By Christopher B. Dolan, ESQAt approximately 12:40 a.m. on Tuesday, June 16, 2015, tragedy struck at Library Gardens, an apartment complex located at 2020 Kittredge Street in Berkeley, California, killing six Irish exchange students and injuring at least seven more as they fell four stories from a collapsed balcony to the concrete sidewalk below. The injured and deceased were part of a group of Irish students celebrating the 21st birthday of one of their own. The deck failed suddenly and without warning at the juncture with the building façade.
A preliminary report issued late in the afternoon of June 23rd, by the Berkeley Planning Department’s Building and Safety Division, cites extensive dry rot in the cantilevered joists as the cause of the collapse. The Department stated that the dry rot appeared to be the result of moisture caused by cumulative water intrusion into the structural components of the decking system. Upon inspection they found similar dangerous conditions on the third floor balcony directly under the one that failed. That balcony was ordered removed. The Safety Division reported that a careful inspection of other balconies, constructed using a different structural design, did not show evidence of dry rot. The Division indicated that preliminary review of the building designs, architectural plans and structural drawings appeared to be consistent with Berkeley’s 1998 Building Code which was the Code in force and effect at the time of the deck’s design and construction which occurred during the period between 1995 and the final inspections in January of 2007. The report also indicated that the number of party goers on the balcony did not exceed the structural load calculations shown on the approved plans and, therefore, would not have led to failure in the absence of the dangerous rot.
The Safety Divisions Report calls for immediate amendment to the Berkeley Building Code (See June 23, 2015 Staff Recommendation Related to Library Gardens Balcony Collapse released by The Planning & Development Department, Building and Safety Division) so as to require ventilation of decking structures to prevent moisture buildup and dry rot, the use of stronger, more weather resistant materials in exterior deck construction and a mandatory inspection program requiring inspection of all decks within six months and then once every five years thereafter. This seems to run counter to the annual inspections required under the Berkeley Municipal Code Section 12.48 mandating annual inspection and certification of exterior structures in units made available for rent.
In the United States each individual state had its own set of laws governing most criminal and civil disputes. The Pursuant to the 10th Amendment of the U.S. Constitution, contained within the Bill of Rights, the principle of federalism, which underlies the principal of our federal system, states that the federal government possesses only those powers delegated to it by the Constitution with all remaining powers being reserved for the states or the people. Therefore, the issues presented by the collapse which occurred in the early morning of June 16th, present matters to be evaluated under California law.
WHAT CALIFORNIA LAWS APPLY?
The present catastrophe potentially involves laws pertaining to construction defect, products liability, premises liability, and general negligence theories as they pertain to personal injuries and wrongful death.
CRIMINAL VS CIVIL LIABILITY
While there may be possible criminal culpability for involuntary manslaughter under Penal Code Section 192, based upon criminally negligent faulty construction or maintenance leading to death, such an action would need to be predicated upon extreme circumstances such as the deliberate use of substandard materials or substandard methods with indifference to the potential for serious bodily harm or death. Criminal culpability is framed in the concepts of guilt or innocence. Criminal actions are prosecuted through the criminal courts in the name of the people by the district attorney (in this case Nancy O’Malley, the elected District Attorney for Alameda County). District Attorney O’Malley has absolute discretion to initiate a criminal investigation and/or complaint. In order for the DA to win a criminal case (conviction) they must convince a unanimous jury of twelve people that the elements of the crime had been proven beyond a reasonable doubt. Criminal penalties involve fines, restitution and/or incarceration. Under Penal Code Section 192, a conviction for involuntary manslaughter carries a possible sentence of up to four years imprisonment.
It’s highly unlikely that anyone involved in this disaster will be charged with any criminal offense. The crime of involuntary manslaughter would be the most logical charge to be filed if it could be shown that there was a deliberate use of substandard materials or substandard methods with indifference to the potential for serious bodily harm or death.” In the United States Criminal actions are prosecuted in the name of the people, in the criminal courts, by the District Attorney, O’Malley. While O’Malley is a very tough prosecutor who cares very much about tragedies such as this her office only files criminal charges where there is a likelihood that she can prevail in front of a jury. Given the preliminary findings of Berkeley’s Safety Division, and the challenge of proving the level of intent or reckless disregard to the heightened burden of proof, it is highly unlikely that any criminal action will be prosecuted against anyone connected with the design or construction of the decking systems.
According to this author, it is more likely that accountability will be left to the civil courts where families of the victims can file cases for wrongful death and those injured may bring their own lawsuits for their personal injuries. In a civil case there is a much lower burden of proof – that of the preponderance of the evidence (more likely than not) – and one need not prove any level of intent or reckless disregard: they need only prove that a defendant was negligent.
