                                          2015 IL App (1st) 122994
                                               No. 1-12-2994
                                         Opinion Filed April 30, 2015


                                                                              FOURTH DIVISION

                                                     IN THE
                                   APPELLATE COURT OF ILLINOIS
                                             FIRST DISTRICT

                                                                    )
     CHARLOTTE NICHOLS, RODGER BOLDEN,                              )   Appeal from the
     RAUL TENIENTE, CARMEN TENIENTE,                                )   Circuit Court
     JUANITA DIXON, MICHAEL FOSTER,                                 )   of Cook County, Illinois.
     LINCOLN HAMILTON, KAREN HAMILTON,                              )
     MICHAEL IFLAND, SUSAN IFLAND and                               )
     CAMILLE WILLIAMS, on Behalf of Themselves and                  )
     on Behalf of All Others Similarly Situated, a Proposed         )
     Class Action,                                                  )   No. 07CH3803
                                                                    )
                            Plaintiffs-Appellants,                  )
                                                                    )
     v.                                                             )   The Honorable
                                                                    )   Thomas Allen,
     THE CITY OF CHICAGO HEIGHTS,                                   )   Judge Presiding.
                                                                    )
                            Defendant-Appellee.                     )


     _____________________________________________________________________________

                PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court,
     with opinion.
               Justices Howse and Cobbs concurred in the judgment and opinion.

                                                 OPINION

¶1              Plaintiffs Charlotte Nichols, Rodger Bolden, Raul Teniente, Carmen Teniente, Juanita

          Dixon, Michael Foster, Lincoln Hamilton, Karen Hamilton, Michael Ifland, Susan Ifland, and
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    Camille Williams are a group of individuals 1 whose homes were damaged in flooding during

    a two-day rainstorm in April 2006. Heavy rainfall occurred on April 16-17, 2006 (the

    occurrence period) and sewer water containing pollutants, feces, dirt, debris, and other

    noxious matter from the sewerage system overflowed into plaintiffs' homes located in

    Chicago Heights. Plaintiffs brought suit against defendant City of Chicago Heights (the City),

    arguing that the City is responsible for the damage to their homes. Plaintiffs' second amended

    complaint asserted two claims against the City:         (1) operational negligence; and (2)

    negligence under the doctrine of res ipsa loquitur. Following substantial hearings, discovery,

    depositions, and motions filed, the City filed a motion for summary judgment pursuant to

    section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)), arguing it

    was immune from suit under the Local Governmental and Governmental Employees Tort

    Immunity Act (745 ILCS 10/2-201 (West 2008) (Tort Immunity Act). The City supported its

    motion in part with an affidavit by Michael A. Sabo. Plaintiffs filed a motion to strike the

    Sabo affidavit. After hearing arguments on the motions, the trial court denied the motion to

    strike the Sabo affidavit and granted summary judgment in favor of the City. Plaintiffs appeal

    the trial court's ruling that the City of Chicago Heights is immune from the claims of

    negligence related to the maintenance and operation of its sewer systems and its subsequent

    grant of summary judgment in favor of the City of Chicago Heights. Plaintiffs contend that

    summary judgment was granted in error because:             (1) the City was not entitled to

    discretionary immunity where the plaintiffs' claims arose from the City's ministerial act of

    maintaining its sewer system, rather than from a discretionary act; and (2) there was sufficient

    evidence to establish genuine issues of material fact regarding plaintiffs' negligence claim



1
    Plaintiffs have not been certified as a class.
                                                     2
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         under the theory of res ipsa loquitur. In addition, plaintiffs contend the trial court erred in

         denying their motion to strike the Sabo affidavit. For the following reasons, we affirm.

¶2                                           I. BACKGROUND 2

¶3             On April 16-17, 2006, a rainstorm hit the Chicago area. 3 Plaintiffs allege that their

         homes, all located in the City of Chicago Heights, flooded with raw sewage as a result of this

         rainfall. Following the rainfall, the basements of approximately 5% of Chicago Heights

         residents allegedly flooded.

¶4             The City of Chicago Heights owns, maintains, and operates a separated sewer system in

         which storm water and sanitary wastewater travel in separate lines and to different end points.

¶5             Plaintiffs filed their original complaint against Chicago Heights in February 2007,

         alleging negligence, trespass, and nuisance, and seeking class action certification as a result of

         the flooding. In April 2007, plaintiffs filed an amended complaint alleging various claims,

         including trespass, nuisance, res ipsa negligence, operational negligence, negligent design,

         and unconstitutional taking.    Several of these claims were dismissed.        In August 2008,

         plaintiffs filed their second amended complaint alleging claims for maintenance and

     2
              At the outset, we note that plaintiffs' appellate brief contains violations of supreme court
     rules. Illinois Supreme Court Rule 341(h) (eff. Feb. 6, 2013) requires the appellant to include a
     statement of facts containing the facts necessary to an understanding of the case, stated
     accurately and fairly without argument or comment. The statement of facts presented in
     plaintiffs' appellate brief, however, is replete with comment and argument. For example, on
     page 7, plaintiffs state, "[i]f the City had properly maintained its sewer system, the destruction of
     Plaintiffs' homes and properties would never have occurred." On page 8, in a discussion of City
     policy regarding sewer maintenance and inspection, plaintiffs baldly state, "[t]he origins of and
     basis for this policy are a mystery." We caution plaintiffs to be mindful of the rules that have
     been established in order to provide meaningful and expeditious review of issues presented on
     appeal. See, e.g., Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d 490, 494 (2002).
     3
             The parties disagree as to the magnitude of the storm. Plaintiffs contend that the storm
     "was considered to be between a 10-year 15-hour and 25-year 15-hour rainfall event."
     Defendant contends the storm was "torrential," "historic," and "within the range of a 100-year
     rain event." Both parties agree that it was a heavy rain, which is sufficient for our purposes here.
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       operational negligence, as well as res ipsa loquitur negligence. This is the complaint at issue

       here.

¶6             The record on appeal includes a September 13, 2005, letter written from Anthony

       DeLuca, mayor of the City of Chicago Heights, to James L. Daugherty, district manager of

       Thorn Creek Basin Sanitary District. The letter describes the efforts the City was making in

       the maintenance and operation of the sewer system. It states:

                    "RE: TCBSD Infiltration/Inflow Limits Ordinance

                    Dear Mr. Daugherty:

                          The purpose of this letter is to present our proposed I/I compliance schedule

                    as requested by your March 7, 2005 letter.

                          Since submitting a similar compliance schedule in 1993, the City of

                    Chicago Heights has actively pursued sanitary sewer rehabilitation efforts over

                    the past decade.     From 1994-97, the City also performed 2,705 manhole

                    inspections (100% city-wide), dye water flood tested 137 high priority locations

                    in 1995, and conducted a city-wide house-to-house survey of 8,302 buildings

                    (91%).

                          In the mid-1990s, the City obtained a $3.2 million low interest loan from

                    IEPA that funded over 500 manhole repairs, 1,678 vertical feet of manhole lining,

                    50- sewer point repairs, and cured-in-place lining of 47,451' of sewer mains in the

                    northwest area of the City. Subsequently in 1996-97, the City performed an

                    additional 9 point repairs, 144 manhole repairs, and 12,600' of sewer lining

                    throughout the Saratoga Farms and Bradley Terrace subdivisions. Since 1997, the




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            City has invested an additional $1,100,000 toward 31,300' of additional sewer

            lining. These efforts have greatly reduced I/I entering the sanitary sewer system.

            The building surveys and manhole inspections referenced above identified

            approximately 7.5 MGD of I/I that remains in the City's system.              Manhole

            rehabilitation is generally found to be cost-effective due to the relatively low

            repair cost and significant I/I reductions achieved, and it is estimated that

            repairing all defective manholes in the City would cost approximately $2,500,000.

