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June 17, 2011

Sovereign Immunity, Reconfiguration of Brooklyn’s Traffic And The Peculiar Verisimilitude of Government Functions When Forest City Ratner Takes Over

Noticing New York

Here's an excellent Michael D.D. White piece on the abdication of the public role to Forest City Ratner and its consultants.

After I thought about seeing Sam Schwartz’s presentation at Borough Hall the other night it struck me that I had seen something very odd. Yes, the presentation was in the stately courtroom of Borough Hall, the carved woodwork, towering pillars and ornate ceiling conveyed the sense of governmental formality, but here was a man, a consultant hired by and working for a private developer, describing how, as a result of that developer’s project, traffic, was going to be rerouted by him all around the busiest most populous areas of the borough.

While flash animated videos showed the multitudinous streets involved (or at least those to which Mr. Schwartz was extending his formal consideration), Mr. Schwartz casually explained about the little blue stand-ins for real vehicles scooting around in the videos “did not represent the real volume of traffic flow” (which would in real life be considerably heavier) and were there only to demonstrate the sets of theoretical turn off choices drivers would have at specific streets and avenues. Perhaps, by the same token, it should be pointed out that, appearances aside, Mr. Schwartz, standing in Borough Hall showing how so much of the borough’s traffic would be reconfigured (without actually simulating the real volume of traffic flow), did not represent a real public official.

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?

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Related coverage...

Atlantic Yards Report, 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.
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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.

Posted by eric at June 17, 2011 10:28 AM