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Criminal and Civil Prosecutions Likely to Follow Berkeley Balcony Collapse

We were saddened to learn of the tragic balcony collapse in Berkeley last night killing six Irish visitors and injuring seven others. Having prosecuted a multitude of similar cases, it would not surprise us if investigations conducted in the upcoming days demonstrated deficiencies either in the design, construction or maintenance of the balcony itself.

Tragedies like these underscore the importance of using sound engineering and construction practices when designing and building balconies that will, with certainty, become periodically crowded with friends and family.

As importantly, failures to adequately inspect and maintain these outdoor gathering spaces which are exposed to the elements often lead to deteriorated and decayed structural components that place the integrity of the balconies at great risk.

On sad days like this, we hope that all property owners will appreciate the significant risks associated with failing to maintain their properties, including balconies, and that circumstances that gave rise to the deaths of these innocent people will never materialize again.

The authorities investigating the calamity will likely present their findings to Alameda District Attorney Nancy O’Malley. If the DA concludes that someone¹s gross negligence or recklessness was a cause of the balcony’s failure, then she may bring manslaughter charges against them.

The DA has the burden of proving the case beyond a reasonable doubt, which is the highest evidentiary burden under the law, and she has complete discretion whether to file such charges.

The victims may also bring civil lawsuits seeking compensation for their injuries and the loss of their loved ones. It appears that most of the victims are Irish citizens. Nevertheless, because the tragedy happened on California soil their civil claims for compensation would be governed by California law. Generally, California law is much more favorable than Irish law in terms of what must be proved and the damages that may be claimed and recovered. The victims need only prove by a “preponderance of the evidence,” i.e., a slight tipping of the scales, that a defendant’s negligence was a substantial factor in causing the balcony collapse. This is a much easier evidentiary burden to meet compared to the beyond-a-reasonable-doubt burden in a criminal case.

Perhaps the most notorious legal case to happen in California in the last 25 years helps illustrate the difference between the burdens of proof in a criminal versus civil case. The Los Angeles District Attorney prosecuted O.J. Simpson for the first degree murders of Nicole Simpson and Ron Goldman. They failed to convince the jury, beyond a reasonable doubt, of Mr. Simpson’s guilt and the jury acquitted him. The families thereafter brought civil lawsuits against Mr. Simpson. The jury in the civil case found that the families proved by a preponderance of evidence that he was responsible for the deaths and found him “liable” for both deaths. The jury awarded the victims’ families tens of millions of dollars in compensatory and punitive damages.

Turning back to the tragedy in Berkeley, the victims who survived the balcony collapse but who suffered injuries may seek compensation for past and future medical bills, past and future lost wages, emotional distress, and pain and suffering. Family members of the deceased may seek compensation for the loss of their loved ones¹ comfort, care, society, love, affection and support.

If the evidence shows that the defendants acted with conscious disregard for the health and safety of users of the balcony (e.g., if someone knew that the balcony was at risk of collapse but decided not to fix it because of the cost), then the victims could also seek an award of additional “punitive damages” to make an example out of and punish the defendants.

Certainly the owners of the apartment building will be the initial focus of the investigations and legal proceedings. At some point, the owners may contend that it was someone else’s responsibility to make sure the balcony was safe and up to standards. In the civil lawsuits, however, this will not present much of a defense. Landlords have what the courts have described as a “nondelegable duty” to keep their premises in a reasonably safe condition. Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726. Thus, the owners face near certain civil liability to the victims, even if they hired top notch managers, contractors, and handymen to take care of the premises.

Nevertheless, given the magnitude of the losses, it is unlikely that the owners of the apartment will have sufficient assets and insurance coverage to compensate the many victims of this tragedy. The lawyers representing the victims will need to have experience in investigating and prosecuting cases against property managers, architects, contractors, former owners, and other entities that may share liability for the collapse of the balcony.

The Walkup firm has handled numerous such cases in the 56 years that our firm has been in existence. Anyone who is interested in knowing more about these topics should contact Walkup partner Michael A. Kelly at MKelly@WalkupLawOffice.com or 415-981-7210.