Avery v. GRI Fox Run, LLC ( 2020 )

2020 IL App (2d) 190382No. 2-19-0382
Opinion filed April 15, 2020
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
BRIAN AVERY and CAROLYN AVERY, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiffs-Appellants, )
)
v. ) No. 18-L-686
)
GRI FOX RUN, LLC, and ROUNDY’S )
ILLINOIS, LLC, ) Honorable
) Bonnie M. Wheaton,
Defendants-Appellees. ) Judge, Presiding.
JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices Schostok and Brennan concurred in the judgment and opinion.
OPINION
¶ 1 Plaintiffs, Brian and Carolyn Avery, sued defendants, GRI Fox Run, LLC (Fox Run), the owner
of a strip mall, and Roundy’s Illinois, LLC (Mariano’s), the operator of Mariano’s Fresh Market
grocery store (Mariano’s store). Plaintiffs sought (1) to enjoin, via private enforcement (65 ILCS
5/11-13-15 (West 2018)), alleged violations of the City of Naperville’s (City) land-use ordinance
and (2) damages for alleged noise, light, and air nuisances arising from the operation of the
Mariano’s store. The trial court granted defendants’ motions to dismiss (735 ILCS 5/2-615 (West
2018)) plaintiffs’ second amended complaint, with prejudice. Plaintiffs appeal, arguing that the trial
court erred in dismissing their complaint and in denying their oral motion to file a third amended
complaint. We reverse and remand.
2020 IL App (2d) 190382¶2 I. BACKGROUND
¶ 3 On June 13, 2018, plaintiffs sued defendants. In July 2018, after the strip mall was sold,
plaintiffs moved for leave to file a first amended complaint, to substitute Fox Run (for Bradford
Fox Run, LLC) as a defendant. The trial court granted plaintiffs’ motion. On November 16, 2018,
the trial court dismissed plaintiffs’ first amended complaint (see id.), without prejudice, finding
that the complaint’s allegations lacked specificity, were conclusory, and were insufficient for the
court to determine if the Moorman doctrine would apply (see Moorman Manufacturing Co. v.
National Tank Co., 91 Ill. 2d 69 (1982)).
¶ 4 On January 14, 2019, plaintiffs filed a second amended complaint in which they alleged that
they own a home in a residential neighborhood, at 1367 Hunter Circle in Naperville. The home
was built in 1991, Brian purchased it in 1994, and Carolyn started living there in 1998. The home
has a fenced-in backyard, along with a deck and an in-ground pool.
¶ 5 Fox Run owns two parcels of property at 1212 South Naper Boulevard in Naperville. The
Mariano’s store occupies and operates on one of the parcels (Mariano’s property). The front of the
Mariano’s property faces west toward Naper Boulevard, with loading docks behind the building
on the east side. The rear of the Mariano’s property abuts the rear property line of plaintiffs’
property.
¶ 6 When plaintiffs moved into their home, the Mariano’s property was occupied by a Dominick’s
grocery store. At the time, the Dominick’s property was zoned “R1A Low Density Single-Family
Residence District Planned Unit Development.” Dominick’s, plaintiffs alleged, erected a large
fence to shield its residential neighbors from its loading-dock activities. It also maintained large
conifer trees that shielded the store’s operations from the residential neighborhood behind it. A
large grassy retention area also buffered the Dominick’s building from
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2020 IL App (2d) 190382part of the residential neighborhood behind it, including plaintiffs’ property. The Dominick’s
loading-dock operations and truck deliveries were distant from plaintiffs’ property and the volume,
frequency, time-of day, or duration of noise did not disturb plaintiffs. Nor did they violate the
City’s zoning regulations. During the years of the Dominick’s operations, the exterior lighting did
not shine excessive brightness or glare onto plaintiffs’ property. Nor did the noise and odors from
the loading-dock operations and truck deliveries interfere with plaintiffs’ quiet and peaceful use
of their property. In late 2013, Dominick’s ceased operations at the Mariano’s property.
¶ 7 In August 2014, Mariano’s leased the Mariano’s property. In April 2015, the property was
rezoned as a “B2 Commercial Shopping Center District.” Afterward, the building that Dominick’s
occupied was demolished, and a new building was constructed to house the Mariano’s store.
Plaintiffs alleged that the Mariano’s building’s location was substantially different from the
Dominick’s store’s location. The building and the loading dock were farther east and north, so the
building was substantially closer to plaintiffs’ property. A section of the retention area was
excavated and removed, and the area is now paved and serves as an approach and departure area
for Mariano’s trucks.
¶ 8 Plaintiffs further alleged that the truck-delivery approach and departure area is now directly
behind their property and that no fencing or other noise barriers shield residential owners,
including plaintiffs, directly behind the loading dock area. Further, the large conifer trees that
buffered noise, light, and plaintiffs’ view of the Dominick’s operations were destroyed by
defendants’ excavation and construction of the Mariano’s store. The Mariano’s operations,
according to plaintiffs, are substantially different from the Dominick’s operations,- in that
Mariano’s has many more deliveries―including during early-morning hours and late into the
night―and the deliveries are closer to plaintiffs’ property and much louder. Further, the Mariano’s
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2020 IL App (2d) 190382operations, including activities at the loading docks and the approach and departure areas and the
resulting traffic, are not shielded. Their impact is perceptible at plaintiffs’ property. Other
businesses’ operations at the strip mall, they noted, have not changed in any perceptible way.
¶ 9 Plaintiffs alleged that, under the relevant Naperville zoning regulations, noise levels for
commercial uses may not exceed 62 decibels during the hours of 7 a.m. to 7 p.m. The regulations
also provide that noise levels for commercial uses may not exceed 55 decibels from 7 p.m. to 7
a.m. City of Naperville Municipal Code § 6-14-4 (amended Sept. 6, 2016) (Noise Ordinance).
¶ 10 According to plaintiffs, the Mariano’s operations violate the Noise Ordinance, because the
noise generated by trucks at the property are audible at plaintiffs’ property line and exceeds
allowable limits. Truck traffic at the loading docks directly west of plaintiffs’ property has
increased greatly due to the number of trucks that make deliveries to the store “at all hours of the
day and night”. The truck traffic is audible at plaintiffs’ property line and has greatly increased
since the Dominick’s operations. Plaintiffs further alleged that, “[t]ests conducted according to the
testing methods specified in the Noise Ordinances, using properly calibrated sound level meters,
have found that the truck noise from deliveries to the Mariano’s significantly exceeds allowable
limits.”