            The manhole rehabilitation work is known and proposed to be completed in a

            multi-year program as budget constraints allow. We also intend to perform flow

            monitoring at strategic locations to isolate subareas containing high I/I

            concentrations, additional dye flood testing and sewer televising in these high

            flow subareas, and associated rehabilitation work identified by these

            investigations. It is estimated that the investigative work will cost $150,000 City-

            wide.

                    The City's current budget includes the repayment of the $3.2 million loan to

            IEPA through the year 2016 from sewer fees collected from users. Therefore,

            available funds for sewer rehabilitation efforts during the next decade will remain

            similar to the past several years ($250,000/yr) until the loan debt is serviced.

                    Therefore, the following compliance schedule is proposed:

                    [2006 to 2014 year-by-year proposed spending on items such as flow

            monitoring and sewer televising, manhole rehabilitation, and sewer lining, with a

            total estimated cost of $3,250,000.]




                                              5
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                          We are confident that our continued commitment to significant investments

                    into rehabilitating our sewer system infrastructure will result in the City's

                    compliance with the District's I/I limits over time, and look forward to working

                    with the District toward achieving this goal.

                          At this time Robinson Engineering has prepared a full set of manhole

                    rehabilitation plans for the entire City. After the compliance schedule is agreed

                    upon we subdivide the plans to meet the financial constraints of the yearly budget.

                    After your approval of the plans and specifications we will be able to immediately

                    go to bid for the manhole rehabilitation project."

¶7           The record on appeal also includes the October 2011 affidavit of Michael A. Sabo.

       This affidavit reads in its entirety:

                          "I, Michael A. Sabo, after first being duly sworn on oath, depose and state

                    that if I were sworn as a witness I could competently testify to the following:

                          1. I am over the age of eighteen and make this affidavit of my own

                    personal knowledge.

                          2. I am a resident of Chicago Heights, Illinois.

                          3. Between 1999 and 2007, I was Alderman of the 6th District of Chicago

                    Heights, with an office at 1601 Chicago Road, Chicago Heights, IL 60411.

                           4.   Between 2007 and 2009, I was the Director of City Services and

                    Projects for the City of Chicago Heights.

                          5.    Since 2009, I've been the Director [of] Street, Sewer, and Vehicle

                    Maintenance Departments for the City of Chicago Heights.




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                  6. Between 2004 and 2007, the City of Chicago Heights' legislation was

            enacted in the form of ordinances passed by a majority vote of the City Council.

                   7. Until 2011, the City Council comprised the mayor and six aldermen. A

            seventh alderman was added in 2011.

                  8. The City of Chicago Heights owns, maintains and operates a separated

            sewer system in which storm water and sanitary wastewater travel in separate

            lines and to different end points.

                  9. The storm water that enters the City's storm sewer system is discharged

            in local waterways.

                  10. The wastewater that enters the City's sanitary sewers from the homes of

            City residents and businesses travels through the City's system to Thorn Creek

            Basin Sanitary District where it is treated before being discharged into local

            waterways.

                  11. Thorn Creek has the ability to regulate the amount of wastewater that

            flows from the City's sanitary sewer system into the Thorn Creek Treatment plant.

                  12. If for any reason the flow from the City's sewer system into the Thorn

            Creek facility was stopped or slowed, this could cause the City's system to backup

            and result in backups in the homes and businesses of City residents.

                  13. The City of Chicago Heights Municipal Code places the responsibility

            for the installation, connection and maintenance of sewer lines that connect to the

            City's system upon the City's residents and businesses.




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                   14. A blockage in a City resident's lateral lines could and often does cause

            sewage backups into the resident's home and/or the backup of sewage into other

            residents' homes.

                   15.   The City Council adopted as the standard for operations and

            maintenance of its municipal sewer systems to have a system that can handle

            events involving less than a 50 year storm.

                  16. The Mayor and City Council were aware that the City's sewer system

            was in need of repair in March 1993.

                  17. The Chicago Heights City Council alone has the authority to allocate

            funds for and initiate a plan to maintain, repair and/or upgrade the City's sewer

            system.

                  18. In 1993, following notification of the City's violation of a Thorn Creek

            ordinance, the City Council voted on a sewer rehabilitation program.

                   19. The purpose of the sewer rehabilitation plan initiated in 1993 was to

            upgrade the City's sewer system and bring Chicago Heights into compliance with

            Thorn Creek ordinances.

                  20. In March 1993, the City Council voted to authorize over $1,100,000 in

            private sector and public sector investigations to isolate and identify sources of

            infiltration and inflow into its sanitary sewer system.

                   21. Between 1994 and 1997, this investigation phase included dye water

            flood testing of 137 high priority locations, 2,705 manhole inspections, a house-

            to-house survey, with internal and external inspections of 8,302 buildings in

            Chicago Heights- (91% of all buildings in the city).

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                    22.    Beginning in 1997, the City began its initial phase of sewer

            rehabilitation, comprising over a $1,000,000 in rehabilitation work, funded in part

            by a $3.2 million low interest loan from the Illinois Environmental Protection

            Agency.

                    23. The above projects required the city to retire its debt at a rate of

            $220,000 annually.

                     24. After 1997, 31,300 additional feet of sewer lining were deployed.

                     25.    In 2005, the City Council made the policy decision, in full

            cooperation with Thorn Creek, that the work required to bring the sewer system

            into compliance with infiltration limits would be completed in 2015.

                     26. All determinations with respect to the prioritization of sewer system

            rehabilitation and upgrades discussed above were made prior to April 16-17,

            2006.

                     27. The type of flooding that Plaintiffs' allege they suffered in this case

            can occur in the homes of Chicago Heights' residents as a result of an obstruction

            in the sanitary sewer system despite the City's regular maintenance and inspection

            of the system.

                    28. The March 3, 2006 letter from Chicago Heights Mayor to Thorn Creek

            Basin Sanitary District attached hereto as Exhibit A, is a true and correct copy of

            said letter, and said letter was made in the regular course of business, and it was

            the regular course of business to make such a memorandum or record at the time

            of such an event or within a reasonable time thereafter. This letter is maintained




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                   as a regular business record by the City of Chicago Heights Street, Sewer, and

                   Vehicle Maintenance Department of which I am Director.

                          29. Before any repair, maintenance or upgrade project can begin, the City

                   Council must allocate funding for the project, and, in doing so, consider the

                   overall needs and safety of City residents and allocate budgetary resources

                   accordingly."

¶8     Also included in the record on appeal is a letter from the City of Chicago Heights mayor

       Anthony DeLuca to James L. Daugherty, district manager for the Thorn Creek Basin Sanitary

       District, dated March 3, 2006. It reads, in pertinent part:

                          "RE:     [Thorn Creek Basin Sanitary District] Infiltration/Inflow Limits

                   Ordinance

                          Dear Mr. Daugherty,

                          The purpose of this letter is to respond to your December 28th, 2005 letter

                   requesting the City of Chicago Heights to submit a revised sewer rehabilitation

                   Compliance Schedule.        A revised schedule providing recommendations for

                   system rehabilitation to achieve compliance with Thorn Creek Basin Sanitary

                   District (TCBSD) Ordinance No. 328 is enclosed. The intended plan is to serve

                   as an expansion of our current rehabilitation program by outlining tasks and

                   budget assignments designed to bring the system into compliance. The schedule

                   includes system investigations and systematic rehabilitation designed to remove,

                   isolate and pinpoint Inflow/Infiltration (I/I) sources throughout the City's sanitary

                   sewer transport system.




