From: San Jose Mercury News
By Matthias Gafni 3/29/16
BERKELEY — The builders of the Berkeley balcony that collapsed last year, killing six students and seriously injuring seven others, will not face criminal charges, the Alameda County District Attorney’s Office announced Tuesday, citing “many contributory causes” that led to the tragedy.
The seeds of the tragedy were planted a decade before the catastrophic failure of the fifth-floor deck sent 13 people hurtling to the ground, O’Malley concluded, when construction during a particularly wet winter allowed water to infiltrate the substructure of the deck. Over the years, the moisture, trapped with no ventilation to help it dry out, slowly and severely rotted the supporting wooden joists until the entire structure failed last summer, her team of investigators found.
“In order to file a manslaughter case based on criminal negligence, the District Attorney must be satisfied that any defendant or defendants acted with gross or reckless conduct akin to a disregard for human life, and that the deadly consequences of those actions were reasonably foreseeable,” O’Malley’s office explained in a news release. “Having carefully considered all the known evidence, and conducting an in-depth legal analysis based on expert opinion, the Office has concluded that there is insufficient evidence to bring criminal manslaughter charges against any one individual or company.”
Attorney Michael Kelly, whose firm represents most of the victims and their families, said despite O’Malley’s decision, the District Attorney’s investigation would help their civil court cases.
“Much of the information generated, the facts developed, the witnesses identified and the evidence collected in the criminal investigation will benefit the bereaved families and the injured students as they now prosecute the civil actions that have been filed,” he said in a statement. “The prosecution of the civil cases will permit our clients to achieve their primary goals: uncovering the truth, publicly identifying the wrongdoers, and holding accountable those responsible for the damage, loss and suffering they have caused, and bringing about changes to residential construction industry practices that will prevent such a needless tragedy from recurring in the future.”
Several young friends, including many Irish students working in the Bay Area last summer on visas, had been celebrating a birthday when about 1 a.m. on June 16, 2015, the balcony gave way, catapulting those on the deck onto the Kittredge Street pavement below. Subsequent lawsuits alleged tenants had complained to managers for weeks that mushrooms were growing on the wooden balcony and that other residents reported a slant in the deck a year before the collapse, but those warning signs were ignored.
While prosecutors found no criminal liability, they determined several factors that led to the severe dry rot, including the type of material used (none of which was prohibited by building code) and the wet weather Berkeley experienced while the Library Gardens apartment complex was built. During that 2005-06 winter, Berkeley recorded 37.81 inches of rain, at times setting up emergency homeless shelters because of the deluges, according to weather data and news reports from the time.
“The responsibility for this failure likely extends to many of the parties involved in the construction or maintenance of the building,” O’Malley’s statement said.
A San Luis Obispo-based deck expert, Bill Leys, said Tuesday that despite the heavy rains, the disaster was preventable. The wood was likely exposed to the elements for months, he said, and should have been tarped. The moisture content of the deck should have been measured using a standard hand-held device before waterproofing was applied, he said, and if there was a high reading, the wood should have been replaced. Plus, he noted, the composite board used on the decks “was a sponge,” holding in water.
When the waterproofing was applied to material containing a high amount of water, “it was just a matter of time until the wood gave way,” Leys said.
That conclusion likely buttresses the 13 civil lawsuits already filed by victims and their families in November against more than 30 defendants involved with the construction, maintenance and ownership of the Kittredge Street building. The suits also allege that prime contractor Segue Construction, of Pleasanton, and subcontractor Etter & Sons Construction “purposefully disregarded” plans to protect the balcony from water incursion, “early deterioration and rot.” The suits allege contractors used cheaper wood that is more susceptible to rot.
Simultaneously, the Contractors State License Board is completing its parallel investigation of five construction companies involved in the building of Library Gardens.
“The main questions we’re trying to answer are if the various contractors involved followed the architectural plans for the balcony, including the use of the proper building materials, and whether workmanship standards were followed,” said David Fogt, the license board’s chief of enforcement. “If not, it’s a clear violation of the law.”
If the state agency determines that licenses should be revoked, cases would be submitted to the California Attorney General’s Office, which would prosecute in state administrative court.
Before making her announcement Tuesday morning, O’Malley’s office reached out to the victims’ families to inform them of the decision. “Not a day has passed since the tragedy of June 16 that I have not thought of the victims and their families,” O’Malley said in a news release. “I am keenly aware of the devastation and injuries each victim and each family suffered and continues to confront. Friends, families and entire communities both in California and in Ireland have been affected by the horror of that day.”
Attorney Eustace de Saint Phalle, who represents the family of Ashley Donohoe, of Rohnert Park, said they felt “disappointment” upon hearing the news.
“The Donohoes continue to grieve their loss and were hopeful that the DA would pursue criminal charges against those who were responsible for this tragedy,” de Saint Phalle said. “The Donohoe family’s disappointment stems from their belief that the criminal justice system would act as a deterrent for other corporations and builders to engage in similar grossly negligent behavior.”
The lawsuits surrounding the tragedy are still in the early stages, court documents show, as the 13 cases are being consolidated. Only one of more than 30 entities being sued has formally denied wrongdoing. That party, identified in records as the Smith Co., claimed in a filing that the dead and injured should have known better than to crowd onto the deck. The students’ injuries, its lawyers wrote, were “caused by risks (they) were well aware of or reasonably should have been.”
Irish Minister of Foreign Affairs and Trade Charles Flanagan also expressed his thoughts for the victims and their families.
“My department will carefully consider the details of the District Attorney’s findings,” Flanagan said in a statement. “While the District Attorney’s investigation did not find sufficient proof to take separate criminal proceedings, it has shone a vital light on the circumstances and factors that contributed directly and indirectly to the collapse of the balcony. This investigation is an important step in a process, the ultimate objective of which is to ensure that a tragedy such as Berkeley never occurs again.”