First the Earth Quakes, then the Law Suits - SPA Risk ...
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First the Earth
Quakes, then The retrofits will be very costly, but not
retrofitting them will be far more expen-
sive, both in lives lost and money wasted.
the Law Suits
Only a few must collapse to render the rest
suddenly worthless, just as it took only
two crashes of Boeing 737 MAX aircraft to
ground the rest. Owners, lessors, employ-
ers, property management agencies, and
even government officials, many of whom
are aware of the problem, could face serious
By Keith Porter and Edward Thomas civil or criminal legal liability if they fail to
act on the threat.
A Serious Earthquake Problem with
O
lder steel-frame buildings built between about 1960 and 1994 pose a very Older Steel-Frame Buildings in the
high collapse risk in earthquakes, owing to unexpectedly brittle welds. United States
There are probably thousands of these buildings in seismically active Several typical classes of buildings suffer
states, including some of California’s biggest buildings. The structural engineering from well-known seismic vulnerabilities
community has known about the risk for 25 years and has widely publicized it. that make them far less safe than other
Detailed studies have explained the risk and offered practical retrofit measures. buildings, dangerous enough to make sev-
Unless remediated, most of these buildings will be at serious risk when (not if) a eral California communities require costly
big earthquake occurs and potentially causes some of them to collapse. building evaluation and remediation for
the sake of public safety and welfare. E.g.,
Keith Porter, PE, PhD, is a licensed professional engineer, a research professor at San Francisco, Cal., Ordinance 66-13, Build-
istockphoto
the University of Colorado in Boulder, Colorado, and a principal of SPA Risk LLC in ing Code (2013), https://bit.ly/2MuKYCi;
Denver, Colorado. Edward Thomas is an attorney and president emeritus of the Oakland, Cal., Ordinance No. 12966 C.M.S.
Natural Hazard Mitigation Association in Boston, Massachusetts.
(2009), https://bit.ly/31cjtlb; Los Angeles,
Published in Probate & Property, Volume 33, No 6 © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
34 November/December 2019
Cal., Mayoral Seismic Task Force, Resilience
by Design – Building a Stronger Los Ange-
les (2015), https://bit.ly/2kdRTE7; Santa
Monica, Cal., Ordinance No. 2537 (2017),
https://bit.ly/33cH72O. These ordinances
address, among others, certain classes of
older reinforced concrete buildings, larger
wood-frame apartment buildings, and—
the subject of this article—some older
steel-frame buildings that pose a serious,
potentially catastrophic, seismic risk.
A recent New York Times article called
attention to the “big seismic gamble” of
constructing high rise buildings in earth-
quake country, eliciting responses from
structural engineers ranging from seri-
ous concern to dismissal. T. Fuller, A.
Singhvi, and J. Williams, San Francisco’s
Big Seismic Gamble, N.Y. Times, Apr. 17, Figure 1. Collapsed steel-frame Pino-Suarez Towers after the July 28, 1985 Mexico City earthquake.
2018, p. 1., https://nyti.ms/2J0VtYX. The A 14-story building collapsed on top of an adjacent one. Photo by E.V. Leyendecker, UC Berkeley
article quotes one highly regarded struc- NISEE e-Library, with permission.
tural engineer as saying that “[b]uildings
falling on top of other buildings—that’s one of insufficient money and short-term International and others. See ASTM
not going to happen.” That sounds very financial planning, and the limited (and Int’l, E2026 – 07 Standard Guide for Seis-
comforting, but “that” has in fact hap- somewhat conflicted) role of engineers in mic Risk Assessment of Buildings (2007),
pened many times, Figure 1 being one addressing the seismic safety of existing https://bit.ly/2meOsOh; Fed. Emergency
of many examples. The structural engi- buildings. Mgmt. Agency, FEMA P-154: Rapid Visual
neering community has known for Screening of Buildings for Potential Seismic
decades of strong evidence that a serious How to Identify a Pre-Northridge Hazards: A Handbook, Third Edition (2015),
problem exists, that a particular class of Welded-Steel Moment Frame https://bit.ly/2OvFyJN; Am. Soc’y of Civil
high-rise buildings could realistically col- Any licensed professional engineer spe- Eng’rs, Seismic Evaluation and Retrofit of
lapse in large, but not-exceedingly-rare, cializing in structures should have the Existing Buildings: ASCE/SEI 41-13 (2013),
earthquakes. skill set to identify whether a particular https://bit.ly/2JwCDg7.
