In December, 2016, a deadly fire broke out at an artist collective and event space known as the Ghost Ship in Oakland, California, during an electronic music concert attended by at least 50 people. Before the night was over, 36 people had died, making the Ghost Ship fire the deadliest fire ever in the city of Oakland, and one of the deadliest mass-casualty events in the entire history of California. The ongoing litigation apportioning fault for the fire has resulted in a tumultuous legal battle between the owners of the Ghost Ship, managers, and the city of Oakland. Tragically, many victims of the fire and their families are still seeking full compensation for injuries suffered that night.
Like Kindling Before the Blaze
Nearly all reports at the time of the fire suggest that the Ghost Ship was neither equipped, nor permitted by the city of Oakland to host concert events of any type. The building known as the Ghost Ship was actually a warehouse owned by a non-English speaking landlord who rented the space out to a tenant who operated the warehouse as an artist collective. The owner claims to have had no knowledge of the use of the building. During the fire, firefighters noted that, of the two staircases leading to the concert venue area (on the second floor), one was constructed almost entirely of discarded shipping pallets which quickly caught fire, and neither of the two led directly to an exit, as would be required under the Oakland building code. Moreover, there were no fire sprinklers in the building, and apparently no fire or smoke alarms of any kind. The building itself was cluttered with furniture, pianos, art pieces, personal possessions of residents, and other objects, many of which were made of wood, which impeded firefighters and caught fire in the course of the blaze. Despite a fire station being located approximately a block and a half away (and the fire department arriving almost immediately after the blaze began), the department was largely helpless to prevent the tragedy that unfolded inside the building.
Who is to blame?
Almost immediately after the Ghost Ship fire, a criminal investigation was launched, and charges were filed, against Max Harris, the creative director of Ghost Ship, and Derick Ion Almena, the founder of Ghost Ship. As of early 2018, both remain in custody pending further disposition. Although the criminal charges that have been filed, and are being actively pursued, against the Ghost Ship proprietors may offer a modicum of justice for the victims of this tragedy, a criminal case and civil case differ both in their purpose and in their outcome. A criminal case is a legal action initiated by a government—in this case, by the state of California. The goal of a criminal case is to both punish and deter future action of the criminals involved. Although many victims obtain a feeling of justice by seeing the perpetrators of a tragedy such as the Ghost Ship fire being put behind bars, a criminal case does not normally result in any financial compensation to the victims or their families. A criminal case requires the highest burden of proof in law: that the alleged criminals committed the acts they are accused of doing “beyond a reasonable doubt.” This is normally a very high burden for the prosecution to prove, and nearly all criminal cases are tried in front of a jury, and require the unanimous approval of all jurors for a conviction. Criminal and civil cases can operate largely independent of each other, and a conviction or successful verdict in one does not necessarily suggest a successful verdict in the other.
By contrast, a civil case is not intended to punish those responsible for the injuries alleged. Unlike a criminal trial, a civil case is initiated by the victim themselves (or the families of victims) through an attorney directly against a range of entities, some of which may include those who have been charged in criminal actions. The purpose of a civil case is to either compel some action to occur (or to stop), or for the victims to receive monetary damages to compensate for their losses. A civil case requires the plaintiff (the victim) to show that it is more likely than not that the defendant (those at fault) caused the injuries alleged—a relatively low burden, particularly compared to criminal trials. Although evidence from or obtained via a criminal investigation can be used, lawyers can use additional evidence at a civil trial to bolster their case that may not have been available or admissible at a criminal trial. The defendants in a civil case may be “punished” by large financial recoveries (and, in some cases, by so-called “treble” damages, which are financial damages specifically intended to punish particularly egregious perpetrators of injury, and can be three times beyond so-called compensatory damages), however this is usually the extent of the punishment capable of being doled out to bad actors in a civil trial.
Unfortunately for the victims of the Ghost Ship fire (and many like them in similar circumstances), the proprietors of the Ghost Ship are likely functionally insolvent, meaning that, even if they were to be found responsible in a civil action (which appears likely), they almost certainly lack the financial resources to compensate for the injuries caused. Moreover, because both may be incarcerated soon, they will have little chance of earning money in the future that might result in an appropriate recovery. Because the Ghost Ship was not functioning as a normal business or concert venue might, it likewise appears that insurance—which would normally provide compensation for injuries to patrons as a result of a disaster like a fire—was not obtained, or is not available to compensate victims.
