GSO - Quirks and Oddities: Liability Cases

Quirks and Oddities in Premises: Liability Cases

by Gray Smith AIA AICP

Over the years in which this author has served as an expert on personal injury cases where the site of an accident might be defective, several court rulings have occurred that seem counter to justice and fairness. There are several areas of strange law, which are surely justified legally and constitutionally, but to this non-legal mind, are hard to swallow. For example, the laws that provide immunity to public employees no matter how incompetent, and the limits of liability enjoyed by agencies of government, appear out of balance with the rules under which the rest of us must operate.

Such “special treatment” might even encourage sloppiness on the part of some public entities. It might be the reason why the Southeastern Pennsylvania Transportation Authority (SEPTA) has 25 attorneys on staff to field personal injury cases. And, why the Philadelphia Housing Authority (PHA) has over 700 on-going negligence cases. Or, the underlying basis for the millions paid out to plaintiffs by the City of Philadelphia who “slip and fall” on city streets and sidewalks.$ limits of liability: Over 15 years ago, I was engaged to evaluate the design of a scattered site housing unit owned by the Philadelphia Housing Authority (PHA) in which 4 children age 1 to 6 died in a horrible fire caused primarily by the faulty design of the house. The “gut rehab” design of the house, whizzed through the local permits process without a set of plans, with a bogus “construction cost” of $2,000 on the Permit Application. The private builder under contract with the PHA was an “insider” (his brother was on the PHA Board — a conflict of interest for which he was later indicted and convicted.) He was allowed to build unmonitored.

A family lost 4 children, yet the limit of liability for government agencies at the time, established by Pennsylvania law, was $200,000, per occurrence — not per child — per occurrence. If it had been 7 children — still only $200,000.

The PHA is now self-insured as are most urban government entities. The limit of liability rule (now up to $500,000 per incident in aggregate for local agencies and $1 million in aggregate for PA agencies) has a good purpose. It prevents government and governmental authorities, such as SEPTA and the PHA, from going bankrupt from paying out multi-million punitive awards, at the whim (sometimes justified) of juries sympathetic to injured parties.

Codes and Permits officials immune: There is some interesting language, of a highly legal nature, in the “Administrative” section of the BOCA Building Codes that are used by many local jurisdictions, throughout the northeastern United States. Philadelphia and all of New Jersey use the BOCA Codes. Section 109.6 contains the following:

Relief from personal responsibility: The code official, officer or employee charged with the enforcement of this code, while acting for the jurisdiction shall not thereby be rendered liable personally, and is hereby relieved from all personal liability for any damage accruing to persons or property as a result of any act required or permitted in the discharge of official duties. Any suit instituted against an officer or employee because of an act performed by that officer or employee in the lawful discharge of duties and under the provisions of this code shall be defended by the legal representative of the jurisdiction until the final termination of the proceedings. The code official or any subordinate shall not be liable for costs in any action, suit or proceeding that is instituted in pursuance of the provisions of this code; and any officer of the department of building inspection, acting in good faith and without malice, shall be free from liability for acts performed under any of its provisions or by reason of any act or omission in the performance of official duties in connection therewith.

A test case on this language and other aspects of governmental immunity is found in a Vermont Supreme Court case McGuire v. Brattleboro.

In this case, the Supreme Court affirmed the principle of governmental immunity from liability in a wrongful death tort claim against the Town of Brattleboro in which a seven-year old boy died in a residential fire.

In 1986, an apartment occupied by Michael McGuire and his son, caught fire when McGuire fell asleep smoking a cigarette. While the father escaped with injuries, his son died of smoke inhalation. There were no smoke detectors in the apartment. Rita Corbin, on behalf of the estate of her son, sued the landlord, the town, and the Brattleboro Housing Authority, which subsidized the rents for the units.

In 1984, Brattleboro had adopted the BOCA National Building and Fire Prevention Codes, which required, among other provisions, that buildings be inspected and orders be enforced to correct dangerous conditions. The town did not make it a practice to inspect existing buildings regularly, but did, however, enforce BOCA Codes in response to complaints or as part of the process of granting new building permits. Soon after the BOCA Codes were adopted, the first floor of the McGuires’ apartment building was inspected by the codes department for wiring, plumbing and sewer problems. The inspector noted there were no smoke detectors in the apartment, but did not push for installation since they were not part of the specific complaints.

“The inspector at the time issued a certificate of occupancy, but neglected to do a building inspection. Then they would have noted the lack of smoke detectors,” according to Rodney Lawrence, building inspector of the Town of Brattleboro. “In the case of rental units, it’s the responsibility of the property owner to install the detectors.”

Town inspectors never received additional complaints, and no further inspections of the building were conducted.

The landlord and the Housing Authority settled out of court before the trial. The town sought a summary judgment on the grounds that failure to enforce the BOCA Codes created no private rights of action on behalf of the plaintiffs — McGuire and Corbin. The court refused the town’s motion for summary judgment because “local ordinances created a duty to individual members of the public and the violation of the local ordinance was a prima facie showing of negligence.” The jury awarded compensatory and punitive damages, and an appeal by the town to the Vermont Supreme Court followed. The main issue on appeal was whether an individual citizen may sue for damages or injury against a municipality for failing to enforce a law where the objective is to protect the public as a whole. (At one point during the trial, the town repealed the BOCA Codes because it was concerned with its own liability, but later reinstated them.)

It was the Supreme Court’s opinion that the “enabling statute is limited to broad, public purposes and is not consistent with the inference of a private action.” BOCA National Fire Prevention Code Section F-100.2 explicitly stated that its intention is to provide for the safety of the public at large. Also included is Section F-102.6, which prohibit a private cause of action against the town. Brattleboro was found not liable and with no duty to enforce the codes.