¶ 11 Plaintiffs further alleged that the city’s measurements testing at the property line determined
that truck-delivery noise from the Mariano’s operations exceeded the Noise Ordinance’s
permissible decibel levels on several dates in 2016 and 2017, including May 12, 17, and 23, 2016;
June 1, 3, 7, 22, 23, and 27, 2016; July 5 and 6, 2016; August 4, 2016; and January 11 and 18,
2017. The city issued citations for the truck noise, and Mariano’s pleaded guilty and paid $1000
in fines for the violations occurring on January 11 and 18, 2017. Plaintiffs asserted that the citations
have not deterred Mariano’s or changed its truck-delivery practices and conduct
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2020 IL App (2d) 190382and that it continues to violate the Noise Ordinance. The truck noise continues to exceed the
ordinance’s limits “virtually every day,” including May 7, 8, 15, 21, and 22, 2018; June 2, 2018;
and November 19, 2018. During one 24-hour period in the fall of 2018, there were more than100
ordinance violations in the day and night. According to plaintiffs, they “often” experience noise
levels of 100 decibels or more from the truck traffic. Truck-delivery noise, they asserted, violates
the Noise Ordinance and is continuous and ongoing.
¶ 12 Plaintiffs asserted that defendants know of the violations but have failed to remedy the issues.
In addition to the foregoing violations, plaintiffs alleged that the City had also cited Mariano’s on
June 17, 22, and 29, 2016, for allowing deliveries prior to 6 a.m. Mariano’s paid
$250 in fines for each of these violations. On June 23, 2016, a Mariano’s representative
acknowledged and apologized to a City representative for the Noise Ordinance violations. Further,
in 2016, Mariano’s representatives corresponded with City representatives concerning noise-
abatement methods, including noise-baffling fences; use of electric-powered rather than diesel-
powered trailers; and ceasing the use of mobile refrigerated units. Mariano’s solicited bids for
sound-abatement panels but never installed them or implemented any sound-abatement measures.
In 2016, the City notified Mariano’s that its business operations were affecting the quality of life
of the store’s residential neighbors.
¶ 13 On July 19, 2017, Brian, wrote to Mariano’s counsel about the ordinance violations at the
property. After receiving no response, on February 27, 2018, he sent a second letter. Between
March and May 2018, Brian and Mariano’s counsel exchanged correspondence about the
disturbances and the ordinance violations. (In April 2018, Brian wrote to Fox Run and the City.)
On May 2, 2018, Brian and counsel for plaintiffs and Mariano’s met at the loading docks at the
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2020 IL App (2d) 190382Mariano’s property to address the Noise Ordinance violations. Neither Mariano’s nor Fox Run
took any action to abate the problems.
¶ 14 In count I, directed against Fox Run, plaintiffs alleged violations of the Noise Ordinance and
sought an injunction, under section 11-13-15 of the Illinois Municipal Code (65 ILCS 5/11- 13-15
(West 2018)), to prevent Fox Run from allowing the use of the Mariano’s property in violation of
the ordinances (including loading-dock activities and deliveries, which exceed allowable decibel
levels) and ordering it to comply with such regulations. They also sought orders directing Fox Run
to remove any materials or equipment used in connection with the unlawful business operated on
the property and to restore the property to a condition appropriate forlawful uses within the zoning
regulations, and they sought attorney fees and costs.
¶ 15 In count II, directed against Mariano’s, plaintiffs alleged that the Mariano’s operations violate
the Noise Ordinance (including loading-dock activities and deliveries, which exceed allowable
decibel levels) and directly impact plaintiffs’ use and enjoyment of their property, disrupt their
peace and quiet, invade their privacy, and cause health issues. They sought an injunction to prevent
Mariano’s from using the property in violation of the Noise Ordinance and an order directing
Mariano’s to comply with it. See 65 ILCS 5/11-13-15 (West 2018). They also sought an order
directing Mariano’s to remove any materials or equipment used in connection with the unlawful
business on the property and sought attorney fees and costs.
¶ 16 In count III, directed against Mariano’s, plaintiffs alleged a private nuisance. They asserted
that violations of the Noise Ordinance by Mariano’s constitute substantial and unreasonable
invasions of their interest, use, and enjoyment of their property. According to plaintiffs, the noise
pollution constitutes a substantial and continuing invasion and interferes with plaintiffs’ interest
in the use and enjoyment of their property and makes life uncomfortable for them. Deliveries to
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2020 IL App (2d) 190382the property between 10 p.m. and 6 a.m. create a nuisance “per the City of Naperville citations
previously issued to Mariano’s.” These deliveries, according to plaintiffs, are “frequent,” and they
started on May 12, 2016, and continue at least weekly, including in 2016 (June 17, June 22, and
June 29), 2017 (August 24 and October 2), and 2018 (February 23, May 8, May 15, June 9, and
November 19).
¶ 17 Plaintiffs asserted that the air pollution and noxious odor generated by the diesel-truck traffic
are perceptible at their property, are unreasonably odorous, and exceed the levels of the American
Conference of Governmental Industrial Hygienists (ACGIH). Plaintiffs alleged that the nitrogen
dioxide levels are at least 0.36 ppm, which is nearly double the ACGIH standard. Nitrogen dioxide
comes from burning fuel, as do the trucks that make deliveries to the Mariano’s property. The
nitrogen dioxide invading plaintiffs’ property is caused by trucks’ making deliveries, and idling.
The odors- constitute substantial and continuing invasions of and
interferences with plaintiffs’ interest in the use and enjoyment of their property, are physically
offensive to the senses, unreasonably interfere with plaintiffs’ ability to enjoy their property, and
make life uncomfortable for them. The air pollution and noxious odors, according to plaintiffs,
started on May 12, 2016, and are continuing daily (and are worse during the summer).
¶ 18 Plaintiffs further alleged that Mariano’s has been notified and knows of the noise and odor
invasions but has not remedied the issues. Further, it owed and owes a duty of care, but it breaches
that duty by failing to prevent unreasonable noise and air pollution from invading plaintiffs’
property. Mariano’s violations of applicable regulations and laws are negligent and/or done with
conscious disregard for the damage to plaintiffs.
¶ 19 Plaintiffs alleged that the market value of their property has substantially decreased. They
have also suffered inconvenience, health issues, annoyance, discomfort, disruptions to their peace
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2020 IL App (2d) 190382and quiet, invasions of privacy, and the inability to fully use and enjoy their property. They sought
damages for (1) the difference in the market value of their property and (2) “the inconvenience[,]
health issues, annoyance, discomfort, and the inability to fully use and enjoy” their property.
Plaintiffs also sought punitive damages for any willful and wanton acts.
