Toxic mold cases are a relatively new species of “toxic tort” lawsuit, with an increasing number of such claims being litigated each year. This article discusses the central elements of toxic mold cases brought against home builders and contractors.
Mold can be found virtually everywhere, including in most homes and other buildings. Of the thousands of types of different molds, a few have been positively identified as causing respiratory problems and other health issues. Some health experts claim that even more serious illnesses can also result from mold.
With a general lack of government standards and definitive scientific studies, many mold cases, including those against builders and contractors, come down to a “battle of the experts.” That is, both sides hire an expert on the health effects of mold to testify that the kind of mold found in the injured person’s building was or was not capable of causing the plaintiff’s injuries.
The lack of scientific consensus about mold does not mean that the plaintiff will always lose -- plenty of juries have been convinced by the plaintiff’s expert that mold was the underlying cause of the plaintiff’s ailments, and those juries have found the defendant liable.
Mold requires moisture to grow. Regardless of the type of theory a plaintiff uses to sue a contractor or builder for mold exposure, typically the underlying facts involve construction or repair of a building that allowed water to intrude and/or stagnate inside. This could be caused by any number of design or work flaws -- for example, failing to provide proper drainage in a basement, or leaving a leaky pipe in between floors.
The handful of state regulations that apply to mold (there are no federal regulations yet) are mostly directed at landlords. This means that mold cases brought against builders and contractors must fit the elements of more general legal theories. In particular, a plaintiff could sue a builder or contractor for mold exposure for breach of contract, breach of warranty and negligence.
A plaintiff bringing a breach of contract case would argue that the manner in which the builder or contractor constructed the building or performed repairs left the building susceptible to mold, and therefore breached the work contract.
Breach of contract damages are typically limited to out-of-pocket losses and lost value, and do not include compensation for “pain and suffering,” although those kinds of damages can be included for a negligence claim in the same case.
A breach of warranty legal theory is very similar to a breach of contract theory. A plaintiff bringing a breach of warranty case would argue that the builder or contractor’s work did not meet the standards required of an implied warranty, a specific warranty the builder or contractor made (“express warranty”), or a state law creating a warranty for new construction.
A breach of implied warranty theory would be based on the fact that a house should be fit for habitation when it is sold and that a house infested with mold is uninhabitable. An express warranty theory would also work if the builder or contractor guaranteed that the construction or work would be free from mold or similar defects. Finally, most states impose warranties on new home construction, guaranteeing those homes will be free from defects. A state's new construction warranty laws generally only apply for the first ten years after the home is built.
Under a negligence theory, the plaintiff must prove that the builder or contractor owed the plaintiff a duty to build or keep the house free from mold, that the builder or contractor failed to do so, and the plaintiff was injured by the resulting mold. A negligence theory is valuable to a plaintiff because pain and suffering damages are available in a successful claim. However, a negligence theory has more elements and can be more difficult to prove, particularly when it comes to proving a direct link between the allegedly negligent construction and the presence of mold.