Change in the Aftermath of Disaster: Deck Failure Liability, Local Inspection Regimes, and Lapsed Claims

• Publication year: 2016
• Author: Dylan Grimes and Gary Sloboda

Change in the Aftermath of Disaster: Deck Failure Liability, Local Inspection Regimes, and Lapsed Claims

Dylan Grimes and Gary Sloboda

Dylan Grimes

Dylan Grimes is a San Francisco litigation attorney at The Miller Law Firm, practicing in the areas of construction and breach of contract cases.

Gary Sloboda

Gary Sloboda is an attorney at Flynn Riley Bailey & Pasek LLP, practicing in the areas of business, real estate, and construction litigation.

I. INTRODUCTION

A. Advancing the Regulatory Landscape

Unfortunately, sometimes the most powerful instigators of change in safety policies are tragedies and disasters, such as severe injuries or loss of life caused by the collapse of transportation infrastructure and buildings. Such disasters can result in expedited adjustments in standards that improve safety. Often times the public's concern regarding such events leads to regulatory action. For instance, immediately following the 1989 San Francisco earthquake, in which elevated portions of the Bay Bridge collapsed, the Golden Gate Bridge Highway and Transportation District conducted a vulnerability analysis and expeditiously performed seismic retrofitting upgrades on the bridge.¹ Without the preceding earthquake, the seismic upgrades performed on the bridge might not have occurred at such an accelerated pace.

The recent June 16, 2015 tragedy, involving a deck collapse in Berkeley that killed thirteen people, is motivating similar changes now.² In direct response to this catastrophic deck failure, the City of Berkeley passed an ordinance aimed at making decks safer.³ Several years earlier, the City of San Francisco passed a similar ordinance.⁴ This type of law aims to protect the public from harm by creating a framework for personal injury claims in such a situation. These ordinances also fit within the larger context of construction defect laws that include statutes designed to protect residential homeowners from defective construction and provide remedies for those defects.⁵

B. Deck Failure and Liability In Context

Deck collapse fits not only within the context of personal injury liability, but also in the wide range of construction defects that can manifest in any building or structure. Case law is rife with construction defect actions involving virtually every component of construction. For instance, in USF Insurance Company v. Clarendon America Insurance Company,⁶ a case deciding insurance obligations arising out of a construction defect lawsuit, the court recited the defects alleged against the insured in the underlying liability action, which included nearly every conceivable system, element, and component of a multi-family residential construction project:

Faulty soil compaction, faulty existing underlying soils and expansive soils resulting in soil movement and damage to the structures; concrete slabs, flatwork and foundation defects; plumbing defects; electrical defects; drainage defects; roof defects; HVAC defects; waterproofing defects; window and door defects; landscaping and irrigation defects; framing, siding and structural defects; ceramic tile, vinyl flooring and countertop defects; drywall defects; fence and retaining wall defects; cabinet and wood trim defects; fireplace and chimney defects; tub and shower door defects; painting defects; sheet metal defects; and stucco defects.⁷

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In construction defect litigation, this broad scope of alleged defects is not unusual. Consequently, defect allegations can include a wide variety of negligent or otherwise tortious conduct, such as: contractors failing to perform work in compliance with building codes, industry standards, or design plans; supplying and incorporating materials that fail to meet the standard for their intended use; or a flawed design's failure to meet the professional standard of care. Where a defect causes personal injuries, however, the injured parties will almost certainly target the owners and their property managers as responsible parties.