¶ 20 In count IV, brought against Fox Run, plaintiffs again alleged a private nuisance and sought
(1) damages for the difference in the market value of their property caused by Fox Run’s acts,
(2) damages for their inconvenience, health issues, and discomfort, and (3) punitive damages. In
this count, plaintiffs alleged that the exterior lights in the strip mall are unreasonably bright, point
directly at their property, and are visible there. In early 2017, plaintiffs installed in their rear
windows plantation shutters to help block out the illumination from the exterior lights. The light
pollution, they alleged, started in the fall of 2016, when the trees that buffered the exterior lights
were removed, and it has been continuous and ongoing. The light pollution constitutes a substantial
and continuing invasion of and interference with their interest in the use and enjoyment of their
property. It physically offends the senses, unreasonably interferes with plaintiffs’ ability to enjoy
their property, and makes their lives uncomfortable. Further, the ordinance violations by
Mariano’s, along with the noise and air pollution, are substantial, continuing, and unreasonable
invasions of plaintiffs’ interest, use, and enjoyment of their property. The noise generated by truck
traffic and deliveries to the Mariano’s property is audible at plaintiffs’ property, is unreasonably
loud, and far exceeds the allowable limits in the Noise Ordinance. Deliveries to Mariano’s between
10 p.m. and 6 a.m. create a nuisance “per City of Naperville citations previously issued to
Mariano’s.” The deliveries started on May 12, 2016, and are frequent, and continuing at least
weekly, including June 17, 22, and 29, 2016; August 24 and October 2, 2017; February 23, 2018;
May 8, 15, and 21, 2018; June 9, 2018; and November 19, 2018. The air pollution and noxious
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2020 IL App (2d) 190382odor generated from the diesel-truck traffic and deliveries are perceptible at plaintiffs’ property,
are unreasonably odorous, and exceed the ACGIH standards. The air pollution and noxious odors
started on May 12, 2016, and are continuing daily, and the noise, light, and odor invasions are
continuing and ongoing. The Mariano’s operations, they asserted, violate Mariano’s lease with
Fox Run, and Fox Run has notice of this but refuses to enforce the lease terms. Fox Run is violating
the Noise Ordinance, because it is the owner of the property on which the violations are occurring.
Fox Run owes a duty to exercise ordinary care, but it has been breaching that duty with its and its
tenant’s unreasonable invasion of plaintiffs’ property with noise, air, and light pollution.
¶ 21 Finally, we note that plaintiffs initially alleged that they brought their suit “to recover direct
and consequential property damages.” Plaintiffs attached to their complaint copies of the relevant
regulations.
¶ 22 On February 13, 2019, Mariano’s moved to dismiss plaintiffs’ second amended complaint
(735 ILCS 5/2-615 (West 2018)), arguing that, like the earlier complaints, the pleading was
premised upon conclusory allegations and lacked even minimal facts to support their causes of
action. Specifically, as to the ordinance-violation count, Mariano’s argued that plaintiffs failed to
assert that they complied with the Noise Ordinance’s express testing standard,-but instead alleged
vague and general claims that they are being inconvenienced by noise from the Mariano’s
operations. As to the private-nuisance count, Mariano’s argued that the use of the site for a grocery
store is reasonable and that the fact that the Mariano’s store might be more successful than the
Dominick’s store is not a basis to assert tort liability when the use was long in place (including
when plaintiffs purchased their home) and is appropriate and beneficial to the location and the
community. Mariano’s also asserted that the nuisance claim was barred by the Moorman
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2020 IL App (2d) 190382economic-loss doctrine, because plaintiffs failed to set forth any specific damages to their person
or property.
¶ 23 Also on February 13, 2019, Fox Run moved to dismiss (see 735 ILCS 5/2-615 (West 2018))
plaintiffs’ second amended complaint, arguing that plaintiffs failed to plead sufficient facts
showing any Noise Ordinance violation and that the private-nuisance claim was barred by the
Moorman doctrine, because it is a tort claim seeking only economic damages.
¶ 24 On April 12, 2019, the trial court granted defendants’ motions to dismiss, with prejudice. The
court found that plaintiffs’ complaint lacked specificity concerning “the testing that was done, at
what time, by whom, and all of the other” Noise-Ordinance requirements. As to the private-
nuisance count, the court determined that the Moorman doctrine barred the claim, because
plaintiffs seek economic damages. “They may be couched in other terms, but in their essence, the
claims are seeking monetary damages only.” Plaintiffs’ counsel orally moved for leave to amend
plaintiffs’ complaint, asserting that there were “test results on specific dates for specific times.”
The trial court denied plaintiffs’ oral motion for leave to amend their pleading. Plaintiffsappeal.
¶ 25 II. ANALYSIS
¶ 26 Plaintiffs’ second amended complaint was dismissed pursuant to section 2-615 of the Code
of Civil Procedure (Code) (id.). A section 2-615 motion to dismiss challenges the legal sufficiency
of a complaint, based on defects apparent on its face. Marshall v. Burger King Corp., 222 Ill.2d
422, 429 (2006). In reviewing the sufficiency of the complaint, we take all well-pleaded facts as
true and construe the allegations in the complaint in the light most favorable to the plaintiff.
Henderson Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 61. “[A]
cause of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that
no set of facts can be proved that would entitle the plaintiff to recovery.” Marshall, 222 Ill. 2d at
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2020 IL App (2d) 190382429. We review de novo an order granting a section 2-615 motion to dismiss. Henderson Square,
2015 IL 118139, ¶ 61.
¶ 27 Illinois is a fact-pleading jurisdiction. Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439,
451 (2004). Although pleadings are to be liberally construed, with the aim of doing substantial
justice between the parties, this rule does not relieve a plaintiff from including sufficient factual
averments in his or her complaint. People ex rel. Kucharski v. Loop Mortgage Co., 43 Ill. 2d 150,
152 (1969). While the plaintiff is not required to set forth evidence in his or her complaint, the
plaintiff must allege facts sufficient to bring a claim within a legally recognized cause of action, not
simply conclusions. Marshall, 222 Ill. 2d at 429. A pleading that merely paraphrases the elements
of a cause of action in conclusory terms is insufficient. Welsh v. Commonwealth Edison Co., 306
Ill. App. 3d 148, 155 (1999). A complaint will be deemed sufficient if the allegations contained
therein “reasonably inform the defendants by factually setting forth the elements necessary to state
a cause of action.” People ex rel. Scott v. College Hills Corp., 91 Ill. 2d 138, 145 (1982).
¶ 28 A. Noise Ordinance Violations
¶ 29 In counts I and II, plaintiffs alleged that defendants violated, and continue to violate, the Noise
Ordinance. The trial court found that plaintiffs’ complaint lacked specificity concerning “the
testing that was done, at what time, by whom, and all of the other” ordinance requirements. On
appeal, plaintiffs argue that the trial court erred in dismissing these counts, because (1) their
complaint reasonably informed defendants of their noise-ordinance-violation claims and
(2) Illinois law does not require plaintiffs to set forth evidence in their complaint. For the following
reasons, we agree with plaintiffs.
