Opposition Brief — Jackson v. Kansas

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| FILED

>) | JUL 25 1988

No. 85-1933 ~~ JOSEPH F. SPANIOL, JR.

CLERK

In The

Supreme Court of the United States

October Term, 1985

—."

Vv

BOUND BROOK ASSOCIATION, et al.

Petitioners,

VS.

CITY OF NORWALK, et al.,

Respondents.

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Vw

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF CONNECTICUT

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Vv

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF CONNECTICUT

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—

JaMEs V. Minor

Deputy Corporation Counsel

City Hall, P.O. Box 798

South Norwalk, CT 06856

(203) 854-7750

Attorney for Respondent,

City of Norwalk

On THE Brier:

Water Marcus

Martina NicHouis IsraE ty

Mary SomMER

Simon SuMBERG

COCKLE LAW BRIEF PRINTING CO., (800) 228-8845 (tone) 75

or call collect (402) 342-2831

i

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE CASE

ARGUMENT:

A. THIS PETITION SHOULD BE DENIED

SINCE PETITIONERS HAVE FAILED

TO RAISE ANY CONSTITUTIONAL IS-

SUE CONCERNING REVIEW OF A

STATE APPELLATE COURT’S INTER-

PRETATION OF A STATE STATUTE

THAT DEFINES FRAUDULENT CON-

CEALMENT .......

B. THIS PETITION SHOULD BE DENIED

SINCE THE CONNECTICUT SUPREME

COURT CORRECTLY DETERMINED

THAT THERE WAS NO EVIDENCE TO

SUPPORT A JURY VERDICT THAT THE

STATUTES OF LIMITATIONS WERE

TOLLED BY FRAUDULENT CONCEAL-

MENT iaciipadcia eat ite

C. THIS PETITION SHOULD BE DENTED

SINCE EVEN IF THIS COURT, FOR THE

FIRST TIME, REVERSED A STATE AP-

PELLATE COURT’S DECISION ON A

STATE STATUTE AS TO WHETHER

JUDGMENT N.0O.V. WAS PROPERLY

GRANTED, THE CASE MUST STILL BE

REMANDED TO THE CONNECTICUT

SUPREME COURT TO DETERMINE LE-

GAL ISSUES SUCH AS LIABILITY OF A

MUNICIPALITY FOR NEGLIGENT IS-

SUANCE OF A CERTIFICATE OF OC-

PN = essa ucastic cohccteveseccnesmtinee nsteadiabtrtndastastiom

Ree IID cerita csc saietessccntbesaicmraie Fie Peo COR a:

TABLE OF CONTENTS TO APPENDICES

Page

Decisions of Connecticut Supreme Court affirming

or directing grant of motion for judgment n.o.v.

Al to Al1O

List of statutes or decisions of 50 states rejecting

liability for damages for negligent inspection or

issuance of a certificate of occupancy B1 to B38

ill

TABLE OF AUTHORITIES

CasEs

Bound Brook Association vs. Norwalk, 198 Conn.

660 e ES

Boyers vs. Missouri Pacific R. Co., 352 U.S. 500,

77 S. Ct. 448 ..... . : WO 5k ae

Schulz vs. Pennsylvania R. Co., 350 U.S. 523, 76

i. aa

Sestito vs. Groton, 178 Conn. 520, 423 A. 2d 165 _....

Shore vs. Stonington, 187 Conn. 147, 444 A. 2d 1379 ..

Neely vs. Martin K. Eby Construction Co., 386 U.S.

GS Sa

Simblest vs. Maynard, 427 F. 2d (2d Cir. 1970)

STATUTES

Section 52-595, Connecticut General Statutes

TREATISES

9 Federal Practice and Procedure, Wright and Miller ..

The Business of the Supreme Court, Frankfurter

Fe le

Connecticut Public Act 86-338 .......... 8-0 LAME AC

Page

4

a

.. Dy 6

I. COUNTERSTATEMENT OF THE CASE

Contrary to plaintiffs’ argument in their Petition for

Certiorari, the Connecticut Supreme Court emphasized

those facts favorable to the plaintiffs in its decision released

February 18, 1986. Chief Justice Ellen Peters, the author

of the opinion, is known for her opinions expanding con-

stitutional rights and seeking te expand municipal liability.

Sestito vs. Groton, 178 Conn. 520 (1979); Shore vs. Ston-

ington, 187 Conn. 147 (Peters, J. dissenting at Pages 157-

163) (1982).

The undisputed facts not emphasized in plaintiffs’ pe-

tition show that the City of Norwalk issued the last cer-

tificate of occupancy in mid-1969, and suit was not brought

by plaintiffs until over nine years later, in September 1978.

The jury found that all applicable statutes of limitations

expired against the City of Norwalk and its Chief Building

Inspector, William Guarnieri. Two homeowners sued the

developer but not the City or Chief Building Inspector in

1973, and their cases were consolidated and tried with this

ease. By 1974, the following evidence indicated that the

plaintiffs knew or should have known of settlement prob-

lems:

1. Prior to 1971, the developer offered to repur-

chase, repurchased, releveled or repiled seven houses.

2. Two neighbors had sued the developer, his engin-

eer, and the developer’s company because of settlement

problems.

3. The owners of twenty homes (more than 75 per-

cent of those plaintiffs who owned a house prior to De-

cember, 1974) testified of personal problems or personal

9

knowledge of neighborhood problems with house and yard

settlement. One homeowner testified that neighbors dis-

cussed formation of an association to deal with settlement

problems before 1973.

4. Even though the Building Inspector’s records were\

open to the public, and each file for each house on piles

had a certification from the engineer that a wood pile

foundation had been constructed in accordance with the

building code, not one plaintiff ever examined the file,

went to the Building Inspector’s office, talked by phone or

in person to any city official, was misled by any action or

assertion by any city official, or ever relied on any act or

statement of any city official, before or after purchase of a

house. Not one plaintiff testified that a city official misled

him or her, or failed to cooperate when asked.

Finally, when City officials were asked, a commit-

tee of the City’s local legislative body conducted an investi-

gation into the reasons why a partial foundation failure

occurred in 1976. The City paid $13,000.00 for an engineer-

ing study in 1977 and $4,000.00 for a later study on repiling

methods. The mayor and other City officials went to Wash-

ington, D.C. to obtain federal aid, and wrote many state

and federal officials seeking to help the plaintiffs.

Plaintiffs, through their attorneys, admitted at

trial there was no evidence of detrimental reliance by any

plaintiff on any act by a City official at oral argument.

Plaintiffs’ counsel admitted at oral argument before the

Connecticut Supreme Court that there was no evidence

that the Building Inspector knew that the engineer’s certi-

fications as to piling were misleading. (Page 9a of Peti-

tioners’ Brief)

All witnesses, including the Plaintiffs’ experts, tes-

tified that only an engineer could certify that the wood

3

pile foundation would comply with the building code, and

that the building code allowed a Building Inspector to rely

upon such certificates of an outside engineer. No one in the

Building Inspector’s office was qualified to plan or imple-

ment such a wood pile foundation.

The appeal to the Connecticut Supreme Court involved

only the City of Norwalk and its Chief Building Inspector,

since the developer and his corporation paid $1.25 million

in a court-approved settlement. Never reached by the Con-

necticut Supreme Court were the legal issues of liability,

never decided in Connecticut but overwhelmingly decided

in most of the states, that a municipal inspector cannot be

liable in damages for negligent issuance of a certificate of

occupancy.

The issue of deprivation of the right to a jury trial

was never raised below, in the trial court or before the

Connecticut Supreme Court (except in a cursory fashion in

a motion to reargue).

II. ISSUES

A. The Supreme Court should deny the Petition for

Writ of Certiorari, since it lacks jurisdiction conferred

upon this court by 28 U.S.C. Section 1257(3), and since

there is no federal issue involved.

The Petitioners do not cite one single case supporting

their argument that the U. S. Supreme Court should ‘‘see-

ond guess’’ a decision of a State Appellate Court on a

purely state issue. All of the cases cited in Petitioners’

brief deal with a federal statute, such as the FELA, Jones

Act, or Boiler Inspection Act. These line of cases, dealing

with a state court interpretation of a federal statute, have

been criticized by various commentators such as Wright

and Miller, 9 Federal Practice and Procedure, Section 2526,

Pages 554-9, and in Justice Frankfurter’s dissents: Schulz

vs. Pennsylvania R. Co., 350 U.S. 523 at 527, 768. Ct. 708 at

711, 100 L. Ed. 668; Boyers vs. Missourt Pacific R. Co., 352

U.S. 500, at 524, 77 S. Ct. 443 at 465, 1 L. Ed. 2d 520;

Frankfurter and Landis, The Bustness of the Supreme

Court, 206 et seq.

The decision of the Connecticut Supreme Court dealt

solely with a Connecticut statute, which codifies the com-

mon law as to when a statute of limitations is tolled by

fraudulent concealment:

Section 52-595. Fraudulent Concealment of Cause of

Action

If any person, liable to an action by another, fraudu-

lently conceals from him the existence of the cause of

such action, such cause of action shall be deemed to ac-

cure against such person so liable therefor at the time

when the person entitled to sue thereon first discovers

its existence. (emphasis added)

The City and Chief Building Inspector argued that

none of the necessary elements of this statute were met by

the homeowners, since they were not ignorant of their

cause of action, there was no evidence that the City com-

mitted an affirmative act of concealment, intending to keep

any homeowner in ignorance of a cause of action, and there

was no evidence that any plaintiff relied, to his detriment,

upon any affirmative act of concealmeni by the City. The

Connecticut Supreme Court decided the plaintiffs failed

to meet their heightened burden of proof, to show by clear

and convincing evidence that either the City or its Chief

5

Building Official fraudulently concealed from each plain-

tiff the existence of the cause of action.

The facts as cited in this brief, and even in the Peti-

tioners’ brief, clearly indicate that there was no communi-

cation by any plaintiff with any City official; further, all

records were available in open City files, and were subject

to review by any plaintiff prior to or after the purchase of

his home. The Petitioners sought to avoid their basic fail-

ure of proof by arguing before the Connecticut Supreme

Court a theory of “constructive reliance’’, or ‘‘constructive

fraudulent concealment’’. The Connecticut Supreme Court

flatly rejected this attempt, and determined from the facts

and all reasonable inferences from the facts that the plain-

tiffs failed to meet their heightened burden of proof.

Even if the Connecticut Supreme Court had construed

a federal statute, there is no deprivation of a due pro-

cess right to a jury trial when a trial court or an ap-

pellate court determines, as a matter of law, that there

is insufficient evidence upon which to base a jury verdict.

