If a subcontractor improperly installs something and someone is injured as a result, the subcontractor cannot get out of liability by saying they were just working for the general contractor.
In this consolidated appeal, the court held that based on the Michigan Supreme Court's recent decision in Loweke, the defendant-JCS Fireplace was not entitled to summary disposition. Thus, the court reversed the trial court's order granting JCS Fireplace summary disposition. Plaintiff-Burns lost his home to a fire caused by an improperly installed fireplace on the lower level of his home. He contracted with the original builder, defendant-KW Yoder Construction, to rebuild the home. Yoder subcontracted the fireplace installation to JCS Fireplace. The newly constructed home was destroyed by fire. "An investigation revealed the cause of the fire to be heat generated by the first floor fireplace, with the fire originating within the wood hearth extension of that fireplace." Burns and plaintiff-United Services Automobile Association Casualty Insurance Company (his insurer) sued Yoder and JCS Fireplace. JCS Fireplace successfully moved for summary disposition, arguing that plaintiffs' claims sounded strictly in negligence and, in keeping with Fultz, it owed no duty to plaintiffs. In granting JCS Fireplace's motion for summary disposition, the trial court explained that the only reason it did so was because Fultz compelled this result. In Loweke, the Supreme Court adopted the reasoning of Davis and held "'that a contracting party's assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.'" While the court would normally remand for the trial court to reconsider the motion in light of Loweke, it concluded it was clear that, had the trial court not felt compelled to follow what it perceived to be a conclusion necessitated by Fultz, it would have applied the Davis reasoning and denied JCS Fireplace's motion. Reversed and remanded.
Thursday, January 26, 2012
Slip and fall on ice
If the snow or ice is visible to a casual observer there is not case against the property owner, and everyone has a duty to watch where they step. Even if the ice cannoit be seen, the property owner must somehow be on notice that it is there to be held responsible for slip and fall injury. In the following case, the lawyer did not present the appropriate evidence.
The court concluded that the evidence created a fact question as to whether an average person of ordinary intelligence would have been able to discover the danger (ice in a parking lot) and risk upon casual inspection. However, the court agreed with the defendant that the plaintiff failed to present any evidence that defendant had actual or constructive notice of the icy condition. Thus, the court reversed the trial court's order denying defendant's summary disposition motion and remanded for entry of summary disposition in defendant's favor. Plaintiff was employed by a contractor to defendant and worked the night shift (11:00 PM to 7:00 AM) on defendant's premises. On 12/12/07, as part of his usual practice when arriving for work, he parked his car in the first parking spot in the first row because the building parking lot was empty at night. "After parking, plaintiff walked diagonally across the parking lot directly to the rear entrance of the building. He did not see or encounter any ice or slippery conditions on his way to the building." About two hours after arriving for work, he left the building either to smoke a cigarette or for something to do with his lunch pail (which he kept in his car). While he was walking back to the building, he slipped and fell to the ground. He was still in the parking lot, somewhere between 10 to 15 feet from his car. "Only after falling did plaintiff feel ‘wet and ice' and realize that he had slipped on ice." While the defendant argued on appeal that it was not liable for any of plaintiff's injuries because there was no question of fact that the danger was open and obvious, the court disagreed. Only two witnesses testified as to the patch of ice. "Both witnesses agreed that the parking lot was free from snow. Plaintiff testified that he did not see the ice even though he had walked through that same area at least twice earlier that night." A security employee of defendant (D) "testified that he saw the ice patch 'as we were walking out there' when plaintiff was leading him to the ice." However, the court noted that D "was walking out to the parking lot with the sole purpose of investigating plaintiff's reported fall." Thus, looking at D's testimony in a light most favorable to plaintiff, it was easy to conclude that D "was not merely casually, or in an offhand manner, inspecting the premises - instead, a logical inference is that he was actively looking for ice to see what caused plaintiff's fall." The court could not conclude that defendant was entitled to summary disposition on the basis the hazard was open and obvious. However, as to notice, while plaintiff tried to show that (1) defendant negligently caused the formation of the ice patch by the way it salts the parking lots and (2) the sheer size of the patch (8 to 10 feet) was enough to put it on notice, the court found both arguments unpersuasive. The driver who applies salt to the lots admitted that his method of salting when the lot is full of cars prevented the immediate areas on the sides of the parked vehicles from receiving any salt. However, the record showed that after snow fell on the afternoon of 12/11/07, the contractor salted the aisles of the full parking lot and returned later that night when the lot was empty to fully plow and salt the entire lot. Plaintiff also failed to show that the ice formed in a spot that normally would be unsalted during a daytime salting. As to the size of the patch, since no one knew how long it was present, there was no evidence that defendant or its salting contractor had actual or constructive notice of the ice patch.
