Landlord and tenant – Mold – Statute of limitations

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Where a plaintiff has brought suit alleging that he was sickened by exposure to toxic mold while working in office space leased from the defendant town of Framingham, the complaint must be deemed timely under the discovery rule, so the town is not entitled to summary judgment.

Trialworthy claim

“From 1995 to December 2008, [plaintiff David G.] Player leased office space in a building that was owned by the town. This building, commonly referred to as the Maynard Building, is located at 14 Vernon Street. …

“While a tenant, Mr. Player detected a musty odor and noticed several water leaks as well as wet and brown-stained ceiling tiles and stained and smelly carpets within the building. He pointed these issues out to the maintenance staff. However, apart from general custodial duties, and periodically replacing stained ceiling tiles and patching holes within the roof, the town did little to maintain the building. In 2008, the town relocated the school department to the third floor. Consequently, Mr. Player lost his lease and was required to leave the building.

“Throughout his tenancy, Mr. Player experienced coughing and wheezing while he worked. When he moved to the third floor, he began to face additional health problems including cognitive deficits, headaches, heart palpitations, ‘brain fog’, fatigue, energy loss, weakness, dizziness, tremors, daily nose bleeds, sore throat, chest and sinus congestion, itchy skin, athralgia, joint pain, light sensitivity, and mood issues. These issues would abate some when he left the building for the day. During the last two years of his tenancy, his symptoms worsened, and in 2008-2009, Mr. Player was diagnosed with bladder tumors.

“On May 5, 2010, Mr. Player read an article in the MetroWest Daily News which stated that mold had been discovered in the Maynard Building. Upon reading this information, it occurred to him that the health issues he continued to face might be associated with exposure to the mold during his tenancy there. …

“On December 29, 2011, in accordance with G.L.c. 258, section4, Mr. Player sent a Notice of Claim letter to the town and, on May 3, 2013, filed this action. …

“… Under the discovery rule, ‘a cause of action accrues when “an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused [him] injury.”‘ … In other words, the statute of limitations begins to run when: 1) the plaintiff knows or has sufficient notice of the harm; and 2) knows or has sufficient notice of the cause of the harm. …

“Mr. Player contends that although he was aware of his injuries while still a tenant in the Maynard building, he was not aware that toxic mold in the building caused these injuries until he read the newspaper article on May 5, 2010 which informed him that mold was present at the building. The town disputes that Mr. Player made the connection between the mold and his health conditions at this point and instead, insists that he realized there was a possible link a few weeks earlier when he spoke with the woman at Staples who told him that she had heard that the building was loaded with mold. Thus, the town alleges that Mr. Player failed to file his claim within the applicable time period because his claim actually began to accrue weeks before May 5, 2010. Therefore, it contends that his claim is time-barred.

“The town, however, inflates Mr. Player’s deposition testimony in order to come to this conclusion. At his deposition, Mr. Player stated that after he chatted with the woman at Staples, he ‘started to wonder if perhaps the mold might have had some impact upon [his] health.’ … The town equates this statement to mean that after having a casual conversation with an acquaintance, he made a definitive connection between the mold in the building and his health complications. The court, however, respectfully disagrees with the town’s interpretation of this statement. The term ‘wonder’ hardly rises to the level of knowledge, especially here where his source of information was a casual acquaintance who had also worked in the building. Instead, after speaking with this woman, it is reasonable to infer that Mr. Player merely had a passing image about the impact of possible mold on his health. A passing image does not rise to the level of knowledge.

“Mr. Player has met his burden of showing that he has a reasonable expectation of proving that his claim was timely filed. He has, at the very least, established a genuine issue of fact about when he actually made a connection between his illnesses and the mold. There is also sufficient evidence in the record to create a dispute over whether his lack of knowledge was objectively reasonable. … The town argues that no reasonable person would have failed to understand that the conditions of the building caused the illnesses from which he suffered. The town points first to the conditions of building as support for its contention. However, the mere fact that the building was musty and had signs of water damage is not sufficient as a matter of law to put an individual on notice of the presence of toxic mold. … Secondly, the town points to the fact that Mr. Player experienced his symptoms only while in the building and how these symptoms quickly abated upon leaving the premises. However, the extent and when he suffered his symptoms is disputed within the record. Finally, the town highlights the fact that three other people, including his secretary, suffered from the same type of symptoms while in the building. This issue is also disputed in the record. The parties also disagree over when Mr. Player actually became aware of the fact that other individuals were allegedly suffering from similar symptoms. Thus, these are all issues for the jury to determine after examining the credible evidence. …

“The town further argues that Mr. Player has failed to provide evidence showing that toxic mold existed within the building during his tenancy. It contends that the only conclusive evidence of mold existing within the building comes from an air quality study conducted on March 11, 2010. According to the town, without an expert, Mr. Player cannot show that this mold was present within the building fifteen months earlier while Mr. Player was still a tenant.

“However, Mr. Player has submitted sufficient evidence to suggest that there was mold present within the building while he was a tenant. While the study that verifies the existence of mold was not conducted until 2010, two years after Mr. Player had vacated the premises, a jury could reasonably conclude that the mold found in this study existed while Mr. Player occupied an office there considering the condition of the building during that time. Further, the study noted that several types of the mold discovered within the building were indicative of long-term water damage. Contrary to the town’s assertion, the jury would not need to hear evidence from an expert concerning the life cycles of mold to reasonably conclude that mold existed in the building during Mr. Player’s tenancy. This is a factual dispute. Therefore, Framingham’s motion is denied.”

Player v. Town of Framingham (Lawyers Weekly No. 12-080-14) (4 pages) (Curran, J.) (Middlesex Superior Court) (Docket No. 13-CV-1648-F) (June 26, 2014).

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