Claims Arising Due to Indoor Air Pollution
People spend an estimated ninety percent of their time indoors. According to the Environmental Protection Agency ("EPA") studies of human exposure to air pollutants, indoor air may have between two to one hundred times the amount of pollutants found in outdoor air. EPA's Indoor Air Quality Home Page.
Claims arising from indoor air pollution typically involve bodily injury and/or property damage. There exist a myriad of causes of action, including but not limited to, negligence or professional malpractice, constructive eviction, workers' compensation, violations of the Americans with Disabilities Act, breach of warranty, breach of contract, fraud, misrepresentation and violations of Mass. G.L. Chptr. 93A that may arise from such injuries. The following is a non-exhaustive, general discussion of the general problem of indoor air pollution and only some of the potential legal issues that may arise on account of such problems in the home or at work.
Types of Injuries Associated with Indoor Air Pollution
Personal injuries arising from indoor air pollution fall into three categories: sick building syndrome, building related illness, and multiple chemical sensitivity. Sick building syndrome occurs where at least twenty percent of a building's occupants complain of particular discomforts while in the building, but which discomforts are alleviated upon leaving the building, and where there is no discoverable link between the building source and the problems encountered. Pyle, Environmental Law in an Office Building: The Sick Building Syndrome, 9 J. Envtl. L. & Litig. 173 (1994). Symptoms of sick building syndrome commonly include tiredness, eye strain, fatigue and drowsiness, headaches, tension, nervousness or irritability, sinus congestion, stuffy or runny nose, chest tightness or wheezing, dry skin and gastrointestinal ailments. Mitchell, CGL Pollution Exclusion Provisions and the Sick Building Syndrome, 66 Def. Couns. J. 124, 125-26 (Jan. 1999).
Building related illness, in comparison, involves a clinically diagnosable illness which has a clear and direct link to an identifiable source in a building. Common symptoms of building related illness include tight chest, coughing, fever and chills, infection and muscle aches. Id. At 126. Unlike sick building syndrome, the symptoms of building related illness often remain after the afflicted person leaves the building and can require prolonged recovery.
Finally, multiple chemical sensitivity is the most controversial type of illness caused by indoor air pollution. This new, hotly debated diagnosis occurs when an individual has an adverse reaction to commonly encountered chemicals, thereby becoming ultra-sensitive to even minimal concentrations of such chemicals. Symptoms of multiple chemical sensitivity include migraines, burning skin, pain in muscles and joints, palpitations, blurred vision, deficits of memory and concentration, respiratory disorders and gastrointestinal problems. Id.
Causes of Injuries
There are three major causes of indoor air pollution: the presence of pollutant sources; poorly designed, maintained, or operated heating, ventilation, and air-conditioning ("HVAC") systems; and poorly designed or tightly designed building shells. United States Environmental Protection Agency and U.S. Consumer Product Safety Commission, Office of Radiation and Indoor Air, The Inside Story: A Guide to Indoor Air Quality, EPA Doc. No. 402-K-93-007 (Apr. 1995) (hereinafter, "EPA Guide to IAQ") at 30.
The presence of pollutant sources is considered the most significant factor influencing indoor air quality. Common sources of office pollutants include environmental tobacco smoke (also known as secondhand smoke); asbestos from insulating and fire-retardant building supplies; formaldehyde from pressed wood products; other organic compounds from building materials, carpets and office furnishings, cleaning materials, restroom air fresheners, paints, adhesives, copying machines, print shop chemicals; biological contaminants from dirty ventilation systems, water-damaged walls, ceilings and carpets; and pesticides from pest management practices. EPA Guide to IAQ, at 30-31.
Poorly designed, maintained, or operated HVAC systems is the second significant cause of indoor air pollution. These mechanical ventilation systems not only heat and cool the air, but also draw in and circulate outdoor air. Problems can arise when inadequate amounts of outdoor air is pulled in, for example, in an effort to reduce the cost of heating or cooling the office air. Inadequate ventilation can also arise if the air supply and/or return vents are blocked within the building, or when the outdoor air intake vents are improperly located, such that the outdoor air is contaminated with automobile exhaust, boiler emissions, fumes from dumpsters or air vented from restrooms. Id. at 31. Finally, improperly maintained HVAC systems can spread biological contaminants that have multiplied in cooling towers, humidifiers, dehumidifiers, air conditioners or the inside surfaces of ventilation duct work. Id.
The third identified source of indoor air pollution is the flawed design or tight design of buildings. Tightly designed buildings are a modern solution to reducing energy costs; during the energy crisis of the 1970s, buildings were designed with air tight "shells" which substantially reduced the amount of outdoor air which could enter the building, thereby reducing the amount of air which needed to be cooled or heated. A flawed design occurs where a building is used for various purposes without being specifically designed to accommodate the needs and demands of these purposes; such as where a restaurant, print shop and/or dry cleaning stores are placed in the same building as office spaces; or where underground parking garages allow carbon monoxide and other components of automobile exhaust to travel into office spaces. The Inside Story, supra, at 31.
