Brandt v. Rokeby Realty Co., et al.

Annotate this Case

Download PDF

SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES P.O. BOX 746 COU RTHO USE GEORGET OWN, DE 19947 JUDGE September 8, 2004 Jeffrey M. Weine r, Esquire 1332 King Street Wilmington, Delaware 19801 Paul M. Luk off, Esquire Prickett, Jone s & Elliott P.O. Box 1328 Wilmington, Delaware 19899 David E. W ilks, Esquire Buchan an & Ing ersoll Nemours Building, Suite 1110 1007 N . Orange S treet Wilmington, DE 19801 Kevin J. Conn ors, Esquire Marsha ll Denneh ey Warner C oleman & Goggin P.O. Box 130 Wilmington, Delaware 19899 Re: Brandt v . Rokeby Realty C omp any, et al. C.A. No. 97C-10-132-RFS Dear C ounsel: Pending before this Court are summary judgment motions which need to be resolved. I wanted to have the benefit of transcripts of oral arguments for several of the motions. However, the court reporter is required to give criminal appeals priority. Given a heavy load , the transcripts w ill not be prep ared in the n ear future. I w ant to mov e this case forward, and, for that reason, this letter opinion will address various motions following my review of the briefs and notes of the oral arguments. BACKGROUND The p laintiff, C harles B randt ( Brand t ), lease d a suite to cond uct a law practice . His office was on the second floor of a three story building at 3 Mill Road, Wilmington, Delaware. When entering into the lease, the building was being constructed for comm ercial us e. Brandt occupied the space from 1990 through 1995. At the end of 1995, he moved out. At that time, Brandt was sick. The primary thrust of the complaint is the allegation that mold in the ceiling w as of suff icient conce ntration and toxicity to cause a health problem. Brandt s claims are based upon negligence. A number of defendants were sued: Rokeby Realty Company ( Rokeby ); the commercial lessor, G arret Van S. Cop eland, the President of R okeby ( Copeland ); Service U nlimited, Inc. ( Service ) a n air conditio ning and h eating com pany; and M erit Mech anical C ompa ny, Inc., an other air conditio ning an d heatin g com pany ( M erit ). Merit r eplace d filters d uring th e initial yea rs after th e buildin g was constru cted. Thereafter, Service performed preventive maintenance work on the heat pumps, including those supporting B randt s office. All of the de fendants have m oved for summ ary judgment on various grounds which are discussed below. Standard of Review This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the nonexistence of material issues o f fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party meets its burden, the burden shifts to the nonmoving party to establish the existence of ma terial issu es of fa ct. Id. At 681. The court views the evidence in a light most favora ble to the nonm oving p arty. Id. At 680. 2 Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and burden shifts, the nonmoving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of materia l fact fo r trial. Super. C t. Civ. R. 56(e); C elotex Co rp. V. Catre tt, 477 U.S. 317 , 322-23 (1 986). If ma terial issues of f act exist or if the Court dete rmines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summ ary judgm ent is no t appro priate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). Rokeby s Motion on Duty of Care Rokeby argues that it does not owe a duty of care to Brandt. Of course, there must be a duty to pre vent injury in a n egligence a ction. The c oncept of duty was ad dressed in one Superior Court decision as follows: Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor s part for the benefit of the injured person . . . . In their hornbook, Professo rs Prosser an d Keeton admonis h their reade rs to resist the urg e to blend the concepts of duty and standard of conduct when addressing the threshold leg al issue of w hether one party may be he ld legally accou ntable to another. It is better to reserve duty for the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other, and to deal with particular conduct in terms of a legal standard of what is required to meet the obligation. Delaware courts have recogn ized the distinctio n as w ell. Kuczy nski v. M cLaug hlin, 835 A.2d 15 0, 153 (Del. Super. C t. 2003) (citations omitted). Furthermore, the Court decides whether such a relationship exists between the parties that the c omm unity will im pose a l egal ob ligation upon o ne of th e bene fit of the other . Naidu v. Laird, 539 A.2d 106 4, 1070 (Del. 1988 ). 3 The parties agree that the lease between Rokeby and Brandt was subject to the Landlord Tenant C ode. In a ca se involving mold, the S upreme C ourt foun d that the du ty imposed by the Lan dlord Tenant C ode to maintain a bu ilding in a safe and sanitary conditio n could be the s ource o f a duty to mainta in a neg ligence claim. New Haverford P ship v. Stroot, 772 A.2d 792 , 798 (Del. 2001). In other litigation between landlords and tenants, the Code has been referenced as reflecting or establishing a duty. In Norfle et I v. M id-Atlan tic Rea lty Co., In c., 2001 WL 282882 (Del. Super. Ct.) ( Norfleet I ) Judge Witham observed that the Landlord Tenant Code was consistent with legal precedent. A landlord is required to maintain leased property in a reasonably safe condition and to make necessary repairs. The code comprises a minimum, base-line duty. Norfleet I at * 7. The law on this subject was also reviewed in Powe ll v. Meg