In a civil case, culpability (called liability instead of guilt) is established through a private action initiated by a plaintiff, or group of plaintiffs, against one or more defendants. These cases are often referred to under the general rubric of “torts” (civil wrong committed against a person by another) pursued in the civil courts. The parties, Plaintiffs and Defendants, must provide their own legal representation in civil actions. A defendant covered by a policy of insurance will have an attorney appointed, and paid for, by their insurance company to defend them.
Unlike a criminal case, a civil case must be proven to a preponderance of the evidence standard which means that the elements of a cause of action must be proven to be more likely than not. It is a much lower standard then the criminal beyond a reasonable doubt standard and requires only nine out of twelve jurors to agree in order to reach a verdict.
What is the impact or significance of the design plans being approved, and the inspections signed off on, by the City of Berkeley? Does that eliminate responsibility/liability?
The short answer is no. The role of the City’s Planning Department and Inspection Division is to assure that certain minimum standards are met. Building codes are generally uniform. Berkeley had adopted the California Uniform Building Code. The version which was used in this construction in 2005-2007 was the 1998 Building Code. It was six years old (and given it was placed in effect in 1998 it reflects pre-1998 analysis and conclusions enacted in 1998) at the time of construction. It was not designed to provide instruction for builders and architects working in micro climates. The California Building Code has the same requirements for construction in a desert as it does in a rainforest. An architect, structural engineer and/or builder has to exercise their own, independent, current, site specific, professional judgment and not rely on minimum standards. Building codes and city inspections do not act as a substitute for professional judgment concerning issues like climates, amount of rainfall, moisture, effect of cosmetic siding and improvements etc. There are limited numbers of inspectors available to conduct building inspections in The City of Berkeley and elsewhere. The Library Gardens project was, and still is, one of the largest developments in the City of Berkeley’s history. There is no way that an inspector can inspect every nail, window, deck, or joist. They do a cursory inspection of representative areas on a walk-through. They do bring in equipment or tools to allow them to go up and investigate the underside of balconies or open areas which are inaccessible. That is why the responsibility remains with the owner, architect, developer and contractor: to assure that they are inspecting and monitoring their conduct and construction.
A little known fact is that municipalities and their inspectors are immune from liability, and lawsuits, for failing to do their job correctly. State law mandates that they cannot be sued even if it can be showed that they were negligent in the performance of their duties.
What Legal Theories and/or Principals Apply to this Tragedy?
The general legal theory which encompasses all of the available claims is that of negligence. California Civil Code, Section 1714, states that “everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”
California jury instruction (CACI) 401 sets forth the legal principal behind negligence;
Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.
To prevail in a civil action a plaintiff must prove that a defendant was negligent, that they were harmed; and that the defendant’s negligence was a substantial factor in causing their harm. Under California law, a substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. A person’s negligence may combine with another factor to cause the harm and a defendant cannot avoid responsibility just because some other person, condition, or event was also a factor in causing a plaintiff’s harm.
In a case where there are multiple culpable parties, an apportionment of fault is calculated so that liability is distributed among the various parties such that the total amounts to 100%. Under California law defendants are jointly liable for economic damages. Therefore, any one defendant can be held financially liable for the whole of the economic losses should the other parties found to be at fault be unable to pay their share of the economic damages. However, for non-economic damages a defendant is liable only to the extent of their percentage of fault.
Personal injury actions are brought by those who have, themselves, suffered harm. These claims can, in addition to providing for damages stemming from a direct personal injury to the claimant, also provide compensation for psychological harm caused by witnessing the injury or death of a family member.
An action for wrongful death may be initiated by the decedent’s surviving spouse, domestic partner, children, someone living with the decedent who was financially dependent on them, or, if there are no such relations, those who would be entitled to the property of the decedent by intestate succession. (Intestate succession means the order in which a decedent’s property would be distributed in the absence of a will.) If the deceased had no spouse, domestic partner, or children, the legal action may be brought by their parents. If there are no parents that survive the decedent then the action may be initiated by the decedent’s siblings and, in the event there are no siblings, the grandparents.