Several studies by reputable research- building falls into the class of build-
ers and practitioners conclude that steel ings addressed here. The necessary data The Welds at the Root of the
buildings built between about 1960 and are commonly available from design Problem
1994 could collapse in a sizable earth- documents, especially structural draw- The problem arises from the unexpected
quake, with potentially several collapses in ings. Some building owners keep such fragility of welds that connect beams to
a single earthquake. A single high-rise col- drawings in their own files. Structural columns in steel buildings commonly
lapse could kill 1,000 or more occupants. engineers ordinarily maintain architec- erected between the 1960s and the
Structural engineers and the US Federal tural drawings of the buildings they have mid-1990s. The 1994 Northridge earth-
Emergency Management Agency (FEMA) designed. City building departments quake revealed that these welds are far
have known about this issue at least since maintain files of structural drawings that more likely to break than engineers had
the magnitude-6.7 1994 Northridge earth- engineers can examine to determine the previously thought, fracturing at levels
quake. Because the problem garnered age and structural system of a building. of earthquake shaking as low as one-
national attention after the 1994 earth- Real estate investors who buy large twelfth the values that their designers had
quake, the problem buildings are usually buildings in earthquake country reg- assumed (Figure 2, page 36). Laboratory
referred to as pre-Northridge welded-steel ularly engage structural engineers to tests at least as early as 1988 hinted at the
moment frames. perform seismic risk assessments, some- problem when welds in a test specimen
Engineers have studied and written times called probable maximum loss suffered a brittle fracture like the ones
extensively about these buildings, both (PML) studies, as part of their due-dili- observed in real buildings just a few years
within professional publications and gence evaluation of the risk of buildings later. K.C. Tsai, and E.P. Popov, Steel Beam-
through interviews in the general press, they are considering buying. Standard- Column Joints in Seismic Moment-Resisting
but owners and responsible governments ized procedures exist to guide such Frames, UC Berkeley Earthquake Engineer
have done little to solve it. This is not a studies, documented in standards, guide- Research Center Report UCB/EERC-88/19
problem of inadequate information, but lines, and training materials by ASTM (1988).
Published in Probate & Property, Volume 33, No 6 © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
November/December 2019
35
How Engineers Know That Brittle design-level shaking. Buildings tend to be
Welds Make Collapse More Likely slightly stronger than the code requires,
Buildings are designed for much weaker so, in the case of a typical building, a
shaking than they are expected to expe- pre-Northridge steel frame might suffer
rience in a design-level earthquake. To life-threatening damage at perhaps one-
ensure that a steel-frame building does tenth or one-eighth design-level shaking.
not suffer life-threatening damage despite
that weakness, engineers count on the Hundreds, Probably Thousands,
steel beams’ ability to tolerate a great deal of Problem Buildings in
of deformation through damage to their California Alone
microscopic crystal structure without According to a real estate database pub-
breaking. The same phenomenon can be lished by Emporis GMBH, California
observed by bending a paper clip. If bent contains approximately 740 buildings
just a little, the paper clip snaps back to its of at least ten stories in height and built
original shape. When bent more, it does between 1960 and 1994. These buildings
not snap all the way back, but also does contain more than 200 million square feet
not break. At a microscopic level, the crys- and perhaps one million occupants. Most
Figure 2. The 1994 Northridge earthquake
tal structure of the steel in the paper clip of them are pre-Northridge welded-steel
revealed fragility in the welds that connect
has been damaged, but not enough to moment frames. Many shorter build-
beams to columns in a kind of steel frame
cause the steel to break. ings use the same structural system and
construction commonly used in tall buildings for
Ductility is the ability to tolerate dam- probably add many times these figures,
the previous few decades. This figure shows
age without breaking. Ductility is reflected meaning perhaps thousands of problem-
an actual fracture observed in a building
in the International Building Code with a atic buildings with millions of occupants.
after the earthquake. Photo by J.C. Anderson,
factor currently called R. Engineers divide The same problem applies to buildings of
1994, from the Earthquake Engineering Online
design-level shaking by R to calculate the the same era built outside of California.
