Ghost Ship lit­i­ga­tion can go for­ward

San Francisco Chronicle - - BAYAREA - By Kim­berly Vek­lerov

An Alameda County Su­pe­rior Court judge has ruled that Oak­land of­fi­cials have a duty to act when they come across un­safe con­di­tions in build­ings such as the Ghost Ship ware­house, which burned a year ago, al­low­ing a law­suit against the city stem­ming from the fire to pro­ceed.

In his rul­ing, Judge Brad Selig­man per­mit­ted some al­le­ga­tions — such as the manda­tory duty claims — to stand, while toss­ing oth­ers. The or­der means Oak­land can be held li­able for its ac­tions and in­ac­tion lead­ing up to the fire that killed 36 peo­ple. The city may ap­peal the de­ci­sion.

Oak­land had a “manda­tory duty,” Selig­man wrote last week, to fix the poor con­di­tions of a build­ing like the Fruit­vale ware­house, which had been con­verted into a res­i­den­tial and per-

for­mance space with­out city per­mis­sion. By its own or­di­nances, the city was re­quired to re­pair, re­ha­bil­i­tate or de­mol­ish struc­tures deemed a pub­lic nui­sance or dan­ger to health and safety, Selig­man said.

“There is no ques­tion of the author­ity and obli­ga­tion of the city to act when faced with an un­safe and sub­stan­dard build­ing,” he said in the de­ci­sion.

The fire broke out dur­ing an elec­tronic mu­sic party Dec. 2, tear­ing through the two-story build­ing packed with wooden sculp­tures, rugs, pal­lets and other flammable ma­te­ri­als.

Records showed that Oak­land po­lice of­fi­cers and fire­fight­ers, as well as county so­cial work­ers, had been on the premises in the weeks and years be­fore the in­ferno. And yet the city had never for­mally in­spected the ware­house or or­dered any haz­ards to be abated.

The wrong­ful-death and in­jury suits filed by sur­vivors and vic­tims’ rel­a­tives named prop­erty owner Chor Ng, pri­mary ten­ant Der­ick Al­mena and more than two dozen oth­ers as de­fen­dants. Selig­man in Septem­ber al­lowed pro­ceed­ings to go forth against Pa­cific Gas and Elec­tric Co. for al­legedly fail­ing to mon­i­tor or shut down the jury-rigged elec­tric­ity that fed into the ware­house.

Britt and Amanda Brown and their Los An­ge­les elec­tronic mu­sic la­bel 100% Silk, how­ever, were dis­missed as de­fen­dants from the suit last week.

Selig­man has yet to make a final de­ci­sion on whether Alameda County can be held re­spon­si­ble.

Cal­i­for­nia law broadly shields cities from li­a­bil­ity claims stem­ming from fail­ure to in­spect a build­ing, or neg­li­gence re­sult­ing from an in­spec­tion. To cir­cum­vent the im­mu­nity, lawyers for the vic­tims and fam­i­lies ar­gued that Oak­land had knowl­edge of the prop­erty’s dan­ger­ous con­di­tions in­de­pen­dent of any in­spec­tion.

The city, in turn, said that the­ory could cre­ate a dan­ger­ous prece­dent that dis­cour­ages city staff from even vis­it­ing a prop­erty, wor­ried that they might be ex­pos­ing them­selves to li­a­bil­ity. Selig­man sharply dis­agreed. “On the con­trary, con­fin­ing the in­spec­tion im­mu­nity to its proper am­bit en­cour­ages a pub­lic en­tity to per­form its statu­tory duty to in­spect with­out fear of li­a­bil­ity,” 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.”

Ul­ti­mately, he said, the city’s pol­icy ar­gu­ment is a mat­ter best left to the state Leg­is­la­ture. In the mean­time, Oak­land is still on the hook for some al­le­ga­tions in the Ghost Ship law­suit.

The city at­tor­ney’s of­fice did not re­spond to a re­quest for com­ment.

Michael Short / Spe­cial to The Chron­i­cle 2016

Oak­land Mayor Libby Schaaf speaks at the scene of the Ghost Ship ware­house fire three days af­ter the fa­tal blaze. Mul­ti­ple law­suits have been filed over the deaths of 36 peo­ple.

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