JAMES NIZNIK ANDREA NIZNIK v. THE STATE OF ILLINOIS (2000)

ORDER

This claim for $25,000 damages against the respondent's Department of Transportation (IDOT) is before us on the claimant's amended complaint and IDOT's second motion to dismiss, which it styles as a/2-619 motion (Mtn. to Dismiss #2), and IDOT's motion to compel claimants to answer interrogatories and to respond to request for production of documents (IDOT Discovery Mtn.). We previously dismissed the original complaint for seeking solely economic loss damages on a tort theory. (Order of July 22, 1999 (Jann, J.).)

The amended complaint, which like the original complaint alleges that the claimants were the lessees of certain real estate in the City of Effingham, on which they operated a business named the Moos Dairy Bar, seeks damages allegedly caused by IDOT having impeded and disrupted the claimant's business by having (Comp., par. 4):

(a) impeded and restricted ingress and egress...;

(b) placed obstruction upon the parking area...;

(c) further limited access...by...the construction of curbs...;

(d) created noise, dust, dirt and mud...;

(e) damaged the property [leased by claimants] ... by virtue of the [forgoing] conduct...;

(f) damaged the property [leased by claimants] ... by taking a portion of said property permanently; [and]

(g) damaged the property [leased by claimants] by altering the natural drainage ... render said property more prone to flooding ...

Respondent's motion asserts that sub-paragraphs (c)-(g) of f4 are the sole changes --i.e. additions -- in the amended complaint; that those subparagraphs claim damages to the subject the claimants are mere lessees; that claimants cannot recover economic damages on a tort theory as this court previously held in this case; and that the claimants lack standing now to assert damage to real property that they lease but do not own (Motion to Dismiss #2, f6).

Respondent's motion is unsupported by a memorandum or by citation of authority. Claimant has not filed objections to the respondent's motions. Because the motion to dismiss, though styled as a/2-619 motion rather than a/2-615 motion, attacks the amended complaint on its face and as a matter of law, we take up the motion on its merits despite the lack of response by the claimants.

Initially, we do not accept the respondent's contention that the amended complaint sounds solely in tort, as did the original complaint, although this is not dispositive of the amended complaint. The amended complaint, fairly read, asserts both an uncompensated damaging and taking of real property, as well as repeating the prior tort allegations. We also do not agree that the claimant as lessee lacks standing as a per se matter of law to assert any damages to the property it leases.

A lease to real property creates a leasehold interest -- an interest in land -- which the law recognizes as property; leaseholds ordinarily entail at least a right to possession and peaceful enjoyment of the land (customarily but not necessarily exclusively) for some period of time usually denoted a term. Accordingly, damage to the underlying property either the res of the leasehold or some or all of the lessee's rights to use and enjoy the land may well damage the leasehold during the term. In such cases, the damage may well be cognizable as a property loss to the lessee. This, of course, depends on the particular injury and whether it adversely affects the particular leasehold or leasehold rights. As a matter of law, therefore, we cannot say that there exists no potential set of facts within the four corners of the amended complaint's allegations of damage and taking (f4 (f). f4 (g)) that could give rise to damages and thus constitute a cause of action.

On the other hand, we agree with the respondent that the renewed allegations, standing alone, of f4 (a)-(c) claim economic damages which are not cognizable under Illinois tort law and are barred here under the law of the case.

We also agree that the reformulated damage to land allegation of f4 (e), taken together with the allegations of f4 (a), (b) and (c) on which this damage allegation rests, fails to state a cause of action. This, however, is not due to the characterization of the damages as economic loss damages nor is this due to lack of standing as urged by the respondent. This failure is more substantive. The allegations of f4 (a), (b) and (c) simply do not rise to the level of a cognizable denial of roadway access rights under Illinois law. See, Goodman's Peppermill Restaurant, Inc. v. State of Illinois

51 Ill.Ct.Cl. 18 (1998), and cases cited therein. The facts alleged here are inadequate to give rise to a compensable taking or damaging of the land leased and used for claimant's business due to reduction or loss of access.

This brings the analysis back to the damage to land allegation of f4(f), standing alone, and to the drainage alteration allegation of f4(g). These paragraphs might state causes of action. However, the amended complaint is devoid of underlying facts that might support either of these conclusory allegations; this complaint is also devoid of factual allegations that could, if true, support a finding that IDOT caused damages to claimants leasehold interest in the property. In these regards the amended complaint is too factually deficient to withstand the motion to dismiss. Illinois is, after all, a fact pleading State.

Accordingly, we will grant the respondent's motion and will, on our own motion, allow the claimants leave to replead one more time.

WHEREFORE, it is hereby ORDERED:

1. Respondent's motion to dismiss the amended complaint is granted;

2. The amended complaint is dismissed, without prejudice;

3. Claimants are granted leave to file a second amended complaint within 35 days after the date of this order;

4. If claimants fail to file a second amended complaint within the time allowed in this order, this claim shall be dismissed by the clerk, with prejudice.

EPSTEIN, J.