ee, Del. Su per. Ct., C.A. N o. 02C-0 5-031, Sto kes, J. (Jan. 23 , 2004) Le tter Op. at 3-4 . Landlord s have a d uty to provide a safe unit fit for renting at all times during the tenancy. See 25 De l.C. § 5305( a)(2). See also Pierce v. Indian Landing Creek Properties, 1991 W L 1135 80 (Del. Super. C t.); Hand v . Davis, 1990 W L 9658 3, at *2 (De l. Super. Ct.); Ford v. Ja -Sin, 420 A.2d 184, 186 (Del. Super. Ct. 1980). The adoption of the Code permitted an action at commo n law for negligenc e, because it [extende d] landlord liability under an o rdinary neglige nce standa rd to all defects, latent or otherwise in the rental unit of which the landlord was aware or should have been aware which endanger the health, welfare or safe ty of th e ten ant o r occ upant du ring the te rm of the tena ncy. Rosenberg v. Valley Run Apartments Assoc., Del. Super. Ct., No. 1143, 1973, Walsh, J. (April 2 9, 1976 ), Letter O p. At 3, aff d, Del. Supr., No. 121, 1976 (May 17, 1977) 4 (referring specifically to the effect § 5303 (a)(2) had on the com mon law ap proach). At the time of the lease, the Landlord Tenant Code obligated a landlord to provide and main tain a fit rental u nit. Section 5 303(a) stated : (a) T he L andlord shall at all time s dur ing tenan cy: 1. Comply with all applicable provisions of any State or local statute, code regulation or ordinance governing the maintenance, construction, use of appearan ce of the re ntal unit and the property of which it is a p art; 2. Provide a rental unit which shall not endanger the health, welfare or safety of the ten ants or occu pants and is fit for the pu rpose for w hich it is expressly rented; 3. Keep in a clean and sanitary condition all areas of his building, grounds, facilities and appurtenances which are maintained by the Landlord; 4. Make all repairs and arrangements necessary to put and keep the rental unit and the appurtenances thereto in as good condition as they were, or ought by law o r agreem ent to have bee n, at the co mmence men t of te nancy; 5. Mainta in all electrical, plu mbing an d other fac ilities supplied b y him in good w orking order; . . . . Viewin g the record in favor of Brandt as the nonm oving par ty, there was m old in the ceiling above his off ice. Tiles were found to have water dam age. The area w as near a heat pump and equipment w hich had overflow ed. Evidence of w ater leaks were observed. Rokeby had control of the space. These circumstances implicate Code sections which im pose a du ty on Rokeb y to supply and m aintain a reas onably safe u nit. Nevertheless, Rok eby argues that it had no duty to wa rn Brandt about the m old. It contends that mold did not present a warning sign of health dangers under the state of scientific knowledge which existed in 1990 - 1995. This argument is not persuasive. In a 5 suit involving asthma triggered by high counts of mold in a house in 1992 - 1993, the Nebraska Supreme Court observed: The list of publications which have addressed the presence of microbiological organisms and their relationship to asthma and allergies showed that the scientif ic comm unity has gene rally accepted th e principle tha t a connection exists between the presence of mold and health. Mondelli v. Nebraska Hom es Cor poratio n, 631 N.W.2d 846, 856 (Neb. 2001). The connection was referenced in New Haverford P ship, 772 A.2d at 796-799. Certainly, a landlord may be held liable for injuries to a tenant if a latent defect was n ot disclo sed w hen the proper ty was ren ted. See Brandt v. Yeager, 199 A.2d 768, 770-1 (Del. Super. Ct. 1964). Rokeby was responsible to maintain the common areas of the building, including its plumbing, mechanical, and heat pump components. If a landlord un dertakes rep airs and m aintenance for a tenan t, reasonable care must b e used in undert aking th ose serv ices. See Sipple v. Kaye, 1995 W L 654 139, at * 2 (Del. S uper. C t.). In Sipple, Judge Del Pesco considered the duty to warn not as a separate cause of action . . . but rather as a means of effecting a more general duty. Id. While there may be a general duty to inspect and clean a heat pump and to replace moldy tiles which may not be safe, the duty to warn of the danger of mold would arise incidentally from a breach of these duties. Defendants p oint out that in asbestos cases, defe ndants do not hav e a duty to warn about s ometh ing they c ould no t have k nown was d angero us. See In re Asbestos Litigation, 799 A.2d 1151, 11 53 (Del. 20 01); Roche v. Lincoln Prop. Co., 2003 WL 6 22002 716 at * 6 (E.D . Va.), rev d in part, vacated in part and remanded for lack of diversity jurisdiction, 373 F.3d 610 (4 th Cir. 2004). Here, whether Rokeby, as a commercial landlord, had reason to know that the mold created a dangerous condition depends upon the appropriate standard of care which is discussed next. The motion on grounds of a lack of a legal duty, however, is denied. Rokeby s Mo tion on Standard of Care Rokeby contends that Brandt does no t have sufficient evidenc e to show a standa rd of care w as breache d. The distin ction betw een the du ty to prevent ha rm and h ow that is to be mea sured is w ell established . Duty establishe s the obligatio n; the cond uct is evalua ted by a leg al stand ard of w hat is ne cessary to satisfy the obligati on. Kuczynski, 853 A .2d at 15 3, quoting Samh oun v. G reenfiel d Con str. Co., 413 N.W.2d 723, 726 (Mich. Ct. App. 1987). ( In Prosser s terms . . .