Why Mold Growth Presents
Problems In Buildings
Gregory Baker - AMEC Earth & Environmental, Inc.
July 7, 2008
Author Greg Baker is a certified industrial hygienist and indoor
air quality professional with over 20 years of consulting experience in
buildings. Mr. Baker is an associate with AMEC Earth and Environmental in
Portland, Oregon.
Mold has become a major indoor air quality issue and a perceived public
health problem in the United States, Canada, and Western Europe.
Mold-laden, moisture-damaged buildings correlate with higher-than-average
incidences of occupant complaints and reports of non-specific health
symptoms. Molds and some other fungi cause problems in buildings because
they are decomposers. As long as adequate moisture is available, mold
will grow. Through the process of decay, mold destroys building materials
and furnishings composed of organic carbon-based compounds.
Many biologically-derived particles in the environment are allergens,
including pollens, animal dander, and mold. When these particles become
airborne they are called bioaerosols. Human responses to bioaerosol
exposures include irritation, allergic, and pathogenic effects; and under
some circumstances, and at some level, toxigenic effects may be possible.
Once mold particles enter the human lung through inhalation, the body's
primary response to mold is irritation and possibly a variety of
non-specific health symptoms. When exposed to airborne mold, most people
will experience some degree of discomfort or irritation, but few people
will experience an allergic reaction. As a group, asthmatics are an
exception; they are more sensitive to airborne particles, and their
reaction to a similar mold exposure is likely to be more pronounced and
severe.
A few mold species are pathogenic, that is, they are capable of growing in
human tissue and causing an infection or disease. However, mold-caused
diseases seldom occur in normal healthy individuals. Groups likely to be
at the greatest risk of developing an infection from exposure to molds are
the very young, the very old, and the immuno-compromised. Today the use
of immune-suppressant drugs is widespread, and patients frequently become
immuno-compromised during the treatment of a variety of medical
conditions. Burn victims, organ-transplant patients, those undergoing
chemotherapy, and those suffering from AIDs are very susceptible to a few
species of pathogenic mold. Aspergillis fumigatus is an example of a
potentially pathogenic mold that hospitals monitor closely and diligently
control. Immuno-compromised patients that contract aspergillosis while
hospitalized, frequently die from this fungal infection.
What about toxic mold, or black mold? Is it really that dangerous? Is
"toxic mold" the "next asbestos" or is it merely the latest toxic tort du
jour? "Toxic mold" is nothing more than a term coined by the media - a
term with little or no scientific basis. Many mold species are capable of
producing mycotoxins (i.e., fungi poisons) that are bound to their
cellular structures. Unlike volatile organic compounds (VOCs), mycotoxins
are not gasses or vapors that can be easily dispersed and inhaled.
Mycotoxins are large molecular weight, non-volatile organic compounds that
are incapable of "off-gassing". For mycotoxin exposure to be possible,
they must be inhaled or ingested in particle form (i.e., as dust).
Some strains of Stachybotrys chartarum - the so-called "toxic black mold"
- are capable of producing mycotoxins under optimal environmental
conditions. The popular press has sensationalized Stachybotrys by labeling
it "toxic"; however, the media consistently fails to inform the public
that "it is the dose that makes a poison." In non-industrial and
non-agricultural settings - such as schools, homes, and office buildings -
it is highly improbable for people to be exposed to enough airborne
Stachybotrys to suffer a toxic effect.
In theory, if foods contaminated with Stachybotrys were ingested by a
human, the mycotoxins produced by this organism could cause a toxic effect
resulting in tissue damage, organ failure, and even death. However, the
unfortunate individual would have to consume a sufficient quantity of the
mycotoxin, above and beyond a threshold-level dose necessary to "make a
poison". In buildings impacted by moisture and mold, most occupants
typically do not eat foul-smelling, poor-tasting, mold-laden building
materials. For additional information on this subject, refer to the
website of the American College of Occupational and Environmental Medicine
(ACOEM6).
Mold will only grow indoors when uncontrolled moisture is present in a
building. By design, moisture is supposed to be controlled in buildings,
and uncontrolled moisture is supposed to be kept out of buildings. When
mold grows, there is a proximate cause for the property damage that
results, usually related to one or more of the following factors: a
building defect, poor planning prior to construction, inadequate
supervision during construction, lack of maintenance after construction, a
catastrophic event, or some other problem.