Despite this broad spectrum of construction defects and liability scenarios, perhaps the most common construction defect involves property damage resulting from the improper construction of the building envelope and inadequate waterproofing. While the repair costs of building envelope and waterproofing defects are substantial, the results of water intrusion can be catastrophic, particularly where the intrusion damages a structural feature like a deck. Deck structures usually collapse from water intrusion and corrosion, which weakens the deck system until, often under the weight of people standing on its surface, the deck gives way.⁸ Aside from the obvious property damage, these collapses can result in grave personal injuries and death.⁹

As noted in Part I.A, in response to collapses that resulted in severe injuries, many local governments have enacted inspection regimes in an attempt to identify and prevent a deck collapse. But tangible results from these local measures are questionable, particularly where only a visual inspection is required. A mere visual analysis of the exterior of a building in most instances will not reveal all the deficiencies present within the structure.¹⁰ In addition, while these ordinances create a duty to inspect, bare compliance with them may lull property owners and property managers into complacency, causing them to overlook the fact that merely performing the inspections will not absolve the owners, property managers, or other potentially responsible parties of liability in the event of a collapse. On the other hand, even if owners and property managers proactively investigate water intrusion and corrosion invisible to the naked eye—such as by performing the required destructive testing—those investigations might reveal property damage that will trigger the running of the statute of limitations. If charged with notice of a defective condition, which may trigger the running of the statute of limitations, an owner's claims against the developers, construction professionals, and contractors who built or designed the structure may lapse.¹¹

Therefore, a tension exists between the need to properly inspect and effectively act on the information a property owner or manager discovers through inspections, and the need to preserve the property owner's or manager's defective construction claims. To understand and navigate this tension, deck and balcony failures must be assessed in light of their systems, while considering the applicable law that confers liability on various parties—particularly owners and property managers. Inasmuch as local governments, such as the City of Berkeley, are taking preventative action by requiring property owners to inspect their decks and balconies and verify their condition, this liability analysis must also consider the practical and legal impacts of these inspection regimes.

II. FACTUAL BACKGROUND

A. Deck Structures

By their very nature, decks create a life and safety hazard. They structurally suspend people above the ground at varying heights. Therefore, if they fail, people on or near them face a high likelihood of experiencing serious harm.

The California Building Code defines a "deck" as "[a]n exterior floor supported on at least two opposing sides by an adjacent structure, and/or posts, piers or other independent supports."¹² A "balcony" is defined as "[a]n exterior floor projecting from and supported by a structure without additional independent supports."¹³

The first type of deck is commonly referred to as a "supported deck." The supported deck is constructed with support columns underneath it, extending to the ground. This type of deck is common in multi-residential complexes and, because of its tie-in to the ground, is safer than a balcony.¹⁴ However, supported decks can present a hazard if the columns, fasteners, or other components fail.

The second type of deck, commonly referred to as a "balcony," is a "cantilevered deck." Rather than being supported by columns running up from the ground, cantilevered decks are tied into the framing of the building with horizontal beams.¹⁵ Cantilevered decks require more detailed engineering because if the beams or tie-ins fail, a cantilevered deck will most likely collapse.¹⁶ Depending on the height of the deck, a collapse could result in injury or death. Therefore, given the risk of collapse, industry professionals caution that in designing a cantilever deck system, an architect or engineer must carefully analyze the materials to be used in the deck system.¹⁷

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B. Significant Deck Failures

During the previous thirty years, deck collapses have constituted some of the more egregious construction failures in the United States. The Chicago Tribune reports that since 2003, an estimated 6,500 people have been injured and another twenty nine have been killed by collapsing decks.¹⁸ Often, the outgrowth of such disasters is a significant change in the manner in which the corresponding industries, professional organizations, government, and lawyers address the issues surrounding deck collapse. These changes frequently take shape in the form of technical advances in both the construction industry and the regulatory environment.

On July 17, 1981, a group of 1,600 people gathered to watch and participate in a tea dance at the Hyatt Regency in Kansas City, Missouri. During the dance, two vertical walkways collapsed onto the tea dance below, killing 114 people and injuring 216. The resulting investigation revealed that structural design changes during construction led to the walkway failure. The Missouri Board of Architects, Professional Engineers, and Land Surveyors convicted the engineers who had approved the final drawings of gross negligence, misconduct, and unprofessional conduct in the practice of engineering. Consequently, the engineers all lost their engineering licenses and their memberships with American Society of Civil Engineers.¹⁹

The Hyatt tragedy remains a model for the study of engineering ethics and...