Copyright © 1995 by The School of Law Texas Tech University Lubbock, Texas 79409-0004 Reprinted and Posted with express permission.

Gene Heady is a Partner in Smith, Currie & Hancock's Atlanta office. Smith, Currie & Hancock is a national law firm focusing on construction law, government contracts, environmental law, and commercial litigation.

Contact Gene at [email protected] or directly at 404-582-8055 STUCK INSIDE THESE FOUR WALLS: RECOGNITION OF SICK BUILDING SYNDROME HAS LAID THE FOUNDATION TO RAISE TOXIC TORT LITIGATION TO NEW HEIGHTS

I considered [fresh air] an enemy, and closed with extreme care every crevice in the rooms I inhabited. Experience has convinced me of my error. I now look upon fresh air as a friend: I even sleep with an open window. I am persuaded that no common air from without is so unwholesome as the air within a close[d] room that has been often breathed and not changed. 1 Benjamin Franklin

Benjamin Franklin made this statement in response to controversial new theories for building ventilation requirements, which excited considerable debate during the 1700s. Subsequently, in 1863, one of the earliest documented cases of sick building syndrome (then-unnamed) occurred in Columbus, Ohio.2 Ohio State Capitol building employees were plagued by a mysterious illness dubbed "statehouse malaria. " 3 Its source was traced to basement air passages that were clogged with debris, and to raw sewage flowing from water closets into an air duct, instead of into the sanitary sewer system.4 Today, the World Health Organization estimates that nearly thirty percent of all new and remodeled buildings worldwide may be

1. LEWIS W. LEEDS, LECTURES ON VENTILATION AT FRANKLIN INSTITUTE, 1866-67 8 (New York, John Wiley and Sons 1868) (quoting a letter by Benjamin Franklin to Dr. Ingenhaus, Physician to the Emperor at Vienna). Franklin further stated: You physicians have of late happily discovered, after a contrary opinion had prevailed some ages, that fresh and cool air does good to persons in the small-pox and other fevers. It is to be hoped, that in another century or two we may all find out that it is not bad even for people in health. ld. at 9. In 1905, Andrew Harvey, President of the American Society of Heating and Ventilation Engineers added: Within the next 10 years, the people of every state of the Union will have become so well­ informed of the necessity for properly ventilated schools and public buildings that it will be considered as great a crime to construct these buildings without providing for sufficient and proper ventilation, as it would be to erect a building without a proper foundation. Ed Bas, Complaints of Poor IAQ in Buildings Require Quick Response, AIR CONDITIONING, HEATING & REFRIGERATION NEWS, Oct. 24, 1994, at 6. 2. Ohio State Capitol Undergoes HVAC Redesign, AIR CONDITIONING, HEATING & REFRIGERA­ TION NEWS, May 9, 1994, at 13, 25. The statehouse was built between 1839 and 1861. /d. at 13. Four coal-fired steam boilers were installed in 1855, giving the building its first heating and ventilation system. /d. 3. . /d. 4. /d.

1041 1042 TEXAS TECH LAW REVIEW [Vol. 26:1041

afflicted with indoor air quality problems that may lead to sick building syndrome.5 The fact that poor indoor air quality has made building occupants sick is not new.6 Widespread recognition of sick building syndrome coupled with proposed governmental regulation of indoor air quality, however, will likely result in an increase in toxic tort litigation.7 This Comment focuses on the recent history of sick building syndrome, its definition, its possible causes, and the existing and potential common law causes of action associated with sick building syndrome. 8 Part I reviews the history of sick

5. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AIR AND RADIATION PuB. NO. ANR- 445-W, INDOOR AIR FACTS No.4 (revised): SICK BUILDING SYNDROME 1 (Apr. 1991). 6. Early treatises on mechanical equipment for buildings recognized the necessity for the proper ventilation of indoor air. See, e.g., 1 LOUIS A. HARDING & ARTHUR C. WILLARD, MECHANICAL EQUIPMENT OF BUILDINGS 274 (1916). Harding and Willard recognized that "[w]herever human beings are present in closed quarters the gaseous products of respiration should be removed as rapidly as possible, and fresh air supplied.'' /d. Early ventilation engineers were also concerned with human odors, dust, and bacteria /d. at 286. To test for bacteria, for example, engineers collected equal volumes ·of both fresh outdoor air and the suspected contaminated indoor air and drew them through separate tubes coated with beef jelly. Jd. Bacteria was then allowed to colonize within the tubes. /d. Engineers then compared the developing bacteria colonies to determine the relative contamination of the indoor air. /d. In a subsequent work, Harding and Willard stated: The vital importance of supplying densely occupied rooms or buildings with conditioned air is each day becoming more generally recognized. That the ill effects of repeated and protracted exposure to stagnant and overheated air result in the slow but sure production of throat and lung trouble and reduced vitality and efficiency has been conclusively shown by the repeated observations of many eminent physicians, both in this country and abroad. Even a reduction of the death rate in prisons and hospitals has resulted when proper ventilation has been installed. In this connection, Prof. S.H. Woodbridge states: "Prison records show reduced death rates chiefly as a result of effective ventilation. In one case the rate diminished from a yearly average of eighty deaths to one of eight, each period covering the same and a considerable number of years.'' LOUIS A. HARDING & ARTHUR C. WILLARD, HEATING, VENTILATING AND AIR CONDITIONING 468-69 (1937). 7. Recently, the Occupational Safety & Health Administration (''OSHA'') proposed the adoption of standards to address indoor air quality in work environments. See generally Proposed Rules of the Department of Labor, Occupational Safety and Health Administration, on Indoor Air Quality, 59 Fed. Reg. 15,968, 15,971 (1994) (to be codified at 29 C.F.R. pts. 1910, 1915, 1926, 1928) (proposed Apr. 5, 1994). The proposed standards explicitly recognize sick building syndrome and building-related illness. !d. at 15,970-972. Sick building syndrome was also at issue in recent debates respecting the proposed Indoor Air Act of 1994. See generally 140 CONG. REC. Hl0,593-02, H10,596 (Oct. 3, 1994) (statement of Rep. Joseph P. Kennedy, III, arguing that "inhalation of contaminants accounts for hundreds of thousands, if not millions, of complaints of immediate sick building symptoms such as asthma, bronchitis, headaches, fatigue, and dizziness, and nausea"). The bill, H.R. 2919, passed on a motion by Representative Waxman with an amended title to read: "A bill to authorize a national program to reduce the threat to human health posed by exposure to contaminants in the air indoors." !d. at H10,597. 8. Possible or pending governmental attempts to regulate indoor air quality are beyond the scope of this Comment. For a discussion of governmental regulation respecting indoor air quality, see generally Grace C. Guiffrida, Comment, The Proposed Indoor Air Quality Acts of 1993: The Comprehensive Solution to a Far-Reaching Problem?, 11 PACE ENVTL. L. REV. 311 (Fall 1993); Steven A. Loewy et al., Indoor Pollution in Commercial Buildings: Legal Requirements and Emerging Trends, 3 U. BALT. J. ENVTL. L. 29 (Winter 1993). 1995] SICK BUILDING SYNDROME 1043 building syndrome as it grew out of the energy crisis of the 1970s and details three recent high profile cases of sick building syndrome. Part II defines sick building syndrome, considers its possible causes, and examines its prevalence in commercial buildings. Part III reviews the contemporary technical approaches taken to prevent and solve sick building syndrome problems. An attorney should be particularly aware of and consider these approaches when advising owners, architects, engineers, and contractors on the preparation and acceptance of contract documents for new construction. Next, Part IV addresses some common law causes of action that an attorney should consider or expect to encounter when faced with a sick building syndrome claim. Fin~ly, Part V focuses on. common law negligence as a possible cause of action. This part considers the respective duties of owners, architects, engineers, and contractors; addresses the inherent difficulties in establishing causation when faced with a sick building syndrome claim; and argues for a good faith extension of the personal injury exception to the economic loss doctrine.

I. A QUARTER CENTURY OF ENERGY CONSERVATION

The 1970s was a decade of tremendous change with respect to our nation's use of energy. The Arab Oil Embargo of 1973 heightened awareness of the benefits of a national commitment to the conservation of natural resources. Energy conservation became a major economic and political issue.9 The building industry responded with numerous methods of making homes and workplaces more energy efficient. One method employed to increase energy efficiency was to make buildings ''tighter. ''10 Changes in design and construction inade buildings ''tighter'' by reducing 11 the introduction of outside air. . To accomplish this reduction, builders and designers weatherstripped or sealed openings that allowed outside air to infiltrate the building envelope and adjusted mechanical ventilation and air conditioning systems to reduce the amount of outside air drawn into a building. 12 The concept was simple: Reduce the introduction of outside air, and there is less air volume to heat or cool. 13 Accordingly, in 1973, the American Society of Heating, Refrigerating and Air-Conditioning

9. RICHARD SCHOEN, NEW ENERGY TECH.'PilOLOGIES FOR BUILDINGS 1 (1975). Schoen stated that in 1975 the construction phase of buildings consumed eight percent of U.S. electrical energy production, and building operations consumed forty percent /d. He estimated that energy consumption in commercial buildings could be reduced by forty percent with minimal cost by considering several factors, including the maintenance of a building's mechanical system. /d. 10. See generally THAD GODISH, SICK BUILDINGS: DEFINITION, DIAGNOSIS AND MITIGATION 4-5 (1994) (discussing the relatively recent history of tight buildings). 11. /d. at 4. 12. /d. 13. /d. 1044 TEXAS TECH LAW REVIEW [Vol. 26:1041

Engineers (' 'ASHRAE' '), the primary professional organization charged with developing and recommending industry standard ventilation rates, lowered the recommended rate of outdoor air ventilation for commercial buildings from twenty CFM (cubic feet per minute) per person (building occupant) to five CFM per person.14 Lowering the standard ventilation rate effectively shifted the concern for human comfort and health in favor of the concern for energy conservation. 15 Lowering the standard ventilation rate, however, was not without its problems. Reducing the introduction of outside air allowed the inside air to become stale and allowed contaminants that might otherwise be purged to become concentrated inside.

14. ASHRAE STANDARD 62-73, Standards for Natural and Mechanical Ventilation, (Am. Soc'y of Heating, Refrigerating and Air-Conditioning Eng'rs 1973). The need to establish formalized standards to improve ventilation dates back to the Middle Ages, when indoor air quality was frequently noted to be unacceptable. ARCHITECTURAL DESIGN AND INDOOR MICROBIAL POLLUTION 123 {Ruth B. Kundsin ed., 1988). To alleviate [the problem of poor indoor air quality], regulations were developed which specified the sizes of windows to be installed in buildings. In the 1600s, King Charles I of England promulgated what may have been the first ventilation code. To improve ventilation for removal of smoke, odors, and heat, he specified that no house could be built with a ceiling height of less than 10 feet and that the heights of windows had to be greater than their widths. ld. (citations omitted). In a paper submitted at ASHRAE's 1986 Indoor Air Quality Conference, Dr. James E. Woods, an IAQ expert. stated: . [A]nother form of prescriptive ventilation standard was introduced in 1824 by a Welsh mining engineer, T. Tredgold, who argued that a minimum outdoor ventilation of 4 cfm/person was

required for coal miners: 3 cfm for dilution of C02 exhaled by the miner and 1 cfm for the C02 emitted by the candle on the miner's helmet His argument may have been the first rationalization between "ventilation rates" and "indoor air quality." Toward the end of the 19th century. J.S. Billings argued that much higher ventilation rates of 30 to 60 cfm/person were needed to protect occupants from airborne transmission of diseases such as tuberculosis. This rationalization was the basis for the first American ventilation standard, reported in Volume 1 of the Transactions of the American Society of Heating and Ventilating Engineers (1895). Dr. James E. Woods et al., Rationalization of Equivalence Between the Ventilation Rate and Air Quality Procedures in ASHRAE Standard 62, in PROCEEDINGS OF THE ASHRAE CONFERENCE IAQ'86: MANAGING INDOOR AIR FOR HEALTH AND ENERGY CONSERVATION 181, 181-82 (1986) (citations omitted). 15. GODISH, supra note 10, at 352. In a biography of Willis Haviland Carrier, the Cornell­ educated engineer Margaret Ingels pointed out that "[t]or five thousand years human beings had tried without success to conquer the discomfort caused by hot, humid air." MARGARET INGELS, FATHER OF AIR CONDITIONING 14 (1952). Ingels explained: The fan, whose origin is lost in antiquity, was probably the first of many such devices. One of the next recorded efforts involved evaporative cooling employed by an Assyrian merchant. Three thousand years before Christ he had the walls and floor of a room below his courtyard sprayed with water by his servants in hot weather. Several Roman emperors reportedly brought snow from the mountains to cool their gardens in the summer. Around 775 A.D. Caliph Mahdi of Baghdad had a summer residence built with double walls between which imported snow was packed. /d. Beginning in 1775, and with an obvious concern for increasing human comfort, researchers and engineers began to learn how to successfully cool, circulate, and moisten indoor air. /d. 1995] SICK BUILDING SYNDROME 1045

By the late 1970s and early 1980s, suspicion arose that the energy conservation methods instituted in the 1970s may have been contributing to a decline in the overall quality of indoor air in ''tight'' buildings. 16 Despite increasing evidence of health problems associated with poor indoor air quality, the recommended ventilation rate of five CFM per person remained unchanged when ASHRAE published its 1981 standard. 17 By the mid 1980s, the medical and scientific communities increasingly recognized an emerging problem that they dubbed "tight building" or, more commonly, 18 "sick building" syndrome. · Subsequently, the term "sick building syndrome'' has been used to. describe a scattered spectrum of symptoms suffered by building occupants, in which no specific origin or etiological factor can be identified. 19 Because ventilation rates were suspected of contributing to sick building syndrome complaints, ASHRAE responded in 1989 by increasing the recommended ventilation rate for commercial buildings to twenty CFM per person-the pre-1973 standard.20 Nevertheless, it is overly simplistic to conclude that the entire blame for sick building syndrome should be placed on an inadequate ventilation rate in a particular building.21 Although ventilation rates have always been

16. GODISH, supra note 10~ at 352. ''The explosion in sick building complaints in the late 1970s and throughout the 1980s and attempts to mitigate them by general ventilation led many in the IAQ [indoor air quality] community to conclude that prescribed ventilation rates were too low and were in fact a major contributing factor to the sick building 'epidemic."' /d. 17. ASHRAE STANDARD 62-1981, Ventilation for Acceptable Indoor Air Quality, (Am. Soc'y of Heating, Refrigerating and Air-Conditioning Eng'rs 1981). 18. An article in The Journal of the American Medical Association indicated that the "newly emerging sick building syndrome" could be broken down into six categories: (1) hypersensitivity pneumonitis caused by microorganisms breeding in building ventilation systems, (2) building related infections such as Legionnaires' disease, caused by Legionella pneumophilia. (3) irritation of skin and mucous membranes caused by exposure to fibrous glass or mineral wool, (4) allergies associated with mites or mold embedded in carpeting, (5) mass hysteria arising after one occupant "smells something in the building" and suddenly many others become sick, and (6) "annoyance-irritation syndrome" possibly caused by "an excess of positive ions in the air." Donald E. Riesenberg, Sick Building Syndrome Plagues Workers, Dwellers, 255 JAMA 3063, 3063 (1986); see also New Data on Illnesses as Costly Lawsuit Ends, ENGINEERING NEWS-RECORD, Apr. 14, 1988, at 9, 10, available in Westlaw, Magsplus database, 1988 WL 2110229 (citing an Army study that found soldiers at increased risk of contracting respiratory infections due to energy conservation measures that "tightened" buildings). 19. GODISH, supra note 10, at 1. 20. ASHRAE STANDARD 62-1989, Ventilation for Acceptable Indoor Air Quality, (Am. Soc'y of Heating, Refrigerating and Air-Conditioning Eng'rs 1989). Copies of the complete standard can be obtained from the American Society of Heating, Refrigerating and Air-Conditioning Engineers, 1791 Tullie Circle, N.E., Atlanta. GA., 30329-2305, (404) 636-8400. 21. GODISH, supra note 10, at 4-5. In response to an inquiry regarding possible future revisions to ASHRAE STANDARD 62-1989, Mr. John Zierer, Assistant Manager of Standards International, ASHRAE, responded: ·The committee responsible for revision of Standard 62 has determined that, for spaces which do not contain strong contaminant sources, the practical upper limit of dilution by outdoor air is reached at 15-20 CFM/person. Limitation and control of contaminants become necessary if indoor air quality is to be further improved. 1046 TEXAS TECH LAW REVIEW [VoL 26:1041 suspect, a claim complaining of illness or disease caused by sick building syndrome is usually complicated by the multitude of potential contaminant sources and potential causes of common symptoms. 22

A. Sick Building Claims are Expected to Proliferate

Notwithstanding measures taken by the building industry to alleviate sick building complaints, it is likely that as public attention is focused on sick building syndrome, associated claims will be seen more frequently. 23 In his book, Legal Responses to Indoor Air Pollution, Frank B. Cross contends that " [t ]here is a widespread expectation among attorneys and building owners that sick building syndrome cases will proliferate during the 1990s.' ' 24 This expectation may have been influenced, in part, by three recent high profile sick building syndrome cases in Florida and Texas that have focused national attention on the problem.

