“I heard a crack and knew I was f**ked.”
That was how one survivor of the Berkeley balcony collapse is said to have recalled the moment that left the student with grave injuries that night in June 2015.
The settlement of the two main outstanding lawsuits before California’s court relating to the tragedy means that the survivors are less likely to have to relive, in court, those terrifying minutes when the fourth-floor balcony, weakened by dry rot, collapsed sending 13 Irish students to the street below.
What was supposed to have been the summer of a lifetime on the J-1 visa programme turned into a nightmare. The injured were enjoying a 21st birthday party in apartment 405 of Library Gardens in the early hours of June 16th, 2015 and now have a lifetime of dealing with what happened that night.
The trial of the actions taken by the families of the six students who died in the tragedy and the seven survivors was scheduled to begin in a courtroom in Berkeley on February 5th.
Although one building contractor has so far refused to settle, out of more than 30 defendants sued, the ending of the cases against the biggest defendants significantly reduces the chances of the families and survivors seeing the inside of a California courtroom.
These latest settlements will come with great relief to the relatives of Eoghan Culligan, Lorcán Miller, Nick Schuster, Eimear Walsh, Olivia Burke and her cousin Ashley Donohoe who died, and to the seven survivors. The families will not have to endure what could have been a lengthy, difficult trial against two formidable corporate adversaries.
Defendants’ questioning
The seven survivors – Aoife Beary, Clodagh Cogley, Seán Fahey, Conor Flynn, Jack Halpin, Niall Murray and Hannah Waters – who suffered grave injuries that night have already had a taste of what was to come. Each had to face questioning by the defendants' lawyers in depositions.
All but one of the construction companies and associated building contractors who were behind the shoddy workmanship that led to the defects of the balcony have settled the legal actions taken by the 13 plaintiffs. The main focus of the litigation was against the multibillion dollar companies that owned and managed the 176-apartment Library Gardens block in downtown Berkeley.
Blackrock, a company with $6 trillion (€5 trillion) in assets under management, and Greystar, which manages about 425,000 apartments worth $80 billion (€68 billion), has deep pockets to cover the multimillion euro damages but could easily have afforded to fight the cases aggressively.
Earlier this year, Blackrock told shareholders in its 2016 annual report that the cases against the “Blackrock Parties” were “without merit” and that it intended to “vigorously defend the actions” while saying that it could not estimate “the possible loss or range of losses from these matters”.
The company, which is listed on the New York Stock Exchange, claimed in court as recently as last month that it had no role in the ownership or management of the apartment as it had nothing to do with the company that owned the apartment block or the fund that owned that company.
Dry rot
The facts of the case were incontrovertible. A waterproofing protective membrane was not installed between the flooring of the balcony and the joists when it was built between October 2005 and August 2006. During that time, there was an unusually high level of rainfall in Berkeley.
The flooring was made from a type of wooden board that was a more water absorbent material than plywood, which was supposed to have been used in the construction of the balcony.
The California building regulator, the Contractors’ State Licensing Board, concluded in a report earlier this year that the balcony should have been able to support the weight of the 13 students.
It identified water damage between the joists and the flooring that caused the destructive dry rot.
Segue Construction, the California company that built the apartment block, had its building licence revoked as a result of the balcony's failure. The regulator said that the company "wilfully departed" from trade standards for good and workmanlike construction.
Substantial settlements
The legal actions came down to which companies should bear responsibility for the tragedy. While Segue and the building contractors erred in the construction, the owner and manager of the property should have inspected and ensured it was defect-free in annual inspections. They did not.
The settlement amounts paid to the families and survivors are said to be substantial, illustrating the extent to which the defendants have taken the blame for this tragedy.
Now the focus for at least one family, the relatives of Ashley Donohoe and Olivia Burke, will be pushing for new legislation in California to change state regulations on building inspections and materials and “secret” settlements around building defects to prevent a similar tragedy reoccurring.
“Nothing will ever replace our daughter, our niece or the other four students who died that night,” said the Donohoe family in a statement.
“After this tragedy, I would hope all that were involved will join us in our efforts to ensure there are proper changes to the building codes and regulations in California.”
