Tuesday 27 September 2016

Berkeley families fight efforts to limit damages claims

Published 16/04/2016 | 02:30

Student Eimear Walsh lost her life in the Berkeley tragedy. Photo: Colin Keegan, Collins Dublin.
Student Eimear Walsh lost her life in the Berkeley tragedy. Photo: Colin Keegan, Collins Dublin.

Survivors of the Berkeley balcony collapse and the families of the dead have hit back at efforts to water down their multi-million dollar lawsuit.

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Several companies implicated in the tragedy, which claimed the lives of five Irish J1 students and a young Irish-American woman, have asked a judge to strike out claims for punitive damages ahead of a lawsuit due to be heard later this year.

They include the building management firm Greystar and a number of linked companies, which have claimed the survivors and families failed to provide sufficient evidence.

However, the survivors and families have hit back, making submissions to a California court this week arguing the claims should be allowed.

Civil suits are going ahead against 32 defendants involved in the ownership, management, design and construction of the Library Gardens building in Berkeley after prosecutors decided there was insufficient evidence to charge anyone with manslaughter as a result of negligence.

In a series of legal filings seen by the Irish Independent, the survivors and families say they have provided more than enough information "to satisfy California's liberal pleading requirements" in respect of punitive damages.

These are damages paid on top of basic compensation and are designed to punish offenders and deter them from engaging in similar conduct again.

The families have claimed Greystar and the building owners, trillion dollar investment fund BlackRock Inc, were negligent as they failed to act after evidence of dry rot on the balcony was reported to them.

If punitive claims are allowed, and the families and survivors win their case, the additional damages could potentially add millions of dollars to the amount of compensation awarded.

Students Eoghan Culligan, Lorcan Miller, Nick Schuster, Eimear Walsh, Olivia Burke and Olivia's Irish-American cousin Ashley Donohoe died after falling to the ground when the fourth-floor balcony gave way last June.

Seven other Irish students, Aoife Beary, Clodagh Cogley, Sean Fahey, Conor Flynn, Jack Halpin, Niall Murray and Hannah Waters, were seriously injured. In response to an objection by Greystar to the punitive claims, lawyers for the survivors and families said it had been clearly explained that the company was "aware of the danger signs" after tenants reported large mushrooms growing on the balcony.

"These mushrooms were the fruiting body of the moisture-induced rot that was rapidly occurring on the wooden joists that supported the balcony," one legal filing from the San Francisco law firm Walkup, Melodia, Kelly and Schoenberger said. "The tenants reported and complained about the presence of the mushrooms to the Greystar defendants, [who] memorialised at least one tenant complaint in a written document."

Lawyers for the families and survivors said Greystar was obliged to immediately close the balcony, perform an inspection and carry out remediation work.

But instead it "consciously and purposely" decided not to put the balcony off limits, examine it or fix it because it "would have reduced rental revenue, incurred costs, and been embarrassing and inconvenient", they have claimed.

Similar arguments were made in relation to BlackRock, which is also seeking to have the punitive damages claim struck out. The lawyers said BlackRock and linked companies had rented out the apartment from October 2008 until the tragedy "despite express knowledge" there were "signs of internal wood rot".

A judge could rule later this month whether the punitive damages claims can be included in the lawsuits.

Irish Independent

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