[i]t is apparent that resolution of the duty issu e determ ines the existen ce and not the n ature or extent o f the ac tor s ob ligation . Although somewhat interrelated, those latter concepts are more properly considered in the evaluation of the actor s conduct in relation to the general and specific standards of care. ) ( citations omitted .) Rokeby argues that since the maintenance of a large office building requires special skill, the burden is on Brandt to establish the relevant standard of care through expert testimony. Rokeby points out that Brandt s experts, W. Edward Montz, Jr., Ph.D. ( Montz ) and Joseph A. Miller ( Miller ), a certified industrial hygienist, testified that between 199 0 and 1995 the re were no acc epted standards for leve ls of indoor exposu re 7 to mold. In addition, Rokeby maintains that Montz, Miller, and Brandt s two medical experts, are not qualified to assess the standard of care of a commercial landlord regarding mold in the leasing of premises. Accordingly, without expert testimony showing a standard, Rokeby asserts that Brandt cannot establish an essential element of his case . As pre viously cit ed, De laware Courts have f ound, [t]he duty of the landlord is to maintain the premises in a re asonably safe condition, and to undertake any repairs necessary to achieve that end. Norfleet I at *6 citing, Hand v. Dav is, 1990 WL 96583, at *2 (citations omitted). This duty extends to defects the landlord is aware of or should be aware of through reasonable inspection of the rental unit. Id. In this regard, Rokeby cites Norfle et v. Mid -Atlanti c Realt y Co., 2001 WL 695547 (Del. Super. Ct.) ( Norfleet II ) in support of the idea that maintaining a commercial building involves special kn owledge, thus an e xpert is required to establish the standard of care. In Norfleet II, the court found that an expert would be helpful, and in that case, required; the reason being , that in order to prove com mon law ne gligence it is necessary to show the landlord had a duty to act above and beyond the minimum requirements of the Landlord-Tenant law. Because the landlord-tenant relationship is regulated, it was helpful to have an expert familiar with the local practices and standards.1 Norfleet II at *4-6. The Norfleet II court, re ferenc ing ano ther cas e, Miley v. H armon y Mill Ltd. P ship, 1 The Court in Norfleet required that the expert be familiar with local standards. In New Haverford P ship v. Stroot, 772 A.2d 792, (Del. 2001), the Supreme Court refused to find abuse of discretion when a trial court permitted the testimony of an expert as to a national standard of care for building maintenance, safety, and cleanliness which applied to Delaware as well. 8 803 F. Supp. 965 (D. Del. 1992), refused to find that landlords were professionals for negligence duty purpose s, but chose to hold the status of expert testimony in landlord tort cases to a similar standa rd, notin g, "[a]s a general rule the standard of care applicable to a professional can only be established through expert testimony. Norfleet II, citing, Weaver v. Lukoff, Del.Sup r., No. 15, 19 86, McN eilley, J. (July 1, 1986), O RDE R at 1. While the Landlord Tenant C ode may esta blish a duty, it does not set forth s pecific standa rds of c onduc t, see Powell v. Megee at 5. There, e xpert testimo ny was requ ired to show the standard of care expected o f a reasonably prudent prop erty manager. In response, Brandt provided Environmental Protection Agency ( EPA ) guidelines re garding m icrobiologic als and che micals in the indoor airstre am, publish ed in 1991. Viewing the facts in the light most favorable to him, Brandt has also shown that Rokeby was responsible for plumbing, mechanical, and electrical work in the law office. While EPA guidelines are helpful, they are still just guidelines and do not establish a standa rd of ca re. Brandt also provided the Heat Pump Manufacturer s Maintenance Instructions which discusses mold and might be helpful in establishing a standard. The version of the Instructions is from August 1997. Mold was not referenced until the latest printing which cannot be used to establish a standard of care for 1990-1995. The old manual does suggest when the heat pump air filter and condensate pan and drain should be checked and clean ed, but doe s not men tion mold a t all. (Defend ants Rep ly Memora ndum, E xhibit G at 10 .) 9 Brandt argues that expert testimony is not necessary. Where matters are within the common experience of jurors, expert testimony is not required. For example, the fact that people cu t corners is co mmon ly known a nd does n ot require ex pert testimon y in a faulty landsc aping d esign c ase. See Ward v. Shoney s, Inc., 817 A .2d 799 , 803 (D el. 2003 ). Jurors know that different dimensions of steel compromise the structural integrity of buildings and do not need specialized testimony to show that buildings may collapse from a defe ct of this nature. See C ity of Ne w Yo rk v. Tu rner-M urphy Co., 452 S.E.2d 615, 618 (S.C. Ct. App. 1994). Likewise, common sense would permit a fact finder to decide an architect had notice of flooding when advised that his proposed building was two feet lower t han rec ent floo ding. S ee Seile r v. Levi tz Furn iture, C o., 367 A.2 d 999, 10 08 (Del. 1976). The Brandt c ase is com plex . Wh at is required of co mmercia l land lords to satisf y a duty to provide and maintain a reasonably safe rental unit