25.5 THEORIES OF LIABILITY
25.501 Causes of Action and Parties. There are many potential causes of action available to plaintiffs for personal injuries, property damage, or economic loss damages caused by sick buildings. These include negligence, nuisance, breach of contract, breach of express and implied warranties, breach of statutory warranties for new homes or condominiums, constructive eviction (in a landlord-tenant situation), strict liability, fraud, violation of the Virginia Consumer Protection Act, and claims for disability benefits. 24 The plaintiffs in sick building actions include building owners, homeowners, homeowners associations, building operators, builders, unions, employers or employees, and landlords or tenants. 25 The defendants can include manufacturers, wholesalers, distributors, employers, sellers of homes, contractors, builders, architects, engineers, former and current building owners, landlords, homeowners associations, real estate management companies, insurance companies, and government entities. 26 There are other potential parties to these actions, depending upon the facts of each case.
25.502 Negligence. As with any negligence claim, the plaintiff asserting a sick building claim based upon negligence must establish (i) a legal duty owed to the plaintiff by the defendant, (ii) a breach of that duty by the defendant, (iii) a causal relationship between the plaintiffs injury and the defendant's conduct, and (iv) a loss suffered by the plaintiff constituting damages. 27 The plaintiff must first prove that the defendant's conduct was unreasonable and failed to meet the standard of due care under
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the circumstances. 28 Such claims sometimes arise in landlord-tenant and contractor-owner relationships where there is a question whether the defendant owes the plaintiff a duty of care and, if so, what that duty entails. 29 However, where plaintiffs have incurred only economic losses as a result of faulty construction, and not personal injuries or property damage, plaintiffs may be unable to prosecute an action for negligence, as the faulty performance would constitute breach of the construction contract only. 30 In instances where the plaintiff sustains purely economic loss, a claim for negligence may be difficult to sustain. 31
There is a common law duty not to create an unreasonably dangerous condition in constructing a home. A duty to avoid creating such a condition and of injuring homeowners is a duty imposed by law and it is not dependent upon the terms of the new home sales contract. 32 The Virginia Supreme Court has consistently explained that whether a cause of action arises from contract or tort depends on the source of duty violated. 33 Under some circumstances, a contractor's conduct can form the basis for a breach of contract and breach of a common law duty from the same set of events. 34
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Homeowners can therefore pursue a negligence claim when they are exposed to mold as a result of negligent construction that causes physical injury and damage. 35 Several notable published circuit court opinions have specifically found that there is a common law duty to use reasonable care which is breached by a contractor when its work creates an unreasonably dangerous condition that threatens or causes personal injury associated with water leaks, mold, and toxic injury: (i) Gonella v. Lumbermens Mut. Cas. Co., 36 (ii) Meng v. The Drees Company, 37 and (iii) In re Chinese Drywall Cases. 38
This principal of law, which imposes a duty not to create an unreasonably dangerous condition in constructing or repairing a home, is recognized in other jurisdictions as well. 39
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Proving the existence of the actual injury in a sick building claim can be challenging. Virginia courts have observed that "sick building syndrome is a poorly defined set of symptoms which are attributed to occupancy in building[s]" in general, without any direct link between the contaminant and the injuries. 40 In Roche v. Lincoln Property Co., 41 for instance, the court found that while molds have an adverse health effect on humans, there are no established standards to determine the levels of exposure to mold that trigger adverse health effects. 42
In addition, many sick building illnesses have a long latency period, and symptoms often manifest themselves years after the initial exposure. 43 This latency period can be a problem in the plaintiff's effort to prove a compensable loss. Unlike many other jurisdictions, Virginia does not follow the "discovery rule," under which the statute of limitations begins to run with the discovery of the injury on which the claim is based. 44 Under Virginia law, the plaintiff's cause of action accrues on the date the injury is actually sustained, which can be before all of the damage resulting from the disease manifests itself. 45 The onset of the disease itself may trigger the statute of limitations, and a plaintiff in such a latent disease case must anticipate all future harms that may arise from the same exposure to avoid being barred by the statute of limitations. 46 There are a few circumstances when the statute of limitations can be tolled; however, it requires conduct that directly or indirectly concealed the facts necessary to file a claim. 47 This high standard often, though not always, will require a plaintiff to show a defendant concealed the discovery of a cause of action by trick or artifice. 48