1. The Polk County Courthouse

Florida's $37 million Polk County Courthouse, hailed as an architectural showcase when it was completed in July 1987, was evacuated in July 1992 after more than 460 of its 580 employees developed illnesses ranging from coughs to irreversible lung disease, which were linked to the building itself.25 The Polk County Courthouse consists of a ten-story tower and two three-story wings. 26 Renovations required to combat complaints of sick building syndrome have included: removal and replacement of approximately

As a result, the revision committee has added sections on HV AC system maintenance, moisture and microbial control, use oflow-emitting materials, etc., while basically maintaining ventilation rates at the 62-1989 level. Letter from Mr. John Zierer. Assistant Manager of Standards International, ASHRAE, to Gene Heady. Staff Member, Texas Tech Law Review Vol. 26 (Feb. 21, 1995) (on file with author). 22. FRANK B. CROSS, LEGAL RESPONSES TO INDOOR AIR POLLUTION 169 (1990). 23. See generally Randall J. Dean. In Defense ofTight Building Syndrome. FOR THE DEF., Aug. 1991. at 2, 6 (concluding that owners should not ignore SBS complaints because as public awareness grows it is a certainty that many more lawsuits will be filed alleging SBS injuries); see also $4.6 Billion Suit Filed in Texas Court Against Manufacturers, School Contractors, TOXICS L. DAILY, Apr. 2, 1990, available in Westlaw. BNA-TLD database (plaintiffs' attorney predicting that during the next few years indoor toxicity claims will become an active area of la~); New Data on Illnesses as Costly Lawsuit Ends, ENGINEERING NEWS-REC., Apr. 14, 1988, at 9, available in Westlaw, Magsplus database, 1988 WL 2110229 (stating that the number of SBS lawsuits is increasing and announcing that a newsletter, the Indoor Air Pollution Law Report, has been launched to track such cases). 24. CRoss, supra note 22. at 169. The book describes Mr. Cross as an Associate Professor of Business Law at the University of Texas and Associate Director of the Center for Legal and Regulatory Studies. /d.. at 207. 25. Alan Snel, Polk, Martin Counties Forever Linkl!d in Sick-Building Annals, PALM BEACH POST, Sept. 5, 1993, at 1A, 16A. 26. /d. at 16A. 1995] SICK BUILDING SYNDROME 1047

800,000 bricks to facilitate the installation of a new vapor barrier, replace­ ment of sixty-nine air-handling units, replacement of carpeting, replacement of ceiling tiles, removal of vinyl wallpaper, and replacement of interior walls.27 Essentially, the building was gutted.28 As this case suggests, the ripple effects of remedying a sick building syndrome problem can have a devastating economic impact on the community.19 Because of the high cost of the courthouse renovations, Polk County (population 420,000) was forced to drop other projects, such as: a regional park, a data processing center, a parking lot addition, and the purchase of environmentally sensitive land.30 In addition, Polk County was forced to tap into sales tax revenue to pay off the bond issue associated with the renovations.31 As of July 1994, $30 million had been spent or allocated on renovations. 32 Of that ·amount, · Polk County has recovered $6.6 million in associated lawsuits, including $5 million from the general contractor. 33

2. The Martin County Courthouse

In Martin County, Florida, a new $10.6 million county courthouse has already required ,$15 million in renovations to alleviate complaints of sick building syndrome.34 As of December 1994, that amount is expected to exceed $17 million before renovations are complete. 35 The Martin County Courthouse complex consists of two four-story buildings and a three-story courthouse.36 The complex was completed in January 1989 but was evacuated in December 1992 after more than fifty percent of its 218 employees developed sick building syndrome symptonis.37 Renovations required to combat complaints of sick building syndrome focused on the removal of mold contaminated interiors, the repair of leaky

27. /d. 28. /d. 29. /d. 30. /d. 31. /d. 32. Ed Bas, Duct Cleaning Put On Trial in Polk County Courthouse, AIR CONDITIONING, HEATING & REFRIGERATION NEWS, July 18, 1994, at 14, 14. Additionally, the county is considering spending another $3 million to replace all of the interior-lined mechanical ductwork, based on fears that it may be impossible to clean adequately. /d. 33. Snel, supra note 25, at 16A. Other lawsuits are pending, and the county hopes to reach more settlements with individual subcontractors. /d. 34. Marc Freeman, County Won't Leave Sick Courthouse for New One, PALM BEACH POST, Dec. 7, 1994, at 1B; see also Thomas A. Mahoney, JAQ Market Will Continue to Grow During This Decade, AIR CONDITIONING, HEATING & REFRIGERATION NEWS, Mar. 7, 1994, at 3, 3 (reporting that $11 million had already been spent or committed for renovations, as of the beginning of 1994). 35. Freeman, supra note 34, at 1B. 36. Snel, supra note 25, at 16A. 37. Snel, supra note 25, at 16A. 1048 TEXAS TECH LAW REVIEW [Vol. 26:1041 walls and roof, and the replacement of the air-conditioning system. 38 Specifically, renovations included: (1) installation of a self-healing waterproof membrane and · vapor barrier on the building exterior, (2) extension of the vapor barrier onto the window frames to eliminate water infiltration, (3) installation of air diffusers specially designed to increase ventilation effectiveness, (4) installation of a four-stage air filtering system incorporating a treated synthetic media designed to remove airborne bacteria and inhibit microbial growth, (5) installation of blow-through, rather than draw-through, fans that will maintain positive air pressure relative to the outside environment, ( 6) elimination and encapsulation of insulation within the air supply ductwork, (7) elimination of vinyl wall coverings, (8) use of paint characterized by its minimal rate of emission of volatile organic compounds, (9) installation of carpeting containing an antimicrobial compound, (I 0) installation of less porous ceiling tiles, ( 11) installation of ceiling tiles after the emission of volatile organic compounds associated with the carpet installation has diminished, thus avoiding the reabsorption of contaminants by the ceiling tiles, and (12) installation of a completely computer controlled HV AC (heating, ventilating, and air-conditioning) system that allows some local flexibility without compromising the proper operation of the entire system.39 One unique change was the addition of an energy management system monitor in the main lobby of each building that aletts occupants to the amount of outside air entering the building, the average temperature and humidity, and the relative air pressure compared to the outside.40 The purpose of making this monitor readily visible to all occupants is to reassure them that the renovated mechanical system is working as designed.41 Although renovations were expected to take less than one year, the reconstruction is now in its third year.42 The building is not expected to reopen until July 1995.43 Not surprisingly, Martin County filed suit against both the architects and the builders.44 As of November 1994, paid or committed legal fees had reached $924,926.45 The county now estimates

38. Snel, supra note 25, at 16A. 39. Building Update: Courthouse Remediation Bill Nears $20 Million, INDOOR AIR QUALITY UPDATE (Cutter Information Corp., Arlington, MA), Feb. 1995, at 7, 9-10. 40. /d. at 9. 41. /d. 42. Freeman, supra note 34, at 4B. 43. Freeman, supra note 34, at 4B. 44. Snel, supra note 25, at 16A. 45. Freeman, supra note 34, at I B. Other paid or committed costs have included $2,478,004 ($2,573,004 total estimated to complete) for air conditioning and cleaning, $150,000 ($150,000 total estimated to complete) for county maintenance, $657,267 ($657 ,267 total estimated to complete) for demolition and miscellaneous, $1,190,797 ($1 ,353, 797 total estimated to complete) for engineering, $410,510 ($460,510 total estimated to complete) for environmental and medical, $1,760,816 ($2,167,265 total estimated to complete) for evacuation and relocation, $142,827 ($208,673 total estimated to 1995] SICK BUILDING SYNDROME 1049 that associated legal fees will ultimately reach $1,992,296.46 As in the Polk County Courthouse case, this case also suggests the devastating economic impact attributable to the ripple effects of remedying a sick building problem. For example, Martin County still owes $9 million on an original $10.6 million construction bond issued in 1986.47 In addition, the county was forced to issue a $12 million bond for courthouse reconstruction in July 1994.48 Finally, consideration of a plan to completely abandon the gutted downtown courthouse and build an entirely new building outside city limits was met with threats of lawsuits.49 Both residents and business owners resisted the proposed plan, claiming that such a move would devastate downtown revitalization.50

3. The Amelia Scudder Elementary School: Rogers v. Keller Martin Organization

In Texas, a $4.6 billion suit was filed in 1990 alleging that both school children and adults had been exposed to a number of indoor air contami­ nants in the then two-year-old Amelia Scudder Elementary School building in Wimberly.51 Nearly five years later, on February 6, 1995, the suit was settled for an undisclosed amount.52 The plaintiffs included forty-four children and forty-two adults.53 The original suit named twenty-nine defendants including materials manufacturers, material suppliers, mechanical engineers, architects, and contractors. 54 The plaintiffs alleged that exposure to the indoor air contaminants caused physical injuries including nausea, vomiting, lethargy, dizziness, and irritation of the eyes, nose, and throat. 55

complete) for project manager and staff, and $7,387,016 ($7,387,016 total estimated to complete) for reconstruction and space changes. /d. 46. Freeman, supra note 34, at 1B. 47. Freeman, supra note 34, at 4B. 48. Freeman, supra note 34, at 4B. 49. Freeman, supra note 34, at 4B. 50. Freeman, supra note 34, at 4B. 51. See generally $4.6 Billion Suit Filed in Texas Court Against Manufacturers, School Contrac­ tors, TOXICS L. DAILY, Apr. 2, 1990, available in Westl~w BNA-TLD database [hereinafter $4.6 Billion Suit] (citing Rogers v. Benjamin Moore & Co., No. 90-009348 (I 57th Dist. Ct., Harris County, Tex., pet filed Feb. 26, 1990)). Note that the court formally changed the style of this case to read Roger.~ v. Keller-Martin Organization. Letter from Pete T. Patterson, Lead Counsel, London & Associates, to Gene Heady, Staff Member, Texas Tech LAw Review Vol. 26 (Feb. 9, 1995) [hereinafter Patterson letter (Feb. 9, 1995)] (on file with author). The Keller-Martin Organization, Inc. is the genera! contractor. /d. 52. Patterson letter (Feb. 9, 1995), supra note 51. 53. Letter from Pete T. Patterson, Lead Counsel, London & Associates, to Gene Heady, Staff Member, Texas Tech Law Review Vol. 26 (Mar. 7, 1995) [hereinafter Patterson letter (Mar. 7, 1995)] (on file with author). The Amelia Scudder Elementary School has an enrollment of approximately 325 students. $4.6 Billion Suit, supra note 51. 54. $4.6 Billion Suit, supra note 51. 55. $4.6 Billion Suit, supra note 51. 1050 TEXAS TECH LAW REVIEW [Vol. 26:1041

In addition to punitive damages, the suit sought tuition and transportation expenses resulting from alternative schooling, past medical expenses, future medical expenses, attorneys' fees, court costs, prejudgment interest, and postjudgment interest. 56 The suit alleged violations of the Texas Deceptive Trade Practices­ Consumer Protection Act ("DTPA") and sought relief under negligence, gross negligence, and strict liability theories.57 With respect to alleged violations of the DTPA, the plaintiffs argued that ''as taxpayers of the Wimberly Independent School District," they were '"consumers' within the meaning of the [Act]."58 This liberal reading of the DTPA is noteworthy because it survived the defendant's motion for _partial summary judgement, thus allowing the plaintiffs to go forward with their DTPA cause of 9 action. 5 The plaintiffs alleged ·that the defendant manufacturers produced (1) abnormally dangerous products, and (2) unreasonably dangerous products that contained inherently dangerous chemicals, which are unsuitable for an educational facility. 60 The plaintiffs also alleged that the defendant manufacturers failed to ( 1) test the inherently dangerous products for use in an educational facility, (2) take precautions against using the inherently dangerous products in an educational facility, (3) warn the parents and children of the dangers, and (4) warn the parents and children that the school's ventilation system was inadequate to protect them.61 Similar allegations were lodged against other defendants.62 The plaintiffs alleged that during the planning and construction stages, the defendants breached express and implied warranties that the school would be a useful and safe educational facility free of contamination with toxic chemicals.63 The plaintiffs also alleged that the defendants violated the DTPA by engaging in false and misleading practices; by falsely representing that their services were of high quality and would meet necessary standards;

56. $4.6 Billion Suit. supra note 51. The lead plaintiff, Connie Rogers, moved her son to a private school after he developed symptoms including lethargy, nasal infections, fevers, and an inability to breathe. /d. On the advice of the family physician, she has kept her son from contact with man-made substances ranging from cleaning products on supermarket shelves to plastic toys, for fear that the child's symptoms will return. /d. At their country home, Ms. Rogers replaced her son's bedding with an all­ cotton mattress, replaced her chemical furniture polish with natural oils, and even removed all the carpeting throughout the home. /d. 57. $4.6 Billion Suit, supra note 51. 58. Plaintiffs' Fourth Amended Petition at 11, Rogers v. Keller-Martin Org., No. 90-009348 (157th Dist. Ct., Harris County, Tex., pet. filed Feb. 26, 1990) [hereinafter Plaintiffs' Fourth Amended Petition]. 59. Telephone Interview with Pete T. Patterson, plaintiffs Lead Counsel, London & Associates (Feb. 7, 1995). 60. · $4.6 Billion Suit, supra note 51. 61. $4.6 Billion Suit, supra note 51. 62. $4.6 .lJillion Suit, supra note 51. 63. $4.6 Billion Suit, supra note 51. 1995] SICK BUILDING SYNDROME 1051 by misleading the plaintiffs with respect to the quality and benefits of their services; and by failing to properly advise, consult, and notify the plaintiffs of the dangers. 64 The plaintiffs alleged that the defendants conspired with other chemical manufacturers and distributors for the purpose of actively suppressing and intentionally misrepresenting the health hazards associated with the use of certain dangerous chemicals in products placed in educational facilities.65 The plaintiffs also asserted that the defendants intentionally misrepresented and suppressed competent medical evidence of the dangers associated with prolonged expQsure to these chemicals in a closed environ­ ment, in order to cause the plaintiffs to remain ignorant of the dangers. 66 Finally, the plaintiffs alleged that ( 1) the defendants ''failed to ensure that, upon its completion, the facility would have adequate ventilation,'' (2) the defendants "constructed the Scudder School with such inadequate ventila­ tion so as to permit the build-up of hazardous amounts of toxic gases, vapors and/or fumes within the'facility,'' and (3) the construction materials incorporated in the school ''contained and/or emitted hazardous amounts of various toxic chemicals, including, but not limited to: urea and phenol formaldehyde, [and volatile organic compounds ("VOCs"), including] pentane, hydrocarbon[s], carbon dioxide, carbon monoxide! styrene, ether, trichloroethane, toluene, xylene and phenycyclohexecne.' ' 67 After reviewing the facts associated with these three high profile sick building syndrome cases, the magnitude of potential sick building syndrome claims should be unmistakable. As sick building syndrome claims are expected to proliferate, both personal injury attorneys and attorneys representing building owners, architects, engineers, manufacturers, suppliers, and contractors must familiarize themselves with sick building syndrome and the attendant issues associated with poor indoor air quality.

