Berkeley Balcony Tragedy

Every day since the apartment building balcony in Berkeley collapsed on June 16th, the L.A. Times has run an article about the tragedy without

providing a definitive explanation for the failure. What caused the supporting joists to rot, resulting in the deaths of six students and critical injuries to the seven others? We have learned that the City inspectors did not red flag any problems with the balcony during the construction of the apartment building. This is not a surprise because city inspectors apparently focus on whether a particular phase of construction has been completed, not whether the construction conforms with the plans and industry standards. In fact, under California law, a contractor does not have a defense in a construction defect case based on the approval of construction by a city inspector. A general contractor or developer would be mistaken if he or she assumed that work was done properly if it passed building inspections by the local department of building and safety. In El Escorial Owners’ Association v. DLC Plastering, Inc. (2007) 154 Cal. App. 4th 1337, 1358, the California Court of Appeal found the defendants (including the general contractor, Alderman Construction, Inc.)were liable for negligence. The Court stated: “Alderman notes that the building inspector approved the work. But that does not change the result. [Firemen’s Ins. Co. of Newark, N.J. v. Indermill (1960) 182 Cal. App.2d 339, 342-343 (building inspector’s approval did not insulate contractor from liability for defective work).]” So what went wrong with the balcony? While the experts try to figure this out, some general observations based on a construction defect case I handled come to mind. A cantilevered balcony is designed to include a waterproofing system. This system has several interrelated components. In the case of the balcony in Berkeley, the construction defects may have included: installation deficiencies of the edge flashing along the perimeter of all decks; failure to properly install deck to wall flashings (i.e., where the balcony is attached to the exterior wall; and/or, the failure to waterproof around handrail post penetrations of the deck membrane. The covering installed on top of the deck may mask these defects. Unless the water came down to the deck through the exterior walls of the apartment buidling, the problems with the deck was due to improper installation of the waterproofing system. It would be very difficult for the owner to perform maintenance on an improperly installed waterproofing membrane and flashing under the deck covering if the defects were not visible. In many instances these problems could be avoided if a contractor would hire a waterproofing specialist to instruct the subcontractor and his employees how to make the building envelope (windows, decks, exterior walls covered by stucco, roof parapets, roof, etc.) "watertight." An article in today's L.A. Times revealed that that decks were inspected within the last year or so in connection with the sale of the property and passed the inspection. However, if the inspection was non-invasive -- if the inspector did not remove part of the deck to expose the rotten joists -- he would have no way of knowing the failure was imminent. As the Court of Appeal held in El Escorial Owners’ Association v. DLC Plastering, Inc., 154 Cal. App.4th at p. 1356, “A case from another jurisdiction reminds us that ‘[s]tructural quality ... is nearly impossible to determine by inspection after the house is built, since many of the most important elements ... are hidden from view.”