                                                     10
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                  To remind the District just how committed the City is to transport system

            improvements, we will summarize our efforts, to date. Since formal notification

            of its noncompliance with TCBSD ordinance in March 1993, the City of Chicago

            Heights has authorized over $1,100,000 in private sector and public sector

            investigations to isolate and identify sources of infiltration and inflow into its

            sanitary sewer system. Since 1997 the City has performed over a $1,000,000 in

            rehabilitation work. As part of our initial phase of sewer rehabilitation, the City

            (funded by a $3.2 million low interest loan from the Illinois Environmental

            Protection Agency), completed several sewer improvements on the City's

            northwest side in 1997. It is important for the District to recognize the City is

            retiring the debt for the 1997 improvements at a rate of $220,000 annually. The

            remaining debt retirement period exceeds the 10-year rehabilitation program

            suggested by the District. The work performed is listed below:

            Work performed between 1996-1997

                  Bradley Terrace

                         Approximately 4,100 lineal feet of pipelining,

                        5 point repairs, and

                       33 manhole repairs

                 Saratoga Farms and its tributaries

                        8,500 lineal feet of sanitary sewer lining

                       4 point repairs

                      111 manhole repairs

                  Manhole Inspections 1994-1997

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                       2,705 sanitary sewer manholes – 100% of all known manholes within

            the City

                       Dye Water Flood Testing (spring 1995)

                       A total of 137 high priority locations were tested by National Power

            Rodding Corporation

                  House-to-house survey

                   A citywide building-to-building survey was conducted from 1994 to 1997,

            and consisted of internal and external inspections of 8,302 of the 9,123 buildings

            (91%) existing in the City. Survey crews were unable to gain entry into 821

            buildings (9%). Of the 9,123 buildings, a total of 6,812 buildings, or 75%, are

            suspected to contain at least one type of connection contributing I/I to the sanitary

            sewer system. A summary of the investigation is described below.

                  Detailed in a May 1997 report prepared by Robinson Engineering, Ltd.,

            estimated that a total of 5.706 MGD I/I is contributed to the City's sanitary sewer

            system from private property sources.

                  Work performed after 1997

                        31,300 lineal feet of sanitary sewer lining

                       2 point repairs

                  The above work resulted in over $1,100,000 in public sector rehabilitation

            repairs to reduce infiltration and inflow into its sanitary sewer system. These

            efforts have greatly reduced I/I entering the sanitary sewer system.

                  The rehabilitation of all defects found in the entire system is almost never

            cost-effective.   In any system, however, some rehabilitation is always cost-

                                             12
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            effective. The system costs for most sewage collection and treatment systems of

            any significant size depend upon its capacity, or the flow it can handle. The

            desirable extent of rehabilitation can only be determined objectively by economic

            and practical considerations. We are committed to the rehabilitation program and

            have reviewed Baxter & Woodman's first year recommendations listed in its

            November 7, 2005 letter to the District. We have therefore, revised our program

            accordingly.

                  Sewer System Inventory and Mapping:

                  A newly computerized base map and sewer system atlas will be developed.

            We intend to include storm sewers on the initial mapping. The initial impact to

            update the City's sanitary sewer atlas and incorporate all system data into a

            Geographic Information System database would allow data to be linked into the

            updated map which would assist the City in developing a long term I/I reduction

            program.

                  Flow Monitoring:

                  Attached is a map containing the major sewer service areas in Chicago

            Heights. The map identifies 6 major trunk sewers where we propose to monitor

            flow rates for a 3-month period. These initial data will be used to determine the

            location of where to install flow meters for the next round of flow monitoring. If

            the monitoring locations selected on the attached map are not to the District's

            liking, please advise where you would like us to measure.

                  Sewer Televising and Cleaning




                                            13
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                    Based on initial flow monitoring results, areas will be selected for televising

            and cleaning. Plans and specifications will be prepared for the work and bid out.

            The result will identify were sewer rehabilitation is recommended. A report

            summarizing our findings will be prepared.

                    Progress Report:

                    An engineering report will be prepared identifying worst areas for further

            investigation. A compliance schedule for further investigation will be prepared.

            Preliminary cost estimates for the work and a financial needs analysis will be

            included.

                    Based on the first year investigations, the rehabilitation scope, probable

            project costs, funding needs, allocations and long-term program to maintain the

            City's sanitary sewer system would be determined. Attached is a project schedule

            outlining work-flow. The cost for the first year program is outlined in Table 2

            below.

                        Table 2 Compliance Schedule—Year One (2006)

            Proposed Schedule                    Budget

            Flow monitoring 6 locations          $25,000

            Internal Television Inspection       $90,000

            GIS Mapping                          $130,000

            Engineering Report                   $35,000

            Debt Service Payment                 $220,000

            Total                                $500,000



                                               14
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                           The City intends to adopt and implement this plan for I/I reduction to

                   reduce wastewater treatment operating cost, maximize collection system

                   hydraulic capacity, and meet TCBSN requirements. Once the initial investigation

                   and evaluation are complete, the City will address its user charge program to

                   determine if additional revenue is needed to implement rehabilitation projects per

                   your recommendations in order to come into compliance within the I/I limits by

                   2015.

                           The priorities for maintenance activities have been revised to reflect District

                   directives within the current sewer user charge system. It is recognized that

                   flexibility in implementation will be necessary due to the ever-changing

                   circumstances common with municipal infrastructure systems and budgets.

                           If you have any questions concerning this matter, please feel free to contact

                   the undersigned.

                   s/ Anthony DeLuca, Mayor"

¶9           The record on appeal also includes an invoice from Robinson Engineering to "City of

       Chicago Heights, Mayor and City Council," dated April 13, 2006, regarding "2006 Sewer

       Maintenance—Flow Monitoring." It reflects "services performed" through March 31, 2006

       as: "perform flow monitoring, prepare proposal for sewer cleaning, review sewer cleaning

       proposals, meeting with Chicago Heights staff and TCBSD." The invoice reflects 120.75

       hours of labor by "senior project manager," "engineering technician 2," "CADD technician,"

       and "resident engineer," for a total charge of $10, 059.75.




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¶ 10               The record also includes an April 12, 2006, letter from Thomas Nagle, project engineer

         for Robinson Engineering, to Matthew Fares, chief of staff, City of Chicago Heights. It

         states:

                        "Re:        Heavy Cleaning of Large Diameter Sewer

                                    Proposal Tabulation & Recommendation

                         Dear Mr. Fares:

                               As you know we are in the process of flow monitoring the City sanitary

                        sewage flows into the Thorn Creek Basin Sanitary District. In order to monitor

                        the flows we have installed meters in select manholes.          These meters were

                        installed to study the effects of the Inflow and Infiltration (I and I) due to the

                        spring rains in the Chicago Heights sewer system. The meters have sensors

                        designed to measure depth of flow in the sewer as well as the velocity of the flow.

                        Due to heavy silt accumulation in the sewers at three locations, the sensors have

                        been covered with silt and cannot accurately measure the flow. Therefore it was

                        agreed to take proposals for cleaning of the sewer in the location of the meters.

                               On April 11, 2006 at 2:30 PM at the City Council Chambers we received

                        proposals for heavy cleaning of large diameter sewer. The proposals were found

                        to be correct and in order as submitted, and are as follows:

                               R&R Septic & Sewer Service, Inc…………….$16,170.00

                               Municipal Sewer Services, Inc………………...$26,401.20

                               National Power Rodding Corp……………..…$45,960.50




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                           Therefore, we recommend that the contract be awarded to the low bidder,

                     R&R Septic & Sewer Service, Inc. in the amount of Sixteen Thousand, One

                     Hundred Seventy Dollars and Zero Cents ($16,170.00)."

