On July 17, 1981 a group of 1,600 people gathered to watch and participate in a tea dance in Kansas City, Missouri. (Aside: A tea dance is just that: an afternoon social event where people gather to drink tea and dance.) During the tea dance, two vertical walkways collapsed onto the dance area below, killing 114 people and injuring 216. The resulting investigation into the cause of the tragedy revealed that structural design changes during construction led to the failure and ultimately the engineers who approved the final drawings of the walkways lost their licenses.
On June 29, 2013 a balcony collapsed in Chicago , killing twelve people and injuring fifty-seven others. The subsequent investigation revealed that poor construction and code violations caused the collapse. The disaster brought about widespread overhaul of Chicago’s building code and industry standards for construction and review.
More recently, on June 15, 2015, an apartment balcony four stories high collapsed in Berkeley killing six students and injuring seven more. Building inspectors analyzing the incident noted that severed joist ends and tie-ins had rotted where the cantilevered deck structure had ripped from the building facade. The disaster prompted the City of Berkeley to quickly adopt an ordinance requiring regular inspections of all decks and balconies in three-year intervals.
The above are extreme and famous examples of deck and balcony failures leading to tragic injury and loss of life. By their nature, decks and balconies create a safety hazard because they suspend people above the ground at varying heights. If a deck fails, people on or near the deck face a high likelihood of serious harm.
Under the California Building Code definitions, a deck is constructed with support columns underneath it extending to the ground, whereas a balcony is a “cantilevered deck” tied into the framing of the building with horizontal beams. Common hazards for decks include failure of the columns or column fasteners. Common hazards for balconies include failure of the horizontal beams or tie-ins of the beams to the structure’s framing. Failure of the tie-ins is what caused the 2015 Berkeley tragedy.
A deck or balcony failure which causes personal injury to a third party potentially involves legal issues of construction defect (against a contractor, architect or engineer), products liability (against a supplier or manufacturer of materials), premises liability (against the property owner or renter), and general negligence. Deck and balcony failures could also subject homeowners associations and property managers to liability in some situations. For example, property managers who accept a landlord’s maintenance obligations may owe a duty of care to the landlord’s tenants. Further, a homeowners association has a duty to maintain common areas, which can include decks and balconies, under Civil Code section 4775 of the Davis-Stirling Act.
Structural rot caused by inadequate waterproofing is one of the most common causes of deck and balcony failure. Exterior waterproofing in high elevations can be particularly challenging. For example, icicles (although festive) can cause moisture to soak through paint and wood. In many instances, a mere visual inspection of the exterior of a building, deck or balcony will not reveal deficiencies present within engineered systems that could cause structural failure.
In response to high profile deck and balcony collapses, many local governments, such as San Francisco and Berkeley, have enacted inspection requirements in an attempt to identify and prevent a deck collapse before it happens. In fact, SB 721 has been introduced in the California legislature which, if passed, will require inspections of decks and balconies on multifamily dwellings every 5 years. Although the Truckee-Tahoe region currently has no such inspection requirement, property owners, especially those with older decks, should have a competent contractor investigate the long term stability of suspect deck or balcony systems, including any potential moisture intrusion issues.
Property owners should also pull the permits on the property and ensure that all work, including repairs, was done with a permit and up to code. The Town of Truckee requires permits for the repair or replacement of decks using more than 66 square feet of deck boards or 33 lineal feet of railing. Failure to obtain the proper permit or to perform construction pursuant to the current codes could expose a property owner to damages based on the legal doctrine of negligence per se. The doctrine holds that a defendant’s negligence is presumed if (1) the defendant violated a statute or ordinance, (2) the violation caused the injury, (3) the injury resulted from an occurrence which the statute or ordinance was designed to protect against, and (4) the injured party falls with the class of persons that the legislative body intended to protect by adopting the statute or ordinance.
Owners who use their property as short-term vacation rentals, through such websites as Airbnb and VRBO, must be especially cautious regarding the danger of deck or railing failure. The challenge with insuring short term vacation rental properties is the triple use: personal use (as a second home), commercial short-term rental use, and periods in between where the property is unoccupied. Owners renting a property short-term will want to look into special short-term vacation rental insurance policies which cover each use of the property, and therefore function as a homeowner’s, landlord and business policy all in one. Additionally, putting ownership of the property into an LLC will not prevent a lawsuit against the LLC if a third-party is injured on the property, but may help to protect the LLC member’s personal assets.
Property owners should be pro-active regarding the safety of their decks, balconies and railings given the known hazards posed if the structural systems supporting decks and balconies begin to fail. In addition to ethical reasons to prevent the physical harm that failure of these structures may cause, property owners should also be aware that the liability imposed as a result of such injuries could be severe.
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The content contained and opinions expressed in this blog are solely those of the author. This blog contains content and opinions concerning the law generally, and is not intended to constitute legal advice or to create any attorney‑client relationship with the reader. The reader should consult with an attorney about any specific legal issues prior to embarking on any course of action or inaction involving legal matters. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the contents of this blog and expressly disclaims liability for any errors and omissions.