Professional Documents
Culture Documents
v.
Defendant.
COMPLAINT
Plaintiff JAVON BEA HOSPITAL, a not-for-profit corporation organized under the laws
of the State of Illinois, hereby brings this Complaint for preliminary and permanent injunctive
follows.
The CITY OF ROCKFORD (“the City”) has operated its municipal storm sewer system
in a manner that has repeatedly caused flooding, including flooding with polluted waters, to the
premises of JAVON BEA HOSPITAL (“the Hospital”), despite years of knowledge of flooding
problems, a federal consent decree, and obvious remedial measures that would prevent
recurrence. The stormwater pipe running through the Hospital campus fails to meet the
specifications of the City’s own ordinances. The most recent flooding event, on June 18, 2018,
closed down parts of the Hospital for many months, interrupted patient care, and cost over $30
million to repair. The Hospital has presented to the City a straight-forward and cost-effective
remedial plan to avoid future damage from flooding caused by the City’s municipal storm sewer
system, but the City has ignored the Hospital’s proposal, and refused to properly maintain its
system despite knowing that it may again cause flooding at the Hospital and potentially endanger
The Hospital therefore brings this Complaint against the City for negligence, trespass,
public and private nuisance, violation of Article I, Section 15 of the Illinois Constitution, and
violation of Articles V and XIV of the United States Constitution and 42 U.S.C. § 1983.
The Parties
an Illinois not-for-profit corporation that operates a 94-bed facility at 2400 N. Rockton Avenue,
Rockford, Illinois. The Hospital is committed to serving the health-care needs of the Rockford
community and provides patient care for many thousands of economically disadvantaged
Rockford residents. Between 2015 and the present, the Hospital has made capital investments of
more than $50 million in its campus and facilities, $30 million of that to repair its facilities after
a severe flood in 2018, and an additional $20 million in other improvements to ensure the
2. The City of Rockford is a municipal corporation organized under the laws of the
State of Illinois.
3. The Court has jurisdiction over the City because it is amenable to service of
process in this State, and because it transacts business within this State.
4. Venue is proper in this Court pursuant to 735 ILCS 5/2-103 because the City is a
municipal corporation located in Winnebago County, and because the transaction at issue arose
in Winnebago County.
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Factual Allegations Common to All Counts
5. The Hospital owns and operates a 94-bed facility at 2400 N. Rockton Avenue,
Rockford, Illinois. The Hospital is designated as a Level 2 Trauma Center. It serves, among
others, a sizable disadvantaged population. The median household income in the nearby zip
codes is $36,000 per year or less. In those areas, between 20 and 32% of the population lives
below the poverty level, and 27% of the Hospital’s revenues are Medicaid reimbursements. In
the current fiscal year, an estimated 39,000 patients have been or will be treated at the Hospital’s
emergency room.
6. This facility was operated as Rockford Memorial Hospital since 1954 through
7. The City of Rockford operates a municipal stormwater sewer system within the
8. For many years, the City has known that it is operating the stormwater sewer
system in a manner that intentionally and negligently causes unwarranted flooding of private
properties in Rockford.
9. Indeed, the City of Rockford knows that it is in violation of both its own
ordinances and Illinois Department of Transportation (“IDOT”) guidelines with respect to the
stormwater sewer system that runs through the Hospital’s campus. Rockford’s ordinance
requires that the stormwater system be capable of handling stormwater from a 10-year flooding
event, that is, an event that has a 10% chance of occurring in a given year. In fact, the 48-inch
stormwater pipe running through the Hospital’s campus is only capable of handling a one-year
storm, that is, an event that has a 100% chance of occurring every year. IDOT guidelines
generally also require ability to handle a 10-year rainfall event, but in physically depressed areas,
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like the one in which the Hospital is located, the guideline is for a 50-year event, that is, one that
10. The City’s negligent and intentional malfeasance operating the stormwater system
have repeatedly caused flooding at and damage to the Hospital, a fact the City has long known.
The City’s actions and inactions have the potential to create substantial public health risks to
patients, visitors and employees of the Hospital. As detailed below, the flooding has disrupted
the Hospital’s operations for significant periods of time, impacting patient care. It also exposes
the public, and those who visit and work at the Hospital, to potentially dangerous conditions.
11. One example is flooding that followed a storm on August 7, 2007. Storm water
from the City’s stormwater sewer system invaded the Hospital primarily at the D-Wing, South
Entrance of the Hospital and flooded the building to a depth of four to six inches, impacting the
12. Recovery from this event in the areas of the Hospital primarily affected took
between six and nine months. The medical records department had to be entirely relocated for six
13. Following this event, the cost of repairs and a new pumping system to help
manage stormwater on its campus exceeded $1.3 million. The project was completed in 2014.
14. The City’s negligent operation of its stormwater sewer system and intentional acts
also create environmental risk to the residents and businesses of Rockford, including the
Hospital.