Archive NISEE e-Library, UC Berkeley, with
required strength at which the steel frame
permission.
begins to endure damage. That factor R Not a Problem of Uncertainty or
for steel moment frames has varied over Incomplete Information
time. At the time of the 1994 Northridge The problem is not one of uncertainty
Chemistry and Geometry Contrib- earthquake, it had a value of 12, meaning or lack of information. FEMA sponsored
ute to the Weak Welds that steel frame buildings were believed a multimillion-dollar study by a con-
The welds that connect the beams and to be so ductile that they could tolerate sortium of engineering researchers and
columns proved to be brittle for several 12 times the shaking that it would cause practitioners called the SAC Joint Ven-
reasons. Part of the problem was chemi- the steel in the beams to begin to witness ture. By 1997, the SAC Joint Venture had
cal: the so-called flux-cored arc welding damage to their crystal structure, without published several documents on why
process produced welds with very low life-threatening damage. The welds were the welds broke and what to do about
toughness, meaning it took unexpect- believed to be stronger than beams, so the the problem. E.g., SAC Joint Venture,
edly little energy to break them. Several beams would act as a fuse, protecting the FEMA 267 Interim Guidelines: Evalua-
other problems also contributed to mak- welds from damage. tion, Repair, Modification, and Design of
ing these welds brittle. Straddling a beam, That assumption proved wrong. In Welded Steel Moment Frame Structures,
welders had to reach down to either side several buildings studied after the 1994 SAC Report 95-02 (1995). These reports
to connect the lower beam flange to the Northridge earthquake, 10 to 25 per- largely eliminated uncertainty about the
column, making it difficult to make a cent of welds fractured when they were nature of the weld problem. As three lead-
high-quality weld on the lower flange (the exposed to the level of shaking that would ing earthquake engineers put it in 1996,
bottom horizontal part of the I-beam). cause damage to the attached beams. In “[t]he Northridge earthquake of Janu-
This method tended to leave various a sense, the welds had a ductility of one, ary 17, 1994, has fundamentally shaken
defects in the welds. The defects could be although they were expected to be stron- engineers’ confidence in the seismic per-
hard for inspectors to see. Also, some of ger than the beams. The welds became formance and safety of WSMF buildings.”
the engineers’ assumptions about how the weak link. That weakness eliminated S.A. Mahin, J.O. Malley, and R.O. Ham-
forces were transmitted from the beam the advantage of ductile beams, invali- burger, Phase 2 of the SAC Steel Project,
to the column were wrong, and the welds dating the assumption that the building Proceedings: 65th Annual Convention,
carried forces that engineers had assumed as a whole had a ductility of 12. With a Structural Engineers Association of Cal-
were carried by the bolted connection ductility of one rather than 12, a build- ifornia, Oct. 1–6, 1996. US engineers
on the beam web (the vertical part of the ing that just met code at the time of the quickly stopped designing steel build-
beam). There are other causes, but these earthquake can be expected to suffer life- ings with the problematic weld, but the
are a few of the leading ones. threatening damage at one-twelfth the change in construction practice after
Published in Probate & Property, Volume 33, No 6 © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
36 November/December 2019
1994 did not fix the welds in buildings A Question of When, Not If
built before the 1994 earthquake. Substantial earthquakes are inevitable. In
Of course, collapse involves more many places, they are arguably overdue.
than welds: the earthquake matters, Most of the earthquakes considered in the
as does the configuration of the build- previous examples occur on average every
ing. But little doubt should remain that 150 to 300 years or so, and because there
realistic earthquakes can cause the col- are so many of them, one of them is fairly
lapse of realistic buildings with the bad likely to occur within decades and could
welds. Shortly after the 1994 Northridge occur any day. The San Francisco Bay area
earthquake, a Caltech study found that a is more likely than not to experience a
magnitude-7.0 Los Angeles earthquake magnitude seven or greater earthquake
could realistically cause the collapse of a in the next 30 years (Figure 4, page 38).
