Sick Buildings and Property

Sick Buildings and Sick Property: Who is to Blame? What Are the Remedies?

The “Sick” Building

Designers of office buildings in the 1970’s, seeking lower energy costs, began to design structures that were completely sealed against the outside environment. Windows were merely ornamental and did not open to permit circulation of fresh air, and soon most offices were totally self-contained. The internal air conditioning and ventilation systems became the sole source of safe, breathable air in the working environment. As more and more office workers found themselves in these sealed buildings, medical researchers began noting an usual pattern of respiratory and other health-related problems among the occupants of these buildings. Unlike cases where the illnesses were related to noxious fumes given off by paint or carpeting, there was no readily identifiable toxic culprit. This phenomenon has been described as the “sick” building syndrome, and is increasingly being attributed to the transmission of biologic aerosols given off by fungi growing in air conditioning and ventilation systems. The harmful effects on office workers who, year in and year out, must breathe this mold dust can be quite severe. See Komatsu v. Board of Trustees, Employees’ Retirement System, 687 P.2d 1340 (Haw. Ct. App. 1984); K-Mart Corporation v. Workmen’s Compensation Appeal Board, 595 A.2d 758 (Pa. Commw. Ct. 1991); Mendell, “Consistent Patterns of Elevated Symptoms in Air-Conditioned Office Buildings,” 80 American Journal of Public Health 1193 (October 1990). Scattered cases involving office workers suffering from sick building syndrome have only recently begun to surface across the country. In one case, the plaintiff suffered from asthmatic bronchitis caused by contaminants from three allergenic fungi — penicillium oxalicum, aspergillus ochraceus, and cladosporium cladosporoides — in the air conditioning vents and ceiling in the office where he worked for 16 years. Komatsu v. Board of Trustees, 687 P.2d 1340, 1345 (Haw. Ct. App. 1984). In another case, an office worker was diagnosed with pulmonary fibrosis. Her doctor testified that this condition was caused by a reaction to aspergillus fumigatus in the office’s air conditioning system. K-Mart Corporation v. Workmen’s Compensation Appeal Board, 595 A.2d 758,760 (Pa. Commw. Ct. 1991). Sick building cases have not yet reached the appellate level in Florida. Since this is an area of litigation that has yet to be fully explored, it provides an exciting set of legal challenges for the attorney representing a client who has suffered either personal injury or economic loss caused by sick building syndrome.

Parties to Sick Building Claim

When selecting and evaluating potential parties to a sick building case, a helpful analytical tool is to treat the “sickness” as a defect in design and construction. Those parties whose acts or omissions caused the contamination leading to the plaintiff’s injury will then comprise the classes of possible defendants. This approach will also make available, through analogy, case law across several legal doctrines to support the claim. This is especially important since there are, at present, no reported cases involving sick buildings in Florida. There are two distinct classes of plaintiffs with remedies against different classes of defendants. The first class of plaintiffs consists of the occupants of the contaminated office space who have suffered physical injury. In the majority of cases, these will be employees. The second plaintiff class is the present possessor of the office space, who has suffered economic losses stemming from the occupants’ physical injuries. This plaintiff is likely to be an employer, who is renting the office space from an owner, and has either lost work hours or paid compensation claims due to employee illness. A second member of this plaintiff class might be a landlord/owner who has suffered economic losses as a result of tenant illness, and seeks redress from the seller or original builder of the property. There are also two classes of defendants in a sick building case. First, are the current owners/operators of the property. This group will include the landowner, the owner’s lessee and any subsequent assignor or sub-lessee, if the original tenant is not presently in exclusive physical possession of the premises. The present possessor may also have contracted with a management company to conduct the daily operations of the office space. Second, are those who were responsible for the design and construction of the building. Any individual or corporation that developed the property, the architect who designed the building or office, and the actual builder, as well as any contractors or subcontractors. Pay particular attention to those contractors and sub-contractors who were involved in the installation of the air conditioning and ventilation systems. Some landlords or possessors may have contracted with a company to inspect, repair or clean the air conditioning unit, and those companies should not be overlooked.