15. In fact, in 2015, the United States, on behalf of the United States Environmental
Protection Agency (“USEPA”) and the State of Illinois, on behalf of the Illinois Environmental
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Protection Agency (“IEPA”), filed a federal lawsuit, United States of America v. City of
Rockford, No. 15-cv-50250 (N.D. Ill.), against the City for violation of the Federal Clean Water
Act for failing to comply with the terms and conditions of the National Pollutant Discharge
Elimination System permit for stormwater discharges from its stormwater sewer system.
16. The USEPA permit issued to the City requires, among other things, that it operate
and maintain structural controls to reduce discharge of pollutants. The USEPA found the City
had failed in its duties and violated the law and on October 8, 2015, the City entered into a
Consent Decree with USEPA and IEPA in the United States District Court for the Northern
District of Illinois. The decree dictated substantial remedial measures and fined the City over
17. Nevertheless, the City has continued to deposit stormwater, negligently and
intentionally, on the Hospital campus. For example, as a direct result of the City’s negligent
operation of its stormwater sewer system, as well as intentional acts by the City, on July 21,
2017, stormwater began backing up in the Hospital’s D-Wing parking lot adjacent to the 48-inch
storm main. In addition, stormwater on Edgemont Avenue, which borders the west side of the
Hospital campus, flowed like a river. Storm water invaded the Hospital’s pharmacy and radiation
18. The City’s actions and inaction prior to the July 21, 2017 rain event, created
potentially dangerous conditions at the Hospital, impacted patient care and exposed patients,
19. The following year, far more devastating flooding occurred at the Hospital. On
June 18, 2018, as a direct result of the City’s negligent operation of its stormwater sewer system,
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as well as intentional acts by the City, a tremendous quantity of water infiltrated the hospital,
20. The stormwater the City diverted to and released on the Hospital property
devastated the building, causing tens of millions of dollars in damages. The laboratory,
endoscopy, pediatric therapy, radiation oncology, clinical education, medical affairs, medical
records, respiratory therapy, sterile processing, pharmacy, information management services and
data center, engineering and central supply departments were destroyed. Many operations had to
be relocated to temporary quarters. Services were disrupted for prolonged periods in some
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21. The damaged equipment included a linear accelerator, a CT simulator, a
pharmacy robot, a sterile processing cart washer, data power equipment, and all furniture and
22. The event required diversion of ambulances to other, further away hospitals, for
hours and the cancellation of all elective surgeries. Notwithstanding the damage, through the
efforts of the Hospital’s employees and leadership, and redeployment of some 300 contracted
laborers who at the time were working on constructing the Hospital’s campus at 8201 E.
23. Repairs occasioned by this event took seven months and the Hospital did not
24. The Hospital incurred over $30 million in insured losses and millions more in
uninsured losses.
25. Just two months after the June event, on August 28, 2018, a modest amount of
rain fell in Rockford. As a direct result of the City’s negligent and intentional actions in the
operation of its stormwater sewer system, man-hole covers for the 48-inch sewer main were
lifted from their rims and stormwater backed up into the Hospital courtyard, leading to water
26. As a direct result of the City’s negligent and intentional actions causing the
flooding, insurers have informed the Hospital that they will increase the retention amount and
drastically limit coverage to only a fraction of the amount of losses incurred because of the June
2018 flooding. The combination of inadequate insurance and continued flooding resulting from
the City’s actions and inaction may jeopardize the Hospital’s ability to remain open.
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27. An engineering firm retained by the Hospital has proposed remediation with
respect to the City’s stormwater sewer system that would ameliorate some of the flooding issues
caused by the City’s operation of the system, but the City has refused to act on that proposal. In
the meantime, the Hospital is spending significant funds in an attempt to mitigate the damage
from flooding.
Count I: Negligence
29. The City undertook to operate a stormwater sewer system within the City of
Rockford.
30. As a result, the City acquired a duty of care to the Hospital to maintain, keep in
good repair, and operate that stormwater sewer system in a manner that allows it to handle
31. The City has repeatedly breached that duty of care by failing to maintain, keep in
good repair and operate its stormwater sewer system in a manner that avoids invasion of water
from that system on the Hospital’s campus. Among the City’s negligent acts were the failure to
abide by its own ordinances governing the required capabilities of the system.
32. The City’s conduct resulting in the invasion of water to the Hospital premises on
33. As a proximate result of those breaches, the City has caused tens of millions of
34. The City’s breaches threaten to cause future injury to the Hospital from flooding.
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36. The Hospital had the right to the exclusive possession of its premises and land.
37. The City knew, based on previous flooding events, that flooding to the Hospital
was substantially certain to be caused by the manner in which the City operated its stormwater
sewer system.
