MADISON - ST. CLAIR RECORD

The Fifth District Appellate Court ruled that Madison County Circuit Judge Daniel Stack erred in a summary judgment ruling for Granite City involving a sewer back-up insurance claim.

State Farm filed the suit against Granite City on behalf Albert and Mary Trtanj, seeking to recover damages to the Trtanjs' residence and personal property as a result of sewage backing up into their basement on July 22, 2001.

State Farm paid a portion of the damages suffered by the Trtanjs and brought suit pursuant to State Farm's right of subrogation under an insurance policy issued to the Trtanjs.

State Farm's complaint against Granite City was filed on July 5, 2002, and in May 2006, Granite City filed a motion for a summary judgment arguing the claims were barred under the statute of repose, that they were entitled to discretionary immunity under section 2-201 of the Local Governmental and Governmental Employees Tort
Immunity Act and that they were not liable for the damages because the sewer backup occurred during an extraordinary rainstorm.

Stack granted the summary judgment on Nov. 26, 2006, and State Farm appealed on Dec. 27, 2006.

Granite City's sewage system is a gravity-fed sewer system in which the sewage flows by gravity through sewer pipes to a certain depth and, at that point, lift stations lift the sewage to a new height so that the gravitational flow continues through the sewer pipes.

The lift stations operate on electric pumps and on the night the sewer backed up into the Trtanjs' house, a thunderstorm caused a power outage to three lift stations, including the Terrace Lane lift station, which is located directly downstream from the Trtanjs' home.

When the power went out, gravity still caused sewage to flow to the lift stations where it rose to its maximum capacity, causing sewage to back up along the sewer pipe system upstream from the lift station and eventually into the Trtanjs' basement.

The superintendent of streets for Granite City at the time of the incident, Gerald Lakin, gave deposition testimony about the procedures Granite City follows when there is a power outage to a sewage lift station.

Lakin said when the power goes out an alarm is sent to the police department which notifies the city's street department of the power outage.

Workers from the street department then retrieve, set up, and run a bypass pump at the lift station until electrical power is restored.

According to Lakin, when the power went out on July 22, 2001, they had to set up bypass pumps at three different lift stations, including the Terrace Lane lift station, which was the last one to be completed.

Lakin stated in his deposition that from the time everyone arrived at the street department's facility, it took approximately one hour to set up each bypass pump.

But, Granite City's superintendent of streets at the time of the hearing, Rick Fancher, testified that it should only take 15 minutes for the street crew to arrive at a lift station with a portable pump once the station's power outage alarm sounds and that it takes 15 minutes to hook up a portable bypass pump at the lift station once it arrives.

He testified that it should never take two or three hours for the street crew to get a portable pump to a lift station.

Writing the court's opinion, issued March 24, Justice Bruce Stewart stated, "A summary judgment is appropriate when the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

"Because a summary judgment is a drastic method of terminating litigation, the reviewing court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party."

Stewart said the appellate court's review is limited to determining whether the trial court correctly found that no issue of material fact existed and, if none existed, whether the trial court correctly entered a judgment as a matter of law.

"A summary judgment must be granted with caution to avoid preempting a litigant's right to fully present the factual basis of his claim," Stewart wrote.

"In ruling on a summary judgment motion, the circuit court must construe the pleadings, affidavits, depositions, and admissions on file strictly against the moving party and liberally in favor of the opponent, and the court should grant the motion only if these materials establish without doubt that the moving party is entitled to a summary judgment.

"The circuit court granted Granite City's motion for a summary judgment but did not specify on what grounds it based its decision.

"We have considered all three grounds set out in Granite City's motion for a summary judgment and find that the trial court erred in its summary judgment ruling.

"In the present case, we hold that there are material issues of fact which preclude the entry of a summary judgment in favor of Granite City on all theories of liability."

But news was not all bad for Granite City. The appellate court did affirm Stack's ruling on summary judgment regarding the statute of repose.

Any allegations involving the construction, design, and installation of the sewer system or lift station will not be allowed because the sewer system and lift station were designed and constructed more than 10 years prior to the filing of the lawsuit.

The court remanded the case back to Madison County for Stack to hold further hearings.