Georgia Court of Appeals Reverses in Mold Premises Liability Case Between Tenant and Landlord

martian-mold-1556041-300x225When one hears that a legal dispute has arisen between a landlord and tenant, one tends to think that the issues are related to rent. However, a variety of legal conundrums, including those related to negligence, can arise between a landlord and tenant. For instance, in a recent decision, McCarney v. PA Lex Glen, LLC, the Georgia Court of Appeals addressed an interesting issue regarding whether a landlord can be held liable for a persistent mold problem that caused harm to a tenant’s health.

The facts at issue in McCarney started in August 2012, when the plaintiff moved into an apartment complex in Sandy Spring, Georgia. The plaintiff resided at the complex until September 2013.  In or around late August of that year, he spoke with tenants who lived above him about possible mold in the building. On that day, the plaintiff inspected the ventilation in his apartment and found what was described as a black substance. The plaintiff’s roommate also searched and found that the air conditioning system was leaking into his closet and that the wall of the closet was covered in a large swatch of the black substance. The records showed that the plaintiff’s apartment also suffered from a variety of other leaking and cooling issues. On September 3, the plaintiff e-mailed the management company of the apartment complex, demanding that the mold problem be abated. An agent for the management company came to the apartment and later testified that he did not see any mold but that he did, however, hire a mold contamination company to perform an inspection and authorized a duct replacement if necessary. The plaintiff independently hired a mold analysis company to perform an inspection. On September 25, the plaintiff notified the management company that he was canceling his lease because of mold contamination. Earlier in his tenancy at the apartment complex, the plaintiff had been receiving several treatments for sinus aliments, including a sinus surgery.

Following his departure from the complex, the plaintiff brought suit against the management company, asserting various claims sounding in, inter alia, nuisance, breach of contract, negligence, and personal injury. At the conclusion of discovery, both parties moved for summary judgment. The trial court granted the management company’s motion for summary judgment in its entirety, and the plaintiff then brought the current appeal. The sole issue on appeal was whether the trial court properly granted summary judgment on the plaintiff’s personal injury claim. The trial court granted the motion because it found that there was insufficient evidence from which a jury could reasonably conclude that any negligence on the part of the management company caused the plaintiff’s illness. However, the Court of Appeals found this conclusion to be in error and reversed the trial court’s grant of summary judgment.

In toxic tort cases such as this, causation can usually be shown by the presentation of reliable expert testimony showing that there is a reasonable probability that the negligence caused the injury. See, e.g., Fouch v. Bicknell Supply Co., 326 Ga. App. 863, 869 (2014). In opposition to the motion for summary judgment, the plaintiff provided testimony from his treating physician, who testified that he removed mold from the plaintiff’s nose during the aforementioned sinus surgery. The physician also testified that the plaintiff’s condition did not improve following surgery and that he recommended he leave the apartment at that point. The physician admitted during his deposition, however, that he could not be certain the mold removed from the plaintiff’s nose was the same as that in the apartment complex. Nevertheless, the physician stated that in light of the fact the plaintiff’s sinus issues did not subside following the surgery, he believed there was a significant likelihood the apartment mold contributed to the plaintiff’s health problems. Moreover, the Court of Appeals noted that even if the testimony were insufficient, in isolation, it was bolstered by additional evidence supporting a finding of causation. Indeed, the plaintiff testified that the onset of his sinus symptoms coincided with his residence in the apartment and provided a report from the mold company stating that the spore count in the carpet of his apartment topped 4,000,000 units, far exceeding the 40,000-unit level commonly accepted as safe. Given the physician’s testimony and other corroborating evidence, the Court of Appeals reasoned there was sufficient evidence from which a reasonable jury could find that the apartment mold condition was the probable cause of the plaintiff’s symptoms. Accordingly, the court reversed the trial court’s grant of summary judgment and remanded the case for trial on the personal injury claim.

Fortunately for this plaintiff, he will get a chance to present his case to a jury of his peers. However, there are many others who fail to get past the various stages of litigation that precede a trial on the merits. Indeed, summary judgment is often the expiration point of many claims, including possibly meritorious ones, when hapless litigants fail to show that there is sufficient evidence for a jury to find in their favor. Although some claims are resurrected following an appeal, as was the case here, it is often better to not rely on appellate court intervention to save a claim. Accordingly, those with possibly meritorious negligence claims should consider finding counsel experienced in trial court advocacy prior to undertaking legal action to obtain recovery. The Atlanta premises liability attorneys at Christopher Simon Attorney at Law have represented a number of plaintiffs in both federal and state courts, and they are ready to provide you with assistance in navigating the legal hurdles from complaint to jury verdict. If you’ve been injured as a result of possible negligence and are curious about the legal options you may have, feel free to contact us for a free case consultation.

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