Most of us should be grateful that hurricane Patricia turned out to be only a minor inconvenience. But a few lucky lawyers should make Patricia a top entry on their Thanksgiving dinner list of blessings. After all, Patricia has given us the bizarre gift of the chance to bicker and armchair quarterback about who is responsible for the zero-death car smashup in our neighboring city of Dallas. I encourage you to take a gander.
So what caused the collapse of the Renaissance complex parking garage? And who’s at fault? There are the usual suspects. God is usually the fall guy when there’s no rum in the hurricane, but when damage is only due to inclement weather, lawyers just blame the host.
Photos of the parking garage indicate that someone dumped a giant heap of fill dirt on the top level—easily thirty tons of it—for some sort of construction project. That’s well beyond the weight a typical parking garage is designed to hold within such a small section. In all likelihood, the heap of fill dirt in a concentrated area had already created an unacceptable risk of structural failure. If that’s not bad enough, the fill dirt’s weight increased drastically when it absorbed, oh, a day’s worth of torrential downpours.
That’s not an act of God, that’s just the News of the Weird version of a human disaster. So this could fall squarely on the shoulders of the garage owner or whichever contractor was doing the construction you can see in the photos. I’d imagine that the garage owner is contractually indemnified by the contractor, but that’s between those two and doesn’t limit who the car owners are allowed to sue. You should expect the garage owner and contractor to be sued by, pretty much, everyone.
The garage owner and contractor may have a defense, though. In Austin v. Kroger (June, 2015), the Texas Supreme Court revived an old doctrine that can exonerate defendants in this type of case. If you knew a giant heap of dirt was sitting on the top deck of your parking garage, would you park under that heap? (Hint: re-read the above if you’re unsure how to answer.) If it’s reasonable to think the car owners knew about the dirt and weren’t led to believe the situation was safe, maybe it’s their own fault that their cars got crushed. On the other hand, you can’t expect a guy who parks in his assigned spot on the first level to know about a giant heap of dirt on an upper level he doesn’t use.
The garage owner or contractor might also have protected themselves by hiring an engineer to evaluate the tolerances of the garage—perhaps making it the engineer’s fault if he got the evaluation wrong. And if for some reason the garage was designed to hold that much weight on a small section, the original builder could be liable.
But no matter who wins or loses, one thing is certain: attorneys somewhere are going to get paid. What’s the lesson you can take from this? Regardless of who is liable in the garage collapse, everyone (except the attorneys) will want a do-over. So, take a few pointers:
- Do your best to make situations like this someone else’s problem:
- Carry insurance;
- Require the businesses you work with to carry insurance;
- Use your insurance; and
- Have your attorney address liability and attorney fees in your contracts.
- Be aware—don’t go on autopilot— and diligently respond to unusual circumstances.
- There are often unexpected reasons to be thankful—attorneys are people, too.