Miami-Dade County

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

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. Munilla Construction Management Provided by National Transportation Safety Board

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.

Tough cases

South Florida, with its voracious real estate market, is a hotbed of construction — and construction accidents.

Last month, a construction manager was killed during the apparently flawed demolition of a Miami Beach condo building. The Miami Beach Police Department is investigating.

Given past history, the odds of a criminal case over the FIU bridge seem slim: Miami-Dade prosecutors have declined to bring cases in other notable construction accidents, including over the four construction workers killed in a Miami Dade College parking garage collapse in 2012, a fatal crane accident near downtown Miami in 2008 and a concrete-pouring accident that left three workers dead at a Bal Harbour condo project in 2006.

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State attorney Katherine Fernández Rundle said criminal charges were “improbable” over the FIU bridge disaster. Her comments came just a day after the deadly collapse and well before investigators had a chance to gather evidence. C.M. GUERRERO

When Miami prosecutors have gone after contractors, they’ve often failed to win a conviction.

Prosecutors did bring a case against outdoor sign company Eller Media, which along with an electrician was charged with manslaughter in the electrocution of a 12-year-old boy at one of its bus shelters in 1998. The state alleged that jury-rigged electrical wiring amounted to gross negligence and led to the boy’s death.

But a jury acquitted the company and the electrician after defense attorneys, including Black, argued that a lightning strike could have killed the boy.

More recently, prosecutors charged a Miami man, Jose Navarro, with manslaughter in a backhoe accident. He was helping a friend dig a backyard pond; the state alleged Navarro fatally struck his friend with the backhoe’s bucket, not during the work — but during what was in essence impromptu horseplay.

But jurors last year decided on a lesser charge of misdemeanor culpable negligence — and Navarro got 60 days in jail.

Across the nation, there have been only a handful of criminal convictions in construction and industrial accidents.

In 2007, Massachusetts prosecutors charged a company with manslaughter for a tunnel collapse that killed a woman under an avalanche of concrete. Investigators said the company knew that the epoxy it marketed and sold for the project couldn’t handle the weight of the ceiling panels that fell. The charge was dropped when the company paid a $16 million fine.

In another high-profile case, state prosecutors in Philadelphia secured a manslaughter conviction and prison sentence for a contractor who ignored safety advice and cut costs in the demolition of a building that toppled on an adjacent thrift store, killing six people.

Many more accidents have ended with no criminal charges. Over a decade ago, an interstate bridge in Minnesota collapsed, killing 13 people. The NTSB ruled a design flaw and poor inspections led to the accident, but no one was prosecuted.

The list of firms that could face criminal and civil liability over the FIU bridge disaster is long.

The $14.3 million bridge was designed by FIGG, built by MCM and supervised by FIU officials. Two independent engineering firms were brought in to provide oversight: Bolton Perez and Associates, which inspected the bridge, and Louis Berger, which approved design plans and structural calculations.

FDOT also played an important role, although the department has repeatedly pointed out that FIU served as the project’s primary oversight agency.

Michael Hernández, a spokesman for MCM, said the Miami-based company is working with the NTSB and was restricted from commenting.

“Our prayers continue to be with the victims of this tragedy and the entire South Florida community,” he said.

Madeline Baro, a spokeswoman for FIU, declined to comment beyond providing a previously issued statement that said the university is cooperating with NTSB.

Representatives of FIGG, Bolton Perez and Louis Berger did not respond to requests for comments.

Sixteen wrongful-death and injury lawsuits have already been filed over the bridge collapse.

Other investigations are playing out, too, including one by the Occupational Safety and Health Administration, a federal agency that can penalize employers for worker-safety violations. The Florida Board of Professional Engineers said it could not disclose whether it was investigating the conduct of FIGG or Pate, who has been a licensed engineer in the state since 1984.

A report released by the NTSB last week did not reach a conclusion as to what caused the disaster. But it showed that investigators are beginning to rule out construction errors like a poor concrete mix or steel bars being laid improperly.

“If all the materials and dimensions are found to meet the [technical standards] and design plan requirements, the probability is high that the cause of the failure is related to design,” said Ralph Verrastro, a bridge engineer based in Naples.

The Herald reported in June that a seeming error in the bridge’s structural calculations may have doomed it to fail.

The error was identified by structural engineers consulted by the newspaper who said it would have led to the kind of cracking seen in the photos. The flaw involved a critical support at the bridge’s north end that was not designed to withstand the forces placed upon it. That support is what is believed to have failed on March 15 when workers attempted to tighten rods running through the bridge, possibly causing the span to come crashing down onto traffic.

Nicholas Nehamas: 305-376-3745, @NickNehamas