Paul Klein & Associates, P.C. Practice CenterHousing DefectsIntroductionPerhaps the greatest single investment you will make in your lifetime, and thus your greatest asset, is your home. Your home is your castle and your refuge from the outside world-unless, of course, your house or some part of it is defective. If you have suffered damages as a result of a housing defect, you may be able to make a claim against the person or company that designed or built the house, or against the company that designed, manufactured, sold, or furnished a defective product used in the house. A claim based on a defective product is called a products liability claim. Lawyers who specialize in products liability law can assist persons who fall victim to defective housing in bringing their claims and being adequately compensated for their damages. Products Liability Claims, In GeneralProducts liability law is based on the responsibility of a manufacturer or other provider of goods to compensate users of the goods for injuries caused by defective or dangerous products. The basic idea underlying products liability law is that the companies providing the products are usually in the best position to prevent defective products from entering the marketplace, so if they fail to do so, they should be held accountable. The law in this area has evolved from the days of "caveat emptor" (let the buyer beware) to, in some instances, strict liability, in which manufacturers are responsible for injuries caused by their defective or unreasonably dangerous products even if they were not negligent. In a products liability action, the injured person, or plaintiff, must prove that there was a design or manufacturing defect in the product, or that the manufacturer did not adequately warn consumers about the product's possible dangers; that the product caused the injuries; and that he or she was using the product in the way it was intended to be used, or that the manufacturer should have anticipated that the product would be "misused" in the way that it was. Manufacturing defects are usually easier to prove than design defects. If a particular homeowner's furnace explodes when first lit, for example, it is pretty clear that the furnace was not manufactured as the designer intended it to be. A design-defect case, on the other hand, could arise if many or all furnaces of a manufacturer's particular model posed a threat of explosion. In other words, in a design-defect case, the product may have been manufactured as it was intended to be, but the design was inadequately planned in such a way as to pose unreasonable hazards to consumers. Proving a design defect involves passing judgment on technical choices and usually requires expert testimony. Proving causation in a products liability case can be complicated. The plaintiff must establish that the product was defective when it left the hands of the defendant and that the defect was the cause of the accident that led to the injuries. If the injuries could have arisen from several potential causes, such as poor workmanship as well as a product defect, the plaintiff usually must establish that the product defect had a substantial role in bringing about the injuries. Possible legal theories that can be argued in a products liability case include negligence (lack of reasonable care in the manufacture or sale of the product or in warning about the product), breach of warranty (failure to fulfill the terms of a promise regarding the product), misrepresentation (giving consumers a false sense of security about a product's safety), and strict tort liability (the product's defect, although not the fault of the defendant, rendered the product unreasonably dangerous and the defendant is therefore responsible). Failure-to-warn liability may also arise if a manufacturer fails to warn consumers of a product's potential dangers and instruct product users on any precautions they must take. Warnings must be conspicuous enough to grab the attention of a reasonable person, and they must clearly explain the nature and seriousness of the possible risks. Housing Defect CasesConstruction defect law exploded in the 1980s when new home construction rates rose dramatically. As homes and condos were hurriedly mass produced, builders began cutting corners and defects proliferated. Some housing defect cases are as simple as waterproofing problems (not actually so simple to the inconvenienced homeowner), but others concern structural defects that render then entire home unsafe or uninhabitable. Almost any condition that reduces a home's value could be legally characterized as a construction defect. Defects may be in design, materials, or workmanship; only the first two, however, give rise to products liability claims. Construction defects can consist of or lead to dry rot, water seepage, faulty drainage, termite infestation, structural failure or collapse, defective plumbing, faulty electrical wiring, defective lighting or security, insufficient insulation, and inadequate firewalls, to name just a few examples. In most cases, expert testimony will be required to prove a construction defect. Experts must have the necessary training and experience to give testimony in court as to the cause of housing damage. If, for example, you have a leaky roof, an architect who has designed effective roofs and evaluated other roofs would be in a good position to give credible testimony on why your roof leaks. A general contractor, by contrast, although possibly the right person to repair your leaky roof, may not be the best authority to convince a judge or jury that your roof was defective. If you experience losses as a result of a housing defect, you may be able to recover the costs of necessary repairs, relocation costs if you have to temporarily vacate your home, and punitive damages if the contractor's conduct demonstrated a conscious disregard for your rights. Housing defect claims are, however, subject to statutes of limitations, which limit the time period in which you may bring a claim, so it is best to act promptly once a defect is known. In some cases, statutes of repose will entirely prevent the bringing of a claim if the subject property was completed a number of years earlier, even if you only recently became aware of the damages. ConclusionIf you have suffered property damages as a result of a housing defect, you may be able to make a claim against the builder or the maker or supplier of a defective component part. When seeking an attorney to represent you in connection with such a claim, be sure to investigate his or her background in products liability or construction law. Ask questions about his or her training and experience so that you can make an informed decision about whether this is the right person to zealously represent your interests against a big company that may have many more resources than you do to fight the claims against it. Only with a veteran products liability or construction attorney on your side can you be sure to achieve an outcome that best compensates you for your losses. Sick BuildingUp to thirty percent of new and remodeled buildings worldwide may be subject to complaints relating to indoor air quality. The condition may be temporary, or it may be long term. Indoor air quality problems can arise when a building is operated or maintained in a manner inconsistent with the original design, or they may result from poor building design in the first place. In other cases, occupant activities give rise to poor indoor air quality. In any event, poor indoor quality and airborne contaminants can cause a host of health-related problems ranging from merely annoying to debilitating, or even life threatening. These health concerns generally fall into one of two categories: sick building syndrome or building