¶ 30 Section 11-13-15 of the Illinois Municipal Code provides:
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2020 IL App (2d) 190382“In case any building or structure, including fixtures, is constructed, reconstructed, altered,
repaired, converted, or maintained, or any building or structure, including fixtures, or land,
is used in violation of an ordinance or ordinances adopted under Division 13, 31 or 31.1 of
the Illinois Municipal Code, or of any ordinance or other regulation made under the
authority conferred thereby, the proper local authorities of the municipality, or any owner
or tenant of real property, within 1200 feet in any direction of the property on which the
building or structure in question is located who shows that his property or person will be
substantially affected by the alleged violation, in addition to other remedies, may institute
any appropriate action or proceeding (1) to prevent the unlawful construction,
reconstruction, alteration, repair, conversion, maintenance, or use, (2) to prevent the
occupancy of the building, structure, or land, (3) to prevent any illegal act, conduct,
business, or use in or about the premises, or (4) to restrain, correct, or abate the violation.”
65 ILCS 5/11-13-15 (West 2018).
¶ 31 The statute “provides a mechanism for property owners to seek redress for ordinance
violations on neighboring properties.” Fox Valley Families Against Planned Parenthood v.
Planned Parenthood of Illinois, 2018 IL App (2d) 170137, ¶ 4. Section 11-13-15’s purpose “is to
afford relief to private landowners in cases where municipal officials are slow or reluctant to act,
or where their actions do not protect the landowners’ interests.” Dunlap v. Village of Schaumburg,
394 Ill. App. 3d 629, 638 (2009). Courts may issue restraining orders or preliminary or permanent
injunctions. 65 ILCS 5/11-13-15 (West 2018). “An owner or tenant need not prove any specific,
special or unique damages to himself [or herself] or his [or her] property or any adverse effect
upon his [or her] property from the alleged violation in order to maintain a suit under the foregoing
provisions.” Id.- 12 -
2020 IL App (2d) 190382¶ 32 The Noise Ordinance, as plaintiffs note, provides that commercial noise levels may not exceed
62 decibels from 7 a.m. to 7 p.m. and 55 decibels from 7 p.m. to 7 a.m. It also provides:
“1. Noise: The decibels generated from a use shall not exceed the exterior noise
limitations set forth in table 1 of this Section as measured at the property line of the parcel
from which the noise is generated. The decibels typically generated by particular uses are
given in table 2 of this Section.
1.1. Measurement Of Noise: Noise shall be measured at the property line of the
parcel from which the noise is generated. Noise shall be muffled so as not to become
violative of applicable standards due to intermittence, beat frequency, shrillness, or
intensity. The sound pressure level shall be measured with a sound level meter and
an octave band analyzer that conforms to ANSI S1.4-1983 (American [N]ational
[S]tandards [I]nstitute) specifications, or any successor standard promulgated by
ANSI. Preferred frequencies for acoustical measurements shall be used.” City of
Naperville Municipal Code § 6-14-4(1), (1.1) (amended Sept. 6, 2016).
¶ 33 The Noise Ordinance lists several exemptions to the foregoing restrictions, including daytime
building or construction work and grounds landscape maintenance (excluding golf courses)
(allowed between 7 a.m. and 7 p.m.), landscape maintenance by a commercial landscape contractor
on property improved with single-family and duplex residential structures (not allowed before 8
a.m. or after 6 p.m. on Saturdays and Sundays), snowplowing, and using emergency generators,
warning devices, and emergency equipment/vehicles. Id.
¶ 34 Plaintiffs argue that their second amended complaint reasonably informed defendants of their
claims for Noise-Ordinance violations. They note that, in the trial court, defendants took
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2020 IL App (2d) 190382issue with facts allegedly missing from the complaint, including what noises are being heard, when
noises are being heard, what decibel levels are being measured, and what testing method was used
to measure decibel levels. Plaintiffs assert that the trial court ignored the numerous factual
allegations in the complaint that specified the type of noise and when it was heard, the decibel
levels measured, and the testing method utilized. Specifically, they alleged that “noise decibels
generated by the trucks at the Mariano’s Property are audible at [plaintiffs’] property line,”
“[m]easurements taken by the City of Naperville at the property line pursuant to the Noise
Ordinances determined that the truck delivery noise from [the] Mariano’s operations exceeded the
permitted decibel level on many dates in 2016 and 2017,” and “[s]ince May 12, 2016, [the]
Mariano’s truck delivery operations have not changed.” Plaintiffs also note that they alleged that
testing was “conducted according to testing methods specified in the Noise Ordinances.” Plaintiffs
further point to their allegations that the truck noise “continues to exceed the limits permitted in
the Noise Ordinances virtually every day, including, but not limited to, the following dates in 2018:
May 7, May 8, May 15, May 21, May 22, June 2 and November 19.” They also alleged that truck
traffic often caused noise levels of “100 decibels or more.” The foregoing allegations, plaintiffs
argue, show that their complaint stated all necessary facts and that defendants have been on notice
of these facts for almost two years. Dismissal, they urge, was not proper, because the complaint
reasonably informed defendants of plaintiffs’ claims under the Illinois Municipal Code, and, they
add, gathering of the level of detailed information defendants seek, if relevant, is better suited for
discovery.
¶ 35 Defendants respond that the trial court correctly dismissed plaintiffs’ claims, because the
complaint was comprised of factual conclusions unsupported by allegations of specific facts
necessary to recover under the asserted theory. Plaintiffs were required to plead facts establishing
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2020 IL App (2d) 190382that they have been substantially affected by violations of the Noise Ordinance. Alleging past
violations or discomfort based upon noises heard (even daily) is not, defendants argue, sufficient
to state a claim. The Noise Ordinance standards, they note, provide that noise levels must be
measured at the property line; muffled to avoid intermittence, beat frequency, shrillness and
intensity; and measured in accordance with ANSI standards. Measurements must also account for
the sources of the noises and whether they are allowed to exceed the prohibited limits. Defendants
assert that plaintiffs failed to allege specific facts from which to determine whether the Noise
Ordinance covered the alleged noises that were tested. The ordinance excepts noise generated by
daytime construction operations, landscape maintenance, valves, warning devices, emergency
equipment, snowplows, and emergency generators. Without facts, defendants assert, there is no
way to determine if plaintiffs are claiming that the unwanted noise is attributable to trucks traveling
along the path behind the strip mall or idling at the loading dock (or elsewhere along the path) or
to a single truck releasing its air brakes. They also argue that, without identifying when the alleged
violations occurred, there is no way to determine if the trucks were delivering to the Mariano’s
store or another mall tenant,- or whether the occurrence alleged to have been measured was a single
event or involved a delivery outside of the usual course of business.
¶ 36 Defendants further assert that plaintiffs did not allege that they measured sound levels or
identified the sound-testing equipment that was used. Even if they did, defendants continue, there
is no indication that they measured discrete noise emanating solely from the Mariano’s operations.