in 1990 - 1995 where mold and water damage occur? Stating the question provides the answer. The subject is beyond the comm on know ledge and experienc e of jurors. W ithout guida nce from an appro priate standard, the jury would be merely speculating about this important aspect of the case. In the interest of justice, rather than enter summary judgment, Brandt must provide expert opinion on the standard of care within 90 days. At that time, Brandt shall also provide the substance of the facts and opinions of any expert and summary of grounds for each opin ion. If Bran dt fails to do so , summary jud gment sh all be entered . Should Brandt be able to do so, Rokeby shall have an additional 90 days to obtain its expert 10 opinion an d to excha nge the sam e informa tion. The p arties may dep ose any exp ert on this subject. Service s Motion on Standard of C are Service performed preventive maintenance work at the office building from 1994 1996. While w orking on a heat pu mp, Service discove red that a ceiling tile near Brandt s office sho wed w ater dama ge. Tiles in B randt s off ice were la ter found to have mo ld which allegedly affected his health. In this regard, one of Service s employees, Anthony Renda, reported finding two water saturated tiles. He also found tiles had been placed on top of each other in the space above the ceiling (the plenum). It appeared that damaged tiles were discarded over new ones. It is disputed whether that reflected sloppy workmanship or represented an effort to have the older tiles absorb water leaks. Nevertheless, drain lines in two heat pumps near Brandt s office were pitched uphill which caused water to overflow in the condensate pans. M r. Re nda repo rted the e xisting condition of th e pip e to R okeby. Brandt do es not hav e expert testim ony to shed ligh t upon w hat is reason ably expected of a professional in similar circumstances. Where negligence is charged against a person o r firm in a trad e, the jury is instructed that: DUTY OF A PROFESSIONAL [Plaintiff] has alleged that [defendant] was negligent in [the alleged negligent conduct]. One who undertakes to render services in the practice of a profession or trade is always required to exercise the skill and knowledge normally held by members of that profession or trade in good standing in communities similar to this one. 11 If you find that [defendant] held [itself] out as having a particular degree of skill in [its] trade or profession, then the degree of skill required of [defendant] is that which [it] held [itself] out as having. The following authorities support this instruction: Tydings v . Lowens tein, 505 A.2d 443, 445 (Del.1986 ); Seiler v. L evitz Fu rniture, C o., 367 A.2d 99 9, 1007-0 8 (Del. 197 6); Swee tman v . Stresco n Indu s., Inc., 389 A.2d 1319, 1324 (Del. S uper. C t. 1978) . See also Restatement (Seco nd) Of Torts § 2 99A (1965 ). Service is an experienced heating, ventilation, air conditioning, and maintenance comp any. Its em ployees a re requ ired to h ave spe cialized qualific ations a nd exp ertise. Servic e has th e status o f a trade and is re quired to exerc ise a spe cialized degree of care . See Ruddy v. Moore, 1997 WL 717790, at 8 (Del. Super. Ct.) (expert testimony presented conce rning H VAC installatio n). John D ay Co . v. Alvin e & Asso c., 510 N.W.2d 462, 466 (Neb. C t. App. 1 993) (p rofessi onal sta ndard a pplies to design ing HV AC syst ems). Without expert testimony, jurors would be forced to surmise about the particular degree of skill and h ow to m easure it aga inst Service s functions u nder the circ umstance s of this case. Brandt argues that the mistake by Service was obvious and thus within the common knowledge of jurors to determine negligence. Brandt quotes specifications on the equipment, EPA guidelines, and testimony from Mr. Renda as supporting the position that n o expert testim ony is nece ssary. The spec ifications an d EPA guidelines m ay be eviden ce of a stan dard shou ld profes sionals r egard a nd inter pret them as such . See Toll Bros., Inc. v. Considine, 706 12 A.2d 493 (Del. 1998) (Occupational Safety and Health Act (OSHA) regulation may be relevant as standards bearing upon allegedly negligent conduct of general contractor, but violation of regulations is not negligence per se); Norfleet II at *6 (finding experts may use applicable codes, statutes, and regulations in a limited fashion to help establish standard of care, but not to prove negligence per se). Concern ing Mr. R enda, he tes tified at his dep osition that: Q: That prompts a question on my part. Was it part of your preventive maintenance to examine for mold that may have to look for mold? A: Yes. It would be, yes. Q: Where would you look for the mold? A: In the con densate pan, in th e con densate overflow pa n, or subs equently, anything associated with the heat pump, where there would be mold. Q: If you had observed overflow from the condensate pan, would you look at the ceiling tiles to see if there was mold there? Was that part of your function? A: To assess the damage, therefore, looking at them, yes. Q: What damage would you be assessing? A: Ceiling tile, the ceiling tile and associated supports. Granted that the preventive maintenance function required Mr. Renda to look for mold when servicing equipment, does the standard require that the area be tested? What is the standard if the affected area was not immediately above Brandt s office? How