Ann Maher Nov. 5, 2015, 3:22pm


A $1.53 million Madison County jury verdict against Thiems Construction and Fox Creek II Land Trust involving sediment runoff into an Edwardsville couple's four acre lake will stand.

The Illinois Supreme Court on Sept. 30 denied the defendants' petition for leave to appeal a Fifth District Appellate Court decision that upheld a verdict awarding Fred and Jaunita Steinkuehler $765,000 in compensatory damages against both defendants and $765,000 in punitive damages against Thiems.

"The evidence in this case amply demonstrates that Thiems acted with a conscious disregard of the plaintiffs' rights," wrote Justice Bruce Stewart in a Rule 23 decision issued in March. "Accordingly, the evidence supports the trial court's decision to submit the punitive damages issue to the jury and the jury's decision to award punitive damages."

The Steinkuehlers sued in 2010 claiming that an excessive amount of sediment from an adjacent planned subdivision - Fox Creek II - was being deposited in their lake.

They alleged that during and after excavation work, defendants failed to take adequate measures to prevent the excessive runoff of muddy storm water, resulting in the accumulation of greater than normal amounts of silt.

Suit was filed on trespass and nuisance theories for injunctive relief and damages. The Steinkuehlers' request for injunctive relief triggered meetings and conferences, which resulted in a series of agreed orders specifying steps the defendants were to take to try to reduce the silt-bearing runoff.

A ninth and final agreed order was entered on Sept. 23, 2011, noting that preliminary injunction issues had been completed.

By the time of trial, which was presided over by Circuit Judge Barbara Crowder, the parties agreed that the injunction remedy was no longer needed.

The main issues, apart from liability, were: (1) how much of the accumulated silt was the defendants' responsibility; (2) how the silt would be removed from the lake; (3) how much it would cost; (4) whether punitive damages were appropriate; and (5) whether Thiems had violated city ordinance.

"At trial, Fred Steinkuehler testified that he and his son made a video of the aftermath of a regular rainfall (1.5") event on April 10, 2010, approximately a year after Thiems began work on the site.

"The video first showed the outlets going directly from the Fox Creek II detention basin into the north cove of his lake. There was a large volume of muddy water filled with silt. The video then showed the rock dam and detention basin.

"The water going through the rocks and into the lake looked just as muddy as the water on the other side. At some places, water was flowing over the top of silt fences. At other places, water was going underneath silt fences. The video then showed the water going into the south cove of the lake. The water was coming off the hills washing gullies into the side of the hill. The water was not going into the detention basin at all; instead, it was going around the detention basin and directly into the lake."

Fred Steinkuehler testified that the north and south coves of his lake were cleaned out in 1990. From 1990 until 2008, the coves were approximately five feet deep. At the time of trial, the coves were approximately six inches deep.

Defendants appealed the verdict on grounds that the trial court erred in submitting the punitive damages issue to the jury and in denying Thiems' motions for directed verdict, judgment notwithstanding verdict and a new trial on the punitive damages issue; and that the trial court erred in refusing to grant a new trial on damages or a remittitur where the jury awarded compensatory damages based on the cost of removing all of the silt from the plaintiffs' lake when the plaintiffs' own evidence showed that the stormwater runoff from the adjacent land during the relevant period was responsible for only approximately half of the sediment in the lake.

"The evidence shows that Thiems had been in the construction business for 41 years," Stewart wrote. "Thiems was very experienced in excavation work and work on subdivisions, and the jury could reasonably have concluded that Thiems knew what it was supposed to do to minimize the amount of sediment that went from its work site onto the plaintiffs' land."

Penni Livingston of Fairview Heights represented the Steinkuehlers.

The defendants were represented by Seth Gausnell of St. Louis and Michael Garavalia in Belleville at trial and Edward Kionka of Carbondale at the appellate court.

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Edwardsville, IL 62025

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