City Lawyer Says City Can’t Be Held Legally Responsible for Building Collapse–and She’s Probably Right

This morning let’s start out with a complicated legal concept (bring on the coffee!) that may let the City of Philadelphia off the hook for the building collapse (if, indeed, the city was at fault to begin with). From CBS 3:

“The city is immune from suit for tort liability except in eight specifically enumerated circumstances,” notes the mayor’s top attorney, solicitor Shelley Smith [at left]. She says none of those eight circumstances — most of which involve city-owned properties or city-owned utilities — apply in this building collapse case.

Smith is talking about exception to sovereign immunity, a concept originally introduced prior to the founding of the country in order to protect a monarch from prosecution. Since then, there have been a number of legal cases that have changed the degree of immunity afforded city and state governments, including the dollar amount a plaintiff could expect to receive. Talking to KYW Newsradio, Smith explained her opinion of immunity:

“The government, simply because we are here, and because it happened here, is not the insurer that nothing will ever go wrong. To hold it responsible for each and every thing it might have failed to do, or people might think it should have done, is just not a reasonable or predictable allocation of taxpayer resources.”

This is, in essence, the premise behind immunity overall: Citizens must expect there to be limits to the government’s responsibility. That being said, sovereign immunity in Pennsylvania does include exceptions, all of which, as you’ll see below, relate to what the Commonwealth owns. The exceptions, from the Pennsylvania General Assembly website:

(1) Vehicle liability.–The operation of any motor vehicle in the possession or control of a Commonwealth party.

(2) Medical-professional liability.–Acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel.

(3) Care, custody or control of personal property.–The care, custody or control of personal property in the possession or control of Commonwealth parties, including Commonwealth-owned personal property and property of persons held by a Commonwealth agency.

(4) Commonwealth real estate, highways and sidewalks.–A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency.

(5) Potholes and other dangerous conditions.–A dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the Commonwealth agency had actual written notice of the dangerous condition of the highway a sufficient time prior to the event to have taken measures to protect against the dangerous condition. Property damages shall not be recoverable under this paragraph.

(6) Care, custody or control of animals.–The care, custody or control of animals in the possession or control of a Commonwealth party, including but not limited to police dogs and horses and animals incarcerated in Commonwealth agency laboratories. Damages shall not be recoverable under this paragraph on account of any injury caused by wild animals, including but not limited to bears and deer, except as otherwise provided by statute.

(7) Liquor store sales.–The sale of liquor at Pennsylvania liquor stores by employees of the Pennsylvania Liquor Control Board created by and operating under the act of April 12, 1951 (P.L.90, No.21), known as the “Liquor Code,” if such sale is made to any minor, or to any person visibly intoxicated, or to any insane person, or to any person known as an habitual drunkard, or of known intemperate habit.

(8) National Guard activities.–Acts of a member of the Pennsylvania military forces.

(9) Toxoids and vaccines.–The administration, manufacture and use of a toxoid or vaccine not manufactured in this Commonwealth under [certain] conditions.

Smith said: “Failure to enact regulations doesn’t fall within any of the eight exceptions to immunity.” (We see nine, but she must know something we don’t.) An attorney we spoke with agreed that sovereign immunity will likely protect the city successfully should there be suits against it. The attorney also said this is why tort reform is so important to those who pursue it. For now, however, it seems Smith’s contention is accurate. It will be difficult to prove in court that the city has liability–whether it did something wrong or not.

Now, on to the other news of the day:

• Population gains, job losses in Philadelphia [Biz Journal]
• The Influence of Robert Venturi on Louis Kahn
• Nation’s most endangered historic places [CNN]
• Congratulations Fishtown! You’ve Unlocked the Fairmount Parking Achievement [PDQ]
• 17 new trails planned for Philadelphia [philly.com]