Cases mark first civil actions for damages over Berkeley tragedy

The legal cases filed in a US court on Thursday over the June balcony collapse in Berkeley, California mark the first civil actions for damages arising from the incident and seek to lay blame for what happened.

The number of parties involved – there are 35 named defendants, with flexibility to add more – shows the complexity around litigation arising from the worst tragedy to affect young Irish people abroad.

On June 16th, two weeks after Dublin medical student Eimear Walsh and her friends leased apartment 405 in the Library Gardens complex, “a group of well-educated, hard-working healthy and happy young men and women” gathered to “mark their friendship” and celebrate a 21st birthday, the legal complaint in one case states.

“Shortly after midnight, 13 students were standing outside apartment number 405’s balcony,” said one of the 12 complaints filed in Alameda County superior court by parents of five of the six students killed and by the seven injured in the balcony fall.

“Unbeknownst to them, moisture-induced wood rot secondary to water infiltration had destroyed the wooden cantilevered joists that supported the balcony on which they stood,” said the complaint.

The rotted joists were enclosed in and concealed by a concrete deck and stucco soffit.

"None of the victims had any reason to know or suspect that a catastrophe was imminent," states the complaint filed by San Francisco law firm Walkup, Melodia, Kelly and Schoenberger, which is acting for all 12 sets of plaintiffs. (The family of Ashley Donohoe, the Irish-American victim, is using another law firm.)

Without warning

“Suddenly and without warning, the balcony broke loose from the building, tumbled down and struck the third-floor balcony direct below it.

“The mechanics of the failure hurled the 13 students on to the cement sidewalk and asphalt pavement 40 feet below.

“The unimaginable terror that each victim experienced during the fall was eclipsed by the carnage on the ground.

“Six students died, and the seven survivors suffered substantial and lifelong physical and emotional injuries.”

The 12 lawsuits have been brought against seven entities linked to US investment company BlackRock, which owns Library Gardens on behalf of investors, and four companies linked to property firm Greystar, which manages the 176-apartment building.

The remaining 24 defendants were involved in the design and construction, including the main contractor, Segue Construction.

The lawsuits claim that around October 2005, Segue and its subcontractors deviated from approved design plans and installed oriented-strand board instead of plywood on top of the balcony joists.

OSB is less expensive than plywood, the complaint states, and is more susceptible to water damage. The deck was not water-proofed until January 2006 at the earliest, and during the intervening period the balcony was “exposed to harsh and wet weather conditions.”

More than 13 inches of rain fell over 21 days in the final two months of 2005.

No replacement

The plaintiffs allege that Segue and the subcontractors, including R Brothers Waterproofing, “consciously chose” to water-proof and complete the construction of the balcony without replacing the saturated wood “because it would have been costly, difficult, embarrassing and inconvenient to repair and rebuild the balcony”.

It is alleged that the building contractors also deviated from plans by installing smaller and fewer “weep slots”, which would have helped drain water from the balcony and ventilate it.

The complaint alleges that “the BlackRock defendants” did not carry out a proper assessment of the building – completed in October 2006 – when they acquired Library Gardens in June 2007.

Between October 2008 and the summer of 2010, other tenants complained about large mushrooms growing from multiple locations on the surface of the balcony. The mushrooms were “the fruiting body of the moisture-induced rot that was rapidly occurring to the wood joists.”

The complaints states that “the Greystar defendants memorialised at least one tenant complaint about mushrooms growing on the balcony of apartment 405 in a written document”.

They continued to rent the property out despite “manifested objective signs of internal wood rot”, it is claimed.

At least a year before the tragedy, the balcony had rotted to the point “where it demonstrated an increased tilt away from the building when persons stood on it”. This was reported to and/or observed by the Greystar and BlackRock defendants, it is alleged.

These defendants knew or should have known that “increased tilt was a telltale sign that the balcony was at imminent risk of collapse”.

Despite this, they rented apartment 405 to Ms Walsh, one of the deceased students, and her friends “without any warning or instructions concerning the safety or integrity of the balcony”.

The BlackRock and Greystar defendants acted in a “despicable and malicious” manner and “with wilful and conscious disregard of the rights and safety of others”.

The complaint claims that the tragedy would never had occurred “had the defendants acted reasonably and prudently, complied with the standard of care in their professions, not cut corners and heeded one or more of the numerous ‘red flag’ warnings that the balcony was unsafe in its design and construction, maintenance and foreseeable use”.