II. SICK BUILDING SYNDROME DEFINED

Typically, published reports on indoor air quality in buildings describe indoor air quality problems in terms of three related, yet distinct, categories: Sick Building Syndrome68 ("SBS"), Building-Related Illness ("BRI"), and Environmental Tobacco Smoke ("ETS").69 .As one studies published reports on indoor air quality, however, it becomes apparent that many

64. $4.6 Billion Suit, supra note 51. 65. $4.6 Billion Suit, supra note 51. 66. $4.6 Billion Suit, supra note 51. 67. Plaintiffs' Fourth Amended Petition at 10, 15. 68. Earlier publications often refer to SBS as ''tight building syndrome.'· 69. ETS is not directly addressed in this Comment. and because by definition ETS is related to a specific source contaminant, i.e., tobacco smoke, it is probably more appropriately considered a subset of BRI. 1052 TEXAS TECH LAW REVIEW [Vol. 26:1041 commentators have encountered difficulty when trying to distinguish between definitions of SBS and BRI. Dr. Thad Godish, Director of the Indoor Air Quality Research Laboratory, suggests that one major difficulty in attempting to define SBS "is that one [is] attempt[ing] to define that which is at best poorly understood. " 70 Dr. Godish argues that "[a]ny definition will, therefore, reflect the limits of our understanding.' '71 Although the terms SBS and BRI have distinct definitions, they are often used interchangeably. 72 Not surprisingly, using the terms inter­ changeably creates some confusion. In retrospect, the scientific and medical communities could have avoided such confusion by simply dividing BRis into two distinct categories rather than struggling to distinguish between BRI and the newly coined SBS. One category, for example, could have included all BRis where the specific cause is known. The second category could have included all BRis where the specific cause is unknown. Recognizing the confusion in terminology, some commentators view SBS and BRI claims on a continuum, categorizing those claims that are subtle, more difficult to defme and document, and less serious, as SBS, and categorizing the more serious clinically diagnosed and clinically defined claims as BRI. 73 Viewing SBS and BRI on a continuum is the most logical, practical, and workable approach when trying to understand the problem and its attendant technical and legal issues. Perhaps, viewing SBS and BRIon a continuum is best illustrated graphically as shown below in Figure 1.

BRI-SBS CONTINUUM

BRI SBS

Known Cause Unknown Cause Known Contaminant(s) Unknown Contaminant(s) Known Source Unknown Source More Serious Less Serious Symptoms Linger Symptoms May Disappear

(Figure 1)

70. GODISH. supra note 10. at 4. 71: GODISH, supra note 10, at 4. 72. GODISH. supra note 10, at 4. 73. Thomas F. Icard, Jr. & Wm. Cary Wright. Sick Building Syndrome and Building-Related Illness Claims: Defining the Practical and Legal Issues, CONSTRUCfiON LAw., Oct. 1994, at 1. 27. 1995] SICK BUILDING SYNDROME 1053

A. Building-Related Illness

BRI describes clinically defined illnesses that are traceable to specific sources in buildings, often linked to bacteria found in the ventilation system.74 BRis include: (1) sensory irritation when caused by known agents, (2) respiratory allergies, (3) nosocomial infections, (4) humidifier fever, (5) hypersensitivity pneumonitis, (6) Legionnaires' disease (perhaps the most notorious example), and (7) symptoms characteristic of exposure to chemical or biologic substances including carbon monoxide, formalde­ hyde, pesticides, endotoxins, ·and my~otoxins. 75 Exposure to bioaerosols (airborne biological contaminants) containing viruses, fungi, bacteria, or protozoans cause some of these symptoms. 76 In BRI cases, once an occupant leaves the affected building, the symptoms may or may not disappear.77 In contrast, symptoms of occupants suffering from SBS typically disappear upon leaving the affected building. 78 Susceptibility to a BRI is influenced by a number of host (i.e., the building occupant or claimant) factors, including the host's age and immune system status. 79 Often BRis are potentially severe and can result in serious illness or death.80 Accordingly, identification and removal of the contami­ nant source is required to mitigate the BRI, especially if the BRI involves a hypersensitivity response.81 BRis have been traced to specific contami­ nant sources including mold infestation and/or microbial growth in cooling towers, air handling systems, and water-damaged fumishings. 82

74. Steven A. Loewy et al.,lndoor Pollution in Commercial Buildings: Legal Requirements and Emerging Trends, 3 U. BALT. J. ENVTL. L. 29, 39 (Winter 1993) {citing INSURANCE INFORMATION INSTITUTE, INSURANCE REVIEW 33 {1990)). 75. Proposed Rules of the Department of Labor, Occupational Safety and Health Administration, on Indoor Air Quality, 59 Fed. Reg. 15,968, 15,971 (1994) (to be codified at 29 C.F.R. pts. 1910, 1915, 1926, 1928) (proposed Apr. 5, 1994). The American Society of Heating, Refrigeration and Air­ Conditioning Engineers has urged that OSHA clarify its definitions of SBS and BRI and clarify whether the proposal's objective is to obtain a working environment free from physical irritation. Indoor-Air Science Derided as 'Shaky' by Industry Group, 24 OCCUPATIONAL HEALTH & SAFETY LETTER, Nov. 14, 1994, available in Westlaw, Magsplus database, 1994 WL 2687431. ASHRAE defined indoor air quality as •• [a]ir in which there are no known contaminants at hannful concentrations as determined by cognizant authorities and with which a substantial majority (89 percent or more) of the people exposed do not express dissatisfaction." /d. 76. 59 Fed. Reg. at 15,971. 77. /d. 78. ld. at 15,970. 79. /d. at 15,972. 80. /d. at 15,971, 15,972. 81. /d. at 15,972. 82. /d. at 15,971. 1054 TEXAS TECH LAW REVIEW [Vol. 26:1041

B. Sick Building Syndrome

In 1983, the World Health Organization defined Sick Building Syndrome as ''an excess of work related irritations of the skin and mucous membranes and other symptoms, including headache, fatigue, and difficulty concentrating, reported by workers in modern office buildings.' ' 83 According to the World Health Organization, SBS is characterized by eight noninclusive symptoms including: ( 1) irritation of the eyes, nose, and . throat, (2) dry mucous membranes and skin, (3) erythema (dermatitis erythematosa, redness of the skin, inflammation), (4) mental fatigue and headache, (5) respiratory infections and cough, (6) hoarseness of voice and wheezing, (7) hypersensitivity reactions, and (8) nausea and dizziness.84 Victims of SBS may exhibit all or some of its symptoms and, in contrast to many victims of BRI, typically find relief upon leaving the so-called ''sick building.' ' 85 Some commentators indicate that when at least twenty percent of building occupants ''complain of .the same medical symptoms from an unknown cause for at least two weeks,'' SBS is suspected. 86 Estimates reveal that between ten and twenty-five million occupants in 800,000 to 1.2 million commercial buildings, in the U.S. alone, will exhibit all or some of the symptoms typical of SBS. 87 The numbers are shocking. For example, at an annual meeting of the Mechanical Contractors Associa­ tion of America ("MCAA"), one speaker cited several staggering statistics with respect to poor indoor air quality: The World Health Organization reported that about 30% of commercial buildings have some sort of illness associated with them. The American Management Association said productivity losses from poor IAQ [indoor air quality] could reach 18% annually. The American Medical Associa­ tion said the annual health care bill for IAQ-related illnesses is about $15 billion. About 150 million person-days a year are lost through absenteeism linked to IAQ problems. 88 Furthermore, the U.S. Department of Labor estimates that 21,196,668 employees in the fields of agriculture, forestry, fishing, mining, construction, manufacturing, transportation, wholesale and retail trade, finance, insurance,

83. Richard Menzies et al., The Effect of Varying Levels of Outdoor-Air Supply on the Symptoms of Sick Building Syndrome, 328 NEW ENG. J. MED. 821, 821 (1993) (citing Indoor Air Pollutants: Exposure and Health Effects, Copenhagen, Denmark: World Health Organization (1983)). 84. 59 Fed. Reg. at 15.970. 85. /d. 86. Loewy, supra note 74, at 39 {citing INSURANCE INFORMATION INSTITUTE, INSURANCE REVIEW 33 (1990)). But see Louis R. McBane, The Sick Building Syndrome, FLA. CONSTRUCTOR, July-Aug. 1993, at 4, 4 (stating that most experts disagree with the twenty percent standard and that complaints involving as little as two to five percent of building occupants should be investigated). 87. Menzies, supra note 83, at 821 . 88. Thomas A. Mahoney. /AQ Market Will Continue to Grow During This Decade, AIR CONDI­ TIONI NG, HEATING & REFRIGERATION NEWS, Mar. 7, 1994, at 3, 3. 1995] SICK BUILDING SYNDROME 1055

· real estate, services, and government are currently exposed to poor indoor air quality. 89 Based on this estimate, the Occupational Safety & Health Administration (''OSHA'') estimates that implementation of its proposed indoor air quality standards would result in monetized productivity improvements of $15 billion per year.90 Although these overwhelming statistics validate SBS as a major looming health problem, its scientific cause remains elusive.

1. Scientific Causation Remains Elusive

According to one report, investigators have been successful in identifying the specific cause of SBS symptoms in only twenty- five percent of the ''sick buildings'' investigated.91 Identifiable causes typically include accumulation of motor vehicle exhausts and microbial contamination of humidification systems.92 In the remaining seventy-five percent of buildings investigated as a result of reported outbreaks of these symptoms, the specific causes are difficult to pinpoint.93 It is in these buildings that affected occupants are considered to be suffering from SBS.94 Although most researchers have argued that inadequate ventilation is the primary contributor to SBS symptoms, the specific causes have yet to be well defined. 95 Because the defining symptoms are not easily identified or traced to a specific substance, SBS is generally attributed to unidentified contaminants or to combinations of contaminants.96 Accordingly, SBS symptoms have been attributed to a variety of chemical, physical, and biological stimuli that adversely affect the indoor air quality.97 Of all the possible sources of indoor air quality problems, however, two are consistently mentioned in the

89. 59 Fed. Reg. at 16,012. 90. ld. 91. Menzies, supra note 83, at 821. 92. Menzies, supra note 83, at 821. 93. Menzies, supra note 83, at 821. 94. Menzies, supra note 83, at 821. 95. But see David P. Skoner et al., Laser-Printer Rhinitis, 322 NEW ENG. J. MED. 1323, 1323 ( 1990) (suggesting, in a letter to the editor, that post-1970 changes in building design and construction, installation of mechanical systems, and office practices may also be contributors to SBS). Skoner reports a case of a fifty-one year old man who developed nasal and systemic symptoms after a new laser printer was installed at his work station. !d. The patient's nasal congestive symptoms occurred repeatedly only after exposure to laser printer products. /d. Computerized posterior rhinomanometry tests demonstrated a more than fourfold increase in the patient's nasal airflow resistance when exposed to laser printed paper. ld. Skoner noted that the emissions from laser printers and photocopiers are known to contain some volatile organic compounds, such as combustion products of the styrene-butadiene toners, that have been associated with SBS. /d. 96. 59 Fed. Reg. at 15,970. 97. /d. at 15,971. 1056 TEXAS TECH LAW REVIEW [Vol. 26:1041 available scientific literature: ( 1) microbial contamination and (2) volatile organic compounds.

a. Microbial Contamination

Microbial contamination involves opportunistic microorganisms known as obligate pathogens. 98 Obligate pathogens are microbes that require a living host. Microbial contamination, characterized by the presence of these microbes, results from naturally occurring bacterial and fungal growth that ''is often associated with excessive moisture within the building enve­ lope.' ,99 Microbes require moist breeding grounds. 100 ''If a common thread exists in the many case histories of biologically 'sick' buildings, it is related to the lack of control of breeding places for fungi, bacteria, and other microorganisms.'' 101 Case histories of sick buildings indicate that sources of such breeding grounds typically include: (1) stagnant water and slime found in drain pans of fan coil units and other elements of the HV AC system, (2) water spray components of HV AC systems, (3) excessive relative humidity within the building or HV AC system,· (4) flooding or excessive water or fluid leaks within the building, (5) flooded carpeting, (6) permeable materials such as acoustic duct liners within the HV AC system, (7) external microbial contaminants drawn into the building as a result of improperly located air supply intakes, and (8) other external water leak sources such as roof leaks. 102 Typically, excessive moisture and associated microbial contamination problems are ''the result of improper drying in during the construction process, faulty roof and curtain wall construction, improper design or a lack of proper cleaning and maintenance of HVAC systems.'' 103 ASHRAE, for example, indicates that poorly designed or fitted HV AC systems account for fifty percent of all cases of poor indoor air quality. 104 Some studies indicate that in seventy percent of the buildings where microbial contamina-

98. /d. at 15.972. 99. Icard & Wright. supra note 73. at 1. 100. See generally Peter S. Hockaday. The Architect's Concern about Indoor Pollution. in ARCHITECTURAL DESIGN AND INDOOR MICROBIAL POLLUTION 31. 36-37 {Ruth B. Kundsin ed .• 1988) (observing that microbial contamination is a common thread in SBS cases). 101. /d. 102. /d. at 37. 103. Icard & Wright. supra note 73. at 1. 104. Indoor-Air Science Derided as 'Shaky' by Industry Group. 24 OCCUPATIONAL HEALTH & SAFETY LETTER. Nov. 14. 1994. available in Westlaw. Magsplus database. 1994 WL 2687431. ASHRAE also indicated that sixty percent of HV AC system fresh air intake vents are located improperly. /d. 1995] SICK BUILDING SYNDROME 1057

tion was indicated, the buildings' HVAC systems were moderately to grossly contaminated with dirt, dust, and associated microbes. 105

b. VOCs: Volatile Organic Compounds

Volatile organic compounds are compounds that discharge organic gases as they evaporate or decompose. 106 Sources of VOCs include construction materials made with organic chemicals, furnishings, consumer products, office products, organic solvents involved in printing processes, paints, glues, varnish, cleaning products, and perfumes.107 One noteworthy example of a VOC is formaldehyde, which can be emitted from glues used in paneling and in the installation of carpeting.108 Typically, new build­ ings have higher concentrations of VOCs due to releases from construction materials and new furnishings, and thus, an increase in the supply of outdoor air may be particularly beneficial.109 VOCs can also be emitted as a result of the metabolic processes of the biological organisms associated with microbial contamination.11° Consequently, microbial contamination of a newly constructed building may actually exacerbate a VOC problem. Although SBS symptoms are frequently attributed to VOCs that adversely affect the indoor air quality, it is often difficult to identify a specific VOC as the source of the SBS complaints. 111 Identification of the blameworthy VOC is difficult for several reasons. 112 First, VOCs are ''frequently present at very low concentrations, usually in the sub-ppm 13 range.'' I Second, information on the specific health effects of many VOCs is fairly limited. 114 Finally, SBS symptoms may be the result of exposure

105. Peter W.H. Binnie, Biological Pollutants in the Indoor Environment, in INDOOR AIR POLLU- TION 13, 14 (Jack G. Kay et al. eds., 1991). 106. DAVID W. BEARG, INDOOR AIR QUALITY AND HVAC SYSTEMS 209,213 (1993). 107. !d. at 35, 209-213. 108. /d. at 35. 109. Menzies, supra note 83, at 825. 110. BEARG, supra note 106, at 213; see also GODISH, supra note 10, at 188 (noting the potential causal relationship, with respect to SBS, of both the microbial organism itself and the VOCs produced in microbial metabolism). 111. Sharon M. McCarthy, An Overview of Sick Building Investigations and Legal Issues, ENERGY ENGINEERING, 1993, at 43, 45. According to Thad Godish, the '' [r]easons for suspecting VOCs in causing SBS symptoms include the fact that (1) many VOCs have the potential to cause both sensory irritation and central nervous system symptoms characteristic of SBS, (2) they are found in significantly higher concentrations (2-100 x higher) in indoor compared to outdoor environments, and (3) because of the large number of VOCs present in indoor air, they may cause symptoms as a result of additive and/or multiplicative effects." GODISH, supra note 10, at 148. ·112. McCarthy, supra note 111, at 45. 113. McCarthy. supra note 111, at 45. 114. McCarthy, supra note 111, at 45. 1058 TEXAS TECH LAW REVIEW [Vol. 26:1041 to a combination of VOCs, as opposed to exposure to a single specific voc.tts

Ill. CAN THIS BUILDING BE HEALED?

