**ELECTRONICALLY FILED**

DOC ID: 5428904

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT

JAVON BEA HOSPITAL, a not-for-profit

Plaintiff, Case No. 2019-CH-0000347

v.

CITY OF ROCKFORD, a municipal

Defendant.

COMPLAINT

Plaintiff JAVON BEA HOSPITAL, a not-for-profit corporation organized under the laws

of the State of Illinois, hereby brings this Complaint for preliminary and permanent injunctive

relief and damages against Defendant CITY OF ROCKFORD, a municipal corporation, as

follows.

Nature of the Case

The CITY OF ROCKFORD (“the City”) has operated its municipal storm sewer system

in a manner that has repeatedly caused flooding, including flooding with polluted waters, to the

premises of JAVON BEA HOSPITAL (“the Hospital”), despite years of knowledge of flooding

problems, a federal consent decree, and obvious remedial measures that would prevent

recurrence. The stormwater pipe running through the Hospital campus fails to meet the

specifications of the City’s own ordinances. The most recent flooding event, on June 18, 2018,

closed down parts of the Hospital for many months, interrupted patient care, and cost over $30

million to repair. The Hospital has presented to the City a straight-forward and cost-effective

remedial plan to avoid future damage from flooding caused by the City’s municipal storm sewer

system, but the City has ignored the Hospital’s proposal, and refused to properly maintain its
system despite knowing that it may again cause flooding at the Hospital and potentially endanger

the health and safety of the public.

The Hospital therefore brings this Complaint against the City for negligence, trespass,

public and private nuisance, violation of Article I, Section 15 of the Illinois Constitution, and

violation of Articles V and XIV of the United States Constitution and 42 U.S.C. § 1983.

The Parties

1. Plaintiff Javon Bea Hospital, formerly known as Rockford Memorial Hospital, is

an Illinois not-for-profit corporation that operates a 94-bed facility at 2400 N. Rockton Avenue,

Rockford, Illinois. The Hospital is committed to serving the health-care needs of the Rockford

community and provides patient care for many thousands of economically disadvantaged

Rockford residents. Between 2015 and the present, the Hospital has made capital investments of

more than $50 million in its campus and facilities, $30 million of that to repair its facilities after

a severe flood in 2018, and an additional $20 million in other improvements to ensure the

continued viability of the Hospital for the future.

2. The City of Rockford is a municipal corporation organized under the laws of the

State of Illinois.

Jurisdiction and Venue

3. The Court has jurisdiction over the City because it is amenable to service of

process in this State, and because it transacts business within this State.

4. Venue is proper in this Court pursuant to 735 ILCS 5/2-103 because the City is a

municipal corporation located in Winnebago County, and because the transaction at issue arose

in Winnebago County.

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 Factual Allegations Common to All Counts

5. The Hospital owns and operates a 94-bed facility at 2400 N. Rockton Avenue,

Rockford, Illinois. The Hospital is designated as a Level 2 Trauma Center. It serves, among

others, a sizable disadvantaged population. The median household income in the nearby zip

codes is $36,000 per year or less. In those areas, between 20 and 32% of the population lives

below the poverty level, and 27% of the Hospital’s revenues are Medicaid reimbursements. In

the current fiscal year, an estimated 39,000 patients have been or will be treated at the Hospital’s

emergency room.

6. This facility was operated as Rockford Memorial Hospital since 1954 through

September 27, 2018, when it was renamed Javon Bea Hospital.

7. The City of Rockford operates a municipal stormwater sewer system within the

city limits that directly impacts the Hospital.

8. For many years, the City has known that it is operating the stormwater sewer

system in a manner that intentionally and negligently causes unwarranted flooding of private

properties in Rockford.

9. Indeed, the City of Rockford knows that it is in violation of both its own

ordinances and Illinois Department of Transportation (“IDOT”) guidelines with respect to the

stormwater sewer system that runs through the Hospital’s campus. Rockford’s ordinance

requires that the stormwater system be capable of handling stormwater from a 10-year flooding

event, that is, an event that has a 10% chance of occurring in a given year. In fact, the 48-inch

stormwater pipe running through the Hospital’s campus is only capable of handling a one-year

storm, that is, an event that has a 100% chance of occurring every year. IDOT guidelines

generally also require ability to handle a 10-year rainfall event, but in physically depressed areas,

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like the one in which the Hospital is located, the guideline is for a 50-year event, that is, one that

has only a 2% chance of occurring in a given year.

10. The City’s negligent and intentional malfeasance operating the stormwater system

have repeatedly caused flooding at and damage to the Hospital, a fact the City has long known.

