Legal Ramifications of

Indoor Air Pollution

By

Helen E. Zukin, Esq.

Introduction

In the last 25 years we have seen the development of a new area of litigation involving significant claims based upon indoor air pollution. With the increase in attention being paid to environmental concerns, the focus has shifted from outdoor air pollution and contamination caused by heavy industry, to contaminants found in commercial office buildings and residences.

The first type of indoor air pollution cases arose out of occupational/industrial exposures to single source contaminants. The earliest cases were brought by workers claiming physical injuries as a result of exposure to hazardous substances. The first and most far-reaching area of indoor air pollution litigation dealt with the use of asbestos in the manufacturing plants, shipyards and the construction industry.

The next wave of asbestos cases came in the form of building owners filing suit against the asbestos manufacturers for the cost of abating the asbestos used in building materials and insulation.

The first phase of indoor air pollution litigation also involved chemical exposures resulting from their use in heavy industry. Numerous personal injury cases were filed by workers alleging the development of leukemia, lymphatic cancer and other serious illnesses caused by exposure to large quantities of benzene and petroleum-based solvents.

After the industrial indoor air pollution cases were well underway, lawsuits began to result from nonindustrial exposure to single sources of contamination. In the mid 1980’s we saw homeowners and occupants of commercial buildings filing lawsuits, claiming injuries related to formaldehyde exposure. Most notable were the cases filed by mobile home owners, where large quantities of products containing formaldehyde were used. In addition, in the last ten years cases have been filed claiming personal injuries resulting from radon contamination and pesticide exposure.

Within the last 15 years we have seen the emergence of a new and far-reaching type of indoor air pollution case: Sick Building Syndrome (“SBS”).  In the field of toxic litigation, SBS cases have the potential of spreading a web of liability to large numbers of professionals and industries. This is because SBS is a multi factored condition which typically affects high-rise office buildings, although it has been known to occur in other structures, such as single-family residences, condominiums, hospitals and public facilities (including school buildings and courthouses).

Nonetheless, most frequently cases of SBS are found to result from commercial office buildings with sealed windows, where the occupants rely on a mechanical ventilation system for thermal and ventilation needs. The typical case results from a combination of elements. These elements can include air contamination from a number of different sources, often from toxic building materials within the occupants’ suites which emit toxic substances immediately after installation. Another factor contributing to SBS may result from inadequate airflow caused by defective ventilation systems and contamination caused by external sources due to inappropriate placement of air intakes and exhaust. Similarly, improper operation and maintenance of sophisticated ventilation systems are frequent contributors to SBS.

Because there may be numerous factors contributing to make a building “sick,” the number of parties named as defendants and alleged to be responsible for the building’s air pollution, can be staggering.

The plaintiff is most often an individual, or group of individuals, claiming personal injuries resulting from exposure to toxic substances in the office suite or home. The injuries being alleged by the plaintiff(s) may range from cancer, neurological damage and sensitivity to chemicals commonly found in urban environments to pulmonary disease and newly-acquired allergies. The personal injury plaintiffs often claim large damages for physical disability, lost earnings, mental suffering and, in some cases, punitive damages for punishment where the defendant knew of the dangerous nature of his or her actions, or where a manufacturer possessed knowledge of hazards associated with exposure to its products.

Another type of SBS plaintiff is of much greater concern to the parties sued, and that is the commercial tenant: the corporation that alleges it cannot conduct business in its leased space because of poor air quality. The corporate tenant, whose employees are frequently ill because of indoor air pollution and/or inadequate air flow in its suites, presents claims of business interruption, lost profits and lost future value, which make many of the SBS cases multi-million dollar lawsuits. Often both individual employees and the employer will combine to file suit together in one case to recover compensation for both personal injuries and business losses.

In several recent SBS cases the plaintiff has been the owner of the building, both commercial and residential, making claims of construction and/or design defects which have resulted in indoor air pollution.

The defendants in SBS cases will vary with the type of building at issue and the specific facts of the case. The list of potential defendants can include any or all of the following:

Building owners;

Building managers;

Real estate developers;

Architects;

Engineers;

General contractors;

HVAC (heating, ventilation and air-conditioning) contractors;

Building product manufacturers;

Indoor air quality consultants;

Leasing agents; and,

Energy management/ventilation consultants.

The target defendants in SBS cases are the building owners, who have a duty to provide a safe premises; the building managers, who must assure the building operates properly; and, all entities that participate in the design, construction and installation of the building’s ventilation system.

