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Mold: A Question of Liability

Two cases during the past year have dealt with mold conditions in New York City apartments. Although the units in question were not cooperatives or condominiums but rentals, the lessons are applicable to all kinds of apartments. In the first case, a hearing was needed to determine the landlord’s liability for a mold condition. In the second case, the action against the landlord was dismissed.

Litwack v. Plaza Realty Investors Inc. was an action between a tenant and her former landlord, in which the tenant claimed that her apartment was permeated with toxic mold from previous water leaks, and that this exposure was the cause of her ailments, which included asthma, allergies, chronic rhinosinusitis, hypersensitivity pneumonitis, and cognitive disorders.

Litwack resided in Apartment 30G at 200 East 33rd Street in Manhattan. Defendants owned and managed the building. Litwack lived there from 1986 until July 2001. Litwack’s mother had previously lived in and furnished the apartment. It was a one-bedroom unit with one-and-a-half wallpapered bathrooms, fully carpeted, except for the kitchen. Litwack testified that she only removed and replaced the carpet in one of the bathrooms and the rest remained from before the time she had she moved in.

Litwack testified at her deposition that the premises had air conditioning and heating units combined, in the living room, the bedroom, and the dining room, and that, in the summer, these units would drip constantly unless they were turned off. She complained to the landlord but was told to turn the units off and not to worry about it.

In April 1999, Litwack noticed a wet brown discoloration on the dining room wall. She notified the landlord, and a handyman took out a five- to six-inch section of the wall. Litwack asserted that she saw a steam pipe behind the opening and that, while she did not see any water dripping, there was water around the opening of the hole. The handyman said it couldn’t be fixed until the building heat went back on in the fall.

Over the next few months, the spot on the wall got worse, and she complained several times. Finally, in the fall, the landlord hired an outside plumber to replace a copper pipe and fitting and then repaired the wall.

Litwack claimed that, in the fall of 1999, she started to feel sick, including shortness of breath, chronic diarrhea, pain in her organs, constant pain and pressure between her shoulder blades, rashes on her face and chest, night sweats, flu-like symptoms, sleepiness, inability to eat, memory problems, and difficulties concentrating. She attested that these symptoms were continuous, and only subsided when she left the premises for a period of time and, finally, when she moved out in 2001.

In October 1999, she began going to her family doctor for treatment of those symptoms. She then began seeing a number of other specialists, including a pulmonologist, endocrinologists, internists, and infectious disease specialists, and underwent many tests. In July 2001, she went to the Mayo clinic in Arizona for more tests. She saw an endocrinologist, an internist, an infectious disease doctor, a neurologist, a rheumatologist, an allergist, and a rehabilitation doctor. She received no diagnosis, but was advised that if, upon her return to her apartment, she became ill again, she should have the apartment environmentally tested.

When she returned home, Litwack asserted that she got sick immediately. She hired an environmental specialist, Lawrence Molloy, to come and take samples. Litwack attested that these test results showed that mold was present.

Litwack admitted that she did not discuss with the landlord her concerns that there might be an environmental problem. She moved out in July 2001, but did not formally surrender the apartment until February 2002.

In November 2001, Litwack retained an attorney to approach the landlord with a “letter of demand.” In it, she informed the landlord that the testing of the air and material in the premises indicated excessively high levels of fungal matter, and that she was experiencing severe flu-like symptoms after a water leak in the building. She also informed the landlord that, after a series of visits to the doctor and extensive testing, it was determined that she had been exposed to toxic mold. She demanded damages, as well as removal and remediation so that she could return to the premises. The letter also enclosed the two laboratories’ test results.

On January 10, 2002, Litwack hired Olmstead Environmental Services to conduct a thorough evaluation of the premises. Edward Olmstead surveyed the apartment, and reviewed the P&K Microbiology Services and Environmental Microbiology Laboratory test results. He stated that the premises showed mold contamination. He indicated that the tests showed mold in the area where the leak was, in amounts significantly above the outdoor level. He further stated that mold was found in the public hallway, as well as in the dining room, living room, and the inside hallway. Olmstead concluded that the failure to repair the water leak in the dining room, and other recurrent water leaks, and the failure to quickly and properly remediate the water-damaged building materials, resulted in the release of mold fragments throughout the premises, with atypical molds known to cause adverse health effects.

On March 7, 2002, Litwack began this action. She asserted six causes of action: (1) negligence in the ownership, operation, and maintenance of the premises; (2) violations of statutes and codes; (3) breach of the warranty of habitability, causing her personal injuries; (4) constructive eviction; (5) negligence, causing Litwack property damage; and (6) false representations that the premises were clean and habitable, causing Litwack to suffer serious permanent injuries.