¶ 11           As noted, prior to the flood, the City contracted with Robinson Engineering to install

         several flow monitors throughout the City's sanitary sewer. Those monitors recorded the

         amount and velocity of flow traveling within the City's sewer during the rainstorm at issue

         here. In 2007, Robinson Engineering submitted the results of this monitoring to the City in a

         written report, which is included in the record on appeal. According to the report, prior to the

         flood, the City was "experiencing serious sanitary sewer transport problems," including

         excessive silt and debris buildup within the sewers, and inflow and infiltration problems.

¶ 12           Plaintiffs' expert, Rick Arbour, opined that the flooding experienced by the plaintiffs

         could have been avoided if the City had done appropriate preventative maintenance of the

         sewer system. Arbour's affidavit, included in the record on appeal, states in pertinent part,

         that he has "over 49 years of Operation and Maintenance (O&M) experience, all of which is

         directly or indirectly related to Sanitary Sewer Systems," and that he was hired by plaintiffs to

         offer an opinion as to the flooding of their homes. Arbour explained that the City's sanitary

         sewer is a separated system, meaning that sanitary sewage is discharged into a system

         separate from the storm water system. He explained that excessive rain water is not supposed

         to enter or affect a sewer system lie Chicago Heights "unless the sewer system has a problem

         with inflow and infiltration; which clearly the City does." He further explained:

                           "9. Inflow and infiltration are terms used to denote two types of clear water

                     that can make their way into a sewer system. Inflow enters the sanitary sewer

                     system from sump pumps, area/footing drains, roof leaders, manholes or other


                                                      17
       1-12-2994


                    connections to the sewer system. Infiltration, or ground water, enters the sewer

                    system from defects in the system's main line and the private lateral lines owned

                    by individual residents.

                           10. Any defect in a sewer, for example, pipe sags, offset joints, protruding

                    taps, cracks, debris, or root intrusion or pipe installed at less than the

                    recommended slope can cause debris to pile up and slow the flow of sewage, or in

                    the case of a blockage, stop the flow of water in the pipe, completely. A stoppage

                    of this nature will cause the flow to 'back-up' or surcharge the pipe upstream of

                    the blockage. Further, any time there is a crack or a break in the pipe, this leads

                    to excessive infiltration of groundwater into the sanitary sewer. This will result in

                    the surcharging to occur at a higher rate."

¶ 13           He went on to opine that the City knew there was a problem with inflow and

         infiltration, but did not fix it, and generally failed to adequately maintain its system. As a

         result, the hydraulic conveyance capacity was reduced.

¶ 14           Arbour attested:

                           "16. This failure to perform any needed maintenance added to the system's

                    preexisting problems and most definitely played a significant role in the Plaintiffs'

                    basement flooding. The inescapable conclusion is that the City knew, in the event

                    of a rain storm, that its system would be inundated with clear water which would

                    overburden the system and likely cause a backup into homeowner's basements.

                    The City was well aware of these conditions prior to the flooding of Plaintiffs'

                    homes and yet it did nothing to remedy the situation."

¶ 15           Arbour opined:


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                           "7. Based upon the evidence that I have reviewed, it is my professional

                     opinion that the flooding of the Plaintiffs' homes on April 16-17, 2006 was caused

                     by excessive inflow and infiltration compounded by accumulated debris in the

                     line which reduced the hydraulic conveyance capacity of the system.          More

                     specifically, the flooding occurred due to:

                                   a. the insufficient capacity in the sewer system caused by excessive

                            inflow and infiltration that consumed capacity intended to [convey]

                            wastewater and,

                                   b. a lack of preventative maintenance that allowed system wide

                            defects to develop in the sewer that severely reduced the hydraulic

                            capacity of the Defendant's sanitary sewer system."

¶ 16           The City moved for summary judgment on plaintiffs' claims, arguing that the

         protections afforded the City by the Tort Immunity Act rendered the City immune from

         plaintiffs' claims, and because plaintiffs' negligence claims under the theory of res ipsa

         loquitur failed where indisputable facts established that the city was not in exclusive control

         over the instrumentalities that allegedly resulted in the flooding suffered by plaintiffs. The

         City argued that it was immune from plaintiffs' claims pursuant to section 2-201 of the Tort

         Immunity Act. In support of this contention, it argued for immunity because the decisions

         regarding the maintenance and operation of the Chicago Heights sewer system "were unique

         to the office of the City of Chicago Heights City Council" and the "City Council alone had the

         authority and discretion to make decisions related to the allocation of funds, balancing the

         priorities of sewage maintenance against that [of] the rest of the Chicago Heights

         infrastructure." It argued that the city council of the City of Chicago Heights had the sole


                                                      19
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         discretionary authority to provide for the maintenance, repair, and operation of the City's

         sewer and water systems, that there was no prescribed manner in which the City was to act in

         the maintenance, repair, and operation of its sewer and water systems, and that the City

         deliberated as to what maintenance and upgrades to its sewer system were advisable in light

         of budgetary and other concerns. Some of these deliberations took place in the weeks just

         prior to the April 16-17 rainfall.

¶ 17           The City also contended it did, in fact, take action to maintain, repair, and upgrade the

         sewer system prior to April 2006. One particular area in which the City took action prior to

         April 2006 was work meant to eliminate inflow and infiltration into the sewer systems, a

         problem largely caused by illegal connections to the system by Chicago Heights residents.

¶ 18          The City also argued that summary judgment was proper regarding the claim of

         negligence under the theory of res ipsa loquitur because plaintiffs were could not prove the

         City had exclusive control over the instrumentalities that allegedly caused the injuries

         suffered as a result of the flooding.

¶ 19           After hearing arguments, the trial court granted the City's motion for summary

         judgment, specifically ruling that plaintiffs' claims were barred by discretionary immunity,

         and finding the City was making decisions based upon what it could afford. The court stated:

                     "THE COURT: *** [T]he way that I see this, it is discretion that these people

                     don't hire ten guys to go clean the sewers once a month and it is discretion that

                     they don't take out a $10 million loan and redo all the sewer lines and it is

                     discretion also that they don't hire an outside contractor to go through with vactor

                     trucks and clean every manhole and every sewer."




                                                      20
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         The trial court further held that there was no genuine issue of material fact that the City did

         not have sufficient control over the sewer system where "there's all kind of entries and

         intrusions into this sewer line that would allow somebody even remotely taking some action

         that could have caused the sewer to overflow." The court granted the motion for summary

         judgment as to the count alleging negligence under the doctrine of res ipsa loquitur.

¶ 20           In addition, the trial court denied plaintiffs' motion to strike the Sabo affidavit because

         Sabo, as an alderman between 1999 and 2007, and the director of city services from 2007 to

         2009, could "speak to his firsthand knowledge and memory with the specific ordinances or

         resolutions" and could speak to what the mayor's awareness was because "they're at City

         Council meetings and he's there and he's able to say in a broad sense what was going on and

         certainly from the paper and the documents that are flying around here, I think everybody in

         town knew what's going on with respect to the sewer problems."

¶ 21           Plaintiffs appeal the grant of summary judgment.

¶ 22                                           II. ANALYSIS

¶ 23                                    A. Governmental Immunity

¶ 24          Plaintiffs first contend the trial court erred in granting summary judgment where the

          City is not entitled to discretionary immunity under the Act. Specifically, plaintiffs argue

          that their claims arose from the City's ministerial—not discretionary—act of failing to

          maintain its sewer system. We disagree.

¶ 25            At the summary judgment stage, a plaintiff is not required to prove its case. See

          Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423 (1998). That is, the purpose of

          summary judgment is not to try a question of fact, but only to determine whether one exists.