California law provides for compensation for both economic and non-economic damages. Economic damages recoverable by an injured plaintiff include objective, quantifiable, losses such as past and future wage loss, medical expenses, transportation of family members to the United States to help care for and/or accompany an injured party home to Ireland, support at home during recuperation, or, in the case of irreversible disability, permanent support, etc. Non-economic damages include subjective harms to the person such as pain, suffering, emotional distress, fear, anxiety, disfigurement, disability, etc. In cases where it can be demonstrated, by the heightened standard of clear and convincing evidence, that there has been a conscious disregard for the health and safety of another, punitive damages may also be assessed. Punitive damages are awarded in addition to those referenced above to punish a defendant so as to deter him/her from engaging in similar conduct in the future as well as to act as a general deterrent thereby sending a message to the greater community that such conduct will result in serious consequences.
Economic damages for wrongful death recoverable by an eligible plaintiff include: 1) The financial support, if any, that the deceased would have contributed to the plaintiff during either the life expectancy that he/she had before his/her death or the life expectancy of the plaintiff, whichever is shorter; 2) The loss of gifts or benefits that the deceased would have expected to receive from them; 3) Funeral and burial expenses; and 4) The reasonable value of household services that they would have provided.
Non-economic damages in a wrongful death action do not include compensation for the pain, suffering or emotional distress of the surviving relative for their own grief. Instead, they are designed to compensate for loss of the relationship, i.e., the loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support. For married persons, this includes the loss of the enjoyment of sexual relations. For those who leave children behind this includes the loss of training and guidance. No fixed standard exists for deciding the amount of noneconomic damages.
If a decedent survived for a period of time before passing, a decedent’s personal representative may also seek damages for the economic loss or damage that the decedent sustained or incurred before death (such as hospital expenses), as well as punitive damages that the decedent would have been entitled to recover had the decedent lived. This does not include damages for pain, suffering, or disfigurement. If the decedent died immediately, there can be no claim for punitive damages.
WHO ARE THE POTENTIAL RESPONSIBLE PARTIES?
Given the number of affected parties it is important to examine the full spectrum of defendants to obtain full and fair compensation for all those who have been injured and/or suffered loss and to trigger any and all available insurance policies. Potential defendants include the architects, structural engineers, developers, general contractors, sub-contractors, product manufacturers, distributors and retailers, building owners and building mangers. Commercial insurance policies usually start at $1,000,000 combined single limits and then rise concomitant with the size and wealth of the commercial enterprise to include policies of greater substance including what are referred to as layers of excess coverage which can extend into the tens of millions of dollars. These wrongful death claims are each, in their own right, multi-million dollar claims. The personal injury cases, depending on the nature and severity of their injuries, likewise have significant value.
Architects and/or Structural Engineers:
Legal action against a skilled professional such as an architect or structural engineer is referred to as a professional malpractice action. As set forth in the California Jury Instructions on professional negligence (CACI 600), “an architect is negligent if he/she fails to use the skill and care that a reasonably careful architect would have used in similar circumstances. This is often referred to as the standard of care.”
The elements of a cause of action in tort for professional negligence (malpractice) are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. To establish a malpractice claim, a plaintiff is required to present expert testimony establishing the appropriate standard of care in the relevant community. Standard of care is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony. Indeed, California law requires that before a lawsuit against an architect or structural engineer can proceed, a certificate of merit, signed by a licensed professional, must be obtained. Therefore, the applicable building codes, as well as the drawings and calculations made by these professionals, would need to be analyzed by the appropriate experts, i.e., structural engineers or architects, to evaluate if there was professional negligence and, if so, to provide testimony as to the same in deposition and/or trial.
Developers, General Contractors and Sub-Contractors.
Developers, general contractors and sub-contractors are supposed to act as reasonable professionals would under similar circumstances, follow specific laws regarding construction practices, and abide by the applicable building code. While applicable building codes provide evidence of what is minimally required, liability must also be analyzed in consideration of the blueprints, plans and specifications as well as industry custom and practice. In this case the original developers were John DeClercq and TransAction Companies. The contractor involved in the decking is reported to be Segue Construction out of Pleasanton. Segue has been successfully sued by Rachel and Tom Miller, of The Miller Law Firm, a litigation boutique that specializes in construction defect litigation. Segue recently settled a property damage claim related to defective decking systems and water intrusion for over 3.5 million dollars.
Berkeley has adopted the California Building Code. A certificate of occupancy was issued in at the conclusion of construction in January of 2007. The applicable Building Code for the project is the 1998 version as it was in effect up through 2007 when the plans were approved. The Code contains specifications for cantilevered decks, waterproofing, membranes, decks, door installation, etc.
These codes and regulations require that decks, deck systems, balconies, balcony systems, exterior stairs, and stair systems shall not permit water to pass into the adjacent structure or within the systems themselves and/or cause damage to the systems. The term “systems” as used under the Building Code includes framing, substrate, flashing, and sheathing.