The City’s actions and inactions have the potential to create substantial public health risks to

patients, visitors and employees of the Hospital. As detailed below, the flooding has disrupted

the Hospital’s operations for significant periods of time, impacting patient care. It also exposes

the public, and those who visit and work at the Hospital, to potentially dangerous conditions.

11. One example is flooding that followed a storm on August 7, 2007. Storm water

from the City’s stormwater sewer system invaded the Hospital primarily at the D-Wing, South

Entrance of the Hospital and flooded the building to a depth of four to six inches, impacting the

Hospital’s laboratory, endoscopy, pediatric therapy, radiation oncology, clinical education,

medical affairs, transcription and medical records departments.

12. Recovery from this event in the areas of the Hospital primarily affected took

between six and nine months. The medical records department had to be entirely relocated for six

months. The recovery significantly disrupted Hospital operations.

13. Following this event, the cost of repairs and a new pumping system to help

manage stormwater on its campus exceeded $1.3 million. The project was completed in 2014.

14. The City’s negligent operation of its stormwater sewer system and intentional acts

also create environmental risk to the residents and businesses of Rockford, including the

Hospital.

15. In fact, in 2015, the United States, on behalf of the United States Environmental

Protection Agency (“USEPA”) and the State of Illinois, on behalf of the Illinois Environmental

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Protection Agency (“IEPA”), filed a federal lawsuit, United States of America v. City of

Rockford, No. 15-cv-50250 (N.D. Ill.), against the City for violation of the Federal Clean Water

Act for failing to comply with the terms and conditions of the National Pollutant Discharge

Elimination System permit for stormwater discharges from its stormwater sewer system.

16. The USEPA permit issued to the City requires, among other things, that it operate

and maintain structural controls to reduce discharge of pollutants. The USEPA found the City

had failed in its duties and violated the law and on October 8, 2015, the City entered into a

Consent Decree with USEPA and IEPA in the United States District Court for the Northern

District of Illinois. The decree dictated substantial remedial measures and fined the City over

$300,000 for past violations.

17. Nevertheless, the City has continued to deposit stormwater, negligently and

intentionally, on the Hospital campus. For example, as a direct result of the City’s negligent

operation of its stormwater sewer system, as well as intentional acts by the City, on July 21,

2017, stormwater began backing up in the Hospital’s D-Wing parking lot adjacent to the 48-inch

storm main. In addition, stormwater on Edgemont Avenue, which borders the west side of the

Hospital campus, flowed like a river. Storm water invaded the Hospital’s pharmacy and radiation

departments, causing damage and interrupting operations for up to seven months.

18. The City’s actions and inaction prior to the July 21, 2017 rain event, created

potentially dangerous conditions at the Hospital, impacted patient care and exposed patients,

visitors and employees of the Hospital to a potentially unsafe environment.

19. The following year, far more devastating flooding occurred at the Hospital. On

June 18, 2018, as a direct result of the City’s negligent operation of its stormwater sewer system,

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as well as intentional acts by the City, a tremendous quantity of water infiltrated the hospital,

flooding the hospital to a depth of up to two feet, as depicted below:

20. The stormwater the City diverted to and released on the Hospital property

devastated the building, causing tens of millions of dollars in damages. The laboratory,

endoscopy, pediatric therapy, radiation oncology, clinical education, medical affairs, medical

records, respiratory therapy, sterile processing, pharmacy, information management services and

data center, engineering and central supply departments were destroyed. Many operations had to

be relocated to temporary quarters. Services were disrupted for prolonged periods in some

departments because of extensive damage to equipment.

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 21. The damaged equipment included a linear accelerator, a CT simulator, a

pharmacy robot, a sterile processing cart washer, data power equipment, and all furniture and

built-in fixtures in the affected areas.

22. The event required diversion of ambulances to other, further away hospitals, for

hours and the cancellation of all elective surgeries. Notwithstanding the damage, through the

efforts of the Hospital’s employees and leadership, and redeployment of some 300 contracted

laborers who at the time were working on constructing the Hospital’s campus at 8201 E.

Riverside Boulevard, Rockford, treatment of patients continued.

23. Repairs occasioned by this event took seven months and the Hospital did not

return to fully normal operations until January 2019.

24. The Hospital incurred over $30 million in insured losses and millions more in

uninsured losses.

25. Just two months after the June event, on August 28, 2018, a modest amount of

rain fell in Rockford. As a direct result of the City’s negligent and intentional actions in the

operation of its stormwater sewer system, man-hole covers for the 48-inch sewer main were

lifted from their rims and stormwater backed up into the Hospital courtyard, leading to water

infiltration of the Hospital’s medical affairs office.