Some Potential Causes of Action
Although there are a large variety of legal issues that arise from indoor air quality problems, the following general discussion covers only potential claims for negligence (or professional malpractice), constructive eviction (termination of the landlord/tenant relationship), and workers compensation.
The most common cause of action asserted for indoor air pollution injuries is negligence. The elements for this cause of action are:
- The defendant owed a duty of care to the plaintiff;
- The defendant breached that duty through a failure to exercise the degree of care that a reasonable person would exercise in like circumstances;
- The plaintiff was injured;
- The injury was proximately and in fact caused by the defendant's breach of duty of care. e.g., Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 352, 446 N.E.2d 1033, 1038 (1983).
There are innumerable situations where a claim for negligence concerning personal injuries resulting from an indoor air quality problem can arise. For example, professionals, such as construction managers, general contractors, subcontractors, architects, or engineers may be sued for their alleged negligence in the performance of their professional services. Often, however, the most difficult barrier to recovery is proving the element of causation. This is especially true in claims involving "sick building syndrome" because in such cases, by definition, the illness cannot be linked to any particular identifiable source in the building. Nevertheless, claims for professional negligence may be viable where there is an extraordinary event which can be linked to the onset of injury.
In addition, tenants may have tort claims against their landlords, independent of the obligations set forth in their leases, in the event there exists foreseeable harm of poor and unhealthy indoor air quality within their buildings. See Bloomquist v. Wapello County, 500 N.W.2d 1 (Iowa 1993)(building owner owes a duty of care to avoid foreseeable harm from indoor exposure to "sick building" materials); Mackey v. TKCC, Inc., 134 Or. App. 121, 849 P.2d 1200, rev. denied, 321 Or. 429, 899 P.2d 1197 (1995). Tort claims against landlords may arise for their negligent design or operation of building systems within their control.
Constructive eviction has been defined as "any act of permanent character, done by the landlord . . . with the intention and effect of depriving the tenant of the enjoyment of the premises demised, or a part thereof, to which [the tenant] yields and abandons possession." Shindler v. Grove Hall Kosher Deli & Lunch, 282 Mass. 32, 33, 184 N.E.2d 673, 673-74 (1933). Massachusetts law permits a tenant to terminate its lease on the basis of a "constructive eviction" where:
- A tenant's enjoyment of the leased premises is "so substantially diminished" that;
- The tenant is justified in abandoning possession of the premises; and
- The tenant ultimately abandons the premises within a reasonable time. Shindler v. Grove Hall Kosher Deli & Lunch, 282 Mass. at 33, 184 N.E.2d at 673 (restaurant was leased without heating system); Palumbo v. Olympia Theatres, 276 Mass. 84, 176 N.E. 815 (1931) (tenant not entitled to recovery because eleven months passed before tenant abandoned property held not a reasonable amount of time).
The effect of constructive eviction is absolute termination of the tenant's lease obligations. See Friedman on Leases § 29.301 (constructive eviction "suspends" tenant's liability for rent); Corbin on Contracts § 686 (constructive eviction operates as "discharge of the tenant's duty" to pay rent); see also Mirick v. Hoppin, 118 Mass. 582 (1875) (eviction of tenant from part of demised premises suspends obligation to pay rent under lease); See also Blackett v. Olanoff, 371 Mass. 714, 358 N.E.2d 817 (1977) (constructive eviction found due to excessive noise caused by landlord in building next door.) An actual or constructive eviction excuses a tenant from paying rent under a commercial lease. In re J.A.G., Inc., 7 B.R. 624, 627 (Bankr. D. Mass. 1980).
Depending on the terms of the lease and on the various services that the landlord may have agreed to perform, the occurrence of indoor air quality problems may give rise to a tenant's claim for constructive eviction. A case may involve employees of a commercial tenant that complain about their building's indoor air quality. Commercial landlords in particular are often responsible for the design, installation and/or maintenance of their buildings' HVAC systems, a common suspect in the event of an indoor air quality problem.
Design concerns with respect to a building's HVAC system may involve a number of variables, including whether the system employs an open air plenum or whether the system employs direct ducting, or whether the building air intake units provide enough fresh air and whether such air is properly conditioned, or whether there is sufficient ventilation, or whether the cooling towers are properly installed or maintained, as well as other potential concerns. Other elements within the landlord's control may cause indoor air quality problems, such as moisture from roof leaks or plumbing leaks that may lead to mold growth.
Tenants' complaints may involve serious injuries requiring medical attention, such as rashes, difficulty breathing, headaches or other symptoms. In such an event, the commercial tenant may claim that it has been constructively evicted from and must abandon the leased premises on account of the building's poor indoor air quality caused by a breach by the landlord of any of its duties under the lease.
