Lawsuits involving mold have dropped out of the spotlight recently in popular media. This does not mean that few cases now involve mold. As this field has continued to develop and mature, the quantity of the cases making it to trial has tended to decrease, and the “quality” has tended to increase. Proof must be expert and detailed, or a court will toss a case in the early pre-trial stages.
Two recent cases from Cuyahoga County concerning alleged mold infestations show what happens to the weaker cases that still get filed.
The first case, Dunn-Halpern v. Mac Home Inspectors, 2007-Ohio-1853, involved the sale of a house. Dunn-Halpern and her husband visited the home several times before making an offer. The court noted that during these visits, they were able to walk through the house unrestricted.
Dunn-Halpern also hired Mac to inspect the property. Mac issued a report finding the house free of any water or mold damage. Dunn-Halpern started renovations and discovered substantial mold growth throughout the house. The mold appeared in discrete and inaccessible areas, such as under wallpaper and baseboards.
Dunn-Halpern sued, among others, the sellers of the house. She alleged that the sellers’ failure to disclose the mold damage constituted fraud and therefore effectively rescinded the purchase contract.
The court found it “clear that the [sellers’] actions were not fraudulent. They were under a duty to disclose all known defects.” The fact that the mold did not appear on any visible surface of the house and that the home inspections did not uncover any evidence of mold or water damage clearly indicated that the sellers had no knowledge of the mold. Further, the court found that Dunn-Halpern did not present any evidence to show that the sellers intentionally concealed any water damage. The court affirmed the trial court’s decision to grant judgment to the defendants without a trial (a summary judgment).
The second case from Cuyahoga County involved the rental of residential property. In Cesarespada v. Bandlow, 2007-Ohio-4062, the court examined several issues, including causation. Did mold actually cause the alleged injuries?
The Bandlows leased the property from Cesarespada. Shortly after they executed the lease, the Bandlows raised concerns about water damage in the basement and the effect it could have on their health. The parties traded accusations regarding each party’s obligations under the lease. Ultimately those claims were settled, leaving only the Bandlows’ claim for personal injury due to their likely exposure to mold.
According to the Bandlows, the presence of water damage in a home creates the presumption of injury. They should not have to prove they were injured. The court did not agree. The Bandlows were required to present evidence to support their claim that they were exposed to harmful molds. With no evidence to support the claim—not even medical records—the court affirmed the trial court’s decision granting judgment to Cesarespada without a trial.
he key in both decisions was missing evidence. For the first case, the plaintiff failed to present any evidence that the defendant knew about the existence of the mold. In the second case, the claimants failed to present any evidence of a connection between their health and any possible exposure to harmful mold.
While ignorance was bliss for the home sellers, under other circumstances the court might find that the required knowledge either existed or should have existed. The reach for the renters was more difficult. The connection of mold exposure to serious health issues is difficult to demonstrate. Many very well-qualified scientists still debate this point.
However, an owner should not assume that the issue of mold no longer needs to be addressed. The presence of mold in the indoor environment still contributes to the quality of air for an occupant of the space. Exposure to mold is known to cause respiratory irritation.
As these two cases show, litigants will still prosecute mold actions. While the connection is hard to prove, the best defense is still a good offense in eliminating the mold. When mold is discovered, the best response is prompt elimination of the water intrusion and remediation of the mold.