Wednesday 17 January 2018

Shane Phelan: 'The terror of victims during fall eclipsed by the carnage on the ground'

The collapsed balcony at the Library Gardens apartment complex in Berkeley Credit: AP
The collapsed balcony at the Library Gardens apartment complex in Berkeley Credit: AP
The six students who lost their lives in the tragic accident, top left to bottom right: Lorcan Miller, Eoghan Culligan, Nick Schuster, Ashley Donohoe, Eimear Walsh and Olivia Burke
Niall Murray was injured in the fall
Clodagh Cogley was injured in the fall
Jack Halpin was injured in the fall
Conor Flynn was injured in the fall
Aoife Beary was injured in the fall
Sean Fahey was injured in the fall
Hannah Waters
Berkeley court filings
Berkeley court papers
Shane Phelan

Shane Phelan

It was shortly after midnight at the Library Gardens complex in downtown Berkeley and 13 students were standing outside on the balcony of apartment 405.

Among them was Niall Murray, a 21-year-old Dubliner studying science at NUI Galway.

The J1 students were all there celebrating a 21st birthday party at the fourth-floor apartment at 2020 Kittredge Street.

But unknown to them, moisture-induced wood rot had destroyed the wooden cantilevered joists that supported the balcony on which they stood.

At that moment, the students were seconds away from disaster.

Mr Murray's account of what happened next, contained in court papers filed by his lawyers, still has the power to unsettle six months after the terrible tragedy unfolded in the Californian city.

"None of the victims had any reason to know or suspect that a catastrophe was imminent," the account read.

"Suddenly and without warning, the balcony broke loose from the building, tumbled down and struck the third-floor balcony directly below it.

"The mechanics of the failure hurled the 13 students onto the cement sidewalk and asphalt pavement 40 feet below."

Mr Murray sustained permanent, life-changing injuries in the fall, but he was one of the lucky ones.

"The unimaginable terror that each victim experienced during the fall was eclipsed by the carnage on the ground," the account continued.

"Six students died, and the seven survivors suffered substantial and lifelong physical and emotional injuries."

Equally unsettling is the allegation made by Mr Murray's legal team that all of what happened could have been avoided had construction and management firms not decided to spare themselves the expense, inconvenience and embarrassment of having to fix defects in the balcony.

It is claimed various parties knew the balcony was potentially dangerous, but chose to do nothing about it.

Near-identical accounts are contained in legal papers from others who were there on the night, including Clodagh Cogley and Jack Halpin. In total, there are parties suing the building owner, developer, a host of subsidiaries, sub-contractors and materials suppliers for personal injuries in a case where damages could reach €100m.

The case, which involves 35 defendants altogether, is set to play out in Alameda County Superior Court.

Submissions by San Francisco law firm Walkup, Melodia, Kelly & Schoenberger have already been filed with the court.

Their contents serve as a potent reminder of just how terrifying the events of that fateful night were and the grim aftermath that the survivors and the families of the dead must now live with.

According to Mr Murray's submission, he suffered severe spinal, orthopaedic and internal injuries. It went on to list the shocking array of injuries, some of which he will have permanently.

The list includes spinal fractures, left elbow fractures and dislocation, right radial fractures, a scaphoid fracture, degloving injuries, injuries to his hands and feet, torso and head, and emotional distress.

The document said Mr Murray was part of "a group of well-educated, hard-working, healthy and happy young men and women gathered to mark their friendship" and celebrate the birthday of another survivor, Aoife Beary.

Mr Murray's case is to be combined with 12 others, six of which are wrongful death suits and six of which are personal injury lawsuits.

Another submission outlines how Mr Halpin suffered spinal fractures, left leg and knee fractures among others. And the submission of Clodagh Cogley includes the sobering reminder that the young woman suffered "paralysing spinal cord injury, two collapsed lungs, fractured ribs, orthopaedic injuries to her extremities, emotional distress and other injuries not currently diagnosed".

Most of this group had grown up in Dublin and were enrolled in Irish universities. The plan was to spend the summer break in the Bay Area, earning money for the upcoming college year. The apartment had been rented out just two weeks earlier.

The defendants include BlackRock Inc, the New York firm which owns the Library Garden complex, Segue Construction, the primary builders of the property, and Greystar Real Estate Partners LLC, the company which managed the building.

Also included are a host of subsidiary companies and other service providers, who were each involved in some way with the construction, ownership or management of Library Gardens. These include architects, engineers, contractors, subcontractors, building material suppliers, commercial property owners and property managers.

Although the case is considered complex given the number of parties involved, the central argument made by Mr Murray's lawyers is a simple one. The needless death and injuries sustained by the students could have been avoided if the defendants had carried out their jobs properly.

His lawyers claim the defendants knew at all times that water infiltration, moisture trapped in confined spaces, poor drainage and compromised ventilation could cause the wood in the balcony to rot.

In relation to Segue Construction and a subcontractor Etter and Sons Construction, it is claimed that the approved designs for the building called for plywood to be installed on top of the cantilevered wooden joists during the framing of the balcony in October 2005. However, it is alleged both firms "purposefully" disregarded the plan specifications and failed to install the plywood.

Instead, a less expensive oriented strand board (OSB) was used. "These defendants were fully aware that the use of OSB was not just inconsistent with the approved plans and specifications, but came with the real risk of injury or death to people inhabiting or using apartment 405 and the balcony," the submission said.

It argued they would have known that a balcony collapse "could lead to deaths, injuries and other catastrophic results".

The submission claims that waterproofing did not take place immediately after the framing. Contractor R Brothers Waterproofing, with other subcontractors, did not waterproof the deck of the balcony until January 2006 at the earliest. In the intervening period, the unfinished balcony was exposed to harsh weather conditions. In just two months, Berkeley experienced 13 inches of rainfall. The unprotected OSB framing became saturated.

It is claimed that efforts were not made to rectify the damage because it would have been "costly, difficult, embarrassing and inconvenient to repair and rebuild the balcony in a safe and reasonable manner".

Mr Murray's submission alleges the management company, Greystar, was informed by students before the tragedy that mushrooms were growing on the balcony.

However, despite this "red flag" the balcony was not placed off limits and no testing, evaluation or remediation was done as the company did not want to incur costs. "In doing so, these defendants purposefully and willingly endangered the health and safety of the tenants and their guests in order to increase their own monetary profits," the submission argues.

Irish Independent

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