Defending Landlords, Property Owners, Property Managers in Toxic Tort Litigation Claims:
- * Lead
- * Carbon Monoxide
- * Asbestos
- * Mold
“Toxic tort” and mold litigation involves bodily injury and property damage claims relating to exposure to some alleged toxic substance, such as lead, carbon monoxide, asbestos, mold and any other claimed hazardous material. The litigation of these claims typically involve occupational or environmental exposures and causes of action alleging the breach of the warranty of habitability, negligence, private and public nuisance, breach of contract, breach of various civil code statutes, unfair business practices, fraud, or negligent infliction of emotional distress. In many cases, the plaintiffs in these suits attempt to seek punitive damages.
Lead was commonly used in home and apartment building construction up until the mid-1980’s. If ingested, lead is poisonous to animals and humans, damaging the nervous system and causing brain disorders. Excessive lead also causes blood disorders and is a neurotoxin that accumulates both in soft tissues and the bones. Recently, a number of federal and state laws and regulations have been enacted that impose liability to property owners, contractors, painters or maintenance workers. It is presumed that paint on a home built before 1978 is lead-based. Any disturbance of the paint, can result in a lead exposure. When painting or remodeling, the use of lead-safe work practices and proper containment is expected. Lead disclosures are to be provided to potential tenants and buyers of any building built prior to 1978. The following table provides a list of State and Federal Regulations:
Carbon monoxide (CO) is a colorless, odorless, and tasteless gas that is slightly less dense than air. It is toxic to humans when encountered in concentrations above about 35ppm and is produced from the partial oxidation of carbon- containing compounds; it forms when there is not enough oxygen to produce carbon dioxide (CO2), such as when operating a stove or an internal combustion engine in an enclosed space. The symptoms of CO poisoning are similar to the flue. Nausea, vomiting, confusion, sore muscles, headache, dizziness, light headedness, loss of balance, etc. If there is enough CO it can prevent the oxygen from getting into the body causing tissue damage or death.
Senate Bill SB183 also known as the “Carbon Monoxide Poisoning Prevention Act” requires that a carbon monoxide (CO) safety device be installed in all dwelling units intended for human occupancy. All single-family homes in California with an attached garage or a fossil fuel source are to have a carbon monoxide alarm or detector installed. The effective date for this requirement was July 1, 2011. Owners of multi-family properties that rent or lease apartments or condos in California are required to comply with the law by January 1, 2013. All hotels and motels in California are required to have a CO alarm or detector by January 1, 2016.
Asbestos is a set of six naturally occurring silicate minerals which all have in common their long, thin fibrous crystals with each visible fiber composed of millions of microscopic “fibrils” which if released can cause tissue injury or death. It is now known that prolonged inhalation of asbestos fibers can cause serious and fatal illnesses including malignant lung cancer, mesothelioma and asbestosis (a type of pneumoconiosis). By the beginning of the 20th century concerns were beginning to be raised, which escalated in severity during the 1920s and 1930s. By the 1980s and 1990s asbestos trade and use started to become banned outright, phased out, or heavily restricted in an increasing number of countries.
The severity of asbestos-related diseases, the material’s extremely widespread use in many areas of life, its continuing long-term use after harmful health effects were known or suspected, and fact that asbestos-related diseases can emerge decades after exposure ceases, have resulted in asbestos litigation becoming the longest, most expensive mass tort in U.S. history. Asbestos-related liability also remains an ongoing concern for many manufacturers, insurers and retailers.
Mold is a fungus that grows in the form of multicellular filaments called hyphae. Molds cause biodegradation of natural materials, which can be unwanted when it becomes food spoilage or damage to property. Some diseases of animals and humans can be caused by certain molds: disease may result from allergic sensitivity to mold spores, from growth of pathogenic molds within the body, or from the effects of ingested or inhaled toxic compounds (mycotoxins) produced by molds. For molds to grow and reproduce, they need only a food source—any organic matter, such as leaves, wood, or paper—and moisture. Because molds grow by digesting organic material, they gradually destroy whatever they grow on. Molds release tiny spores and even smaller particles that travel through the air. Everyone inhales some mold every day without apparent harm; however, molds can cause inflammation, allergy, or infection.
“Mold” has never been explicitly listed as a habitability issue for California rental property in code or regulation, yet plaintiffs’ lawyers often file lawsuits alleging breach of habitability based on mold and moisture alleged exposures. The 2001 Toxic Mold Protection Act (SB 732, Ortiz) directed the California Department of Health Services (now Department of Public Health or CDPH) to establish various programs to develop guidelines for mold assessment, clean-up, and disclosure in residences. However, these components were dependent on the Department establishing health-based, permissible exposure limits (or PELs). In April 2005, CDPH released its “Report to the California Legislature on Implementation of the Toxic Mold Protection Act of 2001,” of which one of the key findings was, “After considerable research into this question, [CDPH] staff has determined that sound, science-based PELs [health-based standards] for indoor molds cannot be established at this time.”
It continues “.. [CDPH] agrees with other building and health professionals that indoor dampness, water intrusion, or fungal growth should always be eliminated in a safe and efficient manner.”
This view was reaffirmed in the Department’s July 2008 update. The 2005 report and 2008 update are available on-line:
It is worth noting that after passage of SB 732 in 2001, insurance providers began including notification to policy holders that damage caused by mold may be limited or excluded from their coverage.
Recently, the Department released a “Statement on Building Dampness, Mold, and Health,” which states, “CDPH has concluded that the presence of water damage, dampness, visible mold, or mold odor in schools, workplaces, residences, and other indoor environments is unhealthy. We recommend against measuring indoor microorganisms or using the presence of specific microorganisms to determine the level of health hazard or the need for urgent remediation. Rather, we strongly recommend addressing water damage, dampness, visible mold, and mold odor by (a) identification and correction of the source of water that may allow microbial growth or contribute to other problems, (b) the rapid drying or removal of damp materials, and (c) the cleaning or removal of mold and moldy materials, as rapidly and safely as possible, to protect the health and well-being of building occupants, especially children.”
CDPH’s position is consistent with the current consensus among scientists and medical experts (cited in the Statement) that:
(i) Visible water damage, damp materials, visible mold, and mold odor indicate an increased risk of respiratory disease;
(ii) The traditional methods used to measure mold exposure do not reliably predict health risks;
(iii) The differentiation of some molds (such as Stachybotrys species) as “toxic molds” that are especially hazardous to healthy individuals is not justified;
(iv) The most important steps in dealing with indoor dampness or mold are to identify the source of moisture and to take the necessary steps to make repairs to stop them.
Why Hire Ghantous Law Corporation?
We regularly advise landlords, property owners, property management, and commercial tenants in various landlord tenant law disputes including lease disputes, rent ordinance compliance, breach of habitability claims, mold litigation, toxic-tort matters, and fair housing act claims in all Northern California jurisdictions. Having a proactive approach towards the elimination of claims, with a reasoned game plan for the effective resolution of housing complaints, before litigation ever commences is critical. We work with our clients to implement procedures to protect against suits of this nature while counseling owners and property managers during on-going tenant disputes. Our industry knowledge, toxic tort litigation expertise, and understanding of our clients’ unique business needs enable us to assist clients in making informed decisions when addressing and defending these claims.