Neely vs. Martin K. Eby Construction Co., 386 U.S. 317,

87 S. Ct. 1072 (1967).

In Neely, the U. S. Supreme Court stated that Rule

50 of the Federal Rules of Civil Procedure did not restrict

the Seventh Amendment’s guarantee of jury trial, by al-

lowing a trial court or appellate court to enter judgment

n. 0. V.;

As far as the Seventh Amendment’s right to jury trial

is concerned, there is no greater restriction on the prov-

ince of the jury when an appellate court enters judg-

ment %. 0. v. than when a trial court does; consequently,

there is no constitutional bar to an appellate court

granting judgment x. o. v. (citation omitted) (87 S. Ct.

at 1076)

6

In Connecticut, the standard for granting a directed

verdict or judgment n. o. v. is similar to the standard artic-

ulated by the Second Circuit, in determining whether

there is sufficient evidence to go to a jury:

Simply stated, it is whether the evidence is such that,

without weighing the credibility of the witnesses or

otherwise considering the weight of the evidence, there

can be but one conclusion as the verdict that reasonable

men could have reached. (Simblest vs. Maynard, 427

F. 2d 1, 4 (2d Cir. 1970) )

In Connecticut, the test was set forth in Bound Brook

Assocwation vs. Norwalk, 198 Conn. 660, at 667 (page 8a of

the Petition for Writ of Certiorari):

Our review of a trial court’s refusal to direct a verdict

or to render judgment notwithstanding the verdict

takes place within carefully defined parameters. We

must consider the evidence, including reasonable in-

ferences which may be drawn therefrom, in the light

most favorable to the parties who are successful at

trial ... The verdict will be set aside and judgment

directed only if we find that the jury could not reason-

ably and legally have reached their conclusion...

In Appendix A are Connecticut Supreme Court cases

which review the decision of a trial court to grant or deny

a motion for judgment n. o. v. These forty-one cases in-

dicate that for the past century Connecticut trial courts

and the Connecticut Supreme Court have set aside jury

verdicts, for insufficient evidence.

Therefore, Petitioners’ attempt to create a ‘‘federal

issue’’ must fail for three reasons. First, this court has

ruled in Neely, supra, that there is no constitutional viola-

tion if a trial or appellate court grants judgment %. o. v.

Second, the U. S. Supreme Court has never reviewed a de-

7

cision of a state court construing a state statute as to

whether judgment n. 0. v. was properly granted. Finally,

this allegedly constitutional issue was never raised before,

except in a cursory motion to re-argue, which was denied

by the Connecticut Supreme Court.

B. The Connecticut Supreme Court acted properly

in finding, as a matter of law, that there was insufficient

evidence to support a jury verdict on the issue of fraud-

ulent concealment.

The Connecticut Supreme Court decided that there

was insufficient evidence to support a jury verdict that the

City of Norwalk, or its Chief Building Official, intention-

ally concealed a cause of action from any of the plaintiffs.

From a review of the facts as cited in this brief, the

Petitioners’ brief, and the Connecticut Supreme Court de-

cision, it is obvious that the plaintiffs were not ignorant of

the existence of a cause of action, since four people, the

owners of two different houses, sued the developer, the

developer’s corporation, and the engineer in 1973, five

years before the Bound Brook Association filed suit.

There was no detrimental reliance on any affirmative act

of the City or a City employee in concealing a cause of

action from plaintiff since there was simply no commu-

nication between any of the homeowners and thie City.

Furthermore, all of the pertinent records were open

to the public in the Building Inspector’s files. Although the

Petitioners complained that some houses were repiled

without benefit of building permits or new certificates of

occupancy, none of these houses were owned by any plain-

tiff. As the Connecticut Supreme Court pointed out, it is

more difficult to think of a series of actions more ‘‘open

and notorious’’ than removing a house from its foundations,

demolishing the old concrete slab upon which it had rested,

i

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installing new pilings with a large and noisy diesel or drop

hammer, and replacing the houses on newly constructed

foundations. Finally, as the Connecticut Supreme Court

pointed out, there is irony in the homeowners’ posi-

tion that even though they lived in the houses which had

settlement problems, or near houses that did have such

settlement problems, they were ‘‘ignorant of a cause of ac-

tion,’’ while City officials and the City somehow knew about

the problems but concealed them. It is also ironic that in

1977, the City paid over $14,000.00 for an engineer to de-

termine possible solutions to the problems, and this en-

gineer was the homeowners’ main expert witness at the

trial.

Because there was absolutely no communication be-

tween the homeowners and City officials before or after

they purchased their homes, because all of the records were

open to the public, and because the City cooperated with the

plaintiffs paying substantial money to have an investi-

gation done and the problems determined, there is no reason

for the U. S. Supreme Court to take the unprecedented step

of granting a Petition for Certiorari in order to ‘*second

vuess’’ the Connecticut Supreme Court on a decision in-

volving a state statute.

C. Even if this court were to grant a petition to re-

view a state court’s factual determination involving a

state statute, this litigation would still continue since the

Connecticut Supreme Court never addressed the legal is-

sues concerning liability of a building inspector who neg-

ligently issues a certificate of occupancy.

Even if this court were to decide, for the first time,

to grant a Petition for Certiorari to review a State Ap-

pellate Court’s decision, on the facts, concerning a state

statute, that defines fraudulent concealment, this would

9

not be the end of the litigation. Although never decided

in Connecticut, the overwhelming majority of the fifty

states have decided that even the negligent issuance of a

certificate of occupancy will not make a municipality or a

building official liable in damages, if it is later determined

the house was constructed in violation of the basic build-

ing code. Attached hereto as Appendix B is a list of the

states which, either by statute or case law decision, have

made such determination that a municipal or state in-

spector is not liable for the wrongdoing of a third party,

simply because such official failed to detect such wrong-

doing.

It is unlikely that Connecticut will ever reach this

question, since it has recently adopted a state tort claims

act, which bars any liability for the negligent issuance, or

failure to issue, any permit, certificate, or approval. Sec-

tion 13 of Publie Act 86-338 states as follows:

Notwithstanding the provisions of subsection (a) of

this section, a political subdivision of the state or any

employee, officer, or agent acting within the scope

of his employment or official duties shall not be liable

for damages to person or property resulting from . . .

(7) the issuance, denial, suspension, or failure or re-

fusal to issue, deny, suspend, or revoke any permit,

license, certificate, approval, order or similar au-

thorization, when such authority is a discretionary

function by law, when such issuance, denial, suspension

or revocation or such failure or refusal constitutes

a reckless disregard for health or safety . . .

Issues raised by the City and its Chief Building Of-

ficial as to liability, and not yet decided by the Connecticut

Supreme Court, include the following issues: whether the

City is not liable for negligent issuance of a certificate of

occupancy; whether the issuance of a certificate of occu-

mac ae

10

pancy, by itself, cannot legally be a nuisance; wether the

City is not responsible for intentional acts of fraud or

fraudulent concealment of any of its employees; whether

the issuance of a certificate of occupancy, based upon a

complex building code is a matter of discretion, and wheth-

er negligence in the enforcement of this complex document

is a violation of a public duty, for which a municipal of-

ficial can be liable.

Even if this court were to grant the petition, and re-

verse the Connecticut Supreme Court on a factual issue,

this would not end the litigation. The Connecticut Supreme

Court would have to then determine the legal issues raised

by both the City and its Building Inspector.

III. CONCLUSION

For the above stated reasons, it is respectfully sub-

mitted that the Petition for Writ of Certiorari should be

denied.

Respectfully submitted,

By /s/ James V. Minor

Deputy Corporation Counsel

Attorney for Respondent

City of Norwalk

On THE BrIEF:

Water Marcus

Martina NicHouis IsraELy

Mary SoMMER

Simon SuMBERG

:

Al

APPENDIX A

A. Connecticut Supreme Court cases affirming a trial

court’s decision to set aside a jury verdict and enter a

judgment contrary to the verdict, or directing the trial

court to do so.

Bliss vs. Bange, 6 Conn. 78 (1826) (Jury verdict for de-

fendant, after he forced plaintiff off his property, claim-

ing as a special defense title to the land; motion for judg-

ment n.0.v. granted by trial court; no error).

Howe vs. Raymond, 74 Conn. 68, 49 A. 854 (1901) (Jury

verdict for plaintiff, set aside and judgment entered for

defendants; no error; action by indorsee to recover a

promissory note; ‘‘It is only when the verdict is mani-

festly and palpably against the evidence in the case...

that it should be set aside... This power of supervision

and correction which the judge has over the verdict is an

essential part of the jury system...’’)

Fell vs. Hancock Mutual Life Insurance Co., 76 Conn. 494,

57 A. 175 (1904) (Trial court set aside verdict for plain-

tiff in a suit on a life insurance policy; Supreme Court

affirmed decision of trial judge in setting aside verdict

for plaintiff, and entering judgment for defendant, based

upon the fact the verdict was against the evidence).

Roma vs. Thames River Specialties Co., 90 Conn. 18, 96

A. 169 (1915) (Jury verdict for plaintiff in personal in-

jury case set aside by trial court, and judgment entered

for defendants; no error).

Sommers vs. Adelman, 91 Conn. 596, 101 A. 7 (1917) (Jury

verdict for plaintiff, set aside by the court as against the

evidence; no error; testimony of plaintiff was contrary

A2

to overwhelming physical evidence and evidence of all

witnesses as to exercise of due care in automobile acci-

dent).

Lamenza vs. Shelton, 96 Conn. 403, 114 A. 96 (1921) (Jury

verdict for defendant tenants in action for summary pro-

cess; motion for judgment n.o.v. granted by trial court;

no error). -

Munson vs. Atwood, 108 Conn. 285, 142 A. 737 (1928)

(Trial court set aside jury verdict for plaintiff, and en-

tered judgment for defendant; no error).

Marcil vs. Merriman and Sons Inc., 115 Conn. 678, 163 A.

404 (1932) (Jury verdict for plaintiff in personal injury

case set aside, and judgment directed for defendant; no

error).

Joanis vs. Engstrom, 135 Conn. 248, 63 A. 2d 151 (1948)

(Jury verdict for plaintiff, set aside and judgment for de-

fendant entered; no error; plaintiff’s decedent died as a

result of a three car collision, and the physical facts and

al) the testimony of various witnesses were contrary to

the jury verdict).

Robinson vs. Southern New England Telephone Co., 140

Conn. 414, 101 A. 2d 491 (1953) (Jury verdict for plain-

tiff, which the court set aside, and rendered judgment for

the defendant notwithstanding the verdict; no error ; plain-

tiffs sued telephone company for failure to put a call to

the fire department, to report a fire at plaintiff’s house;

Supreme Court agreed that there was no evidence connect-

ing the failure to contact the proper fire department, and

the damages to plaintiff’s house).

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A3

Fisher vs. Jackson, 142 Conn. 734, 118 A. 2d 316 (1955)

(Jury verdict and judgment for plaintiff; Supreme Court

ordered that judgment be directed for defendant; news-

paper reporter sued managing editor, and five years later

was discharged; no evidence that this was a breach of

contract for ‘‘permanent’’ employment).

Rickey vs. E.H. Jacobs Mfg. Co., 142 Conn. 495, 115 A. 2d

336 (1955) (Jury verdict for plaintiff reversed; Supreme

Court directed judgment for defendant; delivery man cut

his wrist on a pane of glass in an overhead door, which

he raised to make deliveries, and it suddenly fell down,

and when he tried to stop it, he put has hand through the

pane of glass; defendant entered no evidence, and plaintiff

introduced no evidence of a defect in the door).

Inbero vs. Lumbermens Mutual Casualty Co., 143 Conn.

269, 121 A. 2d 622 (1956) (Jury verdict for plaintiff set

aside by the court, and judgment entered for defendants;

no error; suit against insurance company for failure to

pay judgment against insured).

Parowski vs. Bridgeport Hospital, 144 Conn. 531, 134 A.

2d 834 (1957) (Verdict for plaintiff against two defen-

dants, and trial court entered judgment against one de-

fendant, but directed verdict for the named defendant

notwithstanding the jury verdict: no error; plaintiff’s

decedent fell or jumped from window of hospital, and

judgment directed for hospital).