20-story steel-frame building, even with- California has a 93 percent chance of a
out accounting for the problem with the magnitude seven or larger earthquake
Figure 3. Map of the San Francisco Bay
welds. T.H. Heaton, J.F. Hall, D.J. Wald, & in the next 30 years, and greater than
region, California, showing severity of shaking
M.W. Halling, Response of High-Rise and 99 percent probability of an earthquake
in the moment-magnitude-7.0 mainshock of
Base-Isolated Buildings to a Hypothetical Mw at least the size of the 1994 Northridge
the USGS’s HayWired earthquake scenario,
7.0 Blind Thrust Earthquake, Science, New earthquake. E.H. Field, UCERF3: A New
calculated for a 5-percent damped, 0.2-second
Series, 267 (5195), Jan. 13, 1995, 206-11, Earthquake Forecast for California’s Com-
spectral acceleration. Red color (a value of 1.0)
https://bit.ly/2lQUpAU.pdf. Several other plex Fault System (No. 2015-3009) 4 (U.S.
corresponds to 50 percent stronger shaking
studies by a variety of practitioners and Geological Survey 2015). Any of these can
than is used for design of new buildings.
scholars did account for the brittle welds, produce design-level or stronger shaking.
Orange or warmer colors (greater than 0.67
building configuration, and earthquake, The higher the magnitude, the higher the
in the legend) exceed design-level shaking. The
using various building designs and loca- likelihood that any given building will sus-
legend “demand to design ratio” refers to the
tions. Each found a significant chance tain such shaking.
ratio of the shaking in a given earthquake to a
of collapse in realistic, even inevitable, Nor is California unique among the
level of shaking that appears in a USGS map
earthquakes near Los Angeles, San Fran- states in experiencing strong earth-
used in seismic design.
cisco, and Seattle. E.g., B.F. Maison, and quakes. It is easy to find maps showing
D. Bonowitz, How Safe are Pre-Northridge shaking in large, realistic scenario earth-
WSMFs? A case study of the SAC Los Angeles damage to connections in real buildings. quakes published by the USGS (the
9-story Building, Earthquake Spectra 15 (4), An analysis of the data shows that a large nation’s authority on earthquake haz-
765-89. And not in small, isolated pockets fraction of those connections fractured ards) and by the Building Seismic Safety
of these urban areas, either. As a recently at levels of shaking in the Northridge Council (a group organized by the con-
published study by the University of earthquake that were much lower than gressionally-chartered National Institute
Colorado Boulder for the US Geologi- design-level motion. K.A. Porter, Assembly- of Building Sciences, which develops
cal Survey (USGS) shows, a hypothetical Based Vulnerability of Buildings and Its Uses much of the nation’s seismic design
magnitude-7.0 earthquake on the Hay- in Seismic Performance Evaluation and Risk- provisions). Detailed maps and data cat-
ward fault in the San Francisco Bay area Management Decision-Making, Doctoral aloged in Figure 5 on page 38 indicate
would produce shaking up to 50 percent Dissertation, Stanford University, Stan- large earthquakes could affect virtually
stronger than design-level shaking over ford, CA, and ProQuest Co., Ann Arbor, MI, any metropolis west of Denver, plus Okla-
a wide section of the urbanized East Bay pub. 99-95274, https://bit.ly/2mdXxa6. homa, seven states of the central United
as shown in Figure 3. K.A. Porter, Societal An important fact to remember here: new States, South Carolina, and New England.
Consequences of Current Building Code Per- buildings are not designed to be earth- Nor is that catalog exhaustive. Alaska
formance Objectives for Earthquakes (2018), quake proof. A small but nonzero fraction experiences frequent strong earthquakes,
https://bit.ly/2kxuIFc; S.T. Detweiler and of them are expected to collapse when and earthquakes could realistically shake
A.M. Wein, eds., The HayWired Earthquake subjected to design-level motion—the New York City, Washington, DC, Hawaii,
Scenario—Engineering Implication, Scientific orange color in Figure 3. It seems highly Puerto Rico, and other US locations with
Investigations Report 2017–5013, https:// plausible that buildings that had been the kind of buildings discussed here. See
bit.ly/2Yx3OiK. The authors and review- largely optimized to be just safe enough Figure 6, page 38, for a simplified seis-
ers of these studies include renowned to pass code without brittle welds are too mic hazard map of the United States. The
engineers, experts with decades of profes- weak to resist collapse because they do USGS provides a free, authoritative, online
sional experience designing and assessing contain a lot of brittle welds, when they tool for estimating how frequently any
buildings and developing the design stan- are subjected to the earthquake for which given US location will endure any given
dards on which building codes rely. they were designed. The various analyses level of shaking. USGS, Unified Hazard
One of the most notable outcomes mentioned above merely reinforce this Tool (2018), https://on.doi.gov/2qQmFE7.
of the SAC steel study was a survey of intuition. Although any given building may have
Published in Probate & Property, Volume 33, No 6 © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
November/December 2019
37
Figure 5. An authoritative map of ground shaking in realistic future earthquake scenarios.
