Why Florida law may shield companies behind deadly FIU bridge from criminal charges

Why Florida law may shield companies behind deadly FIU bridge from criminal charges

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Engineers working for Florida International University saw gaping cracks open in their brand-new bridge.

Someone thought the damage was sufficiently ominous to take a series of pictures. But no one thought to share the photos with employees at the Florida Department of Transportation, which could have ordered the road closed and traffic diverted.

When the bridge collapsed two days later, on March 15, six people died.

In the judgment of independent engineering experts, ignoring the cracks — which ran like chasms through a crucial support at the north side of the bridge — amounted to professional misconduct.

Could it also have been a crime?

The answer may lie in a meeting that occurred the morning of the catastrophic collapse.

Records and recollections from the meeting could reveal who shot the photos, who viewed them, and who — if anyone — thought they were serious enough to warrant closing the state road known as Tamiami Trail. But FDOT has refused to disclose documents from the two-hour meeting, leading the Miami Herald to sue for their release in an ongoing case.

“They were looking at major damage. You should be thinking that the bridge could come down,” David Beck, a New Hampshire-based structural engineer, told the Herald after seeing photographs of the cracks released last week by federal authorities. “At that point, you stop. You put a hold on this thing.”

Whether the cracks should have led FIU and its contractors, FIGG Bridge Group and Munilla Construction Management, to ask for the road to be closed could matter a great deal in civil court, as victims and their families sue for damages. But building a criminal case such as manslaughter is another matter entirely.

That’s because of how favorably Florida law treats contractors after construction accidents, experts say. Under state statute, prosecutors have to show that defendants acted with “reckless disregard for human life” or had “a grossly careless disregard for the safety and welfare of the public.”

It’s a high burden of proof.

“There’s a big difference between civil negligence and criminal negligence,” said Miami defense attorney Roy Black, who helped win an acquittal nearly two decades ago in one of the last major cases in Miami-Dade County where criminal charges were brought over a construction accident. “You have to be hit in the face with the problem and have ignored it.”

An example of that: If someone involved in the project saw the cracks and urged that Tamiami Trail be shut down, but was blown off so as to avoid inconveniencing commuters.

“Prosecutors will want to know if and when concerns were raised — and if they were raised with the urgency that demanded immediate action,” said Steve Solow, the former chief of environmental crimes at the U.S. Department of Justice who now heads the white-collar crime division at the Washington, D.C., law firm Katten Muchin Rosenman.

Ed Seifert, an FDOT spokesman, said no department employees saw photos of the cracks until after the collapse. He did not respond when asked if the consultant who attended the morning meeting, Alfredo Reyna, had seen the photos, but said Reyna was not alerted to any “life-safety issues.”

For now, the Miami-Dade police homicide bureau is investigating the tragedy, while also awaiting the results of the National Transportation Safety Board’s conclusion on what caused the crash. The NTSB is the federal agency investigating why the bridge fell down

No one associated with the project would answer the Herald’s questions in any detail, citing the NTSB probe.

Miami-Dade State Attorney Katherine Fernández Rundle will ultimately decide whether to charge anyone — and she doesn’t seem likely to take risks in the courtroom, based on past statements.

The day after the tragedy, Fernández Rundle drew criticism for saying that criminal charges were “improbable.”

“The only cases, they are very challenging, they are super complex, they are very difficult to fit into a criminal container if you like,” Fernández Rundle told WFOR-CBS4 on March 16.

She soon walked back those comments, saying she was talking generally about cases involving construction accidents and that the evidence would dictate what happens with the criminal probe.

“If criminal charge are warranted, they will be filed,” she later said.

Now, some of that potential evidence is being made public.

A measuring stick shows the depth of a crack in the deck of the doomed FIU bridge. This photo was dated March 13, 2018, two days before the bridge collapsed, killing six.

Four photos showing major cracks were released last week by the NTSB. They are time-stamped March 13 or 14, shortly before the collapse. One crack appears to be three-and-a-half inches deep. Broken shards of concrete lie nearby. Superficial cracks in concrete are common. But these hardly seem minor.

“Any normal person seeing those pictures would say: ‘How could they not close the road?’ ” said Sen. Annette Taddeo, D-Miami, who sits on the state Senate’s transportation committee. “It seems negligent, to say the least.”

The cracks were likely the result of a design flaw in the bridge and should have served as an immediate warning to FIGG and MCM, according to engineering experts consulted by the Herald.

“For a structural engineer to look at this and say it is not a safety hazard, that’s insane,” said one expert, Linwood Howell.

But that’s exactly what the project’s chief engineer, W. Denney Pate of FIGG, did.

When Pate reported the cracks to an FDOT official in a voice message two days before the bridge fell, he dismissed any safety concerns.

“From a safety perspective we don’t see that there’s any issue there so we’re not concerned about it,” said Pate, adding that repairs would still be needed.

The bridge had been raised into place with great fanfare on March 10, as university officials and local politicians looked on.

Admitting the bridge was flawed would have meant closing Tamiami Trail — surely angering commuters — and delaying a high-profile FIU project that was already behind schedule.

Pate did not return a phone message seeking comment.

After the NTSB finishes its probe, Miami-Dade’s homicide bureau and prosecutors will consult with outside experts to examine how engineers respond to cracks in bridges around the country.

“Prosecutors are going to want to talk to experts and learn the industry standards,” said Solow, the former Justice Department lawyer.

How We Can Help
If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed criminal defense attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at www.FerrisLawFirm.com.
Republished by the Law Office of Scott A. Ferris, P.A.