Theories of Liability

There are a number of different legal theories being used to find liability against professionals in the fields of building design, construction and maintenance. Additionally, some of the same theories of liability, as well as additional ones, are being successfully asserted against the manufacturers of products commonly found in building construction and furnishings. The theories will depend, to some degree, on the law in the state in which the case is brought. However, cases based upon the following causes of action have been successful in most states:

Breach of contracts/breach of lease;

Professional malpractice/negligence;

Strict liability;

Fraud/misrepresentation; and,

Punitive damages (for punishment).

It is easiest to understand the ways in which plaintiffs are using the various theories of by discussing the potential defendants separately.

Liability For Building Owners

And Facilities Mangers

In every state the owner of a commercial or residential structure has a nondelegable duty to provide occupants with a safe and healthful environment. This is a responsibility which will, in most cases, rest with the owner regardless of whether the owner personally contributed to the contamination or harmful exposure being asserted. In many cases, the parties who were directly responsible for the unhealthful environment will be considered the agent of the owner, with ultimate liability flowing either from, or back to, the owner. Specifically, the facilities manager may not only be directly responsible for his or her own acts or omissions, but the manager’s conduct can be imputed to the owner.

The building owner who also acts as a developer or builder has the added responsibility of assuring that the building, as designed and constructed, will meet the needs of the building occupants. Under the theory of negligence, the owner is charged with the responsibility to act as a reasonable owner would act given the same set of circumstances. A failure to provide a healthy indoor environment may result in the owner falling below the standard of care, i.e., being found negligent.

In order to be protected from a successful negligence claim, the owner/builder must make sure that indoor air quality issues are taken into consideration in both the design and construction of the building. If the owner is an institutional builder, with extensive experience in construction, then a failure to provide design criteria, including guarantees of adequate indoor air quality, will be an asserted basis for negligence. Similarly, the owner will be vulnerable to suit if the design and construction teams retained by the owner are not familiar with air quality issues and capable of intelligently addressing air quality issues during the design and construction phases.

During the life of the building, the owner, as well as the facilities manager, is responsible for the proper maintenance of the building. If space is leased/occupied too soon after tenant improvement construction or remodeling has been completed, and it is determined that building materials are emitting contaminants into the occupied spaces, the owner and the manager may be negligent, not merely in the use of toxic building materials, but in permitting early occupancy by tenants. In addition, it is extremely important that, while initial construction, or remodeling, is occurring in the building, the occupied spaces be protected from potentially harmful emissions from construction materials. The protection of the health of the tenants is the responsibility of the building manager who is expected to understand the way in which the building operates, and to have a working knowledge of the way air is circulated throughout the building. Thus, if potentially harmful substances are being used in a portion of the building due to remodeling or other activities, the manager must take effective precautions to reduce the likelihood of tenants receiving harmful exposure to the substances being used. A manager’s failure to take precautions to provide good air quality to tenants may expose the manager to serious claims of negligence.

Building owners are increasingly being confronted with tenants who abandon the premises prior to the expiration of the lease and claim indoor air quality problems as the cause. Often, the owner will file a contract action against the tenant, asserting that the tenant breached the lease agreement only to find that the tenant defends the case claiming a “constructive eviction” resulting from SBS. Whether or not the tenant has a legitimate defense, or simply uses SBS as an excuse to enable the tenant to obtain new space, the building owner will be forced to defend the air quality in the building. If the tenant prevails, the owner may be responsible for the tenant’s relocation costs and any other economic losses occasioned by the move.

Claims of fraud and misrepresentation based upon the condition of the building have been brought against both owners and facilities managers. Plaintiffs have successfully asserted that the failure of an owner or operator to disclose the existence of specific building materials known to emit toxic substances in a gaseous form, (“off-gas”), such as ceiling tiles containing formaldehyde, can be grounds for fraud. An owner or operator’s assurance that a building is safe to occupy may expose one to liability if there may be reason to believe otherwise. Specifically, an owner or building operator may be exposed to claims of punitive damages for punishment, if one knowingly fails to disclose unhealthful conditions to building occupants.

Once an indoor air quality problem arises, the owner and facilities manager must be extremely careful to disclose any known problems to the building occupants. If full disclosure of the results of any building investigations is not made to tenants, this leaves the owner and operator vulnerable to claims of misrepresentation.

The wise owner and operator will maintain a contingency plan in the event an indoor air quality problem develops. A SBS lawsuit can often be avoided by the prompt and effective response of the facilities manager to air quality complaints. If a building occupant believes that management is acting expeditiously and intelligently to resolve serious air quality problems, then the likelihood of litigation will be greatly reduced.

In order to respond effectively to an indoor air quality problem, the facilities manager must have an understanding of the various causes of indoor air pollution. Just as important is maintenance of, and easy access to, a list of qualified indoor air consultants who can be retained, as early as possible, to investigate and ultimately remedy any indoor air quality problems.

