Keep Detailed Maintenance Records to Defend Against or Avoid Toxic Mold Lawsuits
Toxic mold lawsuits against site owners and managers have been making news. Most recently, a group of residents filed a class action lawsuit against the New York City Housing Authority (NYCHA), the nation’s largest public housing agency, for apartment conditions that constitute “an emergency or danger to their life, health, or safety.” The tenants hope a judge will force the agency to fix moldy bathrooms, leaky pipes, and breakdown-prone heat and hot water systems.
The filing marks the latest legal action charging NYCHA with failing to adequately maintain its 334 developments. In December 2013, the housing agency settled a class action suit by agreeing to let a federal judge monitor how quickly it remedies mold conditions.
Residents in these types of lawsuits claim that indoor mold in their units is causing them to suffer from a wide range of ailments, including eye or nose irritation, asthma, headaches, fatigue, sore throat, skin rash, and even cancer. In addition to lawsuits, HUD takes the presence of mold at sites very seriously. If inspectors find mold at your site, they can charge you with numerous inspection violations, including a health and safety violation that you must correct immediately or you could get into serious trouble with HUD.
With the threat of lawsuits and safety violations, it’s important to keep detailed maintenance records anytime a resident complains about mold or moisture. If you keep good records, you’ll be better able to defend yourself if you’re sued later. In some cases, good records can even help you avoid a lawsuit altogether or enable you to make a reasonable settlement.
“Plaintiffs are often represented by attorneys getting paid on a contingency basis,” explains Massachusetts attorney Stephen Marcus, “so if you have records proving that you took proper action when the complaint was made, you can discourage the resident from suing, or at least have better leverage to settle the dispute.”
What to Include in Your Records
It’s absolutely critical to the successful defense of a mold claim to have complete records detailing how you responded to a resident’s complaint about mold or moisture. These records serve as valuable evidence to prove that you acted promptly and effectively. The response can be to identify the moisture source and correct the problem. Or if mold has already grown, it can be to remove and clean the mold, as well as fix the moisture source.
To protect yourself in the event of a lawsuit, keep detailed records. Your record of each report should include the following:
1. Time of first report. Document when a resident first complained to you of a leak, a problem with moisture, or the appearance of mold, says Marcus. With few exceptions, you aren’t responsible for mold or moisture you didn’t know about. So keep detailed records of when a complaint was made. If the complaint was made in a written maintenance request, keep that request on file so that it can serve as documentation later. But there are other ways the complaint might be made, and it’s important that you document those too.
If a resident complains by telephone, use a log book to document when the call was received, who spoke with the resident, and what was said. “Telephone records are critical,” Marcus says, “because we’re now finding cases where residents are reporting after the fact that they had notified management by telephone of water issues and gotten no response.” So Marcus encourages owners and managers to implement reliable systems for monitoring calls.
Keep equally detailed notes if the complaint is made in a personal conversation. If the complaint comes via email, print out the email and keep it on file.
2. Response to report. There are several ways you can respond to a complaint of the existence of moisture or mold. It’s essential that you document everything you do, and when, including:
> Investigation of resident’s complaint. It’s important to have documentary proof—such as maintenance notes made by your staff, or letters from contractors who inspected the problem—that you investigated the resident’s complaint, because most mold cases turn on the issue of whether reasonable steps were taken in response to the complaint. Again, with few exceptions, you aren’t responsible unless you were somehow at fault for the mold growth—for example, that you ignored complaints of a moisture problem that later became a mold problem.
> Correction of problem by your maintenance staff, if possible. Some moisture or mold problems can be corrected by your maintenance staff, without the need to call in specialists like plumbers or mold remediation companies. If the problem is one your maintenance staff can correct, have them do so promptly, and keep records of exactly what was done.
> Time and date appropriate specialist was notified, if necessary. If you need to call in a specialist, document whom you called and when. Some mold or moisture problems are too difficult for your maintenance staff to correct on their own. So you should promptly notify an appropriate specialist if you conclude after investigating that one is necessary.
Depending on the situation, the contractor you notify may be a plumber, a professional mold remediation company, or anyone else qualified to correct the problem. Regardless of your choice, keeping records of who was called and when will enable you to prove later that you responded in an appropriate manner.
> Prompt response by specialist. It’s your responsibility to see to it that the specialist promptly addresses the problem. So document the time and date the specialist visits the site of the suspected mold growth. Marcus likes to see a record reflecting a 24-hour response from the time the resident made the complaint to the time the complaint was first acted on.
> Certification from specialist that work was successfully completed. If a specialist was needed to correct the problem, your records should include something in writing from the specialist, stating that the situation has been remedied. This can include a certification letter that any moisture has been dried, that any mold growth has been remediated, or that the source of a water leak has been repaired.
What Not to Include in Your Records
There are certain items that you shouldn’t include in your records because they can hinder your ability to win a lawsuit. Here are three things our experts suggest your records not include:
1. Speculation about the cause of mold. Discourage your staff from making or writing down their uneducated opinions regarding the cause of any mold that’s found. It’s not appropriate for someone other than a professional contractor, such as a certified industrial hygienist or mechanical engineer, to try to determine the cause. Statements like: “It must have come from that water leak from the heavy rainfall six months ago,” or “Another resident mentioned mold similar to this to me—maybe it’s from the same thing,” are likely to be wrong but can still create big problems for you in a lawsuit.
In some cases, it will be possible for your staff to determine the source of the moisture. In those cases, it’s okay to note in the records where the leak was. But that’s different from speculating on the cause of the leak. That’s something they shouldn’t do.
2. Speculation about health effects of mold. Like speculation about the cause of the mold, speculation about the health effects of mold should be left to medical professionals. An employee’s knowledge of mold might have come from sensationalized newspaper reports, rather than from legitimate scientific sources.
3. References to testing the type of mold. If mold is discovered, it’s irrelevant what kind of mold it is. So rather than waste time testing the mold, concentrate on identifying and fixing the moisture source, then remediate the mold growth as soon as possible.
Stephen Marcus, Esq.: Partner, Marcus, Errico, Emmer and Brooks, PC; www.meeb.com.