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Mold Case Liability Issues Injury Law
What are the liability issues involved in a mold case?
The most common “theories of liability” that an attorney would look at in a mold cases might include:
· Negligence – where the plaintiff must establish that a defendant’s (or more than one defendants’) failure to live up to a responsibility (also known as a “breach of a duty”) caused the damage. When someone has been careless and has caused injury or costly damages to another person, they can be held responsible for the damage or injury under a “negligence” theory. In a mold case, an example of negligence might be if a subcontractor left wood or paper-coated sheet rock building supplies out in the rain, then used the still-wet supplies to construct the foundation or inner walls of a house, leading to a serious mold problem.
· Breach of contract – an example would be claims against contractors, architects and builders for construction defects that would not be reasonably expected based on your agreement with them. For example, when you contract with a builder to follow an architect’s plan to construct your home but the builder cuts corners on the plan, leading to a method of construction that causes a mold problem, this is likely a violation, or “breach,” of your contract by the builder. Or if your contract with a builder states specifically that your walls will be built out with Dens Glass Gold sheet rock, which has a moisture-proof coating, but the builder uses a different and inferior gypsum board that becomes moldy from exposure during the construction of your home, you would also have a breach of contract claim.
· Breach of warranty (express or implied) – claims for breach of express warranties are contract claims that focus on the terms and conditions of the contract involved. For example, if a contract between you and a builder states that the builder warrants that the finished construction product will be “free from defect,” but it turns out a construction method has resulted in gaps in your siding that cause mold in your walls, this is a breach of an express warranty. Breach of implied warranties are based upon the idea that a house or building was designed and is usable for its intended purpose. For example, if you hire an architect to design your home and the architect’s design includes a type of flat roof that is inherently prone to serious and damaging leakage, and the roof does leak, you likely have a claim for a breach of implied warranty because it is implied in the contract with an architect that the roof he or she designs will be usable as a functioning, non-leaky roof.
· Fraudulent misrepresentation/concealment – in a sale of real estate, the seller has a duty to disclose latent defects to the buyer which are known or should be known and that are not necessarily discoverable to the buyer upon reasonable inspection. This duty also extends to a realtor when known conditions are not disclosed or are concealed. For example, if the sellers of a house know of a serious mold problem such as the presence of fungi and black within the main walls of a house but there are no outward signs at all of this hidden problem, the sellers, and the sellers’ realtor, must disclose this problem to potential buyers or be at risk for a claim against them for fraudulent misrepresentation once the problem is discovered. The sellers and realtor could also face a fraudulent concealment claim in the case where outward signs of mold, such as damages sheet rock, are replaced and painted-over, to hide the underlying problem without fixing it. An attorney can advise you as to what types of claims you may have that are worth pursuing. You should contact an attorney as soon as possible, since each state limits has a statute of limitations which limits how long you have to sue. If you would like an experienced lawyer to assess your case at no cost or further obligation, please fill out Free Advice’s case evaluation form, and an attorney will contact you directly.
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