• Habitability: How Mold Fits Into The Bigger Picture
  • May 5, 2015 | Author: Patrick S. Schoenburg
  • Law Firm: Wood, Smith, Henning & Berman LLP - Fresno Office
  • Mold claims are generally property based. Plaintiffs allege that their exposure is the result of inadequate construction or maintenance of a structure, causing water intrusion into the building envelope and the subsequent growth of fungi. The same defective construction or maintenance of a building resulting in mold can also lead to exposure to other potentially harmful substances, including lead paint, asbestos, dust mites, carbon monoxide and bacteria.

    As a result, there have been a growing number of “habitability” lawsuits, generally by individuals or groups of tenants. These claims are made against landlords, management companies and the contractors they retain to repair and maintain rental properties. From the perspective of plaintiffs’ counsel, taking this approach has several advantages to filing lawsuits focused solely on mold.

    When a case involves exposure to multiple substances, a single adverse finding on causation is not fatal. Defendants faced with claims involving multiple causes face a more difficult (and expensive) task, at both the pre-trial and trial phases of litigation. A jury may be persuaded that simply living with these problems is worthy of awarding damages or that the combination of these exposures has a synergistic effect. In many States, landlords are held to a higher standard of care, tenants face a lower burden of proof and may be entitled to statutory damages or an award for loss of use when making habitability claims.

    In addressing this trend, property owners and their insurers and counsel need to adopt some of the same tactics we have recommended in responding to mold claims. A well documented maintenance and repair program is money better spent than defense costs once a claim makes it to Court. When issues do arise, use qualified consultants and contractors. The “gold standard” in environmental consulting in this context are individuals who are certified in Industrial Hygiene by the American Board of Industrial Hygiene. These individuals are designated by the acronym “CIH.” Once a lawsuit is filed, counsel who are familiar with all facets of these claims must be retained, e.g., construction and maintenance, toxic torts, personal injury and mold/water damage claims.

    The difficulty that plaintiffs have faced in proving causation in mold personal injury lawsuits has resulted in a decrease in the number of actions focused solely on mold exposure. But the rise of habitability claims shows that when one door closes, another opens. For property owners, landlords and managers who feel a diminishing threat due to mold claims, habitability issues can create a more widespread problem.