Philly is still reeling from the horrific Center City building collapse last week. Every conversation I’ve had included both shock over the poor oversight of high-risk work like demolition and the conclusion that, surely, the City will be sued and will pay something towards the victims. Most everyone, including other lawyers who don’t do catastrophic injury work, are shocked to hear that it is unlikely that the City will be liable.
The primary cause of disaster is obvious: the work crew performed appallingly amateurish work. Taking down a building literally joined to other buildings isn’t rocket science, but it still requires structural engineering work. First, per OSHA, “an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure,” and then steps need to be taken to avoid such “unplanned collapses,” such as by braces, or shoring, or helical piers, or all three, and then, in all likelihood, the structure needs to be taken down manually.
What you don’t do is what property owner Richard C. Basciano apparently did: pay some bankrupt company $10,000 to rip the thing down with sledgehammers and an excavator, and then get it “expedited” by an architect who never bothers to review the demolition plan. The general rule is that “a landowner who engages an independent contractor is not responsible for the acts or omissions of such independent contractor or his employees,” Beil v. Telesis Const., Inc., 11 A.3d 456 (Pa. 2011), which would seem to absolve Basciano, but that rule is subject to a number of exceptions, like the “dangerous condition,” “retained control,” and “peculiar risk” exceptions. For a discussion of all three, see Farabaugh v. Pennsylvania Turnpike Com’n, 911 A.2d 1264 (Pa. 2006). It is in general hard to pin liability on a property owner, but this situation looks nothing like your typical by-the-book demolition.
A time will come for a jury to determine the liability of Basciano, the demolition contractors Griffin Campbell Construction and S&R Contracting, and Sean Benschop, the excavator operator found with marijuana and prescription drugs in his system. Ironically, that last part seems to be largely irrelevant: given the descriptions of the work at the site and the final blow to the steel support structure, it seems the wall’s collapse was just an accident waiting to happen, and would have happened either way. Notably, for all the excitement of an immediate on-site inspection last weekend, the primary issue in the case will probably be the plaintiffs’ ability to prove one of those three exceptions, like retained control, applies to Basciano. Indeed, there’s good odds the defendants will not be fully responsible for the harm they did: the demolition companies and employees will exhaust their minimal insurance coverage and declare bankruptcy again, while Basciano will be protected from sharing responsibility by the joint and several liability “tort reform” passed by Governor Corbett and the Republicans in 2011.
The City of Philadelphia, though, will likely avoid liability completely. Six lawsuits have been filed, but the City has not been named in any of them, despite widespread reports that complaints of unsafe conditions were made to the City but no follow-up was performed; that no inspections were performed after demolition began; and that the City doesn’t license demolition contractors at all, nor require they show even minimal competence.
Why not? Because no matter how responsible the City may be as a factual matter, the City almost certainly cannot be held liable for the damages.
As a general matter, States and their municipalities enjoy “sovereign immunity,” can only be held civilly liable in one of two circumstances: (1) where they have consented to be liable and (2) where federal law, most commonly federal civil rights law, makes them liable.
In terms of the first instance, “consent” to be sued (sometimes called “waiver” of sovereign immunity), Pennsylvania has a strange, inconsistent history of finding waiver in some instances but not others, as I explained a bit more in this post. That said, immunity is generally presumed to not be waived, unless clearly done so somewhere in the Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8542. Those exceptions, however, pertain to motor vehicles, personal property, and real property in the possession or control of the State or municipality. The demolished building at 22nd and Market was not in the possession or control of the City of Philadelphia.
In terms of the second instance, while the rights protected by federal civil rights laws are nominally broad, in practice they’re exceedingly narrow. Here are a couple examples of situations in which you don’t have a right to sue the government for violations of your civil rights:
- You don’t have the right to sue the government if the cops ignore the restraining order you have against your spouse, and your spouse murders your children;
- You don’t have the right to sue the government if you wrongly spend 18 years in jail, 14 of them on death row, because the District Attorney failed to train prosecutors that they’re constitutionally obligated to turn over exculpatory evidence during your prosecution;
- As of just last week, the Third Circuit (the federal appellate court that oversees, for example, Pennsylvania) affirmed that you don’t have a right to sue the government if your child’s public school permits other students to repeatedly bully, threaten, and assault them.
Truth is, unless the City’s employees were affirmatively causing harm with reckless indifference, or the harm was caused by some property they control, then there’s little chance of holding them accountable. Thus, while there may be political fallout from this preventable tragedy — and hopefully there will be reform of our absurdly lax policies that require more of hot dog vendors than contractors operating deadly equipment — the City likely won’t pay a dime to the victims.