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Liability for Indoor Air Quality Damages Caused by a Sick Building Syndrome Condition

11th Annual Construction Law Conference

February 19 & 20, 1998

San Antonio, Texas

Thomas F. Gardner

Gardner & Kewley
Metairie, Louisiana

Abstract

This hybrid paper analyzes both engineering (ventilation) and legal (duty) issues. The technical part of this paper outlines the historical and ongoing development of minimum ventilation standards intended to combat SBS conditions. Part two of this paper focuses on the legal duties that potential defendants may owe to claimants allegedly damaged by working in buildings that operate in a SBS condition. Part three summarizes the technical facts and the controlling precedent and regulations which, when combined, suggest that there is a duty to design, to construct and to maintain an appropriate ventilation system to avoid an SBS condition.


TABLE OF CONTENTS

AN INTRODUCTION TO THE SICK BUILDING SYNDROME CONDITION ... 1
A. The Definition of Sick Building Syndrome Condition 1
B. The Definition of Buildipg Related Injuries 3
C. Is There a Health Risk Associated With a Building That Operates in
a SBS Condition and Are There Really BRIs~ 3
D. Ventilation Fundamentals 5
E. Notice of Ventilation Deficiencies 7

THE DUTY TO AVOID AN SBS CONDITION 10
A. A Designer's Duty 11
    1. The General Standard of Care in the Ventilation Design Contract 11
    2. The Ventilation Duty Owed to Third Parties 12
    3. The Sound Design Practice Standard 13
    4. The Statutory Duty of Public Safety 14
    5. Proving the Breach 14
    6. The Daubert Voir Dire of IAQ Experts and the Joiner Review of the Evidentiary Ruling 15
B. The Contractor's and the Surety's Duty to Provide a Pro~erIy
Ventilated Soace 18
C. An Owner's Duty to Ooerate a Properly Ventilated Building 19
    1. An Owner's Minimum Ventilation Duty 19
    2. Third Party SBS Claims Against Owners 20
        a. Class Actions 20
        b. Disability Claims 20
Ill. SUMMARY 21


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