Legal Issues and Guidelines

Introduction
Nature of lawsuits
Examples of sick building cases
Preventing legal cases

Introduction

Usually sick building cases become legal cases when issues are not properly investigated and fixed. However, it has often been difficult for those affected to demonstrate a direct link between exposure to indoor air contaminants and illness. This is because building-related symptoms (also called sick building syndrome) are nonspecific, which makes proving or disproving legal causation much more difficult. In addition, the measured levels of indoor air pollutants are usually lower than exposure limits set to prevent health effects in workers exposed to those chemicals. However, increasingly often these health claims related to poor indoor air are being taken seriously. In a landmark case in 1999, the Ohio State Supreme Court awarded an employee $400,000 from her employer after she became ill from the vapors given off by the new office carpet.¹

The number of cases related to indoor air quality (IAQ) is rising substantially and the amount of damages sought is increasing.² Two cases involving indoor air pollution have resulted in settlements of $25.9 million and $35 million. One reason for these lawsuits is that there are very few laws and regulations pertaining to the sick building aspects of IAQ. As a result, more and more lawsuits are being filed by building occupants claiming health problems because of poor indoor air quality. The economic consequences of poor indoor air, whether real or perceived, are substantial. These include evacuations, investigations, lost productivity, lawsuits, and workers' compensation claims.³

It can cost a lot to clean up buildings that have indoor air problems. If the contaminant is mold, lead or asbestos, there may need to be special procedures in place to protect cleanup workers as well as building occupants from further exposure. In some cases, the cost to clean up the contaminated building has been so expensive that the building has been torn down.

Since 1985, most insurance companies have begun writing their commercial general liability policies in a way that excludes many IAQ-related claims in order to prevent having to pay the massive costs involved in cleaning up contaminated buildings. Pollution exclusions have given insurance companies a legal tool to limit their liability in many environmental cases involving IAQ as well as lead paint, asbestos, and urea formaldehyde foam insulation. This has become especially true as the link between common molds and illnesses has become more apparent. Since many insurance companies are less likely to pay, this is opening the door to waves of lawsuits.

Nature of the Lawsuits

There are many different kinds of lawsuits that occur because of building-related symptoms. For example, workers will file lawsuits against their employer and maybe the building owner. Building tenants have brought lawsuits against their landlords or building owners. Building owners have filed lawsuits against architects, engineers, contractors, heating, ventilating and air-conditioing (HVAC) manufacturers, interior designers, carpet manufacturers, pesticide applicators, and maintenance personnel. Other lawsuits regarding indoor air quality may include defective design or improper installation of building materials or ventilation systems, negligence in maintenance or application of chemicals, and failure to warn about or failure to disclose potential indoor air quality problems.⁴ Here are some specific claims made in lawsuits:

• Some lawsuits are negligence claims. These may cite violations of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) ventilation standards or local building codes. The point of these lawsuits is to show lack of due care on the part of someone like a building owner, landlord, or construction company. For example, in 1999 and 2000 at a technical college in Wisconsin, seven staffers were diagnosed with sarcoidosis, which is a potentially fatal lung disease. In addition, the school has received hundreds of complaints of sore eyes, dizziness, and nausea in recent years. The school has spent about $2.5 million repairing and replacing ventilating equipment since 1992 trying to solve the problems. The school sued the architects for $750,000 saying that the ventilation system was improperly designed. They accepted a $500,000 settlement.⁵

• The basis for one case in Florida was a breach of contract. In this case, Martin County, Florida filed suit against the construction company that built one of its buildings because of severe mold and moisture problems. These problems became apparent shortly after the building became occupied. Employees began having health and comfort concerns. About 60 percent of the exterior walls had visible mold. Though attempts were made to repair the leaks, they were unsuccessful, so Martin County filed suit against the contractor for failing to adequately supervise construction of the building. The construction company argued that the case should be thrown out because there were no actual damages-nobody had gotten sick from the mold. Martin County won because they were able to show that there were many defects in the construction of the building, such as improperly installed windows. The jury awarded them $11.55 million and the verdict was upheld on appeal. Originally, the county had also filed claims against the project architect and the concrete and masonry construction company but settled those claims out of court for $2.75 million.⁶

