Source: http://www.boston.com, August 24, 2011
By: Rona Fischman
Chelsea is the site of a precedent regarding mold litigation. Richard D. Vetstein is here to tell you about it.
Toxic mold is a dangerous condition that can arise in buildings with untreated water leaks and penetration. The most common form of “toxic mold” is Stachybotrys chartarum (also known as Stachybotrys atra), a greenish-black mold. It can grow on material with a high cellulose and low nitrogen content, such as fiberboard, gypsum board, paper, dust, and lint.
The recent case of Doherty v. Admiral’s Flagship Condominium Trust deals with a unit owner getting sick due to toxic mold at the Admiral’s Flagship Condominium in Chelsea. The toxic mold arose from persistent roof leaks at the condominium which caused untreated mold in Doherty’s unit. Roof leaks are almost always a common area problem that the board of trustees must fix. According to the trial judge, the condo management did a shoddy job repairing the damage. Feeling sick and unable to live with the toxic mold, Doherty’s doctor ordered her to vacate her unit. She filed a lawsuit for personal injuries.
The lower court dismissed Doherty’s claim under the applicable a 3 year statute of limitations because she filed the case over 3 years after the water leaks occurred. The Appeals Court overturned that ruling, holding that under the “discovery rule” the statute of limitations for a toxic mold claim starts when the injured person becomes aware of the existence of toxic mold through investigation or some physical manifestation of being exposed to toxic mold, such as respiratory symptoms, asthma and the like. In Doherty’s case, she first became aware of the toxic mold when the lab results came back in March 2006 which was within the 3 year limitations period.
According to the judges themselves, this decision is the first Massachusetts appellate case dealing with the statute of limitations for toxic mold, so it’s important. The case will make it easier for toxic mold victims to sue wrongdoers in state court. The case also highlights the importance of addressing water leaks in condominiums quickly and professionally. If the condominium management had properly dealt with the roof leaks in the first place, perhaps Ms. Doherty would not have been exposed to toxic mold in the first place.