In the discovery process, her physician, Dr. Eckardt Johanning stated that Litwack’s symptoms, physical signs, and test results were consistent with exposure to allergenic and toxic fungi. He concluded that “[w]ith a reasonable degree of medical certainty, I believe that the current upper and lower airway inflammatory conditions and the constitutional problems of [Litwack] have been caused and are aggravated by the indoor mold contamination resulting from the water damage inside her apartment.” He concluded that Litwack’s condition was permanent.

Litwack also produced a report from Dr. Wayne A. Gordon, a neuropsychologist, who tested Litwack on five separate dates from March 18, 2002 to April 8, 2002. This report indicated a diagnosis of toxic encephalopathy. Dr. Gordon concluded that Litwack was experiencing cognitive difficulties that are most likely a result of her exposure to fungi and molds.

In moving for summary judgment, the landlord first contended that they did not have actual or constructive notice of the alleged toxic mold condition and, therefore, could not be held liable. They submitted the deposition and the affidavit of the building superintendent, who attested that no tenant ever complained of mold in the building at any time prior to Litwack surrendering possession of her apartment. They pointed to Litwack’s admission that she did not discuss with the landlord her concern that there might be an environmental problem within the premises.

While the landlord admitted that Litwack’s attorney had sent a “letter of demand” regarding the condition of the premises in late November 2001, they asserted that Litwack had already moved out, and that the test results supplied by Litwack’s counsel did not even indicate indoor mold concentrations “above background levels,” and that there was no evidence of mold in the indoor ambient air.

They contended that Litwack did not observe visible mold inside her apartment, or the building, prior to the time that she vacated it, and that she did not observe wet carpets. They urged that the infrequent visits by landlord’s handyman to perform small repairs did not satisfy the notice requirement. The landlord submitted the affidavit of Jerzy Zakowicz, the handyman, who attested that he never observed any standing water or mold in the premises, and that the sheetrock where the water spot was on the dining room wall was not damp or crumbly. Finally, they submitted the affidavit of the plumber, Joseph Torres, who did the actual repair on the steampipe, and he attested that there was no visible mold growth.

The landlord further said that Litwack had failed to establish a causal connection between her alleged injuries and exposure to mold or mycotoxins. They contended that Litwack could not establish that there was such a causal connection. Therefore, they contended, the evidence should be precluded, and summary judgment dismissing the complaint was appropriate. In support of this position, defendants submitted the affidavit of Dr. Ronald E. Gots, a physician and toxicologist, who stated that it was not generally accepted by the medical and scientific communities that mold or their mycotoxins found in homes cause the claimed disorders. He stated that there was insufficient exposure evidence. With respect to alternate causes for Litwack’s symptoms and illnesses, Dr. Gots asserted that no one had properly examined alternate causes.

Litwack, he pointed out, underwent mold allergy testing at the Mayo clinic in July 2001, and the results were negative. Dr. Gots addressed previous testimony and reports, stating that Dr. Johanning had relied on self-reporting responses to questionnaires in coming to his hypotheses about molds causing a variety of disorders. These were highly subject to observer and patient bias. Regarding theories that mold toxins cause brain damage in individuals, Dr. Gots attested that no other researchers, using properly designed studies, have identified such an association.

In opposition to the landlord’s motion, on the issue of notice, Litwack asserted that she attested to a history of leaks in the premises, including the leak in the dining room, as well as leaks from the air conditioning units. She particularly pointed out the dining room leak, which the landlord examined and failed to fix – and left open – for six months. She also submitted a letter dated November 1995 from her stepfather, who lived in the premises for many years with her mother, to defendants, complaining of leaks and problems with the bathrooms that had been going on for a long time. Thus, she asserted that the landlord was on notice of a defective, watery condition.

Litwack pointed to the conclusion reached by Olmstead, one of her environmental consultants, that when the landlord finally came to fix the leak in the fall of 1999, his agents failed to use precautions when removing the wet sheetrock to ensure that mold fragments and spores were not released.

She stated that Olmstead’s report demonstrated that there was highly toxic mold throughout the premises, and that was reasonable to assume that there was airborne mold and its toxic byproducts. Thus, she urged that defendants were on constructive notice, and either created the condition or negligently repaired the leak, permitting the hazardous condition to fester.

Litwack also argued that the landlord’s motion was an evidentiary one, and must be brought at the time of trial. She asserted that the issue as to the admissibility of her medical and scientific expert evidence should be the subject of an evidentiary hearing. With respect to the medical and scientific evidence, Litwack contended that her experts’ affidavits, which cited to articles and other literature, clearly contradicted Dr. Gots’s conclusion that there was no causative link between damages to humans and indoor mold toxins.