          See Jackson, 185 Ill. 2d at 423. Thus, summary judgment is proper only when the pleadings,


                                                      21
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   affidavits, depositions, and admissions of record, construed strictly against the moving party,

   show there is no genuine issue as to any material fact and that the moving party is entitled to

   judgment as a matter of law. Morris v. Margulis, 197 Ill. 2d 28, 35 (2001); 735 ILCS 5/2-

   1005 (West 2010). This relief is an appropriate tool to employ in the expeditious disposition

   of a lawsuit in which " 'the right of the moving party is clear and free from doubt.' " Morris,

   197 Ill. 2d at 35 (quoting Purtill v. Hess, 111 Ill. 2d 229, 240 (1986)). Although the burden

   is on the moving party to establish that summary judgment is appropriate, the nonmoving

   party must present a bona fide factual issue and not merely general conclusions of law.

   Caponi v. Larry's 66, 236 Ill. App. 3d 660, 670 (1992). A genuine issue of material fact

   exists where the facts are in dispute or where reasonable minds could draw different

   inferences from the undisputed facts. Morrissey v. Arlington Park Racecourse, LLC, 404 Ill.

   App. 3d 711, 724 (2010); see also In re Estate of Ciesiolkiewicz, 243 Ill. App. 3d 506, 510

   (1993). When determining whether a genuine issue of material fact exists, courts construe

   the pleadings liberally in favor of the nonmoving party. Williams v. Manchester, 228 Ill. 2d

   404, 417 (2008).     "Summary judgment is to be encouraged in the interest of prompt

   disposition of lawsuits, but as a drastic measure it should be allowed only when a moving

   party's right to it is clear and free from doubt." Pyne v. Witmer, 129 Ill. 2d 351, 358 (1989).

   We review summary judgment rulings de novo (Espinoza v. Elgin, Joliet & Eastern Ry. Co.,

   165 Ill. 2d 107, 113 (1995)), and we will only disturb the decision of the trial court where we

   find that a genuine issue of material fact exists. Addison v. Whittenberg, 124 Ill. 2d 287, 294

   (1988). In our review, we may affirm on any basis found in the record regardless of whether

   the trial court relied on those grounds or whether its reasoning was correct. Illinois State Bar

   Ass'n Mutual Insurance Co. v. Coregis Insurance Co., 355 Ill. App. 3d 156, 163 (2004); see



                                               22
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          also Pepper Construction Co. v. Transcontinental Insurance Co., 285 Ill. App. 3d 573, 576

          (1996).

¶ 26            The Tort Immunity Act recognizes that local governmental units are liable in tort, but

          limits this liability with a list of immunities based on specific government functions. See

          Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998).

          Governmental entities bear the burden of properly raising and proving that they are immune

          under the Act in order to bar plaintiffs' recovery. Van Meter v. Darien Park District, 207 Ill.

          2d 359, 370 (2003). The purpose of the Tort Immunity Act is "to protect local public entities

          and public employees from liability resulting from the operation of government." Ware v.

          City of Chicago, 375 Ill. App. 3d 574, 577-78 (2007).

¶ 27           Section 2-201 of the Act provides that "a public employee serving in a position

          involving the determination of policy or the exercise of discretion is not liable for an injury

          resulting from his act or omission in determining policy when acting in the exercise of such

          discretion even though abused." 745 ILCS 10/2-201 (West 2008); In re Chicago Flood

          Litigation, 176 Ill. 2d 179, 193-94 (1997).      Our supreme court has defined the terms

          "discretionary" and "ministerial" as follows:

                      " '[D]iscretionary acts are those which are unique to a particular public office,

                     while ministerial acts are those which a person performs on a given state of facts

                     in a prescribed manner, in obedience to the mandate of legal authority, and

                     without reference to the official's discretion as to the propriety of the act.' "

                     (Emphases omitted.) Van Meter, 207 Ill. 2d at 371-72 (quoting Snyder v. Curran

                     Township, 167 Ill. 2d 466, 474 (1995)).




                                                      23
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¶ 28             Section 2-201 immunity protects against both negligent and willful and wanton

          conduct. Chicago Flood Litigation, 176 Ill. 2d at 195-96. Section 2-209 of the Act allows

          municipalities to shelter under the immunity granted to public employees covered by

          immunity pursuant to Section 2-201:

                     "A local public entity is not liable for an injury resulting from an act or omission

                     of its employee where the employee is not liable." 745 ILCS 10/2-109 (West

                     2008).

¶ 29             For immunity to apply, a defendant's act or omission must be both "the determination

          of policy" and "the exercise of discretion."         Harinek, 181 Ill. 2d at 341.          Policy

          determinations involve " 'those decisions which require the municipality to balance

          competing interests and to make a judgment call as to what solution will best serve each of

          those interests.' " Harinek, 181 Ill. 2d at 342 (quoting West v. Kirkham, 147 Ill. 2d 1, 11

          (1992)).

¶ 30             Our supreme court has recognized that "the distinction between discretionary and

          ministerial functions resists precise formulation, and that the determination whether acts are

          discretionary or ministerial must be made on a case-by-case basis." Snyder, 167 Ill. 2d at

          474.

¶ 31             Whether a municipality engages in a program of public improvement is a discretionary

          matter, but the manner in which the municipality implements the program is ministerial.

          Snyder, 167 Ill. 2d at 474. Our supreme court explored the concept of discretionary versus

          ministerial acts in Chicago Flood Litigation:

                     "Official action is judicial where it is the result of judgment or discretion. Official

                     duty is ministerial, when it is absolute, certain and imperative, involving merely


                                                       24
       1-12-2994


                     the execution of a set task, and when the law which imposes it, prescribes and

                     defines the time, mode and occasion of its performance with such certainty, that

                     nothing remains for judgment or discretion.             [Citation.]   A [municipal]

                     corporation acts judicially, or exercises discretion, when it selects and adopts a

                     plan in the making of public improvements, such as constructing sewers or drains;

                     but as soon as it begins to carry out [the] plan, it acts ministerially, and is bound

                     to see that the work is done in a reasonably safe and skillful manner.' " Chicago

                     Flood Litigation, 176 Ill. 2d at 194 (quoting City of Chicago v. Seben, 165 Ill.

                     371, 378 (1897)).

¶ 32            Where an official's conduct requires deliberation or the exercise of judgment, his or her

          actions are discretionary and not ministerial in nature. Donovan v. County. of Lake, 2011 IL

          App (2d) 100390, ¶ 62.

¶ 33            In the case at bar, plaintiffs are unable to point to a particular act or omission that this

          Court can analyze to determine whether it was ministerial or discretionary. Instead, plaintiffs

          ask this court to determine that the City's conduct as a whole in regard to the maintenance

          and upkeep of its sewer systems prior to the occurrence period was ministerial. We reject

          this reasoning, as the record on appeal supports the conclusion that the City was acting in its

          discretionary function. Therefore, we find the trial court properly ruled that the City is

          immune from plaintiffs' claims of negligence where the decisions the City made regarding

          the maintenance and improvement of its sewer system were discretionary in nature.

¶ 34            The letters from the mayor, in particular, evidence that the City had a plan which it was

          implementing. For example, the mayor's March 2006 letter, dated a full month before the

          rainstorm and subsequent flooding at issue here, included a plan that "serve[d] as an


                                                       25
       1-12-2994


          expansion of [the City's] current [sewer] rehabilitation program by outlining tasks and budget

          assignments designed to bring the [sewer] system into compliance." It included "system

          investigations and systematic rehabilitation designed to remove, isolate and pinpoint

          Inflow/Infiltration (I/I) sources throughout the City's sanitary sewer transport system." It

          then outlined the actions the City had already taken, including an authorization of over

          $1,100,000 in private sector and public sector investigations to isolate and identify sources of

          infiltration and inflow into the sanitary sewer system; performance of over $1 million in

          rehabilitation work since 1997, noting that as "part of our initial phase of sewer

          rehabilitation, the City (funded by a $3.2 million low interest loan from the Illinois

          Environmental Protection Agency), completed several sewer improvements on the City's

          northwest side in 1997." It also noted that it continues to retire the sewer improvement debt

          at a rate of $220,000 per year. By that letter, the mayor then outlined specific sewer projects

          the City had completed since 1994, resulting in "over $1,100,000 in public sector

          rehabilitation repairs to reduce infiltration and inflow into its sanitary sewer system." He

          noted the work "greatly reduced" inflow and infiltration entering the sanitary sewer system.

