United States: The Potential For Recovery Of Emotional Damages In A Mold Lawsuit: Two Areas For Analysis

The proliferation of lawsuits stemming from the presence of mold in homes and businesses across the country has alerted defense attorneys to the prospect of damages for the negligent infliction of emotional distress. Specifically, it is conceivable that plaintiffs who claim damages to their property because of mold may also bring claims for personal damages because of (1) the emotional distress they experienced upon discovering mold’s presence in their property; or (2) the potential for developing a mold-related illness.

The United States Supreme Court has recognized that there are only limited instances in which the negligent infliction of emotional distress is recoverable: ". . . where that distress accompanies a physical injury . . . and distress suffered by a close relative who witnesses the physical injury of a negligence victim . . . and, in particular, . . . where a plaintiff seeking such damages satisfies the common law’s ‘zone of danger’ test." Metro-North Commuter R.R. Co. v. Buckley, 117 S.Ct. 2113, 2117 (1997). (The classic "zone of danger" illustration is a mother standing next to her child as her child is struck by an automobile. The mother in that case would probably be able to recover for the negligent infliction of emotional distress because she was within the zone of danger.)

Keeping these principles in mind, we examine two scenarios in which a plaintiff may attempt to recover damages for emotional distress as a result of mold.

As a general rule, a plaintiff cannot recover money damages for the negligent infliction of emotional distress caused by negligent damage to his or her property.

There are a few exceptions to this general rule that are worth noting, however. An award for mental anguish allegedly resulting from property damage may be permissible when the property was damaged by a defendant’s intentional or illegal act, by an act for which the defendant could be considered strictly or absolutely liable, by acts constituting a nuisance, or when the property owner is present or nearby and suffers psychic trauma as a result. Braxton v. Guillory, 721 So.2d 114 (La. Ct. App. 3d Cir. 1998). These exceptions clearly exhibit extreme situations, and are honored by courts only when the facts present reach extreme levels. These exceptions seem inapplicable in a mold case. It is difficult to imagine a situation in a mold context that would involve intent, illegality, or a plaintiff’s psychic trauma because mold was found in his or her property. Mold cannot be placed in a home or planted in an office. It grows on its own, independent of any individual’s intentional act.

The proliferation of information in the media that mold is a toxic substance, as well as the large verdicts returned in recent mold cases have alerted the public to the possibility that mold may be a danger to human health. It is therefore conceivable that the plaintiffs’ bar will begin to allege claims of negligent infliction of emotional distress because of the fear of contracting a disease after exposure to toxic mold, such as those claims that arose after asbestos was determined to be harmful to human health. Although mold’s health threat to humans is still relatively unknown, and the information that is available is essentially inconclusive, it is still likely that cases stemming from a plaintiff’s fear of developing a mold-related illness are forthcoming. Based on the precedent set in asbestos cases, it is safe to assume that claims for the negligent infliction of emotional distress because of exposure to mold will prove futile. In the asbestos cases, courts typically held that absent bodily harm or other compensable damages, recovery for coming into contact with asbestos fibers was not warranted. See, e.g., Ayers v. Jackson, 461 A.2d 184 (N.J. Super. 1983); Burns v. Jaquays Mining Corp., 752 P.2d 28 (Ariz. App. Div.2 1987); Deleski v. Raymark Industries, Inc., 819 F.2d 377 (3^rd Cir. 1987); Mergenthaler v. Asbestos Corp. of America, 480 A.2d 647 (Del. Super. 1984); Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3^rd Cir. 1985).

As discussed previously, courts typically only award damages for the negligent infliction of emotional distress when a plaintiff experiences actual physical injury or is present when an emotionally devastating event takes place. Courts that heard claims for the negligent infliction of emotional distress because of fear of contracting an asbestos-related disease did not award damages because the plaintiffs did not exhibit any physical injury. The same should hold true for mold cases. If a plaintiff in a mold case alleges he or she has sustained mental injury as a result of his or her fear of developing a mold-related disease, the case should be dismissed at the pleadings stage. If there is no physical injury present, there should be no recovery because the cause of action for the negligent infliction of emotional distress is not present. Further, facts present in any mold case do not present a zone of danger scenario that would allow for recovery. Finally, and perhaps most importantly, unlike an asbestos case, injuries that may develop from contact with mold are still understudied, and inconclusive. Unlike an asbestos case, where the potential for disease was understood, disease stemming from mold may not cause illness, so how can the potential for illness sustain a recovery?

It is probably only a matter of time before plaintiffs’ attorneys across the country will begin to bring cases sounding in the negligent infliction of emotional distress because of damage to a plaintiff’s property, and/or from a plaintiff’s fear of contracting a mold related disease after exposure to mold. Given the precedent that has been established thus far in related cases, negligent infliction of emotional distress because of mold’s presence is not likely to be a cause of action that will prove successful.