The landlord moved for an order dismissing the complaint on the grounds that: (1) defendants did not have actual or constructive notice of the condition which allegedly caused plaintiff’s injuries; (2) plaintiff could not establish a causal connection between her alleged exposure to mold in her apartment and her injuries; (3) the claim for breach of the warranty of habitability was meritless; and (4) plaintiff had failed to submit documents to support her personal property damage claim, despite a court order.

The court granted only one part of the landlord’s motion: dismissing the third cause of action for breach of the warranty of habitability. It granted an evidentiary hearing.

Litwack’s claim for breach of the warranty of habitability sought to recover damages for personal injuries. These damages were not recoverable for such a breach. Litwack presented no opposition to this branch of defendants’ motion, and, therefore, it was granted.

The branch of the motion for summary judgment, dismissing the negligence claim based on a lack of notice, was denied. The court said that a landlord has a duty to maintain the premises in a reasonably safe condition. A landlord may be liable for a “failure to repair a dangerous condition, of which it has notice, on leased premises if the landlord assumes a duty to make repairs and reserves the right to enter in order to inspect or to make such repairs.” Thus, to be held liable, the court said that the landlord must have actual or constructive notice of the condition for such a period of time that, in the exercise of reasonable care, the landlord should have corrected it.

While defendants made a showing that they did not have actual notice of a hazardous mold condition in the premises, in the court’s view they had framed the issue too narrowly. In many situations, mold may be undetectable to the senses. The toxic mold to which Litwack was referring was not the kind found between the bathroom tiles that may be observable to the eye. Rather, it is more insidious, and can be found as a dust on walls or surfaces or, most importantly, airborne and not readily apparent. Therefore, a landlord would not actually know of its presence without testing. As a result, a landlord may deliberately refrain from checking or testing after water damage, and be shielded from liability.

To avoid a rule that would make the situation impossible for a Litwack to hold a landlord reasonably accountable, the notice issue here was framed in terms of whether defendants had actual or constructive notice of a condition on the premises, i.e., persistent water leaks, which resulted in a hazardous mold condition. Framed as such, the court said that Litwack had presented proof of an issue for trial.

Litwack’s proof consisted of deposition testimony of persistent water leaks from the air conditioning units, which were reported to the landlord, to no effect. She also presented proof of the dining room leak, of which defendants admittedly were aware, and which resulted in the wet wall area being left exposed for six months. This clearly raised an issue as to whether defendants had actual or, at the least, constructive notice of a hazardous condition on their premises. The testimony from the plumber that he did not see any mold only emphasizes that this condition, created by leaks and the resulting dampness, may not be readily observable to the eye.

The landlord’s reliance on several older lead paint cases in which the courts found no actual or constructive notice, even where the landlord was aware of peeling and chipping paint, was misplaced. The court of appeals had already decided that these earlier cases were too narrowly decided, and made it impossible for Litwack to hold a landlord reasonably accountable. Therefore, the court said that summary judgment dismissing Litwack’s negligence claims was inappropriate.

The branch of defendants’ motion precluding Litwack from offering testimony at trial regarding the alleged causal link between her injuries and her exposure to mold in the premises, was granted only to the extent that the parties were directed to appear for an evidentiary hearing to determine the admissibility of such testimony.

The threshold standard for admissibility of expert testimony based on scientific or medical principles or procedures in New York is derived from Frye v. United States , which requires that novel or innovative scientific evidence be based on a principle or procedure that has “gained general acceptance” in its specific field. Therefore, when a new scientific technique or theory is challenged, the court’s task is to seek out the opinions of the relevant scientific community. If there is general acceptance in the scientific community, the expert can testify to the theory. If there is not general acceptance by that community, then the expert cannot testify. Under Frye, the court does not determine whether a scientific technique is actually reliable, but, instead, “whether there [is a] consensus in the scientific community as to its reliability.”

Here, the landlord’s motion to preclude Litwack’s experts from offering testimony about the alleged causal link between her alleged exposure to mold on the premises and her injuries was denied. The landlord had presented some evidence that the conclusion reached by Litwack’s experts with regard to cognitive injuries was not generally accepted in the scientific community. However, their own expert, Dr. Gots, admitted that there were three categories of effects from mold exposure – allergic, infectious, and toxicogenic – identified regularly in medical and scientific literature, many of which are effects and illnesses of which Litwack complained, and which her experts had identified.

Although the landlord asserted that Litwack’s experts set forth their studies in non-peer review publications, conducted poorly designed studies, and improperly relied on self-reporting responses to questionnaires, Litwack had presented proof of Dr. Johanning’s numerous publications, including studies, articles, books, and lectures.