By taking indoor air quality into consideration in the operation of the building, and avoiding the introduction of harmful substances into the building’s HVAC system, the owner and building operator will greatly reduce the likelihood of becoming target defendants in a SBS case.

Liability of Architects And Engineers

The design team of a building is particularly vulnerable to suits resulting from claims of SBS. The architect and HVAC engineers may find that they are not only sued by building occupants, but by the building owner for improper design and specification of materials.

The architect, as the “quarterback” of the design team, has the responsibility of providing for the health and safety of the intended building occupants. If the architect fails to consider indoor air quality in the building’s design and in the creation of the material specifications, one may be subject to claims of negligence. Therefore, it is extremely important that the owner/architect agreement clearly specify that the building owner is responsible for indoor air quality. If the agreement is silent on this issue, the architect may be targeted by the owner, and building occupants, as failing to provide a safe building environment.

Regardless of the language contained in the owner/architect agreement, the architect should consider whether building materials being specified have the potential of emitting toxic substances into the building. Because of increasing attention given to the sources of contamination in buildings, the architects will be expected to know the chemical contents of building materials and their capacity to emit off-gas harmful substances. In addition, with the introduction to the market of “non-toxic” or “contaminant-free” building materials, an architect who specifies a material that emits harmful substances may find oneself defending that decision in court. The prudent architect should avoid the specification of materials and furnishings that are known to off-gas substances, such as formaldehyde or volatile organic compounds.

Because SBS cases focus on air quality, the systems that regulate and transport air throughout the building will be carefully scrutinized. Thus, the engineer who designs the ventilation system(s) will be vulnerable to claims of negligence if the ventilation system is determined to be defective.

It is important that the engineer design a ventilation system that is flexible enough to be modified as the needs of the building change. An engineer cannot be expected to foresee every use of an occupied space during the life of the building. However, the changing occupancy rates and altered use of space should be generally anticipated by the engineer, and a ventilation system designed to accommodate foreseeable activities within the building. For example, an HVAC system which is incapable of providing enough dilution ventilation during times of expected high contaminant loads, such as during remodeling of suites, may be determined to be defective.

In addition, the location of air intakes and exhaust in relation to potential sources of contaminated air, such as loading docks and parking garages, can result in poor indoor air quality. Similarly, the poor location of a ventilation system’s diffusers may contribute to SBS complaints.

It is extremely important that the engineer apply the appropriate American Society of Heating and Refrigerating Engineers (“ASHRE”) standards when designing a building’s HVAC system. ASHRE standards are being used as minimum criteria by which to judge the quality of an engineer’s ventilation design. If an engineer fails to design a system in conformity with the appropriate ASHRE standards, one’s ability to defeat a claim of negligence will be virtually impossible.

Those professionals involved in the design and construction of a building’s ventilation system may be held liable under the theory of strict products liability. Under strict liability, the designer, manufacturer and installer of a defective product are considered liable, regardless of whether the conduct was negligent. This theory focuses on the product and not on the conduct of any specific individual. Thus, it is usually easier for a plaintiff to succeed on a claim of strict liability. Recently, several courts have ruled that a building’s ventilation system is a product, subject to the theory of strict products liability. Therefore, if it is determined that a ventilation system is inadequate in design or construction, then all parties involved in the design, manufacture and construction of that system may be potentially liable.

Liability of HVAC And General Contractors

The HVAC installer and general contractor are vulnerable to claims of both negligence and strict product liability. The most obvious source of liability is where the installer fails to adhere to construction and installation instructions provided by the manufacturer. Additionally, any defects in the HVAC system, such as excessive leaks in the duct work or failure to adhere to specifications, will expose the installer and the general contractor to liability.

Additionally, the use of potentially toxic construction materials, such as duct sealant or solvents, in a manner that exposes building occupants to harmful fumes may result in claims of negligence. It is extremely important that the installer and general contractor take all necessary precautions to avoid contamination of occupied spaces resulting from construction activities. In an effort to avoid creating high levels of contamination, the HVAC installer should assure that auxiliary dilution ventilation is provided during construction.

HVAC installers and general contractors should notify the owner, architect and/or building management of any indoor air problems which become known by the construction workers. Additionally, failure to store and maintain materials properly in appropriate places to avoid buildup of contaminants during construction may subject the contractor to claims of negligence.

Conclusion

Litigation arising out of claims of indoor air pollution is clearly on the rise. As our understanding of the sources of indoor pollution and its adverse health effects continue to develop, so will the theories of liability. Indoor air pollution cases can be very interesting and lucrative; however, like any other large case, it is extremely important to select each case as carefully as possible.