Where did the water come from? That’s the question.
It is six weeks since the balcony collapse at an apartment block in Berkeley that killed five Dublin J-1 summer visa students and a young Irish-American student from California and injured another seven from Ireland. Investigators are turning to outside experts to figure out the source of the water that caused the dry rot and, in turn, the collapse.
Dual criminal and civil investigations by the Alameda County district attorney's office, which is responsible for prosecuting crime in Berkeley, is unusual in that the office seems never to have prosecuted a criminal action relating to construction defects causing death.
Neighbouring San Francisco County has. In 1996, the then district attorney Terence Hallinan prosecuted an involuntary manslaughter case against a landlord, Randall Nathan, over a balcony collapse at a Victorian apartment house on Franklin Street in the city that killed a 32-year-old woman, Mary Slane, and injured 14 others.
The jury could not reach a verdict on the manslaughter charge and the landlord was found guilty of two misdemeanour charges of failing to maintain a building in a safe condition and failing to obtain a permit for remodelling work. He was ordered to perform 200 hours of community service, pay a $1,000 fine and serve two years of probation.
The source of Franklin Street collapse is the same as the Berkeley tragedy: dry rot causing a failure of the supporting balcony joists.
The landlord was eventually ordered to pay $14 million in 1998 after a civil action. It was one of the largest payments in the San Francisco Bay Area by a landlord over neglected responsibilities to tenants.
In the Berkeley tragedy, because the district attorney is coming to this kind of case for the first time, prosecutors require forensic engineering, architectural and construction experts to understand how water got into the balcony and whether the builders responsible for building it – and the maintenance staff responsible for maintaining it – were negligent and whether that rises to a crime having been committed.
Investigators will examine whether the water came from inside the Unit 405 apartment leaking out on to the balcony or externally.
“It is an open book at this point,” said a well-placed source of the inquiry being carried out by five lawyers and a team of investigators under the guidance of district attorney Nancy O’Malley.
Undated photographs of the Library Gardens apartment complex on Google Earth, taken well before the balcony collapse, show dark water staining on the exterior of the decking of the balcony.
The initial investigation by the City of Berkeley building and safety division staff, concluded the week after the accident, found the broken seven balcony joists were “severely dry-rotted”.
The 176-unit apartment block in Berkeley is on the eastern side of San Francisco Bay. The Bay Area has a damp climate and regularly fills up with cold fog blowing in towards Berkeley from the Pacific past the Golden Gate Bridge 19km away at the mouth of the bay.
"We are in a highly corrosive environment because of the salt water coming off the bay, and the winds and the fog drive that salt water to the buildings and can cause earlier deterioration of the buildings," said Tom Miller, whose San Francisco-based Miller Law Firm specialises in legal actions over construction defects.
A combination of time, perhaps even as short as a matter of weeks, and prolonged exposure to water and moisture caused the rotting.
Prosecutors at the Alameda County district attorney’s office and their outside reconstruction experts will carry out what is known as a failure analysis on the Berkeley balcony.
They will examine whether there was any deviation from the original plans for the balconies on the Kittredge Street side of the building, signed off by City of Berkeley, and whether the flashing, the material used to stop water penetrating the intersection where the balcony meets the exterior of the building, was properly installed.
They will also look at the inspections carried out on the property.
The investigation will take months, perhaps up to four months, and it is still anyone’s guess whether it will lead to a criminal action.
"Any kind of inspection would have detected that dry rot. What happened to these Irish students was 100 per cent preventable," said lawyer Niall McCarthy of Bay Area law firm Cotchett, Pitre & McCarthy, which sued the landlord in the Franklin Street case and has brought five other actions in California relating to balcony collapses.
“The building owner and manager should have been inspecting that balcony and should have known that it was faulty – no question.”
Civil legal actions
One thing is certain: there will be civil legal actions. John Whelan, the San Francisco- based partner at A&L Goodbody's office in the city, Mark White, a partner at McCann FitzGerald (and a cousin of one of the injured students, Clodagh Cogley) and Gregory Glynn, a litigation partner at Arthur Cox, are helping the families on a pro-bono basis to find San Francisco firms to represent them.
The parents of one Berkeley victim, Ashley Donohoe, the Irish-American student from Rohnert Park, California, already have a San Francisco firm, Rains Lucia Stern, actively involved. Another Dublin firm, McKeever Rowan, gave advice to another of the families.
Michael Kelly, a lawyer with San Francisco firm Walkup, Melodia, Kelly & Schoenberger, a firm specialising in wrongful death cases, is expected to be retained by at least one of the Berkeley families.
Legal action is expected against the owner of Library Gardens, Blackrock, one of the world's biggest investment firms; the property manager Greystar, a company based in Charleston, South Carolina; and the original builder Segue Construction. Another firm, R Brothers, could be drawn in as it installed the flashing on the balcony.
The builder is drawn in as liability for balconies under California building code falls on the builder for 10 years after construction.
The Library Gardens complex was built in 2007. Calls to Erick Hockaday, president of Segue in Pleasanton, about 50km southeast of Berkeley, and Rod Rodriguez, owner and founder of R Brothers in San José, were not returned.
Building companies typically have two types of insurance, says Miller: course-of-construction insurance, which provides cover while building work is being carried out, and post- construction or completed operations coverage, which lasts for the decade after completion.
Duty of care
Should there be a finding of gross negligence – for example, if the building manager was found to have been aware of the dry rot and didn’t act – then the insurers might avoid paying out as the policy might be null and void because the policyholder failed in a duty of care.
This could be problematic for the families seeking financial support for long-term care as they must then pursue the builder directly.
Should the builder be found liable and if they don’t have enough insurance to cover, the difference could be made up from the owner of the building, Blackrock, says Miller.
“The only defence they would have is if the students were negligent in the way they occupied the deck at the time of the incident,” he said.
“In other words, were there too many students? Were they warned against having too much weight on that deck? But we know from experts that it did calculate out to carry that weight. I don’t see any liability with the students.”
Diversity of citizenship
Prosecutors are likely to pursue any legal action in a state court, Alameda County superior court in Oakland, though California lawyers say that the case could be heard in a federal court because of the “diversity of citizenship” – Irish victims and American companies are both involved.
That could make the litigation a slower, more technical process. The crunch issue may be the division of payouts between the companies and their insurers, rather than on whether there should be payouts at all.
Aside from the legal track, officials have moved quickly to respond to the worst-ever accident involving young Irish people abroad.
Berkeley passed new regulations two weeks ago to compel property owners to inspect weather-exposed balconies every three years, to create access points to allow inspections of wood inside stucco-covered balconies and to allow proper ventilation so wet wood can dry.
The family of Ashley Donohoe, through their lawyers, had called for yearly inspections by the City of Berkeley, wanting “to do everything in its power to ensure that this type of tragedy never occurs again”.
California state senator Jerry Hill, a Democrat and a licensed building contractor, attempted to introduce legislation in the state legislature in Sacramento forcing building companies to disclose court settlements that are kept confidential that relate to construction defects.
He did this after it emerged that Segue had paid more than $26.5 million in the past three years to settle lawsuits over balcony failures.
Hill’s effort is tied up in politicking and lobbying by the building industry. The politician, who said he was “upset and angry” over the Berkeley tragedy, is determined to pass legislation to close a loophole.
“California has suffered through this and has felt for those citizens of Ireland that lost their lives,” he said.
“A tragedy like this does not have boundaries or borders.”