¶ 35            Additionally, the mayor's September 2005 letter also evidenced a plan to improve the

          City's sewer systems. That letter also outlined work that had been completed on the sewer,

          including dye water flood testing of 137 "high priority" locations. The mayor noted that

          manhole rehabilitation is "generally found to be cost-effective due to the relatively low repair

          cost and significant I/I reductions achieved," and then proposed a 14-year plan to rehabilitate

          the City's manholes, as well as work on sewer lining, flow monitoring, and sewer televising.

¶ 36            In addition, the record includes proof of work being completed on the City's sewers

          prior to the April 2006 rainstorm, as evidenced the March 2006 invoice from Robinson


                                                      26
       1-12-2994


          Engineering for "services performed," including "perform flow monitoring, prepare proposal

          for sewer cleaning, review sewer cleaning proposals, meeting with Chicago Heights staff and

          TCBSD." The April 12, 2006, Robinson Engineering letter shows that it had installed meters

          in select manholes in order to monitor flow and study the effects of the inflow infiltration

          into the sewer system, and found that the sensors on the monitors were subsequently covered

          with silt and unable to accurately measure the flow. The letter then described the proposals

          taken for "heavy cleaning of large diameter sewer" that were received at the city council

          chambers, and recommended a contract be awarded for the work to be completed.

¶ 37            All of this supports our conclusion that the City was acting in its discretionary

          capacity, that is, acting in a manner requiring deliberation and the exercise of judgment,

          rather than merely executing a set task. See, e.g., Donovan, 2011 IL App (2d) 100390, ¶ 62

          (where an official's conduct requires deliberation or the exercise of judgment, his or her

          actions are discretionary and not ministerial in nature); see also Chicago Flood Litigation,

          176 Ill. 2d at 194 ("Official action is judicial where it is the result of judgment or discretion.

          Official duty is ministerial, when it is absolute, certain and imperative, involving merely the

          execution of a set task, and when the law which imposes it, prescribes and defines the time,

          mode and occasion of its performance with such certainty, that nothing remains for judgment

          or discretion." (Internal quotation marks omitted.)).

¶ 38            Moreover, the mayor's September 2005 letter describing how, "[a]fter the compliance

          schedule is agreed upon we subdivide the plans to meet the financial constraints of the yearly

          budget" shows the mayor and the city council were trying to stretch the City's dollars and use

          the City's resources to fix the problem, recognizing the problem existed and attempting to

          find a solution within its budgetary constraints. That fits precisely within the definition of a


                                                       27
       1-12-2994


          policy determination under the Tort Immunity Act, that is, " 'those decisions which require

          the municipality to balance competing interests and to make a judgment call as to what

          solution will best serve each of those interests.' " Harinek, 181 Ill. 2d at 342 (quoting West,

          147 Ill. 2d at 11). Also consistent with making a policy determination is the following

          passage from the mayor's March 6, 2006, letter to a local sanitary district official:

                            "The rehabilitation of all defects found in the entire system is almost never

                     cost-effective.   In any system, however, some rehabilitation is always cost-

                     effective. The system costs for most sewage collection and treatment systems of

                     any significant size depend upon its capacity, or the flow it can handle. The

                     desirable extent of rehabilitation can only be determined objectively by economic

                     and practical considerations. We are committed to the rehabilitation program

                     ***"

¶ 39            Again, this letter, dated just weeks before the rainstorm at issue here, demonstrates that

          the mayor and the City were balancing competing interests and making continued and

          ongoing judgment calls as to what set of action would best serve those competing interests.

          See Harinek, 181 Ill. 2d at 342.

¶ 40            Plaintiffs' argument that tort immunity should not apply in this case because the City's

          "method of operating the sewers" violated Illinois Environmental Protection Agency (IEPA)

          regulations is unavailing. In Donovan, the Second District upheld the trial court's dismissal

          of a class plaintiffs' negligence claim against the county because the government defendant

          was immune from liability pursuant to the Tort Immunity Act. The Donovan plaintiffs

          alleged that the county was obligated by the IEPA to chlorinate the water system's

          groundwater and that, because the county failed to do so, excessive amounts of bacteria were


                                                       28
1-12-2994


   detected on various occasions. Donovan, 2011 IL App (2d) 100390, ¶ 7. The plaintiffs

   claimed, in pertinent part, that the county was mandated by law to provide water of safe

   quality, and was obligated to chlorinate the groundwater it distributed to the plaintiffs and

   their neighbors. Donovan, 2011 IL App (2d) 100390, ¶ 20. The trial court dismissed the

   claims, finding the county immune from the suit. Donovan, 2011 IL App (2d) 100390, ¶ 59.

   The plaintiffs appealed, arguing that the county was not immune because some of the duties

   it allegedly breached were ministerial rather than discretionary. Donovan, 2011 IL App (2d)

   100390, ¶ 59. The appellate court rejected this claim, finding:

                    "Here, although the County may have been legally mandated to chlorinate

              the water and to provide safe drinking water, our focus is on the manner in which

              the County carried out, or failed to carry out, those duties. For example, as to

              plaintiffs' factual allegations relating to three IEPA reports of coliform violations

              between 2000 and 2005, each required the County to decide the appropriate

              means and method to repair the violation, i.e., whether to install chlorination

              facilities on the existing site or to completely rebuild the water system, 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 water system and whether

              customers should bear the entire cost. Those allegations relate to how to replace a

              more-than-50-year-old water system and invoke discretionary decisions on the

              part of the County. See In re Chicago Flood Litigation, 176 Ill. 2d at 194 (a

              municipal corporation acts judicially, or exercises its discretion, when it selects

              and adopts a plan in the making of public improvements). Accordingly, we find

              that the County met its burden of establishing that count I should have been


                                               29
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                      barred because the County was shielded from liability under section 2-201 of the

                      Tort Immunity Act." (Emphasis in original.) Donovan, 2011 IL App (2d) 100390,

                      ¶ 62.

          Similarly, here, the City's decisions, even if they were in violation of IEPA regulations, are

          considered discretionary and are shielded from liability under section 2-201 of the Tort

          Immunity Act.

¶ 41            We understand plaintiffs' frustration that their homes were flooded with waste and we,

          like the trial court below, recognize that this flooding may have been avoided had the City's

          sewers been better maintained. However, a municipality must function while balancing

          many interests, including a limited budget. Here, the City had a plan and was moving

          forward on that plan, balancing, as a municipality must, many interests. Even if its conduct

          were negligent, we would still find that it was immune from suit under section 2-201. See

          Chicago Flood Litigation, 176 Ill. 2d at 195-96. We find no error in the grant of summary

          judgment on Count II in favor of the City where the City is subject to immunity under the

          Tort Immunity Act.

¶ 42                                         B. Res Ipsa Loquitur

¶ 43            Next, plaintiffs contend the trial court erred in granting summary judgment in the

          City's favor on count I, res ipsa loquitur negligence. Specifically, plaintiffs argue that the

          evidence shows the flooding of the plaintiffs' basements "could hot have occurred without an

          act of negligence by the City" and, therefore, summary judgment is in error. Plaintiffs claim

          the City was negligent in both its maintenance and operation of the sanitary sewer. We

          disagree.




