Thursday, September 15, 2016

Chasing the elusive Butterfly of Responsibility

     Yesterday's column on a passenger getting beaned by falling rubble got a lot of attention on TV. But what amazes me even more than chunks of debris showering upon commuters' heads as they slog through the loud, smokey, dim stygian underworld of Union Station is the resultant rondo of official evasion so convoluted it sounds like the set-up for a story problem on a law school exam.
     Let's try to state it clearly. Pencils ready? Then let's begin.
     1) Metra runs a railroad that delivers passengers into a building it does not own. That building, Union Station. is owned by Amtrak, the national rail service. But Amtrak does not own the air rights, which it sold to 10 S. Riverside Plaza Ltd. when a 21-story office block was constructed above their tracks in the mid-1960s.
     If a piece of plaza dislodges itself from the underside of 10 S. Riverside Plaza and hits a Metra passenger walking through the north platform of Amtrak's Union Station, who is actually responsible for the tort? Metra, which ferries people into harm's way? Amtrak, which owns the building they are conveyed into? 10 S. Riverside Plaza, which runs above the people and the building, and is the source for crumbling concrete being subjected to the laws of gravity if not the laws of the state of Illinois?  

      Is it a) Metra; b) Amtrak; c) 10 S. Riverside; d) the injured passenger, or e) the city of Chicago?
     A toughie, right?
     We know how Metra feels ("Sorry, not my table.") And we how Amtrak feels ("Sorry, not my table.") While I had a good guess about how 10 S. Riverside Plaza—or more precisely, its owner, Callahan Capital Properties—feels, I didn't want to put words in their mouths.
     I called Noah Gens, general manager of building operations for 10 S. Riverside Plaza, and asked him, or more precisely, his voicemail: If you are responsible for this, as Amtrak says you are, then why aren't you fixing  the hazard that you are responsible for fixing?
     He did not, as I expected, leap to reply, perhaps adhering to the If-I-ignore-the-problem-it'll-go-away mentality that is serving Metra and Amtrak so well.
     Amtrak meanwhile, on Wednesday, offered this bit of enlightenment, which I will share in full since, hell, this is a blog:

Amtrak statement:Amtrak is working with partners at Chicago Union Station to ensure a safe environment for all passengers. While it is the responsibility of the third-party property owners to maintain the property over the tracks, Amtrak has brought in an independent contractor to continue inspections and reinforce overhead protections, where appropriate, to immediately secure the area for the safety of passengers and the general public. During this time, three tracks remain out of service however we’re working to minimize delays. Amtrak has invested considerable resources to address these issues in the past and will continue to work with property owners, the City, and Metra to do so in the future. If third-party property owners fail to inspect and maintain the property over the tracks, Amtrak will take appropriate steps to ensure public safety, including taking legal action. In a similar case in Chicago, Amtrak and Chicago Union Station invested more than half a million dollars in repairs in the interest of public safety.
     Which I think I was supposed to be grateful to receive. But only lead to more questions, in my case:
Thanks though I'm confused. If it's their responsibility, then why aren't they taking care of it? If it isn't your responsibility, then why are you taking care of it? Any plans to sue them? It is, after all, their responsibility, not yours. Just curious.NS
     This lead to a phone call which, alas, was taken off the record after an on-the-record long sigh and a rueful chuckle on Amtrak's part. I learned the word "plenum" which is defined as "a space completely filled with matter" which I think, in this case, is a fancy term for "the plaza above the tracks."
     I was also directed to a Sun-Times story from last year which was supposed to enlighten me, but actually only made the subject even murkier, as it is about Amtrak suing, not 10 S. Riverside Plaza, but the City of Chicago for not taking care of the plaza since the city supposedly assumed responsibility for the task in 1980?
     Huh? The city? Where did they come from? The city can't be the mystery "third-party property owner" Amtrak is referring to; it doesn't own it.
     Though I'm not saying the answer is "e." Frankly, I don't know what the answer is. Maybe nobody does. Though for all practical purposes, the answer is "d," the passenger, who is basically forced to run a gantlet of hazards at Union Station—cascading liquids one prays are water, resultant ice from those liquids, crumbling pillars, walls and ceilings, construction equipment and scaffolding and, oh yeah, trains.
    Okay, enough for today. We'll put on our pith helmet, grab our butterfly net, and search for the elusive Butterfly of Responsibility again tomorrow, applying ourselves at both Rahm Emanuel's Hall of Mirrors, and the money matterhorn that is Callahn Capital Properties, a real estate private equity firm which seems to take great pride in the 160 million square feet of property it owns across the country. One assumes they also take pride in fulfilling their legal obligations to maintain that huge portfolio of profitable property so it doesn't fall down on people's heads. 
     But we'll let them explain that themselves.  If we can find them. And if they'll talk. Two big "ifs."


  1. wow neil , did you write that your wife was struck in this incident ? hows she doing? whoever is responsible for the hazard that exists is likely insured. seems to me all players should hear from your attorney. liability will be determined in court

  2. For some reason, this whole back and forth regarding responsibility reminded me of Abbott and Costello's "Who's on First".

  3. An entertaining column, but it does seem the legal complexities are easier to write about than to solve. Ultimately, that's what courts are for, although one hopes it doesn't turn into a contemporary Jarndyce vs, Jarndyce.

    Tom Evans

  4. I think it behooves every entity to get the problem fixed now. If for no other reason, they should do so to avoid getting sued, as every conceivable party (and some not so conceivable) will be hauled into court and have to pay big bucks to slither out of the case.


  5. The main onus falls on Amtrak. They own the station, the tracks & the platforms.
    When they sold the air rights, I'm sure the contract required the building owners to maintain their buildings so nothing falls down on the station.
    It looks like Amtrak just hasn't been tough enough with the owners.
    Remember several years ago, when they finally sued that bizarre Brit that bought the post office for not operating the exhaust fans that vented the diesel smoke up through the unused post office?
    That came after months of complaints. Amtrak just doesn't seem to follow through on anything related to Union Station.
    It may also fall upon Amtrak's choice of a company, Jones, Lang, LaSalle, that manages the station for Amtrak, although they might not have the platforms under their purview.
    The only one here that might be lawsuit proof is Metra, as they are just a tenant of Amtrak's.

  6. LAWYER, n.

    One skilled in circumvention of the law.

    --Ambrose Bierce, The Devil's Dictionary

    Bitter Scribe


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