The court concluded that the evidence created a fact question as to whether an average person of ordinary intelligence would have been able to discover the danger (ice in a parking lot) and risk upon casual inspection. However, the court agreed with the defendant that the plaintiff failed to present any evidence that defendant had actual or constructive notice of the icy condition. Thus, the court reversed the trial court's order denying defendant's summary disposition motion and remanded for entry of summary disposition in defendant's favor. Plaintiff was employed by a contractor to defendant and worked the night shift (11:00 PM to 7:00 AM) on defendant's premises. On 12/12/07, as part of his usual practice when arriving for work, he parked his car in the first parking spot in the first row because the building parking lot was empty at night. "After parking, plaintiff walked diagonally across the parking lot directly to the rear entrance of the building. He did not see or encounter any ice or slippery conditions on his way to the building." About two hours after arriving for work, he left the building either to smoke a cigarette or for something to do with his lunch pail (which he kept in his car). While he was walking back to the building, he slipped and fell to the ground. He was still in the parking lot, somewhere between 10 to 15 feet from his car. "Only after falling did plaintiff feel ‘wet and ice' and realize that he had slipped on ice." While the defendant argued on appeal that it was not liable for any of plaintiff's injuries because there was no question of fact that the danger was open and obvious, the court disagreed. Only two witnesses testified as to the patch of ice. "Both witnesses agreed that the parking lot was free from snow. Plaintiff testified that he did not see the ice even though he had walked through that same area at least twice earlier that night." A security employee of defendant (D) "testified that he saw the ice patch 'as we were walking out there' when plaintiff was leading him to the ice." However, the court noted that D "was walking out to the parking lot with the sole purpose of investigating plaintiff's reported fall." Thus, looking at D's testimony in a light most favorable to plaintiff, it was easy to conclude that D "was not merely casually, or in an offhand manner, inspecting the premises - instead, a logical inference is that he was actively looking for ice to see what caused plaintiff's fall." The court could not conclude that defendant was entitled to summary disposition on the basis the hazard was open and obvious. However, as to notice, while plaintiff tried to show that (1) defendant negligently caused the formation of the ice patch by the way it salts the parking lots and (2) the sheer size of the patch (8 to 10 feet) was enough to put it on notice, the court found both arguments unpersuasive. The driver who applies salt to the lots admitted that his method of salting when the lot is full of cars prevented the immediate areas on the sides of the parked vehicles from receiving any salt. However, the record showed that after snow fell on the afternoon of 12/11/07, the contractor salted the aisles of the full parking lot and returned later that night when the lot was empty to fully plow and salt the entire lot. Plaintiff also failed to show that the ice formed in a spot that normally would be unsalted during a daytime salting. As to the size of the patch, since no one knew how long it was present, there was no evidence that defendant or its salting contractor had actual or constructive notice of the ice patch.
Auto accident drunk driving
In this case the attorney filed the wrong law suit and the client lost their case. The lawyer you choose is very important.
Concluding that intoxication could not be removed as the key factor from the common law negligence claim asserted by the plaintiff-estate, and that the trial court properly determined that the estate's claim fell within the Dramshop Act, the court affirmed that trial court's order granting summary disposition in favor of the defendants. The estate's decedent and two friends were patrons at the defendant-bar and grill. The decedent and her friends were asked to leave after they became visibly intoxicated. They left the premises without the decedent's car keys. An unidentified bar employee later found the keys. When the decedent and her friends, still visibly intoxicated, returned to the bar to find her keys, the bar employee returned the keys. The decedent drove away from the premises, lost control of her vehicle, and was involved in a fatal accident. The estate claimed that the action was based in negligence because it was related to defendants' conduct of giving car keys to an intoxicated person, not to the actual selling, giving or furnishing of alcohol. However, the court concluded that any analysis of this claim hinged "on the duty that a dram shop that provided the intoxicants owed to the visibly intoxicated person." If intoxication was not considered in this claim, then the question became - "is there a common law duty to refrain from returning keys to the vehicle's lawful owner. It is axiomatic that there is no duty to withhold keys from an unintoxicated owner of a vehicle."