As technology becomes increasingly advanced and more widely available to contractors and design professionals, so called "industry standards'' will be in flux. Because industry standards will be in flux, contractors and design professionals must carefully reconsider what standard of care they owe to the future· occupants of a building. If SBS litigation arises out of the construction of a building, testimony respecting available state-of-the-art technology might be presented to demonstrate that traditional industry standards have not adequately addressed potential SBS problems. Accordingly, it may become increasingly difficult to convince a jury that contractors and design professionals have met their respective standards of care simply because they rigorously adhered to traditional industry standards. 116 Rather than rely on traditional industry standards, contractors and designers must maintain a current understanding of available state-of-the-art technology. Contractors in particular must take a more proactive role in the construction process and not simply rely on strict adherence to plans and specifications to shield them from liability. Arguably, if a contractor is aware of both a potential SBS problem and a potential solution, the contractor at least has a duty to warn the architect and the owner. 117 Accordingly, it is incumbent upon contractors and designers to continually educate themselves on how to recognize, minimize, and abate SBS hazards and maintain the quality of indoor air. One way to minimize or abate SBS hazards is through the careful drafting of contract documents by simply recognizing that every building is at risk of becoming a sick building. Architects should consider drafting standard indoor air quality specifications. 118 Pre-bid specification of testing procedures, contaminant source identification procedures, and

115. McCarthy, supra note Ill, at 45. 116. See Louis R. McBane, The Sick Building Syndrome, FLA. CONSTRUCTOR, July-Aug. 1993, at 4, 5 (arguing that showing a contractor's adherence to "industry standards" to demonstrate that the work was perfonned in a good and workmanlike manner will not automatically free a contractor from liability). "It is believed by some [contractors] that 'industry standards' will relieve them from responsibility and thus liability. However, this will fall quickly when courts and jurors become involved in making the decision for the contractor as to what is the appropriate 'industry standard."' /d. 117. See discussion infra parts V.A, V.B. 118. See generally E. N. Light et al., Project Designs for the Abatement ofMicrob ial Contamina­ tion, in· INDOOR AIR POLLUTION 25, 25 (Jack G. Kay et al. eds., 1991) (focusing on a case study involving abatement of microbial contamination in a school). In Appendix A, the authors included the actual abatement specification that was used: Specification for Microbial Decontamination. /d. at 43. 1995] SICK BUILDING SYNDROME 1059 abatement procedures will help minimize any resultant construction disputes that would only exacerbate a potential SBS problem. 119 First, contract documents should specify testing procedures designed to insure early detection of potential sick building symptoms before the building becomes occupied. Specified testing should occur periodically as construction progresses and upon substantial completion. Second, in the event that characteristic indoor air contaminants are detected, contract documents should provide for a supervised step-by-step source identification and abatement procedure. Next, strict adherence to contractual indoor air quality specifications should be demonstrated before final commissioning of the HVAC system. Finally, consideration should be given to withholding the issuance of any certificate of substantial completion until the architect is satisfied that indoor air quality specifications have been met.

A. Preventive Medicine: Specification of Design Phase and Construction Phase Testing Requirements

When a new commercial building is being designed, owners should insist that the architect require its consulting engineers to perform a computational fluid dynamics ("CFD") study. Most everyone has had the experience of sitting in a room that was either too hot or too cold relative to an adjacent room where the air temperature seemed more comfortable. In addition, most everyone h'as had the experience of sitting in a room that was drafty in one comer, yet the air in an opposite comer seemed stagnant. In effect, CFD studies are intended to identify these types of conditions so that they can be corrected. CFD is a computerized modeling system that allows ventilation system engineers to predict airflows, temperature, and other related factors in buildings based on consideration of the combined impacts of ventilation, a room's shape and size, a room's contents, weather

119. To illustrate, consider seemingly benign construction activities that may result in microbial contamination. Assume that as a result of a design change, for example, a plwnbing subcontractor or an electrical subcontractor is required to core drill holes through an existing concrete slab to allow the passage of added plumbing pipe or electrical conduit. As the holes are core drilled, water is sprayed on the diamond drill bit to keep it cool. If the water is not properly contained or captured, it may be absorbed by other construction materials such as the surrounding sheetrock or the sheetrock below the hole. The wet or damp sheetrock might then provide a breeding ground for microbes. See discussion supra part II.B. I.a. Whether the hypothetical involves a design change or out of sequence construction activities, a dispute might arise concerning which party is responsible for protecting the sheetrock and concerning the extent of necessary remedial actions. Should the sheetrock be allowed to simply air dry; should the damp sheetrock be removed and replaced; or should the damp sheetrock and surrounding area be tes~d for bacterial and fungal growth associated with microbial contamination? If a scope of work · dispute drags on without quickly addressing the potential for microbial contamination, the SBS potential is exacerbated. A pre-bid specification that clearly delineates the responsibilities of the respective parties under such a hypothetical can only help to minimize the potential for SBS problems. 1060 TEXAS TECH LAW REVIEW [Vol. 26:1041 conditions, and the arrangement of doors and windows. 120 Although expensive to perform, a CFD study can aid ventilation system engineers in designing more efficient and cost effective ventilation systems.121 Accord­ ingly, a CFD study might be instrumental in identifying SBS contributing factors and minimizing the potential for SBS to occur in the frrst place. 122 Although costly, owners can profit from CFD studies. Because CFD studies can aid engineers in designing more efficient ventilation systems and minimize the potential for SBS, it is likely that occupant satisfaction with indoor air quality will be higher and that the number of SBS claims will be diminished. When a building owner is competing for tenants, this can translate into higher occupancy rates and possibly higher rents. Also, a more efficient ventilation system can translate into increased profitability due to lower energy costs. In addition to minimizing the potential for SBS problems to arise in general, CFD studies have also been used to develop specific solutions respecting specific indoor air contaminants. For example, CFD studies were recently used to determine the optimal location of air intake and exhaust outlets to efficiently exhaust paint fumes from a hanger ventilation system at Tinker Air Force Base in Oklahoma City. 123 CFD modeling techniques have also been successfully employed in the design of laboratory animal holding rooms, in which tests determined that conventional ventilation systems were simply recirculating animal metabolic heat, allergens, and odors. 124 The CFD studies prompted radical design changes that more efficiently removed stale air and virtually eliminated the animal odors. 125 On a cautionary note, however, computational fluid dynamics is a relatively new science and involves some fluid-flow phenomena, such as turbulence, that can be difficult to represent mathematically. 126

120. See generally Nadine M. Post. Airflow Models Gaining Clout: Computational Fluid Dynamics Improves the Design of Inner Spaces, ENGINEERING NEWS-REC., Oct. 10, 1994, at 22, available in Westlaw, Magsplus database, 1994 WL 2701057 (discussing the growing acceptance ofCFD simulation techniques in building design). 121. /d. at 22-23. Based on current state-of-the-art software, CFD studies typically require the use of a computer workstation providing a minimum of thirty-two megabytes of random access memory ("RAM") and up to two gigabytes of hard disk space. /d. at 25. Currently, a workstation meeting this specification will range in price from $25,000 to $100,000. /d. Added to this cost, obviously, would be the cost of training and maintaining engineering personnel capable of operating the system. Alternatively, an architect or engineer might hire a consultant to perform a CFD study. Depending on the thoroughness of the study, the cost may vary from a few thousand dollars to as much as $50,000. ld. at 23. But see A New Way of Optimizing Heating and Ventilation Systems, ENERGY CONSERVATION NEWS, Dec. 1, 1993, available in Westlaw, Magsplus database, 1993 WL 2740563 (reviewing Flomerics, Inc.'s ''Flovent'' CFD software that will operate on a 386 based PC and is priced under $5000). 122. See Post, supra note 120, at 22. 123. See Post, supra note 120, at 22. 1'24. See Post, supra note 120, at 23-24. 125. See Post, supra note 120, at 24. 126. See Post, supra note 120, at 22. "While the advantages are clear, even CFD's most ardent 1995] SICK BUILDING SYNDROME 1061

Assuming that a CFD study defmes a baseline for the ventilation system design, contract specifications should incorporate that baseline and require that the CFD study be revisited whenever the owner, architect, engineer, or contractqr suggests major changes during the construction phase of a building project. As with other computer assisted design tools, ''once data is input, designers can compare many room configurations by changing one variable after another. " 127 Once the initial data is input and electroni­ cally stored, it is likely that any subsequent revision to the CFD study can be performed economically. If the CFD study is revised to reflect the impact of proposed changes Qn the original building design, the ''design team'' can document and advise the owner of the possible impact the design changes may have on indoor air quality. 128 If the owner insists on incorporation of the proposed changes, notwithstanding that indoor air quality is at risk, the architect can then suggest other technological solutions for consideration.

B. State-of-the-Art Prescriptions

In addition to taking preventive measures to avoid SBS, there are several affirmative steps that can be taken if an SBS problem is diagnosed or suspected after construction has begun. It is important to note, however, that when any state-of-the-art technological solution is proposed or considered, it may spawn a great deal of controversy. As with any innovative or high tech corrective solution, there will be critics. When evaluating corrective solutions, a building owner will likely be sensitive to critical arguments respecting cost effectiveness, whether the technology has been fully tested or remains relatively untested, whether the technology produces predictable and reliable results, whether the technology is being correctly applied, and whether use of the technology creates other problems. Accordingly, when advising a client with respect to an SBS condition, an attorney should become fully aware of the myriad of technological solutions and their associated benefits and risks. Although not an exhaustive list, a few of the notable technological solutions that the building industry has often considered, often debated, sometimes rejected, and sometimes used include: ( 1) installation of electronic air cleaners, (2) ozone purification, (3) installation of ozone generators, (4) duct encapsulation, (5) biocide treatments, and (6) "building bake-out" of VOCs. Electronic air cleaners remove airborne particles from the airstream by first electrically charging them and then collecting the charged particles onto

supporters register footnotes of caution: As with any modeling technique, the dictum 'garbage in, garbage out' applies." !d. · 127. See Post, supra note 120, at 23. 128. For purposes of this Comment, the • 'design team'' includes the architects and engineers. 1062 TEXAS TECH LAW REVIEW [Vol. 26:1041 electrically grounded collecting plates.129 Ozone purification involves the introduction of large quantities of artificially produced ozone into an HV AC system's ductwork to oxidize mold, mildew, and bacteria. 130 Ozone is a powerful oxidizer that is capable of disinfecting water three times faster than chlorine. 131 Because ozone is so powerful, its use requires that the treated building be evacuated during treatment and remain evacuated until the treated areas have been completely ventilated. 132 Ozone generators are continuous flow air purifiers that produce minute quantities of ozone but are of questionable benefit. 133 Critics warn that the use of ozone in this manner may actually be harmful to humans. 134 In fact, both·the Environ­ mental Protection Agency ("EPA") and OSHA list ozone as a toxic, hazardous gas at certain prolonged exposure levels. 135 Duct encapsulation involves sealing off duct-lining materials, such as fiberglass, to prevent microorganisms from housing there. 136 Biocide treatment involves the introduction of chemicals into an HVAC system's ductwork to kill microorganisms. 137 Finally, "building bake-out" is a process that in­ volves artificially raising a newly constructed or renovated building's internal ambient temperature for several days in an effort to accelerate the natural aging process of building materials, thereby accelerating the emission of VOCs. 138 Because the emission of VOCs is accelerated, building bake­ out is a procedure that is intended to be used in unoccupied buildings. 139 Although some encouraging results have been obtained using this process, a collective evaluation of building bake-out effectiveness studies indicates that conducting such a process is a difficult task. 140 In fact, in actual application, the effectiveness of building bake-out as a VOC mitigation process may fall below expectations. 141

129. A.S. Viner et al., Air Cleaners for Indoor Air Pollution Control, in INDOOR AIR POLLUTION 115, 120-123 (Jack G. Kay et al. eds .• 1991). 130. Ronald G. Fink & Sharon B. Rinehimer, Uses and Limitations of Ozone in HVAC Air- Handling Systems, AIR CONDITIONING, HEATING & REFRIGERATION NEWS, May 23, 1994, at 5, 5. 131. /d. 132. /d. 133. /d. 134. /d. 135. /d. Early treatises on mechanical equipment for buildings recognized the use of ozone to mask or destroy odors but also warned against its use in high concentrations. See generally 1 LoUIS A. HARDING & ARTHUR C. WILLARD, MECHANICAL EQUIPMENT OF BUILDINGS 287 (1916). 136. Ed Bas, IAQ Meeting Brings Out Controversy, Consent Among Diverse Participants, AIR CONDITIONING, HEATING & REFRIGERATION NEWS, May 18, 1992, at 18, 18. 137. /d. 138. Charlene W. Bayer, The Effect of "Building Bake-Out" Conditions on Volatile Organic Compound Emissions. in INOOOR AIR PoLLUTION 101, 101-103 (Jack G. Kay et aJ. eds., 1991); THAD GODiSH, SICK BUILDINGS: DEFINITION, DIAGNOSIS AND MITIGATION 321 -24 {1994). 139. . GODISH, supra note 10, at 324. 140. /d. at 322. 141. /d. 1995] SICK BUILDING SYNDROME 1063

