Burden of proof falls on tenant in mold-related suit

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Burden of proof falls on tenant in mold-related suit

Delay in reporting leak also hindrance

Chicago Tribune*

RENTING BY JANET PORTMAN

August 1, 2008

Q: Our tenants recently told us about a plumbing leak that has

apparently been there for some time. The wallboard and cupboards

were damp and there was black mold everywhere. We called the plumber

right away and also replaced part of the wall, and thought no more

about it until we were served with a lawsuit brought by our tenants.

The husband is claiming that the mold has caused serious and

permanent health damage. We know he suffers from asthma, but how can

he prove that it was the mold in the apartment that made him sicker?

Wasn't he partly at fault for not telling us about it sooner?

A: Your tenant may have a difficult time pinning any worsening of

his health problems on the mold. To be successful, there are two

kinds of evidence he could present: First, he could take surface or

air samplings of the mold and look for any mycotoxins that the mold

produces (mycotoxins are produced by some molds and make some people

sick). But just because you've identified a mold capable of

producing mycotoxins doesn't mean that this particular batch did so.

In any event, because you've removed and destroyed the wallboard,

this method of proof isn't really an option for your tenant.

Second, he could have his blood tested to see if it contains

antibodies that, arguably, he would have developed after being

exposed to mycotoxins.

But many courts will not admit this type of evidence because the

scientific community itself is not uniformly convinced of its

reliability.

Your tenant may yet be able to prove his case, using new techniques

involving DNA. The new DNA testing identifies mycotoxins' DNA in a

person's blood or tissue, and can identify up to 40 kinds of molds.

This test seems to consistently satisfy judges' admissibility

standards because it is reliable and specific. But it will still be

up to your tenants to convince a judge or jury that the mycotoxins

came from the mold in their apartment, and not from somewhere else.

Your tenants' failure to alert you of the plumbing problem may pose

further difficulties to their case. In this area, at least, we're

not dealing with emerging science, or law, for that matter.

Hopefully, your lease or rental agreement includes a clause

requiring your tenants to tell you of any serious or potentially

serious maintenance problems (don't be too worried if it's not there–

juries will expect tenants to exercise common sense). Your tenants

should have spoken up when the black spots began to appear, if not

before. Their failure to do so resulted in the continued growth of

the mold (which heightened the risk of the health problems they

claim it caused). This might be a garden-variety instance of someone

contributing to a problem created by someone else, known in legalese

as contributory negligence or comparative negligence. In every

state, once the jury decides there's fault to be shared, the amount

a plaintiff may collect will be diminished or even destroyed.

If you haven't done so already, get in touch with your insurance

carrier right away. As long as your liability policy has not

excluded mold as a covered peril, you should be able to hand over

the case and let the lawyers and scientists working for the carrier

do all of the work. And, in the future, be sure to include a clause

in your rental documents requiring tenants to tell you about

maintenance concerns, and inspect your rentals on a yearly basis to

see any developing problems for yourself.