Concluding that intoxication could not be removed as the key factor from the common law negligence claim asserted by the plaintiff-estate, and that the trial court properly determined that the estate's claim fell within the Dramshop Act, the court affirmed that trial court's order granting summary disposition in favor of the defendants. The estate's decedent and two friends were patrons at the defendant-bar and grill. The decedent and her friends were asked to leave after they became visibly intoxicated. They left the premises without the decedent's car keys. An unidentified bar employee later found the keys. When the decedent and her friends, still visibly intoxicated, returned to the bar to find her keys, the bar employee returned the keys. The decedent drove away from the premises, lost control of her vehicle, and was involved in a fatal accident. The estate claimed that the action was based in negligence because it was related to defendants' conduct of giving car keys to an intoxicated person, not to the actual selling, giving or furnishing of alcohol. However, the court concluded that any analysis of this claim hinged "on the duty that a dram shop that provided the intoxicants owed to the visibly intoxicated person." If intoxication was not considered in this claim, then the question became - "is there a common law duty to refrain from returning keys to the vehicle's lawful owner. It is axiomatic that there is no duty to withhold keys from an unintoxicated owner of a vehicle."
Tuesday, January 24, 2012
Slip Fall
When giving notice to a governmental agency you must be very specific or your case may be dismissed.
Holding that the plaintiff did not sufficiently clarify the exact location of the pothole until after the statutory notice period expired, the court concluded that the trial court was bound to dismiss her claim. Thus, the court reversed the trial court's order denying the defendant-City's summary disposition motion and remanded for entry of summary disposition in the City's favor. Plaintiff left a saloon located on Michigan Avenue in the City and walked to the side of the building, which faces St. Lawrence Street. She turned onto St. Lawrence, where she had parked her vehicle, tripped on a pothole in the St. Lawrence Street roadway, and broke her ankle. She submitted written notice to the City about her injury 17 days after her accident, describing the site as "a defective street located in front of" the saloon. She also enclosed photos depicting the defect. Plaintiff sued the City 137 days after her accident, asserting that her claim fell within the highway exception to governmental immunity. She alleged that she was injured while walking on the public sidewalk at or near the saloon when "she tripped over a defective sidewalk/pavement." Plaintiff did not specify that the pothole was on St. Lawrence Street until her deposition 228 days after her accident. The court noted that she misidentified the defect's location in her initial notice and thus, clearly did not provide a "specific description of the location." This rendered her notice defective. Further, the complaint was filed outside the 120-day notice period, so plaintiff could not rectify the deficiency of her initial notice via the complaint. The complaint also did not provide an accurate "exact location" for the alleged defect, since the complaint asserted that plaintiff tripped on a sidewalk, not the roadway, and described the location as at or near the saloon on Michigan Avenue. "The City had no notice that the pothole was actually located on St. Lawrence Street, rather than on Michigan Avenue or an adjacent sidewalk, until" plaintiff's deposition, which was conducted 108 days after the statutory notice period expired. "Absent the requisite notice, the City was immune from liability and plaintiff was precluded from seeking judicial relief." The court rejected her argument that the photos provided to the City with her initial notice sufficiently supplemented her written description to specify the exact location of the defect. One photo depicted a pothole on a side street very near the intersection with a main highway, but it did not include a street sign or any other identifying feature. There was no way to determine the name of the street on which the pothole was located from the photo. A second photo depicted the sign in front of the saloon, but did "nothing to delineate the name of the side street on which the pothole is located." The third photo depicted "a focused view of the pothole alone." While it was useful in specifying the exact nature of the defect, it did nothing to "specify the exact location."