The tests, defendants suggest, might have measured ambient noise from plaintiffs’ own home and
their neighbors’ homes, lawn mowers, car and truck traffic from both their subdivision and the
Mariano’s property, and the multiple commercial businesses that their home abuts, all of which
could produce false readings. Defendants argue that plaintiffs’ assertion that they complied with
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2020 IL App (2d) 190382the Noise Ordinance testing methods is misleading, because their allegations do not inform
defendants whether plaintiffs conducted any testing and the pleadings refer only to prior testing
conducted by the City. Further, defendants contend that the complaint contains conclusory
statements and legal conclusions. Allegations that the noises are audible at plaintiffs’ property,
and continue to exceed the limits virtually every day, and that truck traffic noise often exceeds 100
decibels are conclusory, they maintain, and not sufficient. Further, defendants argue, the
allegations are vague, do not reasonably apprise them as to whether any testing was done, and, if
it was done, what was tested for and the results obtained. Plaintiffs’ allegations that tests were
conducted according to the Noise Ordinance testing methods and showed that truck noise from
deliveries to the Mariano’s store significantly exceeded allowable limits are conclusory, because
they merely mirror the elements of the measurements of noise specified in the ordinance.
¶ 37 The trial court found that plaintiffs’ complaint lacked specificity concerning “the testing that
was done, at what time, by whom, and all of the other” ordinance requirements. “The law in Illinois
with respect to pleading ‘ultimate’ facts rather than ‘conclusions of law’ is not clear. The same
allegation may in one context be a proper allegation of ultimate fact, while in another context, where
from a pragmatic viewpoint some of the words do not give sufficient information to an opponent
of the character of evidence to be introduced or of the issues to be tried, the allegation may be
deemed to be an allegation of a legal conclusion.” J. Eck & Sons, Inc. v. Reuben H. Donnelley
Corp., 213 Ill. App. 3d 510, 514 (1991). A section 2-615 motion accepts all well- pleaded facts as
true, and a defendant may not contest the factual allegations in the complaint. Reynolds v. Jimmy
John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 26 (a summary judgment motion is the
proper vehicle to address a complaint’s factual allegations).
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2020 IL App (2d) 190382¶ 38 We conclude that the trial court erred in dismissing plaintiffs’ Noise Ordinance claims.
Consistent with the ordinance’s requirements, plaintiffs alleged that their property is within 1200
feet of and abuts the Mariano’s property and that the truck-traffic noise from the Mariano’s
operations is audible at their property line. They also alleged that “[t]ests conducted according to
the testing methods specified in the Noise Ordinances, using properly calibrated sound level
meters, have found that the truck noise from deliveries to the Mariano’s significantly exceeds
allowable limits.” Aside from the allegations concerning the violations for which Mariano’s had
already been cited by the City, which are not relevant in assessing whether plaintiffs stated a claim,
plaintiffs further alleged that the truck noise continues to exceed allowable limits “virtually every
day,” including May 7, 8, 15, 21, and 22, 2018; June 2, 2018; and November 19, 2018. They added
that during a 24-hour period in the fall of 2018 there were over 100 instances of ordinance
violations in the day and night. Plaintiffs also asserted that the violations are continuous and
ongoing. We disagree with defendants that the allegations lack specificity in that they do not
specify the results of the testing (specifically, by how much the measurements exceeded the
ordinance’s decibel limits) or the times of day the measurements were taken (which could identify
the types of activities that generated the noises). As plaintiffs note, the law does not require
plaintiffs to set forth evidence in their complaint. Through discovery, evidence can be sought
concerning what testing was done and the measurements taken from plaintiffs’ property. Further,
defendants can challenge, for example, the validity of the test results, the equipment utilized, and
other aspects of plaintiffs’ allegations. We disagree with defendants’ assertion that plaintiffs
merely recited the elements of an ordinance-violation claim. The allegation that “[t]ests conducted
according to the testing methods specified in the Noise Ordinances” consists, in our view, of
sufficiently specific facts concerning the testing, as does the allegation that the noise from truck
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2020 IL App (2d) 190382deliveries to the Mariano’s store significantly exceeds allowable limits. Finally, plaintiffs’
allegations specify that truck-traffic is the noise source at defendants’ property. Thus, contrary to
defendants’ assertions, plaintiffs need not have pleaded that any ordinance exception does not
apply.
¶ 39 In summary, the trial court erred in dismissing plaintiffs’ Noise-Ordinance-violation claims.
¶ 40 B. Private Nuisance
¶ 41 Next, plaintiffs argue that the trial court erred in dismissing their private-nuisance claims.
They assert that (1) their complaint contained sufficient factual allegations and (2) the Moorman
doctrine does not bar the claims. For the following reasons, we conclude that plaintiffs cannot seek
damages for the decrease in the market value of their home but that the trial court otherwise erred
in dismissing the nuisance claims, because plaintiffs also sought damages for inconvenience, health
issues, annoyance, discomfort, and the inability to fully use and enjoy their property.
¶ 42 1. Sufficiency of Allegations
¶ 43 Plaintiffs first argue that their complaint contained sufficient factual allegations of a private
nuisance. The trial court did not address this issue. We conclude that there were sufficient factual
allegations and that the claims should not have been dismissed on this basis.
¶ 44 A private nuisance is an invasion of another’s interest in the use and enjoyment of his or her
land and must be substantial, either intentional or negligent, and unreasonable. In re Chicago
Flood Litigation, 176 Ill. 2d 179, 204 (1997). Whether particular conduct constitutes a nuisance
is determined by the conduct’s effect on a reasonable person. Id. Unlike a trespass, a nuisance is
an interference with the interest in the private use and enjoyment of the land and does not require
interference with the possession. Id. (citing Restatement (Second) of Torts § 821D cmt. d, at 101
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2020 IL App (2d) 190382(1979)). Nevertheless, “the interference with the use and enjoyment of property must consist of an
invasion by something perceptible to the senses,” “ ‘something that is offensive, physically, to the
senses and by such offensiveness makes life uncomfortable.’ ” (Emphasis added.) Id. at 205
(quoting Rosehill Cemetery Co. v. City of Chicago, 352 Ill. 11, 30 (1933)). Common examples
of a private nuisance are smoke, fumes, dust, vibration, or noise produced by the defendant on its
own land and impairing the use and enjoyment of the neighboring land. Id. at 205-06. Private
nuisance is a tort. Id. at 206. “In an action to enjoin a private nuisance, the circuit court must
balance the harm done to the plaintiffs against the benefit caused by the defendant’s use of the land
and the suitability of the use in that particular location.” Dobbs v. Wiggins, 401 Ill. App. 3d 367,
376 (2010). Whether a complained-of activity constitutes a nuisance is generally a factual question.
See, e.g., Schweihs v. Chase Home Finance, LLC, 2015 IL App (1st) 140683, ¶ 40.
