Callahan & Blaine

by Daniel J. Callahan

In recent days, much has been written about the tragic Berkeley balcony collapse and its victims – mostly Irish students visiting the United States on the U.S. government’s J-1 nonimmigrant visa. This program brings approximately 100,000 foreign college students to the U.S every year, many of finding work at restaurants and tourist attractions, such as San Francisco’s Fisherman’s Wharf.

While most of the coverage has been empathetic to the victims – who apparently were celebrating a 21^st birthday – there have been some notable exceptions. For example, the New York Times was forced to apologize for insensitive coverage that employed Irish stereotypes and seemed to blame the victims for a terrible accident that killed 6 and left seven others severely injured. Likewise, some bloggers have focused on the legal status of the Irish students, in effect demonizing the victims for being foreign workers and possibly being in the United States illegally.

Regardless of skewed journalism and ignorant Internet commentary, it is important to understand one critical fact regarding this tragic accident. The civil legal system in California will treat all of the victims of this accident equally, whether they are American citizens, tourists or foreign nationals, regardless of their compliance with American immigration laws.

The right to sue is guaranteed to all persons physically present within the borders of the United States. This is so if the person is a U.S. citizen, visiting as a foreign national on a work visa such as J-1, or even if unlawfully present in the country.

For example, as clearly stated by the United States Supreme Court in Plyler v. Doe (1982), “aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”  This means that regardless of citizenship or immigration status, everyone in the United States is entitled to full and complete recovery in the civil justice system. Thus, even though an illegal alien may have violated certain provisions of the Immigration and Nationality Act and thereby become subject to the prescribed penalties – deportation and possible criminal punishment – he or she is not stripped of their constitutional rights.

Berkeley police said 13 people were on the fifth floor balcony of the Library Gardens apartment complex just west of the UC Berkeley campus when it collapsed early Tuesday morning. City spokesman Matthai Chakko told the Associated Press, “We’re still looking into what happened,” both at the party and with the structure of the balcony. Investigators will examine whether the balcony was built to code, whether it was overloaded, and whether rain or neglect had weakened the structure.

Initial speculation focused on the possibility that the 13 students overloaded the balcony. Grace Kang, a Berkeley structural engineer, told the Associated Press, “They were packed like sardines, and then they were moving.” She went on to say that moving and dancing can “further exacerbate” the strain on a structure.

But other structural engineers rejected blaming the victims. They said the cause of the tragedy appeared to be structural. “It appears to be a classic case of dry rot, meaning water intruded into the building [and] rotted the wood” that supported the balcony, Gene St. Onge, an Oakland civil and structural engineer, told the Los Angeles Times.

Onge continued, “ If you had 14 people, and they were all … football players, and they were all jumping up and down, you would get a fair amount of deflection, depending on how well the railing was tied back, but if the [wooden supports] were designed even under minimal standards, it should still have held.”

Newly released records show the balcony was designed to hold nearly 2 tons, far greater than the weight of the people who fell five stories to the pavement below.

Other structural engineers, echoed Onge’s opinion saying the wooden joints that once supported the balcony appeared to have disintegrated. Darrick Hom, president of the Structural Engineers Assn. of Northern California, visited the balcony Tuesday afternoon. He told the Los Angeles Times the wood was so deteriorated at the balcony site that when workers touched the wood, parts of it broke off. “It was decayed,” he said. Berkeley Mayor Tom Bates concurred, saying there was “high probability” that water had penetrated and rotted the wooden underpinnings of the balcony that broke away. City officials ordered a second balcony removed from the building because it was “structurally unsafe.”

Whatever the outcome of the investigation into the causes of this tragedy, the bottom line is that the victims and their families have the right to file a claim for their injuries, including wrongful death, physical injury, economic losses, emotional distress and possibly even punitive damages.

Daniel J. Callahan, the founding partner of Callahan & Blaine, is one of the nation’s leading trial lawyers. Among his numerous accomplishments is a $934 Million jury verdict in a business case. He has been named to the Irish Legal 100 for five years, an award that recognizes him as one of the top Irish-American attorneys in the United States.