As a result, many victims and their families have begun to pursue more creative strategies in an attempt to receive compensation for their injuries and those of their loved ones. Some victims have begun to suggest that the city of Oakland itself may be responsible, either in whole or in part, for the tragedy. Shortly after the fire, reports surfaced that building inspectors had been aware of the condition of the warehouse, but, for various reasons, chose not to enforce city building codes, or, at best, chose not to make themselves fully aware of the condition of the property. On multiple occasions, complaints had been filed against the building by local residents, alleging violations ranging from excessive garbage, to illegal interior construction, to repeated noise complaints. On several occasions, the Oakland building department attempted to inspect the property, only to be refused access (by law, the building department requires a court order, or the consent of the owner or residents, to inspect a building). Some of the complaints filed against the building occurred within weeks of the fire, and building department officials ultimately claimed that the building had not been fully inspected for almost three decades prior to the fire. On numerous occasions, police officers had been called to the location as a result of noise complaints, and had threatened to report the building to the city, only to ultimately do nothing. Despite the claims of the building owner that no one had been living in the warehouse, many neighbors and members of the Ghost Ship claim that numerous people were living in the building including, at least, one of the victims of the fire.
City of Oakland’s Culpability
The city of Oakland’s possibly legal liability in the case of the Ghost Ship fire is somewhat unclear. Despite reports that Oakland’s commercial fire code compliance inspection program was woefully mismanaged—in 2014, it was discovered that Oakland fire inspectors had only inspected half of the 12,000 registered commercial properties—the penalties for the city are nearly non-existent. California Government Code Section 818.6 states that public entities, such as Oakland, cannot be held liable for “injury caused by [the entity’]s failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property.” Essentially, the code suggests that the city of Oakland cannot be liable for any failures that flow from its failure to make an inspection, or by making an inadequate or negligent inspection. This provision has been confirmed in California case law, such as in Cochran v. Herzog Engraving Co., 155 Cal. App. 3d 405 (1984), in which a court absolved the City of San Mateo for any liability stemming from the city fire marshal’s failure to recommend appropriate safety measures which could have prevented a deadly fire.
As a threshold matter, the Ghost Ship was not registered within the city of Oakland’s database of commercial properties, which requires, among other things, routine inspections ensuring that the building has adequate entrances and exits, fire sprinklers, smoke alarms, and is in compliance with all relevant electrical and other codes that might prevent a fire. Violations would lead to follow up inspections to ensure that the building is safe. Quite obviously, had the Ghost Ship been registered on such a list, it almost certainly would have failed these inspections.
Regardless, that the building department either actually knew, or should have known, that the Ghost Ship building was being used for commercial purposes, despite not being included on Oakland’s list of commercial properties, appears quite obvious. The numerous complaints, police actions, and general state of the building are all suggestive that commercial and residential activities had been occurring, and were likely to continue to occur, in a building formally identified as a warehouse.
At least one lawsuit against the city has used this theory in an attempt to skirt around California’s blanket immunity on cities (and on Oakland in particular) for financial responsibility flowing from poor or non-existent inspections. In this case, the plaintiffs argued that the city of Oakland had a “mandatory duty” to act when it came across unsafe conditions in buildings, as the city did in the case of the Ghost Ship, regardless of California laws that limit liability for failing to perform inspections. Regarding the Ghost Ship fire, the judge (Brad Seligman, in the Alameda County Superior Court) agreed with the plaintiffs, finding that, regardless of California law, a city could be found liable if it willfully ignored known building issues that led to injury. The general theory is that the city of Oakland owes and owed a duty to all of its residents to ensure that buildings in its jurisdictions were and are reasonably safe, and operated, and continue to operate, within the limits of its ordinances and codes. When the city was actually aware that a building was unsafe, it similarly had a duty to either prevent this building from operating, or to rectify the problem. Because Oakland failed to do this (and therefore breached its duty), and because serious injuries resulted from this failure—such as the deaths and injuries flowing from the fire—the city itself could be liable for the injuries and deaths that resulted. Such an outcome would be hugely beneficial for victims of the fire, who could obtain settlements or full compensation for their damages from the city that they would otherwise be unable to obtain from the proprietors of the Ghost Ship.
The city of Oakland, as perhaps is expected, has attempted to resolve this issue out of court, denying liability and hoping, at best, for a settlement that would not set a precedent for it to be held liable in similar cases in the future. As one of the attorneys representing the victims in this case, Bobby Thompson of Thompson Law Offices in Burlingame, CA, has suggested, such a move outside of public court would not only be disingenuous, but would deny victims the right to hear Oakland attempt to explain its actions and inactions.
Other Avenues for Victims
A similar theory has been pursued against Pacific Gas and Electric Co., the power and gas company that supplied power to the Ghost Ship, under the idea that PG&E knew, or should have been aware, that their electrical services were being misused by the Ghost Ship to power the activities inside. That PG&E did not know, or knew and failed to do anything about it, is at least legally comparable to the city of Oakland’s lack of knowledge of willful lack of activity to rectify a dangerous situation.
Despite the ruling of the judge suggested above, it is highly likely that the city of Oakland will appeal this ruling in an attempt to absolve itself of liability. Frighteningly, and despite the deadly fire and ongoing litigation, reports continue to surface regarding Oakland’s inability to solve, or willful inaction to address, building code violations throughout the city. Although the proprietors of the Ghost Ship may soon be behind bars, it may be the case that victims of their actions continue to be unable to obtain the full compensation for injuries that they and their families deserve.