Palmieri vs. Macero, 146 Conn. 705, 155 A. 2d 750 (1959)

(Jury verdict for plaintiff, which the court set aside, and

then entered judgment notwithstanding the verdict for de-

fendant; no error; passenger sued driver, who for some

reason drove off the road on the Pennsylvania Turnpike,

A4

either asleep, or due to a heart attack; since plaintiff was

asleep, and there was no evidence as to what caused the

driver to go off the road, there was no evidence for the

finding of the jury that the driver was negligent).

Noebel vs. Housing Authority, 146 Conn. 197, 148 A. 2d

766 (1959) (Jury verdict and judgment for plaintiff; error,

judgment directed for defendant; housing authority had

no duty with respect to attempt to jump over a wire bar-

rier, since there was no nuisance or negligence).

Stavenezer vs. Sage-Allen and Co., 146 Conn. 460, 152 A.

2d 312 (1959) (Verdict and judgment for plaintiff, who

sued store employee for falsely accusing her of not paying

for food; Supreme Court directed judgment for defen-

dant, finding no cause of action for slander or any other

recognizable cause of action).

Attardo vs. Ambriscoe, 147 Conn. 708, 166 A. 2d 458

(1960) (Jury verdict for plaintiff, which the court set

aside, and entered judgment for the defendant notwith-

standing the verdict; no error; 7-year old boy, trespassing,

fell through an open stairwell in a house under construc-

tion; there was no evidence that the defendant knew, or

was chargable with knowledge, of the likelihood that chil-

dren would trespass upon his property).

Fabrizio vs. Youhas, 148 Conn. 426, 172 A. 2d 69 (1961)

(Jury verdict for plaintiff against two defendants; trial

court set aside verdicts, and entered judgment for both

defendants; error; Supreme Court directed trial as to one

defendant, and found no error as to entering judgment for

the other defendant; plaintiff’s decedent fell down cellar

stairs, and there was no evidence to support verdict

A5

against one defendant, who was not present, and not aware

of the visit of decedent).

Hale vs. Crestline Realty Inc., 148 Conn. 643, 173 A. 2d

500 (1961) (Jury verdict for plaintiff, set aside by court

and judgment entered for defendant notwithstanding the

verdict; no error; 8-year-old boy injured by falling out

of large tree on property, and there was no evidence that

owner knew the children played on land, or used tree for

vlay).

Petrillo vs. Bess, 149 Conn. 166, 179 A. 2d 600 (1961)

(Verdict and judgment for plaintiff; Supreme Court or-

dered judgment directed for defendant, where plaintiff

claimed defendant was liable under statute for starting a

fire, which ultimately spread; to plaintiff’s house; the

Supreme Court found that the verdict was in conflict with

the indisputable physical facts).

Vacca vs. Della Camera, 149 Conn. 277, 179 A. 2d 616

(1962) (Verdict and judgment for plaintiff; Supreme

Court ordered that judgment for defendant be directed;

plaintiff feli as ladder which he was descending toppled

over; ‘‘We are of the opinion that the jury misapplied

the law as given to them by the court or were actuated

by other motives in finding against the defendant... .’’

at page 281).

Masterson vs. Atherton, 149 Conn. 302, 179 A. 2d 592

(1962) (Verdict and judgment for plaintiffs; Supreme

Court ordered judgment directed for defendant; four peo-

ple injured and two killed as a result of a fire in an apart-

ment; Supreme Court found that there was no evidence

to support any claim of negligence on behalf of landlord

A6

or repairman, who repaired furnace prior to the fire;

‘*Section 234 of the Practice Book is practically identical,

in its wording, with Rule 50(b) of the Federal Rules of

Civil Procedure . . . cases construing and applying Rule

50(b) are of persuasive ... authority ...’’ at page 316).

Louche vs. Silvestri, 149 Conn. 373, 179 A. 2d 835 (1962)

(Jury verdict and judgment for plaintiffs reversed by

Supreme Court, who ordered judgment directed for de-

fendant; a 12-year old boy fell from a tree on land which

he was trespassing; the Supreme Court found that the

tree was not a structure or artificial condition, necessary

to create a cause of action).

Lewts vs. Kasimer, 153 Conn, 138, 211 A. 2d. 837 (1965)

(Jury verdict for plaintiff, set aside by court and judgment

for defendant notwithstanding the verdict entered; no

error; tenants sued landlord for damages resulting from

fall, and court decided that there was no evidence as to con-

trol).

Monahan vs. Montgomery, 153 Conn. 386, 216 A. 2d. 824

(1966) (Verdict and judgment for plaintiff; Supreme Court

found error, and ordered judgment directed for defendant;

Plaintiff’s decedent was raking a pile of debris, fell, and

sued on the grounds that a branch was a defect; the Su-

preme Court found there was no evidence that the branch

being raked by the plaintiff was a defect).

\ oman

Haffey vs. Lemieux, 154 Conn, 185, 224 A. 2d. 551 (1966)

(Jury verdict for plaintiff against husband and wife own.

AT

ers of one-family house; trial court granted motion for

judgment n. o. v. in favor of the defendant wife, on grounds

there was no proof of her knowledge of the defective condi-

tion; no error).

Farlow vs. Andrews Corporation, 154 Conn. 220, 224 A. 2d.

046 (1966) (Jury verdict for plaintiff for damages caused

a fall on an icy sidewalk in front of an office building; trial

court granted motion for judgment n. o. v. in favor of the

defendant; no error, as there was no proof that the de-

fendant had the necessary possession and control to sup-

port the jury finding of liability).

Vuono vs. Eldred, 155 Conn. 704, 236 A. 2d. 470 (1967) (At

the close of the jury trial, the court directed a verdict for

the defendant, and the court later granted a motion to set

aside the verdict, and entered judgment for plaintiffs; Su-

preme Court found error, and ordered judgment entered in

favor of defendant; plaintiff sued for personal injuries

arising out of a two-car accident, and there was no evidence

as to ownership or agency).

Levitz vs. Jewish Home for the Aged Inc., 156 Conn. 193,

239 A. 2d. 490 (1968) (Jury verdict for the plaintiff against

one defendant set aside, and judgment rendered for the de-

fendant; no error; Supreme Court agreed with trial court

that jury could not reasonably or logically have found that

driver of car that hit plaintiff was the agent of a corpora-

tion).

Guglielmo vs. Klausner Supply Co., 158 Conn. 308, 259 A.

2d. 608 (1969) (Jury verdict for plaintiff set aside, and

judgment entered for defendant notwithstanding the ver-

dict; affirmed; plumber injured from fumes of compound,

and plaintiff failed to prove negligence or allege or prove a

claim in strict liability).

A8

Bears vs. Hovey, 159 Conn. 358, 269 A. 2d. 77 (1970) (Jury

verdict for plaintiff, set aside by the trial court and judg-

ment entered for defendants notwithstanding the verdict;

no error; sledding accident, where young child was injured,

and there was no proof of a duty by the land owner, since

there was no evidence the defendants knew of sleigh riding

or a snow fort which had recently been built by other chil-

dren on defendant’s land).

State vs. Kelsey, 160 Conn. 551, 274 A. 2d. 151 (1970) (Jury

verdict of guilty; motion for judgment n. 0. v. based upon

insufficiency of evidence denied by trial court; error; judg-

ment directed on grounds of insufficient evidence, concern-

ing the crime of breaking and entering and larceny).

Bartholomew vs. Catania, 161 Conn. 180, 285 A, 2d, 350

(1971) (Jury verdict for plaintiff, which trial court set

aside, and entered judgment for defendants notwithstand-

ing the verdict; no error; there was no evidence, even

though considered in the light most favorable to the plain-

tiff, that the defendants were liable when the plaintiff fell

on an allegedly defective sidewalk).

Toomey vs. Danaher, 161 Conn. 204, 286 A. 2d. 293 (1971)

(Jury verdict for passenger in one car accident, against

deceased driver, where there was no evidence of excessive

speed, since plaintiff had a retrograde amnesia ; trial court

refused to set aside verdict; error; judgment for plaintiff

set aside since there was no evidence of negligence or of

excessive speed).

DeRubbo vs. Aetna Insurance Co., 161 Conn. 388, 288 A. 2d.

430 (1971) (Jury verdict for plaintiffs against insurance

company pursuant to statute for failure to pay judgment

against driver; trial court refused to grant judgment

oe er

A9

n. 0. V.; error, Judgment directed, since as a matter of law

the facts showed that the driver was not insured under the

policy).

Bogart vs. Tucker, 164 Conn. 277, 320 A. 2d. 803 (1973)

(Jury verdict for plaintiff against the drivers of two other

cars; trial court denied motion for judgment x. o. v.; error;

judgment directed for one defendant, since there was insuf-

ficient evidence of any proximate cause between negligence

of that particular vehicle).

Meade vs. Warehouse Transpori Inc., 165 Conn. 553, 338 A.

2d. 111 (1973) (Jury verdict, set aside by the trial court

and judgment for the defendants notwithstanding the ver-

dict; no error; there was no evidence from which the jury

could have found or inferred that a motor vehicle accident

was caused by the negligence of a deceased operator).

Derby vs. Connecticut Light and Power Company, 167

Conn, 136, 355 A. 2d. 244 (1974) (Jury verdict for seven-

year-old girl, who climbed an apple tree on property owned

by the utility company; trial corrt refused to grant motion

for judgment n. o. v.; error; judgment directed for defen-

dant, since there was no evidence that the utility company

knew or had reason to believe that a dead limb would in-

volve an unreasonable risk of harm to a child).

O’Brien vs. Cordova, 171 Conn. 303, 370 A. 2d. 933 (1976)

(Jury verdict for plaintiff in two car accident; trial court

refused to grant motion for judgment %. o. v.; error; judg-

meni directed for defendant since there was no evidence of

negligence sufficient to remove the issue from the field of

surmise and conjecture).

Conte vs. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374

A, 2d. 144 (1976) (Jury verdict for plaintiff entered; error;

A10

Supreme Court directed that judgment enter for the de-

fendant Ford, in a breach of warranty action by a plain-

tiff who claimed that his automobile was not merchantable).

Beckenstein vs. Potter & Carrier, Inc., 191 Conn. 120, 464 A.

2d. 6 (1983) (Owners of a shopping mall recovered a jury

verdict against the contractor and the manufacturer of cer-

tain roofing material; trial court granted motion for judg-

ment n. o. v. of the manufacturer; no error; there was no

evidence that there was an agency relationship between the

manufacturer and the contractor).

Peer

Bl

APPENDIX B

Summary of law of 50 states and the District of Co-

lumbia, including those with State Tort Claims Acts, deal-

ing with public officials of the state and municipality,

who are held immune from civil liability for alleged acts

of negligent inspection, failure to inspect, certification,

licensing, misrepresentation or deceit.

1, Alabama: Section 11-47-190 waives municipal im-

munity, for negligence of a municipality’s employees act-

ing within the scope of their employment. ‘‘No city or

town shall be liable for damages for injury .. . unless

said injury or wrong was due to the neglect, carelessness

er unskillfulness of some agent, officer or employee of

the municipality engaged in work therefore and while

acting in the line of his duty .. .’’ No other exceptions.

Rich v. City of Mobile, 410 So. 2d 385 (Ala. 1982).

Homeowners sued City, claiming that City negligently

inspected sewer tines connecting homeowners’ residence

and main system. Because city building inspectors failed

to require installation of overflow traps the Plaintiffs’

homes were constantly backed up with sewage.

