# Judge rules owners of tragic Berkeley balcony building 'cannot get out of lawsuit'



## mark handler (Oct 26, 2016)

Judge rules owners of tragic Berkeley balcony building 'cannot get out of lawsuit'
http://www.independent.ie/world-new...lding-cannot-get-out-of-lawsuit-35162861.html
A California judge ruled on Tuesday that the owners of a Berkeley building that collapsed killing six young students cannot get out of a lawsuit.

The ongoing lawsuit alleges the company had assumed liability for the project’s defects from the property’s original owner.
Judge Brad Seligman found that Granite Library Gardens LP cannot quickly get out of a lawsuit brought by a roofing company, because it had assumed liability for the property’s defects from its original owners when it entered entered into a contract with the owners in September 2005.
Granite had argued that it was not liable for construction defects, because the contract only applied to negligence during the construction of the building. The roofing company that brought the suit  — IRC Technology Inc. — however, argued that the contract encompassed negligence by the owner in maintaining and operating the building even after its construction was complete.
“That interpretation makes sense when viewed in light of the example of this case, which is unusual in the horrible extent of the injuries involved,” Judge Seligman said.
The suit stems from an underlying lawsuit filed by the families of the survivors of the collapse against more than 35 defendants in 2015. The suit alleges that the owners and management company were negligent through failing to fix damage to the balcony after “red flags” were spotted.
The suit alleged the defendants, which include Blackrock, the trillion dollar investment fund that financed the project, failed to act when informed that mushrooms were growing on the balcony, a sign that wooden joists were affected by dry rot.
Olivia Burke, Eimear Walsh, Eoghan Culligan, Niccolai Schuster and Lorcan Miller, all 21, died after they were thrown four floors to the ground during a friend’s birthday party in the university city of Berkeley. Burke’s cousin, 22-year-old Ashley Donohoe from California, also died in the tragedy on 16 June.
In April, Judge Seligman ruled that the survivors and families of victims of the Berkeley balcony collapse to sue for additional punitive damages.
It means the survivors and families can sue the owners, management company and the lead firm involved in the construction of the Library Gardens building in Berkeley for additional damages paid on top of basic compensation, which are designed to discourage similar conduct in future.
They also claim the construction firm was negligent in its use of materials and the standard of waterproofing work done.
The lawsuits are proceeding after a decision in March by the district attorney of Alameda County not to file criminal charges, citing an inability to prove manslaughter through negligence beyond a reasonable doubt.
The companies have all denied they were at fault for the collapse of the balcony in June 2015.
The cases are currently at a pre-trial phase and are likely to be heard in full in 2017.


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## conarb (Oct 26, 2016)

Independent said:
			
		

> Judge Brad Seligman found that Granite Library Gardens LP cannot quickly get out of a lawsuit brought by a roofing company, because it had assumed liability for the property’s defects from its original owners when it entered entered into a contract with the owners in September 2005.



This is interesting in that the judge is a friend, we went to law school together.  When we started we were all asked what we intended to do with a law degree, I said I didn't intend to be a practicing attorney, I was a builder and had to fight, sometimes for years, to get permits to build, fighting environmental activistic groups was constant throughout any job, contractors were even going to jail for running over red-legged frogs with their trucks. most of my fellow students were much younger, many just out of indoctrination in our state college system, so the majority of my fellow students said the next legal fortunes would be made in environmental law, and they were right, even the Carpenters' union is retaining environmental lawyers to sue to block projects then settle with an agreement to use union labor.  Brad was different, he said the next fortunes were to be made in feminist law, suing for women's rights was going to be more profitable than even environmental law.

It appeared that he was right, he won $107 million suing Lucky Stores, what was left of them was acquired by Albertsons, but I see they have brought the Lucky name back.  Brad's dream was to destroy WalMart, he almost made it taking his case all the way to the U.S. Supreme Court but losing there, if he was there now he would have won after Justice Scalia's death.


			
				S F Gate said:
			
		

> Seligman, 61, of Berkeley, founder of the nonprofit Impact Fund that underwrites lawsuits on discrimination and environmental issues, has been the lead attorney in a sex-bias case on behalf of female employees at Walmart. The U.S. Supreme Court last year rejected an attempt to bring the case as a nationwide class action on behalf of 1.5 million women, but plaintiffs' lawyers are seeking to recast it as a suit on behalf of Walmart employees in California.
> 
> Seligman also won a $107 million settlement in 1992 on behalf of female employees at Lucky supermarkets.¹



It surprised me to read a couple of years ago that he had bought a judgeship, I thought he was set for life with his Lucky settlement but I guess he blew it on his WalMart case.