¶ 45 Plaintiffs maintain that they sufficiently alleged claims for a private nuisance, because their
complaint contained allegations concerning the noise and air pollution emanating from the
Mariano’s property. They alleged that the noise pollution is perceptible at their property,
unreasonably interferes with their ability to enjoy their property, and makes life uncomfortable for
them. They also alleged various injuries, including health issues, annoyance, discomfort,
disruption, invasions of privacy, and the inability to fully use and enjoy their property. Plaintiffs
further alleged that defendants have knowledge of their violations and continue to knowingly
violate the Noise Ordinance. The Mariano’s operations, they asserted, are substantially different
from the Dominick’s operations and involve more deliveries, deliveries early in the morning and
late at night, and deliveries much closer to plaintiffs’ property (and much louder for them).
Mariano’s, they asserted, revamped its leased premises, moved the loading docks closer to
plaintiffs’ property line, and substantially changed the business operations at the site. Plaintiffs
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2020 IL App (2d) 190382also point out that their allegations of air and noxious-odor pollution were similarly specific and
included that the air pollution is unreasonably odorous and nearly double the ACGIH standard and
that light pollution generated by the exterior lights is visible at their property and is unreasonably
bright. Finally, they argue that they did not move to the nuisance but that they suffer due to
Mariano’s conduct. They maintain that the Mariano’s store’s success has nothing to do with this
case; rather, Mariano’s cannot operate without regard for the harm it is causing its neighbors.
¶ 46 Defendants respond that plaintiffs failed to allege well-pleaded facts to state claims for a
private nuisance. They assert that the complaint contains conclusory, unsupported, and unspecified
facts and merely paraphrases elements of a private-nuisance action. Defendants contend that the
complaint does not provide specific facts concerning what portion of the property cannot be used
due to the alleged nuisance; how plaintiffs cannot use or enjoy their property due to the alleged
noise, light, or odor; how life is uncomfortable due to the alleged nuisance; or what
inconveniences, health issues, and discomforts plaintiffs have suffered. Further, defendants argue
that the complaint is so vague and conclusory as to the alleged nuisance that it is impossible to
determine whether the conduct is unreasonable.
¶ 47 Finally, defendants maintain that plaintiffs came to the nuisance and that, when plaintiffs
purchased their home, they knew it was directly behind a commercial strip mall with an existing
grocery store that, they note, was planned for future commercial development. The property is
being operated as a grocery store, and plaintiffs have not contested or alleged that the operation is
not suitable for the locality. See, e.g., Arbor Theatre Corp. v. Campbell Soup Co., 11 Ill. App. 3d
89, 92 (1973) (“[t]he occasional odors and any discomfort resulting from the [pre-existing]
compost operation on [the] defendant’s mushroom farm were obviously not ‘wantonly caused
from malice or wickedness,’ but from [the] defendant’s pursuit of a useful occupation” (quoting 3
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2020 IL App (2d) 190382Thomas M. Cooley, A Treatise on the Law of Torts, or, The Wrongs Which Arise Independently
of Contract, at 163 (4th ed. 1932)); affirming finding, following trial, that composting operation
was suitable for the locality and reasonable). Defendants also assert that plaintiffs cannot
reasonably complain that defendants’ operations are a nuisance because they have more frequent
deliveries than the prior tenant. Such alleged inconvenience, they urge, must be accepted in an
industrialized society.
¶ 48 We agree with plaintiffs that they sufficiently pleaded their private-nuisance counts. Their
complaint contained sufficiently specific factual allegations that defendant’s activities invaded
plaintiffs’ interest in the use and enjoyment of their property and that the invasion was
unreasonable. They alleged that the noise pollution from the truck deliveries at the Mariano’s store
is perceptible at their property, unreasonably interferes with their ability to enjoy their property,
and makes life uncomfortable for them, because it is unreasonably loud and exceeds the Noise
Ordinance’s allowable limits. Plaintiffs asserted that there are overnight deliveries to the Mariano’s
store, which constitute a nuisance pursuant to previously issued citations by the City. They alleged
that the deliveries are frequent and they specified six dates in 2018 on which late- night or early-
morning deliveries occurred. Plaintiffs also specified injuries such as health issues, annoyance,
discomfort, disruption, invasions of privacy, and the inability to fully use and enjoy their property,
and they alleged that the market value of their property has decreased substantially.
¶ 49 Plaintiffs’ complaint included similar allegations concerning the air, odor, and light pollution
from defendants’ property and operations. They alleged that air and noxious-odor pollution is
unreasonably odorous and exceeds the ACGIH levels; they specified that the nitrogen dioxide
levels (from the burning of fuel, including by the trucks delivering to and idling at the Mariano’s
store) are at least 0.36 ppm, which is nearly double the ACGIH standard. The light
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2020 IL App (2d) 190382pollution from the mall’s exterior lighting began when trees that buffered the lights were removed
in the fall of 2016. The light pollution illuminates their property, is visible at their property, is
unreasonably bright, and is continuous and ongoing. Plaintiffs further asserted that, in early 2017,
they installed plantation shutters on their home’s rear windows to help block out illumination from
the exterior lights.
¶ 50 We disagree with defendants’ assertion that plaintiffs’ claims should be barred because
plaintiffs came to the nuisance in that, when plaintiffs purchased their home, they knew that their
property was directly behind a commercial strip mall with an existing grocery store that was
planned for future commercial development. Even if this characterization is accurate, it does not,
in itself, bar plaintiffs’ nuisance counts. See Toftoy v. Rosenwinkel, 2012 IL 113569, ¶¶ 18-21
(“[a]t common law, a plaintiff who came to the nuisance would not be barred from pursuing a
nuisance action, but the fact that the land was acquired or improved after the nuisance[-]generating
activity began would be a factor in determining whether the nuisance was actionable”); see also
Restatement (Second) of Torts § 840D cmt. b (1979) (“[t]he rule generally accepted by the courts
is that in itself and without other factors, the ‘coming to the nuisance’ will not bar the plaintiff’s
recovery”).
¶ 51 2. Moorman
¶ 52 Next, plaintiffs argue that the trial court erred in determining that the Moorman doctrine
barred their private-nuisance claims. The Moorman economic-loss doctrine may be asserted in the
context of a section 2-615 motion to dismiss. See In re Chicago Flood Litigation, 176 Ill. 2d at
202-03.
¶ 53 Initially, we review the character of the damages plaintiffs seek. Illinois law distinguishes
between two types of damages for a private nuisance: damages caused by permanent nuisances
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2020 IL App (2d) 190382and those caused by temporary nuisances. Tamalunis v. City of Georgetown, 185 Ill. App. 3d 173,
183 (1989).
“A permanent nuisance is one characterized as continuing indefinitely and the structure
constituting the nuisance is a lawful one, or one which the person or entity has a legal right
to maintain. *** A temporary nuisance is one which is occasional, intermittent, or recurrent
and is remediable, removable or abatable. [Citation.] In addition, a nuisance which is
caused by the negligent construction of a legal enterprise or the negligent manner of its
operation is generally considered temporary.” Id. at 183-84, 186 (discharge of untreated
raw sewage in violation of administrative regulation is a temporary nuisance).
