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By Gregory A. Krauss


Indoor air quality and related "sick building syndrome" litigation is an environmental issue
that commercial building owners and commercial property managers should recognize and follow
closely.

Indoor air quality incidents usually follow a similar pattern from building to building.
Initially a few occupants begin complaining of a combination of non-specific symptoms:
headache, fatigue, nausea, irritated eyes, nose or throat, coughs, and joint and muscle ache.
Often they claim that these symptoms diminish or disappear entirely when they leave their
office building. As the occupants discuss their symptoms with co-workers and other tenants,
they realize they are not the only ones having these problems. The inevitable conclusion is
that the building, the only common denominator for each tenant, is making them sick.

The prospect of legislation and/or governmental regulation has loomed for years. This article
will not address those issues, however. Instead, it will focus on lawsuits, their basis, and
how they might be avoided.

Most indoor air quality experts are in agreement over the historical cause of present-day
indoor air quality issues. During the energy crisis of the early- to mid-1970\'s, commercial
building owners and property managers generally reduced the volume of outside air introduced
into their buildings in an effort to conserve energy. In some instances, they were required
to do so under government regulations. Similarly, buildings designed and constructed in this
period were subject to such energy conservation measures. The theory is that these so-
called "tight" buildings, combined with the chemical emissions from modern office furniture,
equipment, supplies, cleaning solutions and cosmetics, has given rise to present-day
potential for indoor air quality complaints from occupants. Additionally, the layout of
buildings such as the location of air intakes and exhaust vents may create or compound indoor
air problems.

With legislative and regulatory action at an impasse, the courtroom is the arena in which
indoor air quality issues are being aired. These suits have potential to impact the
commercial property industry. Suits filed by occupants against building owners and property
managers are being litigated in a number of jurisdictions across the country. The suits
combine some novel injuries and traditional theories of legal liability.

The injuries being alleged by claimants in indoor air quality litigation are manifold and
range from the commonplace to the controversial.

Some indoor air plaintiffs complaint of a syndrome - so-called "sick building syndrome" - in
which they allege general non-specific symptoms including headache, fatigue, nausea, mucous
membrane irritation, coughs and muscle pain. Such complainants typically claim that their
symptoms are relieved or disappear shortly after leaving the building but return when they re-
enter the building. Often times, a significant percentage of occupants complain of the above
symptoms, yet the condition cannot be pinpointed on any specific substance in the building.

In contrast to sick building syndrome, "building-related illness" correlates with a specific
cause. Building-related illnesses are specific medical conditions with known causes.
Legionnaires\' disease is a well-known example of a building related illness. Other causes of
building related illnesses include mold and microorganisms in HVAC systems.

A controversial claim of injury made by some indoor air litigation plaintiffs is that of
Multiple Chemical Sensitivity (MCS). This alleged disease (also known as environmental
illness, 20th century disease, total allergy syndrome and chemical AIDS) is predicated on the
theory that exposure to chemicals - including low level exposures in non-industrial indoor
environments - can permanently damage the immune system such that any subsequent exposure to
other unrelated chemicals brings on an adverse reaction. Symptoms of MCS allegedly include
fatigue, headache, mucous membrane irritation, rhinitis, wheezing, intestinal disturbances,
muscle and joint pains, increased irritability and depression as well as impaired
concentration, comprehension and memory. Experts disagree over whether MCS is a real or
psychosomatic phenomenon. Some researchers have correlated MCS with pre-exposure mood
disorders.

The legal theories under which indoor air plaintiffs bring their claims are as broad ranging
as the alleged injuries. These typically include negligence, breach of implied warranty of
habitability, breach of contract/express warranty and strict liability.

Indoor air cases brought under a negligence theory, probably the most common, typically
allege that the building owner and property manager failed to exercise reasonable care in
their function of operating and maintaining the building. Reasonable care in these types of
cases would be the degree of care which a building owner/property manager of ordinary
prudence would exercise under the circumstances. For example, a plaintiff might allege that
there was a failure to exercise reasonable care to maintain the HVAC system, leading to a
proliferation of the microorganism growth with subsequent exposure and disease to the
plaintiff. Bear in mind that such claimants have the burden of proving that the alleged
failure on the part of the building owner and property manager was the cause of the
claimant\'s alleged injury.

The implied warranty of habitability theory is based on the notion that, although not
expressly stated in the lease agreement, the building owner and property manager implicitly
warrant that the building is fit for its intended use - to be occupied. The purported indoor
air problem makes the building allegedly uninhabitable, thus making it unfit for its intended
purpose. However, because the implied warranty of habitability is often predicated on the
requisites of the given jurisdictions housing code, there is a serious question as to whether
this theory is applicable to tenants in a commercial building.

