Difficult legal road for Berkeley victims and families

On June 16th, six students were killed and seven others were injured when a balcony collapsed during a birthday party in a fourth floor apartment in Berkeley, California.

Inspectors employed by the City of Berkeley and others inspected the collapsed balcony and surrounding structure and noted there was extensive evidence of dry rot which likely caused the failure of wooden joists holding the balcony in place. How the balcony structure came to be permeated by dry rot and who is responsible presently remains unknown.

Under California law, all persons or entities having some right to control the apartment and the apartment building may be found negligent if they failed to use reasonable care to keep the apartment balcony in a reasonably safe condition. Such person(s) had a legal obligation to use reasonable care to discover any unsafe conditions and to repair, replace or give adequate warning of anything that could reasonably be expected to harm others.

In the case of an apartment building, this duty of care focuses on the owner/landlord who must periodically inspect the property and take precautions to prevent injury due to conditions that were or reasonably should have been discovered in the process.

In addition to the potential liability of those in control of the property, there may also be liability on the part of architects, engineers and contractors.

If defective products caused or contributed to the balcony collapse, the suppliers and manufacturers of those products may be held liable for design or manufacturing defects or for a failure to provide a proper warning with the offending product(s).

Although public entities and agencies (eg the City of Berkeley) can be held liable in specific circumstances for the breach of their statutory duty of care, that duty is circumscribed and limited.

Civil damages

(a) Compensatory damages for injury and loss

Someone who has suffered a personal injury due to the negligence of others is entitled to reasonable compensation for his or her past and future economic and non-economic losses.

Economic losses include past and future lost wages or lost earning capacity, past and future medical expenses of all kinds and other out-of-pocket losses. Future losses are reduced to a “present value” figure, ordinarily calculated by an economist or other financial expert. A jury will decide what amounts should be awarded.

Non-economic losses include physical and mental pain and suffering, disfigurement, physical impairment, anxiety, emotional distress and loss of enjoyment of life. No fixed standard exists to determine these non-economic losses and it is left to the sound discretion of a jury to agree upon a reasonable amount.

Any damages awarded or agreed will likely be paid by the insurers of the responsible entities and parties and it is the insurers who will conduct the defence in each case.

(b) Punitive damages

In a personal injury case, punitive damages are available to punish a wrongdoer for conduct that is done with “malice, oppression or fraud”.

This phrase is defined in various ways but the most victim-friendly definition is that the conduct in issue was “despicable and was done with a wilful and knowing disregard of the rights or safety of another”.

It is possible punitive damages could be recovered but it won’t be easy, for various reasons. First, the proof required is greater than is required to prove mere negligence. Punitive damages require “clear and convincing evidence” and judges are careful to weed out cases with insufficient evidence.

Second, if the harmful conduct was that of a corporate employee, such conduct must have been ratified by an “officer, director or managing agent” of the company in order to hold the company accountable. This is often very difficult to prove.

Third, conduct done with “willful and knowing disregard” rarely qualifies for indemnity under liability insurance policies so unless an intentional or reckless wrongdoer is a wealthy individual or an employee whose conduct has been ratified by company senior management, a punitive award may not be recoverable.

In the case of a fatality, the general rule is that no punitive damages may be awarded to the heirs of the deceased. It may seem harsh to the families of those killed in the collapse but that is the law. On the other hand, where someone survived the fall only to later die, a lawsuit on behalf of his estate (known as ‘a survival action’) may recover compensatory damages for medical expenses and other economic loss incurred prior to death and punitive damages.

Where punitive damages are recoverable, they must bear a reasonable relation to the economic and non-economic damages awarded. It has been held that a ratio of up to 10 times the compensatory damages should resist judicial scrutiny.

In the case of a student’s death, a statutory wrongful death action lies for the “qualified survivors” of the deceased – most likely his or her parents. They are entitled to such damages as “under all the circumstances of the case, may be just”. Wrongful death damages should compensate the parents for the economic benefits they could reasonably have expected to receive from the deceased had he or she lived as well as for the loss of personal, non-economic benefits.

However, grief, sorrow and anguish are not compensable.

“Economic benefits” include the present value of financial contributions expected from the decedent. In the case of students, this will likely be based upon their earning capacity and work life expectancy and a projection of what financial support the parents would have received over their common lifetime.

The parents will also be entitled to recover damages for the loss of love, companionship, comfort, affection, society, solace, moral support and physical assistance of the decedent in their home. This claim will be decided by a jury based upon evidence of the relationship between parents and the decedent.

Finally, out-of-pocket expenses associated with the death such as medical and funeral and burial expenses can be recovered.

In California, the Statute of Limitations for personal injury cases is two years from the date of the accident. If there is a claim of fault against a public entity, written notice of claim must be given within six months. Liam Moloney is a Naas-based Personal Injury Solicitor with experience in dealing with compensation claims for Irish citizens injured abroad. Martin Blake is a US-based attorney who is a specialist in international travel accidents