What are the potential lawsuit ramifications of the recent Austin balcony collapse? I thought I’d take part of this week to write a few posts that outline some of the claims against potential defendants in the resulting lawsuits. (If you haven’t heard about the tragic collapse, some news stories are embedded below. Thankfully — and remarkably — no one was killed.)
I wanted to start the posts off with a look at the potential liability of the condominium owner. From news reports, the balcony had been recently installed by the owner. Unanswered questions include whether permits were issued, whether an engineer designed the construction and whether the balcony construction was performed by a contractor or by the condo owners.
For this series of posts, I am going to assume the condo owner followed the proper steps and had a qualified contractor do the construction of a well-engineered deck. I am also assuming that the owner was the person that used the condo. If the owner rented the condo to someone else, then the person renting the condo would have the potential liability that’s discussed below.
Assuming all of that is true, any lawsuit would likely proceed against the condo owner as a premises liability case. In this type of case, the injured person will have to prove the following things to prevail: (1) the balcony posed an unreasonable risk of harm; (2) the owner knew or should have known of the danger; (3) the owner failed to make the dangerous condition safe and failed to warn about it; and (4) that the fall is what caused the injured person’s injuries.
In this case, there won’t be much fight about items (1), (3), and (4). I think it’s pretty obvious that a balcony susceptible to collapse is dangerous. I also think it’s fair to assume that the owner wasn’t warning people about the danger since a reported 30 people were on the balcony.
The real fight becomes on issue (2) the owner knew or should have known of the danger. In some premises liability cases, you find evidence that the owner knew that a problem existed. For example, in a business setting, the owner’s customers or staff people may have had previous problems or may have reported the condition and asked that it be repaired. However, in this case, I think it’s unlikely that there will be such evidence. The balcony was new so there wasn’t a lot of time for reported problems. And because it’s a residential setting, there are not as many people coming through that could notify the owner (at least in writing that could be discovered later) of the problem.
Instead, I suspect the fight will center on the second part of the issue — whether the owner should have known there was a problem. And in this case, I think a lot of that will be determined by how the owner went about having the deck constructed. If the owner cut corners — didn’t pull permits, failed to hire an engineer, etc. — then that is strong evidence that the owner should have known there was a problem. On the other hand, if the owner hired an engineer and a licensed contractor and they just didn’t do good jobs, then the owner might be able to argue that there was nothing to tip the owner off that any problem existed.
In the next few days, I’ll look at other potential defendants and the potential claims against them.
And, as promised, a couple of videos on the story are below:
UPDATE: My original post made some assumptions that the owner and contractor jumped through the proper hoops. New reports are coming out that the owner and/or builder failed to obtain building permits for the balcony. That makes it a lot more likely that owner didn’t comply with a number of duties, as we assumed above. The issues remain the same, but it will be much more difficult for the owner to try to argue that he/she was trying to do the right thing and shouldn’t have known about a potential problem.
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