These policy considerations may be expressed in

terms of the broader requirement of the City to pro-

vide for the public health, safety, and general welfare

of its citizenry. While, as here, the individual home-

owner is affected by the discharge of the City’s sewer

inspectors’ duty, the City’s larger obligation to the

whole of its resident population is paramount; and

the imposition of liability upon the City, particularly

where the Plaintiff’s reliance upon the public inspec-

tion is secondary and incidental to their reliance

upon the building contractor, necessarily threatens

the benefits of such services to the public at large.

(410 So. 2d 385, at 387)

B2

2. Alaska: Section 09.65.070 formerly provided that

governmental immunity is waived for any torts of any

municipality; in 1977, it was extensively amended so as

to exempt all claims arising out of inspection of proper-

ties or discovery of any health or safety hazard; failure

to abate any violation of any health or safety statute

or regulations; any claim based upon any exercise or fail-

ure to exercise a discretionary function; any claim based

upon ‘‘the grant, issuance, refusal, suspension or denial

of a license, permit, appeal, approval . . . (emphasis add-

ed).

3. Arizona: Govermental immunity for state and mu-

nicipalities abolished by Court; Section 26-314 gives state

employees protection if negligent in exercise of discre-

tionary functions.

Bagley v. State, 595 P. 2d 157 (Ariz. 1979). Miner’s

surviving spouse sued state and state officials for death

of miner from cave-in of mine, stating that a week before

the cave-in, the state mine inspector orderec the mine

closed for failure to comply with safety standards, and the

mine was still open when the cave-in took place. ‘‘The

duties required of the State Mine Inspector under the

mine operations statutes were of a public nature, and no

private duty to any specific individual was created.’’ At

page 159.

Wesley v. State, 571 P. 2d 1057 (Ariz. 1977). Father

of shooting victim in bar sued state liquor license depart-

ment, for failure to revoke license of bar, after receiving

official information of many instances of violence in bar.

The Supreme Court stated ‘‘at most the liquor depart-

ment owed a duty to the general public to investigate vio-

B3

lations . . . the decision to suspend or revoke a license

is quasi-judicial and is based upon the exercise of discre-

tion . . . the duty is to the general public and is not nar-

rowed to an innocent victim damaged by the act of a vio-

lator.’’ (571 P. 2d 1057, at 1059).

Besserman v. Paradise Valley, Inc., 569 P. 2d 1369

(Ariz. 1977). Court of Appeals affirmed summary judg-

ment for town and building inspector, when Plaintiffs

sued, stating the town and building inspector were liable

for ‘‘bad faith and malicious inspection’’ of their home

by the building inspector and for damages based upon

fraud. The Plaintiffs alleged this based upon a provision

of the Building Code which stated: ‘‘The building offi-

cial or any employee charged with the enforcement of this

Code, acting im good faith and without malice for the City

im the discharge of his duties, shall not thereby render

himself liable personally. . . .’’ Section 202(g) of Uni-

form Building Code). The Court of Appeals stated that

the negative of his section does not mean the building of-

ficial is liable for bad faith; ‘‘the services performed by

a building inspector are for the benefit of the public

generally and not the individual and no cause of action

will lie, absent special circumstances, for damages caused

by a failure to inspect properly.’’ (At page 1370).

The Court of Appeals stated that since there was no

private duty in this case, the claim of fraud and claim of

bad faith inspection should be dismissed.

Duran v. City of Tucson, 509 P. 2d 1059 (Ariz. 1973).

Body shop employee sued City, Fire Department and Fire

Chief for negligent violation of fire prevention code by

permitting open flame heater in work area, which ignited

B4

gasoline, causing serious burns. ‘‘We believe the Fire

Code is analogous to a building code ... (New York and

Minnesota cases are cited for the proposition that) a

Building Inspector acts exclusively for the benefit of the

public, that the act performed is only for public benefit,

and that an individual who is injured by the alleged

negligent performance of Building Inspector does not

have cause of action.’’ At pages 1063, 1064.

4. Arkansas: Section 12-2901 ‘‘State subdivisions im-

mune from tort liability’’; all political subdivisions of the

State are immune from liability for damages, and ‘‘no

tort action shall lie against any such political subdivision,

on account of the acts of their agents and employees’’,

12-2903 requires liability insurance for motor vehicles

operated or owned by political subdivisions.

5. California: Section 185 ‘‘Liability of Public Enti-

ties’’; provides immunity for public entity or public offi-

cer “‘caused by its failure to make an inspection, or by

reason of making an inadequate negligent inspection, of

any property ...’’ and ‘‘for issuance or denial of any

permit, license, certificate, approval .. .’’.

Grenell v. City of Hermosa Beach, 153 Cal. Rptr. 315

(1980). Plaintiffs purchased beach-front property with

two houses, and relied on City records that two dwelling

units were legally authorized under the zoning law; the

City records were mistaken, and the second unit on the

property could not lawfully be rented. The purchasers

sued the sellers, and the City.

The Court discussed the California Tort Claims Act,

which exempts any public entity for misrepresentation

by an employee, whether negligent or intentional. The

B5

Court also looked to decisions under the Federal Tort

Claims Act, and decided that the public employee could

uot be liable for his negligence.

Clayton v. Rossman, 133 Cal. Rptr. 306 (1976). Ten-

ant’s guest in apartment house sued City and others when

he fell down flight of stairs, resulting in permanent dis-

ability because building permit for apartment house, is-

sued after a review of the plans aand specifications and

numerous followup inspections by other employees, failed

to detect a design failure in the stairs, which caused a

dangerous condition. California cited the provision of

its Tort Claims Act, holding ‘‘a public entity is not liable

for injury caused by its failure to make an inspection, or

by reason of making an inadequate or negligent inspec-

tion, of any property ...’’. The Court cited the rea-

sons by the legislative committee’s comment to this ex-

ception.

The immunity provided by this section covers neg-

ligent failure to make an inspection and negligence in

the inspection itself. For example, the section makes

a public entity immune from liability if its employee

negligently fails to detect a defect in a building being

inspected; ... The section presupposes a duty on the

part of public entities to inspect private property for

health and safety purposes. Indeed, it has been sug-

gested that because of the extensive nature of the

inspection duties of public entities, a public entity

would be exposed to the risk of liability for virtually

all property defects within its jurisdiction if this im-

munity were not granted. (At page 309, emphasis

supplied).

6. Colorado: Section 24-10-101 through 24-10-116

‘*Governmental Immunity’’; a public entity shall be im-

B6

mune from liability in all claims for injury with certain

exceptions, to include the operation of a motor vehicle, the

operation of any public hospital, correctional facility, or

jail; a dangerous condition of any public building; a dan-

gerous condition on public highways; a dangerous condi-

tion of any public facility; the operation of certain utili-

ties; the term ‘‘operation’’ is defined so as not to include

‘a negligent or inadequate inspection or a failure to make

an inspection of any property’’ (24100-103(3) (b) (ii)) ;

written notice required within 180 days after the date of

the discovery of the injury; limitation on judgments $150,-

000 per person; $400,000 maximum for any number of in-

dividuals for claims arising out of a single occurrence.

* * *

8. Delaware: 10 Section 4010 through 4013: waives

governmental immunity for counties and cities and their

employees for all torts, except ‘‘the undertaking or failure

to undertake any judicial or quasi-judicial act, including,

but not limited to, granting, granting with conditions, re-

fusal to grant or revocation of any license, permit, order

or other administrative approval or denial; the perform-

ance or failure to exercise or perform a discretionary func-

tion or duty. whether or not the discretion be abused . . .’

Section 4011(b)(2) and (3); also, there is no immunity

when the government operates any motor vehicle or other

equipment, operates or maintains any public building facili-

ties or equipment to be designed for use by the public, an:

pollutes; limitation of damages is $300,000 for any and all

claims arising out of a single occurrence, Enacted in 1978.

’

B7

9. District of Columbia: Section 1-1202 allows the

Mayor of the District of Columbia to settle claims and suits

against the District of Columbia arising out of negligence

if a private individual would be liable for damages; there

does not appear to be any provision waiving governmental

immunity if there is no settlement by the Mayor. Another

section, 1-1212, waives governmental immunity for negli-

gent operation of vehicles; effective 1975. Case law indi-

cates that there is a bioad abrogation of immunity.

10. Florida: Statute Section 768.28 ‘‘Waiver of Sov-

ereign Immunity in Tort Actions’’. Tort Claims act waives

immunity for any action at law against State or its sub-

divisions . . . ‘‘If a private person would be liable to the

claim and in accordance with the general laws of this State

.”’; no punitive damages or interest allowed prior to

judgment; maximum payment of $100,000 per claim, $200,-

000 for all claims arising out of the same incident. Notice

of claim required. No liability of municipality if an offi-

cer acted ‘‘in bad faith or with malicious purpose or in a

manner exhibiting wanton and wilful disregard of human

rights’’; nor is there liability for a City employee who

acted ‘‘outside the course and scope of his employment’’.

11. Georgia: Section 36-33-1 ‘‘Liability of Municipal

Corporations for acts or omissions of officers’’; waives

immunity ‘‘for neglect to perform or improper or unskilled

performance of ministerial duties’’; no liability for ‘‘ex-

ercising their discretion’’ (36-33-2); personal liability of

public officer only if act done ‘‘oppressively, maliciously.

corruptiy, or without authority of law’’ (36-33-4); written

demand within six months a prerequisite for suit (36-33-5).

B8

12. Hawaii: Sections 662-1 through 662-16. ‘‘State

Tort Liability Act’’ creates liability with some exceptions,

to include any claim ‘‘based upon the exercise or perform-

ance of the failure to exercise or perform a discretionary

function . . . whether or not the discretion involved has

been abused’’. (Section 662-16); also intentional torts in-

eluding ‘‘misrepresentations’’ and ‘‘deceit’’ are exempted ;

apparently, from the case law, portions of the State Tort

Liability Act applied to municipalities by judicial decision.

13. Idaho: Section 6-902 through 6-928 ‘‘Idaho Tort

Claims Act’’; effective 1971; every governmental entity is

subject to liability, whether arising out of governmental or

proprietary function, ‘‘If a private person or entity would

be liable for money damages’’. (Section 6-903) ; exceptions

to liability; if act or omission is based upon ‘‘the exercise

or the failure to exercise or perform a discretionary func-

tion, whether or not the discretion be abused’’; writ-

ten claim required within 120 days of act or omission (Sec-

tion 6-906) ; no liability for punitive damages (6-918).

Carroll v. U.S., 488 F. Supp. 757 (DC Idaho, 1980).

Plaintiff sued for injuries sustained as a miner, when fed-

eral mine inspectors inspected his work place pursuant to

the Federal Mine Safety Act, because the inspector negli-

gently implemented an accident prevention program man-

dated by the government at federal job sites. The District

Court held that no private right of action arises under the

Mine Safety Act, and there is no equivalent state right of

action in Idaho. ‘‘... it is universally recognized that the

conduct of similar safety inspections by government in-

spectors during the course of work being performed by

government contractors on federal-owned land does not

give rise to such a duty.’’ At page 759.

—

B9

Dunbar v. United Steel Workers of America, 602 P.