Causes of Action

A sick building case may be brought either in contract or in negligence. Whether an ex contractu claim is available will depend upon the class of plaintiff. A current owner, such as an employer or landlord, who purchased the property from the developer may be able to pursue a contract claim against that original seller. Thus, an employer whose employees have become ill might recover its damages. The contract action may arise either out of a breach of the express language in the instrument or a breach of either of two implied warranties, merchantability and fitness for a particular purpose. The plaintiff claiming breach of an express warranty should allege that the defendant made written and/or oral representations concerning the condition of the building at the time the plaintiff took possession, and that the existence of defective air conditioning and ventilation puts the seller in violation of those assurances. For breach of implied warranty of merchantability, the plaintiff should allege that the property, as purchased, is not merchantable because of the contamination. In an action for breach of implied warranty of fitness for a particular purpose, the purchaser should allege that the seller knew the property was to be used as office space, and that the contamination renders it unfit to be so used. If the developer suffers pecuniary loss from the contamination (i.e. is sued by a subsequent purchaser of the property) then it will have a similar series of contract actions against the architect, builder, and subcontractors. For the plaintiff who is a tenant, such as an employer who rents office space from the building’s owner, there are two possible causes of action: one based upon the lease, and one grounded in negligence. The count based upon the lease should focus on any language providing for the proper maintenance of common areas, including ventilation and air conditioning systems, and any other provisions concerning health and safety. The tenant’s negligence complaint must allege that the owner/landlord had knowledge of the defective contamination or was in a better position to know of it. This will be a particularly effective argument where the plaintiff is only one of many tenants, and the landlord was much better positioned to observe patterns of building-wide respiratory illnesses. A landlord continues to be responsible for latent defects in the property, those the tenant could not reasonably have discovered, even after control of the premises has been turned over to the tenant. Levitz Furniture Co. v. Continental Equities, Inc., 411 So.2d 221 (Fla. 3d DCA 1982) review denied, 419 So.2d 1196 (Fla. 1982). See also White Palms of Palm Beach, Inc. v. Fox, 547 So.2d 269 (Fla. 4th DCA 1989). Both classes of plaintiffs may have viable negligence claims against both classes of defendants. To prove negligence in a sick building case, you must prove the same elements as in any other personal injury case: duty, breach, causation, and damages. Generally, the owner or occupier of land has a duty to exercise reasonable care for the protection of invitees from latent property defects of which the owner/occupier was aware, or should have been aware. See Ashcroft v. Calder Race Course, 492 So.1309 (Fla. 1986); Anderson v. Walthal, 468 So.2d 291 (Fla. 1st DCA 1985); Storr v. Proctor, 490 So.2d 135 (Fla. 3d DCA 1986); Williams v. Madden, 588 So.2d 41 (Fla. 1st DCA 1991). The plaintiff must take great care to show, through the defendant’s knowledge of the plaintiff’s sensitivity to allergies, a repeated pattern of respiratory illness among other occupants or some other factual basis, that the defendant had notice of the existence of health problems in the office. See Komatsu v. Board of Trustees, 687 P.2d 1340 (Haw. Ct. App. 1984); K-Mart Corporation v. Workmen’s Compensation Appeal Board, 595 A.2d 758 (Pa. Commw. Ct. 1991). Those defendants involved in the design and construction of the building and work area are also under a duty to exercise reasonable care in the performance of their skills. This includes architects (Conklin v. Cohen, 287 So.2d 56 (Fla. 1973)); builders and contractors, (Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So.2d 976 (Fla. 4th DCA 1979)); management companies; and air conditioning and ventilation cleaning services. The complaint should allege that the improper design, construction or maintenance of the building, air conditioning and ventilation systems led to the contamination that injured the plaintiff. There is one additional remedy for the injured employee. Florida law requires employers to provide a safe working environment, and an employee injured while working in a sick building may have a claim against the employer for failure to do so. See §440.56 F.S.A. (1991).

Economic Loss Doctrine

In pursuing a negligence claim, the plaintiff should be wary of Florida’s economic loss doctrine. Under this rule, there can be no recovery in tort absent personal injury or damage to property. Thus, the plaintiff who seeks compensation in negligence for purely economic losses must argue that the sole theory upon which recovery can be had is negligence. Florida courts have carved out an exception to the economic loss doctrine that does not bar a tort claim for economic losses where there is no alternative means of recovery. See Interfase Marketing, Inc. v. Pioneer Technology Group, Inc., 774 F.Supp. 1351 (Fla. M.D. 1991); Latite Roofing Company, Inc. v. Urbanek, 528 So.2d 1381 (Fla. 4th DCA 1988).

Conclusion

This is an emerging field of law and has been largely untested in the courts. Those individuals and companies who have been damaged by a “sick” building should be able, through the application of standard negligence and contract law, to be made whole again. In particular, the office worker whose health has been grievously effected by an unsafe working environment should find in the courts at least an adequate opportunity to be heard.