Indoor Air Quality: Environmental Litigation in the 90's and Beyond

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Indoor Air Quality:

Environmental Litigation in the 90's and Beyond

By the Environmental and Products Liability Groups of , Goldstein,

Frazer &

The phone rings at the office of in-house counsel for a commercial property

owner. It's the on-site property manager of one of the office buildings

owned by the company that recently has undergone substantial and expensive

renovations. She reports that the human resources manager of the new anchor

tenant has just informed her that a number of the tenant's employees are

complaining of a variety of symptoms, including headaches, itchy and watery

eyes, stuffy noses, sinus drainage, sore throats and fatigue, that began

shortly after they moved into the newly renovated space. One of the

employees, an asthma sufferer, had to leave work yesterday due to breathing

difficulties. They believe the symptoms have something to do with the

building. Could they be right? How serious is this? What do you do next?

Building owners, managers, contractors and employers around the country are

confronting similar scenarios with increasing frequency. For example, as

recently as April 4, 1996, the Washington Post reported that the Department

of Transportation had declared its Washington, D.C. headquarters a " sick

building " and planned to move approximately 5500 employees to another part

of the building while remediations are attempted.

In the past, Congress, regulators and private litigants have focused their

attention in environmental matters on outdoor pollution. In recent years,

however, the indoor environment has come into focus as a prime target of the

media, politicians, regulators and the plaintiffs' bar.

Cases of building related illness have been recognized since at least the

mid-70's, when an outbreak of a form of bacterial pneumonia described as

" Legionnaire's disease " was identified and traced to a faulty water-cooled

air conditioning system at a Philadelphia hotel following a 1976 convention.

The term " sick building syndrome " was coined by the popular press to

describe generically situations where, unlike the Philadelphia Legionnaire's

disease example, large numbers of a building's occupants voice similar

physical and emotional complaints that appear to be directly related to

their presence in the building, but no specific cause for the complaints can

be isolated. In the early 1980's, the World Health Organization attempted to

define SBS. The WHO definition emphasizes several factors, including the

frequency of symptoms of eye, nose and throat irritation that are reported

by a majority of occupants, occurring in a particular building or part of a

building, with no apparent casual connection to occupant sensitivity or

excessive exposures. At one time, it was estimated that as many as 30% of

new buildings met that definition of " sick building. "

Indoor air quality has become a subject of regulatory action and

congressional debate. The Environmental Protection Agency's (EPA) Science

Advisory Board has described indoor air pollution as one of the five most

significant environmental threats to human health, ranked ahead of both

hazardous waste and outdoor air pollution. In 1994, the Occupational Safety

and Health Administration (OSHA) proposed indoor air quality standards

applicable in all " nonindustrial " work settings.

In this environment, an awareness and understanding of indoor air quality

issues and sick building syndrome is essential not only for those businesses

involved in the ownership, construction and management of commercial

buildings but also for all employers who may at some point receive

complaints from employees claiming ailments related to indoor air in the

workplace.

A. Nature of the Complaints

SBS complaints can involve a myriad of health claims including headache,

nausea, irritation of the eyes, nose, throat and skin, mental and physical

fatigue, upper respiratory difficulties, hypersensitivity, taste and smell

dysfunction, stress, depression and diminished concentration.

The most controversial of all SBS complaints is termed Multiple Chemical

Sensitivity ( " MCS " ). This phenomena is characterized by individuals who

claim they have been " sensitized " to chemicals found in our every day

environment and suffer severe reactions to a great number of commonly-used

consumer products, such as perfumes, hair-sprays, dyes, pesticides,

carbonless paper, cleaning products, synthetic fabrics and a host of other

products and materials. While the mainstream medical community does not

embrace the concept of MCS, other alternative practitioners have done so. A

medical sect who sometimes refer to themselves as " clinical ecologists " ,

espouse the view that low level exposures to an indeterminate range of

chemicals in our environment are responsible for a host of symptoms with no

concomitant objective physical findings or pathological abnormalities. These

practitioners have been subjected to considerable criticism, and the

American Medical Association, the American College of Physicians, and other

leading medical organizations are on record as seriously questioning the

beliefs, diagnoses and treatments of this group.

Despite this controversy, however, claims of MCS have been the basis of a

number of lawsuits and some damage awards. The Department of Housing and

Urban Development ( " HUD " ) has recognized MCS as a disability under the Fair

Housing Act which it regulates. Additionally, some courts have held that a

person diagnosed with MCS is a handicapped person within the purview of the

Vocational Rehabilitation Act.

B. Potential Sources of SBS

A number of different factors have been identified as potential contributors

to poor indoor air quality. One such factor is the revamping of traditional

building design and construction methods in the wake of the energy crisis of

the 1970s. Developers and owners began to demand more energy efficient

buildings, and architects and contractors responded. Changes included

designing more tightly sealed buildings, reducing outdoor air ventilation,

changes in heating, ventilation and air conditioning systems ( " HVAC " ) to

increase energy efficiency and reduced standards for outdoor air ventilation

rates.