The court rejected Litwack’s assertion that this motion was procedurally improper because it was premature. While these motions are typically made at the time of or during trial, the court said that there was no rule barring the consideration of the appropriateness of certain expert testimony, particularly where the action was at the summary judgment stage, as it was here.

Because the alleged relationship between mold and the various symptoms and conditions, including cognitive deficiencies suffered by Litwack, was a sufficiently novel scientific or medical opinion, an evidentiary hearing was warranted. Neither party had presented sufficient evidence on this motion to conclusively demonstrate whether or not the causal connection between mold and the various symptoms and conditions was generally accepted in the scientific community. Therefore, an evidentiary hearing had to be held prior to the trial.

Accordingly, a hearing was ordered to establish the admissibility of expert testimony on the issue of the causal relationship between exposure to mold at the premises and the conditions and symptoms suffered by Litwack.

Comment: The court here refused to dismiss the mold illness claim against the landlord before further evidence was introduced on the causal connection between the mold condition and the illness. The issue was one of the landlord’s knowledge of the mold condition. The court was not prepared to dismiss the tenant’s claim because the court believed that persistent water leaks might result in a landlord’s having constructive notice of a mold condition.

More Mold

The second case dealing with mold was Beck v. J.J.A. Holding Corp. On September 7, 1998, Catherine Beck’s apartment was flooded, severely damaging its flooring and walls. At her request, the defendant landlord repainted the apartment, and Beck replaced the carpeting. Beck alleged that, thereafter, as a result of the flooding, hazardous mold contaminated her apartment. She asserted that, because the landlord failed to timely remedy the unsafe condition, she contracted a bronchial infection and, eventually, chronic obstructive pulmonary disorder. She claimed that because a dangerous accumulation of mold spores is a foreseeable consequence of water seeping into walls, her landlord was negligent and breached its duty to maintain the premises in a safe condition by failing to abate the mold, causing damage to her health, safety, and life.

The landlord denied any liability. In moving for summary judgment, the landlord argued that it did not create the condition and had no actual or constructive notice of it prior to November 1999. The landlord also asserted that, in any event, it did not have sufficient time to remedy the hazard before Beck moved out of the apartment in December 1999.

Specifically, the landlord stated: “Plaintiff can offer no evidence as to the length of time the alleged mold condition was present in her apartment. The first, and only, piece of evidence regarding the presence of mold is a report from Johns Hopkins, dated November 16, 1999, less than a month before plaintiff moved out of the apartment, but over a year after the time of the flood.”

The landlord stated that Beck testified at her deposition that she was not aware of the elevated mold levels until November 1999 when she received the Johns Hopkins report.

In opposition to the landlord’s motion, Beck asserted that after her landlord repainted her apartment, she noticed brown spots on the walls, and that her apartment had a moldy odor. She alleged that the discoloration of the walls, along with the knowledge of the water damage, should have placed the landlord on notice of the likelihood of the mold growth in the apartment. She also annexed EPA publications indicating that water damage is likely to cause mold, and her medical reports, all dated after December 1999, which detailed her respiratory problems.

In reply, the landlord reiterated that Beck had not set forth a prima facie case of negligence because she had not presented evidence that the landlord had actual or constructive notice of the mold hazard. The trial court dismissed Beck’s common-law negligence claim, finding that “[t]here is no support in law for plaintiff’s theory that the landlord essentially had an ongoing duty to monitor plaintiff’s apartment for the possible development of environmental hazards.”

The appellate court affirmed the decision. It said that a landlord has a duty to maintain its property in a reasonably safe condition under the existing circumstances. For a plaintiff to show a breach of that duty, Beck was required to first establish that the landlord either created or had actual or constructive notice of the hazardous condition that precipitated an injury.

On this motion for summary judgment, the landlord had asserted that it was first notified of the hazardous mold condition in November 1999. That was the same month that Beck became aware of the problem, and a month prior to the time plaintiff moved out of the apartment. Thus, in opposition to the landlord’s motion, the court said that it was incumbent upon Beck to show that the landlord either created, or had actual or constructive notice of, the mold hazard. Having failed to meet this burden, or to have established any other act or omission on the landlord’s part that could have been considered a proximate cause of her respiratory ailments, it was the appellate court’s view that the trial court appropriately dismissed Beck’s claim for common-law negligence.

Comment: This case suggests that a landlord must have actual knowledge and an opportunity to cure a mold condition before it has liability to a tenant claiming illness from mold. As this is still an emerging legal issue, further cases on the extent of a landlord’s liability for a mold condition can be expected.

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