From: The Recorder
By Ben Hancock 12/6/16
SAN FRANCISCO — As Oakland prosecutors conduct a criminal probe into the tragic warehouse fire that killed at least 36 people last Friday, lawyers are predicting a long stretch of civil legal battles ahead for the bereaved families and say that securing damages will be difficult.
There are a number of parties that could share civil liability over the blaze, according to attorneys specializing in accidents, dangerous premises and landlord-tenant law. But whether those accountable can pay any amount—let alone damages that would deliver some semblance of justice—is a question mark at this point.
Among the primary targets of any civil litigation after the blaze are the warehouse owner, identified by local media as Chor Ng, and a man who reportedly collected rent from other tenants at what was dubbed the “Ghost Ship,” Derick Ion Almena.
There’s also the possibility that product liability suits could be filed if authorities find that some sort of appliance or electrical device was responsible for igniting the blaze, attorneys said. Investigators on Wednesday were looking at a refrigerator at the back of the warehouse as being the potential source of the fire, according to press reports.
Local authorities charged with building inspections, meanwhile, are unlikely to be successfully sued, attorneys said, because state law grants these officials wide immunity.
“The government is pretty good at exempting itself from responsibility,” said Christopher Dolan, a personal injury lawyer at the Dolan Law Firm in San Francisco, who said he had already been contacted by victims’ families about possible lawsuits. “I think that’s a total tragedy because it creates what we’ll call a moral hazard of people looking the other way.”
The East Bay Times and other media outlets on Tuesday reported on what they characterized as a series of missed opportunities for local authorities to catch the dangers that were present at the warehouse, which was consumed in flames last Friday night during an electronic music event.
For Ng and Almena, the extent of their liability—and whether they could be subjected to punitive damages—will depend upon the degree to which they were aware that there were hazards and failed to correct them. But Ng could also be on the hook simply for allowing the building to be occupied when the building was not approved for residential use, lawyers said.
“I’m going to speculate that those owners had every reason to believe that people were living in there, and that they were on notice, literally or constructively, of the dangerous, nonconforming construction,” said Steven Adair MacDonald, who practices landlord-tenant law in San Francisco.
Also potentially liable are the individuals or companies who did construction or electrical work inside the warehouse, and the promoters of the music event that was getting underway when the fire broke out, said Christopher Viadro, name partner at Butler Viadro in Oakland.
“If you’re inviting a large number of people to an area where there’s not going to be an appropriate amount of access … 99.99 percent of the time this wouldn’t turn into a death trap, but in the less the 1 percent [chance], you have to contemplate that,” Viadro said of event promoters. The building was not equipped with sprinklers and only had two exits, one of which was blocked, according to news reports.
Eustace de Saint Phalle, an attorney at Rains Lucia Stern who is involved in litigation around the collapse of an apartment balcony in Berkeley in 2015, which killed six, said he expects the litigation after the Oakland fire to follow a similar track—albeit on a larger scale.
District Attorney Nancy O’Malley—whose jurisdiction includes Berkeley and Oakland—declined to bring criminal charges in that case. But families of the victims and survivors of the collapse filed 13 lawsuits against the building’s owner and manager, in addition to the construction firm that built the balcony.
If the DA’s office files criminal charges in the Oakland fire case, it’s likely that any civil action will be stayed pending trial or settlement. A criminal conviction or guilty plea could go a long way toward establishing the liability of the defendants in a civil case, attorneys noted.
But whether those defendants would be able to pay is another matter. MacDonald said that in his reckoning, Almena—to the extent he may be liable—would be “judgment proof.” “People like that, they don’t have assets. Why would they be living in a warehouse?” he said.
The owner of the warehouse may be in a better position to pay any damages, MacDonald added. They would typically carry several million dollars in liability insurance, and may have personal assets as well. But attorneys noted that with at least 36 families affected, that’s not a lot to go around.
William Friedrich, a defense litigator at Farella Braun + Martel, said that while he anticipates civil suits, not everyone who may share responsibility will be roped in. “I hate to boil this down to economics,” said Friedrich, “but experienced plaintiffs lawyers are going to want to find responsible parties that have money.”
Attorneys said that in addition to collection of damages, apportioning responsibility for the blaze is likely to be a major fight in any ensuing civil litigation. Defendants will point fingers at who else shares blame, while lawyers of the families will have to argue who contributed the most to the ultimate harm.
“Somebody clearly was at fault. I think that’s a given,” said Viadro. “These things don’t happen without somebody making a mistake.”