Fighting City Hall

The Louisiana Supreme Court recently ruled that the City of Baton Rouge and the Parish (County) of East Baton Rouge were legally liable for death and personal injuries sustained as a consequence of a building collapse. It appears that the collapse resulted from deficiencies in the structural design not detected by building department officials when the building permit was issued or during construction progress.

The case [Stewart v. Schmieder, 386 So. 2d 1351 (La. 1980)] rejected the city-county contention that it was protected from liability because of a "public duty doctrine" under which it claimed immunity.

Instead, the court held that the building officials had the power and duty to check plans for structural sufficiency and inspect the premises to insure that "the provisions of law are complied with and that the construction is prosecuted safely" and to enforce compliance with applicable codes.

This decision represents another departure from the sovereign immunity doctrine under which states and political subdivisions have been held exempt from liability because of their public character-a throwback to an early English theory that "the King can do no wrong."

Whether Colorado cities would similarly be liable for undetected structural design deficiencies or construction hazards is unclear and presently doubtful.

The Colorado General Assembly has adopted the "Colorado Governmental Immunity Act" with provisions abolishing the doctrine of sovereign immunity only in certain expressed circumstances, not specifically including building department negligence. That, however, is not necessarily the final word because of the possibility of court action further invalidating, limiting or even entirely abolishing the doctrine of sovereign immunity as courts of several states have done.

The message of the Stewart case is that governmental liability for building department negligence is a live issue in the courts. It also suggests that other public departments charged with responsibilities for construction and building safety may be under fire and the targets of future claims and suits.


Update Note: After the original publication of this Brief the Colorado Court of Appeals surprised the author with its decision in Moreland v. Board of County Cornmr's, 725 P.3d 1 (Colo. App. 1986). In the case the court held that Mesa County was liable for injuries to a man who fell off a balcony which was built in violation of the local building code.