26. As a direct result of the City’s negligent and intentional actions causing the

flooding, insurers have informed the Hospital that they will increase the retention amount and

drastically limit coverage to only a fraction of the amount of losses incurred because of the June

2018 flooding. The combination of inadequate insurance and continued flooding resulting from

the City’s actions and inaction may jeopardize the Hospital’s ability to remain open.

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 27. An engineering firm retained by the Hospital has proposed remediation with

respect to the City’s stormwater sewer system that would ameliorate some of the flooding issues

caused by the City’s operation of the system, but the City has refused to act on that proposal. In

the meantime, the Hospital is spending significant funds in an attempt to mitigate the damage

from flooding.

Count I: Negligence

28. Paragraphs 1-27 are realleged and incorporated herein.

29. The City undertook to operate a stormwater sewer system within the City of

Rockford.

30. As a result, the City acquired a duty of care to the Hospital to maintain, keep in

good repair, and operate that stormwater sewer system in a manner that allows it to handle

rainfall without causing excess water to invade the Hospital’s campus.

31. The City has repeatedly breached that duty of care by failing to maintain, keep in

good repair and operate its stormwater sewer system in a manner that avoids invasion of water

from that system on the Hospital’s campus. Among the City’s negligent acts were the failure to

abide by its own ordinances governing the required capabilities of the system.

32. The City’s conduct resulting in the invasion of water to the Hospital premises on

June 18, 2018 and other dates was negligent.

33. As a proximate result of those breaches, the City has caused tens of millions of

dollars in flooding damage to the Hospital.

34. The City’s breaches threaten to cause future injury to the Hospital from flooding.

Count II: Intentional trespass

35. Paragraphs 1-34 are realleged and incorporated herein.

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 36. The Hospital had the right to the exclusive possession of its premises and land.

37. The City knew, based on previous flooding events, that flooding to the Hospital

was substantially certain to be caused by the manner in which the City operated its stormwater

sewer system.

38. On June 18, 2018, water from the City’s stormwater sewer system, and surface

runoff from the City’s streets and surrounding property, physically invaded the premises and

land of the Hospital. This invasion interfered with the Hospital’s right to the exclusive use and

possession of its property, and constituted a trespass.

39. The City’s actions were knowing and intentional.

40. The City’s actions and inactions proximately caused physical damage to the

buildings and equipment on the Hospital’s premises.

41. The City’s actions and inactions pose a high degree of certainty that the

Hospital’s right to exclusive possession will again be invaded when rainfall results in future

invasions of water to the Hospital’s premises.

Count III: Negligent trespass

42. Paragraphs 1-41 are realleged and incorporated herein.

43. The Hospital had the right to exclusive possession of its premises and land.

44. On June 18, 2018, water from the City’s stormwater sewer system, and surface

runoff from the City’s streets and surrounding property physically invaded the premises and land

of the Hospital.

45. This invasion interfered with the Hospital’s exclusive use and possession of its

property, and constituted a trespass.

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 46. The City’s failure to properly operate, maintain, and repair its stormwater sewer

system proximately caused the intrusion of water onto the Hospital’s property.

47. The City’s actions were negligent.

48. The City’s actions and inactions proximately caused physical damage to the

buildings and equipment on the Hospital’s premises, and interfered with the normal operation of

the Hospital.

49. The City’s actions and inactions pose a high degree of certainty that the

Hospital’s right to exclusive possession will again be invaded when rainfall results in future

invasions of water to the Hospital’s premises.

Count IV: Private nuisance

50. Paragraphs 1-49 are realleged and incorporated herein.

51. The Hospital had the right to use and enjoy the premises. The flooding of the

Hospital’s premises with stormwater from the City’s stormwater sewer system, and runoff from

City roads and surrounding land on June 18, 2018 constituted a substantial invasion of the

Hospital’s interest in the private use and enjoyment of the premises.

52. The City proximately caused the invasion of water on the Hospital’s premises

through its intentional and negligent operation, repair and maintenance of its stormwater sewer

system.

53. The invasion of water on the Hospital’s property was unreasonable.

54. The City’s actions and inactions proximately caused physical damages to the

buildings and equipment on the Hospital’s premises, and interfered with the normal operation of

the Hospital.

55. The City’s actions and inactions constituted a private nuisance.

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 56. The City’s actions and inactions pose a high degree of certainty that the

Hospital’s right to use and enjoy its premises will continue to be substantially interfered with

when rainfall results in future invasions of water to the Hospital’s premises.

Count V: Public nuisance

57. Paragraphs 1-56 are realleged and incorporated herein.

58. The public has a right to obtain health care, without potentially jeopardizing the

health or safety of members of the public, at hospitals licensed by the State of Illinois, including

at the Hospital. Further, members of the public have a right to visit and care for patients in a

hospital licensed to the State of Illinois without being potentially exposed to contaminated flood

water and dangerous conditions caused by flooding as a result of the City’s actions.

