turcios, 2015 IL 117962, ¶ 24.

¶ 65 Plaintiff established at trial that the cause of the water leak derived from acts by the 

defendant’s predecessor during the installation of the water service line. Specifically, the lack 

of spacing between the two lines in conjunction with damage to the oil pipeline’s protective 

coating that allowed stray current to corrode the water line. Defendant did not know, nor did it 

have reason to know, the stray current was corroding the water service line that was installed 

precariously close to the oil pipeline. Neither defendant nor a reasonable person could have 

been aware of the possibility that a water leak would result in an oil spill, particularly when 

experts described the incident as “unusual,” “unique,” “rare,” and “very rare.” Additionally, as 

noted above, it was not established that it is standard practice to routinely inspect water service 

lines. Even if routine leak detections were conducted, the corrosion of the water service line 

would not have been discovered. Viewing the remaining evidence in the light most favorable 

to the nonmovant, it so overwhelmingly favors the movant that the jury verdict cannot stand. 

See Mulloy v. American Eagle Airlines, Inc., 358 Ill. App. 3d 706, 714 (2005) (“ ‘ “[W]here 

the evidence presented indicates only a mere possibility that a defendant was negligent, the 

case must be removed from the jury’s consideration,” ’ and a directed verdict for the defense 

is proper.” (quoting Van Steemburg v. General Aviation, Inc., 243 Ill. App. 3d 299, 322 (1993), 

quoting Shramek v. General Motors Corp., 69 Ill. App. 2d 72, 79 (1966))).

¶ 66 As such, defendant was entitled to judgment notwithstanding the verdict not only on the 

contract claim but also the claims arising out of negligence. The other issues presented in the 

plaintiff’s cross-appeal are rendered moot due to our finding above.

¶ 67 C. Plaintiff’s Contingent Cross-Appeal Against the Village

¶ 68 In its contingent cross-appeal, plaintiff asserts that the trial court erred in granting summary 

judgment in favor of the Village because disputed issues of material fact exist concerning the 

applicability of section 3-102 of the Local Governmental and Governmental Employees Tort 

Immunity Act (Tort Immunity Act) (745 ILCS 10/3-102 (West 2016)) to the facts of this case. 

In response, the Village contends that the court properly granted summary judgment because 

(1) it did not owe a duty of care to maintain the defendant’s water service line, (2) it is not 

liable under section 3-102(a) of the Tort Immunity Act where it did not have actual or 

constructive notice of the specific dangerous condition that caused plaintiff’s injuries, (3) it is 

entitled to discretionary immunity pursuant to sections 2-201 and 2-109 of the Tort Immunity 

Act, and (4) plaintiff’s claims against the Village are barred by the statute of repose.

¶ 69 “Summary judgment is appropriate when ‘the pleadings, depositions, and admissions on 

file, together with the affidavits, if any, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment as a matter of law.’ ” Illinois State Bar 

Ass’n Mutual Insurance Co. v. Law Office of Tuzzolino & Terpinas, 2015 IL 117096, ¶ 14 

(quoting 735 ILCS 5/2-1005(c) (West 2010)). We review a trial court’s entry of summary 

judgment de novo. Id. Further, we may affirm a lower court’s ruling on a motion for summary 

judgment on any basis appearing in the record. Northern Illinois Emergency Physicians v. 

Landau, Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005).

¶ 70 As a preliminary matter, plaintiff notes that the Village improperly cites and relies on trial 

testimony to support its summary judgment ruling. We agree that the Village improperly relies 

on and cites to some evidence not yet in the record when the trial court granted the Village’s 
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renewed motion for summary judgment, namely trial testimony. “[U]pon appellate review of 

a summary judgment ruling the appellant may only refer to the record as it existed at the time 

the trial court ruled, outline the arguments made at that time, and explain why the trial court 

erred in granting summary judgment.” Rayner Covering Systems, Inc. v. Danvers Farmers 

Elevator Co., 226 Ill. App. 3d 507, 509-10 (1992). Accordingly, we will disregard the portions 

of the Village’s brief that rely on trial testimony absent from the record when the trial court 

granted the Village’s renewed motion for summary judgment on August 10, 2016.

