Construction Law: No Criminal Charges for Berkeley Balcony Collapse

When a tragedy occurs which may have been a result of faulty construction, legislation may be instituted to reassure the public that government is acting to protect the public.  This can harm the construction industry and increase the cost of construction.

On March 29, 2016, Nancy O’Malley of the Alameda County District Attorney’s office announced that no criminal charges would be filed in last year’s collapse of an apartment balcony in Berkeley that killed six students and injured seven others after a nine-month investigation failed to show “gross or reckless conduct” in the construction and maintenance of the apartment complex, as reported in the San Francisco Chronicle.


Ms. O’Malley stated that this was not a decision to which she came lightly.  She described it as the culmination of months of consultation with her team of attorneys, and her conclusion came after extensive review of reports, both legal and factual, and numerous meetings with investigators and experts.

The incident occurred just before 1 a.m. on June 16, 2015 at an apartment complex in Berkeley, California, at 2020 Kittredge Street, in downtown Berkeley near the UC Campus. The fifth-floor balcony gave way and fell to the ground.

O’Malley said that a thorough examination and reconstruction of the balcony showed extensive dry rot damage caused by water trapped, or encapsulated, in the structure.

However, O’Malley stated that there appeared to be many contributory causes of this encapsulation, including the types of material that were used, and the very wet weather Berkeley experienced during the months of construction.  O’Malley said.  None of the materials which were used by the builders were prohibited by applicable building codes.

On April 8, 2016, The Contractors State License Board CSLB found that "poor workmanship" in the waterproofing of the balcony resulted in water damage that caused it to rot and eventually collapse.

Dave Fogt, the board's chief of enforcement, said that contractors involved did not act up to trade standards, and that the collapse was caused by water incursion that caused dry rot.

Firms that may lose their licenses as a result of the CLSB action include Segue Construction, the general contractor on the Library Gardens project, the subcontractors that did framing, plastering and waterproofing work, and a supplier of ventilation equipment.  Others being investigated include Etter and Sons Construction in Dana Point, R. Brothers Waterproofing in San Jose, North State Plastering in Fairfield and The Energy Store of California in Sacramento.

The contractors could have their licenses suspended or revoked.  The CSLB is also asking the Justice Department to charge Etter and Sons with failing to cooperate with its investigation.

It appears from O’Malley’s statements, that waterproofing company R. Brothers covered over wet wood rather than waiting for it to dry and then testing its moisture content.

Civil suits have been brought against Segue and the other companies, alleging 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 that those warning signs were ignored.

Mike Kelly, an attorney for the plaintiffs, said his clients' primary goals are to uncover the truth, publicly identify the wrongdoers, and hold accountable those responsible for the damage, loss and suffering they have caused.  Kelly also expressed the hope that changes to residential construction industry practices that will prevent such a needless tragedy from recurring in the future.

Those in construction are well aware that liability which may be found for all involved in construction which causes a tragedy, whether the parties were negligent or not.  Contractors, design professionals, and developers are routinely sued merely because they were associated with a project where an injury or death has occurred.  Usually, general liability or errors and omissions insurance will cover this type of loss, but if conduct is considered deliberate or intentional, it may not be covered by insurance.

Hopefully, the publicity associated with this tragedy will not result in overbroad legislation which will harm contractors or design professionals involved in construction and increase the cost and risks of doing construction projects in California.