The violation of one or more of these safety regulations may create a presumption of negligence under the doctrine of negligence per se as embodied in California Evidence Code Section 669.
The failure of a person to exercise due care is presumed if: 1) He violated a statute, ordinance, or regulation of a public entity; 2) The violation proximately caused death or injury to person or property; 3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and 4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
If the four elements set forth above are established, a presumption of negligence arises and the burden of proof shifts to the defendant to persuade the trier of fact that he ‘did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances.’
This case will require extensive review and analysis of all applicable codes, regulations and ordinances as well as the design and construction of the decking systems including how they were framed, flashed and waterproofed.
Product Liability Defendants
It is possible that one or more of the products used in the decking and/or waterproofing system(s) were defective thereby exposing those involved in the design, manufacture and distribution of the product to liability for damages. The manufacturer of the Bituthene products used for weatherproofing is WR Grace and Company.
In California there is a doctrine called “strict products liability” which is an outgrowth of public policy seeking to hold those who have been involved in the enterprise of developing, manufacturing, marketing and selling of a defective product responsible for the damages that the product causes.
The policy considerations are that: 1) The enterprise defendants, unlike the consumers, can anticipate or guard against the recurrence of hazards; 2) The cost of injury may be an “overwhelming misfortune” to the injured consumers, whereas the enterprise defendants can insure against the risk and distribute the cost among the consuming public, and 3) It is in the public interest to discourage the marketing of defective products. The theory permits the imposition of tort liability against all those in the marketing chain-e.g., not only manufacturers, but also wholesalers, distributors and retailers. Regardless of the identity of a particular defendant or his position in the commercial chain, the basis for his liability remains that he has marketed or distributed a defective product.
Strict product liability amongst several defendants is joint and several: i.e., any defendant in the stream of commerce (and causally connected to the product defect) is responsible for all of a plaintiff’s damages attributable to the defective product. The burden effectively shifts to the particular defendant to apportion liability by seeking comparative indemnity from others in the marketing chain.
Recovery is not limited to the immediate purchaser of the product or the immediate consumer to whom the product was marketed. Any person whose injury was reasonably foreseeable may bring a product liability action.
A prima facie case of strict product liability requires a plaintiff to demonstrate that: 1) The product was legally “defective;” 2) The product defendant was causally connected to the defect; and 3) The plaintiff suffered injury as a proximate result of the defect.
A product may be “defective” because of a manufacturing defect, a design defect, or a warning defect.
Strict liability for a “manufacturing defect” may be imposed if, when the product left the particular defendant’s control, it differed from the manufacturer’s intended result or from apparently identical products of the same manufacturer, and the product was used in a manner reasonably foreseeable by the defendant but nonetheless caused plaintiff injury. Plaintiff’s burden is to demonstrate that there was a flaw in the manufacturing process-i.e., that the product deviated from the manufacturer’s design or specifications and was manufactured differently from the prototype.
There are two ways in which a design defect can be demonstrated; the “consumer expectation” and the “risk-benefit” test. A product is defective in design if it failed to perform as safely as an ordinary consumer would expect (or have a right to expect) when using the product in an intended or reasonably foreseeable manner. This case would be analyzed under the “consumer expectation” test; i.e. did the components of the balcony system, the flashing, waterproofing membrane, joists, etc., fail to perform as expected? This theory may provide the sole basis of liability but it most often used in conjunction with others.
Early reports indicate that WR Grace used to market the Bituthene as “self-sealing” meaning that the rubber like material would seal itself, with no other sealant required, when punctured by a nail. WR Grace discontinued this self-sealing recommendation.
To evaluate the potential for a claim for product liability the products used in the construction of the decking system will need to be evaluated using mechanical engineers and product design and manufacturing experts. It is my understanding that the materials are in the possession of the authorities and that the Department of Building Inspection may have already conducted a preliminary analysis.
Premises Liability: Owners and Managers of the Property
Ownership of the project was transferred from the original developers to BlackRock Real Estate Investment Trust in 2007. Current ownership is believed to be held by Granite Library Gardens LP an apparent subsidiary of BlackRock. The property is managed by Greystar Real estate Partners LLC which owns and/or manages several hundred thousand properties worldwide.
The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence. The duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage it. A person who owns and/or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. They are negligent in the operation or maintenance of the property if: 1) A condition on the property created an unreasonable risk of harm; 2) They knew or, through the exercise of reasonable care, should have known about it; and 3) They failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition. Owners/managers must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.