“The measure of damages for a permanent nuisance is the depreciation in the market value of the
property injured.” Id. at 184. “Generally, the measure of damages for a temporary nuisance is the
personal inconvenience, annoyance, and discomfort suffered on account of the nuisance.” Id.
Plaintiffs’ allegations in this case are centered on an alleged temporary nuisance—the alleged
negligent operation of a legal enterprise, a grocery store, where the nuisance is abatable. At oral
argument, plaintiffs asserted that the nuisance is both permanent and temporary. Counsel argued
that the continuous and ongoing nature of defendants’ alleged violations reflects the permanent
nature of the nuisance. We disagree. Plaintiffs’ complaint itself contains examples of measures
that were in place--for example, when the Dominick’s store was in operation―that abated certain
nuisances on the property, including a fence and trees. The alleged nuisance here is clearly
temporary. Thus, because they allege a temporary nuisance, plaintiffs may properly seek recovery
only for “personal inconvenience, annoyance, and discomfort suffered on account of the nuisance.”
Id.
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2020 IL App (2d) 190382¶ 54 Here, the trial court determined that the Moorman doctrine barred plaintiffs’ private- nuisance
claims, because plaintiffs sought economic damages. “They may be couched in other terms, but in
their essence, the claims are seeking monetary damages only.”
¶ 55 “At common law, purely economic losses are generally not recoverable in tort actions.”
Fireman’s Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160, 163 (1997). In Moorman,
91 Ill. 2d at 91, the supreme court, adopting the majority view, announced the economic-loss
rule/doctrine that a products liability “plaintiff cannot recover for solely economic loss under the
tort theories of strict liability, negligence and innocent misrepresentation.” 1 “The Moorman
doctrine is intended to preserve the distinction between tort and contract.” Sienna Court
Condominium Ass’n v. Champion Aluminum Corp., 2018 IL 122022, ¶ 21. The Moorman court
described economic loss as “damages for inadequate value, costs of repair and replacement, or
consequential loss of profits—without any claim of personal injury or damage to other property.”
(Internal quotation marks omitted.) Moorman, 91 Ill. 2d at 82. The doctrine also applies to
contracts for services. Anderson Electric, Inc. v. Ledbetter Erection Corp., 115 Ill. 2d 146, 153
(1986) (plaintiff seeking to recover solely economic losses due to defeated expectations of a
1 There are three exceptions to the economic-loss rule: (1) where the plaintiff sustained
personal injury or property damage resulting from a tortious event, i.e., a sudden or dangerous
occurrence, (2) where the plaintiff’s damages are proximately caused by a defendant’s intentional,
false representation, i.e., fraud, and (3) where the plaintiff’s damages are proximately caused by a
negligent misrepresentation by a defendant in the business of supplying information for the
guidance of others in their business transactions. Fireman’s Fund Insurance Co., 176 Ill. 2d at 165.
“In each of these three situations, the plaintiff may recover in tort against the defendant.” Id. None
of the exceptions apply in this case.
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2020 IL App (2d) 190382commercial bargain cannot recover in tort, regardless of the plaintiff’s inability to recover in
contract).
¶ 56 Outside of the contract and products-liability areas, and as relevant here, the supreme court
has held that the Moorman doctrine applies to nuisance claims. Inre Chicago Flood Litigation,
176 Ill. 2d at 206-07 (rejecting appellate court’s holding that Moorman would gut nuisance claims,
most of which do not involve property damage and are based on “ ‘non-physical force[s] such as
noise, odor, smoke, dust, or even flies’ ”). The court noted that a private-nuisance plaintiff “may
recover all consequential damages flowing from the injury to the use and enjoyment of his or her
person or property. [Citation.] However, recovery of damages for solely economic loss is not
permissible.” Id. at 207. Thus, private-nuisance claims are not treated differently from other torts
for purposes of the Moorman doctrine. City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d 351,
424 (2004) (citing In re Chicago Flood Litigation, 176 Ill. 2d at 207). The rationale for this
holding, the supreme court explained, was that, “because ‘the economic consequences of any
single accident are virtually endless,’ ” a defendant could “face virtually uninsurable risks, far out
of proportion to its culpability. The economic loss rule operates to prevent such open-ended tort
liability.” Id. at 418 (quoting In re Chicago Flood Litigation, 176 Ill. 2d at 207).
¶ 57 In re Chicago Flood Litigation illustrates how the Moorman doctrine applies in the
negligence context and to nuisance actions. In In re Chicago Flood Litigation, the plaintiffs
consisted of two groups of individuals and businesses who were affected by the flooding of a
tunnel beneath the Chicago River, allegedly caused by the city’s and one of its contractor’s
negligence. The named plaintiffs consisted of a class that claimed property damage and economic
loss, including lost revenues, sales, profits, good will, wages, tips, commissions, inventory, and
expenses incurred in obtaining alternate lodging. The nonclass plaintiff, Hartford, the subrogee of
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2020 IL App (2d) 190382several additional claimants, brought a nuisance action. The trial court granted in part and denied
in part the defendants’ motions to dismiss (735 ILCS 5/2-615, 2-619 (West 1994)) and certified
questions for interlocutory review (Ill. S. Ct. R. 308 (eff. Feb. 1, 1994)). First, the supreme court
held that the Moorman doctrine barred recovery for the class plaintiffs who alleged no physical-
property damage or personal injury but only economic losses. In re Chicago Flood Litigation, 176
Ill. 2d at 198-201 (further noting that, for damages to be recoverable in tort, the dangerous
occurrence must result in personal injury or property damage; “[a]bsent injury to a plaintiff’s
person or property, a claim presents an economic loss not recoverable in tort”). Second, the court
held that the Moorman doctrine does not bar recovery in tort for the class plaintiffs who lost
perishable inventory as a result of interrupted electrical service. Id. at 201-02. Third, the supreme
court addressed the plaintiffs who alleged that they had incurred “ ‘unspecified’ ” property damage,
and it held that conclusory allegations of unspecified property damage were insufficient to
establish a right to recovery in tort and were properly dismissed under section 2-615 of the Code. Id.
at 202 (“[c]lass plaintiffs must plead facts identifying the type of property damage that they
incurred”).