2nd 21 (Idaho, 1979). Wrongful death action brought

against the miners’ union and the State, because of fire

in a silver mine which claimed 91 lives. The Plaintiffs al-

leged that both the union and the State were jointly liable,

because both misrepresented the safety of the mine, failed

to adequately carry out a safety program, and negligently

failed to require adequate protection in the event of fire

(fire drills, personal protective equipment, emergency

egress, evacuation on evidence of smoke). The Plaintiffs

further claimed that the State was required by law to in-

spect each mine once annually, issue violation notices, and,

if the violation notices are not complied with, close the

mine. The Plaintiffs alleged that the mine inspector failed

te follow such statutory provisions. The Idaho Supreme

Court reviewed federal decisions under the Federal Tort

Claims Act, 28 USC Section 2680(a) and decisions of other

states. The Court determined that there is no coherent

doctrine in determining what is ‘‘discretionary’’ and what

is ‘‘ministerial’’, or what is public or a private duty. The

Court nevertheless rejected liability for failure to inspect

or for a negligent inspection:

At one extreme, we find decisions which appear to

make a mockery out of the oft-repeated maxim of

Jackson, J., dissenting in Dalehite, that ‘‘it is not a

tort for a government to govern.’’ (At page 43).

We hold that our legislature has intended that

wherein tort liability would attach to a private per-

son, a governmental entity engaging in the same con-

duct will be liable. We do not ascertain and intend to

create a new cause of action against a governmental

entity for its attempts to govern. We postulate that if

government ts not able to govern, anarchy and chaos

are the only alternatives. If government is to govern,

B10

persons must be selected to operate and implement the

abstract notions of what government should do... it

must be able to provide standards of conduct whether

they be called statutes, regulations, ordinances... such

functions of government have traditionally been seen

as sacrosanct from invasion by the judicial branch,

Here we are faced with claims against the gov-

ernment relating to the governmental function of gov-

erning. There are not parallel functions in the private

sector. We are essentially concerned with the abilities

of officials, the enactment of regulations, and the en-

forcement of standards. A finding of liability for

breach of those ‘‘duties’’... (would ) creation of a new

cause of action which we deem not to be contemplated

by our legislature, and foreign to traditional concepts

of the law of torts. (emphasis supplied).

14. Illinois: Chapter 85 Section 1-101 ‘‘Tort Immu-

nity Act’’ provides immunity for local public entities for

issuance or denial of any permit, license, certificate . . .;

provides immunity for failure to make inspection or for

negligent inspection of property; provides immunity for

exercise of discretion; requires notice of claim; $100,000

maximum liability.

Hannon v. Coulthan, 369 N.B. 2d 917 (Ill. 1977). House

owners sued developer, contractor, subcontractor, and vil-

lage, alleging that they owned land in Deer Park, hired the

builder to build a prefabricated house, a building permit

was issued and the village later issued a ‘‘stop work’’ or-

der because the foundation was not in compliance with the

building code, even though the house was substantially

complete and the roof was on. The Plaintiff alleged that

the village Building Inspector failed to make proper in-

spection. so as to catch the noncompliance prior to the sub-

stantial construction of the house. The Supreme Court

Bil

cited Illinois, New York, Washington State, and Minne-

sota decisions stating that the statutory abrogation of sov-

ereign immunity still did not create any new cause of ac-

tion, and that the purpose of a building code is to protect

the public in general, not specific individuals. ‘‘To recog-

nize such a duty here would be to make a municipality sub-

stantially an insurer of all construction it undertook to in-

spect and control through its building codes and would

likely discourage all efforts at such control.’’ (369 N.E, 2d

917, at 922).

15. Indiana: 34-4-16.5-1 through 16.5-19; effective

1974, waives governmental immunity for cities and other

political subdivisions, except for ‘‘the performance of a

discretionary function’’ (16.5-3(6); ‘‘the issuance, denial,

suspension, or revocation of, or failure or refusal to issue,

deny, suspend, or revoke, any permit, license, certificate,

approval ... where the authority is discretionary under

the law’’ (16.5-3(10); ‘‘failure to make an inspection, or

making an inadequate or negligent inspection of any prop-

erty ...’? (11); maximum liability is $300,000 for injury,

¢5 million for all injuries resulting from one occurrence;

no liability for punitive damages (16.5-4); suit is barred

unless notice of claim is filed within 180 days after the loss

occurs (16.5-7).

State vy Morgan, 432 N.E. 2d 59 (Ind. 1982). Plaintiff

sued when truck left roadway, went into abandoned strip

mining pit that was flooded with water, and Plaintiff’s de-

eedent drowned. The Court rejected the claim tliat the

negligent issuance of a permit, and the negligent release of

the bond, violated the Plaintiff’s rights: ‘‘The Strip Min-

ing law was not a safety regulation law. Its purpose, focus

and provisions dealt with the reclamation of strip land.’’

B12

16. Jowa: 613A.1 through 613A.11 ‘‘Tort Liability of

Governmental Subdivisions’’; waives governmental immu-

nity for all torts except claims under the workers’ compen-

sation law, claims dealing with the assessments of collec-

tion of taxes, claims based upon an act or omission of an

officer or employee in the execution of a statute or ordi-

nance, or any claim as to which the municipality is immune

from liability by the provisions of any other statute; writ-

ten notice of claim required within six months after the

tort; there is no limit on damages. Effective 1968.

17. Kansas: Section 75-6101 through 75-6118 ‘‘Kan-

sas Tort Claims Act’’; waives immunity for all torts by

employees, ‘‘if a private person would be liable under the

laws of the state’’; exempts discretionary acts; maximum

liability of $500,000 for any number of claims arising out

of a single occurrence or accidents; no liability for puni-

tive damages; no requirement to indemnify employee if act

arises out of ‘‘actual fraud or actual malice’’. This act

effective 1979.

18. Kentucky: For claims against state, there is a

court of claims procedure with maximum liability of

$50,000 per claim; municipal immunity has been abolished

by the judicial decision, and there is no Tort Claims Act

as far as municipalities are concerned. The exceptions to

the abrogation of municipal immunity are set forth in the

case law.

Howes v. Childers, 512 F. Supp. 745 (E.D. Ky. 1981).

Summary judgment granted to mine inspector, where

Plaintiff alleged that death was caused by the negligence

of eight mine inspectors. The Federal Court found no li-

B13

ability under the Federal Tort Claims Act or under Ken-

tucky law.

For the same result, see Taylor v. United States, 521

F. Supp. 185 (W.D. Ky. 1981), and Raymer v. U.S., 660

F.2d 1136 (6th Cir. 1981).

Department of Banking and Securities v. Brown, 605

S.W. 2d 497 (Ky. 1980). The Supreme Court reversed a

decision of the Court of Appeals, which held the Commis-

sioners of the State Securities Department liable in dam-

ages for negligent regulation of two building and loan asso-

ciations, even though known to the Department to be in

financial trouble. The Supreme Court stated that the Tort

Claims Act renders the State liable, as any individual, for

negligence. The Court held

There is no public policy requiring government to

guarantee the success of its efforts. When the gov-

ernmental entity is performing a self-imposed protec-

tive function ... the individual citizen has no right to

demand recourse against it though he is injured by its

failure to effectively perform such function. <Any rul-

ing to the contrary would tend to constitute the Com-

monwealth an insurer of the quality of servwes its

many agents perform and serve only to stifle govern-

ment’s attempts to provide needed services to the

public which could not otherwise be ejfectively sup-

plied. ... We perceive that the public interest is better

served by a government which can aggressively seek

to identify and meet the current needs of the citizenry,

uninhibited by the threat of financial loss ... (605 S.W.

2d 497, at 499, emphasis supplied).

Grogan v. Commonwealth of Kentucky, 557 S.W. 2d

4 (Ky. 1979). A fire at a supper club in Southgate, Ken-

tucky, caused a great number of deaths and person injur-

ies, because the City failed to enforce its safety code and

B14

the failures were a substantia] factor in causing the trag-

edy. The Supreme Court stated that the municipality was

protected under the Tort Claims Act, because it was a vio-

lation of a public duty.

We do not believe that the common law, as ap-

plied to individuals, offers any reasonably compar-

able situation ... in the enactment of laws designed

for the public safety or governmental unit does not

undertake to perform the task; it attempts only to

compel others to do it, and as one of the means of en-

forcing that purpose it may direct its officers and

employees to perform an inspection function. The

failure of its officers and employees to perform that

function ‘does not constitute a tort committed against

an individual who may incidentally suffer injury or

damage, in common with others, by reason of such

default’ ’’. Page 5.

We acknowledge, however, that a legal problem

of this magnitude should not be resolved by the tricks

of mechanical logic. The answer must find its source

in conscious publie policy, and the fundamental pol-

iey-viewpoint on which this Court has settled during

the 15 years (a Kentucky 1964 decision) is that a gov-

ernmert ought to be free to enact laws for the public

protection without thereby exposing its supporting

taxpayers (including, of course, those yet unborn) to

liability for failures or omission in its attempts to

enforee them. It is better to have such laws even hap-

hazardly enforced, than not to have them at all. (At

page 6, emphasis supplied).

19. Louisiana: Article 12, Section 10, Constitution

of 1974, allows suits against the State or any political sub-

division, and repeals governmental immunity; subsection

3 forbids any execution against any political subdivision,

and allows collection of a judgment against a political sub-

division only if the political subdivision appropriates funds

against which the judgment can be paid; one decision states

B15

that a municipality does not have to appropriate funds,

as the decision to do so is discretionary. DeLaureal En-

gineers, Inc. v. St. Charles Parish, 406 So. 2d 770 (1981).

Dufrene v. Guarino, 343 So. 2d 1097 (La. 1977). Plain-

tiff sued various State and City fire inspectors and build-

ing inspectors, since Plaintiff was injured in a fire, in a

lounge where inadequate exits violated the Building Code

and Fire Code, preventing escape. The Court of Appeals

held that there was no individual duty to the occupants

of the lounge.

20. Maine: Title 14 Section 8101 et seq. ‘‘Tort

Claims’’; imposes immunity for Tort Claims as to all gov-

ernmental entities, with a specific statement as to partic-

ular immunities, to include ‘‘the granting, granting with

conditions, refusal to grant or revocation of any license,

permit, order, or other administrative approval or denial;

maximum liability of $10,000 for any and all claims arising

out of a single occurrence.

21. Maryland: Art. 23A, Section 1B: ‘‘Immunity

from Civil Liability in Tort Action’’; grants immunity

to all officials of a municipal corporation ‘‘while acting

in a discretionary capacity, without malice, and within the

scope of their employment . . .’’; requires indemnity by

City.

29. Massachusetts: Chapter 258 Section 1 through

13 ‘‘Claims and Indemnity Procedure’’; creates liability

against municipalities ‘‘in the samme manner and to the

same extent as a private individual under like cireum-

stances’’; limits recovery to $100,000 and prohibits inter-

est prior to judgment and punitive damages; requires in-

demnity to publie employees with a maximum liability of

B16

$1 million; prohibits indemnity for gross negligence, or

wilful or malicious conduct ; exempts any claim based upon

the exercise or failure to exercise a discretionary function,

whether or not the discretion is abused; exempts any claim

based upon an act or omission ‘‘when such employee is

exercising due care in the execution of any statute’’.

Dinsky v. Framingham, 438 N.E. 2d 51 (Mass. 1982).

Plaintiffs owned a single family house in Framingham,

and they sued the Town of Framingham alleging negli-

gence in issuance of building permits and certificates of oc-

cupancy. The Plaintiffs alleged that the building inspector

had in his file several letters from the Department of

Health stating that the lots upon which the houses were

built had to be graded, to avoid drainage problems; three

years after the certificates of occupancy were issued, de-

spite the fact no proper grading or drainage was done,

the Plaintiffs experienced serious flooding, causing large

cracks to develop in their foundation walls. The Supreme

Court affirmed the decision of the trial Court, stating

the town did not violate a duty owed to them as individuals.