• In a few instances, sick building cases have the potential to be covered under product liability law even though historically commercial and residential buildings have not been considered "products" for purposes of determining liability.⁶ The products at issue are almost as numerous as the types of personal injuries that could be alleged. These products could possibly include things like HVAC systems, windows, and even roofs. Because laws differ in every state, the lawyers for defendants would need to check state statutes to see if the building (or improvements to it) may be legally characterized as a product in terms of a negligence or product liability suit in the case of a "sick building." However, even if the building is considered to be a product, sometimes there are time limitations.⁶

• Several lawsuits have been filed under the Americans with Disabilities Act by people with multiple chemical sensitivity (MCS) seeking "reasonable accommodations" from employers and building owners from chemicals in the workplace.³

• The Supreme Court of California recently held that under certain conditions damages could be awarded when plaintiffs develop fears of contracting cancer following a toxic exposure, even in the absence of any apparent health problems.⁷

Examples of Sick Building Legal Cases

• A landmark liability case was litigated in 1990 in which two building tenants alleged loss of worker productivity and business losses due to renovations on another floor. The designers, engineers, construction contractors, equipment manufacturers, building operators, and others were subject to liability. This case was settled for an undisclosed sum.⁸

• In California, a software company moved into a new, plush building. A few weeks after moving in, two accountants suddenly began having trouble breathing. They began coughing, choking, and their eyes burned with tears rolling down their faces. Within two weeks, everybody in the office began feeling sick with headaches and other problems. The owner of the company complained to building management, who did nothing to correct the problem. Some people quit rather than continue to work in the conditions. It turned out that there was remodeling being done in another part of the building where they were using strong, solvent-based adhesives to seal holes in the air ducts. As a result, the ventilation system spread the vapors throughout the entire building. After fighting indoor air problems for 18 months, the software company finally moved out of that building into a new office where the owner of the software company hired a consultant to help him keep unhealthy material out of the space and also go over the ventilation system with a fine-tooth comb. He also filed a lawsuit against the previous building's owner, architects, contractors, and managers. They settled out of court for several million dollars.⁹

• In the 1992 DuPage County Courthouse case in Illinois, in which a brand new $53 million courthouse had to be evacuated because of health problems related to building-related symptoms, the architect and contractor were sued by the county for $4 million. In the end, however, the county received only $120,000 for minor repairs and the jury sided with the defendants, finding that the alleged problems were caused, primarily, by the county's negligent operation and maintenance of the ventilation system. This is just one of the cases that highlights the importance of addressing indoor air issues in all stages of building design, construction, and operation.

• Indoor mold growth has been the focus of a growing number of legal cases across the country. As a result, health problems and property damage caused by mold growing inside buildings are on the rise as one of the hottest areas in construction defect and toxic tort law.¹⁰ Consequently, negligence claims are being filed against building owners and managers for not maintaining the property; and against construction companies, architects, plumbers, roofers and waterproofers for defective design or workmanship. Here are some examples¹⁰:

  • In one case, the employees of a newspaper in California are suing the landlord for $10 million for failing to make repairs that allowed several types of mold to grow, which they claim caused lung and sinus infections.

  • In another California case, a condominium association is suing real estate developers, contractors and managers for personal injury and property damage caused by inadequate waterproofing that permitted toxic mold to grow.

  • In New York, 500 plaintiffs are suing the owners and managers of two apartment complexes for mold contamination.

  • In Illinois, parents of elementary school children are suing the school district for negligence for not taking care of flooding that resulted in mold.

