Recognition of Sick Building Syndrome Has Laid the Foundation to Raise Toxic Tort Litigation to New Heights

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Recognition of Sick Building Syndrome Has Laid the Foundation to Raise Toxic Tort Litigation to New Heights 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.
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