As to the case itself:



			
				Independent said:
			
		

> The suit alleged the defendants, which include Blackrock, the trillion dollar investment fund that financed the project, failed to act when informed that mushrooms were growing on the balcony, a sign that wooden joists were affected by dry rot.



When we originally discussed this matter I stated that the real responsibility laid at the feet of Blackrock and the City Design Review Commission, unfortunately the commission is protected by sovereign immunity, actually the real culprit goes back as far as the pension funds that demand outrageous returns on their investments, of course legal liability will stop at Blackrock.  The pension funds demand a 7.5% return on a large pot of gold, an organization like Blackrock offers that and agrees to fund an apartment  project, the city demands money-losing affordable units and money-losing mixed use commercial be included, the developer dangles the pot of gold to any contractor who can build it for that price, there are  always contractors who will bite at the opportunity to get into that pot of gold in the hope that they can "value engineer" the costs down, then they turn around and fu¢k their subcontractors to meet their unrealistically low budget, then the fu¢ked subs do the same thing to the people actually doing the work.  In this particular case after the original approvals a woman on the Design Review Commission thought the building looked too "bland" and demanded that they add the balconies that eventually failed, so those additional costs had to come out of the ever dwindling pot of gold and be eaten by all involved right down the line.

I built lots of inexpensive large apartment complexes when I was young and foolish and survived, but eventually only worked for those wealthy enough to pay enough to do it right, ten years ago I briefly toyed with the idea of setting up a non-profit family charitable corporation to build affordable housing, you only have to donate 7% per year to charity and that would approximately align with my affordable unit requirements, I looked at the City of Lafayette's requirements and  one of their requirements in entertaining proposals was a history of affordable housing construction, and I have no history of building what they require now, it's a good thing I backed off since that proposed project is still sitting with nothing done, the neighbors sue, when they revise and settle that and an affordable housing activist group sues, it seems to never end, at least not in my lifetime, so I just retired.


¹ http://www.sfgate.com/bayarea/article/Bay-Area-courts-get-6-new-judges-4150188.php


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## mark handler (Jan 29, 2017)

Berkeley tragedy: inspections find 800 balconies need repair
Call for ‘immediate action’ as California approves emergency safety building standards
Jan 28, 2017
http://www.irishtimes.com/news/worl...ions-find-800-balconies-need-repair-1.2955356
More than 800 balcony-like structures in the city of Berkeley, California have been found to require repair following inspections that took place after the Library Gardens tragedy that killed six students.
Irish students Olivia Burke, Eoghan Culligan, Lorcán Miller, Nick Schuster and Eimear Walsh, all aged 21, and Ms Burke’s cousin Ashley Donohoe (22), from California, died when the fourth-floor balcony they were standing on collapsed on June 16th, 2015.
Another seven Irish students; Aoife Beary, Clodagh Cogley, Seán Fahey, Conor Flynn, Jack Halpin, Niall Murray and Hannah Waters, suffered catastrophic injuries in the incident.
The California Building Standards Commission (CBSC) voted late on Friday to approve emergency regulations enhancing building standards for the construction of “exterior elevated elements”, which are balcony-like structures.
The new regulations come into effect immediately and will govern exterior balconies and walkways going forward.
In a statement, the commission said the regulations would impact the construction of balconies, exterior stairs and walkways for residential occupancies, hotels, motels, apartment buildings, state-owned buildings and public schools.