The emission of formaldehyde and volatile organic compounds ( " VOCs " ) -

sometimes referred to as off-gassing - from an infinite variety of

construction materials, furnishings, office equipment, cleaning and

maintenance supplies, and personal care products also has been implicated as

a possible contributor to poor indoor air quality. A small list of possible

VOC sources includes synthetic fibers, plastics, synthetic wood products

such as plywood and particleboard, wood finishes, paints, adhesives,

upholstery, drapes, ceiling tiles, fax and copy machines, cleaning agents,

bleaches, disinfectants, deodorizers, pesticides, solvents, sprays, and

tobacco smoke.

The list of VOCs that have been identified at low levels in indoor air

include benzene, toluene, ammonia, acetone, aromatic hydrocarbons,

chlorinated hydrocarbons, organophosphates, alcohols and phenols. The

National Institute for Occupational Safety and Health (NIOSH) has conducted

a series of investigations of alleged indoor air quality problems and has

detected and identified hundreds of different VOCs in indoor environments.

The measured levels, however, typically are extremely low, far less than

levels generally accepted as posing no risk to humans.

Biological contaminants such as mold, mildew, fungi, bacteria, viruses and

animal and insect droppings, also can contribute to indoor air problems.

Mainly airborne, these contaminants are exacerbated by poor ventilation,

poor filtration and the presence of moisture in the HVAC system. Since water

is a breeding ground for many of these pollutants, excess moisture

encourages growth of molds, mildews and harmful bacteria and even allows the

establishment of colonies within the very system that supplies the air

breathed by every occupant of a building.

Combustion products also can be a source of building related illness. Carbon

monoxide, nitrogen dioxide, sulphur dioxide, benzene and in some instances

polycyclic aromatic hydrocarbons, can find their way into indoor air

environments when the HVAC air intakes are located in proximity to garages

or other outdoor combustion sources.

In may instances, the source of SBS complaints cannot be determined with

certainty. In addition to the building-related factors described above,

symptoms of SBS have been attributed to a diverse array of other causes

including lighting conditions, stress and other emotional/psychological

factors.

I. Theories of Recovery

A. Common Law Negligence

The primary legal theory urged by plaintiffs against SBS defendants is the

common law doctrine of negligence. The principal doctrine of the American

tort system, negligence requires that the defendant in an SBS case owe a

duty to exercise ordinary care for the safety of the building occupant,

which duty the defendant has breached, causing the occupant to sustain

legally recognizable damage. If, in any particular case, no duty is owed, or

if the defendant has exercised reasonable care, or if there is no real

damage either to one's person or property, or if there is no causal

connection between the defendant's conduct and the alleged damage, then

there can be no recovery. In almost every instance, these questions are to

be decided by a jury.

B. Warranty

1. Express Warranty

If, in the contract to design, construct or remodel a building or some

essential component structure of that building such as the HVAC, a

representation is made about the quality of what is to be designed,

constructed, remodeled or supplied, then that representation amounts to an

express warranty. If the quality that was represented is not present upon

completion, and the result is a building with SBS, then the party making

that representation may be subject to suit for breach of an express

warranty.

2. Implied Warranty

Where a contractual arrangement exists but no express representations have

been made, a warranty may sometimes be implied in the total context of the

relationship. That warranty would be that the building or HVAC system was

fit for the purposes for which it was intended, and an action to recover

damages would be allowed if it were found to be inadequate.

Breach of warranty, whether express or implied, is not a theory available to

everyone. Some states require that the party claiming the benefit of the

warranty be in privity with the defendant, that is, that they not be a

stranger to the contract from which the warranty flows. A classic example of

lack of privity is when a retailer sells a product to a building owner; a

building occupant is not in privity with the retailer and thus may not be

able to assert a warranty claim against the retailer.

C. Strict Liability

Strict liability, a doctrine of more modern application, has been created in

some states by statute and by judicial fiat in others. Strict liability

ignores privity, ignores fault and places the burden of paying for the

damage caused by defective products squarely on the shoulders of those who

manufactured, supplied and, in some instances, sold those products.

Should a building or an HVAC system be deemed a product, then the doctrine

of strict liability will apply to those responsible for its manufacture. The

doctrine already applies to the manufacturer of building materials, interior

furnishings or office equipment whose defects cause injury or damage to the

building occupants.

Strict liability still requires legally cognizable damage and a causal

relation between the defect in the product and the damage before a recovery

can be had. Such cases may be successfully defended on these grounds or on

the absence of a defect; however, such issues rarely are resolved without a

trial.

II. Potential Defendants

A. Architects, Engineers and Contractors

Claims could be asserted against the persons or entities who are directly

responsible for designing and constructing a building or HVAC system under a

number of theories for SBS ailments that can be attributed to their conduct.

