Every year, dozens of lawsuits are brought by distraught parents whose children were the victims of drowning. Most lawsuits are against lifeguards, or others charged with watching kids; these cases frequently settle for millions of dollars. But this July, the Commonwealth Court of Pennsylvania dismissed a wrongful death action against a building inspector despite what her mother insists, and many would agree, was a clear state code violation.
The Pennsylvania case centers around a drowning incident that took place in a Mercer County Community on April 20, 2016. Anna Oakes’ 20-month-old daughter Pheylan Marie Cline wandered onto a neighbor’s property, fell into their above ground pool and drowned.
The toddler accessed the neighbor’s pool through two gates. The first gate opened inward, toward the deck. The second gate likewise opened inward, toward the swimming pool.
At the time of the gates’installation, Jeff Richardson, the building code inspector for Coolspring Township, Mercer County, reviewed the design of both gates and issued a building permit.
After her daughter’s death, Oakes filed a wrongful death and survival action against Richardson, claiming that Richardson was negligent in either issuing the permit and/or inspecting the neighbor’s property. Oakes claimed that the design and inward operation of the gates violated Pennsylvania’s Uniform Construction Code (UCC). Oakes believed that the improper gate configuration allowed her daughter access to the neighbor’s swimming pool, which led to her tragic death.
However, the facts of the case were never heard in Court.
Owing to a perhaps little-known feature of United States law and depending on the state, governments and their officials enjoy a certain degree of immunity from suit. This immunity has its roots from an English doctrine which held that “the King can do no wrong.”
In Pennsylvania, the Sovereign Immunity Act and the Political Subdivision Tort Claims Act, provide that as a general rule, with limited exceptions, the Commonwealth and its officials are immune from civil suits.
Early in the litigation, Richardson advanced a governmental immunity defense, claiming that he served as an employee of the Township by acting as the Township’s building code official. Any error or negligence on Richardson’s part with regard to the gates, he argued, could not be considered.
Richardson filed a motion for summary judgment seeking a ruling, without a trial, that Richardson was an employee of the Township and entitled to governmental immunity under the Tort Claims Act. The motion was granted in favor of Richardson on July 12, 2019.
Oakes appealed the decision, arguing that Richardson was never an employee of the government but rather an independent contractor, which she substantiated with a variety of arguments, including the fact that Richardson’s work with the township is not exclusive. He also performed inspection work for numerous other municipalities throughout Western Pennsylvania, and identified himself as a third-part business entity carrying $1,000,000 of insurance coverage.
In the final opinion of the appeals court, Judge Michael Wojcik wrote, “The sole issue in this appeal is whether the trial court erred in determining that Richardson is immune from liability as a government employee under the Tort Claims Act.”
According to the appellate court Richardson was an employee immune from liability. The court held he was an employee because, among other things, the Township had direct control over Richardson, including collecting fees and and assigning his duties.
Thus, the answer to the bewildering question of why Richardson approved Oakes’ neighbor’s inward swinging gates will never be known.
Pool gates should always open away from the pool.