In the United States, each state exercises its own rules regarding tort immunity, protecting city or governmental officials from suits. Some state practice total immunity, while others practice a complete lack thereof. In the Brattleboro case, the town was considered immune because the ordinances protected the public citizens as a whole, not necessarily on an individual basis. Two examples of cases cited in the Brattleboro hearings include: Rich v. City of Mobile, in which the municipality was not liable for failure to inspect sewers that backed up; and O’Connor v. City of New York, in which the city held no liability for an inspector’s failure to discover a gas leak that later caused an explosion.

Another recent (1996) case, in Pennsylvania, to review in this regard is City of Pittsburgh, et al v. Stahlman v. McCutchen, et al.

In an experience some years ago with Gray Smith's Office in a plaintiff’s case against SEPTA, it was discovered somewhat inadvertently that the well-used stairway to the train platform, on which the plaintiff fell, was the subject of at least 15 earlier “trip and fall” lawsuits. The same set of obvious defects in the stairway had caused each accident to varying degrees. Yet SEPTA, over the several years in which the accidents occurred, chose to spend hundreds of thousands of dollars in defense costs and liability awards — rather than use the money to fix the stairway. A recent visit by this author to the same stairway revealed that repairs were made but they have worn away or broken sufficiently to exhibit premises liability again. It would appear that rebuilding the stairway in solid gold would have been more cost-effective.

The landmark Finn case: Another evolutionary event in cutting back the responsibilities of government entities in protecting the public against accidents is the historic Finn case. Fair or unfair is in the mind of the beholder on this one.

In September of 1995, the PA Supreme Court ruled that, as long as a city-owned sidewalk itself is in good condition, the City of Philadelphia cannot be forced to pay for damages sustained in a fall.

The City has paid hundreds of thousands of dollars a year from lawsuits involving falls on city owned sidewalks, some involving the condition of the walks, but others involving substances that accumulate on them.

The ruling overturned a $203,500 judgment to a woman who had broken her hand in December 1987 when she slipped on grease that accumulated on a sidewalk outside of the Family Court building on Vine Street near 17th Street. The injury forced her to retire, said her attorney, Jonathan Wheeler.

The majority opinion by Justice John P. Flaherty drew dissents from Justices Ralph Cappy and Stephen Zappala.

Noting the grease had accumulated as a result of city workers parking city vehicles on the walk, Cappy said the decision created a bad precedent for pedestrians injured on publicly owned sidewalks that are not cleared of snow and ice.

State law limits the situations in which a municipality is liable for injuries sustained on public property, but allows some exceptions when it comes to sidewalks.

But Flaherty and four other justices said the PA Legislature specifically stated that a municipality is liable if injuries result from the “dangerous condition of sidewalks themselves.”

Since the Finn decision, the principle has been applied to all municipality owned properties. Gray Smith’s Office was involved in a case where paper from the daily lunch served at a senior citizen center, owned by the City of Philadelphia, caused an elderly visitor to slip and fall sustaining injuries. It was made clear at the trial, that even the presence of collected grease, food and other trash on the same non-defective floor could not have constituted liability on the City’s part. Even the positioning of the dining tables and chairs, too tight together for comfortable passage, and rendering the culprit paper un-seeable, was not considered by the Court of Common Pleas as a “defect in the real estate.”

Back to sidewalks for a moment, a sidewalk, or “footway” as the City of Philadelphia calls it, is normally within the public right-of-way (property line to property line across a city street). Many jurisdictions, however, have ordinances that put sidewalk maintenance and repair responsibilities square on the private property owners whose property is adjacent. Although in Philadelphia the Ordinance (# 11-505) is poorly worded, it is still something to hang one’s hat on when assigning liability. Of course, if a local agency (Department of Streets; Redevelopment Authority, etc.) constructs a new sidewalk with defects, liability can be directed to the public entity. In most cases, the private contractor who did the work indemnifies the municipality, so they get added to the defendant list.

Another Common Pleas case, Martin v. City of Philadelphia, decided in June of 1996 for the City, regarding a child injured by a loose pipe lying on a city playground, is worth reviewing.

What constitutes a “defect”? A good expert, an Architect or Engineer, who knows the myriad of codes and standards that define good and proper design and construction, can help pin-point the defects. Some are not visible from simple observation, such as a slight backward tilt to a stairway tread which might retain ice, or a handrail that does not have a safe gripping shape. Others may be defects by their absence: no handrail or a partial guardrail; no warning device; or illumination level too low. Several sidewalk cases have hinged only on the width and depth of a construction joint etched improperly in the concrete surface. Public parking lots and garages usually have a wealth of defects, if compared to the intricate code requirements for their design, construction and licensing.

It remains to be seen how far state and federal legislation will go to limit liability in terms of dollar awards and specificity of defects.

Gray Smith’s Office has made it a practice to keep up with the foibles and quirks of premises liability so that our expert reports and testimony can be contemporary with that context.

Some helpful publications:
Recovery for Wrongful Death and Injury: Economic Handbook; Stuart M. Speiser; Clark Boardman Callaghan; (800) 221-9428.

Pennsylvania Injuries and Damages Reporter: A Summary of Personal Injury Opinions, Verdicts & Settlements; LRP Publications; (800) 341-7874 ext. 307.

State Liability Laws for Charitable Organizations and Volunteers; Non-Profit Risk Management Center; (202) 787-3891.

Tripped Up: Courts Still Grapple with Established Rules in “Slip and Fall”; James Podgers, Esquire in December 1996 issue of the ABA Journal; (800) 285-2221.