Mandatory Duty - Ghost Ship Fire

The Alameda County judge recently ruled that Oakland officials had a "mandatory duty" to ensure safety at the doomed Ghost Ship warehouse, leaving the city potentially liable for a fire where 36 people died. Attorneys for the dozens of victims and their families, as well as reports by Mercury News (CA) have detailed numerous visits by police, firefighters and building officials in the years before the deadly Dec. 2, 2016, fire. The maze-like Fruitvale district warehouse with a shoddy electrical system continued to house more than 20 people and host concerts. This is an early ruling by the judge in this mass tort case. 

This ruling pierces broad immunity protections afforded to cities to protect workers for failing to inspect buildings and the finding of "mandatory duty" for now leaves the city potentially liable for the death and displacement of partygoers and Ghost Ship tenants.

This is not Oakland’s first issue related to fire inspections as there is a reportable event at the deadly San Pablo Avenue fire March 2017 where public records show firefighters had sent warnings to fire administrators about dangerous conditions at the halfway house in the months before the blaze.

The attorney for the city, argued that "mandatory duty" can only be applied if a qualified city official makes a determination that a building is in violation of codes and if there is sufficient supporting facts. The City attorney indicates that "It doesn't happen by observation ... not by the police but someone with proper expertise," "Not every city official is capable of making that determination, because they're complex." The judge indicated in his ruling that, “the complaint says there were very serious conditions and the city knew about it and did nothing.”

Oakland firefighters were only one of many government employees to enter the building including child protective services (CPS), PG&E, police and others had also visited the Ghost Ship for a variety of reasons over the period of several years.

In my article Fire Engineering Inspection Liability (http://community.fireengineering.com/profiles/blog/show?id=1219672%...), I described several immunities enjoyed by cities and cited a few California cases that reinforced that concept and many departments seem to sleep well at night understanding and relying on these immunities. The current ruling about “mandatory duty” places a whole new light on the department’s responsibilities related to inspections.

In our society there are several permutations of a “mandatory duty” for public safety officers and health professional, including: reporting of child or elder abuse, assault on a public safety officer, mental health professionals on a duty to warn if there is a threats against another with specific facts and have a plan. There are many others with a mandatory duty that also include: child care providers, clergy, however clergy-penitent privileged communication is exempt in most states, medical examiners and coroners, school teachers, coaches, guidance counselors, principals and other school personnel, social workers and film developers (for child pornography purposes).

Jury instructions in California civil cases provide some guidance of a description of mandatory duty for municipalities. In this latest ruling, the judge opines whether the statute imposes a mandatory duty (on the City) and whether it was designed to protect against the type of harm suffered. Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, (edit citation). Using California Code Section 815.6, from the following source entitled Government Liability for Failure to Perform Mandatory Duty, states: ‘Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty”, thus, the government may be liable when (1) a mandatory duty is imposed by enactment, (2) the duty was designed to protect against the kind of injury allegedly suffered, and (3) breach of the duty proximately caused injury.”

As found in State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348 (citation edited) which opined “In order to recover, plaintiffs have to show that there is some specific statutory mandate that was violated by the County, which violation was a proximate cause of the accident” citing Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896–897 (citations edited.)

The jury instruction then goes on to determine governmental liability is not based on a contract but the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.

So the question here is, what responsibility did the City of Oakland have in this tragic event? Is their duty to protect against a known hazard? Faced with the financial reality of cities and towns this can be the issue of not enough inspectors and too many buildings. Remembering the Inspection Bureau consists of mostly civilians, there is a responsibly of those government employees (police, fire, county health, CPS and others) who entered the building at various times to clamor for an inspection and possible condemnation of the building, hopefully avoiding this tragic event. In Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125,146, the court found “financial limitations of governments have never been, and cannot be, deemed an excuse for a public employee’s failure to comply with mandatory duties imposed by law.”

We would like to believe our immunity statutes would hold up under this scrutiny but there appears to be a lot of “this won’t happen to us” mentality and faced with the court of public opinion, case law and the terrible tragedy of the Ghost Ship fire, this position will crumble. As a good friend one said, there is “a lot more shoes to drop from this centipede”.

Footnotes:

1) Mercury News – May 2, 2018. David Debolt
2) Inspection Liability in Fire engineering

3) California Civil Jury Instructions (CACI) (2017) 423. Public Entity Liability for Failure to Perform Mandatory Duty
4) John McCain on the current political issues - Real Clear Politics March 12, 2017