Oakland, Alameda County do not have immunity against ghost ship fire claims

OAKLAND — The city of Oakland and Alameda County do not have blanket immunity from being sued on allegations that a breach in performing mandatory public safety duties led to last December’s warehouse fire, which killed 36 people, a judge has ruled.

Alameda County Superior Court Judge Brad Seligman on Thursday rejected a bid by government agencies to kill the case, ruling that it may proceed against Oakland on one legal theory: that city employees had an overarching mandatory duty to protect public safety.

Because police officers and firefighters had visited the warehouse known as the “ghost ship” several times outside of performing inspections, the judge turned down governmental immunity.

Plaintiffs allege that police officers and firefighters were inside the warehouse numerous times for various reasons during the three years before the fire, observed dangerous conditions, and failed to report them or take action.

Seligman rejected the city’s arguments that plaintiffs’ theory would create a disincentive for city workers to visit properties for fear of liability. On the contrary, he wrote, “Expanding the immunity beyond inspections would permit a public entity to disregard what it inadvertently learns or observes, thus creating a disincentive to act or report, despite mandatory duties to do so.”

Seligman reached the same conclusion regarding Alameda County employees, except for social workers who had been there concerning children who had lived in the “ghost ship” with their parents.

Those workers, he said, were operating under statutes not designed to protect the children against the type of harm suffered in the fire, and the children were not present during the fire anyway.

Seligman is holding off on a final determination against the county until later this month. County attorneys have raised a new defense that its Fire and Building Code ordinances do not apply in the city but only in the county’s unincorporated areas. Both sides are to submit briefs on that issue by Nov. 20.

The judge rejected plaintiffs’ other legal theories in the complaint, which covers everyone killed or injured in the Dec. 2, 2016 blaze at the converted warehouse: that the governments had a special relationship with the tenants, that the governments were liable because of dangerous conditions on public property outside the warehouse, and that the governments acted negligently.

Shaana Rahman of Rahman Law PC, who regularly handles cases against governments involving dangerous conditions and is not involved in the case, said, “I think that’s a pretty good ruling, and it doesn’t seem unanticipated to me.” Gregory et al. v. Ng et al., RG16843631 (Alameda Super. Ct., filed Dec. 23, 2016).

“I don’t think his ruling seems that remote from the statutory intent,” Rahman said. “You never know what will happen on appeal, but this doesn’t scream out as an appealable issue.”

Rahman said that in most cases involving governmental immunity, the test of whether there is a mandatory duty and a breach of that duty comes at the summary judgment stage. With Seligman’s ruling on demurrer, the duty question has been eliminated, and breach is a factual question.

The judge’s ruling makes a government win on summary judgment more difficult, she said.

John K. Murphy, a Washington state attorney and former deputy fire chief who consults on risk management and is not involved in the case, said, “I think at the end of the day, Oakland will be cleared of any wrongdoing, but it’ll take a lot of money to get there.”

The idea that police and fire personnel bore a mandatory general duty for public safety is “a good argument, but it could be countered that they were there for a specific purpose. They weren’t there for an inspection; they were there for another purpose and mitigated that problem.”

Murphy said a hypothetical case where police and fire departments would not have immunity is if officers or firefighters repeatedly visited a building because of small fires, electrical system problems, gas leaks or other safety issues, concluded they needed to do something about the situation, and then did nothing.

In a hearing last week contesting Seligman’s ruling, Raymond C. Marshall of Shepherd, Mullin, Richter & Hampton LLP, representing the city, argued that the plaintiffs’ allegations don’t “connect the dots” from mandatory duty to police and fire personnel who visited the Oakland warehouse on occasions other than inspections.

Marshall also argued that the public policy goal of the broad inspection immunity statute written by the state Legislature “was not to take away protection to the plaintiff. It’s to put liability on the wrongdoer. … If you have to assume responsibility for every defect on private property, a city would go bankrupt.”

“I agree that’s the purpose, but that’s not what the allegations are in this complaint,” Seligman responded. None of the California cases the city cites, he said, “address what plaintiffs allege, which is failure from behavior outside of inspections.”

Marshall countered that, over 40 years, California cases have said that the inspections immunity law “is entitled to broad interpretation, and under circumstances like this, the city is entitled to immunity.”

Thomas J. Brandi of The Brandi Law Firm, representing the plaintiffs in the claims against the governments, said: “The mandatory duty is on the entity.”

“This is not an easy case on any side,” Seligman said. “It is a tragedy, and there are facts we’re not aware of yet. I’ll be honest. I struggled with the demurrers … but I narrowed what I felt was needed to go forward.”