The lawyers are gathering–that much we know. But who is legally responsible for what happened? Or, perhaps better said, who will be targeted as legally responsible in various legal actions? As one local developer said, “Follow the money”–because much of what happens from here on out will be motivated by dollars and cents.
We spoke to Peg Underwood and Henry Donner of Jacoby Donner, a Philadelphia law firm that specializes in construction litigation. We also spoke with a local developer who preferred to remain anonymous. All three shared insights gleaned from past experience, which we put into a Q&A.
Will Griffin T. Campbell, owner of the construction company that performed the demolition, have to pay out?
A licensed contractor in Philadelphia is required to have an insurance policy for which he makes regular payments. He may also elect to have excess policy as well, which is added financial protection. Any successful lawsuit against Campbell would take the limit of the insurance. Beyond that, he’d be liable out of pocket and so would probably declare personal bankruptcy (something he’s done before).
Will the owner of the building, Richard Brasciano, have to pay out?
He’ll certainly be involved in a lawsuit, but how much he has to pay, if anything, depends on many variables, including whether his assets are sheltered and how his ownership of the property is structured. If he is the record owner of the property, that makes him more vulnerable, but as the City Paper’s reporting proved yesterday, the record ownership of STB Investments is a bit more complex. Additionally, this was an accident that happened during demolition. Brasciano would argue he’s no expert in demolition, and trusted the city to monitor the safety of the site. If a defendant is a corporation, even if insurance coverage is inadequate, it can be very difficult for plaintiffs to get to the personal assets of the owners.
Is the Salvation Army a potential target for litigation?
Yes. They chose to keep the thrift store open even though there was active demolition going on next door. Were demo permits posted? Was the Salvation Army Thrift Store notified, as is proper procedure? If yes, what did the Salvation Army do to ensure the safety of its employees?
What would everyone be sued for? The contractor was licensed according to city law.
Negligence. It is true that the city does not have a set of standard operating procedures for demolition because no two sites are the same: a single-story building in the suburbs is not the same as an enormous property in the middle of the city. But there are generally accepted procedures and industry standards, like bracing certain buildings and establishing saftey zones. Legal action has to prove that such procedures–which appear in building codes or OSHA standards, etc.–are so obvious and universal, not putting them in place constitutes negligence.
Who gets damages, and how much?
There are two kinds of damages: pain and suffering and loss of income. For the latter, a 35-year-old investment banker’s survivors will get more money for damages than an 80-year-old housewife will because the younger person had more earning potential. The value of the case is less for those of lower-earning capacity, which means if someone was working in the Salvation Army thrift, and had similar jobs beforehand, the potential for a huge payout is slim. Such damages are determined by a mathematical calculation.
Can Richard Brasciano be subject to criminal prosecution?
Yes. An umbrella corporation does not protect owners from criminal liability. But for a criminal prosecution to succeed, the DA would have to prove that the defendant knew of the danger before the incident occurred, as happened with the pier collapse. The owners in that case were held criminally liable for what happened because it was amply clear that they knew it might happen, and they chose not to do anything. But that was a very unusual case.
Will the city get sued?
Not successfully. The city’s L&I procedures in this instance may seem inadequate, but it does seem Campbell was licensed and that the property had a demo permit as required. They even assert an inspector visited the site at some point. Should we have an L&I Dept. that’s more accountable? That’s a different story. But the likelihood of a large city payout is slim.