Government
Apr. 22, 2017
Plaintiffs trying to sue government over Ghost Ship fire face hurdles
Attorneys looking to sue Oakland and Alameda County for liability in the Ghost Ship fire believe those entities' duty to protect the public trumps governmental immunity laws.
Attorneys preparing to sue the city of Oakland and Alameda County for negligence in the fire that killed 36 people in December must overcome state statutes and case law that shield public entities from liability for failure to close the warehouse where artists lived illegally.
Nevertheless, plaintiffs say they are optimistic a judge will rule that faulty inspections and other negligence trump government immunity.
"Once you know there is a danger, and the public entity knows and sees the danger, there's a mandatory duty to act," said San Francisco attorney Mary E. Alexander of Mary Alexander & Associates P.C. She is a liaison among attorneys who have filed 19 related suits against Chor Nar Siu Ng, owner of the warehouse known as the "ghost ship."
Alexander filed claims against the city and county for David Gregory, the father of Michela Gregory, who died when fire broke out during a Dec. 2 concert in the artists' collective. A public entity has 45 days to accept or reject the claim. If it is rejected, a plaintiff has six months to sue.
Alexander claims the city and county knew about dangerous conditions at the building not only from inspections but because of trash and debris outside. She also alleges public employees knew property managers were living inside with three minor children but failed to report child abuse and neglect as required.
Alex Katz, chief of staff in the Oakland city attorney's office, declined comment but confirmed seven claims were filed against the city. Andrea Carlise, assistant county counsel, confirmed six claims against the county but otherwise had no comment.
Shaana Rahman, a San Francisco attorney who has sued governments but is not involved in these cases, said understanding nuances in the government code is crucial.
"At first blush, the city or county says, 'We have an absolute immunity from either failure to inspect or from a bad inspection,'" she said. "But then you have other code sections that suggest public entities have to do a decent job. They can't just do nothing."
For example, Government Code section 818.6 states that a public entity is not liable for injury caused by its failure to make an inspection or by making an inadequate inspection. But Section 815.6 states that when a public entity is under a mandatory duty imposed by an enactment designed to protect against the risk of injury, it is liable if it fails to discharge that duty — unless reasonable diligence can be proven.
Attorneys must look to differentiate between "ministerial" acts such as those under 815.6, which are mandatory, and "discretionary" acts of government employees or their agents.
"I think that the ministerial component of it is — and I hate to use this term — 'Do the best you can, based on resources,'" said John K. Murphy, an attorney and former deputy fire chief in Washington state. "Under that theory, the fire department can do only so much, and after a follow-up inspection, it's on the property owner."
Murphy said a government can argue "they may not have sufficient staff, or they may not have sufficient processing power. They may do the right thing, but not in a timely manner."
Timothy Loranger of Baum Hedlund, which has sued on behalf of Robert Lapine — the father of victim Edmond Lapine — believes those hurdles can be overcome.
"There are cases that clearly hold governments are not responsible if they didn't do anything," he said. "But if they have done inspections, and have reports and found deficiencies, the argument is they should be found liable if they fail to correct those things."
James Getz
james_getz@dailyjournal.com
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