Update on The Fallout From The Berkeley Balcony Collapse

Approximately one year ago, six people were killed in Berkeley, California when an apartment building balcony collapsed during a party attended by exchange students form Ireland. As we have previously reported on this blog – Berkeley Balcony Collapse Raises Questions; Bill in Response to Berkeley Balcony Collapse; Berkeley Balcony Collapse Update; and Builder Segue Construction’s Temporary Restraining Order, the legal fallout from this tragedy continues to reverberate.

Most recently, the Alameda County District Attorney decided not to press criminal charges because the investigation determined that it would be difficult to establish evidence sufficient to meet the legal threshold for manslaughter resulting from criminal negligence. No evidence could support a finding that any firm or individual involved with construction and design of the balcony acted with gross negligence or reckless conduct “akin to a disregard to human life…” such that there would be reasonably foreseeable deadly consequences.

Meanwhile, the California State License Board has just completed a nine month long investigation into the five construction companies that were involved in building the balcony and apartment complex in which it was located.

The License Board found that the collapse was caused by “…water incursion that caused dry rot” and that the contractors did not perform their work to “trade standards”. Those five companies are Segue Construction, Etter and Sons Construction, R. Brothers Waterproofing, North State Plastering and the Energy Store of California. They were the general, framing, plastering and waterproofing contractors and also the material supplier of ventilation equipment, respectively.

The License Board has decided to forward its results to the California Justice Department for further proceedings. Punishment could range from an infraction to a license suspension. The Justice Department’s investigation results and findings will not be released until or unless charges are formally filed and no further information about those proceedings is available.

Meanwhile the status of Senate Bill 465, a bill initiated in the California State Senate intended to require all contractors to disclose past felonies or lawsuits alleging defects brought against them for negligence or fraud, was being considered by Committee members for potential action, but lacking a consensus, the bill stalled in Committee.

Stay tuned to this blog site for further updates on these proceedings.

Builder Segue Construction’s Temporary Restraining Order Against The Alameda County District Attorney’s Office Denied

Segue Construction, the builder of the apartments where the balcony collapsed in Berkeley, CA killing six people, sought to obtain a temporary restraining order against the Alameda County District Attorney’s office from investigating the condition of the collapsed deck without Segue’s participation. The Alameda County District attorney is investigating the remnants of the collapsed deck, and another one similar to it, located on the same building and immediately underneath it, as part of a criminal investigation into the accident. Segue’s attorneys argued that crucial evidence in the collapse would be jeopardized by any “destructive testing” of the decks’ remnants and requested that its team be given access to any testing that the Alameda County District attorney’s investigators perform.

In its moving papers Segue argued that allowing it access to observe the deck materials and remnants would not prevent the district attorney from performing its investigations. Segue contended that it was merely requesting the opportunity for its own consultants to be present during any testing of the deck materials and remnants. The district attorney argued that the proposed temporary restraining order would violate section 526 of the California Code of Civil Procedure because it would interfere with the execution of the district attorney’s investigation and prosecution of potential criminal activity. The district attorney further offered that the evidence gathered as part of an ongoing criminal investigation is by its nature confidential and that such confidentiality of the investigation would be destroyed and would compromise the “integrity and viability of the investigative process.”

The district attorney argued that Segue failed to demonstrate that it had any rights with regard to this balcony because it did not own the balcony, and was not part of any formal lawsuit filed against it. The district attorney also contended that if such a temporary restraining order were granted by the court, it could impede future criminal investigations, setting a precedent that would allow “a bank robber …to participate in the fingerprinting of a teller’s station.” The balcony was not its property and other third parties would be denied the same opportunities as Segue would get if it were allowed to participate in the investigation.

More legislative and legal activity is sure to follow.