                                                     30
       1-12-2994


¶ 44            To establish their claim for negligence, plaintiffs were required to allege facts

          establishing defendant owed them a duty of care, defendant breached the duty of care, and

          the alleged breach proximately caused plaintiffs' injuries. Swain v. City of Chicago, 2014 IL

          App (1st) 122769, ¶ 14. "The mere happening of an accident does not entitle a plaintiff to

          recover. A plaintiff must come forward with evidence of negligence on the part of the

          defendant and with evidence that the defendant's negligence was a proximate cause of the

          plaintiff's injuries. Proximate cause can only be established when there is a reasonable

          certainty that the defendant's acts caused the injury." (Emphasis in original.) Payne v. Mroz,

          259 Ill. App. 3d 399, 403 (1994). Proximate cause may not be based on "mere speculation,

          guess, surmise or conjecture." Castro v. Brown's Chicken & Pasta, Inc., 314 Ill. App. 3d

          542, 553 (2000). Generally, the issue of cause is a question of fact for the jury, but the lack

          of proximate cause may be determined by the court as a matter of law where the facts alleged

          failed to sufficiently demonstrate both cause in fact and legal cause. Vertin v. Mau, 2014 IL

          App (3d) 130246, ¶ 10.

¶ 45            "The doctrine of res ipsa loquitur requires that (1) the occurrence is one that ordinarily

          does not occur in the absence of negligence; and (2) the defendant had exclusive control of

          the instrumentality that caused the injury." Britton v. University of Chicago Hospitals, 382

          Ill. App. 3d 1009, 1011 (2008). The Third District has explained the doctrine thus:

                     "Res ipsa loquitur involves a species of circumstantial evidence permitting the

                     trier of fact to draw an inference of negligence [citation]; the doctrine permits

                     circumstantial evidence as proof of negligence where direct evidence is primarily

                     within the control of the defendant [citation]. Once properly invoked, the doctrine

                     operates to shift the burden of going forward with the evidence to the defendant,


                                                      31
       1-12-2994


                      though any presumption of negligence may then be rebutted by the defendant.

                      [Citations.]" Taylor v. City of Beardstown, 142 Ill. App. 3d 584, 592 (1986).

¶ 46               The requisite control element of res ipsa loquitur is not a rigid standard, but instead is

          a flexible one in which the key question is whether the probable cause of the plaintiff's injury

          was a cause that the defendant had a duty to the plaintiff to anticipate or guard against.

          Heastie v. Roberts, 226 Ill. 2d 515, 532 (2007). It is enough that the defendant has the right

          or power of control as well as the opportunity to exercise that right, or that he is under a duty

          that he cannot delegate. Lynch v. Precision Machine Shop, Ltd., 93 Ill. 2d 266, 273 (1982).

          Nonetheless, it must be shown that the plaintiff's injury can be traced to a specific

          instrumentality or cause for which the defendant was responsible or that he was responsible

          for all reasonable causes to which the incident could be attributed.            Raleigh v. Alcon

          Laboratories, Inc., 403 Ill. App. 3d 863, 869 (2010) (citing Napoli v. Hinsdale Hospital, 213

          Ill. App. 3d 382, 388 (1991)). Thus, the defendant's responsibility for a specific cause of an

          event is proven by eliminating the responsibility of any other person for that cause. Lynch,

          93 Ill. 2d at 273. A plaintiff is not required, however, to eliminate all other possible causes

          for the injury. Gatlin v. Ruder, 137 Ill. 2d 284, 299 (1990). Additionally, the inference may

          be drawn where the defendant shares control with another individual. Lynch, 93 Ill. 2d at

          273; see also Loizzo v. St. Francis Hospital, 121 Ill. App. 3d 172, 179-80 (1984) (in medical

          malpractice action, res ipsa loquitur does not apply where negligence may be attributed to

          one of several individuals and no principle renders them liable in solido or where the injury

          may have been caused by a person who was not a joint actor or was not in control of an

          injured patient). Furthermore, where res ipsa loquitur is to be applied, all parties who could




                                                        32
       1-12-2994


          have caused the plaintiff's injuries are joined as defendants. Smith v. Eli Lilly & Co., 137 Ill.

          2d 222, 257 (1990).

¶ 47           Initially, we note we have already determined herein that, even if the City were

          negligent in its maintenance of the sewer, we would still find it was immune from suit under

          section 2-201 of the Tort Immunity Act. See Chicago Flood Litigation, 176 Ill. 2d at 195-96.

          Regardless, even beyond the issue of immunity, we also find the city is not guilty of

          negligence pursuant to the doctrine of res ipsa loquitur where the City simply did not have

          sufficient control of the sewer system.

¶ 48            Plaintiff's expert, Rick Arbour, listed numerous ways clear water could enter the sewer

          system, slowing the system or overwhelming its hydraulic capacity. For instance, he noted

          that inflow could enter the sanitary sewer system from "sump pumps, area/footing drains,

          roof leaders, manholes or other connections to the sewer system." Infiltration, or ground

          water, can enter the sewer system from "defects in the system's main line and the private

          lateral lines owned by individual residents." He further explained that "[a]ny defect in a

          sewer, for example, pipe sags, offset joints, protruding taps, cracks, debris, or root intrusion

          or pipe installed at less than the recommended slope can cause debris to pile up and slow the

          flow of sewage, or in the case of a blockage, stop the flow of water in the pipe, completely.

          A stoppage of this nature will cause the flow to 'back-up' or surcharge the pipe upstream of

          the blockage. Further, any time there is a crack or a break in the pipe, this leads to excessive

          infiltration of groundwater into the sanitary sewer. This will result in the surcharging to

          occur at a higher rate." According to plaintiffs' expert, then, while the City's failure to

          perform maintenance "added to the system's preexisting problems" and played a "significant

          role" in the flooding of plaintiffs' homes, there were also many other avenues from which this


                                                       33
       1-12-2994


          water could have infiltrated the system, overwhelming the system and eventually causing the

          surcharge into plaintiffs' basements. We find no error in the trial court's grant of summary

          judgment in favor of the City on count I where plaintiffs are unable to show the City was

          sufficiently in control of the system for the doctrine of res ipsa loquitur to apply.

¶ 49                               C.   The Motion to Strike the Sabo Affidavit

¶ 50            Finally, plaintiffs contend the trial court erred in denying their motion to strike the

          Sabo affidavit because the motion violated Illinois Supreme Court Rule 191 (eff. Jan. 4,

          2013). We disagree.

¶ 51            Supreme Court Rule 191 governs the requirements of affidavits used in support of a

          motion for summary judgment. Rule 191 states, in pertinent part:

                     "Affidavits in support of and in opposition to a motion for summary judgment

                     under section 2-1005 of the Code of Civil Procedure *** shall be made on the

                     personal knowledge of the affiants; shall set forth with particularity facts upon

                     which the claim, counterclaim, or defense is based; shall have attached thereto

                     sworn or certified copies of all documents upon which the affiant relies; shall not

                     consist of conclusions but of facts admissible in evidence; and shall affirmatively

                     show that the affiant, if sworn as a witness, can testify competently thereto." Ill.

                     S. Ct. R. 191(a) (eff. Jan. 4, 2013).

¶ 52            A Rule 191 affidavit "is actually a substitute for testimony taken in open court and

          should meet the same requisites as competent testimony." Harris Bank Hinsdale, N.A. v.