Once again, an important issue with respect to such a claim is causation. This is true in particular in buildings where there are multiple uses such as office, laboratory, educational and other types of uses. Faced with a tenant claiming constructive eviction on account of poor indoor air quality, the landlord may well challenge the factual bases for the claim, including an attack on whether the landlord's alleged breach of its duty to the tenant in fact caused the alleged indoor air quality problem and/or an attack on whether the symptoms of concern were indeed caused by the alleged indoor air quality problem in any event.
Massachusetts law awards workers' compensation where an employee is injured resulting from circumstances and conditions in the employment, regardless of who is at fault for the injury. Mass. G. L. Chptr. 152, §§ 1 et seq.; Tripp's Case, 355 Mass. 515, 246 N.E.2d 449 (1969). See also Case of Kelly, 17 Mass. App. Ct. 727, 462 N.E.2d 348 (1984) (workers' compensation does not depend on fault of employer or upon foreseeability of harm). Recovery for workers' compensation generally bars other claims against employers arising from indoor air pollution. An employee may not bring a civil suit against his employer if:
- the worker was employed by defendant at the time of the alleged injuries;
- the injuries arose out of and in the course of employment; and
- the injuries constituted "personal injuries" under the statute. Foley v. Polaroid Corp., 381 Mass. 545, 548, 413 N.E.2d 711, 713 (1980).
"Personal injuries" under the statute have been found to include "infections or contagious diseases if the nature of the employment is such that the hazard of contracting such diseases by an employee is inherent in the employment"; thus, if any such physical, mental or emotional injuries occur during the course of employment, workers' compensation provides the sole remedy. Niles-Robinson v. Brigham and Women's Hosp., Inc., 1997 WL 11735, at 2 (Mass. Super. 1997).
Despite the fact that workers' compensation can often be the only form of redress for an employee suffering from ailments caused by poor indoor air quality in the workplace, there are difficulties inherent in workers' compensation claims which make recovery for this particular type of injury especially difficult. For example, "sick building syndrome" and the other types of injuries discussed above are not always traceable to an identifiable source of pollutants, nor is there always an identifiable onset date. Workers' compensation claims require the claimant to establish a definite time of an accident, with respect to either the cause or the resulting injury. Because injuries from indoor air pollution often accrue gradually over time, the very nature of the injury hinders the claimant's ability to cite an unusual environment or extraordinary event which caused the injury. See Rakowski v. New York State Dept. of Labor, 243 A.D.2d 1020, 663 N.Y.S.2d 428 (3rd Dept. 1997) (workers' compensation denied because claimant unable to establish a date-specific event or injury).
Often, employers prevail in workers compensation claims due to the difficulty in proving causation, a difficulty which is common to all claims arising from injuries due to indoor air pollution. See, e.g., U.S. West Communications, Inc. v. Taborski, 253 Neb. 770, 572 N.W.2d 81 (1998) (claimants failed to meet their obligation of proving that their employment proximately caused the disability for which they sought compensation). Indeed, the very nature of the injuries caused by indoor air pollution make claims for compensation more difficult.
A New York case is illustrative. Specifically, New York law requires a claimant to identify "an extraordinary event, even if he or she cannot pinpoint the exact date on which the event occurred." Knapp v. Vestal Central School Dist., 247 A.D.2d 667, 669, 668 N.Y.S.2d 718, 720 (3d Dept. 1998) (citations omitted). In Knapp, a teacher sought workers compensation after experiencing multiple chemical sensitivity. The claimant alleged that her health deteriorated over a one year period, causing persistent fatigue. Id. at 667, 668 N.Y.S.2d at 719.
The court denied the teacher's claim, stating that "although an accidental injury may accrue gradually over a reasonably definite period of time, a claimant must still establish unusual environmental conditions or events assignable to something extraordinary which caused an accidental injury." Id. at 669, 668 N.Y.S.2d at 720 (citations omitted). See also Rakowski v. New York State Dept. of Labor, 243 A.D.2d 1020, 663 N.Y.S.2d 428 (3d Dept. 1997) (finding that claimant showed no indication of suffering any extraordinary event or injury on the dates specified in her application for workers' compensation, court held that "a claimant must establish a time-definiteness of an accident which can apply to either the cause of the result").
Unfortunately, sick building syndrome is often defined as a sickness which has no identifiable source within the building, thereby making recovery nearly impossible when the court requires a specific showing of causation. A very recent Delaware case appears to address specifically this very concern. In In re Petition of Greenwood Trust Company, the Superior Court upheld an administrative order to the defendant employer to produce medical records for all employees of the subject building, reasoning that plaintiff should have access to such records to show statistical evidence of causation. 1999 WL 167792, at 3 (Del. Super. 1999).
Despite this promising development in the law of Delaware, it remains unclear whether causation will continue to pose a nearly insurmountable hurdle to claimants in other states.