a neuropsychological evaluation. Clients who are suspected of being immune-com- promised should ordinarily be evaluated by an immunologist.


Liability Investigation


An attorney who is satisfied that medi- cal causation can be proven should consult an expert in building management and operations to evaluate standard-of-care issues. In recent years, a number of build- ing engineers and other experts in the indoor air quality field have formed busi- nesses that investigate sick building complaints on behalf of building owners and managers, and provide suggestions for remediating any unsafe conditions that they find. By virtue of that experience, such individuals may be ideal candidates to address standard-of-care and causation issues. Industrial hygienists can also help in determining the environmental factors that may have caused building-related ill- nesses. They can also identify remedial measures that a reasonable owner or land- lord should undertake after learning of potentially toxic conditions in a building or of complaints of potential building-re- lated illnesses. Any liability expert who is selected should be familiar with existing industry guidelines for indoor air quality and related subjects.


Defendants Typically, the potential defendants in sick building cases include the building owners, landlords, and/or management companies who contract with the owners or landlords to maintain and repair the building, including the HVAC system. The owner or lessor of the building may not escape liability by retaining an inde- pendent contractor to manage and operate the building.5


However, if the building is


owned and managed by the claimants’ employer, worker’s compensation may be the only remedy available to them. Other potential defendants include manufacturers of products used in the building that emit toxins and the contrac- tors who installed them. However, in chronic exposure cases, a more convinc- ing claim can often be made against the owner or management company that has ultimate responsibility for providing a rea- sonably safe work environment, rather than a claim against a contractor or sup-


5


Juisti v. Hyatt Hotel Corp. of Md., 876 F.Supp. 83, 85 (D.Md. 1995) (vacated on other grounds, 94 F.3d 169 (4th Cir. 1996)).


Winter 2001 Trial Reporter 13


plier who introduced only one of poten- tially many sources of indoor air pollution.


Negligence


The principal cause of action in most indoor air quality cases is negligence.6 Landlords are not guarantors of the safety of people on their premises and the law does not require them to incur unreason- able burdens to maintain their premises in a safe condition. However, they do have a duty to maintain those portions of the premises under their control in a rea- sonably safe condition for use by tenants and others lawfully on the premises. The issue of control is often contested, as de- fendants may argue that the plaintiffs’ illnesses resulted from actions undertaken by the tenant or by the plaintiffs’ co-em- ployees.


There may be additional sources of a building owner or landlord’s duty to ex- ercise reasonable care to avoid exposing building occupants to harmful contami- nants. A landlord’s duty to provide and maintain reasonably safe leased property can arise from provisions of a lease, such as covenants by the landlord to maintain the leased premises in good repair and


6


Other possible legal theories include breach of express warranty and breach of the im- plied warranty of habitability. Also, a sup- plier of a product that exposes occupants to potentially toxic substances may be held strictly liable. See Board of Education v. A, C, and S, Inc., 546 N.E.2d 580 (Ill. 1989) (supplier of friable asbestos).


tenantable condition. For that reason, counsel should obtain copies of all relevant leases and their amendments. Particular attention should be directed to lease pro- visions that allocate responsibility for the maintenance of the HVAC system, par- ticularly if inadequate ventilation is suspected of contributing to the harmful exposures. Further, some leases contain criteria on acceptable temperature ranges, relative humidities, and require compli- ance by the landlord with industry standards such as those established by the American Society of Heating, Refrigerat- ing and Air Conditioning Engineers. Building codes and other statutes and


regulations may also establish minimum requirements for indoor air quality, or for temperature and humidity ranges. If these provisions exist, a violation may consti- tute negligence per se. Absent evidence that the defendants


created the dangerous conditions that made building occupants ill, plaintiffs must establish that the building owner, manager, or landlord had actual or con- structive notice of those conditions. Notice may be established in a number of ways. Landlords and building manag- ers often become aware of health complaints through worker’s compensa- tion claims filed by their own employees and from complaints made by affected office workers or their supervisors. Com- plaints about conditions in the building are often recorded in maintenance logs and in other repair and service records. Additionally, HVAC deficiencies are of-


(Continued on page 14)


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