Complying with voluntary standards and building codes which set out minimum

requirements, while providing the defendant with an argument that due care

was used, will not necessarily exonerate a defendant in an SBS case. Those

responsible for the building's construction and safe environment have a duty

to take such steps as will protect the safety of its occupants. Voluntary

compliance and the meeting of minimum standards may not be sufficient under

the facts of a particular case.

B. Owners, Occupiers and Landlords

Well established in the laws of almost every state is the doctrine that an

owner or occupier of land must keep it safe for tenants and invitees (i.e.

guests). This doctrine seems to establish the clearest avenue of liability

for those complaining of symptoms from SBS. This duty is grounded in the

statutory framework of the state and one need only show causation and

damage. There is a difference, however, between the liability of an owner to

an invitee and the liability of a landlord to his tenant. In the latter

case, the landlord, as a general rule, must be put on notice of the danger

and be given a reasonable opportunity to cure it.

C. Property Managers/Maintenance Contractors

Those who have been hired to keep and maintain a building or its HVAC system

are subject to claims if they negligently fail to detect or correct a

problem resulting in SBS. While not responsible for the non-maintenance

related problems the building may have because of the manner in which it or

its systems were constructed, they can be held responsible for allowing

otherwise good systems to go bad or get worse. A totally separate area of

liability exists when a maintenance company introduces allegedly toxic

materials into the building's environment through its use of cleaning

agents, solvents, pesticides and the like.

D. Manufacturers, Suppliers and Retailers

In those states where the doctrine of strict liability applies,

manufacturers, suppliers and, in some instances, retailers can be held

liable if their products are defective or unreasonably dangerous and can be

said to cause injuries related to SBS. If their products are such that they

cannot be made completely safe, then they must warn of the danger of

improper use, and they may be held liable for damage caused by their failure

to do so.

E. Employers

Employers may face a variety of claims by employees who claim to suffer from

SBS or building related illnesses. Increasingly, employees are asserting

claims for workers compensation and Social Security disability, claiming

that they are unable to work due to symptoms of SBS. Employees also may seek

protection under the Americans with Disabilities Act ( " ADA " ). The proposed

OSHA indoor air regulations, if enacted, would be expected to have a

tremendous impact on many employers.

III. Illustrative SBS Cases

In perhaps the most celebrated SBS case, employees at EPA offices in the

Waterside Mall office complex in Washington, D.C. filed suit, in their

personal capacities, against the owners and managers of the office building.

They claimed to have suffered neurological and respiratory injuries from

exposure to allegedly toxic emissions from cleaning products and building

materials used in renovations. They also contended that the HVAC system was

inadequate and poorly maintained. Even though the jury found that several of

the plaintiffs suffered only from psychosomatic disorders, they awarded a

total of almost $1 million dollars to five plaintiffs. A substantial portion

of the verdict was set aside on post-trial motions; however, this case is

sobering evidence of the potential liability faced by defendants in these

cases.

In 1992, several hundred employees at the newly constructed Dupage County

courthouse in Chicago complained of symptoms shortly after moving into the

facility. The courthouse was closed for six months to correct the problem.

The county filed suit against the building's designers, architects and

contractors claiming that the employees' health problems stemmed from a

poorly designed HVAC system and the use of construction materials that

emitted chemicals. The jury awarded the county approximately $120,000 for

certain minor repairs, but sided with the defendants on the most significant

claims, finding that the alleged problems were caused, primarily, by the

county's negligent operation and maintenance of the HVAC system.

IV. Defenses

A. Statutes of Limitation

Aside from arguing against SBS on the merits, the first defense to consider

in an SBS case is the statute of limitations. These limiting periods vary in

each jurisdiction. The success or failure of the defense often will depend

upon whether the period after which an action will be barred begins to run

when the injury first occurs or when the injury is first detected. The

latter is known as the discovery rule, but that rule does not universally

apply.

Also, some states have enacted statutes of repose. These statutes bar

actions if a building or the product complained of has reached a certain

age, even though the damage has just occurred and is still within the period

allowed by statutes of limitation.

B. Causation

One of the most difficult hurdles a plaintiff has to face in an SBS case is

to prove what has caused his symptoms. Many times, because of the myriad

factors involved and the numerous other explanations for many symptoms that

are unrelated to the building itself, nothing can be specifically blamed for

a plaintiffÕs damage, and the case must fail for lack of proof. Even in

those cases where the damages seem to be more real than imagined, proving a

causal link between the defendant's actions and the claimed ailments often

is extremely difficult, if not impossible.

V. Conclusion

Litigation involving indoor air quality issues and allegations of sick

building syndrome is on the rise and unlikely to disappear in the near

future. While scientists and policy makers continue to debate the causes of

sick building syndrome and MCS, potential defendants would be well served to

take a proactive approach to these issues. Appropriate preventive measures

and well-reasoned, prompt responses in the face of reported complaints

should alleviate many situations and improve a potential defendant's ability

to defend itself in the event of litigation.