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Court rules building owners liable for earthquake deaths

June 23, 2010

A California appellate court upheld a San Luis Obispo County jury decision to award the families of two women who were killed when a Paso Robles building collapsed on them almost $2 million in damages. [Judgment]

The 111-year-old Acorn Building in Paso Robles was not reinforced to handle an earthquake.

Both Jennifer Lynn Myrick and Marilyn Frost-Zafuto worked in a clothing store in the building. In December 2003, during the San Simeon earthquake, a portion of the building collapsed, crushing them.

On appeal, the defendant, building owner Mary Mastagni, argued she had no duty to retrofit the building until 2018, the deadline established by a city ordinance.

The Ventura-based Second District California Court of Appeals upheld the lower court’s decision.

“Certainly, the city considered the interests of building owners in setting the deadline for compliance,” said Justice Arthur Gilbert in the appellate court’s decision. “But the overriding policy behind the seismic retrofit ordinance, taken as a whole, is not the promotion of the interests of building owners. Instead, the overriding policy is public safety.”


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————-Willow as seen in this Appellate Court Decision in regards to this Earth Quake Building!


A public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the condition created a reasonably foreseeable risk of the kind of injury suffered; and either the condition was the result of the wrongful act or omission of the entity’s employee acting within the scope of his employment or the entity had actual or constructive notice of the condition a sufficient time prior to the injury to have corrected the dangerous condition. (Gov. Code, ? 835, supra.)


The fact the easement was “owned” by State, standing alone, creates no liability. “Property of a public entity” and “public property” mean real or personal property owned or controlled by the public entity. (Gov. Code, ? 830, subd. (c), supra.) For liability to be imposed on a public entity for a dangerous condition of property, the entity must be in a position to protect against or warn of the hazard. (Gov. Code, ? 835, subd. (b), supra.) Therefore, the crucial element is not ownership, but rather control.


“… Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.” (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834 [87 Cal.Rptr. 173], italics added.)


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The court ruling is total b.s.


Ever read your insurance policies? ALL of them cover your except for “acts of God”. An earthquake is considered an “act of God” and they will NOT cover you unless you buy a policy specifically for “earthquakes” to be covered, and those are exorbitant in California.


To hold an individual responsible for an “act of God”, while the big insurance companies can exclude themselves from such responsibility shows you where this country is headed – towards more corporatism and individual rights and sovereignty be dammed.


I supposed building owners should hire someone to stand at the door and have every person who enters their building sign a piece of paper stating they will not sue them in case of an “act of God”.


This finding is dead WRONG and is pointing this state/country in the WRONG direction.


And no, it’s NOT the same as whatever’s going on in Oceano. Get over it, inverse Condemnation.


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——————Willow, the wall that was built and then fell down was not an act of GOD! This wall was man made and was in need of better support to hold this wall up. Yes this costs money, but if money was spent to support this wall——We would not be communicating about this today!


Regarding Oceano, I would suggest you watch the videos on YOUTUBE under Caltrans and then read what Caltrans has stated as seen at http://www.oceanonursery.com


This is what Caltrans stated to our Regional Water Quality Control Board January 12, 2009 that now affects your public safety for a problem that Caltrans can fix for only $43,295.00—


“Due to past litigation, the Department is no longer responsible or allowed

to maintain the channel located off of the Caltrans right of way. If you

would like further information about the drainage situation and the

maintenance effort at this location, which has a history beyond what can

be detailed in an e-mail, please let me know so that I can arrange a

meeting with Department staff familiar with the drainage challenges and

restrictions at this site.”


Respectfully,


Pete Riegelhuth

D-5 NPDES Coordinator

Office 805-549-3375

Cell 805-305-7726″


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Obviously you don’t get it. An “Act of God” is something that humans have absolutely no control over and can never completely plan for unless divinely directed to. You could build a steel wall 12 inches thick and God could come along with an earthquake that would collapse it to pieces in an instant. So who’s fault is that? Who pays for the resulting deaths? There is a point where people have to take responsibility for their own decisions and a point where people have to accept God’s will.


That’s exactly what’s wrong with Diablo. The “scientists” say the fault it’s built on will produce only a 7.0 earthquake and have built for that. As if they know and can predict with any certainty (which they can’t) and can control any of it (which they can’t). Their position reflects complete arrogance if you ask me. Even the wind will tell you the truth: it blows at a relatively constant speed throughout the day, but every once in a while there’s a sudden, more powerful gust. No one can predict it, or control it. So the wind blows over a vase and breaks it. Who’s responsible for that? Who pays? The owner of the property? Or do we just let it go as the wind, God’s doing.