In contrast to the implied warranty, the breach of contract/express warranty claim arises out
of actual language in the lease between landlord and tenant. A number of lease provisions
effecting indoor environmental conditions, including ventilation rates, temperature settings
and operation and maintenance of obligations may be cited as breached in this type of claim.
Additionally, some leases may have an express warranty that the premises will be in a
tenantable condition.

Strict liability has been asserted as a cause of action by some indoor air plaintiffs. This
theory looks not at the conduct of the defendant but at the product or service that the
defendant puts in to the stream of commerce, for example, a building or property management
service. If the product or service is defective as manufactured or designed, or is
unreasonably dangerous, and if it causes injury because of the defect, the person who put the
product or service into the stream of commerce might be held strictly liable.

Regardless of the basis for an indoor air quality lawsuit, the actions of the building
owner/property manager in carrying out its business will be the primary issue and the subject
of intense scrutiny during any indoor air lawsuit. With that in mind, it is prudent for
building owners/property managers to examine their practices and procedures now, in order to
try to prevent or avoid future litigation and potential liability.

There are a number of steps that a building owner and/or property manager can take now in an
attempt to avoid potential indoor air litigation.

1. Perform and document regular maintenance and preventative maintenance. Building systems
such as the HVAC system and its component parts should be regularly maintained. All air
filters should be changed at intervals recommended by the equipment manufacturer. Condensate
drain pans, a possible source of microbial contamination, should be regularly drained and
treated with disinfectant. Preventive maintenance should be scheduled and performed in accord
with equipment specifications. Because the actions of the building owner/property management
company will be scrutinized in a litigation setting, it is important to document all
maintenance and preventive maintenance activity in an accurate maintenance log.

2. Perform and document regular system operational checks. Besides routine maintenance, daily
checks of the air handing units and other HVAC equipment can be useful to ensure that
equipment is operating to specification. An accurate log of these performance checks might be
valuable in litigation as well.

3. Conduct a self-audit for common indoor air pollution sources. Such an audit should include:

a. inspecting the location of outside air intakes; are they in locations away from vehicular
traffic, idling trucks and loading docks, building exhausts and cooling towers?

b. reviewing the location and operation of office equipment including photocopiers and
computer laser printers; is the exhaust properly vented?

c. monitoring the introduction of furniture, carpet, wall coverings and paint into the space;
will these release chemical vapors into the space to create a problem? Low volatile products
are available on the market.

d. inspecting the performance and balance of building HVAC equipment; are air handling units
operating properly according to design and is the air distribution system balanced so that no
areas are undersupplied?

4. Communicate with your tenants. Establish an open dialogue with your tenants on indoor air
issues. Evaluate their general opinions regarding their indoor environment. Be responsive to
any complaints or concerns that your tenants raise regarding odors, particulates, temperature
or overall comfort. Investigate any complaints of illness alleged to be caused by the indoor
environment. If necessary, consult with a certified industrial hygienist or an occupational
medical specialist to evaluate any allegations of illness. Be certain to document your
efforts in responding to the alleged problem.

5. Get help when you need it. When faced with an indoor air quality problem or alleged
problem, perhaps the worst thing a building owner or property manager can do is to do
nothing. There are a number of skilled professionals, including industrial hygienists, HVAC
engineers, occupational medicine doctors and attorneys with expertise in indoor air quality
issues who can be consulted early on when an alleged indoor air problem surfaces, in order to
assist the building owner or property manager in responding.

Additionally, published guides on indoor air quality might assist the building owner and
property manager to sort through the issues. For example, "Building Air Quality - A Guide for
Building Owners and Facility Managers," jointly published by the Environmental Protection
Agency (EPA) and National Institute for Occupational Safety and Health (NIOSH) in December
1991, discusses indoor air quality problem prevention and resolution is available from the
U.S. Government Printing Office in Washington, D.C.

Essentially, the above steps can be summarized by saying that building owners and property
managers should view indoor air quality issues proactively rather than reactively. A building
owner or property manager that can avoid problems before they happen, rather than react to a
problem after the fact, is much better off.

Greg Krauss is a member of Carr Goodson Warner and the leader of the firm\'s Toxic Tort
practice group. He concentrates his practice on toxic tort, indoor air quality and
environmental litigation. Krauss handles toxic tort products liability cases including
asbestos, lead paint, silica sand, VOC exposure and indoor air quality.

For further information, contact Gregory A. Krauss at (202) 310-5530 or by e-mail.


Copyright © 1999 By Carr Goodson Warner, A Professional Corporation


DISCLAIMER: This material is public information and is not offered as individualized legal
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the contributing author(s) expressly disclaim all liability with respect to anything done or
failed to be done, wholly or partly, in reliance on this material. No client or other reader
should act or refrain from acting on the basis of this material without receiving specific
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