Premises Liability

mold_houseApplication of “Discovery Rule” Enables Toxic Mold Claim To Survive Dismissal

Toxic mold is a dangerous condition that can arise in buildings with untreated water leaks and penetration. The most common form of “toxic mold” is Stachybotrys chartarum, a greenish-black mold. It can grow on material with a high cellulose and low nitrogen content, such as fiberboard, gypsum board, paper, dust, and lint. Growth occurs when there is moisture from water damage, excessive humidity, water leaks, condensation, water infiltration, or flooding. Constant moisture is required for its growth. According to the Centers for Disease Control, toxic mold causes upper respiratory tract symptoms, cough, and wheeze in otherwise healthy people; with asthma symptoms in people with asthma; and with hypersensitivity pneumonitis in individuals susceptible to that immune-mediated condition. The CDC also found limited or suggestive evidence linking indoor mold exposure and respiratory illness in otherwise healthy children.

Roof Leaks Lead To Toxic Mold

According to the August 15, 2011 case of Doherty v. Admiral’s Flagship Condominium Trust (see below), Denise Doherty owned a condominium unit at the Admiral’s Flagship Condominium in Chelsea. (If you are driving into Boston northbound on the Mystic Bridge, these are the condominium units on Admiral’s Hill under the bridge.) In 2004, a roof leak led to ceiling cracks and loosening plaster in Doherty’s unit, and she requested that repairs be made. Any repairs made were either untimely or inappropriate. In February, 2006, Doherty noticed mushrooms and water infiltration on the same threshold and notified the condominium management company. It replied that the threshold was rotted, and required replacement. The management company did a shoddy job repairing the damage.

A month later a mold remediation company found hazardous mold in unsafe levels in Doherty’s unit caused by water infiltration and chronic dampness. Following this discovery, the condominium management promised to repair the leaks, and that the mold would be removed. A mold remediation was attempted, but failed, and mold remains in the unit. In 2008, Doherty’s doctor ordered her to vacate her unit due to the presence of the mold. Although Doherty has continued to request repairs of the leaks and chronic dampness, and a full remediation of the mold, no further action has been taken. She filed suit against the condominium and its manager on February 13, 2009, claiming that due to the defendants’ failure to repair, she has suffered severe, permanent health problems, lost income, loss of her personal property, and loss of the value of her condominium unit.

Limitations Period Begins When Toxic Mold Symptoms First Arise

Doherty’s personal injury claims are governed by a 3 year statute of limitations. A statute of limitations is the time period set by law by which a person is allowed to file a lawsuit. If you sleep on your rights, you lose them.

The condominium claimed that the stopwatch for Doherty’s claims started in 2004 when the water leak occurred, and that she filed her lawsuit 2 years late. The lower court agreed and dismissed the lawsuit.

The Appeals Court overturned that ruling, holding that under the “discovery rule” the statute of limitations for a toxic mold claim starts when the injured person becomes aware of the existence of toxic mold through investigation or some physical manifestation of being exposed to toxic mold, such as respiratory symptoms, asthma and the like. In Doherty’s case, she first became aware of the toxic mold when the lab results came back in March 2006 which was within the 3 year limitations period. The court reasoned:

We agree with the foregoing cases that without some indication of a hazardous contamination, the plaintiff could not have been aware that she was being exposed to toxic mold, regardless of when the leak began. Contrary to the defendants argument, it is not a certainty that all water infiltration will eventually evolve into toxic mold. To conclude otherwise would encourage, and possibly even require, a plaintiff to preemptively file suit the moment water starts to infiltrate a dwelling or other building, before any mold or mold-related injury has even occurred.

According to the judges themselves, this decision is the first Massachusetts appellate case dealing with the statute of limitations for toxic mold, so it’s quite important. The case will make it easier for toxic mold victims to sue wrongdoers in state court. The case also highlights the importance of addressing water leaks in condominiums quickly and professionally. If the condominium management had properly dealt with the roof leaks in the first place, perhaps Ms. Doherty would not have been exposed to toxic mold in the first place!

Doherty v. Admiral’s Condo Case

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Ice-slip-drinkProperty Owners Need To Clear Snow & Ice After Storms

As I was slipping and sliding in the first real snow yesterday, this blog got a spike in traffic about Massachusetts snow removal law. Back when we were sunning in 80 degree weather, the Massachusetts Supreme Judicial Court overruled 125 years of snow removal law and announced a new rule of law that all Massachusetts property owners are legally responsible for the removal of snow and ice from their property. The old rule was that owners could leave natural accumulations of snow and ice intact and escape liability for slip and falls. No longer.

The case is Papadopoulos v. Target Corp. and can be read here. You can read my prior post on the case here.

Impact To Massachusetts Property Owners: Shovel Early & Often

What this change in Massachusetts snow removal law means for all property owners, both residential and commercial, is that they need to be extra vigilant after snow and ice storms, and clear areas in which the public and visitors have access–early and often. Whether a property owner takes reasonable steps in removing snow and ice will be determined by judges, juries and later cases on an individual basis. If you cannot clear the snow and ice, hire a private company to do it.