¶ 58 Fourth, the supreme court addressed, in two parts, Hartford’s nuisance claim. First, the court
turned to Hartford’s allegation that its subrogors were evacuated from their businesses and that the
evacuations were unreasonable and substantial invasions of their property. The court rejected this
argument and held that, as to the plaintiffs who did not suffer a physical invasion of their property
by the flood waters, the complaint failed to state a nuisance claim. Id. at 206. The court noted that
Hartford had not alleged that the businesses whose property had not been invaded by the flood
waters “suffered any other type of invasion of the use and enjoyment of their property” (they were
merely evacuated from their businesses; there were “no allegation[s] of noxious fumes
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2020 IL App (2d) 190382or disagreeable odors, *** disagreeable noises, or any other type of invasion”), and, in the absence
of “any perceptible element that would influence the physical senses” to make their businesses less
desirable, the complaint failed to state a cause of action for nuisance. Id. Second, as to the nuisance
plaintiffs who did not incur any property damage or injuries to their persons but incurred only
economic losses, the court held that the Moorman doctrine barred their claims. Id. at 207. The
nuisance tort is not treated differently from any other tort, the court noted. Id. “A plaintiff in a
private nuisance action may recover all consequential damages flowing from the injury to the use
and enjoyment of his or her person or property.” Id. However, recovery is barred for solely
economic damages. Id.
¶ 59 Here, plaintiffs argue that, unlike the Hartford plaintiffs, they asserted specific invasions
of noise, odor, and light onto their property that are perceptible to the senses. Accordingly, they
argue, the Moorman doctrine does not bar their nuisance claims. They further note that they are
not complaining about the failure of their home to serve its purpose or their disappointed
commercial expectations regarding the home’s quality. Rather, they assert that they have alleged
consequential damages flowing from the injury to the use and enjoyment of their property, due to
the direct invasions of noise, odor, and light. Plaintiffs assert that they also alleged health issues
and invasions of their privacy arising from the noise, odor, and light pollution, which all fall
outside Moorman. They maintain that their property has become a repository for defendants’
noise, odor, and light, which damage their property and are a consequence of defendants’ tort.
¶ 60 Defendants respond that the Moorman doctrine bars plaintiffs’ nuisance claims, because they
cannot recover for their property’s decreased market value. Further, as to plaintiffs’ prayer for
damages for inconvenience, health issues, annoyance, and discomfort, defendants maintain that
their allegations fail to meet minimal pleading requirements. Their allegations of injury, according
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2020 IL App (2d) 190382to defendants, are conclusory. Defendants specifically note that plaintiffs failed to specify what
health issues they have suffered and whether the pollution was the cause of the alleged health
issues. Thus, defendants contend, the allegations do not inform them of the nature of the injury
being claimed and thus must be disregarded. Further, defendants assert that plaintiffs did not plead
and did not experience physical injury or injury to their property; their losses are purely economic.
¶ 61 In their second amended complaint, plaintiffs alleged that the market value of their property
has substantially decreased and that they have suffered inconvenience, (unspecified) health issues,
annoyance, discomfort, disruptions in their peace and quiet, invasions of privacy, and the inability
to fully use and enjoy their property. They sought damages for (1) the difference in the market
value of their property and (2) “the inconvenience, health issues, annoyance, discomfort, and the
inability to fully use and enjoy” their property.
¶ 62 First, turning to plaintiffs’ prayer for the difference in the market value of their property since
the nuisance commenced, we conclude that plaintiffs cannot seek such damages in a temporary-
nuisance case and that, even if they could, the remedy they seek constitutes an economic loss,
recovery of which is barred by the Moorman doctrine. Id. at 198-201 (for damages to be
recoverable in tort, the dangerous occurrence must result in personal injury or property damage).
Plaintiffs have failed to allege any facts as to any injury to their property other than diminution in
market value, which is, again, an economic loss. Plaintiffs’ reliance on Statler v. Catalano, 167
Ill. App. 3d 397 (1988), is misplaced. In that case, the court noted that the elements of damage that
can be considered in a private-nuisance case include the difference in value in the property before
and after the harm, the loss of use of the property, and the discomfort and annoyance to the party
who is harmed. Id. at 404 (citing Restatement (Second) of Torts § 929, at 544 (1979)). Because
“the element of damage to be considered” depends on whether the nuisance is temporary
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2020 IL App (2d) 190382or permanent, the Statler court determined that the nuisance was temporary and that the damages
instruction that was given properly stated that the jury had to consider the deprivation of the
plaintiffs’ use and enjoyment of their home. Id. at 405.
¶ 63 In their reply brief, plaintiffs argue, without citation to any authority, that, if there is an
invasion sufficient to establish a nuisance, the invasion spills onto the property and damages it and
such damages are not economic losses. They maintain that the damages they have suffered are
consequences of defendants’ tort and that their property has become the repository for defendants’
noise, odor, and light, which damage their property. We disagree that they may properly seek
damages for the diminution in the value of their property. Again, In re Chicago Flood Litigation
controls. Addressing the Hartford plaintiffs’ nuisance claims, specifically, the plaintiffs who did
not incur any personal or property damage but incurred only economic losses, the supreme court
rejected the appellate court’s conclusion that the Moorman doctrine does not apply to nuisance
claims and it held that recovery of damages for solely economic loss in a private-nuisance action
is not permissible. In re Chicago Flood Litigation, 176 Ill. 2d at 206-07. Here, plaintiffs suffered
no physical damage to their property. Their prayer for damages for the diminution in the market
value of their home seeks recovery for an economic loss, not property damage. Moorman bars
recovery.
¶ 64 Second, we turn to plaintiffs’ prayer for damages for “the inconvenience, health issues,
annoyance, discomfort, and the inability to fully use and enjoy” their property. We agree with
plaintiffs that the Moorman doctrine does not bar such damages. The nature of each of these
alleged injuries is that they affect one’s mental and/or physical health. They certainly cannot be
characterized as economic losses or injuries. See Moorman, 91 Ill. 2d at 82 (describing economic
loss as “damages for inadequate value, costs of repair and replacement, or consequential loss of
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2020 IL App (2d) 190382profits, without any claim of personal injury or damage to other property” (internal quotation
marks omitted)). Furthermore, defendants do not even argue that these damages are economic
losses but, rather, contend that plaintiffs failed to sufficiently plead them. However, they cite no
relevant authority for this argument. Instead, they cite the supreme court’s statement in In re
Chicago Flood Litigation that unspecified property damages do not withstand a motion to dismiss.
In re Chicago Flood Litigation, 176 Ill. 2d at 202-03 (conclusory allegations of unspecified
property damage were insufficient to establish a right to recovery in tort and were properly
dismissed under section 2-615 of the Code). The supreme court’s holding upon which they rely
concerns property damage, whereas, here, plaintiffs are claiming a form of personal injury.
Defendants’ arguments are unavailing.
¶ 65 In summary, the trial court erred in dismissing plaintiffs’ private-nuisance claims. Because
we reverse the trial court’s dismissal of plaintiff’s second amended complaint, we need not reach
plaintiffs’ final argument that the court erred in denying their oral motion for leave to file a third
amended complaint.
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated, the judgment of the circuit court of Du Page County is reversed and
the cause is remanded for further proceedings.
¶ 68 Reversed and remanded.
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