IV. NEW CONSTRUCTION: BUILDING A CASE

Despite best efforts to prevent or abate SBS, there will continue to be sick building claims. Finding a legal solution and adequate remedy may prove difficult. By its very nature, an SBS claim may involve numerous plaintiffs arid multiple defendants. 142 With respect to new construction, once it is discovered that a new building is "sick," any resulting claim will undoubtedly focus on the respective duties and liabilities of the entire ''building team.'' 143 Because the specific causes of SBS remain elusive, a plaintiff will likely blame everyone involved and sue the owner, architect, engineer, construction manager, contractor, any one or more of a number of subcontractors, building materials suppliers, and building materials manufacturers. Once subcontractors, suppliers, and manufacturers are included in the mix, the number of possible defendants might number in the dozens. For example, construction of the $124 million Palm Beach County Judicial Center, located in West Palm Beach, Florida, involved three major architectural firms, a major construction management firm, a major general

142. See Klocke v. A & D Ltd. Partnership, 629 N.E.2d 49, 51 (Ohio Ct. App. 1993) (certifying a class described as "[a]ll persons who worked and conducted business in the Alms & Doepke Building from July 1, 1985, to the present"). In Klocke, the class action complaint indicated that class members were exposed to ''irritants and inadequate ventilation'' in a building located in Cincinnati, Ohio. /d. at 50-51. The appellant presented medical testimony indicating that "the symptoms suffered by the class representatives were consistent with symptoms of persons exposed to a 'sick building,' that is, the sick­ building syndrome.'' /d. at 51. The complaint alleged that the injuries were caused by noxious fumes, bacteria, fungi, dust, and other irritants. /d. The Ohio Court of Appeals found that "the claims of the representative parties [were] typical of the claims of the class,'' despite the fact that there were a great number of variables surrounding the alleged injuries, such as: (1) variable concentrations of the offending contaminants over time, (2) variable combinations of individual contaminants over time, (3) variable effects of weather on the concentration of contaminants, (4) variable reactions to the contaminants and variable degrees of suffering based on the occupants' individual constitutions, general state of health, past medical histories, individual allergic reactions, age, and sex, (5) variable reactions based on the occupants' location within the building, and (6) variable lengths of exposure. /d.; see also Knoke v. East Jackson Pub. Sch. Dist., 506 N.W.2d 878, 880 (Mich. Ct. App. 1993) (holding that union did not breach its duty of fair representation in not pursuing a school counselor's individual grievance concerning an alleged sick building). In 1981, Richard Knoke "began to experience symptoms he attributed to changes in the ventilation system of East Jackson Middle School, where he worked.'' /d. at 879. Arbitration of Knoke's grievance was held in abeyance while the union was pursuing a related class grievance on behalf of a group of teachers. /d. Although the union failed to sustain its burden of proof, it claimed ''that the school building was an environmental hazard'' and sought to either secure additional sick days or employee transfers. /d.; see also Padgett v. Capitol West Assoc., No. CV91- 397573S, 1992 WL 394414, at *1 (Conn. Super. Ct. Dec. 30, 1992) (ruling on plaintiffs objection to an interrogatory in a class action wherein the plaintiff claimed injuries resulting frorr. sick building syndrome). The plaintiff claimed that she and numerous other persons suffered injuries as a result of being "exposed to hazardous conditions, such as particulate matter, vapors and fumes in the air, present at the building in which the plaintiff worked." /d. 143. For purposes of this Comment, the "building team" includes the architects, engineers, construction managers, contractors, subcontractors, building materials suppliers, and building materials manufacturers. 1064 TEXAS TECH LAW REVIEW [Vol. 26:1041 contractor, over seventy-four subcontractors, and numerous consultants.144 In 1992, an air quality expert found evidence of microbes in the air­ conditioning ducts throughout the complex. 145 The expert recommended that the owner, Palm Beach County, spend $2.6 million in improvements in order to avoid SBS. 146 Apparently, the Palm Beach county commissioners chose to spend only $500,000 on improvements, hoping to avoid delays in opening the courthouse building and hoping to ''preserve the county's right to blame the contractor, who might try to blame the architect for an inadequate air-conditioning system.'' 147 In a Palm Beach newspaper account titled The Judicial Center Blame Game, the reporter queried, "[b]ut then who gets blamed if employees move into the building and get sick after exposure to microbes?" 148 When faced with blame, an owner will argue that he contracted for a building that was suitable for the purpose intended. Quite simply, the owner did not contract for a "sick building." Accordingly, the owner will argue that he did not create the problem and therefore is unwilling to fmance its correction. 149 In the majority of SBS cases, the owner is correct. 150 What then are the duties and liabilities of the building team and the possible remedies available to an owner and foreseeable third party plaintiffs? Arguably, the building team has a duty to avoid or abate SBS conditions that create an unreasonable risk of physical harm. 151 In SBS cases, plaintiffs will likely consider pursuing several causes of action, including breach of contract and express warranty, breach of implied warranty, strict liability, and negligence. Other causes of action that should be considered in any SBS claim include breach of the covenant of quiet enjoyment by constructive eviction, fraudulent concealment and misrepresen­ tation, nuisance, assault and battery, and emotional distress. 152

144. Jack Wilder Versteeg, The Judicial Center Blame Game, PALM BEACH POST, May 9, 1993, at IF. 145. /d. 146. /d. 147. /d. at 5F. 148. /d. 149. McBane, supra note 116, at 4. 150. /d. 151. See discussion infra parts V.A, V.B. 152. Randall J. Dean, In Defense of Tight Building Syndrome, FOR THE DEF., Aug. 1991, at 2, 4. See generally Carl B. Meyer, The Environmental Fate of Toxic Waters, The Certainty of Harm, Toxic Torts, and Toxic Regulation, 19 ENVTL. L. 321, 357-64 (1988) (arguing that exposure to indoor air pollution caused by fonnaldehyde should be treated as a toxic battery). 1995] SICK BUILDING SYNDROME 1065

A. Breach of the Construction Contract

A contract is breached upon a party's "[f]ailure, without legal excuse, to perform any promise which forms the whole or part of a contract.'' 153 Furthermore, any nonperformance of a duty under a contract is also a breach.154 When the terms of a construction contract are breached, an owner is entitled to be made whole under the contract through recovery of expectancy damages. 155 The contracting parties, however, are ''required to live with their bargained-for exchange,'' including any contractual limits on damages. 156 In SBS claims, damages might be measured by the diminution of property values, and might also include remediation costs, costs to relocate tenants, and lost profits.157 Given the potential for very high monetary damages with respect to SBS, contract language should be carefully drafted and should expressly define the limits of liability for indoor air quality problems and allocate responsibility accordingly. Consequently, when drafting or negotiating a contract for new construction, particular care should be taken not to contractually limit the owner's recovery of damages in the unfortunate event that the building occupants become afflicted with SBS. When considering whether to pursue an SBS claim on a breach of contract theory, rather than in tort, several factors must be considered. First, it may be more difficult to recover consequential damages in a contract action. 158 Second, a contract claim may only be asserted against other parties to the contract. 159 Accordingly, a plaintiff may be limited in the number of potential defendants that can be drawn into the litigation. 160 As a practical matter, this may mean that there is less money available to fund

153. BLACK'S LAW DICTIONARY 188 (6th ed. 1990). 154. RESTATEMENT (SECOND) OF CONTRACTS § 235(2) (1979). In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perfonn or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perfonn or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perfonn comports with standards of good faith and fair dealing. /d.§ 241. 155. Icard & Wright, supra note 73, at 30 (citing 25 C.J.S. Damages§ 72)! 156. Icard & Wright, supra note 73, at 30. 157. Icard & Wright, supra note 73, at 30. 158. Murray H. Wright & Edward E. Nicholas, III, The Collision of Tort and Contract in the Construction Industry, 21 U. RICH. L. REV. 457. 457 (1987). 159. /d. at 458. 160. See id. 1066 TEXAS TECH LAW REVIEW [Vol. 26:1041 a settlement. 161 Because many complex construction cases settle prior to trial, the possibility of joining additional defendants in a settlement negotiation is very alluring. 162 Given the apparent complexity of SBS, it is likely that the majority of cons~ruction related SBS claims will be settled prior to trial as well. Finally, when proceeding in contract, a plaintiff's recovery from the other contracting party may be restricted by the provisions of the contract. 163 It is not unusual, for example, for a construction contract to ( 1) limit or preclude recovery of damages for schedule delays, (2) require written notice of claims as a prerequisite to recovery, and (3) limit the amount of overhead ~d profit that is recoverable on a claim.164 These characteristic drawbacks of proceeding in contract have lured many plaintiffs involved in traditional construction contract claims to assert tort claims on the same issue. 165

1. Statutes of Limitations and the Discovery Rule

When considering whether to proceed in contract, in tort, or both, careful consideration must be given to the respective statutes of limitations and whether the discovery rule applies. With respect to contract actions, the statute of limitations period generally begins on either ''the effective date of the contract, or, at the latest, on the date when facts underlying the cause of action are first discoverable.'' 166 One ''potential benefit of suing in

161. /d. 162. /d. 163. /d. 164. /d. 165. /d. at 457. 166. Penny L. Parker & John Slavich, Contractual Efforts to Allocate the Risk of Environmental Liability: Is There a Way to Make Indemnities Worth More Than the Paper They Are Written On?, 44 Sw. L.J. 1349, 1354 (1991). With respect to the liability of the design team, "[t]he question of when the statute [of limitations] tolls is always an issue." STEVEN M. SIEGFRIED, INTRODUCTION TO CONSTRUCTION LAW 141 (1987 & Supp. 1989). Siegfried notes: Often statutes of limitations differentiate between two categories of defects: those that are patently obvious and those that reasonably could have been discovered with the exercise of due diligence. Another issue is whether continuous treatment of defects by the design professional forestalls the running of the statute of limitations. The majority of courts hold that a statute of limitations tolls while corrective measures are being performed by the party allegedly responsible for causing the defect. !d. In Texas, contract actions are governed by a four-year limitations period. See TEx. Civ. PRAC. & REM. CODE ANN. § 16.004 (Vernon 1986 & Supp. 1995); see also Kansa Reinsurance Co. v. Congressional Mortgage Corp. of Texas, 20 F.3d 1362, 1369 (5th Cir. 1994) (stating that Texas breach of contract claims are governed by a four-year statute of limitations period); Hoover v. Gregory, 835 S. W .2d 668, 677 (Tex. App.-Dallas 1992, writ dertied) (stating that breach of contract claims are governed by a four-year statute of limitations period and that a contract claim generally accrues upon the breach);. D. Wilson Constr. Co. v. McAllen lndep. Sch. Dist., 848 S.W.2d 226, 230 (Tex. App.-Corpus Christi 1992, no writ) (holding that breach of a school construction contract was governed by a four-year statute of limitations period). 1995] SICK BUILDING SYNDROME 1067 contract is a longer statutes of limitations period.'' 167 With respect to negligence actions, the statute of limitations generally begins on ''the day the cause of action accrues.'' 168 ''Accrual begins when the negligent party by some act or omission breaches its duty of ordinary care.'' 169 The ''time of discovery rule'' is an exception to the·general rule that a cause of action accrues when the negligent party breaches its duty of ordinary care. 170 In Clade v. Larsen, the Court of Appeals of Texas in Dallas noted that: [t]he discovery rule is a judicially conceived exception to statutes of limitations for the courts to use to determine when a cause of action accrues-.... When applicable, the discovery rule alleviates the injustice of barring a claimant's cause of action before he learned or, exercising reasonable diligence, could have learned about the facts underlying his right of action. 171 Under the Texas discovery rule, for example, ''the statute of limitations does not begin to run until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts concerning his or her injury." 172 Assuming that an SBS claimant does not learn of the facts underlying his injury until years after exposure to SBS contaminants, the application of a discovery rule will assist in providing a just result. 173 Given the con-

167. Kenneth R. Michael, Design Professional Liability: A Balanced Framework for Third-Party Actions by Tenants and Users, CONSTRUCfiON LAW., Aug. 1994, at 8, 9 (citing JUSTIN SWEET, LEGAL ASPECTS OF ARCHITECTURE, ENGINEERING, AND THE CONSTRUCTION PROCESS 289-90 (4th ed. 1989) for the proposition that "[r]easons why statutes of limitations are longer for contract claims could be that either contract claims are deemed to be worthier, or that contract claims are easier to prove"). 168. See TEX. Clv. PRAC. & REM. CODE ANN.§ 16.003 (Vernon 1986 & Supp. 1995). Section 16.003 of the Texas Civil Practice And Remedies Code states: (a) A person must bring suit for trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer not later than two years after the day the cause of action accrues. (b) A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person. /d. 169. Clade v. Larsen, 838 S.W.2d 277,281 (Tex. App.-Dallas 1992, writ denied) (citing Zidell v. Bird, 692 S.W.2d 550, 554 (Tex. App.-Austin 1985, no writ)). In Clade, a building owner sued an architectural firm and the project manager for negligent design, negligent supervision of construction, and architectural malpractice involving the construction of a restaurant. /d. at 279. The court noted that "[a] cause of action ordinarily accrues when a tortfeasor breaches a duty it owes another." /d. at 281 (citing Smith v. Fairbanks, Morse & Co., 101 Tex. 24, 25, 102 S.W. 908, 909 (1907)). 170. Clade, 838 S.W.2d at 282. The determination of when a cause of action accrues under the accrual rule is a question of law. /d. 171. !d. ·112. Williams v. Upjohn Co., 153 F.R.D. 110, 114 (S.D. Tex. 1994) (applying Texas tolling provision to an action against a drug manufacturer). 173. See generally Jeffrey L. Nischwitz, The Crumbling Tower of Architectural Immunity: 1068 TEXAS TECH LAW REVIEW [Vol. 26:1041 straints of contract claims, differing statutes of limitations, the potential application of the discovery rule, and overlapping causes of action, it is likely that SBS claimants will proceed in both contract and tort in an effort to produce satisfactory results.