Each star indicates the epicenter of one such scenario. Warmer colors indicate stronger
Figure 4. A USGS map of faults in the San shaking in one of the maps. USGS, 2014 Building Seismic Safety Council (BSSC)
Francisco Bay area capable of producing Catalog, https://earthquake.usgs.gov/scenarios/catalog.
earthquakes of magnitude 6.7 or greater, along
with the chance that each will do so within the
coming 30 years. USGS Earthquake Outlook for
the San Francisco Bay Region, 2014-2043, Fact
Sheet 2016-3020, version 1.1, http://dx.doi.
org/10.3133/fs20163020.
only a small chance of experiencing
design-level shaking in any given year, the
chance that many buildings will experi-
ence design-level or greater higher shaking
in an urban earthquake the next few
decades is fairly high.
It Is Difficult to Be Unaware of the
Problem
Structural engineers have publicized the
problem to the general public. The New Figure 6. Simplified 2014 hazard map. Any place colored green or warmer can reasonably be
York Times included a long article on Janu- considered to have at least moderate seismicity. USGS, https://earthquake.usgs.gov/hazards/
ary 16, 1995, quoting prominent structural hazmaps/conterminous/2014/images/HazardMap2014_lg.jpg.
engineers and explicitly warning that
steel-frame buildings could be seriously
damaged or collapse in earthquakes. Seth
Mydans, Los Angeles’s Steel-Frame Build- the problem is huge. In 2000, each beam- that $1 million to deal with an earthquake
ings: Quake-Proof or Not?, N.Y. Times, Jan. column connection cost approximately that may or may not occur during their
16, 1995, https://nyti.ms/2K9jO0Q; see $25,000 to fix. A single building can con- ownership period. Neither the threat of
also Kathryn Wexler, Northridge Quake’s tain hundreds of such connections, so the liability nor any market force that values
Costly Legacy, Wash. Post, Jan. 18, 1996, fix could cost more than $1 million per safer buildings has yet proven to be suffi-
https://wapo.st/2GChnTO; Greg Brouwer, building. Secondly, building codes gener- cient motive for that voluntary expense in
Cracked!, L.A. Wkly., Sept. 1, 1999, https:// ally do not act retroactively. The hundreds the absence of legal requirement.
bit.ly/2KgFwAk. of buildings in question complied with Another issue may be the appearance
the code at the time they were built, of low probability. Some of the authors of
Why So Little Has Been Done so owners of existing buildings are not the studies alluded to here write about the
For several reasons, most of these build- required to remediate these connections. risk in 2,500-year shaking (approximately
ings are still with us. The cost to remediate Owners would have to voluntarily spend 50 percent greater than design-level
Published in Probate & Property, Volume 33, No 6 © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
38 November/December 2019
shaking). Such a rare event may seem safe ordinances akin to previous mandatory grounded the aircraft series until further
to ignore. But that sense of safety van- retrofit requirements for unreinforced notice, leaving the 391 remaining deliv-
ishes when one takes a societal viewpoint masonry bearing wall buildings, tilt-up ered aircraft suddenly inoperable and, for
of risk: the risk to one building may be concrete, soft-story woodframe, and oth- the foreseeable future, worthless. Law-
low, but a single large earthquake on any ers. Shortly after the 1994 Northridge suits came quickly from families of crash
of the many long, active faults in Califor- earthquake, the City of Los Angeles recog- victims and others. Sinéad Baker, Boeing
nia can affect millions of buildings, and nized that “the damage to these welded 737 Max: List of Lawsuits and Investigations
there are many such faults. The sum of a steel moment frame buildings could Boeing, FAA Face, Business Insider (2019),
lot of small chances can be great. expose occupants of these buildings to a https://bit.ly/2OFiVTc.