does 13 the discovery of conditions at different sites measure into the calculation? Does the standard require a report to Brandt as a tenant or only to Rokeby as a landlord? Does the nature and degree of observed damage affect the standard? How would EPA guidelines and equipment specifications be considered? The me re presenc e of mold is not conclu sive. Brand t reports that m old is everywhere, and there a re over 100,000 sp ecies of mold on e arth, of which 200 are allergenic, an d approx imately 50 are to xic to hum an health. B randt s M em. in Op p n. to Rokeby s Mot. for Summ. J. as to Existence of a Hazardous Condition at 111, ¶ 1. Under these circum stances, Ser vice s negle ct - whatev er that may be - is not so obv ious as to permit a jury to dec ide wh ether a s tandard of care was b reache d. Like the Rokeby motion, in the interest of justice, summary judgment will not be entered. Brandt must provide expert opinion on the standard of care within 90 days. At that time, Brandt shall also provide the substance of the fa cts and opinions of an y expert and summary of grounds for each opinion. If Brandt fails to do so, summary judgment shall be e ntered. S hould Brand t be a ble to do so , Service shall hav e an a dditiona l 90 d ays to obtain its expert opinion and to provide Brandt with the same kind of information. The parties may de pose any ex perts on this su bject. Merit s Motion for Summary Judgment Merit presents several grounds in support of its motion. Merit Mechanical provided HVAC (heating ventilation and air conditioning) services to the property from Augus t 8, 1990 un til March o f 1993. A ccording to Brandt, 14 Merit also installed the Water Source Heat Pump. The services provided were limited preventive maintenance and consisted primarily of changing the air filters on all water source heat pumps four times per year, [ cleaning] su mp, strainer a nd cabine t of both cooling towers, [inspecting] fans, shaft and controls, grease bearings and [adjusting] water leve l once per year; and [inspecting] mechanical room including pumps, boilers, piping and controls once per year. Merit M echan ical Co . s Mo t. for Su mm. J., E x. C (Proposal for Services) (em phasis added) ( M erit s Mot. ). Merit alleges that there is insufficient evidence to establish a prima facie case of negligence. It argues that Brandt has failed to show any breach of a duty by any act or omission by Merit that caused a leak of water or mold contamination. In response Brandt has again provided the EPA guidelines (1991) and the Heat Pump Manufacturer s Maintenance Instructions (1997) to show that a service technician must look for mold. Again the Maintenance Instructions (1997) were updated after the period in ques tion in th is case (1 990-1 995); th ey origina lly did not r eferen ce mo ld. A service tech nician (for S ervice Un limited), M r. Renda (s ee Brand t s Mot. in O pposition to Merit, Ex . C), testified tha t the service tec hnician ha s a respons ibility to examine for mold as part of preventive maintenance. He claims this would include inspecting the ceiling tiles. In Centex-R ooney C onstr. Co. V . Martin C ounty, 706 So.2 d 20, 25 (F la. Dist. Ct. App. 1997), in upholding a jury verdict in favor of the county in a breach of contract action, the court found that the county had sufficiently established that Centex did not 15 properly supervise the construction: First, it proved that Centex s construction defects caused moisture problems in the buildings, resulting in extensive mold growth. Centex s own employees acknowledged that its subcontractors defective installation of the EIFS system and windows led to extensive water infiltration and resultant mold grow th. Second, the Cou nty established through expert testimony that, be cause of th is moisture, the buildings w ere infested with two highly unusual toxic molds. Third, several experts attested to the accepted s cientific princ iple linking ex posure to th ese two m olds with health hazards. Problem s with the H VAC system were admitted su bstantial def ects in the w hole construction process which eventually caused excessive humidity and led to the growth of toxic molds. In Foster v. Den ton Ind ep. Sch . Dist., 73 S.W.3d 454 (Tex. Ct. App. 2002), the court foun d a manu facturer an d installer of a n HVA C system ha d no duty to en sure air did not con tain microb ial agents. Th e duties of H oneywell w ere similar to th ose of M erit - for exam ple, they were to change th e filters four tim es a year. Foster a lleged Ho neywell was responsible for her mold sickness because it allowed standing water under the school buildin g to bec ome in fested w ith mold . Id. at 466. Th e court dec ided that H oneywell could not h ave forese en and w as not respo nsible for the fact that the sta nding w ater could have become contaminated. Using a risk-utility balancing test, it determined there was no duty: We believe the ba lancing of the factors releva nt in determining wh ether a duty exists would establish that Honeywell had no duty to ensure that standing w ater under a building on which it m aintains HV AC un its could not becom e contam inated with mold and fungi that c ould at som e point in the future be sucked up by the equipment it is installing and distributed througho ut the buildin g. In this case, it w ould be ex tremely detrime ntal to 16 merchants such as Honeywell to require them to guarantee