          Caliendo, 235 Ill. App. 3d 1013, 1025 (1992). An affidavit that is conclusory and does not

          include facts upon which the affiant relies is in violation of Rule 191. Landeros v. Equity

          Property & Development, 321 Ill. App. 3d 57, 63 (2001). However, Rule 191 is satisfied if it


                                                       34
       1-12-2994


          appears, from the document as a whole, that the affidavit is based upon the personal

          knowledge of the affiant and there is a reasonable inference that the affiant could

          competently testify to its contents at trial. Piser v. State Farm Mutual Automobile Insurance

          Co., 405 Ill. App. 3d 341, 349 (2010). "It is the function of a trial court to determine the

          admissibility of evidence, and its rulings will not be disturbed absent an abuse of discretion."

          Piser, 405 Ill. App. 3d at 349-50.

¶ 53           In the case at bar, at the time of the hearing, Sabo had been the Director of the

          Department of Street, Sewer and Vehicle Maintenance for the City since 2009, and his

          experience with the City went back much further. In his affidavit, Sabo outlines his long

          experience with the City, including acting as alderman on the City Council from 1999 to

          2007, as Director of the Department of City Services and Projects from 2007 to 2009, and as

          Director of the Department of Street, Sewer and Vehicle Maintenance from 2009 to the time

          he swore the affidavit. Sabo specifically averred in his affidavit that he made the affidavit

          "of [his] own personal knowledge."

¶ 54            Plaintiffs challenge paragraphs 11, 12, 14, 15, 17, 25, and 27 of the Sabo affidavit.

          Paragraph 11 provides:

                      "11. Thorn Creek has the ability to regulate the amount of wastewater that flows

                   from the City's sanitary sewer system into the Thorn Creek treatment plant."

          Plaintiffs argue that this statement contradicts Sabo's deposition testimony in which he

          testified he did not have firsthand knowledge of the Thorn Creek treatment plant's ability to

          regulate wastewater intake, admitted he could not remember the memo he used to form the

          basis of paragraph 11, and did not attach that memo to his affidavit. Plaintiffs argue that "the




                                                       35
       1-12-2994


          affidavit fails to demonstrate that the affiant, if sworn as a witness, can testify competently to

          the matter."

¶ 55            Paragraph 12 of the Sabo affidavit provides:

                         "12. If for any reason the flow from the City's sewer system into the Thorn

                   Creek facility was stopped or slowed, this could cause the City's system to backup

                   and result in backups in the homes and businesses of City residents."

          Plaintiffs argue that this is speculative and violates Supreme Court Rule 191 because: 1) it is

          a conclusion unsupported by facts; and 2) Sabo does not have personal knowledge of the

          underlying facts.

¶ 56            Paragraph 14 provides:

                         "14. A blockage in a City resident's lateral lines could and often does cause

                   sewage backups into the resident's home and/or the backup of sewage into other

                   residents' homes."

          Plaintiffs argue this paragraph contains an improper conclusion and "fails to set forth with

          particularity the basis of the statements, consists only of the conclusions of the affiant

          unsupported by facts, and fails to affirmatively show that the affiant, if sworn as a witness,

          can testify competently to the matter."

¶ 57            Paragraph 15 of the Sabo affidavit provides:

                         "15. The City Council adopted as the standard for operations and maintenance

                   of its municipal sewer systems to have a system that can handle events involving less

                   than a 50 year storm."

          Plaintiffs argue this paragraph violates Supreme Court Rule 191 because it contains the

          conclusion that the standard adopted by the City was to have a sewer system that could

                                                       36
       1-12-2994


          handle events involving less than a 50-year storm, but Sabo testified in his deposition that he

          did not know whether the resolution at issue applied to operations and maintenance or

          whether it related only to design. Plaintiffs also argue that the resolution forming the basis

          for the opinion should have been attached to the affidavit.

¶ 58            Paragraph 17 of the Sabo affidavit provides:

                         "17. The Chicago Heights City Council alone has the authority to allocate funds

                   for and initiate a plan to maintain, repair and /or upgrade the City's sewer system."

          Plaintiffs argue that paragraph 17 "contains a legal opinion regarding authority to manage the

          City's sewer system, and fails to set forth any facts in support of that opinion," that it fails to

          set forth with particularity the basis of the statements and fails to show that the affiant could

          competently testify to the matter.

¶ 59            Paragraph 25 of the Sabo affidavit provides:

                         "25. In 2005, The City Council made the policy decision, in full cooperation

                   with Thorn Creek, that the work required to bring the sewer system into compliance

                   with infiltration limits would be completed in 2015."

          Plaintiffs challenge paragraph 25, arguing it contains an improper conclusion unsupported by

          facts, and argue that the resolution at issue should have been attached to the affidavit.

¶ 60            Paragraph 27 of the Sabo affidavit provides:

                         "27. The type of flooding that Plaintiffs allege they suffered in this case can

                   occur in the homes of Chicago Heights' residents as a result of an obstruction in the

                   sanitary sewer system despite the City's regular maintenance and inspection of the

                   system."




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          Plaintiffs argue this paragraph conflicts with the requirements of Rule 191 because it

          contains a conclusion without supporting facts, it fails to "set forth with particularity the basis

          of the statements," and fails to affirmatively show that the witness could testify competently

          to the matter.

¶ 61            At the hearing on the motion for summary judgment, the trial court did not appear to

          rely on the Sabo affidavit. It ruled on the motion to strike the affidavit, however, and noted:

                            "THE COURT: I heard your arguments on [the motion to strike] so I

                     should rule on that, too, and I think I'm going to allow that affidavit to stand but

                     I'll state some of the reasons for the record.

                           Mr. Sabo was the Alderman between 1999 and 2007. Then after that, '07 to

                     '09, he was Director of City Services, and he talks about the legislative

                     enactments and ordinances. And I respect that what [plaintiffs' attorney is] saying

                     that he doesn't attach the ordinances or these resolutions that he's referencing, but

                     as a firsthand witness and as a person that was in the city council during the

                     timeframe that most of the paragraphs that he's referencing, I think he can speak

                     to his firsthand knowledge and memory without the specific ordinances or

                     resolutions. So even those and I think he can state what maybe not the Mayor's

                     policy was or the awareness but I think he can even say what the Mayor's

                     awareness was. I mean they're at City Council meetings and he's there and he's

                     able to say in a broad sense what was going on and certainly from the paper and

                     the documents that are flying around here, I think everybody in town knew what's

                     going on with respect to the sewer problems. So I'm going to deny the motion to

                     strike the affidavit also."


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¶ 62            Sabo was one of six aldermen for the City of Chicago Heights before, during, and after

          the April 2006 rainstorm. Sabo's affidavit established that, based on his service as an

          alderman from 1999 to 2007, he had detailed knowledge regarding the functioning of the city

          council and the City's maintenance and operation of its sewer system over a period of years

          both prior to and subsequent to the April 2006 flood at issue. His affidavit also established

          that he served as the director of city services and projects between 2007 and 2009, and then

          as the director of street, sewer, and vehicle maintenance departments for the City from 2009

          forward.    This experience, in combination with the facts contained in Sabo's affidavit,

          including his specific statement that the affidavit was based on his "own personal

          knowledge," are sufficient to establish that he had personal knowledge of the facts contained

          in his affidavit. See, e.g., Piser, 405 Ill. App. 3d at 349 (Rule 191 is satisfied if it appears,

          from the document as a whole, that the affidavit is based upon the personal knowledge of the

          affiant and there is a reasonable inference that the affiant could competently testify to its

          contents at trial.). We find no abuse of discretion in the trial court's denial of plaintiffs'

          motion to strike.

¶ 63                                         III. CONCLUSION

¶ 64            For all of the foregoing reasons, the decision of the circuit court of Cook County is

          affirmed.

¶ 65            Affirmed.




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