In certain cities there are ordinances which require owners and lessors to conduct periodic safety inspections of their property. Berkeley is one of those. Berkeley Municipal Code (BMC) Section 12.48 establishes the City’s Rental Housing Safety Program. The Safety Program requires all owners of single family residences, duplexes, apartment houses, and hotels to annually certify that their rental units(s) meet housing safety standards established by the City. They can do this by conducting their own inspection or by requesting that the City come in and conduct an inspection. Failure to conduct the mandated safety inspections as required is strong evidence of a failure to properly inspect and maintain the property and may be offered to prove that the landlord “should have known” of the defect had they acted in accordance with the law. A request to the City for evidence of any and all safety inspections should be made promptly.
Evidence of defects in a balcony system such as these here often includes reports of water pooling on the deck which often backs up over the threshold into the unit and/or intrusion into the ceiling of the unit below. Evidence of these conditions can be obtained through searches of the owner/manager’s records for complaints of water intrusion, carpet cleaning or replacement, caulking and/or painting of the ceiling in the unit below. We often find evidence of an owner’s knowledge (and sometimes willful failure to repair) when there has been recent paint work on the exterior. Good painters will point out areas of rot to an owner/manager and, instead of making repairs, often they simply tell the contractor to do a quick patch and paint rather than conduct an investigation into the extent of the rot and undertake structural repairs. Likewise, if the building was recently sold or refinanced, there may have been a building and termite inspection which noted defects in the balconies. An owner is liable even if they personally did not know of the condition so long as their agent/manager did. They cannot escape liability for failure to maintain property in a safe condition by delegating the duty to an independent contractor.
California follows the doctrine of pure comparative fault. Therefore, if a plaintiff (or decedent) is negligent in causing their own injury or death, the degree of their negligence will be apportioned against any recovery that they may be entitled to. In practice, should a matter proceed to trial, a jury would be asked to first calculate the total amount of recoverable damages and then determine if the plaintiff (or decedent) was negligent and, if so, whether their negligence was a substantial factor in causing their injury. If they answer yes, the jury, as with the defendants, is instructed to apportion a percentage of fault to the plaintiff. That percentage of fault is multiplied against the total damages and then subtracted from them to obtain a final award. Preliminary calculations done on the square footage of the deck, utilizing the Building Code requirements for support in pounds per square inch, indicates that the load presented by the number of people on the deck should have been easily carried by a sound deck structure. Therefore, with the limited information available, there does not appear to be any basis for apportionment of comparable fault.
Questions Regarding Process and Statutes of Limitations
Legal Proceedings: individual legal actions vs. class action/multiple party actions.
Although there is a common nucleus of facts inherent in each victim’s legal claim arising out of the collapse, this is not a proceeding which would be brought as a class action. Class actions have both a numerously and commonality component to them meaning that there must be a sufficiently large number of plaintiffs who have suffered substantially similar harms and the harms must be substantially the same. These claims would lend themselves to individual actions as the damages are particular to each individual based upon their injuries and family circumstances. A court would consolidate the individual actions under one judge for the purpose of case management and trial. The parties can be all represented by one law firm or by multiple law firms. The law firms in consolidated actions such as this usually work cooperatively in conducting discovery and in retaining experts for analysis of both construction and product defects.
Statute of Limitations
Pursuant to the California Code of Civil Procedure Section 335.1, for those over the age of majority (over 18), the statute of limitations is 2 years from the date of the collapse for personal injury. For any persons injured who are under 18 years of age, they have two years from their 18th birthday to bring an action. All wrongful death claims must be instituted before the passage of two years from the date of death (but should be brought before the running of two years from the event to be safe and cover any claims which arise out of a survival action as described above).
So long as there is a defendant who has its residence or principal place of business in California, the action may be brought in the Superior Court for the county in which the event occurred (Alameda County) or in a county where a defendant resides or has a principal place of business. This case, having occurred in Berkeley, would be most probably assigned to the Oakland Division of the Alameda County Superior Court. The Court would draw upon residents from the local area, including University of California Berkeley students, and those who are renters, and landlords: people familiar with the inspection requirements of the safety ordinance.
Attorneys that handle these cases generally work on a contingency fee basis deferring compensation until there has been a successful resolution of the matter through settlement or trial to verdict. All costs are advanced as non-recourse meaning that if there is no recovery there is no obligation to reimburse fees. If there is a recovery, then costs are also reimbursed at that time. Attorney contingent fees are not set by law. As a matter of custom and practice, contingent fees are usually 33.33% to 40% of the total recovery depending on whether the case settles or goes to trial.