Toxic mold is a bit of a misnomer. Although some types of mold (fungus) can produce toxins, the molds themselves are not toxic. Many attorneys and mold remediation companies utilize the term toxic mold when referring to mold such as stachybotrys chartarum and toxigenic aspergillus, which cause adverse reactions in some people. This could include upper respiratory illness, asthma, or even life threatening problems.
Mold develops when there is excessive moisture, such as when a home or building experiences a pipe leak, a basement flood, a roof leak, etc. Additionally, mold can cause property damage. Mold removal is a thorough, costly, and time consuming process, but is also absolutely necessary for health and safety reasons.
In order to file a lawsuit, you must have legal standing. In toxic mold cases, you generally have standing if you are:
- A Tenant: Tenants, those who lease their homes, are the most common group of individuals to file toxic mold claims. This group is the most likely to experience health issues as a result of toxic mold exposure. This is primarily due to the fact that the buildings they live in tend to be older structures that are built with materials that are prone to molding. Poor building maintenance is another contributing factor. Tenants can brings suits against their landlords, building managers, or ownership company for reasons such as health problems caused by toxic mold;
- A Homeowner: As previously mentioned, toxic mold issues in home are generally due to poor construction utilizing mold prone materials; this is true even for newer construction. Homeowners may also have issues when a toxic mold inspector fails to identify any toxic mold issues in the home. Homeowners can bring a suit against their homebuilders, inspectors, real estate brokers, or anyone else who may have caused the mold issue, or had a duty to disclose any toxic mold issues; or
- Other Parties: Parents of children who were injured due to a toxic mold issue in their school, camp, or any other place that caused their child to be exposed to toxic mold may sue on the child’s behalf. Employees have legal standing to request workers’ compensation if exposure to toxic mold in the workplace has lead to health problems or disability. Further, government agencies can bring a suit against contractors or inspectors for government employees’ toxic mold injuries.
In general, you will have legal standing if you were personally injured by exposure to toxic mold. The success of your claim is dependent on the quality of your evidence, as well as the quantity of your evidence. You will need to show that:
- You were exposed to toxic mold;
- That exposure caused personal injuries or property damage;
- You were owed a duty to warn or prevent the toxic mold growth, and this duty was violated; and
- You have damages related to the mold exposure.
The best examples of evidence to meet these conditions include:
- Documentation of the mold and its development, if possible; this could include photographs, videos, and inspection reports;
- Medical evidence that proves a link between the mold exposure and your health issues, such as allergy testing results, pulmonary testing results, and chest x-rays;
- Records or disclosure statements that failed to disclose the presence of water damage and/or mold; or
- Copies of expenses that have occurred as a result of the mold exposure, such as medical bills, lost wages, replacement costs of damaged goods, and mold remediation.
Every lawsuit will have different results depending on the circumstances of the case. In general, your damages will depend on the extent of the mold growth, the severity of your response to the mold you were exposed to, and the costs associated with treating your conditions and/or repairing your property.
Compensatory damages are most common. Damages may be recovered for both economic and non-economic losses, such as medical bills, repair costs, and compensation for pain and suffering. Most states will rule that the losing party pay the other side’s attorney fees as well. If an insurer, homebuilder, or landlord intentionally or unintentionally mislead the injured party concerning the presence of mold, punitive damages may also be awarded.
You will need to be prepared to face a few obstacles when suing for damages related to toxic mold. Proving injury could prove difficult because not every doctor will agree that there is a relationship between “toxic mold” and some health conditions that you may be experiencing. Many insurance companies won’t cover toxic mold issues, although attorneys might label toxic mold with other, specific language to work around this issue. It can be difficult to prove causation, as well as responsibility, as contractors or landlords could always blame the issue on poor housekeeping on the part of the tenant.
Proving injury is difficult but absolutely necessary. Damage to property, harassment, retaliation, and constructive eviction are common ways to bolster damage awards in toxic mold cases.
Toxic mold cases are nuanced and require a great deal of technical expertise. Additionally, multiple areas of law be involved in a toxic mold claim, including breach of contract disputes and personal injury claims. A knowledgeable and qualified personal injury attorney can help you determine what your best course of action is, as well as represent you in court, if necessary.