  • In May 1999 in Tulare County California, county officials first found out about mold in the county courthouse in this small town. The mold problem began in the late 1980s during remodeling when the windows were not sealed correctly. When it rained, water seeped in, which led to the mold growth. One of the worst areas was in one judge's chambers where a softball-sized cluster of Stachybotrys was later found.¹¹ In March 2000, that judge sued the county claiming that Stachybotrys made her sick with rashes, headaches and other problems. Since then about 100 other employees have also filed a lawsuit against the county, alleging that exposure to the toxic mold in the courthouse made them sick. Several of these people have developed serious lung disease.
    
    The employees are seeking unspecified monetary damages and an injunction against the county that would force officials to close the courthouse and remove the mold. These employees are claiming that exposure to the toxic mold Stachybotrys has caused rashes, headaches, breathing problems and memory loss. An additional 150 workers have filed claims against the county and 52 county employees are still on medical leave, which has forced some departments to close early and some judges to work at times without clerks. The president of the Tulare County Deputy Attorneys Association said the county could have avoided these lawsuits if officials would have closed the courthouse and cleaned up the mold when it was first reported.¹²

Preventing Legal Cases

Because lawsuits are generally brought after an injury or loss, the legal system is not a good way to prevent building-related symptoms. The best way to prevent legal action is to avoid an "us versus them" attitude and work with building occupants to try to correct perceived problems. Experts in the field of IAQ agree that outraged employees can quickly become litigious employees. This can help avoid escalating the problem to legal action. Because legal action can be costly, it is important to recognize and take care of problems early so that they do not eventually end up in court. To not do anything is to risk liability.

Buildings need to be designed and constructed to minimize any moisture intrusion, which can lead to mold contamination. Molds are the reason for many personal-injury claims related to poor indoor air quality today. A ventilation system needs to be chosen that is appropriate and provides enough fresh air and proper humidity levels, given the size of the building, the activities that will go on in the building, the number of people in the building, and the climate in which the building is being constructed. Once built, building owners and operators need to have a preventive maintenance plan to keep the ventilation system in good working condition as well as to take care of any other possible indoor air concerns. Care should be taken when choosing furnishings to make sure they are as environmentally friendly and low-emitting as possible. Once occupied, building management should take a proactive position by appointing somebody to be in charge of indoor air quality?someone who makes regular inspections and quickly follows-up with any complaints. A lot of legal action could be avoided if problems had been properly addressed when they were small.

References

1. Conlin M, Carey J. The business case for better indoor air quality. Business Week. 2000;5:114

2. Hansen W. The IAQ challenge to facility management: Healthy buildings through affordable indoor air quality programmes. Facilities. 1995;13(12):12-20.

3. Slap AJ. The legal aspects of indoor air and health. Occupational Medicine: State of the Art Reviews. 1995;10(1):205-215.

4. Ross CS, Lockey JE. Indoor air quality medicolegal issues. J Allergy Clin Immunol. 1994;94:417-422.

5. Zaleski R. Feds' MATC probe zeros in on air woes. Capital Times (Madison, WI). June 28, 2000.

6. Tarry SL, Watson SL. Sick buildings pose a plethora of product liability issues. Texas Lawyer. November 13, 2000:44.

7. Ross HL. The behavioral effects of indoor air pollutants. Occupational Medicine: Stte of the Art Reviews. Philadelphia, Hanley and Belfus, Inc. 1995 Jan-Mar;10(1):147.

8. You can design a proactive indoor air quality program. Managing Office Technology. January 1997:25-28.

9. Griffin K. When your office calls in sick. Health. 1993 Jan/Feb:78-82.

10. United Press International. Toxic mold growing legal issue. October 5, 2000.

11. Johnson J. Toxic mold plagues Visalia courthouse. Los Angeles Times. August 6, 2000:26.

12. Ginis K. Tulare County worker file lawsuit over courthouse mold; 100 employee seek monetary damages, closure of building. The Fresno Bee. October 28, 2000:B1.