2. Crossing the Threshold of the ''Privity. Door''

One major distinction between proceeding under a breach of contract cause of action and proceeding in tort involves the privity requirement. 174 Essentially, privity limits recovery to the contracting parties. 175 With respect to third parties, privity of contract limits the liability of the contracting parties for a breach of contractual duties. 176 A design profes­ sional's implicit duty to exercise reasonable care in the performance of design services, for example, is based on the designer's contract with the owner and does not generally extend to third parties. 177 In early American jurisprudence, lack of privity of contract ''was the most effective defense an architect had to third-party actions for negli­ gence. " 178 Unless a plaintiff could demonstrate privity of contract, "an architect did not have to present a defense on the merits" in an action arising out of the architect's breach of a contractual duty. 179 The prevailing rule today is that an architect's duty extends "beyond the limits of the privity of contract doctrine,'' and, therefore, lack of privity of contract will not bar an action for negligence against an architect. 180 Accordingly, in order to cross the threshold of the "privity door," third parties who are injured as a result of SBS will likely be permitted to proceed in tort and pursue a negligence or strict liability cause of action. For example, in A.E. Investment Corp. v. Link Builders, Inc., the Supreme Court of Wisconsin stated that with respect to commercial buildings, for which the architect is responsible for design and supervision of construction activities, the architect may be liable to future third party tenants with whom

Evolution and Expansion of the Liability to Third Parties, OHIO ST. L.J. 217, 223-26 (1984) (discussing the application of the discovery rule to negligence actions involving architects). 174. Michael, supra note 167, at 8, 9. 175. Michael, supra note 167, at 8, 9. 176. Michael, supra note 167, at 8, 9. 177. Michael, supra note 167, at 8, 9. "Two exceptions to the privity requirement in negligence actions by users and tenants that are based on a contractual duty include third-party beneficiaries and negligent misrepresentations." /d. The third party beneficiary "theory, which has been applied to architects, allowed an injured third party to recover from the breaching party, despite a lack of privity of contract, when the contract was intended to benefit that third party." Nischwitz, supra note 173, at 219-20. 178. Nischwitz, supra note 173, at 220. 179. Nischwitz, supra note 173, at 220. 180. Nischwitz, supra note 173, at 220. 1995] SICK BUILDING SYNDROME 1069 the architect is not in privity of contract.181 The court stated that ''[t]he lack of privity does not constitute a policy reason for not imposing liability where negligence is shown to be a substantial factor in occasioning the hann.''1s2

B. Implied Warranties

In some SBS cases, it may be appropriate to proceed on the theory of breach of implied warranties. When a particular product is alleged to have caused SBS, for example, a plaintiff may sue a manufacturer for breach of the implied warranty of fitness for a particular purpose. 183 To prevail under this theory, the plaintiff must demonstrate that: ( 1) the manufacturer knew or should have known the particular purpose for which the product was to be used, and (2) the manufacturer knew or should have known of the buyer's reliance on representations that the product was fit for the particular purpose intended. 184 With respect to construction contractors, some courts have held that the doctrine of implied warranty of fitness should be liberally construed. 185 In Markman v. Hoefer, the Iowa Supreme Court held that "[i]n building and construction contracts, in the absence of an express agreement to the contrary, it is implied that the building will be erected in a reasonably good and workmanlike manner and will be reasonably fit for the intended purpose.'' 186 The difficulty in asserting a claim against a contractor for breach of an implied warranty of fitness, however, is that the doctrine typically applies to residential and not commercial construction. 187 Suing an architect under a theory of implied warranty may also prove difficult. For example, in City of Mounds View v. Walijarvi, the Supreme

181. A.E. Inv. Corp. v. Link Builders, Inc., 214 N.W.2d 764, 769 (Wis. 1974). 182. /d. 183. Grace C. Guiffrida, Comment, The Proposed Indoor Air Quality Acts of1993: The Compre­ hensive Solution to a Far-Reaching Problem?, 11 PACE ENVTL. L. REV. 311, 341 (1993). 184. ld. at 341-42 (citing U.C.C. § 2-315 (1990)). 185. E.g., Robertson Lumber Co. v. Stephen Farmers Coop. Elevator Co., 143 N.W.2d 622,626 (Minn. 1966). 186. 106 N.W.2d 59,62 (Iowa 1960); see also Weeks v. Slavick Builders, Inc .• 180 N.W.2d 503, 506 (Mich. Ct. App. 1970). affd, 181 N.W.2d 271 (Mich. 1970) (holding that the doctrine of implied warranty of fitness extends to residential dwelling houses, whether purchased prior to, during, or after construction); Schipper v. Levitt & Sons, Inc •• 207 A.2d 314, 325-26 (N.J. 1965) (holding that the doctrine of implied warranty of fitness extends to developer of mass produced single family housing). 187. See Conklin v. Hurley, 428 So. 2d 654, 659 (Fla. 1983) (refusing to ex,tend the doctrine of implied warranty beyond residential construction); see also Sims v. Lewis, 374 So. 2d 298 •. 303 (Ala. 1979) (recognizing the doctrine of implied warranty of fitness and habitability with respect to residential construction); Theis v. Heuer. 280 N.E.2d 300,306 (Ind. 1972) (adopting the implied warranty of fitness and habitability with respect to residential construction); Atherton Condominium Apartment-Owners Ass·n Bd. of Directors v. Blume Dev. Co., 799 P.2d 250, 260 (Wash. 1990) (applying the implied warranty of habitability to the construction of residential condominiums). 1070 TEXAS TECH LAW REVIEW [Vol. 26:1041

Court of Minnesota considered the issue of whether an ''architect's agreement to design a structure include[s] an implied warranty that the finished product will be fit for the purpose for which it was designed.'; 188 In rejecting the implied warranty cause of action, the Minnesota court reasoned that to adopt such a theory ''would in effect impose strict liability on architects for latent defects in the structures they design ... in spite of [their] diligent application of state-of-the-art design techniques.'' 189

C. Strict Liability

In some SBS cases, it may be appropriate to proceed on the theory of strict liability. To recover under a theory of strict liability, a plaintiff need not prove the defendant's actual negligence. 190 Strict liability actions generally fall into two categories: ( l) where a defect in a product renders the product unfit or unsafe for its intended use, and (2) where use of the product creates an inherently dangerous condition. 191 In general, a plaintiff may proceed on a strict liability theory only if an injury to health can be shown. 192 Typically, strict liability will not apply to cases involving purely economic damages. 193 With respect to SBS, a plaintiff might argue that certain indoor air contaminants are so inherently dangerous that the responsible party should be held strictly liable for any associated injury. This argument might apply, for example, to suppliers and manufacturers of building materials that emit dangerous levels of VOCs. 194 A plaintiff might also sue the designer of a defective ventilation system, arguing that the entire system should be treated as a single product. Recovery under a strict products liability theory, however,

188. 263 N.W.2d 420, 423 (Minn. 1978). 189. !d. at 424. 190. CROSS, supra note 22, at 138. 191. Guiffrida, supra note 183, at 345. 192. CRoss, supra note 22, at 138-39. 193. C,Ross, supra note 22, at 139. But see United States Gypsum Co. v. Mayor of Baltimore, 647 A.2d 405, 410 (Md. 1994) (holding that tort remedies were available against a manufacturer of asbestos-containing building materials, absent a showing of actual physical injury, where the alleged defective product ''create[d] a substantial and unreasonable risk of death or personal injury''); Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 517 A.2d 336, 345 (Md. 1986) (holding that ''where the risk is of death or personal injury the action will lie for recovery of the reasonable cost of correcting the dangerous condition,'' despite the economic loss characterization of the damages). 194. See, e.g., Moore v. Polish Power, Inc., 720 S.W.2d 183, 185 (Tex. App.-Dallas 1986, writ ref'd n.r.e.) (arguing that a carpet vendor should be held strictly liable for neurological and muscular injuries all~gedly caused by the emission of formaldehyde gas from the carpet and carpet pad); see also Particle Board Manufacturers Held Liable for $/6.2 Million in Damages to Family, 4 TOXICS L. REP. 1095 (1990) (citing Pinkerton v. Georgia-Pacific Corp., No. CV186-4651CC (D. Mo. Jan. 8, 1990), in which a Missouri family received a $16.2 million jury verdict against two m~ufacturers for injuries allegedly caused by formaldehyde-containing sub-flooring materials). 1995] SICK BUILDING SYNDROME 1071 is ''generally unavailable against those who only render professional services." 195 In Sime v. Tvenge Associates Architects, the Supreme Court of North Dakota held that an architect could not be held liable under a strict products liability theory because neither the architectural design nor the ventilation system was in ''any way standardized or mass marketed.'' 196 In some SBS cases, courts have considered the issue of whether, as a matter of law, an entire structure may be classified as a product for the purpose of establishing strict liability for a defect in its design and construction.197 Currently, however, these cases appear to be limited to mass produced structures such as tract houses and mobile homes. 198

V. BUILDING A CASE ON NEGLIGENCE

In some SBS cases, it may be appropriate to proceed on the theory of negligence. Before a plaintiff can recover in a negligence action, four elements must be shown: ( 1) duty-the plaintiff must be protected under some rule of law against the defendant's conduct; (2) breach-the defendant's conduct must have violated this duty; (3) causal relation­ ship--the plaintiff's injury must be the result of the defendant's conduct; and (4) damage-the plaintiff must have suffered a loss. 199 Under the traditional negligence fqrmula, the court will consider the causal relationship only after the plaintiff has shown that a duty was owed and that this duty was breached. 200 Because of the potentially huge number of participants in the construc­ tion process, numerous and complex contractual relationships usually exist. ''Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of contract.' ' 201 When a party negligently fails to observe

195. See Sime v. Tvenge Assoc. Architects & Planners, 488 N.W.2d 606,611 (N.D. 1992) (citing 63 AM. JUR. 2D Products Liability§ 218 (1984); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 104, at 719-720 {5th ed. 1984)). . 196. !d.; accord Bellemare v. Gateway Builders, Inc., 420 N.W.2d 733,738 (N.D. 1988); K-Mart Corp. v. Midcon Realty Group. 489 F. Supp. 813, 819 (D. Conn. 1980); City of Mounds View v. Walijarvi, 263 N.W.2d 420, 425 (Minn. 1978); Chubb Group of Ins. Cos. v. C.F. Murphy & Assocs., 656 S.W.2d 766, 779 (Mo. Ct. App. 1983); State ex rei Risk Management Div. of Dep't of Fin. & Admin. v. Gathman-Matotan Architects & Planners, Inc., 653 P.2d 166, 170 (N.M. Ct. App. 1982); Jackson v. City of Franklin, 554 N.E.2d 932, 940 (Ohio Ct. App. 1988). 197. Guiffrida. supra note 183, at 345-46. 198. /d.; see Blagg v. Fred Hunt Co., 612 S.W.2d 321, 324 (Ark. 1981) (holding that for purposes of the Arkansas strict liability statute, a house is a ''product,·' and therefore a second owner of a house could proceed against the builder on a strict liability theory). 199. Ward v. Hobart Mfg. Co., 450 F.2d 1176, 1181 (5th Cir. 1971). 200. /d. 201. Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508, 510 (Tex. 1947). 1072 TEXAS TECH LAW REVIEW [Vol. 26:1041 such duties, he not only risks a claim for breach of contract but may be liable in tort as well.202 The contract may be said to create "the state of things which furnishes the occasion of a tort.' ' 203 Given that a contract may create duties under both contract and tort law, if a party is negligent in the performance or nonperformance of its contract, a breach of duty may give rise to actionable negligence.204 Accordingly, the threshold legal question in an SBS negligence claim must address what duty is owed, to whom that duty is owed, and whether that duty was breached.

A. Duties of the Building Team

1. The Design Team

Before alleging a breach of duty, it is necessary to understand the nature of the duty owed in a construction contract. With respect to design professionals, a plaintiff must point to some rule of law that offers protection against the defendant's wrongful conduct. In Paxton v. Alameda County, the California District Court of Appeal defined an architect's professional standard of care where the architect was allegedly negligent in specifying roof sheathing of insufficient strength to support employees of the roofing subcontractor.205 One of the subcontractor's employees was carrying two fifty-pound buckets of hot tar along the roof and was injured when the roof sheathing gave way beneath him. 206 The complaint alleged ''that the plans and specifications were so carelessly and negligently drawn that they called for construction and use of materials that were unsafe and dangerous'' and therefore rendered the actual construction of the building unsafe and dangerous.207 The Paxton court ruled: By undertaking professional service to a client, an architect impliedly represents that he possesses, and it is his duty to possess, that degree of learning and skill ordinarily possessed by architects of good standing, practicing in the same locality. It is his further duty to use the care ordinarily exercised in like cases by reputable members of his profession practicing in the same locality; to use reasonable diligence and his best judgement in the exercise of his skill and the application of his learning, in an effort to accomplish the purpose for which he is employed. . . . The standard is that set by the learning, skill and care ordinarily possessed and

202. /d. 203. /d. 204. /d. 205. 259 P.2d 934. 937-38 (Cal. Dist. Ct. App. 1953). 206. /d. at 937. 207. /d. at 937-38. 1995] SICK BUILDING SYNDROME 1073

practiced by others of the same profession in the same locality, at the same time. 208 Thus, if a building is contaminated by VOCs, an injured SBS plaintiff might argue that the architect negligently specified building materials that were unsafe and dangerous and therefore rendered the actual construction of the building unsafe and dangerous. Many courts, however, have recognized that architects and engineers ''deal .in somewhat inexact sciences and are continually called upon to exercise their skilled judgement in order to anticipate and provide for random factors which are incapable of precise measurement.' '209 Recognizing the inescapable possibility of error inherent in architectural and engineering services, ''the law has traditionally required, not perfect results, but rather the exercise of that skill and judgment which can be reasonably expected from similarly situated professionals.' ' 210 Although an architect must apply his skill and ability reasonably and without neglect, the prevailing majority rule, which was stated as early as 1896, has been that the architect's ''undertaking does not imply or warrant a satisfactory result."211 Presumably, the majority rule shields the architect from liability for latent defects that occur ''in spite of his diligent application of state-of-the-art design techniques.' ' 212 In City of Mounds View v. Walijarvi, the Supreme Court of Minnesota stated that ''even in the present state of relative technological enlightenment, the keenest engineering minds can err in their most searching assessment of the natural factors which determine whether structural components will adequately serve their intended purpose.' ' 213 The court reasoned that the risk of unforeseeable latent defects resulting from the associated architectural services should be shifted to the purchaser of those services.214 Because

208. /d. at 938; see also City of Eveleth v. Ruble, 225 N.W.2d 521, 524-25 (Minn. 1974) (reciting the legal principles applicable to professional services rendered by design engineers). ''One who undertakes to render professional services is under a duty to the person for whom the sei'Vice is to be performed to exercise such care, skill, and diligence as men in that profession ordinarily exercise under like Circumstances." /d. at 524; accord Cowles v. City of Minneapolis, 151 N. W. 184, 185 (Minn. 1915). 209. City of Mounds View v. Walijarvi, 263 N.W.2d 420, 424 (Minn. 1978). 210. /d. 211. /d. at 423 (citing Coombs v. Beede, 36 A. 104 (Me. 1896)); accord Gravley v. Providence Partnership, 549 F.2d 958, 959 (4th Cir. 1977); Palmer v. Brown, 273 P.2d 306, 317 (Cal. Ct. App. 1954); Mississippi Meadows, Inc. v. Hodson, 299 N.E.2d 359, 361 (Ill. App. Ct 1973); Borman's Inc. v. Lake State Dev. Co., 230 N.W.2d 363, 368 (Mich. Ct. App. 1975); Sears, Roebuck & Co. v. Enco Assocs., 370 N.Y.S.2d 338,344-45 (N.Y. Sup. Ct 1975), ajfd, 54 A.D.2d 13 (N.Y. 1976), modified, 372 N.E.2d 555 (N.Y. 1977); Ressler v. Nielsen, 76 N.W.2d 157, 162 (N.D. 1956); Smith v. Goff, 325 P.2d 1061, 1064 (Okla. 1958); Scott v. Potomac Ins. Co., 341 P.2d 1083, 1087 (Or. 1959); Ryan v. Morgan Spear Assocs., 546 S.W.2d 678, 681 (Tex. Civ. App.~orpus Christi 1977, writ refd n.r.e.). 212. See City of Mounds View v. Walijarvi, 263 N.W.2d 420, 424 (Minn. 1978). 213. /d. 214. See id. 1074 TEXAS TECH LAW REVIEW [Vol. 26:1041 it is foreseeable, however, that specified building materials might emit dangerously high levels of VOCs, the architect should not assume that the associated risk will be shifted to the building owner. Instead, the architect should require that the materials manufacturer thoroughly test its materials prior to installation. The architect should insist that a materials manufacturer provide documented test reports demonstrating that the specified building material can be used safely without contaminating the indoor air. Arguably, the architect should be held liable for foreseeable or patent defects, notwith­ standing that the parties are always free to contract for a stricter standard of liability, requiring the design professional to achieve, ensure, or guarantee specific results. 215 One fundamental difference between contract law and tort law is that ''in tort law, society, not the contract, specifies to whom the duty is owed, and this has traditionally been the foreseeable plaintiff.' ' 216 In Caldwell v. Bechtel, Inc., a construction worker allegedly contracted silicosis from exposure to excessive levels of silica dust during the construction of a subway tunnel.217 The District of Columbia Circuit Court of Appeals held that the engineering firm that contracted to provide safety engineering services owed a duty to take reasonable steps to protect third party construction workers from foreseeable risks to health posed by the high levels of silica dust and inadequate ventilation.218 Similarly, in A.E. Investment Corp. v. Link Builders, Inc., the Supreme Court of Wisconsin held that future third party tenants of a building are within the ambit of foreseeable harm that might be caused by an architect's negligent acts in designing and supervising the construction of a commercial building.2 19 Undoubtedly, an occupant of a sick building is a foreseeable third party plaintiff. Should the design team breach its duty to take reasonable steps to protect the building occupant from the foreseeable risks to health posed by SBS, the occupant will have a cause of action against the design team.