Recently indoor mold has become a cottage industry for construction defect
attorneys, construction defect consultants, mold consultants, mold
remediation contractors, and building restoration contractors. When mold
is not managed properly, it can cause major problems for a building owner,
property manager, and tenants. These parties are faced with conflicts of
interest. And any of these "problem solvers" can become part of "the
problem", particularly if the situation "turns legal" and is headed
towards litigation.
A legal web of responsibilities connects various parties when moisture
problems arise in a building. As a construction project reaches
substantial completion and becomes available for occupancy, a number of
warrantees, contractual agreements, and regulatory obligations take
effect. These responsibilities oblige all parties to act with reasonable
care. Failure of any party to act with reasonable care (i.e., negligence)
can create liability for all.
Mold contamination is very susceptible to personal injury litigation based
upon negligence. The theory goes like this. The conditions that allow for
illness from exposure to mold requires negligence. Negligence only occurs
when parties fail to act with reasonable care, and damages result, or are
alleged, such as impaired health or economic loss. Based on this theory
the property owner is ultimately responsible for the condition of the
building, its environment, and the safety of those who are invited onto
the property. However, all parties that had anything to do with the
original construction of the building - including the design and
construction management - can also become entangled in the legal web.
This also applies to any subsequent mold remediation and repair work that
may follow.
The legal web of responsibilities dictates that the building owner and
others act with prudence and consider various risks. For example, let's
say we remediate a mold-impacted building and are confident that we have
done things right. All parties involved in the design and execution of
the repairs may still be named in a lawsuit, particularly if there is a
perception that the standard of care was not followed. The risk of being
"forced to defend" remains and the defense costs can be considerable.
Therefore, all parties involved with resolving moisture and mold issues
are advised to exercise due diligence and to proceed with an abundance of
caution.
Warrantees also can create risk for building owners and others. State and
local codes often imply a "warranty on habitability" regarding landlords
and leases. Although this primarily affects residential properties, it
can also apply to commercial properties. Habitability is defined as "the
minimum standard of decent, safe, sanitary housing". When a building's
indoor air quality is impaired and excessive mold is present, these
conditions can afford a tenant with "a constructive eviction", which
allows the tenants to vacate the property and end the lease.
To make matters worse for landlords and building owners there are several
"over a barrel" risk factors that must be considered. Tenants can sue for
personal injury based upon negligent acts and alleged damages. Again, the
landlord may be "forced to defend", even if health-related damages could
not be proven (which is usually the case with mold).
In most cases the science just is not solid enough to demonstrate cause
(mold exposure) and effect (disease). There are very few instances where
a plaintiff prevailed in a mold-related lawsuit and was also awarded money
for personal injury. Also, defendants - and their insurance providers -
are prone to settle out of court; insurance companies are reluctant to
risk letting these types of cases go to a jury trial, and owners/landlords
often wish to avoid the publicity that their property is likely to receive
if a suit goes to trial.
If a perceived or genuine indoor air quality problem goes to press, the
property's reputation may become tainted and the owner/landlord stands to
lose out. Replacing tenants and the cash flow they provide may be
difficult and time consuming. Even in instances where tenants obviously
have "no case", landlords often decide to take a loss, rather than fight,
face bad publicity, and risk the threat of a lawsuit.
Another category of risk for property owners and managers to consider is:
owners and tenants are often employers, and employers have a general duty
to protect the safety and health of their employees. If visible mold is
present and employees are reporting health symptoms, safety and health
regulators may respond, increasing the possibility of regulatory
liability.
To complicate matters for landlords and building owners, some states have
adopted, or are considering laws requiring notification to potential
purchasers of real estate. Full disclosure of a building's history -
related to water damage and mold remediation projects - may be required
now or sometime in the future. This type of legislation may impact the
value of specific properties, and this scenario has the potential to
present conflicts of interest to an owner and a real estate agent who are
motivated to sell.
In summary, mold growth has the potential to cause a variety of problems,
including property damage, impaired indoor air quality and personal
injury. In addition to possible contractual and regulatory liabilities,
those involved with resolving moisture and mold issues must consider
standard of care issues. This is absolutely necessary to minimize the
potential for liability associated with negligence.
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