We have examined the State Building Code...

there does not appear to be any language in the en-

actments which would warrant a finding that the legis-

lature intended to create private causes of action for

property owners ... we conclude that we will not de-

part from the majority rule that in the absence of a

special duty owed to the Plaintiffs, different from

that owed to the public at large, no cause of action

for negligent inspection can be maintained. To hold

otherwise would cause a municipality to become sub-

stantially an insurer of each and every construction

project. The tremendous exposure to liability that

could result from such a decision would likely dis-

suade municipalities from enacting regulations de-

signed for the protection and welfare of the public.

(438 N.E. 2d 51, at 55-6, emphasis supplied).

————

B17

23. Michigan: Section 3.996(107) preserves govern-

mental immunity for ‘‘all government agencies’’ if the

government agency is engaged ‘‘in the exercise or dis-

charge of a governmental function”’.

Stemen v. Coffman, 285 N.W. 2d 305 (Mich. 1979).

Two individuals resided in a tenement in Grand Rapids,

Michigan; it was inspected in 1975 by a City Housing

Inspector, and it had received a Certificate of Compliance

signed by the City Housing Inspector. They sued the

City, the Fire Chief and Fire Inspector, and the Housing

Inspector. The trial Court entered summary judgment in

favor of the City and its individual employees. The Plain-

tiffs appealed, relying upon the common law action of

nuisance. The Appellate Court rejected the nuisance the-

ory, quoting 58 AmJur2d, Nuisances, Section 49, page 616:

‘Liability for damage caused by a nuisance turns upon

whether the Defendant was in control, either through own-

ership or otherwise.’’ Since the City did not own the

building, control the building, create the nuisance, or em-

ploy others to do work which constituted a nuisance, the

City’s relationship was found to be ‘‘attenuated’’. ‘‘To

hold the City liable under the nuisance exception in this

ease would stretch the concept of liability for nuisance

beyond all recognition.’? The Appellate Court also de-

cided that the Building Inspector, in order to determine

whether conditions in the field complied with the applicable

code provisions, exercised a discretionary function.

Gerneth v. Detroit, 465 F. 2d 784 (6th Cir. 1972).

Plaintiff was shot by a private guard, employed by Grey-

hound Bus in Detroit, Michigan. Plaintiff sued the Detroit

Police Department since they issued a weapons license,

even though their regulation stated that no license could

B18

be issued to someone convicted of a felony. The guard had

previously been convicted of a felony involving the care-

less use of firearms. The Court of Appeals sustained the

dismissal of the action by the trial Court, based upon

Michigan law that the Police Department owed no duty

to the Plaintiff, since the duty of the City to license pri-

vate patrolmen did not create any duty to private persons,

the violation of which would justify an action for dam-

ages.

24. Minnesota: Section 466.01 through 466.15 ‘‘Tort

Liability, Political Subdivisions’; exempts ‘‘discretion-

ary acts’’; requires notice of claim; sets maximum liabil-

ity of $500,000.

Hage v. Stade, 304 N.W. 2d 283 (Minn. 1981). Estate

of people killed in hotel fire sued hotel, City, and various

State and City employees, alleging negligent inspection,

since the hotel lacked smoke detectors, sprinklers, fire-

proof partitions, properly designed stairwells, and since

flammable materials were stored in the basement. The

hotel had been inspected in 1975 and 1976; the fire oc-

curred in 1977. Plaintiffs stated that State and City

agents failed to perform a requested annual inspection,

negligently conducted inspections that did take place, and

failed to require correction of safety hazards known to

them. The Supreme Court stated that even though the

Minnesota Tort Claims Act abolished the common law

doctrine of sovereign immunity, both against the State

and the City, the distinction between public duties and

special duties is still valid. A duty owed to the public in

general cannot be a basis of negligent action. In special

situations, a general duty may be narrowed to a special

duty where the municipality has undertaken the respon-

B19

sibility of not only protecting itself, but a particular class

of persons; the government must have actual knowledge

of the dangerous condition; reasonable reliance by Plain-

tiffs must have been induced by the government; the Plain-

tiff must have been opted to forego other alternatives to

protect themselves; finally, the statute must set forth man-

datory acts clearly for the protection of a particular class

of persons, and the government’s actions must increase

the harm.

Gelley v. Astra Pharmaceutical Products Inc., 610

F.2d 558 (8th Cir. 1979). Plaintiff sued under Minne-

sota law and Federal Tort Claims Act, alleging that the

Food and Drug Administration had licensed a drug as

‘‘safe for use’’, and allowed its introduction into inter-

state commerce, even though said drug caused the death

of Plaintiff’s decedent. The Eighth Cireuit found that

there was no cause of action under either Minnesota law

or the Federal Tort Claims Act. ‘‘Regulatory activity

engaged in by FDA personnel simply has no counterpart

in private activity and thus cannot give rise to liability

under the common iaw. Minnesota recognizes no private

cause of action for violations of governmental duties owed

the public in general, similar to those duties performed

by the FDA.’’ The Eighth Cireunt further found that the

Food, Drug and Cosmetic Act of 1976 was not intended

to protect any particular class of persons; FDA officials

could not know that Plaintiff’s decedent would suffer an

adverse reaction to the drug; finally Plaintiff’s decedent

could not rely on specific actions or representations of the

FDA as an assurance of safety. Finally, the Kighth Cir-

cuit stated that the ‘‘diseretionary function’’ exception of

the Federal Tort Claims Act also applied.

B20

Cracraft v. the City of St. Louis Park, 279 N.W. 2d

801 (Minn. 1979). Two high school youths were killed,

and one received severe burns over 50% of his body, when

a 55 gallon drum of duplicating fluid ignited on the load-

ing dock of the high school; less than 30 days before the

explosion, the City Fire Inspector conducted an inspec-

tion, listed several violations, in a letter which said noth- -

ing about the drum. The Supreme Court stated that even

though the Tort Claims Act abolished governmental im-

munity, the Court cannot depart from

vast precedent and traditional common-law prin-

ciples of negligence. The distinction is not merely a

relic of the verbiage used by courts in days of sover-

eign immunity. Instead, it is corollary to a basic |

tenant of negligence law: general duties owed to the

entire public rather than a specific class of persons

cannot form the basis of a negligence action.’’ (279

N.W.2d 801, at 804).

The municipality’s own ordinance required that

it undertake inspections for fire code violations. How-

ever, such inspections are required for the purpose of

protecting the interest of the municipality as a whole

against the fire hazards of the person inspected. The

inspections are not undertaken for the purpose of

assuring either the person inspected or third persons

that the building is free from all fire hazards, just as

the State’s issuance of a driver’s license is no assur-

ance that the licensed person will be a safe driver....

But, without intending to be exhaustive, there are at

least four factors which should be considered. First,

actual knowledge of the dangerous condition is a fac-

tor which tends to impose a duty of care on the munic-

ipality. Second, reasonable reliance by persons on the

municipality’s representations and conduct tends to

impose a duty of care. Of course, reliance on the

inspection in general is not sufficient. Instead, the

reasonable reliance must be based upon specific action

law

B21

or representations which cause the persons to forego

other alternatives of protecting themselves. Third, a

duty of care may be created by an ordinance or statute

that sets forth mandatory acts clearly for the protec-

tion for a particular class of persons rather than the

public as a whole. Finally, the municipality must use

due care to avoid increasing the risk of harm. (279

N.W.2d 801, at 806-7.

The Supreme Court concluded that if the traditional

of ‘‘public duty’’ were to be expanded and changed,

...1t is better that the legislature act in this field

where extensive hearings can be conducted to con-

sider the extent of the financial impact of such a basic

change . . . municipalities will often be named as

defendants in a host of litigation where they presently

have no exposure. The cost of defense is a vital in-

gredient in procuring insurance or providing self-in-

surance for such litigation ... the creation of a new

duty owed by municipalities and other governmental

entities to enforce the law with reasonable care is a

change which should be made by the legislature. We

will not assent to such a change by the judiciary (279

N.W.2d 801, at 808).

Hoffert v. Owatonna Inn Town Motel, Inc., 199 N.W.

2d 158 (Minn. 1972), Supreme Court dismissed an action

filed by representatives of deceased occupants of motel

in which fire occurred, stating that the negligent issuance

of a building permit which allowed the motel to remodel

in a manner which violated the Building Code, could not

state a cause of action against the City. Two weeks after

the final inspection, a fire broke out in the motel.

The purpose of a Building Code is to protect the

public . . . Building Codes, the issuance of building

permits, and building inspections are devices used by

municipalities to make sure that construction within

the corporate limits of the municipality meets the

B22

standards established. As such, they are designed to

protect the public and not meant to be an insurance

policy by which the municipality guarantees that each

building is built in compliance with the Building Codes

and Zoning Codes. The charge for building permits is

to offset expenses incurred by the City in promoting

this public interest and is in no way an insurance pre-

mium which makes the City liable for each item of

defective construction in the premises. (199 N.W.2d

158, at 160, emphasis supplied).

25. Montana: Section 2-9-101 through 2-9-805. Every

governmental entity is subject to liability for its torts and

those of its employees . . . whether arising out of a gov-

ernmental or proprietary function . . . (2-9-102); limita-

tion on liabilities $300,000 per claim and $1 million per

occurrence (29-104) ; effective 1977; written notice of claim

required (2-9301).

. 26. Mississippi: Governmental immunity retained,

both for state and local government, with some exceptions

when there is insurance for airports, community hospitals,

hospitals and county motor vehicles.

27. Missouri: Section 71.185 ‘‘Tort Liability for

Governmental Acts’’; waives governmental immunity only

to the extent that insurance, required by all municipalities,

so provides.

28. Nebraska: Section 23-2401 through 2420 ‘‘Polit-

ical Subdivisions Tort Claims Act”’ states no political sub-

division and no public employee shall be sued except as

allowed by the statute; exempts ‘‘any claims based upon

the exercise or performance or the failure to exercise or

perform a discretionary function . . . whether or not thie

discretion be abused’’; requires notice of claim; also pro-

hibits any claim upon ‘‘misrepresentation or deceit’’.

B23

29. Nevada: Chapter 41.031 et seq. waives immu-

nity from liability for the State and its subdivisions, ex-

cept for ‘‘failure to inspect any building, structure or

vehicle ...’’.

30. North Carolina: Section 160A485 ‘‘Waiver of

immunity through insurance purchase’’; waives immu-

nity ‘‘only to the extent that the City is indemnified by the

insurance contract from tort liability’’; notice of claim

required; judgments are limited by the amount of the in-

surance policy; does not waive immunity prior statutes or

‘‘eommon law’’; statute has been interpreted to mean that

the municipality is not liable for torts of its employees

or agents committed while performing a governmental

function. Galligan v. Town of Chapel Hill, 171 S.E. 2d 427

(1970).

31. North Dakota: Section 32-12.1-01 through 12.115

‘‘Liability of political subdivisions’’; political subdivisions

are liable for negligence ‘‘if a private person, would be

liable to the claimant’’; maximum liability is $250,000 for

injuries, $500,000 for all injuries arising out of a single

occurrence; no liability for negligent act if discretionary,

or ‘‘the decision... to grant... refuse to grant... or to

revoke any license, permit, order or other administrative

approval or denial’’. (32-12.1-03) ; effective 1977.