59. The flooding of the Hospital’s premises with stormwater on June 18, 2018 from

the City’s stormwater sewer system and runoff from City roads and surrounding land constituted

a substantial and unreasonable interference with those rights by interfering with the normal

operation of the Hospital, shutting down health care services for prolonged periods of time, and

creating dangerous conditions for patients, visitors and employees of the Hospital.

60. The City proximately caused the invasion of water on the Hospital’s premises

through its intentional and negligent actions and inactions.

61. The City’s actions proximately caused injury to the public.

62. The City’s actions and inactions constituted a public nuisance.

63. The City’s actions and inactions are likely to cause further injury to the public

when rainfall results in future invasions of water to the Hospital’s premises.

Count VI: Violation of the Eminent Domain Clause of the Illinois Constitution

64. Paragraphs 1-63 are realleged and incorporated herein.

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 65. Article I, Section 15 of the Illinois Constitution provides that “Private property

shall not be taken or damaged for public use without just compensation.”

66. Section 15 requires just compensation for two distinct types of injuries: the taking

of private property and damage to private property for public use.

Taking

67. The City’s construction, maintenance and operation of the municipal stormwater

sewer system caused an invasion of superinduced additions of water and pollutants to the

Hospital’s premises on June 18, 2018 and other dates.

68. The flooding caused by the City directly, immediately and radically interfered

with the Hospital’s enjoyment and use of its land.

69. The flooding caused by stormwater released by the City onto the Hospital’s land

was recurrent and well-known to the City.

70. The flood waters remained on the Hospital’s property for a prolonged period of

time, and the property was unable to be fully used as a result of the flood waters for months.

Operations had to be partially-suspended for prolonged periods of time, thus impairing the

Hospital’s usefulness.

71. The flooding was reasonably foreseeable to the City, and the City should have

known that the flooding would occur.

72. The damage inflicted by the flooding cost tens of millions of dollars to repair the

building and replace fixtures and equipment.

73. The flood waters were diverted and released from the City’s stormwater sewer

system to the Hospital by intentional and negligent acts of the City.

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 74. The City’s actions therefore constituted a temporary taking in violation of Section

15 of Article I of the Illinois Constitution for which just compensation is required.

Damage
75. The City’s actions resulted in a direct physical disturbance of rights which the

Hospital enjoyed in connection with its property, namely, the right to operate the Hospital and

earn revenues from the operation of the Hospital, the right to provide health services to the

public, and the right to be free from physical damage and destruction to the improvements,

fixtures and equipment and personal property on the premises of the Hospital.

76. The City’s actions therefore constituted damage in violation of Section 15 of

Article I of the Illinois Constitution for which just compensation is required.

Count VII: Section 1983 Claim for Violation of the Takings Clause of the
Fifth Amendment to the United States Constitution

77. Paragraphs 1 -76 are realleged and incorporated herein.

78. The Fifth Amendment to the United States Constitution provides in relevant part

that private property shall not be taken for public use without just compensation.

79. The Fifth Amendment Takings Clause is applicable to the states, and to their

political subdivisions, by virtue of the Fourteenth Amendment.

80. Title 42, Section 1983 of the United States Code, provides a private remedy for

those whose constitutional rights are violated by the actions of a government entity.

81. The Fifth Amendment protects a subset of the takings prohibited by the Illinois

Constitution. Therefore, any taking in violation of Article I, Section 15 of the Illinois

Constitution necessarily constitutes a violation of the Takings Clause.

82. The City’s actions therefore constitute a taking of private property for public use

for which just compensation is required.

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 PRAYER FOR RELIEF

Plaintiff therefore is entitled to, and prays for the following relief:

A. Preliminary and permanent injunctions:

a. Restraining the City from depositing or diverting water from its stormwater

sewer system onto the Hospital’s property;

b. Requiring the City to prevent water from its stormwater sewer system from

entering the Hospital’s property;

c. Requiring the City to make all improvements to its stormwater sewer system

and other infrastructure necessary to prevent the deposit or diversion of water

from that system onto the Hospital’s property.

B. Compensatory and punitive damages, attorney’s fees and costs.

Date: June 14, 2019 Respectfully submitted,

By: /s/ Chris Gair____________________

Chris Gair
Kristi L. Nelson
Ryan P. Laurie
Gair Eberhard Nelson Dedinas Ltd.
1 E. Wacker Drive, Suite 2600
Chicago, IL 60601
(312) 600-4900

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