related illness, both of which are discussed in more detail below. An attorney experienced in products liability or personal injury law can help determine whether you may have a cause of action based on sick building syndrome or building related disease. The right attorney can advise you of your rights if you have been exposed to indoor contaminants, and provide you with skilled and effective representation should litigation become necessary. Only with effective legal counsel can you be assured that all of your rights will be protected. Poor Indoor Air Quality Can Affect Anyone"Sick building syndrome" is the phrase used to refer to the situation in which building occupants experience adverse health effects that appear to be linked to their time spent in a particular building, when no other specific cause or illness can be identified. Another illness, dubbed "building related illness," occurs when, by contrast, symptoms of a diagnosable illness are present and are directly attributable to airborne building contaminants. In either case, complaints may come specifically from those who spend time in a particular room or portion of a building, such as the occupants of a particular floor, or all building occupants may be affected. Building occupants' complaints may include headaches; eye, nose, and throat irritation; dry cough; dry, itchy skin; dizziness; nausea; difficulty concentrating; fatigue; and sensitivity to odors. If the cause of these symptoms is not known and most of the occupants report relief from their symptoms soon after leaving the building, sick building syndrome may be the culprit. If the occupants' complaints include cough, chest tightness, fever, chills, and muscle aches, and if these symptoms are clinically definable and have clearly identifiable causes, requiring a prolonged recovery time after the occupants leave the building, building related illness may be responsible. One of the causes of sick building syndrome is inadequate ventilation. Up until about the mid-1900s, building ventilation standards required approximately fifteen cubic feet per minute of outside air for each building occupant, but after the 1973 oil embargo these standards were revised. Energy conservation measures called for a reduction in the amount of outdoor air per occupant to five cubic feet per minute. Often, these reduced outdoor air ventilation rates have proved to be inadequate to maintain the health and comfort of building occupants. As a result, the American Society of Heating, Refrigerating and Air-Conditioning Engineers recently revised its ventilation standards for Acceptable Indoor Air Quality, specifying minimum ventilation rates and indoor air quality requirements for commercial and institutional buildings. Chemical contaminants from indoor sources may also cause poor indoor air quality. Adhesives, carpet, upholstery, manufactured wood products, copy machines, pesticides, and cleaning agents emit volatile organic compounds, including formaldehyde. Smoking, unvented kerosene and gas space heaters, woodstoves, fireplaces, and gas stoves are also known contributors to poor indoor air quality. Outdoor chemical contaminants that may be pulled indoors and affect indoor air quality include motor vehicle exhaust, building exhaust, and combustion products from neighboring garages. In addition, biological contaminants may contribute to poor indoor air quality. These include bacteria, molds, pollen, and viruses. Biological contaminants may breed in stagnant water that accumulates in ducts, humidifiers, and drain pans, and where water has collected on ceiling tiles, carpet, or insulation. Even insects and bird droppings can be a source of contamination. Physical symptoms resulting from exposure to a biological contaminant include coughing, chest tightness, chills, fever, muscle aches, and allergic reactions causing cold-like symptoms. One notorious indoor bacterium, Legionella, caused Legionnaire's Disease and a milder form of legionellosis called Pontiac Fever, both of which received considerate media attention in recent years. These potential causes of poor indoor air quality may act alone or in combination to result in sick building syndrome or building related illness. Accordingly, an extensive investigation may be required in order to identify and eliminate the causes of occupants' health concerns. An indoor air quality investigation includes information gathering, hypothesis formation, and hypothesis testing. It includes a study of the building occupants, the HVAC system, possible pollutant pathways, and possible sources of contamination. Once the source of the problem is identified, a plan must be devised to alleviate the problem. Routine maintenance of HVAC systems is one step that may be taken in order to improve a building's indoor air quality. In addition, water-stained ceiling tiles and carpeting should be replaced, indoor smoking should be restricted, possible contaminants should be stored in well ventilated areas, the use of products emitting contaminants should be restricted to non-occupancy hours, and new products that may emit contaminants should be given time to "off-gas" their pollutants before people occupy the building. Increasing ventilation rates is also a cost-effective method of reducing indoor pollution. Chemically injured employees who work in "sick buildings" have the right to request a timely investigation of their health complaints and resolution of any related compensation claims. Some employees who develop sick building syndrome may only be able to continue working if their employers provide them with reasonable accommodations, as required under the Americans with Disabilities Act. Such accommodations may include restricting or banning the use of toxic office supplies and products and pesticides in the immediate work area, as well as all common areas; increasing the flow of outside air; providing an alternative work space in a less toxic area, even if that is in another building, or allowing the employee to work at home and providing all necessary equipment if reasonable accommodation in the original work area is impossible; and job restructuring, if none of the other options is adequate to address the employee's issues. Additional information on sick building syndrome and indoor air quality is available from the following sources:
Indoor Air Quality Information Clearinghouse (sponsored by the EPA)
National Institute for Occupational Safety and Health
American Society of Heating, Refrigerating and Air-Conditioning Engineers
Building Owners and Managers Association International ConclusionIf you think you may have suffered adverse health consequences as a result of exposure to indoor contaminants or poor indoor air quality, including sick building syndrome or building related illness, it would be prudent to seek legal counsel right away. He or she can advise you on whether you may have a legal claim that would enable you to recover your medical expenses or lost wages. If the claim relates to your place of employment, your attorney can counsel you on whether your employer must make accommodations so that you can continue in your job. When seeking an attorney to represent you, be sure to investigate his or her background in products liability or personal injury law. Don't be afraid to ask questions about his or her track record so that you can make an informed decision about whether this is the right person to zealously represent you against a big company that may have many more resources than you do to fight the claims against it. Only with an experienced lawyer on your side can you be sure to achieve the outcome that best meets your needs. DisclaimerThis publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals. .
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