A third issue is probably a combina- potential life-safety risk in future earth- The parallel to pre-Northridge welded
tion of natural inclination, constraints of quakes, and the City of Los Angeles steel moment-frame building seems
the engineering profession, and self-inter- must protect its population and prop- obvious: if only one of these readily iden-
est. Structural engineers of the authors’ erty and enforce the Building Code so as tifiable buildings collapses for predictable
acquaintance do not like to sound alarm- to provide effective protection to all its reasons in an inevitable earthquake, the
ist, and many depend for their living citizens.” Los Angeles, Cal., Ordinance rest of the buildings could quickly change
on being able to design lighter, less- 170406, https://bit.ly/2LSM7E6. The from assets to severe liabilities to their
expensive buildings that nonetheless city required inspection within 180 days owners, investors, designers, tenants,
comply with the building codes—engi- of 280 nonresidential steel-frame build- local, state, and federal officials, taxing
neers sometimes refer to that process as ings in a strong-shaken part of the city authorities, people who trade with dis-
value engineering. Structural engineers and required repair of damaged welded placed occupants, or otherwise indirectly
work primarily at the direction of the moment connections. Id. rely on them. The liability differences
owner, who is bound to make his new Twenty-four years after the Northridge between buildings and aircraft might not
building meet only the requirements of earthquake and 29 years after the Loma be great.
the building code, and who (with few Prieta earthquake, a group of experts
exceptions) has no explicit legal obliga- led by the Applied Technology Coun- Potential for Legal Liability: Both
tion to strengthen an existing building. cil advised the City of San Francisco to Criminal and Civil
To voluntarily expend millions of dol- develop inspection, evaluation, and repair Under tort law, foreseeability must be
lars strengthening an existing building provisions for older steel-frame build- proven by a preponderance of the evi-
can place the owner at a financial dis- ings. Applied Technology Council, Tall dence demonstrating that a party’s action
advantage relative to his neighbors. The Buildings Safety Strategy (2018), http:// or inaction could reasonably result in
engineer who urges such an expense runs onesanfrancisco.org/esip. the injury at issue in the case. In most
a substantial risk of losing a client. And In 2018, the California legislature cases, the decision about whether an
after all, the risk of any given occupant passed a bill that would have required action or inaction was negligent is consid-
dying in a high-rise collapse is low, much local jurisdictions to create an inventory ered a question of fact to be determined
lower than other leading causes of death of potentially hazardous older steel-frame by a trial jury of six to 12 ordinary citi-
in the United States. buildings (among other unacceptably zens. Normally, the plaintiff must be
FEMA doesn’t fix the problem because hazardous building types). But Governor able to show that the injury was reason-
FEMA doesn’t own the problem, at least Brown vetoed the bill for funding and ably predictable to a person of ordinary
until a disaster occurs. Although it sup- schedule reasons, as opposed to objec- intelligence and prudence. But people
ported the study that quantified the tions regarding the hazardous nature of and organizations who hold themselves
problem, FEMA’s mission does not yet the buildings. out as experts are held to a higher stan-
include mandating costly building ret- dard of what they should have foreseen.
rofits. Structural engineers have strong The Boeing 737 MAX as a Landlords and all those who invite oth-
reasons not to press for a solution. Cautionary Tale ers to visit or occupy premises, including
Because few others in authority even What will happen when one of these employers and tenants, have long been
know that the problem exists, it has not buildings collapses? The history of the held to a standard that requires them to
yet been seriously addressed. But the Boeing 737 MAX might provide a clue. not only warn of known hazards, but also
problem of thousands of older steel build- The Boeing 737 MAX is a narrow-body to fix the hazard. As the Association of
ings with brittle welds is not going away. aircraft series designed and produced Bay Area Governments points out,
High-rise buildings may in a sense be by Boeing Commercial Airplanes as the “[d]evelopers may be liable for earth-
designed for a life of 50 years, but they fourth generation of the Boeing 737. It quake-related damages and injuries
are likely to stand for centuries and to be entered service in May 2017. Two fatal under theories of implied warranty or
there when, not if, a strong earthquake crashes of 737 MAX 8 aircraft in Octo- strict liability. Designing a building to
occurs nearby. ber 2018 and March 2019 killed a total meet code standards does not act as a
A few cities are dealing with these of 346 passengers and crew, after which shield to liability. However, not meeting
buildings. Some have enacted new regulatory authorities around the world earthquake-related codes will surely result
Published in Probate & Property, Volume 33, No 6 © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
November/December 2019
39By delaying remediation efforts, owners
are externalizing their risk on tenants, future
owners, and the people who live, work,
walk by, or visit nearby buildings onto which
these buildings could collapse.