Real life is full of “danger”, “risk” as well as adventures. In fact, it wouldn’t be much of an adventure if there wasn’t some element of danger and risk. People have got to get over this programming that’s been perpetrated the last 45 years that everything in life is supposed to be “safe” and “secure”. Nonsense. Doesn’t exist in the real world. It is that erroneous thinking that has fed the creation of big government, intrusions into personal property, rights, and loss of liberty. It is also that erroneous thinking that has created at least two generations of emasculated “men” who look to faulty man-made laws and court judgments instead of themselves for “security” and to deal with life’s challenges.


And no, I’m not going to look into your dealings with CalTrans. This thread is about God-made earthquakes and a bad court decision, not about who’s suppose to clear a storm drain in Oceano. Not the same thing. As stated before on another thread, not everything is about your personal court case but you seem to keep posting it wherever you can. I consider your insistence on drawing attention to yourself and not the specific issue at hand to be really poor form.


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————–Willow, do you really believe that GOD caused this building to come down?


The flooding of our State Highway in Oceano–Yes I am sorry–I would like to never talk about why our State Highway is being used by Caltrans and the County of San Luis Obispo for storm water retention again! It is not my fault that the County of San Luis Obispo withheld over 150 whitiness’s from discovery and trial going to our Pacific Ocean!


However this flooding is not an act of God and public safety as with the Earth Quake buildings should be of a concern to our County Of San Luis Obispo Residents!


If you give them an inch, they will take a mile as seen in this Caltrans Statement!


“Due to past litigation, the Department is no longer responsible or allowed

to maintain the channel located off of the Caltrans right of way. If you

would like further information about the drainage situation and the

maintenance effort at this location, which has a history beyond what can

be detailed in an e-mail, please let me know so that I can arrange a

meeting with Department staff familiar with the drainage challenges and

restrictions at this site.”


Respectfully,


Pete Riegelhuth

D-5 NPDES Coordinator

Office 805-549-3375

Cell 805-305-7726″


This Appellate Court decision puts the whole State of California on notice in regards of knowing of a danger and not correcting that danger!


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You’re right. The wall was man made. So go to the cemetery, dig up the builders from 111 years ago and drag them to court.


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——————-This is like Caltrans shoveing contaminated storm water debris into the Oceano Communities storm water drainage channel as seen in YOUTUBE videos at http://www.oceanonursery.com


This Appellate case was herd the same day as my Oceano Nursery flooding case in San Luis Obispo.


If you know there is a danger of causing harm for someting that can be fixed, then you are guilty and need to be held accountable! Public safety should be a concern to all!


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Two people were killed as a quake shakes the ground and creates a hot spring in the library parking lot, and somehow that’s the building owner’s fault? Better not be a landlord in California, especially near an earthquake fault – cuz’ it’ll be YOUR fault if anything bad happens in a quake!


Even insurance companies have an opt-out for this sort of thing – ACT OF GOD. Its tragic the women died, but putting the blame (and compensatory damages) on the landlord is silly.


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Putting out the money required to retrofit was by far the issue. Just having to to previously install an elevator in the tower building to comply with code was already offensive to owner Mastagni because of the expense, but not for lack of assets. She tried to fight that, too, out of plain stubbornness. Without question, there was an attitude of being put-upon about the retrofit. Although she knew exactly what the risks were, she planned to wait until right before the grace period ended to complete it.


Beentheredonethat: Because school kids had earthquake drills at one time or another doesn’t absolve the owner from the burden of providing the safest possible work environment. It could as easily be argued that all Californians know the difference between the benefits of a reinforced building and an unreinforced building because that’s taught and well publicized, too. When a person sees interior brick and shifting ceiling crashing down on them, the fight or flight tendency is to bail out of there when there’s no reasonable cover. It was a clothing shop, for goodness sakes.


Both of these women had to have been scared out of their wits and naturally fled for their lives…a decision of only seconds in the making. A reinforced building would have at least given them a fighting chance.


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My point is, is that they both share responsibility. There where other people in that building that also had to make a quick decision and they stayed put.


You can monday morning quarterback this all you want but look at the situation. Paso had not had any earthquake activity in years. Up till then the only quake I have felt in this area since being here in 80′ was the Coalinga in the early eighties. You had a building (Acorn) that had stood for over 100 years.


Lets look at this another way. In the mid west you have a fault called the Meridian Fault. It is thought to have produced an earthquake even larger than the one in San Fran in 1906. It broke in the early 1800’s. It will again some day. So when that happens and those buildings go down, do we start blaming everyone for negligence?


