No manslaughter charges from Berkeley balcony collapse

The Californian district attorney investigating a balcony collapse that killed six students – five Irish and one Irish American – and seriously injured seven others in June last year has said she will not be bringing manslaughter charges because a successful prosecution seems unlikely.

"This is not a decision that I came to lightly," said Nancy O’Malley, the Alameda County district attorney (DA), in a statement that put the blame for the collapse on on trapped water causing the structure to rot.

But another state agency, California’s Contractors State License Board (CSLB), has determined that five contractors involved in building the balcony probably violated California law, and has submitted its findings to the state’s Attorney General’s office. The move could lead to the suspension or revocation of the contractors’ licenses.

Contractors allegedly disregarded plans and installed cheaper particle board that is more susceptive to water infiltration

In another development, three young women who stepped off the fifth-floor balcony seconds before it collapsed have sued the builders, owners and property managers of the apartment complex for "severe mental and emotional harm". Their suit alleges that substandard particle board was used, and that waterproofing was done only months after installation during a rainy period.

In her statement DA Nancy O’Malley said she had conducted a nine-month investigation, working closely with industry experts in structural engineering, waterproofing and architecture, including the CSLB, the California Board of Professional Engineers, land surveyors, and geologists, and the California Board of Architects.

However, the tests carried out did not provide sufficient basis for a manslaughter prosecution. O’Malley said the state would have to prove that any defendant or defendants "acted with gross or reckless conduct akin to a disregard for human life, and that the deadly consequences of those actions were reasonably foreseeable", and it was decided that this was unlikely.

The forensic investigation into the collapse has put the "primary blame" on water that had been trapped in the balcony deck during construction, leading to "eventual and extensive dry rot".

"There appear to be many contributory causes of this encapsulation, including the types of material that were used (none of which are prohibited by building code) and the very wet weather Berkeley experienced during the months of construction," her statement said. "The responsibility for this failure likely extends to many of the parties involved in the construction or maintenance of the building."

But the CSLB has been conducting its own investigation and, according to The Daily Californian, has now alleged that five companies wilfully departed from accepted trade standards for good and workmanlike construction.

The five companies are Segue Construction, Etter and Sons Construction, R Brothers Waterproofing, Northstate Plastering and the Energy Store of California. CSLB also alleged that Etter and Sons failed or refused to cooperate in a board-led investigation.

A CSLB official told The Daily Californian that the goal of the inquiry "has been to determine if any of the contractors deviated from accepted trade standards, leading to latent defects that comprised the integrity of the balcony".

The Attorney General’s office is now reviewing CSLB’s report to determine whether the alleged violations are supported by evidence. The details of the report are confidential and will become public only if the Attorney General files formal accusations to suspend or revoke licenses.

Meanwhile, three female tenants of the unit who survived the collapse by a stroke of luck have now sued the builders, owners and managers of the apartment complex.

Their suit filed last week alleges that contractors disregarded plans and installed cheaper particle board that is more susceptive to water infiltration, reports The East Bay Times.

They claim that the new balcony was left unwaterproofed between October 2005 and January 2006, during which time Berkeley experienced an unusual amount of rain. When the building was sold in 2007 the new owners did not perform an adquate condition assessment, they also allege.

According to the lawsuit, witnessing the carnage caused by the collapse led to the roommates suffering "severe mental and emotional harm when they were endangered by and forced to bear witness to the horrific accident that killed and disabled their closest friends", reports The East Bay Times.

Their lawsuit joins 12 others filed by families of victims and survivors of the collapse.

Among the claims made by these is the allegation that the building’s owners ignored signs that the balcony had begun to tilt dangerously away from the side of the building.

Photograph: Nancy O’Malley announcing the opening of the investigation into the balcony collapse last June (Alameda DA’s Office)

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