¶ 71 Section 3-102(a) of the Tort Immunity Act provides that “a local public entity has the duty 

to exercise ordinary care to maintain its property in a reasonably safe condition.” 745 ILCS 

10/3-102(a) (West 2016). It further states that the entity “shall not be liable for injury unless it 

is proven that it has actual or constructive notice of the existence of such a condition that is not 

reasonably safe in reasonably adequate time prior to an injury to have taken measures to 

remedy or protect against such condition.” Id. Essentially, “[t]he Act’s purpose is to protect 

local governments and their employees from liability arising out of the operation of 

government.” Barr v. Frausto, 2016 IL App (3d) 150014, ¶ 21.

¶ 72 It is the plaintiff’s burden to allege and prove all of the elements of a negligence claim. 

Supra ¶ 63. “Under section 3-102(a), actual or constructive notice of a dangerous condition is 

an element of a negligence claim.” Monson, 2018 IL 122486, ¶ 23. “Section 3-102(a) requires 

proof that the defendant had timely notice of the specific defect that caused the plaintiff’s 

injuries, not merely the condition of the area.” Zameer v. City of Chicago, 2013 IL App (1st) 

120198, ¶ 16. Thus, a plaintiff alleging the negligence of a public entity has the burden to prove 

that the public entity had actual or constructive notice of the dangerous condition. Id. Whether 

a public entity possessed notice is generally a question of fact to be resolved by the jury. 

However, “it may be resolved by the trial court as a matter of law when the facts are not in 

dispute and only one reasonable inference can be drawn from the undisputed facts.” Barr, 2016 

IL App (3d) 150014, ¶ 22.

¶ 73 Here, plaintiff asserts that the evidence, when viewed in the light most favorable to it, is 

“more than sufficient for a jury to find that the Village had notice of the condition of the water 

service line.” Specifically, plaintiff argues that the “long history of leaks” on the water service 

line at issue was sufficient to put the Village on notice of the condition of the water service 

line. In support, plaintiff points to its water service expert Fleming’s affidavit in which he 

identified a total of seven prior water leaks in the portion of the water main located near 717 

Parkwood Avenue in a six-year period. Fleming then opined that based on the prior leaks, “the 

Village knew or should have knew that the water service line was potentially degraded and 

could pose a risk of continued leaking, and [it] should have taken action prior to September 9, 

2010[,] to investigate the water service line for potential degradation.” As discussed, the record 

contains no indication of the exact locations of the leaks. At least three of the prior leaks 

occurred somewhere on defendant’s property. Further, the record does not identify the causes 

of the prior leaks. Moreover, the Village’s public works director, Bromberek, testified in his 

discovery deposition that the Village had no knowledge that the water service line was 

corroding. In fact, in January 2010, just 18 months before the leak at issue here, public works

employees physically observed a portion of the water service line that was exposed for an 

unrelated sewer line repair. The exposed line was located approximately six to seven feet west 

of the oil pipeline. At that time, public works employees observed no leaks, corrosion, or other 

defects.
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¶ 74 Finally, both Fleming and plaintiff’s expert in metallurgy, Beavers, testified in their 

discovery depositions that the cause of the oil leak in this case was “unusual” and “rare.” 

Fleming conceded that the Village possessed no prior knowledge that the oil pipeline and the 

water service line were only separated by six inches. Fleming further stated there was “[n]o 

way [the Village] would have known” about the water leak or its impingement on the oil 

pipeline.

¶ 75 Based on the above, the trial court appropriately granted summary judgment in favor of the 

Village.

¶ 76 III. CONCLUSION

¶ 77 For the foregoing reasons, we reverse the judgment of the circuit court of Will County 

denying defendant’s motion for judgment notwithstanding the verdict on the breach of contract 

claim and remand with directions that the court enter judgment notwithstanding the verdict in 

favor of the defendant on the contract claim and the claims arising out of negligence. We affirm 

on all other grounds.

¶ 78 Affirmed in part and reversed in part; cause remanded with directions.