32. New Hampshire: Chapter 31 Section 104 ‘‘Lia-

bility of Municipal Executives’’ requires indemnity of any

public official acting in his official capacity in good faith

and within the scope of his authority.

Hurley v. Town of Hudson, 296 A.2d 905 (N.H. 1972).

Purchasers of lot within subdivision sued town and de-

veloper, alleging that improper storm drainage system

B24

caused constant flooding damage to houses. The Supreme

Court held that the issuance of various approvals by the

town could not create liability as they were ‘‘discretion-

ary’’, and negligent enforcement of regulations does not

create a private cause of action against a town. ‘‘To hold

a town liable in tort for failure to enforce its ordinances

would discourage the enactment of many important or-

dinances, and far more persons would suffer if govern-

ment did not perform these functions at al] than would

be benefited by permitting recovery in those cases where

the government is shown to have performed inadequately.’’

(296 A. 2d 905, at 908).

33. New Jersey: Chapter 59 Section 2-1 et seq.

‘“‘Tort Claims Act’’ follows California Tort Claims Act

enacted in 1963; provides immunity for descretionary ac-

tivities; provides for immunity for ‘‘an injury caused by

the issuance, denial, suspension or revocation of .. .

avy permit, license, certificate, approval order... ; also

provides immunity for ‘‘failure to make an _ inspection,

or by reason of making an inadequate or negligent in-

spection of any property’’.

Bosch v. Hain, 445 A. 2d 465 (N.J. 1982). Victims

of fire in tenement house alleged that the City inspector

inspected a tenement house, found approximately 190 vio-

lations, many of which were characterized as ‘‘life threat-

ening’’, issued a ‘‘Notice of Violation’’, and allowed the

tenement house owner 60 days to remedy the violations.

Within that 60 day time period, a fire occurred which

killed 21 people. The Plaintiffs argued that the duties

were purely ministerial, aand having determined that vio-

lations existed, the inspector failed to carry out appro-

priate procedures in assuring that the defects were cor-

B25

rected properly. The New Jersey Court cited many Cal-

ifornia decisions, and cited the California Law Revision

Commission pages 817-818.

Public entities and public employees should not

be liable for failure to make arrest or otherwise to

enforce any law. They should not be liable for fail-

ing to inspect persons or property adequately to de-

termine compliance with health and safety regulations.

Nor should they be liable for negligent or wrongful

issuance or revocation of licenses and permits. The

government has undertaken these activities to ensure

public health and safety. To provide the utmost pub-

lic protection, governmenial entity should not be dis-

suaded from engaging in such activities by the fear

that liability may be imposed if an employee per-

forms his duties inadequately. Moreover, if liability

existed for this type of activity, the risk of exposure

to which a publie entity would be subject would in-

clude virtually all activities going on within the com-

munity. There would be potential governmental lia-

bility for all building defects, for all crimes and for

all outbreaks of contagious disease. No private per-

son ts subjected to risks of this magnitude. In many

of these cases, there is some person (other than the

public employee) who is liable for the injury, but

liability is sought to be imposed on the government

for failing to prevent that person from causing the

injury. The commission believes that it is better pub-

lic policy to leave the injured person to his remedy

against the person actually causing the injury than

it 1s to impose an additional liability on the govern-

ment for negligently failing to prevent the injury.

And where no third party is liable—as in the case

where a license application is denied—the aggrieved

party has ample means for obtaining relief in the

Courts other than by tort actions for damages. Far

more persons would suffer if government did not per-

form these functions at all than would be benefited

by permitting recovery in those cases where the gov-

ernment is shown to have performed inadequately.

(445 A. 2d 465, at 471, emphasis supplied).

B26

The Court further cited a section of the California

‘‘Report of the Attorney General’s Task Force on Sov-

ereign Immunity’’ at page 214 (1972): ‘‘they were caught

between the Scylla of making no inspection and the

Charybdis of actively abating every failing which inspec-

tion uncovered—before harm resulted from that condi-

tion. Such a result would be unthinkable—short of leg-

islative action which could provide mechanism for re-

sponding to the liability at the same time the duty is

created.’’ (445 A. 2d 465, at 472-3).

Panepinto v. Edmart, Inc., 323 A. 2d 553 (N.J. 1974).

Homeowners sued developer, general contractor, City, and

City engineer, caused by flooding by sewer backups, re-

sulting in basement floodiing in all homes and subdivi-

sion. The City was found negligent because it should

have known the sewer system was inadequately designed.

The Appellate Court reversed, stating that

here, the municipal Defendants did not plan or

install the sewer systems ... The City engineer and

City’s planning board were negligent in approving

and accepting the plans submitted ... and in their

inspection and supervision of the installation of the

original sewer .. . However, the decisions thus made

and conceded in good faith by the public officials in-

volve the performaance and exercise of discretionary

quasi-judicial functions and duties, and so afford no

basis for imposing liability aand damages either on

the engineer or his employer, the City, even if thev

or either of them acted negligently in the perform-

ance of those functions. (323 A. 2d 533, at 536).

Fiduccia v. Summit Hill Construction Company. 262

A. 2d 920 (N.J. 1970). Plaintiffs claimed that the munic-

ipality negligently issued a certificate of occupancy, be-

B27

cause the land was improperly graded, and the draining

system improperly installed, so as to cause continual

flooding. The Court rejected the claim, stating:

Certainly it was foreseeable that a landowner

might rely upon a certificate of occupancy . . . The

basic question, therefore, is whether this is the kind

of activity for which a municipality should be held

responsible under ordinary principles of tort liability.

Clearly there are areas in which governmental activ-

ities involve questions of discretion and judgment

for which, in the absence of bad faith, corruption,

oppressive conduct, or other abuse of power, there

is no immunity from tort liability. In my view, this

is the kind cf case where there shoula be municipal

immunity. While issuance of a certificate of occu-

pancy does not involve pianning or policy functions,

it does entail the exercise of discretion. Not only

must the building inspector determine whether there

has been compliance with building regulations and

health regulations, but whether the structure com

complies with the requirements of the zoning ordi-

nance. The books are replete with zoning cases which

demonstrate that this ean be a task requiring consid-

erable skill. The building inspector does more than

mechanically apply existing regulations; he must often

exercise judgment in difficult areas. While it can

hardly be said that his powers are quasi-judicial, it

seems improper to expose a municipality to the pos-

sibility of tert liability for errors in the exercising

of such judgment, particularly since it is now respons-

ible for the acts of all of its agents ... The certif-

iccte of occupancy is merely a testimonial that the

property is being used in compliance with the appli-

cable ordinances. It ts issued for the protection of

the municipality as a whole, not for the benefit of

the landowner. Doubtless, the building inspector

must use due care in the performance of its fune-

tions, but his obligation is to see to it that there has

been no violation of municipal ordinances, not to en-

B28

sure tiat the building has been constructed in such

a manner as to protect the landowner. If, incident-

ally, the landowner benefits from the activities of

the building inspector, this does not give him the

right to rely upon the certificate of occupancy for

proof of proper construction. ... For this, the land-

owner should—and traditionally has protected himself

by contract. (262 A. 2d 920, at 921 through 924, em-

phasis supplied).

34. New Mexico: Section 41-4-1 through 41-4-29

“Tort Claims’’; any governmental entity or public em-

ployee is granted immunity from all liability except as

waived by specific sections of the statute, dealing with

operation of motor vehicles, maintenance of buildings,

public utilities, medical facilities, highways and streets,

law enforcement officers, ete.: notice of claim required;

maximum liability of $500,000.

35. New York: Article 4, Section 50: requires indem-

nity for public officials, acting in the performance of his

duties and within the scope of his employment. Requires

notice of claim.

O’Connor v. City of New York, 460 NYS 2d 485,

1983. City Building Inspector issued an approval for a

new gas line which exploded nine days after approval,

killing 12 persons and leveling a three-story building in

Manhattan. The Court of Appeals stated that the negli-

gently issued approval could not subject New York City

to liability.

To subject municipalities to open-ended liability of

enormous proportions and with no clear outer limits

. in addition to imposing a crushing financial bur-

den, might well discourage municipalities from under-

taking activities to promote the general welfare. It

could also impede municipal officials from allocating

B29

resources where they would most benefit the public, by

making the price concern the evidence of tort liability

rather than the promotion of the public welfare. The

Court should not take it upon themselves to, in effect,

reorder municipal priorities. (460 NYS 2d 485, at 487).

Worth Distributors, Inc. v. Lathen, 464 NYS 2d 435

(1983). Building collapsed in Manhatten, killing four and

causing forty-three actions for personal injury to be con-

solidated. Court of Appeals held that City not liable, de-

spite trial verdict that building inspector knew of crack in

weight-bearing wall, but did nothing to remedy it: The

building safety code regulations ‘‘... were designed to pro-

tect the general public, however, and no special relation-

ship has been shown that would establish a municipal duty

to the instant plaintiffs in particular’’ (at page 436). See

also Quinn v. Radler, Bros. Inc., 466 NYS 2d 292 (1983)

(Summary judgment for city affirmed; fireman owed no

duty by city to enforce Fire Safety Code); Rolfe v. Fal-

coner, 467 NYS 2d 453 (1983) (complaint dismissed, where

owner sued building inspector for negligent issuance of

building permit to tenant, who built addition without con-

sent of owner); Herland Enterprises v. Commander Ou,

468 NYS 2d 524 (1985) (summary judgment granted to

fire department, in suit by property owner claiming neg-

ligence in fighting fire); Garrett v. Holiday Inns, Inc., 460

NYS 2d 774 (1983) (Town not liable for deaths in motel

fire, where plaintiffs alleged negligent issuance of certifi-

cate of occupancy, despite blatant fire safety code viola-

tions caused by remodeling of motel; town may be liable to

owner, if certificate of occupancy *’as issued despite knowl-

edge of blatant fire hazards, and owner ‘‘ justifiably relied’’

on, page 779).

B30

Sanchez v. Liberty, 366 N.E. 2d 870 (Court of Appeals

1977). Victims of fire in multiple dwelling sued building in-

spector and other officials, stating that they negligently

issued building permit and negligently inspected building

which had fire hazards. The Court of Appeals reversed,

stating ‘‘absent a special relationship creating a municipal

duty to exercise care for the benefit of a particular class

of individuals, no liability may be imposed upon a munici-

pality for failure to enforce a statute or regulation’’. At

page 783.

Ascriza v. Kaufman, 393 N.Y.S. 2d 216 (1977). Plain-

tiff sued for wrongful issuance of a certificate of occu-

pancy, stating that the building inspector certified that a

building conformed substantially to the approved plans

and specifications filed with the application for a building

permit, and with the Building Code, when in fact the build-

ing was not hooked into the sewer system, and the Plain-

tiffs had to pay $60,000 in order to have it hooked up. The

Court rejected the claim, stating ‘‘It has been well estab-

lished that where, as here, a municipality acts in a govern-

mental capacity for the protection of the general public, it

will not be liable for the failure to furnish effective pro-

tection to a particular individual to whom it owes no spe-

cial duty.’’ (393 N.Y.S. 2d 216, at 218). See also Sanchez

v. Village of Liberty, 216 N.Y.S. 2d 850 (1961); Rivera v.

City of Amsterdam, 174 N.Y.S. 2d 530 (1958); Meadows

v. Village of Mmeola, 72 N.Y.S. 2d 368 (1947).