38. On June 18, 2018, water from the City’s stormwater sewer system, and surface
runoff from the City’s streets and surrounding property, physically invaded the premises and
land of the Hospital. This invasion interfered with the Hospital’s right to the exclusive use and
40. The City’s actions and inactions proximately caused physical damage to the
41. The City’s actions and inactions pose a high degree of certainty that the
Hospital’s right to exclusive possession will again be invaded when rainfall results in future
43. The Hospital had the right to exclusive possession of its premises and land.
44. On June 18, 2018, water from the City’s stormwater sewer system, and surface
runoff from the City’s streets and surrounding property physically invaded the premises and land
of the Hospital.
45. This invasion interfered with the Hospital’s exclusive use and possession of its
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46. The City’s failure to properly operate, maintain, and repair its stormwater sewer
system proximately caused the intrusion of water onto the Hospital’s property.
48. The City’s actions and inactions proximately caused physical damage to the
buildings and equipment on the Hospital’s premises, and interfered with the normal operation of
the Hospital.
49. The City’s actions and inactions pose a high degree of certainty that the
Hospital’s right to exclusive possession will again be invaded when rainfall results in future
51. The Hospital had the right to use and enjoy the premises. The flooding of the
Hospital’s premises with stormwater from the City’s stormwater sewer system, and runoff from
City roads and surrounding land on June 18, 2018 constituted a substantial invasion of the
52. The City proximately caused the invasion of water on the Hospital’s premises
through its intentional and negligent operation, repair and maintenance of its stormwater sewer
system.
54. The City’s actions and inactions proximately caused physical damages to the
buildings and equipment on the Hospital’s premises, and interfered with the normal operation of
the Hospital.
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56. The City’s actions and inactions pose a high degree of certainty that the
Hospital’s right to use and enjoy its premises will continue to be substantially interfered with
58. The public has a right to obtain health care, without potentially jeopardizing the
health or safety of members of the public, at hospitals licensed by the State of Illinois, including
at the Hospital. Further, members of the public have a right to visit and care for patients in a
hospital licensed to the State of Illinois without being potentially exposed to contaminated flood
water and dangerous conditions caused by flooding as a result of the City’s actions.
59. The flooding of the Hospital’s premises with stormwater on June 18, 2018 from
the City’s stormwater sewer system and runoff from City roads and surrounding land constituted
a substantial and unreasonable interference with those rights by interfering with the normal
operation of the Hospital, shutting down health care services for prolonged periods of time, and
creating dangerous conditions for patients, visitors and employees of the Hospital.
60. The City proximately caused the invasion of water on the Hospital’s premises
63. The City’s actions and inactions are likely to cause further injury to the public
Count VI: Violation of the Eminent Domain Clause of the Illinois Constitution
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65. Article I, Section 15 of the Illinois Constitution provides that “Private property
shall not be taken or damaged for public use without just compensation.”
66. Section 15 requires just compensation for two distinct types of injuries: the taking
Taking
67. The City’s construction, maintenance and operation of the municipal stormwater
sewer system caused an invasion of superinduced additions of water and pollutants to the
68. The flooding caused by the City directly, immediately and radically interfered
69. The flooding caused by stormwater released by the City onto the Hospital’s land
70. The flood waters remained on the Hospital’s property for a prolonged period of
time, and the property was unable to be fully used as a result of the flood waters for months.
Operations had to be partially-suspended for prolonged periods of time, thus impairing the
Hospital’s usefulness.
71. The flooding was reasonably foreseeable to the City, and the City should have
72. The damage inflicted by the flooding cost tens of millions of dollars to repair the
73. The flood waters were diverted and released from the City’s stormwater sewer
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74. The City’s actions therefore constituted a temporary taking in violation of Section
Damage
75. The City’s actions resulted in a direct physical disturbance of rights which the
Hospital enjoyed in connection with its property, namely, the right to operate the Hospital and
earn revenues from the operation of the Hospital, the right to provide health services to the
public, and the right to be free from physical damage and destruction to the improvements,
fixtures and equipment and personal property on the premises of the Hospital.
Count VII: Section 1983 Claim for Violation of the Takings Clause of the
Fifth Amendment to the United States Constitution
78. The Fifth Amendment to the United States Constitution provides in relevant part
that private property shall not be taken for public use without just compensation.
79. The Fifth Amendment Takings Clause is applicable to the states, and to their
80. Title 42, Section 1983 of the United States Code, provides a private remedy for
those whose constitutional rights are violated by the actions of a government entity.
81. The Fifth Amendment protects a subset of the takings prohibited by the Illinois
82. The City’s actions therefore constitute a taking of private property for public use
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PRAYER FOR RELIEF
Plaintiff therefore is entitled to, and prays for the following relief:
a. Restraining the City from depositing or diverting water from its stormwater
b. Requiring the City to prevent water from its stormwater sewer system from
c. Requiring the City to make all improvements to its stormwater sewer system
Chris Gair
Kristi L. Nelson
Ryan P. Laurie
Gair Eberhard Nelson Dedinas Ltd.
1 E. Wacker Drive, Suite 2600
Chicago, IL 60601
(312) 600-4900
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