The Illinois Supreme Court recently held that an increased risk of future harm is not an injury; tossing a class action suit which sought damages related to the City of Chicago’s replacement of water meters and water main pipes. The named Plaintiffs had filed the case on behalf of all Chicago residents who had water mains or meters replaced or installed between January 2008 and January 2017. The suit alleged negligence and inverse condemnation against the City of Chicago.

Background

In Berry et al., v. The City of Chicago, Plaintiffs filed suit in the Circuit Court of Cook County alleging increased lead in their drinking water due to construction performed by the City of Chicago. Until 2008, 80 percent of the residential water lines in Chicago were made of lead. Although the City of Chicago treated these lines to prevent corrosion, the protective coating can become compromised from construction or a sudden rush of water after a line is turned back on after a period of inactivity, leading to lead in the drinking water.

Plaintiffs’ class action complaint centered on allegations that the City of Chicago was negligent in their replacement of water mains and meters that supplied water to its residents and inverse condemnation due to the city making residents’ water lines more dangerous. The City of Chicago responded by moving to dismiss the complaint for (i) failure to state a claim, and (ii) the city’s immunity under the Local Governmental and Governmental Employees Tort Immunity Act.

Negligence Claim

The Illinois Supreme Court agreed with the City of Chicago that an increased risk of future harm is not an injury, and therefore, the City of Chicago cannot be found negligent without an injury. The Court also held that the need for medical monitoring due to increased risk of lead exposure is not an injury because the need for medical monitoring would be based on the potential increased risk of harm, which as stated above, is not an injury. The Court made clear, if there is an injury, then a plaintiff can recover for an increased risk of future harm; however, an increased risk of future harm alone is not an injury and having elevated lead levels in your blood without physical impairment or dysfunction does not constitute an injury.

Inverse Condemnation Argument

The Illinois Supreme Court stated that if “the injury amounts only to an inconvenience or discomfort to the occupants of the property but does not affect the value of the property, it is not within the provision of the constitution even though a personal action would lie therefor. The injury complained of must also be actual, susceptible of proof and capable of being approximately measured, and must not be speculative, remote, prospective or contingent.” The Court held that Plaintiffs’ allegations of “dangerousness” are not susceptible to objective measurement, thus, it could not by itself be considered damage under the “takings clause” of the Illinois constitution. Additionally, the Court noted that the Plaintiffs did not allege any depreciation to their property value, which is required.

Applicability to Toxic Tort Litigation

The Court’s holding suggests that plaintiffs must have actual or realized harm, rather than an increased risk of harm, to bring a suit that will survive a motion to dismiss. It should also be noted that the City of Chicago announced in August of 2020 that it is working on a plan to replace lead service lines throughout the city.

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