the absence of future contamination of the air by microbiological growth under and around the customer s building. As cited previously, the question of duty is a fact driven determination based upon the relationship between the parties. The concept of duty incorporates the notion of foreseeability and traditionally has been explained as follows: Whene ver one p erson is by circu mstances placed in su ch a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with rega rd to those circumstances h e would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such dange r. See K uczyns ki, 835 A.2d at 154. The critical circumstance in this case involve water exposure with the growth and spread of mo ld. The record show s that the buildin g was newly co nstructe d in 199 0. Merit s work was minimal, mostly changing air filters on heat pumps. The significant evidence, developed through discovery, establishes water damage to one or more ceiling tiles in the vicinity of the heat pump around Brandt s office. This discovery occurred after the end of Merit s contract in March of 1993. The timing of the intrusion is unknown, and the record does n ot show a fores eeable conditio n of ha rm to trig ger a du ty by Merit. See Brandt s Mem. in Opp n. To Service Unlimited s Mot. for Summ. J., ¶ 1(e). In this context, as in Foster, Merit should not hav e the responsibility of a guarantor. Moreover, on the subject of Merit s liability, Brandt had no idea why Merit was sued as shown in this deposition exchange: Q: Befo re you su ed . . . 17 A: No . . . Q: Before you sued Merit Mechanical, did you make a good faith effort on your own p art to determ ine what, if a nything, it did and how it relate d to your claims? A: No, I have to confess I did not. Sorry to tell you that but it s the truth. Viewing the reco rd in favor of Bran dt, Merit did not have a d uty to prevent injury given its limited involvement with the building. Nor does Brandt offer any expert opinion about the standard of care and any deviation by Merit. As discussed in the other motions, expert opinion is nece ssary. Summ ary judgmen t, therefore, is en tered in fav or of M erit. Copelan d s Mo tion on Pe rsonal Re sponsibility Copeland has moved for summary judgment on the basis that he cannot be found liable as President, and as a shareholder of Rokeby Realty, for negligence under the Personal Participation Doctrine. Brandt has also brought a claim against Copeland under an implied contract theory, but Copeland asserts that he cannot be individually liable for the lease signed by him o n beha lf of R okeby R ealty. Whethe r or not Bra ndt can su e Copela nd is not a q uestion of p iercing the co rporate veil, but rather is one of Copeland s personal participation in a tort. The Personal Participation Doctrine s tands for th e idea that an officer of a corporatio n can be h eld liable for his own w rongful acts. Corpo rate officers cannot be sh ielded from tort liability by claiming that the actions were done in the name of the corporation. 18 Heronemus v. Ulrick, 1997 W L 524 127, at * 2 (Del. S uper. C t.), quoting, Camacho v. 1440 Rhode Island Ave. Corp ., 620 A .2d 242 (D.C. 1 993). In order to be found liable under this doctrine, a corporate o fficer must have m ore than m ere kno wledg e. T.V. Spano Building Corp. v. Dep t of Natural Resources and Environmental Control, 628 A.2d 53, 61 (Del. 1993). Brandt must show that the officer directe d, order ed, ratifie d, appro ved, or c onsen ted to th e tortiou s act. Id. Judge Herlihy, in Heronemus, interpreted this finding of the Supreme Court to mean an officer can only be liable for misfeasance or active negligence. Heronemus at *2. The y will not be held liable for nonfeasance or the omission of an act which a person ought to do. Id. Brandt has not met his burden of showing that a genuine issue of material fact exists as to Copeland s personal liability for Brandt s injuries under a tort theory of liability. The evide nce show s that Cop eland said s omething crude in 19 96 (Pls. M em. in Opp n. at 4-5). Yet the remark was spoken after Brandt left the premises. Furthermore, no evidence shows that Copeland took any affirmative actions which harmed Brandt. He may hav e know n abou t health c ompla ints, but m ere kno wledg e is insuf ficient f or liability. Brandt has not shown either, that Copeland was the one who ordered or approved of any of Service s work regarding the heat pumps. Claims based on the failure to warn, inspect or repair, or implement and supervise indoor air quality programs for common areas affect ed by mo ld are ac ts of no nfeasa nce. Whether or not Copeland can be found liable under a contract theory depends on 19 agency law and the ca pacity in whic h he signe d the lease f or Roke by. On the B randt & Dalton Lease (Pls. Mem., Ex. D at 26), Copeland signed by the designation Attest: , and the word Landlord is in type below his signature. The first paragraph of the lease states, TH IS AG REEM ENT . . . be tween R okeby Rea lty Compan y . . . , and Brandt & Dalton . . . . The abbreviation for president appears next to his signature as well as on two rid ers con tained in the lease . Accord ing to the R estatemen t (Second ) of Age ncy, an agen t cannot be found liab le for a contra ct he signed on behalf of the princ ipal as long a s somew here in the c ontract it is ma de cl ear th at it is betw een t he principal a nd a third party: An unsealed