The opinion of the court was delivered by: Justice Wolfson delivered the opinion of the court
APPEAL TO THE CIRCUIT COURT OF COOK COUNTY.
HONORABLE STEPHEN SCHILLER, JUDGE PRESIDING.
Few Chicagoans will forget that morning in April 1992 when a section of the underground freight tunnel gave way and the river flooded into the tunnel, then into basements and sub-levels of numerous "loop" buildings, including City Hall. The flood affected electric service, telephone service, and the sewer system. Workers had to be sent home. The City's downtown area was crippled.
Inquiries immediately began to determine how and why this tragedy occurred and what could have been done to avoid it. One result of that inquiry was the discharge of City employee James P. McTigue. This case is a review of that administrative decision. We conclude McTigue should not have been discharged.
In January 1992, McTigue had been a City employee for nearly 10 years. He was assigned to the Department of General Services and held the title of Engineering Technician V. Though McTigue had several duties, one of his functions was "resident engineer" of the Chicago Freight Tunnel, a tunnel (once 62 miles long) which runs beneath much of the loop area of Chicago. The tunnel has no lighting. Portable lighting, such as flashlights or miners' hats, are required to see inside the tunnel. Many areas are damp and muddy.
McTigue described his responsibilities with regard to the tunnel: "I received weekly reports on the condition of our pumps in various strategic locations in the tunnel. The City electrician would go around once a week and inspect the pumps. If everything was working properly, they would call me and tell me everything was okay. If there was a problem, I would go down and inspect the problem, determine the solution and bring in the people to take care of the problem. Also, I inspected -- I looked over plans for installations of fiber optics, cable tv, telecommunications, Illinois Bell Telephone, and Commonwealth Edison. And I was involved in approving plans and making sure that installations were put in according to specifications."
McTigue said he generally did not enter the tunnel unless he had a purpose. It was uncontradicted that the Department of General Services, for which McTigue worked, had neither the responsibility nor the resources to repair or maintain the tunnels.
In either late January or early February, McTigue said, a Chicago Cable worker told him about a possible problem in the tunnel -- what appeared to be a cave-in in the tunnel near Kinzie, east of Kingsbury. Shortly after receiving this information, McTigue said, he inspected the tunnel in the area mentioned. He found no cave-in. He did find an old breach east of Kingsbury, near Hubbard, where a piling had been driven into the ground and had broken through the tunnel. This old breach had already been repaired and was unrelated to the April flood.
Later, on February 26, 1992, McTigue saw some Chicago Cable workers while he was in the tunnel working on an unrelated matter. Again, the cable workers mentioned a cave-in on Kinzie, east of Kingsbury. McTigue told them he had inspected the area and found nothing. He asked the cable installers to call him the next day with more details on the location of the problem. McTigue said he never heard from Chicago Cable again and he took no further action until March 13, 1992.
There is nothing in McTigue's work diary regarding the reports he received in January and/or February about a cave-in. Nor is there anything in the diary to support McTigue's statement that he inspected the area near Kinzie, east of Kingsbury, after being notified of such a problem.
McTigue's diary does reflect, however, that he entered the tunnel on Friday, March 13, 1992. On this day, McTigue was accompanied by Tim Linder and Eric Grundke from Kiewitt, a company installing fiber optics in the tunnel. After inspecting installation work done by Kiewitt, McTigue said, he asked Linder and Grundke to accompany him while he looked for a possible cave-in near Kinzie. While proceeding on Kinzie, they continued on past Kingsbury. The tunnel makes some 45-degree bends in this area. After rounding two bends, McTigue discovered a cave-in of the north face of the tunnel wall at Kinzie, approximately 340 feet west of Kingsbury. The hole in the wall was approximately four feet wide and 10 feet long. Mud and "silt" had flowed into the tunnel. A thorough inspection of the hole could not be conducted because so much silt was present McTigue couldn't get within 10 feet of the hole.
Back at the office, either that same day or early the following Monday, March 16, 1992, McTigue plotted the position of the breach against maps he had of the tunnels and determined the breach was located in a part of the tunnel which ran under the river. McTigue reported the situation to his supervisor.
On March 17, 1992, McTigue was able to reach Tim Later, head of the Department of Transportation, and Ted Maynard, Chief Soils Engineer, to notify them of the breach.
On March 18, 1992, McTigue accompanied Assistant Soils Engineer Chawla to the breach site. McTigue took pictures of the breach in the tunnel wall, which on closer inspection revealed a void that extended back about 12 feet, exposing old and new pilings. Water was seeping in.
An inspection from above indicated that new support pilings had been driven into the ground in connection with the Kinzie Street Bridge project, which had begun in September, 1991.
On March 25, 1992, Linder went with McTigue to Tim Later's officer regarding another matter. In the course of the conversation, a Discussion began on possible solutions to the tunnel cave-in problem. Later said, "I don't want to hear anything about that."
McTigue and Linder left Later's office and proceeded to Maynard's office. While speaking with Maynard, again the conversation turned to the tunnel wall cave-in. Maynard cut off the Discussion, saying, "Don't worry about it, it's too far under the river for anything to happen."
On April 1, 1992, the City's Chief Engineer and other high-ranking employees from the Department of Transportation met to determine what should be done about the tunnel breach. McTigue was the only employee from the Department of General Services to attend the meeting. After much Discussion it was decided that bulkheads should be installed to isolate the area around the breach. The installation of these bulkheads was to be contracted out. Arrangements were then made to solicit bids on the project.
According to McTigue's supervisor, after the breach was discovered in March 1992, McTigue's responsibility with regard to the tunnel centered around providing guide service for persons wishing to enter the tunnel.
On April 13, 1992, the breach ruptured. The river flooded into the tunnel and the sub-levels of loop-area buildings.
On April 16, 1992, McTigue was brought to the offices of the City's Deputy Corporation Counsel. He was questioned about his discovery of the tunnel breach and his conduct after the discovery was made. He was questioned about entries to his work ...