February 29, 2008
NICOR GAS COMPANY, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant and Cross-Appellee, ) Cook County.
v. ) No. 04 L 444
THE VILLAGE OF WILMETTE. ) Honorable
) Robert Lopez Cepero,
Defendant-Appellee and Cross-Appellant. ) Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:
Plaintiff Nicor Gas Company appeals from the dismissal with prejudice, pursuant to
section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2006)), of its
second amended complaint in its action for negligence against defendant Village of Wilmette
(Village). The Village has filed a cross-appeal from the denial of its motion to dismiss pursuant to
section 2-619 of the Code (735 ILCS 5/2-619 (West 2006)), which was based on assertions
concerning tort immunity. We have no jurisdiction to consider the Village's cross-appeal, but we
affirm the section 2-615 dismissal of Nicor's second amended complaint.
According to allegations in Nicor's second amended complaint, the Village maintained and
operated, at all times relevant, a subterranean water system that includes an underground water
main pipe under the intersection of Poplar, 10th and Gregory Streets, and on January 10, 2003, a
broken subterranean water main near that intersection caused a puncture in Nicor's gas main.
Thousands of tons of water from the Village's subterranean water system were forced into the
punctured Nicor gas main, allegedly damaging not only the property of Nicor and its customers,