36. Ohio: Governmental immunity still in effect, in re-

gard to municipal corporations, except where scattered

statutes waive immunity in certain situations: county com-

missioners may be sued for failure to maintain any public,

B31

state, county road, bridge. ditch, drain or water course

(Section 305.12) ; municipal immunity is waived for munici-

pal hospitals (Section 2743.02B); Section 9.86 states ‘‘ex-

cept for civil actions that arises out of the operation of a

motor vehicle .. . no officer or employee shall be liable in

any civil action that arises under the law of this state for

damage or injury caused in the performance of his duties,

unless the officers or employee’s actions were manifestly

outside the scope of his employment or official responsi-

bilities, or unless the officer or employee acted with mali-

cious purpose, and bad faith, or in a wanton or reckless

manner.’’ There is a court of claims procedure as far as

the State and State officers are concerned.

Mercer v. U.S., 460 F. Supp. 329 (E.D. Ohio 1978).

The Court rejected a wrongful death action of miner, be-

cause there was no cause of action under Ohio State law,

nor under Federal Tort Claims Act, since the Mine Safety

Act was enacted solely to cause mine operators to comply

with the safety standards, and the government could not

be held liable under the Federal Tort Claims Act for neg-

ligent inspections.

Sound policy underlines the distinction drawn by

Ohio law. The purpose and effect of a statutory in-

spection differs substantially from the purpose and

effect of a contractual _greement. When a person

contracts with another to maintain and inspect a dan-

gerous device, he voluntarily assumes responsibility

for ensuring its safety. A person with whom he con-

tracts pays a consideration for that service in an at-

tempt to shift that responsibility and may reasonably

rely on the fulfillment by the contractor of his obliga-

tion, voluntarily undertaken, to exercise due care in

inspecting and maintaining the device. The responsi-

bilities imposed on an inspector acting pursuant to

B32

statutory authority are altogether different. (The

Mine Safety Act) authorizes the inspections at issue

in this case, (and) expressly imposes the sole responsi-

bility for maintaining safe mining conditions directly

upon the mine operators. ... A federal inspector as-

sumes no responsibility to maintain compliance with

safety standards upon which the mine operators or

their employees can rely. The responsibility remains

with the operator and is not shifted to the inspector

by the act of undertaking an inspection. (460 F. Supp.

329, at 332).

Shelton v. Industrial Commission, 367 N.E. 2d 51 (Ohio

1976). Plaintiff sued the State Commission in charge of

industrial accidents, and various State employees, alleging

that State agencies failed to condemn a boiler, which ex-

ploded and blinded him, leaving him permanently crip-

pled. The Court of Appeals held that statutes requiring

State agencies to inspect and enforce safety standards

with respect to boiler were enacted to protect the public .

generally against unsafe conditions and such statutes were

not intended to create duty toward any particular person.

37. Oklahoma: 51 Section 151 through 170 ‘‘ Political

Subdivision Tort Claims Act’’ effective July 1, 1978;

waives liability, but maximum claim is $25,000 for prop-

erty damage, $50,000 for personal damage to one person;

$300,000 for any number of claims out of a single acci-

dent or occurrence; (effective July 1, 1983 limits raised

to $25,000/$100,000/$1 million); no lability for punitive

damages; exemptions from liability include ‘‘licensing

powers or functions including, but not limited to, the is-

suance, denial, suspension or revocation or fatlure or re-

fusal to issue, deny, suspend or revoke any permit, li-

B33

cense, certificate, approval, order or similar authority

where the authority is discretionary under law;’’ (Sec-

tion 155(12)); ‘‘ Inspection powers or functions, including

to make an inspection, or making an inadequate or negl-

gent inspection, of any property ...’’ (13); written no-

tice required with 120 days after loss oceurs. (Section

156).

38. Oregon: Section 30.260 through 30.300 ‘‘Tort ac-

tions against public bodies’’; creates immunity for every

public body for torts of its officers or employees arising

within the scope of their employment or duties; excepts

any claim based upon the performance of or the failure

to exercise or perform a discretionary function or duty,

whether or not the discretion is abused; maximum re-

covery is $300.000 for any number of claims arising out

of a single accident or occurrence; notice of claim re-

quired within 180 days after the alleged loss or injury;

no indemnity for wilful or wanton neglect of duty.

39. Pennsylvania: Section 8521 through 8526 ‘‘Ac-

tions against commonwealth parties’’; specific catego-

ries are spelled out in which immunity is waived, to in-

clude vehicle liability; medical professional liability; care,

custody of control of personal property, commonwealth

real estate, highways and sidewalks, potholes and other

dangerous conditions; care, custody or control of animals,

liquor store sales, and National Guard activities; limita-

tion on damages is $250,000 per Plaintiff and $1 million

in the aggregate.

40. Rhode Island: Section 9-31-1 through 9-31-12

‘‘Governmental Tort Liability’. The State and any politi-

cal subdivision is liable ‘‘in all actions of tort in the same

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manner as a private individual’’; limitation of damages is

$50,000 for any City or town; the General Assembly may,

by Special Act, authorize actions of tort in which the

amount of damages may exceed $50,000. Notice is still re-

quired. Enacted in 1974.

Ryan v. State Department of Transportation, 420 A.2d

841 (1980). Injured motorist sued registrar of motor ve-

hicles, claiming that the registrar issued a velid driver’s

license to the Defendant despite a length histery of viola-

tions, and, because the Defendant’s license was reinstated

by the registrar after three suspension orders. The Plain-

tiff claimed that the registrar failed to conduc: an investi-

gation required by law. which states that any person who

has a license which has been suspended cannot have it re-

instated, unless the registrar investigates the ‘‘character,

habits and driving ability’’ of such person. The Rhode

Island Supreme Court affirmed the decision of the trial

Court, that the purpose of the statute concerning suspen-

sion and reinstatement of drivers’ licenses to protect the

public at large, and the legislature did not intend to cre-

ate any individual duty. ‘‘ We are unable to conclude, how-

ever, that the legislature intended to create a duty running

to individual members of the public. Furthermore, such a

drastic remedy would likely deter the registry from rein-

stating any drivers under (the regulations)’’. (420 A.2d

841, at 843).

41. South Carolina: No Tort Claims Act; Section

111-140 allows any political subdivision of the State to pro-

eure insurance in order to protect personnel against tort

liability arising in the course of their employment but sub-

section two of such statute states that this does not con-

B35

stitute ‘‘a relaxation of the sovereign immunity of the

State’’.

42. South Dakota: Section 9-24-1 through 9-24-6; re-

quires written notice for any action to recover damages

for personal injury or death caused by the negligence of

any municipality; does not change common law doctrines

concerning municipal immunity.

43. Tennessee: Section 29-20-101 through 29-20-407

‘Governmental Tort Liability’’; waives governmental im-

munity for any negligent act, unless it ‘‘arises out of the

exercise or performance of the failure to exercise or per-

form a discretionary function, whether or not the discre-

tion is abused; ... arises out of the issuance, denial, sus-

pension or revocation ... of any permit, license, certifi-

cate... 3; arises out of a failure to make inspection, or by

reason of making an inadequate or negligent inspection of

any property’’ (29-20-205); requires written notice with-

in 120 days after the cause of action arose; no judgment

may exceed the insurance coverage carried by any govern-

mental entity. Requiremnet for insurance mandatory, with

minimum limits of $20,000 per person; $40,000 per number

of claims arising out of one incident; maximum recovery

$300,000 for bodily injury or death of any number. of in-

dividuals arising out of one accident; reduced limits for

those towns or cities which are unable to purchase insur-

ance, but must provide self insurance. (Section 29-20-403) ;

effective 1973.

44. Texas: Section 6252-19 ‘‘Tort Claims’’; waives

governmental immunity for each unit of government and

its employees, only for negligence ‘‘acting within the scope

of his employment or office arising from the operation or

B36

use of a motor-driven vehicle and motor-driven equipment

. . under circumstances where such officer or employee

would be personally liable to the claimant in accordance

with the law of this State .. .’’; also, waives immunity

for death or personal injuries caused from ‘‘some condi-

tion or some use of tangible property, real or personal,

under circumstances where such unit of government would

be liable... if a private person would be so liable’’; limit

of $100,000 per person and $300,000 per incident; written

notice of claim required within six months from the date

of the incident.

45. Utah: ‘‘Governmental Immunity Act’”’ Section

6330-1 through 63-30-34; includes cities and state agencies

and employees; waives immunity from suit of all govern-

mental entities for injury approximately caused by a negli-

gent act or omission of an employee with certain excep-

tions, to include any discretionary act, whether or not the

discretion is abused; any intentional tort; any act that

“‘arises out of the issuance, denial, suspension or abroga-

tion, or by the failure of refusal to issue, deny, suspend

or revoke, and permit, license, certificate, approval, order;

or similar authorization’’ (63-30-10(3)); requires written

notice of claim within one year after the cause of action

arises, excludes liability if employee was liable because of

‘gross negligence, fraud, or malice’’; maximum liability

determined by insurance policy; cities required to have

minimum insurance of up to $300,000 for all claims arising

out of one occurrence.

46. Vermont: Title 29 Section 1403 waives govern-

mental immunity only if a municipal corporation has an

insurance policy; sovereign immunity is waived only to the

B37

extent of the coverage of the policy. There is not require-

ment for a city to carry liability insurance, even on its

motor vehicles and drivers. Medler v. Aetna Insurance

Company, 248 A.2d 740 (1968).

47. Virginia: Section 8.01-222 requires prior notice

of any claim to municipality within 90 days of claim; gov-

ernmental/proprietary distinction still in effect. There-

fore, suit allowed only if proprietary function.

48. Washington: Section 4.96.010 through 040 ‘‘Ac-

tions against Political Subdivision’’; waives governmental

immunity for damages arising by tortious conduct of City

or officers ‘‘as if they were a private person or corpora-

tion’’; requires filing of notice of claim; notice of claim

required within six months immediately prior to the time

the claim arose; effective 1967.

Weston v. New Bethel Miss. Baptist Church, 598 P.

2d 411 (Wash. 1979). Church applied for and received

building permit for construction of parking lot and con-

erete ‘‘rockery’’; it collapsed, causing property damage

to adjoining property owners; Court of Appeals affirmed

summary judgment granted for City, on claim that City

was liable because it negligently issued a building permit,

for a structure which violated the building code. The build-

ing permit allowed the structure to be 16 feet in height;

in fact, it was 22 feet high, 6 feet higher than permitted.

Georges v. Tudor, 556 P. 2nd 564 (Wash. 1976). Plain-

tiff sued for damages arising out of the collapse of a build-

ing under renovation; Plaintiff claimed that the city was

negligent in issuing a building permit and in inspecting

the privately owned building which collapsed. The Court

held that the enforcement of the building code through

B38

periodic inspection of buildings creates only a public duty,

and not a private duty. The Court held that this did not

fall in the general exception recognized in Washington

that ‘‘where a relationship exists or has developed between

an injured Plaintiff and agents of the municipality’’ a

private duty may be created to perform a mandated act

for the benefit of that private party. At page 567.

49. West Virgina: Section 8-12-7 permits munici-

palities to purchase insurance for public liability.

50. Wisconsin: Section 893.80 et seq ‘‘Claims against

Governmental bodies, officers and employees’’ provides

for broad waiver of immunity, with none of the usual ex-

ceptions; requires written notice written 120 days; $50,000

maximum recovery; exempts only ‘‘acts done in the exer-

cise of legislative, quasi-legislative; judicial or quasi-ju-

dicial functions.’’