2. The Contractors

Building contractors are also held to a standard of care similar to that of the design team. 220 With respect to building contractors, a plaintiff

215. See Kenneth R. Michael. Design Professional Liability: A Balanced Framework for Third­ Party Actions by Tenants and Users, CONSTRUCTION LAW., Aug. 1994, at 8, 18 n.103 (citing Paul J. Sanner & Alexander L. Brainerd, Liability on the Contract, in ARCIDTECT AND ENGINEER LIABILITY: CLAIMS AGAINST DESIGN PROFESSIONALS 79 (Robert F. Cushman & Thomas G. Bottum eds., 1987)). 216. Caldwell v. Bechtel, Inc .• 631 F.2d 989, 998 (D.C. Cir. 1980). 217. /d. at 994. 218. /d. at 1002-03. 219. 21~ N.W.2d 764, 767 (Wis. 1974). 220. See generally Murray H. Wright & Edward E. Nicholas, III, The Collision of Tort and 1995] SICK BUILDING SYNDROME 1075 must also point to some rule of law that offers protection against the defendant's wrongful conduct. In Mann v. Clowser, the Supreme Court of Appeals of Virginia noted that in ''building and construction contracts it is implied that the building shall be erected in a reasonably good and workmanlike manner and when completed shall be reasonably fit for the intended purpose. " 221 As with the design team, a contractor's work also need not be perfect, given the imprecise nature of the building and design process. 222 Also, as with the design team, a contractor may freely agree to be contractually bound to a higher standard of care.223 For example, in Lambert v. Jenkins, a contractor entered into a written agreement guarantee­ ing "that the workmanship should be first-class and satisfactory in every respect.' '224 Similarly, in Winn v. Aleda Construction Co., a contractor was held to a higher standard of care after preparing and executing a written contract that unambiguously stated the work would be ''strictly per­ formed.' '225 Arguably, if a contractor breaches its duty to take reasonable steps to protect third party building occupants from foreseeable risks to health posed by SBS, the occupant of a sick building will have a cause of action against the contractor.

B. General Duty to Abate the Known Harm

In addition to the duties created under both contract and tort law, given a party's negligent performance or nonperformance of its contract, the SBS plaintiff should also consider the respective duties of the building team members to abate a known hazard. Aside from contractual obligations, ''a contractor (or anyone for that matter) creating an unreasonable risk of physical harm has a duty to abate the same.' ' 226 This duty extends to the building owner, the contractor, the design team, and the manufacturers of the suspect building materials, among others. 227 For instance, given the well-established fact that exposure to a product containing asbestos subjects the exposed person to a known risk of serious injury or death, courts have impliedly held that asbestos creates an unreasonable risk of physical hann.228 Accordingly, members of the building team have a duty to abate the known unreasonable risk of danger

Contract in the Construction Industry, 21 U. RICH. L. REV. 457. 463 (1987) (discussing the standard for contractual liability in the construction indUstry). 221. 59 S.E.2d 78, 84 (Va. 1950). 222. Wright & Nicholas. supra note 220. at 463. 223. Wright & Nicholas. supra note 220. at 463. 2~4. 71 S.E. 718, 719 (Va. 19ll). 225. 315 S.E.2d 193, 195 (Va. 1984). 226. Icard & Wright. supra note 73, at 29. 227. Icard & Wright, supra note 73. at 28-30. 228. Icard & Wright, supra note 73, at 29-30. 1076 TEXAS TECH LAW REVIEW [Vol. 26:1041

created by the material.229 This is particularly true with respect to manu­ facturers who might be sued on the theory of strict products liability and may be perceived as having "deep pockets. " 230 With respect to the design team, an action for abatement costs is likely to be based on negligent design or negligent approval of construction.231 With respect to building owners, case law suggests that the owner has an affirmative duty to require nothing less than abatement of the unreasonable risk of physical harm, even if initiating abatement procedures means that the owner must later seek indemnification from the party that actually created the risk. 232 Given the potential for serious physical injuries inherent in SBS cases, all building team members and other parties involved in the construction process must be aware of, and mindfully consider, affrrmative measures required to abate the hazard, regardless of which party is ultimately found to be at "fault.

C. Legal Causation: Breaking Ground

Assuming that a court finds that a member of the building team had a legal duty to exercise the care and skill of an ordinary building team member under all of the facts and circumstances, it is incumbent upon the plaintiff to prove that a breach of that duty proximately caused the alleged injury or harm.233 In most SBS claims, however, it appears easier to identify and label a particular building as sick than to demonstrate an actual and proximate causal connection between the SBS contaminants and the plaintiff's alleged injury.

1. Injuries to Health

If the plaintiff alleges an injury to health, he must demonstrate the causal connection between the sick building contaminants and his symptoms or injury. Nevertheless, even if a plaintiff creates a strong inference of a causal connection, there is enough debate within the scientific and medical communities to confuse even the informed reader. Furthermore, proving

229. Icard & Wright, supra note 73, at 29-30. 230. Icard & Wright, supra note 73, at 30. 231. Icard & Wright, supra note 73, .at 30. 232. Icard & Wright, supra note 73, at 28-29. 233. See McBane, supra note 116, at 5 (arguing that showing a contractor's adherence to ''industry standards'' to demonstrate that the work was performed in a good and workmanlike manner will not .automatically free a contractor from liability). McBane suggests that the contractor's responsibility "seems to be not to permit any environment which allows, supports or enhances the growth and spread of microbes." /d. Because much of the SBS problem relates "to moisture control via complete building design and criteria,'' architects and engineers have an even greater responsibility, and, accordingly, they must become aware of the issues. /d. . 1995] SICK BUIWING SYNDROME 1077

causation may be particularly difficult for plaintiffs who have previously demonstrated individual sensitivities to environmental irritants, such as asthmatics or persons with chronic allergies.234 For instance, ''individuals who suffer from indoor air pollution are typically particularly sensitive to pollution (because of asthma, age, or other conditions), and courts have not established the extent to which defendants should be responsible to protect unusually sensitive individuals from commonplace conditions.' ' 235 The fact that sources of microbiological contaminants are so numerous that it is often impossible to conclusively link a disease to indoor air contamination further complicates proof of causa­ tion. 236 Still, in some cases, a plaintiff may be able to demonstrate a sudden endemic of an unusual illness. To illustrate, an outbreak of Legionnaires' disease at a specific site will strongly suggest causation. 237 Nonetheless, even in these special cases the plaintiff must be able to trace the actual source of the suspect contaminant. 238 Proving causation becomes particularly difficult because a sick building may contain a multiplicity of suspect contaminants. Accordingly, individual contaminants might not be conclusively or exclusively linked to the alleged harm.

a. Proving Causation Through the Use of Biomarkers

Presumably, it is only a matter of time before science provides the mechanism to link individual SBS contaminants with a specific harm. For example, the possible use of biological markers (''biomarkers'') appears promising. Currently, biomarkers are used to detect environmental tobacco smoke exposure.239 To understand how biomarkers are used to detect ETS exposure, it is important to note that nicotine and its metabolite, cotinine, are tobacco-specific.240 Because nicotine and cotinine are tobacco-specific and because they can be found in saliva, blood, and urine, they can be used as biomarkers of active or passive (by exposure) smoking. 241 Biomarkers have been used to study the impact of exposure to other environmental contaminants, as well. 242 For instance, biomarkers have been used to

234. CRoss. supra note 22. at 144-45. 235. CRoss. supra note 22, at 144-45. 236. CROSS, supra note 22. at 144-45. 237. CROSS, supra note 22, at 144-45. 238. CRoss, supra note 22, at 144-45. 239. Proposed Rules of the Department of Labor, Occupational Safety and Health Administration, on Indoor Air Quality. 59 Fed. Reg. 15,968, 15,991 (1994). 240. /d. 241. /d. 242. Dr. B.P. Leaderer, Asstssing Human Exposurt to Indoor Air Contaminants, in PROCEEDINGS OF THE ASHRAE CONFERENCE IAQ'86: MANAGING INDOOR AIR FOR HEALTH AND ENERGY CONSER- 1078 TEXAS TECH LAW REVIEW [Vol. 26:1041 study the level of carboxyhemoglobin in the blood for exposure to carbon monoxide.243 Biomarkers have also been used to study the level of lead in the blood, teeth, and hair for ingested lead and for exposure to lead present in the air. 244 The use of biomarkers, however, may sometimes be limited because of ( 1) the difficulty in procuring physiological fluid samples from the subjects being studied, (2) the poorly understood relationship among the biomarker concentration, the air concentration of the suspect contaminant and the length of time exposed, and (3) inadequate knowledge of the correlation between the biomarker and the suspect air contaminant. 245 Its limitations notwithstanding, the developing science of human monitoring through the use of biomarkers may eventually ''permit the identification of 'chemical footprints'-a distinctive change in the DNA that can be tied to a particular chemical or· class of chemicals.' '246 The potential use of biomarkers is significant in that ''human monitoring has the potential to bring about a change in the nature of the evidence used in'' tort and workers' compensation cases.247 To illustrate, in typical chemical exposure cases, the evidence offered to prove causation is premised on the statistical correlation between exposure to the chemical and the associated disease.248 Because statistical correlations are usually population based, the plaintiff is placed at the mercy of the attributable risk, expressed as the percentage of cases of the associated disease attributable to the exposure within the population studied. 249 Unless the attributable risk exceeds fifty percent, ''the plaintiff cannot prove on the basis of the available statistical evidence, that it is more likely than not that his or her particular case of the disease was caused by the chemical exposure.' '250 Further development of the science of biomarkers may make it possible to identify a specific exposure of a specific individual to a specific chemical. 251 This identification would allow the correlation of particular diseases to particular chemicals, narrowing the scope of evidence from the studied population to a specific individual and placing a plaintiff's claim on

VATION 208, 210 (1986). 243. /d. 244. /d. 245. /d. 246. See generally NICHOLAS A. ASHFORD & CHARLES C. CALDART, TEcHNOLOGY, LAW, AND THE WORKING ENVIRONMENT 506 (1991) (discussing the scientific, legal, and ethical considerations in the use of biomarkers to monitor workers for chemical exposure and disease). 247. /d. at 504. 248. !d. See generally DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911 F.2d 941, 946-52 (3d Cir. 1990) (containing an excellent examination of the scientific methodologies used in proving causation, including a discussion of epidemiological studies and their weaknesses). 249. ASHFORD & CALDART, supra note 245, at 504. 250. ASHFORD & CALDART, supra note 245, at 504. 251. ASHFORD & CALDART, supra note 245, at 506. 1995] SICK BUIW/NG SYNDROME 1079 a firmer scientific footing. 252 At the very least, further developments in the science of biomarkers might ''make it much easier to distinguish those who have been exposed to ·a particular chemical in the workplace from those who have not, and to identify which of the many potential defendants was responsible.' ' 253 Nevertheless, for now, proving the missing causal link remains a difficult hurdle in SBS claims.

2. Harm to Property

In addition to, or independent of, health claims, an SBS claim might also allege diminution in property value or actual property damage. In a diminution of value claim, an owner simply argues that the presence of SBS has diminished the fair market value of the property. 254 In an actual property damage or abatement claim, a building owner will likely argue that the sick building contaminants created an unreasonable risk of harm and that remedial construction work was necessary to abate the harm. 255 Proving causation in a diminution of value action is likely to be easier than proving causation in a personal injury action. 256 In a diminution of value action, a plaintiff will first allege the actual presence of indoor air contaminants or allege that potentially harmful products were used in the building's construction. 257 The plaintiff will then allege that the mere presence of the contaminants or harmful products has significantly reduced the resale value of the contaminated building.258 Because a building's fair market value is affected by numerous factors besides indoor air quality, a plaintiff may employ financial experts to testify as to the actual effect of the alleged indoor air contamination.259 This sort of judgment, however, is commonly made by courts.260 Proving causation in an abatement action is also likely to be easier than proving causation in a personal injury action.261 In an abatement action, the plaintiff initially finances the correction of the indoor air pollution problem.262 Subsequently, the plaintiff sues the party or parties responsible for the contamination in order to recover actual abatement costs. 263 The

252. ASHFORD & CALDART, supra note 245, at 506. 253. ASHFORD & CALDART, supra note 245, at 506. 254. FRANK B. CROSS, LEGAL RESPONSES TO INDOOR AIR POLLUTION 145 (1990). 255. /d. 256. /d. 257. /d. 258. /d. 259. /d. 260. /d. 261. /d. 262. /d. 263. /d. 1080 TEXAS TECH LAW REVIEW [Vol. 26:1041 only literal causation issue in abatement actions is whether the expenses claimed were actually incurred and whether the expenses claimed were incurred for the purpose of correcting the alleged indoor air contamina­ tion. 264 While demonstrating causation is easier than in personal injury actions, abatement actions present inherent financial barriers.265 With respect to abating most· indoor air contaminants, the typical pecuniary recovery is relatively small. 266 Furthermore, litigation costs may make such actions impractical.267 Nevertheless, abatement actions may be feasible when large commercial buildings are found to be severely contaminated. 268 Asbestos removal, for example, has proved to be quite an expensive operation, making litigation more likely and perhaps more practical.269 Obviously, the greater the magnitude of-·renovations required to abate an SBS condition, the more likely it becomes that an owner will seek legal or equitable remedies through litigation. Financial barriers notwithstanding, property damage claims may also prove difficult if the owner is unable to isolate one responsible contaminant from the multiplicity of suspect contaminants. In such cases, the owner is forced to take either a shotgun approach, focusing remedial efforts on eliminating as many contaminants as can be identified, or to take a selective approach, focusing remedial efforts on eliminating the most likely contami­ nants. In either event, to survive any counterclaim that the owner failed to mitigate damages, the owner should base any remedial efforts on an evaluation of all objective evidence that might identify the most likely sources of contamination.

3. SBS Litigation is Complex and Costly Regardless of the Type of Injury Claimed

Whether an SBS claim alleges injuries to health or injuries to property, the cost of proving which contaminant or which combination of contami­ nants proximately caused the injuries may be prohibitive. 270 Because of the complexity and potentially high costs of establishing causation through expert medical, scientific, and engineering testimony, a great number of SBS claims will likely be pursued as class actions.