written instrument, in one portion of which there is a manifestation that the agent is acting only for the principal, is interpreted as the instrument of the principal and not of the agent, although in other portions of the instrumen t or in the signature the agent's nam e appears without designation. Restatement (Seco nd) of Agen cy § 157 (1958). The concept is emphasized in the tentative draft of the Restatement (Third) of Age ncy: When an agent acting with actual or apparent authority makes a contract on behalf of a disclosed principal, (1) the principal and the third party are parties to the contract; and (2) the agen t is not a party to the c ontract unle ss the agen t and third pa rty agree otherwise. Restate ment (T hird) of Agen cy § 6.01 (T.D. N o. 4 200 3). Similarly, the court in Brown v. Colonial Chevrolet Co., 249A.2d 439 , 441-2 (Del. Super. Ct. 1968) found that officers usually are not personally liable for a corporate contract as long as they do n ot act to b ind them selves in dividu ally. 20 Viewing the record in favor of Brandt, Copeland is not personally liable for any breach of the lease. H e signed the lease as an a gent of R okeby. The lease clearly reflec ts his representative capacity. Furthermore, Brandt has not alleged that the corporate veil be pierced as to this issue, nor is it likely that the facts of this case would support the rigorous standard for doing so. See Crosse v. BCBSD, Inc., 836 A.2d 492, 497 (Del. 2003) ( To state a veil-piercing claim, the plaintiff must plead facts supporting an inference that the corp oration, throu gh its alter-ego , has created a sham en tity designed to defraud investors and creditors. ). Copeland s Motion for Summary Judgment is granted. Rokeby s Motion in Limine Regarding Spoliation of Evidence This mo tion regards a ceiling tile w hich is the alleg ed source of mold contamination. It was removed from Brandt s office and stored for approximately two months. It w as sent to B randt s me dical exper t, Dr. Eckh ardt Johan ning. The reafter, it was shipped to Germany for testing and subsequently returned to Brandt. Rokeby claims that the til e was d estroyed, a nd its ex perts ca nnot ex amine this critica l piece o f evide nce. The Court is requested to sanction Brandt for the loss of evidence by entering judgment against him. A party, anticipating litigation, has an affirmative duty to preserve relevant eviden ce. In re Wechsler, 121 F. Supp. 2d 404, 415 (D. Del. 2000). A litigant who destroys releva nt evidenc e may be san ctioned by the court, and if that destructio n is willful, in bad faith or intended to prevent the other side from examining the evidence, the 21 court m ay dismis s the cas e or ente r defau lt judgm ent. Id. The relevant test for determining whether to impose sanctions takes into consideration three factors: (1) (2) (3) the degree of fault and personal responsibility of the party who destroyed the evidence; the degree of prejudice suffered by the other party; and the availability of lesser sanctions which would avoid any unfairness to the innocent p arty while, at the sa me time, ser ving as a su fficient pen alty to deter the same type of conduct in the future. Id. When con sidering degree of fau lt, it must be clear that a party intended to thwart its oppo nent s a bility to try its ca se. Id. However, Delaware law does not require the spoliatio n to be in tentiona l for an a dverse inferen ce to be drawn . Burris v. Kay Bee Toy Stores, 1999 WL 1240863, at *1 (D el. Super. Ct.). When look ing at prejudice, the court should take into account whether that party had a meaningful opportunity to examine the evidence in question before it was destroyed. In re Wechsler, 121 F. Supp. 2d at 416. On Janu ary 19, 1996, In door Air S olutions, Inc. ( IAS ) rem oved the c eiling tile from B randt s off ice. It was pla ced in a labe led air tight plastic bag. IAS consultan t, Miller, stored it. On Janu ary 23, 1996, B randt sent a le tter to Cope land inform ing him that the tile had been rem oved by IA S (Pls. Ex. N ). On Feb ruary 5, 1996 , Brandt sen t a letter to Copeland advising him that Stachybotrys mold had been found on two ceiling tiles by way of w ipe sample s. (Pls. Ex. O ). Included in the IAS re port, provide d to Copeland and Rokeby on February 13, 1996, was a letter indicating that the tile had been removed. The tile was shipped to Dr. Johanning on March 29, 1996 and was later shipped to Professor Gareis in Germany for testing on April 18, 1996. The tile was 22 returned to Brandt s counsel on or around May 5, 2003. The tile was fi rst reque sted in D r. Johan ning s d epositio n on A ugust 2 6, 2002 . The request was renewed in his continued deposition on January 17, 2003. Another request was made on April 4, 2003. Brandt responded that a box containing the remains of the tile had been returned from Germany. What is left of the tile has been available for Roke by to exa mine. Here, Rokeby knew the tile was taken in January and February of 1996. Yet no request was made to preserve or examine it or to monitor or safeguard any testing of the material. The significance of the tile was obvious. Rokeby hired Dr. Curtis White of AEG IS Env ironme nts to ex amine Brand t s offic e on Fe bruary 9, 1 996. On May 31, 1996, Dr. White reported that thirty-five microbiological tests at thirty-five sites were done in the building. Concerning microbiological contamination, he wrote: The