Holding that the plaintiff did not sufficiently clarify the exact location of the pothole until after the statutory notice period expired, the court concluded that the trial court was bound to dismiss her claim. Thus, the court reversed the trial court's order denying the defendant-City's summary disposition motion and remanded for entry of summary disposition in the City's favor. Plaintiff left a saloon located on Michigan Avenue in the City and walked to the side of the building, which faces St. Lawrence Street. She turned onto St. Lawrence, where she had parked her vehicle, tripped on a pothole in the St. Lawrence Street roadway, and broke her ankle. She submitted written notice to the City about her injury 17 days after her accident, describing the site as "a defective street located in front of" the saloon. She also enclosed photos depicting the defect. Plaintiff sued the City 137 days after her accident, asserting that her claim fell within the highway exception to governmental immunity. She alleged that she was injured while walking on the public sidewalk at or near the saloon when "she tripped over a defective sidewalk/pavement." Plaintiff did not specify that the pothole was on St. Lawrence Street until her deposition 228 days after her accident. The court noted that she misidentified the defect's location in her initial notice and thus, clearly did not provide a "specific description of the location." This rendered her notice defective. Further, the complaint was filed outside the 120-day notice period, so plaintiff could not rectify the deficiency of her initial notice via the complaint. The complaint also did not provide an accurate "exact location" for the alleged defect, since the complaint asserted that plaintiff tripped on a sidewalk, not the roadway, and described the location as at or near the saloon on Michigan Avenue. "The City had no notice that the pothole was actually located on St. Lawrence Street, rather than on Michigan Avenue or an adjacent sidewalk, until" plaintiff's deposition, which was conducted 108 days after the statutory notice period expired. "Absent the requisite notice, the City was immune from liability and plaintiff was precluded from seeking judicial relief." The court rejected her argument that the photos provided to the City with her initial notice sufficiently supplemented her written description to specify the exact location of the defect. One photo depicted a pothole on a side street very near the intersection with a main highway, but it did not include a street sign or any other identifying feature. There was no way to determine the name of the street on which the pothole was located from the photo. A second photo depicted the sign in front of the saloon, but did "nothing to delineate the name of the side street on which the pothole is located." The third photo depicted "a focused view of the pothole alone." While it was useful in specifying the exact nature of the defect, it did nothing to "specify the exact location."
Monday, January 23, 2012
Car accident Ambulance
Ambulance's have to be careful too. This ambulance sped through an intersection and caused an accident.
Rejecting the defendant-City's argument that the accident did not "result from" the defendant-ambulance driver's (Lewis) alleged negligence because the plaintiff's vehicle struck the ambulance, rather than vice versa, the court concluded that the trial court properly denied the City summary disposition on this basis. Further, the court held that the trial court properly determined that there was an issue of fact for trial as to whether Lewis operated the ambulance within the statutory SOC governing the operation of emergency vehicles. Thus, the court affirmed the trial court's order denying the City summary disposition. Lewis was dispatched regarding a domestic situation and traveling southbound in a residential neighborhood. "When he slowed the ambulance at an intersection, he saw plaintiff's vehicle traveling westbound on the cross street." He proceeded through the intersection without coming to a complete stop, believing there was enough distance between the vehicles for plaintiff to stop before hitting the ambulance. However, when the front of the ambulance was halfway through the intersection, "Lewis noticed that plaintiff was not attempting to stop. He then accelerated, hoping to quickly pass through the intersection and avoid a collision, but the front of plaintiff's vehicle struck the rear of the ambulance." Plaintiff asserted that she first saw the ambulance just after it entered the intersection, she tried to stop but was unable to do so, and slid into the rear of the ambulance. The court concluded that the City's "result from" argument stemmed from "an overly narrow reading" of Robinson and Curtis. "In neither Robinson nor Curtis were the government vehicles physically involved in the collisions. Thus, defendant's reliance on those decisions as attaching any significance to which vehicle struck the other is misplaced." Further, the City's argument was "at odds with the plain statutory language stating that government agencies are liable for injuries ‘resulting from' the negligent operation of a government vehicle. MCL 691.1405 makes no distinction between which vehicle strikes the other." The City also argued that MCL 691.1405 did not apply because Lewis operated the ambulance in accordance with the SOC governing the operation of emergency vehicles. While the plaintiff contended that the court lacked jurisdiction to decide this issue, the court held that it had jurisdiction because the effect of the trial court's ruling was to deny the City's governmental immunity claim. The court concluded that "MCL 257.603 and MCL 257.706(d), when read together, require that an emergency vehicle's siren be activated only when reasonably necessary to warn others of the vehicle's approach." Thus, whether Lewis activated the siren was not dispositive of whether he operated the ambulance within the statutory SOC. "Rather, the issue is whether Lewis activated the siren when its use was reasonably necessary under the circumstances." A rational jury could find, based on plaintiff's version of events, that the circumstances warranted use of the siren because she did not see the ambulance until she was unable to stop. On the other hand, a rational jury could find, based on Lewis's recollection of events, that activating the siren was unnecessary because plaintiff had time to stop but failed to slow down before striking the ambulance
