Property owners and managers: take prompt action repairing office and retail tenant problems
June, 2006
On May 16, 2006, in one of very few mold exposure cases to go to jury verdict in Washington, a Thurston County jury rendered a verdict in favor of our clients, a commercial property owner and manager. The plaintiffs, who were employed by the tenant of our clients, alleged significant personal injuries. After hearing testimony from experts and fact witness for over two weeks the Judge instructed the jury that our clients would be held to a much broader duty of care than what has historically applied to Washington property owners in premises liability cases. The Judge decided that a "forseeability standard" would apply - meaning the plaintiffs were able to take their case to the jury and argue the owner and property manager should have anticipated that mold would be found in the building, based on nothing more than a fairly typical history of roof leaks on a very common flat-roofed concrete tilt-up building. The challenge to Bullivant's defense team was that the plaintiffs, who were employed by a health care organization, appeared to have some fairly significant ailments, which they argued were a result of exposure to mold within the building.
The plaintiffs worked in the building during the latter half of the 1990s. During the time the plaintiffs worked in the building there were sporadic roof leaks. Despite the fact that the property owner/manager had an admirable history of prompt and timely roof maintenance and repair, the plaintiffs argued our clients breached their obligations by failing to find the source of roof leaks. Specifically, the plaintiffs argued that it was likely the water leaks would lead to water damage, which would in turn lead to the growth of "dangerous" mold, "inevitably" leading to personal injuries from mold exposure. According to the plaintiffs, our clients would only have met their obligations if they replaced the roof upon discovery of the first few leaks, and confirmed there was no mold in the building by conducting a full air quality assessment.
Ordinarily, a property owner is liable for an invitee's physical harm caused by a land condition only if: (a) the owner knows, or by the exercise of reasonable care, would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) the owner should expect they will not discover or realize the danger, or will fail to protect themselves against it, and (c) the owner fails to exercise reasonable care to protect them against the danger.
Under some circumstances, in cases involving self-service establishments, such as large box hardware stores, the claimant is not required to show actual or constructive notice of a dangerous condition, but need only show that the dangerous condition is continuous or inherent in the nature of the business or mode of operation. Though no Washington court has previously extended this exception beyond the self-service setting, the Judge in this case decided to extend the "forseeability standard" to a building and tenancy that is not only normal, but far from "inherently dangerous." The court therefore instructed the jury that the plaintiffs were only required to show that the "dangerous condition" - mold - was foreseeable as a result of historic roof leaks.
Thankfully, the jury very quickly and unanimously decided the property owner/manager met its obligations by promptly and reasonably addressing the roof leaks. Although the verdict was simply "for the defense," informal comments by the jurors after the verdict was read suggest there are still serious risks of substantial verdicts in favor of plaintiffs in mold cases when the plaintiffs are sympathetic and can show they suffer from some ailments arguably related to mold exposure.
Property owners should be aware that plaintiffs' attorneys are making efforts to extend the self-service exception to other kinds of properties in an effort to relieve themselves of the burden to present evidence of notice, particular in the arena of "toxic tort" exposure, including mold. The outcome in this case will hopefully discourage future attempts by plaintiffs' attorneys to hang their hats on the issue of foreseeability. More importantly, the verdict shows that despite attempts by plaintiffs' attorneys to muddy the water with regard to the duty owed by property owners, and to use fairly sympathetic plaintiffs as their foils, juries can and do respond favorably to and reward landlords for reasonable and prompt action in response to problems that may arise, such as leaks.
In our view, the court's interpretation of the property owner/manager's obligations could have meant that any property owner who experiences roof leaks would have to immediately replace the roof and possibly conduct a full-scale air quality assessment. Property owners and managers do not need to anticipate every conceivable ill that might befall their tenants or invitees by virtue of some invisible danger that might lie behind the walls of their building.
Yet, as it now stands, we believe property owners and managers who are responsible for maintaining typical office and retail tenancies, need to take prompt action to repair any problems brought to their attention, particularly when these problems are known to be harmful to human health.