Balcony was sloping downwards before collapse, witness claims

Lawyers acting for the parents of one of the six students killed in Berkeley’s balcony collapse sent legal letters over the past week calling for evidence to be preserved and raising concerns that the City of Berkeley’s investigation may not have been truly independent.

George and Jackie Donohoe, the Irish parents of Ashley Donohoe (22), of Rohnert Park, California, through their lawyers, contacted the owners and property managers of the Library Gardens student accommodation block where the June 16th incident occurred.

They demanded notification of where the destroyed balcony was preserved.

In addition, the family's lawyers from the San Francisco firm Rains Lucia Stern met the Alameda County district attorney, Nancy O'Malley, her second-in-command, Kevin Dunleavy, and a number of their officials to present the law firm's findings of what they believe was wrong with the building.

Preserved evidence

At the outset, the family’s main concern was that the initial investigation by the city was not independent and that the evidence was not being preserved for an independent and impartial analysis.

Ms O’Malley’s announcement on Thursday that she would carry out a criminal and civil investigation into the collapse has allayed their concerns somewhat.

Ms O’Malley said the remains of the collapsed fourth-floor balcony and a third-floor balcony beneath that was removed are being preserved by Berkeley police and the county sheriff.

Harry Stern, a partner with Rains Lucia Stern, said the Donohoes retained the firm "as a priority to make sure that a proper independent impartial investigation was being conducted because there were some very disturbing indications early on about what was happening".

Mr Stern said they were “very heartened” that Ms O’Malley and Mr Dunleavy have taken over this investigation, describing it as “a step in the right direction”.

“Not only are they independent, the district attorney department has the resources and expertise to conduct this kind of complex investigation. And, moreover, the two of them are very sensitive to the nature of this tragedy.”

The law firm presented the DA with its own evidence, including a statement from an Irish student who was at the party on the night of the incident.

She said the balcony was sloping downwards away from the building towards the street before the collapse occurred.

History of decay

There was a history of water infiltration and balcony decay dating back to at least 2010, the lawyers claim. They presented the DA and her staff with a number of photographs showing water damage to the exterior of the balcony as far back as 2008.

They claim these signs should have put somebody responsible on notice that there could be a problem that needed to be investigated.

They also presented the county prosecutors with evidence of complaints of rot, roof leaks, plumbing leaks and flooding, some of which occurred as recently as three months ago.

Complaints were made to the City of Berkeley housing authority because the existing building management failed to act or were unresponsive to the complaints and concerns, the lawyers say.

Letters seen by The Irish Times show the Donohoes raised concerns about the investigation as soon as three days after the incident.

They wrote to Berkeley mayor Tom Bates, city manager Christine Daniel and planning and development director Eric Angstadt on June 19th, urging them to hire engineers and contractors who would independently and impartially provide a neutral and detailed analysis of the cause of this incident.

At the time, it had appeared Belfor Property Restoration, the company hired by the building's owner, BlackRock, to remove the third-floor balcony, had been hired by a potentially responsible party.

“How can a potentially responsible party conduct a truly ‘independent’ investigation?” the lawyers asked in the letter.

On Tuesday, the lawyers in a follow-up letter wrote to BlackRock, Greystar, the property's management company that looked after the property for them, and Belfor.

The letter was sent just hours after the city’s building inspectors concluded in a report that the fourth-floor balcony appeared “severely dry rotted”.

Balcony failure

“The Donohoe family is grieving the loss of their loved one. . . they have also discovered information that causes them great concern that the investigation into the cause of the balcony failure may not be truly independent or neutral,”

Joseph Lucia

, one of the lawyers at Rains Lucia Stern, told them.

“Due to these concerns, the Donohoe family has requested that we contact you regarding the investigation of what occurred so there can be an independent and impartial analysis of the cause of the deadly balcony collapse.”

The lawyers added that “ensuring an independent and impartial analysis will allow for a swift and just conclusion of culpability, whether it be civil and/or criminal in nature.”

The lawyers said that the findings of the city building inspectors’ report had “only increased the amount of concern for the Donohoe family.”

The family was particularly concerned at the “very limited” nature of the city’s investigation because it was limited to the “direct observations” of the city’s building and safety division in the immediate aftermath of the collapse and because forensic examination and laboratory tests were “outside the scope of the review”.

The lawyers noted there have been contractors, structural engineers and architects hired and paid for by BlackRock and Greystar to perform tests and analysis.

BlackRock has responded to the Donohoes’ attorneys telling them - before the District Attorney took possession of the balconies - they would co-operate by giving them access to the apartment building and other materials when made available to all parties.

BlackRock told them they would carry out further demolition and repairs starting on July 1st.