Important: speak with your insurance agent about increasing the limits of your liability coverage. I recommend Nadine Heaps at Purple Ink Insurance out of Ashland, MA.

Read More: Shoveling Ruling May Face First Test–Boston Globe (12.25.10).

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Ice-slip-drink

High Court Overrules 100 Years of Massachusetts Snow Removal Law

In a much anticipated ruling, the Massachusetts Supreme Judicial Court overruled 125 years of legal precedent and announced a new rule of law that all Massachusetts property owners can be held legally responsible for failing to remove snow and ice from their property. The case is Papadopoulos v. Target Corp. and can be read here.

Rejecting the old common law rule that property owners could simply leave naturally accumulated snow and ice untreated and escape liability, the SJC held that all Massachusetts property owners must remove or treat snow and ice like any other dangerous condition on property. Justice Ralph Gants reasoned that “is not reasonable for a property owner to leave snow or ice on a walkway where it is reasonable to expect that a hardy New England visitor would choose to risk crossing the snow or ice, rather than turn back or attempt an equally or more perilous walk around it.’’

Also check out my newest and most updated post (as of 2/5/15): Massachusetts Snow Removal Law Update

I am a landlord. How long do I have to shovel snow and ice on my rental property?

There is no clear cut answer to this question, and juries and courts will ultimately decide what is reasonable. The City of Boston’s policy is to give businesses 3 hours to clean snow, and 6 hours to residents. In Worcester, it’s 12 hours to clear snow. Those are the minimums. As with any dangerous condition, my advice is to shovel and treat snow and ice early and often. Even a thin coating of black ice can cause someone to slip and fall and seriously hurt themselves. (Admit it if you’ve dumped on your rear end like I have!). If you are an out-of-town landlord, you must hire someone to shovel your snow.

Am I required to shovel the public sidewalk in front of my house/business after a storm?

In most Massachusetts towns and cities, the answer is yes, and municipalities have the power to enact such bylaws and fine scofflaws. Check your local town ordinances for guidance. The cities of Boston, Cambridge, Somerville, Newton, Lynn, and Worcester (among others) all require property owners and businesses to clear municipal sidewalks in front of their residences or businesses. Fines are assessed against non-compliance. The City of Boston mandates clean sidewalks within 6 hours of a storm; Worcester is 12 hours. In Somerville, for example, if snow ceases to fall after sunrise (during daylight hours), property owners must shovel sidewalks by 10 p.m, and if snow ceases to fall after sunset (overnight), property owners must shovel sidewalks by 10 a.m. You can also be fined for shoveling snow onto the street, blocking a curb cut or putting snow on municipal owned property.

In some more residential towns, the local DPW will clear the sidewalks, but the default rule is that property owners are generally responsible for clearing their own sidewalks and driveways.

My lease states that the tenant is responsible for snow shoveling. Is that legal and will that protect me from liability?

Landlords have the primary responsibility for snow removal at rental property. Under the State Sanitary Code, property owners/landlords must keep all means of egress free from obstruction. As for the removal of snow and ice, the Code provides that the landlord shall maintain all means of egress at all times in a safe, operable condition and shall keep all exterior stairways, fire escapes, egress balconies and bridges free of snow and ice. A landlord may require the tenant be responsible for snow and ice remove in a lease provision only where a dwelling has an independent means of egress, not shared with other occupants, and a written lease provides for same. Otherwise, landlords are responsible for snow and ice removal.

Even if the tenant is responsible for snow removal under a legal lease provision, the landlord could still face personal injury liability for slip and falls on snow and ice under the Target ruling.  A person who is injured due to untreated snow or ice will likely sue both the property owner and the tenant. The property owner must ultimately ensure that the property is safe for visitors.

Will my homeowner’s or CGL insurance policy cover any injuries from slip and fall on snow/ice?

Yes, usually. The standard Massachusetts homeowners insurance policy and commercial general liability insurance policy (CGL) will have liability coverage for slip and falls on property. Make sure you have ample liability coverage of at least $500,000 to 1 Million. (You can never have enough insurance!). As with any insurance question, it’s best to contact your personal insurance agent.

I’m just a regular ol’ homeowner. What if the mailman or delivery person slips on my walkway?

You may be liable if you left dangerous snow and ice on your walkway. The new law applies to every property owner in Massachusetts, not just landlords. Get some Ice-melt and sand and spread on your walkway. If it re-freezes overnight into black ice, you will remain liable. Get back out there and spread Ice-melt!

If you have additional questions, please ask them in the comment forms below!

Resources: Mass.Gov Law About Snow and IceCity of Cambridge Snow Removal PolicyCity of Boston Know Snow Fact Page

Read More: Shoveling Ruling May Face First Test–Boston Globe (12.25.10).

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Litigation Attorney who has litigated hundreds of cases in the Massachusetts Land and Superior Courts. For further information you can contact him at info@vetsteinlawgroup.com.

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