In April 2016, a working group was set up to assess the safety of balconies in the state of California. As part of its work, the group obtained statistics from Berkeley on “the pervasiveness” of issues relating to balconies.
In notes for the emergency regulations, the commission says more than 800 balcony-like structures in the city are in need of repair.
“Of a total of more than 6,000 properties identified as possible candidates for having exterior elevated elements, greater than 800 had a need for repair, when the enclosed assemblies were inspected,” it says.
“This provides convincing data about the magnitude of hidden conditions that may exist in exterior elevated elements, and which may be subject to potential for failure. It is imperative that new standards address the prevention of this potential.”
Executive director of the commission Mia Marvelli said in the wake of the “tragic collapse of a balcony that killed and severely injured several people in Berkeley in the summer of 2015, the California Building Standards Commission has voted to approve emergency regulations to enhance building standards for the construction of exterior elevated elements”.
“California’s building codes serve to safeguard the health, safety, and welfare of the public - the code’s very essence is the protection of life and property from hazards. We are hopeful that today’s action can bring some small solace to the families and friends of the victims of this terrible tragedy.”
The commission said “immediate action” is warranted to help prevent potential failures such as these. The regulations will provide a model that will “help mitigate future problems” and are described as “essential and critical for public health and safety”.
“The nature of the issue surrounding the type of failure demonstrated by the Library Gardens tragedy is that causation factors do not always have precedent indicators; they are not always identifiable,” says the commission.
“Thus, it is prudent to address new construction (which may include additions and renovations to existing buildings) with safeguards that will provide higher performance and assurance levels.
“It is also prudent to address existing buildings, which may have conditions now that could lead to potential for failure.”


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## Mark K (Jan 29, 2017)

My sense is that of the 800 plus balconies few of the repairs were to balconies where there was a real risk to life.  This makes sense when you realize how infrequent such balcony collapses are.  In most cases where there is a problem the owner sees signs of water damage and repairs the problem before anybody gets hurt.

An interesting aspect of California building regulations is that the new requirements apply to residential occupancies and certain buildings regulated by state agencies but likely do not apply to balconies installed in office or commercial buildings even if the construction details were the same..

It is very myopic to focus on the balconies when there is a major problem with water damage in new buildings.  The balconies are just a narrow sliver of this larger problem. 

The entities that should have the most liability are  the original developer, who chose the designers and the contractor, and the building owner and property manager at the time of the collapse.   I has been reported that there were significant signs of water damage prior to the collapse.  If the building owner and manager had paid attention to these reports and repaired the damage there would have been no loss of life.


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## cda (Feb 13, 2017)

Another collapse and lawsuit:::


http://fox2now.com/2014/02/22/collapse-at-mu-apartment-complex/



http://www.stltoday.com/news/local/...cle_8f219a6e-1533-5bc6-9ea8-57a532d006a4.html


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## mark handler (Feb 23, 2017)

2018 IBC and IEBC balcony code changes adopted in California.
The California Building Standards Commission has voted to approve emergency regulations enhancing the California Building Code balcony and walking surface construction requirements. The new provisions went into effect on Jan. 30 and apply to multi-family residential, hotels, motels, state-owned buildings and public schools in California. The new regulations create consistency with ASCE-7 design loads, and require additional ventilation, detailing, and inspection for exterior balconies and elevated walkways exposed to the weather.
http://go.iccsafe.org/e/25182/s-BSC-Bulletin-17-01-FINAL-pdf/c4yzds/1166191217


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## mark handler (Jan 18, 2019)

BUILDING STANDARDS COMMISSION (BSC) EF 01-17
EMERGENCY EXPRESS TERMS
PART 2, CHAPTER 1, DIVISION II SCOPE AND ADMINISTRATION
[Note that the first two proposed sections have counterparts proposed within Part 10.]
…
107.2.7 Exterior balcony and elevated walking surfaces. [BSC] Where balcony or other elevated walking surfaces are exposed to water from direct or blowing rain, snow, or irrigation, and the structural framing is protected by an impervious moisture barrier, the construction documents shall include details for all elements of the impervious moisture barrier system. The construction documents shall include manufacturer’s installation instructions.
…
110.3.8.1 Weather exposed balcony and walking surface waterproofing. [BSC] Where balcony or other elevated walking surfaces are exposed to water from direct or blowing rain, snow, or irrigation, and the structural framing is protected by an impervious moisture barrier, all elements of the impervious moisture barrier system shall not be concealed until inspected and approved.
Exception: Where special inspections are provided in accordance with Section 1705.1.1, Item 3.
Notation:
Authority – Health and Safety Code Section 18934.5.
Reference - Health and Safety Code Sections 18928, 18930, 18934.5, 18934.8. Government Code Section 11346.1.


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## ADAguy (Jan 22, 2019)

Good stuff MH, keep it coming.


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