in being judged negligent.” Ass’n of Bay died. Luis Ferré-Sadurni, After Limo Crash to a few other well-known and com-
Area Gov’ts, Summary Information, Busi- that Killed 20, a Call for More Regulation, mon building types. Considering older
ness Liability for Earthquake Hazards & N. Y. Times, Oct. 14, 2018, https://nyti. steel-frame buildings, multiple highly
Losses (2004). ms/2Om6tau. reputable studies show that large but
By delaying remediation efforts, own- Architects, engineers, developers, gov- not-exceedingly-rare earthquakes can
ers are externalizing their risk on tenants, ernment officials, and all others involved realistically cause several such build-
future owners, and the people who live, in decisions about whether to repair a ings to collapse. Engineers, FEMA, and
work, walk by, or visit nearby buildings known life-safety hazard should know local officials in some cities have been
onto which these buildings could col- that legal liability may involve a jury of aware of and concerned about the
lapse. By delaying remediation, owners ordinary people evaluating their legal problem since at least 1994. Building
and all others potentially responsible for culpability for failure to take foreseeable owners and the general public have been
inviting, authorizing, or requiring poten- natural hazards into account when mak- exposed to coverage in the popular press
tial victims to occupy or to be exposed ing a decision that later resulted in harm explaining how the 1994 Northridge
to the hazards created by these unsafe or death. As has already been shown, earthquake heavily damaged older steel-
structures are inviting liability. They may engineers, local, state, and federal offi- frame buildings, showing them to be far
even face criminal charges in the event of cials have been aware of the problem for more dangerous than their designers
serious injury or death arguably resulting decades. With extensive coverage in the had thought, and that future large earth-
from failure to repair a known hazard. local, national, print, and electronic press, quakes pose a particular life-safety threat
Such was the case in 2006 when the pri- building owners by now can be reason- to these buildings. Such earthquakes are
vate owner of the Ka Loko Dam in Kauai, ably expected to know that earthquakes coming, quite possibly within the next
Hawaii, was indicted for common law pose an unexpectedly high life-safety few decades, whether we do anything
murder for his actions and failure to act threat to these buildings. about it or not. We have already lost
before that reservoir breached, killing Fundamentally, government exists more than 20 years of advanced warning.
seven people. The owner was not alleged to prevent us from harming each other. Shall we continue to ignore the prob-
to have the criminal intent usually When businesses, employers, engineers, lem, in the hope that it doesn’t really exist
required to support a murder charge, but and architects combine with govern- or that somebody else will solve it? Even
his actions were considered sufficiently ment and collectively fail in their duty skeptical engineers find it realistic that a
reckless as to provide the requisite intent to provide safe places for people to live single large earthquake could cause sev-
to support an indictment for murder. In and work, the people who are harmed eral of these buildings to collapse. The
2013, he was permitted to plead guilty to may well seek to share their misery with collapse of only one or two could kill
a lesser charge of reckless endangerment, everyone who contributed to their mis- thousands of people and cause public
after paying substantial compensation to fortune. Decision-makers who ignore the confidence in these buildings to evapo-
the victims’ families. Tim Sakahara, James very real threat of unsafe buildings may rate. Like the crash of two Boeing 737
Pflueger Enters Plea Deal in Fatal Dam be called upon to answer for their actions MAX aircraft, the remaining stock would
Break, Hawaii News Now, July 18, 2013, or inaction. For more information about flip from financial assets into severe lia-
https://bit.ly/2GEbOnA. civil and criminal liability related to bilities for a vast web of stakeholders. To
The Ka Loko case is not an anomaly. natural hazards, see Edward Thomas, fix these buildings will be very expensive.
There has been widespread media atten- Natural Hazard Disaster Risk Reduction But if we do not do so before the earth-
tion focusing on an increasing level of as an Element of Resilience: Considerations quake, just wait until the bill comes due
criminal prosecutions in situations as about Insurance and Litigation (2019), for not fixing them. That bill could arrive
diverse as selling contaminated peanuts, https://bit.ly/2kxpzgo. tomorrow and, one way or another, most
istockphoto
violating mine safety laws, and most of us will be stuck with part of the tab. n
recently operating an allegedly unsafe Conclusion
limousine in a situation where 20 people Much of what has been said here applies
Published in Probate & Property, Volume 33, No 6 © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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