potential for triggering serious human reaction varies dramatically from species to species. Fungi such as Stachybotrys-atra, Aspergillus oryzae, and Aspergillus vesicolor are considered to be so dangerous that any presence is considered significant. Dr. White s report revealed an elevated air sample count for Brandt s office. It found that carpet sam ples had m edium to h eavy conce ntration of f ungi. A ce iling space sa mple show little o r no contam ination. D r. White op ined that ceilin g tiles were n ot likely sources of contamination that could become airborne. With this ba ckgroun d, summ ary or default ju dgment is n ot approp riate. As in Schm id v. M ilwauk ee Elec tric Too l Corp ., 13 F.3d 76, 79 (3d Cir. 1994), such a ruling 23 would be fa r more serious than the sp oliation inference. In that case, the C ourt reversed a district court s decision to exclude all of the evidence of an expert who took apart an d reasse mbled a circula r saw, su ch that th e defe ct was g one af terwar ds. Moreover, in Wechsler, the court found it could not sanction Wechsler for not preserving his boat when the moving parties could have prevented its destruction. Even though these parties might be prejudiced by the destruction of this evidence, this prejudice was avoidable. In short, the claimants had the opportunity and the ability to preserve the vessel, yet they failed to do so. In re Wechsler, 121 F. Supp. 2d at 418. Here, Ro keby knew the tile was tak en. It had a tw o month window of oppo rtunity to object or to develop a procedure where both parties could have examined the tile or take part in its testing, recognizing that tests can be destructive. Rokeby knew the importance of the ceiling tile and the reported contamination. In February of 1996, Brand t reporte d this co ndition to Rok eby with suppo rting ev idence from a laborato ry. Nevertheless, Rokeby did not ask that the tile be preserved. Rokeby relied upon Dr. Wh ite s work. M oreover, M ontz reporte d that Rok eby had an ugly and ad versarial tone with th e findings o f IAS ab out mold in Brandt s o ffice. Rok eby was no t looking to Brand t for inf ormatio n, and it d id not se ek to ins pect the tile until th e summ er of 20 02. One c annot a dopt a c ertain atti tude or position , and m any years la ter claim a foul. On this su bject, Miller p hotograp hed the tile, an d a video e xists to show the state of Brandt s office in the ceiling area before the tile was removed. This evidence has been available to Rokeby. Because no effort has yet been made to examine the tile, it is not 24 known whether it actually has no testing value. Not only does Rokeby have alternatives, but also there can be no complaint about the u se of results from destructive tests. In criminal cases, hard physical evidence is often destroyed in the prosecution of the most serious matters . See 29 Am. Jur .2d Evidence § 1006 (1 994). De structive testing is comm only don e in civil li tigation . See 23 Am. Jur. 2d Depositions and Discovery § 166 (2002 ). Under these circumstances, Brandt was not at fault in destroying evidence. Brandt did not suppress evidence but rather had it tested in a recognized way. Any prejudice suffered by Rokeby is self-inflicted. It could have been avoided by prompt action after the tile was removed or by later testing the tile upon its return. Roke by s Mo tion in L imine R egardin g Spo liation o f Evid ence is d enied. A telephone conference is scheduled for September 14 th . At that time, please let me know if your expert witnesses can be available for a Daubert hearing on April 12th , 13 th and 14 th , 2005 or April 19th , 20th and 21 st, 2005. Given the nature of the issues, an evidentiary hearing is desirable. When arguing the Daubert points, I would like the parties to state their positions with reference to at least the following cases: Wynacht v. Beckman Instruments, Inc., 113 F. Su pp. 2d 12 05 (E.D . Tenn. 20 00) (findin g the ability to diagnose medical co nditions is no t the same a s the ability to reliably dete rmine their causes); Liska v. Travelers Prop. Cas. Corp., 2004 W L 504 699 (M ass. Sup er. Ct.) (holding d ifferential dia gnosis is an a ccepted m ethodolog y in the medica l field); Allison v. Fire Ins. Exchange, 98 S.W.3d 227 (Tex. Ct. App. 2002) (holding toxic tort cases 25 require pro of of bo th general a nd specific causation a bout the af fects of the toxic substance s); Graham v. Lautrec, Ltd., 2003 WL 23512133 (Mich. Cir. Ct.) (finding a causal con nection be tween m old expos ure and h uman he alth effects re quires a reliab le foundatio n); Stevens v. Fennessy, Mass. Super. Ct., C.A. No. 96-0403, Agnes J. (June 19, 2002) (Mem. Op.) (finding a qualified expert with reliable information can diagnose symptoms a nd determ ine their caus e from the presence o f mold); Gifford v. Matajaka, 2001 WL 819067 (Wash. Ct. App.) (finding that conflicts over the source or cause of harm from mold exposure should be decided by a jury rather than a judge through summary judgment). Also, for scheduling purposes, please inform me if your witnesses are available for trial during the weeks of September 12th , 19th , and/or 26th , 2005. Oral argument on the remaining motions will be heard at the Daubert hearing in A pril. IT IS SO ORDERED. Very truly yours, Richard F. Stokes RFS/cv cc: Ms. Ellen Da vis - NCC P rothonotary Ms. Pat Thatcher 26

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.