When Corporation Counsel Kelly Welsh declared last week that the city was immune from liability in the Chicago flood disaster, it was the first glimpse at what may be one of the most unusual defense strategies ever mounted by a municipality in Illinois.
It is also largely untested and risky, legal experts say.
To the uninitiated, the city`s claim seemed absurd: How could the city not be responsible for the bungling of its employees?
Welsh`s assertion that the city is shielded from blame in the April 13 Loop flood because ”the law does not place liability for their bad decisions on the backs of taxpayers” is certain to be challenged by plaintiffs, who already have filed four class-action suits against the city.
But whatever the legal merits, the argument has fascinated the legal community because the cases will likely break legal ground on the concepts of immunity and insurance law in Illinois, legal experts say.
”This will be a landmark case in Illinois,” said Northwestern University professor Mark Grady.
It also will not be over any time soon. Most experts expect years of complicated litigation.
The notion that governments are immune from liability for bad decisions or actions has roots in English common law, which basically dictated that the king or queen could do no wrong. It has survived with modifications over the years mainly because governmental bodies have such vast responsibilities to perform, so many crucial services to provide, that they cannot be held to the same standard of negligence as private parties.
”If you were to say to the city, `every time you make a mistake, every time you`re negligent, every time a street has a hole and someone was damaged, there will be litigation and you would be liable,` you would bust the city,” said John Marshall Law School professor Arthur J. Sabin. ”You`d break them, and you`d ultimately be hitting the taxpayer.”
Illinois law on this issue was last modified in 1986 when the state legislature passed tort reforms to reduce frivolous lawsuits and unwarranted claims. Called the Torts Immunity Act, it granted additional liability protections to local governments in an effort to curb skyrocketing insurance premiums resulting from a plethora of lawsuits.
The city, represented by the Chicago firm of Jenner & Block, will use that law to argue that although Welsh admitted a series of blunders made by various city workers failed to avert the disaster, the city cannot be held accountable for those ”discretionary” acts.
John O`Connell, a former Democratic state representative from Western Springs who helped write the law, said the legislature`s intent was to draw the line of governmental responsibility for property damage resulting from things like accidents due to roadway repairs or highway signs obscured by snow-not gross bureaucratic bungling.
”I don`t think anyone could have written a scenario like this one in terms of legislative foresight,” said O`Connell, referring to the maze of missteps that preceded the tunnel flooding. ”Perhaps if a scenario as dramatic as this one had been presented, there would have been a different response by the legislature.”
Legal experts are divided over the merits of the city`s defense.
Northwestern`s Grady predicts that the courts will look favorably on the
”discretionary” argument because it resulted in a massive disaster, and courts have been reluctant to hold governments responsible in such instances. ”If one basement in the city had flooded, they`d be on the hook. But because the physical destruction was so widespread, it paradoxically improves the city`s legal position,” he said.
Grady points to a case resulting from a 1947 disaster in Texas City, Texas. Ships being loaded with fertilizer manufactured by the federal government exploded, killing more than 500 people. Suits charging the U.S. with negligence were dismissed by the U.S. Supreme Court on immunity grounds. Other experts, including University of Chicago professor Richard A. Epstein, an authority in federal tort-law, doubt the discretionary defense will be effective given the number of employees making mistakes prior to the flood.
The city`s account of who knew what when could erode their defense, said Epstein. And plaintiffs will argue that ”it is beyond the pale of a discretionary act because it was so crucial to the welfare of the city,” said John Marshall professor John H. Scheid.
Cities can be sued and held liable in some circumstances. The Kinzie Street bridge figured prominently in a 1987 case in which a cabdriver was killed when he was crushed by the drawbridge operated by a drunk city worker. The city did not claim immunity and sought an out-of-court cash settlement in that case.
Welsh said the city`s secondary line of defense will be to point the finger at Great Lakes Dredge & Dock Corp., the contractor on the piling project that is being blamed for triggering the catastrophe.
”The city will basically say to the courts, `I didn`t do it, and if I did, I`m not responsible because I`m immune. And if we`re not immune, then you ought to blame Great Lakes because they were the guilty party,` ” said John Marshall`s Sabin.
Great Lakes can be expected to argue that it acted properly, he said.
The class-action suits filed and those expected to come will likely be consolidated by the court into one case, with plaintiff lawyers jockeying for position and division of fees.
With a fortune in damages at stake, the case is clearly the largest test of Illinois governmental immunity law.
Legal experts say the only previous test came in a 1983 case when property owners sued the Lake County village of Third Lake after they experienced flooding from a dam project. The Illinois Appellate Court rejected the village`s claim of immunity because of discretionary acts and held it liable for damages.
The courts also will be asked to rule on one other basic question: Was this a flood?
The question is crucial to insurance companies and their clients since Chicago`s great flood was not an act of God, which flood insurance generally covers, but of bureaucrats.
Experts say at the very least, a new definition of ”flood” is destined for the lawbooks by the time this case is closed.