264. /d. 265. /d. 266. . /d. 267. /d. 268. /d. 269. /d. 270. See Icard & Wright, supra note 73, at 28. 1995] SICK BUILDING SYNDROME 1081

In the landmark "Waterside Mall Verdict," five plaintiffs were awarded just under $1 million in damages for injuries suffered in an SBS/BRI case.271 In this SBS/BRI case, nineteen current or former EPA employees brought a $10 million suit against the owner of the Waterside Mall office building that housed the EPA's Washington, D.C. headquar­ ters. 272 The result was hailed as a potential landmark in SBS litigation because Waterside Mall was the frrst case in which a general ''multifacto­ rial" causal theory "resulted in a substantial jury award."273 "Both the plaintiffs and the defendants claimed victory in the case. The plaintiffs' attorneys claim[ed] that this verdict ... [sent] a message to building owners and managers.' '274 Arguably, building owners and managers must take a proactive role in identifying and abating SBS conditions in order to minimize their potential liability. "The defense, meanwhile, suggest[ed] that the amount of the award ... [would] not be sufficient to pay for the plaintiffs' expert fees and costs incurred in preparing and presenting the case at trial.' '275 Whether or not the defense attorneys are correct, building owners and managers should take affrrmative steps to identify and abate harmful SBS conditions or brace themselves for expensive and protracted litigation of SBS claims. Further complicating SBS claims is the fact that some plaintiffs may neither demonstrate nor allege actual physical injuries but may seek to recover for the mere increased risk of physical injury or future harm to health. Presumably, the potential future use of biomarkers to prove ''certain sub-clinical effects, such as DNA damage, would . . . [help] support an allegation of increased risk'' of future harm. 276 Although the future use of biomarkers might support such allegations, it is not clear whether an individual claim for increased risk of future harm is currently viable in most states.277

271. See Icard & Wright, supra note 73, at 28. 272. See Icard & Wright, supra note 73, at 28. Only five of the nineteen cases actually went to trial. /d. 273. See Icard & Wright, supra note 73, at 28. 274. See Icard & Wright, supra note 73, at 28. 275. See Icard & Wright, supra note 73, at 28. 276. ASHFORD & CALDART, supra note 245, at 505. 277. ASHFORD & CALDART, supra note 245, at 505. ''The emerging rule seems to be that one cannot recover for increased risk unless one can establish that the risk of contracting the l)'ledical condition in question is greater than 50%.'' /d. at 505 n.179; see, e.g., Sterling v. Velsicol Chern. Corp., 855 F.2d 1188, 1205 (6th Cir. 1988); Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315, 319-20, modified en bane:, 797 F.2d 256 (5th Cir. 1986); Herber v. Johns-Manville Corp., 785 F.2d 79, 82 (3d Cir. 1986). Other courts have allowed recovery when the risk of contracting the medical condition in question was less than fifty percent. See, e.g., Brafford v. Susquehanna Corp., 586 F. Supp. 14, 18 (D. Colo. 1984); Herskovits v. Group Health Coop. of Puget Sound, 664 P.2d 474, 476-77 (Wash. 1983) (decreased chance of survival for a cancer patient). 1082 TEXAS TECH LAW REVIEW [Vol. 26:1041

D. Standing at the Threshold: The Economic Loss Doctrine

One key obstacle that a plaintiff might encounter when proceeding on a tort theory is the economic loss doctrine. 278 Under the economic loss doctrine, a plaintiff in a contractual relationship may only sue in warranty when the plaintiff suffers purely economic loss.279 Typically, the nature of the injury, whether it be purely economic or physical, determines whether a party has breached a duty in contract or in tort. 280 The distinction is important because, generally, a ·breach of contract alone cannot sustain the recovery of punitive damages.281 Furthermore, "in half the states that recognize the economic loss doctrine, claims for purely economic losses generally cannot be pursued in tort and must be found in contract. " 282 In determining whether an action based solely on economic loss may be characterized as a tort, the Texas Supreme Court held, ''[w]hen the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.' ' 283 The current trend in the majority of jurisdic­ tions is to reject negligence as a cause of action for purely economic loss.284 Pure economic loss arises under a contract when ''no person or other property is damaged,'' but when one party suffers a loss respecting the ''benefit of the bargain-traditionally the core concern of contract law.''285 At the core of the economic loss doctrine is the premise that parties to a contract have the ability to negotiate the allocation of economic risks and remedies. 286 ''The economic loss doctrine provides a balance between two conflicting societal goals: that of encouraging marketplace efficiency through the voluntary contractual allocation of economic risks with that of discouraging conduct that leads to physical harm.' '287 SBS litigation is

278. CROSS, supra note 22, at 158. 279. CROSS, supra note 22, at 158. 280. Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). 281. /d. 282. Kenneth R. Michael, Design Professional Liability: A Balanced Framework for Third-Party Actions by Tenants And Users, CONSTRUCTION LAW., Aug. 1994, at 8, 9 (citing JUSTIN SWEET, LEGAL ASPECTS OF ARCHITECTURE, ENGINEERING, AND THE CONSTRUCTION PROCESS 308 (4th ed. 1989)). 283. Jim Walter Homes, Inc., 711 S.W.2d at 618. 284. Rocky Mountain Helicopters, Inc. v. Bell Helicopter Textron, Inc., 24 F.3d 125, 130 n.2 (1Oth Cir. 1994). 285. East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 870 (1986); see also Hoseline, Inc. v. U.S.A. Diversified Prods., Inc., 40 F .3d 1198, 1200 (11th Cir. 1994) (holding that "the economic loss doctrine bars tort recovery for contract claims which involve no injury to person or property"). 286.. Casa Clara Condominium Ass'n v. Charley Toppino & Sons, Inc., 620 So. 2d 1244, 1248 (Fla. 1993); see also Florida Power & Light Co. v. Westinghouse Elec. Corp., 510 So. 2d 899, 901 (Fla. 1987) (stating that the economic loss doctrine "encourages parties to negotiate economic risks through warranty provisions and price·'). 287. 80S. Eighth St. Ltd. Partnership v. Carey-Canada, Inc., 486 N.W.2d 393,396 (Minn. 1992). 1995] SICK BUILDING SYNDROME 1083

complicated by the fact that such claims are unlikely to simply involve classic contract disputes over whether an owner received the benefit of the bargain, but rather they are likely to include allegations of increased risks of physical injury or harm to human health. Generally, in order to cross the threshold between an action in contract and an action in tort, in which a plaintiff may recover punitive damages, a plaintiff must demonstrate a distinct tortious injury with actual damages. 288 For example, in Casa Clara Condominium Ass'n v. Charley Toppino & Sons, Inc., a case involving condominium units and single family homes allegedly damaged by cracking and falling concrete, the Florida Supreme Court considered the issue of whether a homeowner could recover pure economic damages from the supplier of the defective concrete under a 2 9 negligence theory. M The homeowners argued that the defective concrete was an individual component product that. damaged ''other'' property.290 The court disagreed, stating that "[t]he character of a loss determines the appropriate remedies, and, to determine the character of a loss, one must look to the product purchased by the plaintiff, not the product sold by the defendant.' ' 291 Moreover, the court stated that with respect to a homeowner, the product bargained for is the dwelling unit and not its individual compo­ nents.292 Accordingly, the court reasoned that because the defective concrete became an integral component of the finished product dwelling unit, it did not injure "other" property.293 Furthermore, the court indicated that the mere possibility that the falling concrete might cause a physical injury was not a sufficient reason to abrogate the economic loss doctrine. 294 By way of analogy, it is arguable that the mere possibility that high • levels of indoor air contaminants may cause a physical injury is not a sufficient reason to abrogate the economic loss doctrine in cases of suspected sick buildings. . Does the Florida Supreme Court's rationale in Casa Clara suggest that an owner of a potentially sick building should wait for its occupants to manifest serious physical injuries before a cause of

See generally James L. Connaughton, Comment, Recovery for Risk Comes of Age: Asbestos in Schools and the Duty to Abate a Latent Environmental Hazard, 83 Nw. U. L. REV. 512, 525-56 (1989). 288. See Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 745 (Tex. 1986) (stating that as a predicate to recovery of punitive damages in tort a plaintiff must have suffered actual damages). 289. Casa. Clara Condominium Ass'n, 620 So. 2d at 1244. 290. /d. at 1247. 291. /d. 292. /d. 293. /d. 294. /d. The Florida Supreme Court reasoned that the homeowners' "argument goes completely against the principle that injury must occur before a negligence action exists.'' /d. The court continued, "[b]ecause an injury has not occurred, its extent and the identity of injured persons is completely speculative. Thus, the degree of risk is indetenninate, with no guarantee that damages will be reason~ly related to the risk of injury, and with no possibility for the producer of a product to structure its business behavior to cover that risk.'. /d. 1084 TEXAS TECH LAW REVIEW [Vol. 26:1041 action lies in tort? Given the vast amount of literature in medical and scientific journals warning of the verifiable dangers' of indoor air contami­ nants, and given our nation's past experience with asbestos related injuries, it is arguable that public policy demands that the personal injury exception to the economic loss doctrine be extended to include situations where an immediate and verifiable risk of imminent physical injury or harm to human health exists.

1. Exceptions to the Economic Loss Doctrine: Is There Room For Expansion?

Conceivably, much of the future SBS litigation will track the logic advanced in other toxic tort litigation. Because of courts' past experiences with asbestos litigation, it is helpful to examine how courts have addressed exceptions to the economic loss doctrine in such cases. In 80 South Eighth Street Limited Partnership v. Carey-Canada, Inc., the Supreme Court of Minnesota considered the question of '' [w ]hether the economic loss doctrine ... bars the owner of a building with asbestos-containing fireproofing from suing the manufacturer of the frreproofing under the tort theories of negligence and strict liability for the costs of maintenance, removal and replacement of the fireproofing?" 295 In 80 South Eighth, the plaintiff sought ''the costs of eliminating the risks of injury and of making the building safe for all those who use[d] and occup[ied]" the property.296 The plaintiff was not seeking damages for actual personal injuries, nor did the plaintiff allege that there were actual personal injuries caused by the· asbestos-containing fireproofing material. 297 Neither did the plaintiff allege that the asbestos-containing fireproofing material failed to perform its fireproofing function-the use for which it was intended.298 Instead, the plaintiff alleged that the fireproofing material introduced asbestos into the building, creating a condition highly dangerous to humans. 299 The defendant rebutted by stating that the mere presence of asbestos in the building did not constitute a health risk. 300 In holding that the economic loss doctrine did not bar recovery in tort, the Minnesota court explained that "[r]ather than waiting for an occupant

295. 80S. Eighth St., 486 N.W.2d at 394. The suit involved removal of Monokote fireproofing material as installed in a four-building, fifty-two story high rise commercial complex in Minneapolis, Minnesota. /d. 296. /d. at 397. 297. /d. at 395. 298. /d. 299. /d. at 397. The plaintiff conducted tests that indicated that even when left undisturbed, the Monokote fireproofing material would release substantial numbers of asbestos fibers throughout the building interior. /d. at 395. 300. /d. 1995] SICK BUILDING SYNDROME 1085

or user of the building to develop an asbestos related injury ... building owners should be encouraged to abate the hazard to protect the public.' ' 301 The court reasoned that allowing the plaintiff to proceed in tort advanced both the rationale and public policy objectives of tort law, one objective being to deter unreasonable risks of harm.302 Some courts have focused on the ''other property'' exception to the economic loss doctrine. In cases that advanced the ''other property'' exception, the courts reasoned that harm caused by the installation of asbestos should not be viewed as a classic economic loss but rather as property damage to other building components. 303 These courts then labeled the damaged building components "other property."304 In Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co., asbestos manufacturers brought declaratory relief actions to determine insurance coverage for claims involving asbestos-containing building material.305 Some of the underlying claims alleged that the mere presence of asbestos-containing building material posed a health hazard and threat of harm based on its potential for releasing asbestos fibers into the building's air supply.306 The underlying claims went beyond allegations of defective workmanship or defective materials and alleged injury to ''other proper­ ty.' ' 307 The California court stated that even if there had been no release of asbestos fibers, if the manufacturer is ultimately held liable for its mere presence, then the injury to the subject building should be considered a physical injury to other property.308 The court reasoned that whether the asbestos-containing building material took the form of pipe insulation, fireproof floor tiles, or acoustical ceiling finishes, once installed, the material is ''physically linked with or physically incorporated into the building and therefore physically affects tangible property.' ' 309 The court concluded that because the material was physically incorporated into the building and because it had to be removed to avoid the threatened harm, it therefore was injurious to the building and qualified as a physical injury to ''other'' tangible property under the terms of the insurance policies. 310 Courts should be ever mindful of past experiences with other toxic tort litigation such as asbestos claims. As a matter of public policy, courts

301. /d. at 398. 302. /d. 303. Armstrong World Indus., Inc. v. Aetna Casualty & Surety Co., 26 Cal. Rptr. 2d 35,84 (Cal. ClApp. 1993). 304. /d. 305. /d. at 35. 306. /d. at 84. 307. /d. 308. /d. 309. /d. 310. /d. at 84-85. 1086 TEXAS TECH LAW REVIEW [Vol. 26:1041 should not allow the economic loss doctrine to act as a bar to meaningful recovery. Furthermore, existing personal injury exceptions to the economic loss doctrine should be extended to include situations where an SBS condition creates an immediate and verifiable risk of imminent physical injury or harm to human health. Courts should encourage owners and building team members to become proactive by taking affirmative steps to immediately abate known or suspected cases of SBS.

VI. CONCLUSION

After reviewing the facts associated with several high profile SBS cases, the extraordinary magnitude of potential SBS claims is unmistakable. Clearly, SBS involves both technology and the law. As SBS claims are expected to proliferate, both personal injury attorneys and attorneys representing building owners, architects, engineers, manufacturers, suppliers, and contractors must familiarize themselves with SBS and the attendant technological anq legal issues associated with poor indoor air quality. Building team members should be encouraged to pool their technological skills and become proactive in developing a long-term solution. Under­ standing, however, that innocent building occupants will continue to suffer injuries, courts should carve out exceptions in the law where required to provide meaningful recovery to SBS victims. The personal injury exception to the economic loss doctrine, for example, should be extended to include SBS because SBS creates an immediate and verifiable risk of imminent physical injury or harm to human health. Arguments for extending this exception are analogous to arguments that the law should recognize and provide a remedy for a ''lost chance of survival,'' which may be at issue in medical malpractice cases. Such exceptions must necessarily weigh the probability that the subject occurrence will result in the threatened harm. Arguably, weighing the probabilities in light of the evidence presented is a task best left to the rough sense of justice of the jury. When an argument is advanced for a good faith extension of the law, however, attorneys must mindfully guard against simply manipulating language lest their chosen profession be branded a profession of mere ''wordsmiths.'' Perhaps it is natural that ''[h]uman_beings give structure to their experience-cut the world of perception up into usable slices-through 3 language, in accordance with the needs and interests of the moment. " II But for the occupant or user of a "sick building" that is, in fact, subjected to a hazard that creates an immediate and verifiable risk of imminent physical

311. Eljer Mfg., Inc. v. Liberty Mut. Ins. Co., 972 F.2d 805, 810 (7th Cir. 1992), cert. denied, 113 S. Ct. 1646 (1993) (Judge Posner distinguishing between '"physical injury" and "physical injury"). 1995] SICK BUILDING SYNDROME 1087 injury or harm to human health, the law should not stumble on language, jealously withholding its remedy until the threatened injury or harm actually occurs. Instead, the law should respectfully consider the needs and interests of the moment and carve out an exception that will vigorously encourage both the building team and the building owner to immediately abate the hazards associated with poor indoor air quality. In this regard, ''[t]o know even one life has breathed easier ... is to have succeeded.' ' 312

by Gene J. Heady

312. Lynn Lannon, Giving Back: The Secret of Creating Success, TRAINING & DEY., Apr. 1, 1990, at 58 (citing Ralph Waldo Emerson). TEXAS TECH UNIVERSITY