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Docket No. 90541-Agenda 31-May 2001.

WILLIAM VAN METER et al., Appellants, v. THE DARIEN PARK DISTRICT et al., Appellees.

Opinion filed October 17, 2003.

JUSTICE KILBRIDE delivered the opinion of the court:

The plaintiffs, William and Patricia Van Meter, filed a complaintagainst the Darien Park District, the City of Darien, the Village ofDowners Grove, the County of Du Page, and five private defendants,alleging that surface water flooded their home upon completion of anadjacent municipal recreation area called Westwood Park (the park).The municipal defendants filed motions to dismiss, pursuant to section2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)(West 1994)), alleging that they were entitled to discretionaryimmunity under section 2-201 of the Local Governmental andGovernmental Employees Tort Immunity Act (the Act) (745 ILCS10/2-201 (West 1994)). The Du Page County circuit court grantedthe municipal defendants' motions to dismiss, and the appellate courtaffirmed. No. 2-99-0009 (unpublished order under Supreme CourtRule 23). We granted the plaintiffs' petition for leave to appeal (177Ill. 2d R. 315) and now reverse.

I. BACKGROUND

The plaintiffs' 20-count complaint alleged negligence, res ipsaloquitur, and trespass and unlawful taking claims against the municipaldefendants. In their complaint, the plaintiffs alleged that they own asingle-family residence in Darien. According to the plaintiffs, thedefendants started designing and planning the park on propertybetween Darien and Downers Grove in March 1992. Together withengineers and architects, the defendants produced a "LandscapeDevelopment Plan,"depicting drainage of surface and subsurfacewater, as well as changes in the elevation of the property affecting thenatural flow of water. The Darien Park District approved the plan inconjunction with requirements imposed by the City of Darien, theVillage of Downers Grove and Du Page County. Pursuant to the plan,the defendants, through their contractors, constructed a storm waterdrainage and detention system to restrict water from the environs ofthe park development and to prevent water from flowing in its naturalcourse.

The plaintiffs alleged that the defendants owed "a duty to thePlaintiffs to provide adequate drainage for the passage of water fromand/or around Plaintiffs' property and not to alter the natural flow ofwater so as to cause water to back-up and flood Plaintiffs' real estateand residence." The plaintiffs further alleged that the defendants knewor should have known, when they approved the park plans, that thealterations in the natural flow of water would cause flooding problemsfor neighboring residents. According to the plaintiffs, the defendantsbreached this duty by failing to design, plan, supervise, observe, ormanage properly the construction of Westwood Park. The plaintiffsspecified several defects in the park construction, including aninsufficient storm water drainage system that (1) alters thegroundwater elevation; (2) restricts the natural flow of water; and (3)diverts water from adjoining property onto the plaintiffs' property.

The plaintiffs charged that the defendants negligently causedflooding on the plaintiffs' property and that the defendants negligentlyfailed to correct the defects in the park design and construction "afterbeing placed on notice that the use of those public improvements have[sic] created conditions that are not reasonably safe." The plaintiffsasserted that, before 1996, the year the project was completed, theysuffered no flooding. In their trespass/unlawful taking counts, theplaintiffs alleged that the park construction has caused and still causesflooding on their property. This "continuing trespass," a purported"constant diversion" of water, has robbed them of the "peaceableenjoyment, occupation, possession, and use of their residence" andlowered the value of their property.

The defendants each filed motions to dismiss, pursuant to section2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)(West 1994)), asserting that plaintiffs' claims were barred bydefendants' affirmative defense of immunity under section 2-201 ofthe Act (745 ILCS 10/2-201 (West 1994)). On September 17, 1998,the trial court dismissed the plaintiffs' claims against the Darien ParkDistrict, Darien, and Downers Grove under section 2-201 of the Act,providing governmental entities with immunity from liability for actsor omissions arising from a determination of policy and an exercise ofdiscretion. 745 ILCS 10/2-201 (West 1994); Harinek v. 161 NorthClark Street Ltd. Partnership, 181 Ill. 2d 335, 341 (1998). OnDecember 3, 1998, the trial court denied the plaintiffs' motion toreconsider, stating:

"[W]hat could be more discretionary than trying to decidehow the landscape is going to be reconfigured toaccommodate this park that they wanted to put here? I mean,that's almost discretionary by definition, isn't it?

You have to decide how you're going to change thelandscape. You have to decide how you're going toreconfigure the surface flow of water because the parkdoesn't do any good if it's under water.

And so everybody sits around the table and decides howare we going to do this and what's our best judgment as tohow we should design this so it does a minimum amount ofdamage to the surrounding properties and redirects thesurface flow of the waters, so that we can build this parkhere.

