Berkeley victims ‘may have contributed’ to balcony collapse

US firm denies liability and claims students killed may have had some responsibility

One of the companies being sued over the deaths of five Irish students when a balcony they were on collapsed in the US has denied liability, saying the victims may have had some responsibility themselves.

R Brothers Waterproofing is one of a number of entities now being sued by the families of the dead and injured following the tragedy in Berkeley, California, which has filed legal papers denying liability. However, while some other firms have filed a standard brief denial, R Brothers Waterproofing's denial is much longer and more detailed.

The company, which carried out the waterproofing on the balconies in the Berkeley building, set out its denial to a lead case by Aoife Beary and on behalf of the survivors in filings lodged with the Superior Court of California, in Alameda County.

The company has said those who filed the civil case against it have failed to state sufficient facts to constitute an action against it, and it has also claimed the statute of limitations has expired.


Under one of 43 headings outlining its defence, under the heading “comparative negligence”, the company says: “The plaintiffs and/or cross-complainants’ own carelessness and negligence may have proximately contributed to the events and damages complained of, if any, and such bars of proportionately reduces any potential recovery to the complaint or cross-complaint.”


The company also says the plaintiffs or parties may have altered the product involved – the balcony and materials it comprised of – or improperly used or maintained it.

And it claims that even if found negligent, its negligence was “secondary and passive”, unlike others against whom litigation is being brought.

Five Irish students, Olivia Burke, Eoghan Culligan, Lorcán Miller, Niccolai (Nick) Schuster and Eimear Walsh, all 21 years old, and Ms Burke's cousin Ashley Donohoe (22), of Rohnert Park, California, died when the fourth-floor balcony they were standing on collapsed during a 21st birthday party in the early hours of June 16th, 2015.


Another seven Irish students – Aoife Beary,

Clodagh Cogley


Sean Fahey


Conor Flynn


Jack Halpin


Niall Murray


Hannah Waters

– who were also on the balcony, were injured in the tragedy at the Library Gardens apartment block on Kittredge Street in downtown Berkeley when they fell 12 metres to the street below.

As well as R Brothers Waterproofing, Blackrock Inc, which owns the building on which the balcony collapsed, has filed a denial to the Superior Court of California.

This is separate to another denial-of-liability filing it made to the US Securities and Exchange Commission, which is a Wall Street watchdog.

Others to have filed denials of liability to the Superior Court of California are: Granite Library Gardens LP and related entities and the managers of the property, Greystar.

In its defence filings, R Brothers Waterproofing also says that unspecified “primary evidence” had not been retained to support the case against it, meaning it had been denied the opportunity it was entitled to to inspect that evidence.

It also claims that all of the works it carried out and products used conformed to “all applicable statutes”, adding it was not responsible for the failures of subcontractors.

It also alleges the damages complained of were “caused by irresistible forces of nature that no one could reasonably anticipate and which could not have been prevented by the exercise of reasonable prudence”.

‘Designs of others’

R Brothers Waterproofing also claims the “designs of others” that it had no responsibility for were to blame for the injuries complained of.

“This answering defendant did not select, design or approve the allegedly defective components,” it says under the heading of “causation”.

It also said it had no notice of any alleged defects and that the injuries alleged “were caused by third parties’ deficient work or products”.

Conor Lally

Conor Lally

Conor Lally is Security and Crime Editor of The Irish Times