Daniel L. Schmidt
Daniel L. Schmidt

An appeals panel has reversed a $45.5 million verdict handed down after a 2010 oil spill in a far southwest suburb.

The 3rd District Appellate Court on Jan. 31 ruled an oil company did not prove a leaky water line, and the company that maintained it, were to blame for the incident, writing that its case “amounts to smoke and mirrors.”

Trial testimony showed the problem likely began decades ago, when the steel oil pipeline and the cast iron water line were first installed by the parties’ predecessors in Romeoville, Justice Daniel L. Schmidt noted in a 24-page opinion. Such evidence should have been barred by a 10-year statute of repose.

Evidence of prior leaks in the water line, which the oil company used to try to show a pattern of improper maintenance, also should not have been admitted at trial because nobody could pinpoint where they were located or what caused them, let alone why they were similar to the water leak that corroded the oil pipeline, the panel wrote.

“Even assuming the admission of the prior leak evidence was proper, plaintiff failed to prove that defendant’s insufficient maintenance of its water service line caused the oil pipeline to fail. Plaintiff’s own evidence and experts indicate the culmination of this incident was the result of a series of events started when the water line was installed in 1977, not deficient maintenance,” the panel wrote in its decision last week.

Initial experts who testified for the plaintiff, Enbridge Energy, concluded a protective coating around the oil line was breached when the water line was put in. That allowed electric current to escape and corrode the water pipe in turn causing a stream of water to erode the oil line.

But an expert who testified later said the electrical current was only a minor problem. Schmidt wrote the jury was “undoubtedly baffled” by that contradiction.

“Plaintiff’s case amounts to smoke and mirrors and as a result, it has not carried its burden,” he wrote. “Having found that the prior leak evidence and the installation error evidence are inadmissible, we agree with defendant that plaintiff has no basis on which to base any of its claims.”

Enbridge gained control of the oil line in 1968, the same year it was installed. It carries 450,000 barrels of oil per day from Superior, Wis., to Griffith, Ind., and passes beneath Parkwood Avenue in Romeoville.

The 800-foot long water line was installed about 10 years later and provides an industrial-level supply of water to a building on that street. It runs perpendicular to and about 6 inches below the oil duct.

Witnesses noticed crude oil bubbling to the surface near 717 Parkwood Ave. in a light industrial park on Sept. 9, 2010. The company spent nearly $40 million fixing the leak. Both lines were excavated, and a 1½-inch hole was found beneath the oil line at the point it intersected with the water line. Similarly, the water line had three large holes directly below the oil pipeline.

Enbridge filed an eight-count complaint against Northfield Block Co., which owns the water line, and the village of Romeoville, in December 2013. It included claims of negligence, negligent trespass and breach of contract.

Twelfth Judicial Circuit Judge Barbara N. Petrungaro granted a summary judgment motion in favor of the village in August 2016. Other claims against Northfield and its parent company, Oldcastle APG South Inc., went to trial.

Both sides filed numerous pretrial motions and presented a host of witnesses and experts during trial, including village public works officials, experts in water systems, metallurgy and right of way, among others.

A jury returned a verdict for Enbridge on its negligence and breach of contract claims, though it found the oil company about 45% at-fault. Enbridge chose to have the judge enter a verdict on breach of contract only, and in July 2017, Petrungaro entered a verdict of $45,491,625 in its favor.

The defendant ultimately appealed, arguing there was no admissible evidence that could support the claim it improperly maintained the water line.

Schmidt, joined in the decision by Justices Robert L. Carter and Mary W. McDade, noted that when using prior occurrences to establish notice of a dangerous condition, those incidents don’t have to be identical to the one at issue. They just have to be “substantially similar.”

But Enbridge never laid that legal foundation with testimony of the prior leaks, the panel found. One of its experts even opined that at least three of the seven prior leaks referenced were not related to the corrosion of the water line.

“No one identified the exact locations of these prior leaks or their causes. It was shown at trial that the causes and origins of the prior leaks have eluded the parties and none of the evidence proves that the previous water leaks were caused by corrosion from stray current or from the general deterioration of defendant’s water line,” the panel wrote.

Section 13-214(b) of the Code of Civil Procedure states that no action based on a contract can be brought for an act or omission in property construction or improvement after 10 years, and because the plaintiff’s own experts testified it was the damage to the coating during installation of the water pipe in 1977 that wound up causing the leak in 2010, that evidence was also inadmissible.

The panel also rejected Enbridge’s cross-appeal on the negligence claims, pointing again to the expert testimony suggesting the leak and subsequent spill was “unique” and “very rare” and that it wasn’t clear a defendant or any reasonable entity should have known it would happen.

For similar reasons, it affirmed the grant of summary judgment for the village.

J. Timothy Eaton, of Taft Stettinius & Hollister LLP, represented defendant Oldcastle APG South Inc., doing business as Northfield Block Co.

Eaton said this morning he’s “very pleased” with the decision, noting the court entered a judgment notwithstanding the verdict for the defendants rather than calling for a new trial.

He said evidence of the other leaks at the trial court was “clearly prejudicial.”

“It’s like in any tort case. If you try to get in similar incidents to show liability, you better make sure they were similar,” Eaton said. “And they had no evidence that they, in fact, were.”

Tacy Flint, of Sidley Austin LLP, represented Enbridge Energy in the appeal. She also could not be reached this morning.

The case is Enbridge Energy v. Village of Romeoville, et al., 2020 IL App (3d) 180060.