Corporation Counsel Kelly Welsh tipped the city`s legal strategy for defending itself against Loop flooding lawsuits Wednesday, saying the city cannot be held accountable for poor decisions of its employees.
He also reiterated City Hall`s position that last week`s flooding was the result of negligence on the part of Great Lakes Dredge & Dock, the contractor hired to sink pilings in the Chicago River at the Kinzie Street site.
Speaking at a televised news conference, Welsh took note of state statutes that grant specific immunity to municipalities in terms of being held accountable for ”discretionary acts” by employees.
Three city employees have been fired, and Mayor Richard Daley is seeking the dismissal of two others for failing to prevent the flooding. Welsh said those personnel actions are by no means an admission that the city ”is confessing liability.”
”The law does not place liability for their bad decisions on the backs of taxpayers,” he said.
Richard A. Epstein, a University of Chicago law professor and federal tort-law authority, expressed ”mixed emotions” with the city`s no-fault position, saying ”years of wrangling” lie ahead.
Generally speaking, he said the city`s defense appears to have merit. But as specific findings mount about when and what city employees knew of the problem and if they continue to reflect poor judgment, liability could attach, he said.
”It is a very complicated question,” Epstein said. ”I think the city could have big troubles if the only legal defense is `discretionary.` ”
Attorneys who filed the first class-action suit against the city April 14, a day after the flooding in the freight tunnels, declined to respond to Welsh`s assertion that immunity laws protect the city from legal damages.
”We will probably have something to say tomorrow,” said Corey Berman, an attorney with Holstein, Mack & Klein, which filed the suit on behalf of a restaurant and an insurer affected by the flood.
So far, four suits have been filed over the flooding.
Welsh said a recent U.S. Supreme Court decision found the Federal Aviation Administration was not liable in a case brought against the agency in the wake of a plane crash. An FAA inspector had certified an aircraft as flight-worthy without inspecting a trash receptacle that caused the plane to crash.
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The court ruled that the agency could not be held accountable because its employee exercised discretion in not inspecting the receptacle.
In Wednesday`s remarks, Welsh cited several sections of the city`s contract with Great Lakes Dredge & Dock.
The contract, he said, required that the contractor inspect the work site, familiarize itself with any and all utilities, and agree to repair damages caused by improper construction work.