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This creates a problem for claims for future injuries that may just be starting to manifest themselves. Under Virginia law, a plaintiff cannot recover in tort for future injuries as a result of exposure to a toxic substance when the future injuries are not reasonably certain and no actual injury exists. 49 The court acknowledged in Joyce v. A.C. & S., Inc. 50 that, while it was "bound to follow Virginia law," the judge also felt "bound by his good conscience to express [his] displeasure with the inequity of the rule." 51 He pointed out that plaintiffs in latent disease cases face the challenge of anticipating all future harms that may arise from the same exposure to avoid being barred by the statute of limitations, but that asserting these speculative claims for future injury presents an obstacle in and of itself. 52 One possible solution for the plaintiff is to include a claim for all anticipated medical monitoring expenses at the time the initial suit is filed. But the future damages must be a real threat. For example, in Board of Directors of Lesner Pointe Condominium v. Harbour Point Building Corp., 53 a circuit court disallowed the plaintiff's claims for future injuries, ruling that allegations of the plaintiff's potentially jeopardized health failed to constitute specific actual injuries sufficient to support a negligence action.
Virginia courts could circumvent the inequities caused by this result by recognizing claims for potential injuries that pose a substantial risk, even if no actual injuries occur or the exact amount of damages is difficult to measure. The Maryland Court of Appeals recognized such a rule in Lloyd v. General Motors Corp. 54 The plaintiffs in that case were able to recover damages for negligence, under a test previously enunciated by the Maryland court, 55 because they showed that (i) the severity of the potential injuries was grave, even though the plaintiffs themselves had not suffered any actual injuries, and (ii) there was a probability that the injuries would occur. 56
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Likewise, the Seventh Circuit recognized, in Henderson v. Sheahan, 57 that a plaintiff may recover in a negligence action if the plaintiff can establish with reasonable certainty that the defendant's acts caused the increased risk of future injury.
When plaintiffs have experienced pre-existing symptoms that could be caused by a number of environmental irritants, it is particularly difficult to prove the causal relationship between the plaintiffs injury and the defendant's conduct. In those cases, the source of the suspected contaminant must be traced. 58 Courts will typically find a causal connection where the physical symptoms occur in close temporal proximity to the exposure to the toxic substance. 59 In Murhutta v. Planning Systems, the court found a causal connection between the fumigation of an office and the plaintiffs skin irritation, difficulty breathing, and hair loss because her symptoms began while she was in the office the day after it was fumigated and continued throughout the next day. 60
25.503 Negligent Repair. Negligent repair arises in tort for a violation of the common law duty to take care for the safety of the person or property of another. 61 When a contractor creates an unreasonably dangerous condition through the improper performance of its work, a breach of a duty in negligence arises. 62 This necessarily applies to original construction and repairs undertaken by a builder. Similar to negligence in the original construction of the home, negligent repair can also arise in tort for a violation
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of the common law duty to take care for the safety of the person or property of another. 63
In some instances, a potentially responsible party may incept repairs but argue it cannot be liable in tort for personal injuries under a negligence/negligent repair theory of liability because it had no initial duty to repair. However, even if there was no duty to initially conduct repairs, such fact patterns may implicate an assumed duty. 64
25.504 Negligence Per Se. The difference between negligence and negligence per se claims is that the source of the duty arises from a statute enacted for public safety. A plaintiff asserting a negligence per se claim must allege three elements: (i) that the plaintiff belongs to the class of people that statute was passed to protect, (ii) that the harm suffered was the type the statute was designed to protect against, and (iii) that the violation was the proximate cause...
