Thursday, June 16, 2011

Noticing New York on how it looks like Forest City Ratner and consultant Sam Schwartz are performing government functions

Michael D. D. White, in his Noticing New York blog, reflects on the real strangeness of the Forest City Ratner/Empire State Development Corporation session on traffic June 14, given that a private consultant hired by a private developer was explaining--at times not all too well--how public streets would be managed.

White writes:
The Private Sector Without Sovereign Immunity

So this is what I am wondering: Although Forest City Ratner and Sam Schwartz as its engineering consultant may seem a lot like the government performing a government function, that is not what they are. Forest City Ratner and Sam Schwartz are private sector entities and however much they have intruded themselves into an assumption of what we would expect would be a government process they are no more actual government officials than a privately hired mall security guard.

So the question is: Can they be liable for their negligence if they do damage in this vastly extensive and impactful reorganization of the borough affecting so many neighbors? As sovereign immunity should not apparently apply to their actions, can these private entities be sued in court if the effect that the new arena and traffic patterns have is to slow response times for the police and fire departments resulting in deaths, physical injuries and property loss when their arrival is consequently delayed?
What if they're sued? White suggests:
If they are, it is probable that they would claim that, despite evidence to the contrary, they actually took no actions, that all the actions were taken by exclusively public agencies immune through sovereign immunity.
More here.

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