Update 7/2/15: This article has been updated to reflect new information from Segue Construction Inc. and from court documents, and an interview with Niall McCarthy.
The company responsible for the construction of the apartment complex where a balcony collapsed in June alleged damage of evidence by the city of Berkeley during the city’s investigation into the collapse.
The company, Segue Construction Inc., announced Tuesday that it had filed for a temporary restraining order that would prevent the Alameda County District Attorney’s Office, now leading the investigation, from further testing the evidence from the collapse without Segue’s involvement. According to a further statement released Wednesday, the district attorney’s office is no longer willing to cooperate with Segue to resolve the issue.
On Monday, Segue asked the district attorney for the opportunity to be present at any inspections of the balconies. The company subsequently applied for the restraining order so that no evidence involved in the collapse would be “altered, inspected, tested, or destroyed without allowing Segue to observe and participate in that process.”
Segue says it would be “severely compromised in its defenses” at anticipated future criminal or civil trials, according to court documents. Segue specifically noted that the removal of the balcony below the one that collapsed and the drilling into two other balconies at the site could prevent future investigators from determining the cause of the water penetration.
Attorney Niall McCarthy — who has represented several victims in balcony collapses in the Bay Area, including a 1996 case in San Francisco similar to the one in Berkeley — said the company’s complaints are illegitimate. According to McCarthy, investigators should still have ample opportunities to evaluate the conditions of the building’s balconies.
“I think this is for show, and it’s not going to affect anything,” he said.
According to Tom Miller of the Miller Law Firm, which specializes in the field of construction defect litigation, these are high-stakes issues, and it would behoove both the district attorney’s office and Segue to work out a compromise on what to do with the evidence.
“Down the road, then, the parties can go about doing their own independent testing to determine what caused the failure and who’s responsible,” Miller said.
According to Wednesday’s statement, Segue will still cooperate with the district attorney’s investigation despite the district attorney’s decision to exclude the company from its testing of the evidence. Segue declined to comment any further on its progrss on filing the restraining order.
The district attorney’s office declined to comment at this time.
“We have never had an incident in which a member of the public was injured as a result of construction defects after a project was completed and we are shocked and saddened by the loss of life and injuries that resulted from this tragic accident,” Segue said in a statement.
A court will resume a hearing regarding the restraining order Thursday morning.
Staff Writer Rimon Hossain contributed to this report.
Contact Kayla Kettmann and Trevor Greenan at [email protected].