We learn as we go. We build better buildings today because of what we have learned. Yet there are many poor buildings and bridges in this country. If you are the owner of these how would you deal with the option of possibly tearing them down when you didn’t build but bought into a hundred years later? We CAN’T go and tear them all down. It takes time. Some will get fixed before catastropy and some after. Life is not perfect.


Or put another way. You and I the taxpayer are responsible for the poor bridges in this country. If we tore down all of them at once, I bet the price tag for tear down and rebuilded would be hundreds of billions of dollars. Are you willing to have to come up with your share of thousands of dollars today to repair?


I know that my arguement seems callous but I am not trying to be. I am at least brave enough to be realistic and not try to make the politically correct but unrealistic statement.


One more. The only true earthquake proof building is one build were no earthquakes have ever existed. Even new buildings have the potential to go down in the right situation.


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The building is well over a century old. We live in earthquake country. Parkfield is called the earthquake capital of the world. A quick look at USGS or widespread media will tell you we have near constant earthquake activity. Retrofits are nothing new. Longtime business owners know too well there was a wave of retrofitting in the ’70s. Public buildings were retrofitted. Public utility companies have – for decades – provided instructions for natural disasters, including earthquakes. Our state has had catastrophic quakes in recent decades, such as San Francisco and Northridge. The only reason Niblick Bridge stayed up was because it was engineered to withstand a quake. Fault lines run throughout our entire state. I mean, really. What more warning do you want that a quake could cause massive damage and kill people?


As for Monday morning quarterback, what do you think the courts were doing? They were sifting through evidence for two and a half years to determine whether or not Ms. Mastagni should have repaired her ancient building.


Here’s the part no one talks about…not even the court.


Those who have been here a long time know that the Mastagnis have owned a stretch of businesses on 12th street and other properties in town. Over 30 years ago, there was a huge gas explosion in one of them toward Spring Street. It was a big deal at the time and a real mess. The city tagged it, so it was torn down later. When the city saw the damage at the dress shop she operated, it was also declared unsafe and the city wanted to tear that down, too, and at the last second, Mr. Mastagni wouldn’t have it. He hadn’t owned the property very long, so it was understandable that the last thing he want to do was lose it to demolition. While I don’t know how he managed to pull it off, Mastagni got his way and they repaired the fractured structure instead.


Want to take a guess which building it was they saved?


Ann’s Dress Shop…the very building where those women died. I don’t know about you, but I find that chilling.


More than anyone, it was Ms. Mastagni who knew that building was likely to come down in a quake. Her store was already given a pass once in the 70’s when it was saved and she wanted another one. Remember, this is someone who had the assets to back up the cost of repairs. The delay was about stubbornness and money. Pure and simple. Anyone who knows her at all knows that. The irony is that she’s paying more now than she ever thought she would.


However “disappointed” she feels about the $2 million dollar ruling, that money is really an insult and a mere pittance when you consider two innocent women who paid the ultimate price. And for what? Going to work.


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This ties directly with the Enterprise rent a car 15 M settlement for negligence.

If you are a business selling anything to the general public you need to have a lawyer eye.

In that I mean, look always to the worst possible case. Can your employees screw up? can your building fall down?

If you have been warned by a state agency or a manufacturer that something may be dangerous then the only action is to IMMEDIATELY address the issue. As a business owner you have more of a liability, It’s the way things are done in the US, to be cavalier about this fact is foolish.


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The thing that has always killed me about the Paso Acorn buildings is this. While I know I probably will get killed on the neg. button for suggesting the politically incorrect, here goes.


While it is a terrible tragedy that took place in Paso, have we native Californian’s not been trained since elementary school NOT to run outside in an earthquake?? Had they stay inside they might have been safe. I personnelly know a man that was in Pan Jewelers with other customers and they ALL stay inside and the only injuries they had was being covered in dust. I was at work when it happened and had four people rush by me to get outside while I stayed put


When you start making God made tragedies law suit driven I think you might be starting to head down a slippery slop. Just my opinion.


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What a callous, outrageous-wait, you’re right! There is only so much we can do to prevent the fallout from so called natural disasters. Sometimes we just have to bite the bullet and take our lumps.

If the building owner was grossly negligent in creating a normal safe work space, having been warned it wasn’t, that might be different. But we cannot cover all the bases in life. Maybe something came up in court we are not aware of that would change the equation as we see it but so far I tend to disagree with the ruling.


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Like “slow” I don’t understand if it is the “building” owner Mastagni or the owner of “Ann’s” the “business” owner you are referring to?


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Business owners or building owners? The headline and article do not agree.


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