“See, Click, Fix” is a website designed to keep municipal workers on their toes. It’s another one of the Internet’s contributions to the Justice Louis Brandeis principle that “light is the best disinfectant.” It’s a system where anyone who witnesses a defect or danger on town property, parks or roads can report it online. Other members of the public can even vote on problems they consider most severe. The complaint is then sent on to the appropriate city department. The public can then watch in real time via the site how and when, and if, the problem is addressed.
You would think this system would energize any reasonable city department of public works into action. Even if these often-tenured workers with Teflon contracts were immune to public embarrassment, surely they would respond based on notice of their potential legal liability, right? Couldn’t the city be easily held responsible for harm occurring after it had notice from See, Click, Fix? Sadly, the answer too often is “no.”
Through a series of judicial opinions and statutory changes, the state Supreme Court and legislature have narrowed the window of municipal accountability for negligence down to barely a small peephole of potential liability. There are very few situations today where a municipality can ever be held liable for failing to repair or fix a danger even if the harm is caused by defects well known to the town and could be easily remedied by its employees. The result is that municipalities and their workers have become largely unaccountable to the people who rely on their services.
The Supreme Court has become ever more loose and permissive in its application of the common law rule that municipal employees cannot be held responsible for discretionary acts. The general rule of discretionary act immunity was initially applied with exceptions to immunity where certain conditions existed. One such exception was when it would be apparent to the municipal officer that failing to act would expose identifiable persons to imminent harm. The intent here was that when a municipal employee knew that someone could get hurt in the very near future unless they acted, they had to act to protect the public by remedying the problem. This was as initially understood a very sensible rule. Certainly, municipal workers should be given room or discretion to make policy and resource choices but this immunity should not carry over to a situation where the failure to act was going to cause imminent harm to real people.
As time went on, the Supreme Court interpreted the discretionary immunity exception so narrowly as to create absurd results. For instance, in Shore v. Town of Stonington, the town was sued when its police officer knowingly allowed a drunken driver to get back behind the wheel and drive home. Moments after their police officer used his “discretion” to allow him back on the road, the drunk slammed into another car, causing death and destruction. There the Supreme Court refused to apply the exception because the victims weren’t known at the exact time the drunk was loosed upon the road by the police officer.
The Supreme Court continued its love affair with municipal negligence in Doe v. Peterson, in which a town manager refused to hear the complaints of a 15-year-old girl who was trying to tell him she was being sexually abused. There the court held that because the manager refused to hear the complaint, the harm was not “apparent” to him, and has such he had the “discretion” to do nothing.
Not to be outdone by the court, in 2011 the legislature gilded the municipal immunity laws by completely barring negligence lawsuits against town employees for failing to repair known dangers in city parks, playgrounds, ball fields and any other conceivable recreational areas. To its credit, the legislature continued to allow some suits against town employees but only where the employee actually intends to hurt someone.
So here we are in 2014. We have this wonderful method—See, Click, Fix—of alerting municipal employees to dangers and defects, but it has no teeth. It has no teeth because “notice” no longer means “legal liability.” It has no teeth because legislators and judges have kowtowed to municipal power instead of honoring their constitutional duty to ensure that for every wrong there is a remedy. Is this the sort of government we want? One that through judicial and legislative intervention eliminates all of the normal free market incentives for focusing on safety first?