What's more discretionary than that? If I apply the ad hoctest to these facts, how do I not conclude that the design ofthis park was a discretionary function?

* * *

I think that even taking the facts as alleged in the plaintiff's[sic] complaint as true and indulging all reasonable inferencestherefrom in favor of the plaintiff, that my conclusion to bedrawn from those facts is that this is a discretionary functionon behalf of the municipalities which, in fact, immunizes themtherefore under 2-201."

Because other counts remained pending against the privatedefendants, the trial court found that its dismissal was final as to theDarien Park District, Darien, and Downers Grove and that there wasno just reason to delay enforcement or appeal pursuant to SupremeCourt Rule 304(a) (155 Ill. 2d R. 304(a)). On January 21, 1999, thecourt dismissed the plaintiffs' claims against Du Page County undersection 2-201. This order also contained Rule 304(a) language.

The appellate court affirmed the trial court's dismissals, holdingthat the defendants enjoyed immunity under section 2-201. Theappellate court stated in pertinent part as follows:

"Defendants, through their employees, used their skill,judgment, and ultimately their discretion to consider thedesign of the park, its landscaping, and the type ofconstruction. Employees of the defendants, in each of theirrespective municipal capacities, balanced competing interestswhen determining whether and how the flow of water shouldbe directed and restricted.

The Act provides for immunity of public entities, such asdefendants, which, through their employees, exercised theirjudgment and discretion when they determined how todesign, plan, supervise, observe, or manage the constructionof Westwood Park. Therefore, to the extent any adoption ofa plan or design of the construction of Westwood Park bydefendants caused plaintiffs' damages, the Act precludesrecovery from defendants." No. 2-99-0009 (unpublishedorder under Supreme Court Rule 23).

We allowed plaintiff's petition for leave to appeal. 177 Ill. 2d R. 315.Before this court, plaintiffs argue that the trial and appellate courtsmisapplied section 2-201 of the Act. For the reasons that follow, weagree and reverse.

II. ANALYSIS

In the matter before us, the parties dispute whether the circuitcourt properly granted defendants' section 2-619(a)(9) motions todismiss plaintiffs' complaint on the basis that section 2-201 of theTort Immunity Act completely immunized defendants from liability forthe acts and omissions stated in plaintiffs' complaint. According toplaintiffs, the circuit court improperly dismissed their complaintbecause defendants did not establish that their alleged actions were"discretionary" within the meaning of section 2-201. Defendantscounter that the circuit court properly dismissed plaintiffs' complaintunder section 2-619(a)(9) because, despite their duty not to alter thenatural flow of water on another's land, they are entitled to absoluteimmunity regarding all of their decisions with respect to the planningand construction of Westwood Park because all decisions involved theexercise of discretion. Accordingly, defendants argue, their actions fallsquarely within the purview of the immunity provided under section2-201 of the Act. We disagree. For the reasons discussed below, wehold that the circuit court improperly dismissed plaintiffs' claims as tothese municipal defendants.

The purpose of a section 2-619 motion to dismiss is to disposeof issues of law and easily proved issues of fact at the outset oflitigation. Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). Specifically,section 2-619(a)(9) of the Code of Civil Procedure permitsinvoluntary dismissal where "the claim asserted against defendant isbarred by other affirmative matter avoiding the legal effect of ordefeating the claim." 735 ILCS 5/2-619(a)(9) (West 1998). An" 'affirmative matter,' in a section 2-619(a)(9) motion, is somethingin the nature of a defense which negates the cause of actioncompletely ***." Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469,486 (1994). The moving party thus admits the legal sufficiency of thecomplaint, but asserts an affirmative defense or other matter to defeatthe plaintiff's claim. Kedzie & 103rd Currency Exchange, Inc. v.Hodge, 156 Ill. 2d 112, 115 (1993). Immunity under the Act is anaffirmative matter properly raised in a section 2-619(a)(9) motion todismiss. Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378(1995). When a court rules on a section 2-619 motion to dismiss, it"must interpret all pleadings and supporting documents in the lightmost favorable to the nonmoving party." In re Chicago FloodLitigation, 176 Ill. 2d 179, 189 (1997). Our review of a section 2-619dismissal is de novo. Epstein v. Chicago Board of Education, 178 Ill.2d 370, 383 (1997).

In 1959, this court abolished sovereign immunity from tort claimsfor municipalities. Molitor v. Kaneland Community Unit District No.302, 18 Ill. 2d 11 (1959). In 1965, the General Assembly respondedby enacting the Local Governmental and Governmental EmployeesTort Immunity Act. Zimmerman v. Village of Skokie, 183 Ill. 2d 30,43 (1998). The 1970 Illinois Constitution validated both Molitor andthe Act. Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill.2d 335, 344 (1998); see Ill. Const. 1970, art. XIII,