Illinois Supreme Court Rules that an Increased Risk of Harm does not constitute an Injury
The Illinois Supreme Court recently held that an increased risk of future cannot be considered an injury and thereby dismissed a class action suit. The class action was filed on behalf of all Chicago residents whose water mains or meters were replaced or installed between January 2008 and January 2018.
In the case of Berry et. Al v. the City of Chicago, 2020 IL 124999 the Plaintiffs filed a suit before the Circuit Court of Cook County which alleged that the construction done by the City of Chicago, resulted in an increase in the level of lead in their drinking water. As per the class action complaint the City of Chicago was negligent in the replacement of water main and meters which supplied water to the residents and led to inverse condemnation thereby making water lines of the residents far more dangerous. In its reply, the City of Chicago moved to dismiss the complaint, by claiming that the Plaintiffs failed to state a claim in the complaint, and city’s immunity under the Local Governmental and Governmental Employees Tort Immunity Act. While adjudicating over the matter, the Illinois Supreme Court agreed with the City of Chicago and held that “an increased risk of future harm is not an injury”. The Supreme Court therefore denied the arguments put forth by the Plaintiffs and stated that the City of Chicago cannot be found negligent without an injury. It further held that the need for medical monitoring due to increased risk of lead exposure is not an injury as the need for medical monitoring would be based on the potential increased risk of harm, which as stated above, is not an injury. For further clarification, the Illinois Supreme Court stated that in a scenario where there is an injury, the plaintiff can recover for an increased risk of future harm. However, an increased risk of future harm cannot alone be considered an injury. Applying the same, it held that elevated lead levels in blood without any physical impairment or dysfunction, would not constitute an injury. Further, the Illinois Supreme Court stated that if, “the injury amounts only to an inconvenience or discomfort to the occupants of the property but does not affect the value of the property, it is not within the provision of the constitution even though a personal action would lie therefore. The injury complained of must also be actual, susceptible of proof and capable of being approximately measured, and must not be speculative, remote, prospective or contingent.” Also, the Plaintiffs’ allegations of “dangerousness” are not susceptible to objective measurement. Therefore, it could not by itself be considered a damage under the “takings clause” of the Illinois constitution. Lastly, the Plaintiffs did not allege any depreciation to their property value, which was necessary in this case.
With this recent judgment of the Illinois Supreme Court, it is made clear that in order to claim damages for an injury, the plaintiffs must have sustained or realized harm, rather than a mere increased risk of harm.