Rejecting the defendant-City's argument that the accident did not "result from" the defendant-ambulance driver's (Lewis) alleged negligence because the plaintiff's vehicle struck the ambulance, rather than vice versa, the court concluded that the trial court properly denied the City summary disposition on this basis. Further, the court held that the trial court properly determined that there was an issue of fact for trial as to whether Lewis operated the ambulance within the statutory SOC governing the operation of emergency vehicles. Thus, the court affirmed the trial court's order denying the City summary disposition. Lewis was dispatched regarding a domestic situation and traveling southbound in a residential neighborhood. "When he slowed the ambulance at an intersection, he saw plaintiff's vehicle traveling westbound on the cross street." He proceeded through the intersection without coming to a complete stop, believing there was enough distance between the vehicles for plaintiff to stop before hitting the ambulance. However, when the front of the ambulance was halfway through the intersection, "Lewis noticed that plaintiff was not attempting to stop. He then accelerated, hoping to quickly pass through the intersection and avoid a collision, but the front of plaintiff's vehicle struck the rear of the ambulance." Plaintiff asserted that she first saw the ambulance just after it entered the intersection, she tried to stop but was unable to do so, and slid into the rear of the ambulance. The court concluded that the City's "result from" argument stemmed from "an overly narrow reading" of Robinson and Curtis. "In neither Robinson nor Curtis were the government vehicles physically involved in the collisions. Thus, defendant's reliance on those decisions as attaching any significance to which vehicle struck the other is misplaced." Further, the City's argument was "at odds with the plain statutory language stating that government agencies are liable for injuries ‘resulting from' the negligent operation of a government vehicle. MCL 691.1405 makes no distinction between which vehicle strikes the other." The City also argued that MCL 691.1405 did not apply because Lewis operated the ambulance in accordance with the SOC governing the operation of emergency vehicles. While the plaintiff contended that the court lacked jurisdiction to decide this issue, the court held that it had jurisdiction because the effect of the trial court's ruling was to deny the City's governmental immunity claim. The court concluded that "MCL 257.603 and MCL 257.706(d), when read together, require that an emergency vehicle's siren be activated only when reasonably necessary to warn others of the vehicle's approach." Thus, whether Lewis activated the siren was not dispositive of whether he operated the ambulance within the statutory SOC. "Rather, the issue is whether Lewis activated the siren when its use was reasonably necessary under the circumstances." A rational jury could find, based on plaintiff's version of events, that the circumstances warranted use of the siren because she did not see the ambulance until she was unable to stop. On the other hand, a rational jury could find, based on Lewis's recollection of events, that activating the siren was unnecessary because plaintiff had time to stop but failed to slow down before striking the ambulance
Friday, January 20, 2012
Mold exposure cleanup safety
This is a basic guide to cleanup of mold. A professional in mold clean up should be consulted for proper clean up.
1. Set up initial engineering controls, including isolation barriers, negative pressure system, and drop cloths necessary to protect the structure during initial response activities.
2. Remove standing water.
3. Assess condition of contents, set up appropriate decontamination structure, and remove contents from the mold remediation work area.
4. Finalize engineering controls for removal of building materials harboring fungal growth. Make sure the setup can accommodate any unexpected hidden growth.
5. Work with the air flow. Generally this means that the project should be set up so that mold impacted materials closest to the decontamination unit are removed first. Work then progresses from the decon unit toward the negative air machine.
6. Remove porous materials with visible growth. Use work practices that minimize the generation of dust. This may include the use of hand tools or power tools to which a HEPA vacuum can be attached.
7. Enforce work procedures that emphasize a clean-as-you-go approach. Whenever possible, as they are removed from walls and ceilings, cut building materials in sections small enough to fit directly into waste bags. Bag all waste immediately rather than allowing it to pile up on the floor. Change negative air machine and vacuum filters often enough to keep them operating at optimum levels.
8. Seal waste bags using the gooseneck technique. Move waste bags into the decontamination unit where the exteriors of the bags are cleaned or they are double bagged prior to movement through unprotected areas of the building.
9. Determine the remediation approach for semi-porous materials that have visible fungal growth. Depending on the condition of the material some items, such as rotted wood studs, may have to be removed for later replacement. Other semi-porous materials that have not suffered structural damage can be cleaned by scraping, sanding, scrubbing, or blasting. Whenever possible, use tools in conjunction with a HEPA vacuum. Specialty tools, such as the Scravac, are specifically designed for scraping contamination directly into a vacuum nozzle. Make sure that the cleaning technique does not exceed the capacity of the engineering controls. Blasting, for example, may require a substantial increase in the amount of negative pressure and airflow as compared to a standard mold remediation work area.
10. Clean all non-porous materials that have visible fungal growth. This usually involves damp wiping or HEPA vacuuming.
11. Using the HEPA sandwich technique, clean the entire isolated work area, including ceilings and non-impacted walls. If there are any bacterial concerns because of gray or black water, incorporate appropriate antimicrobial chemicals into the damp wiping step.
12. If necessary, dry the remaining material in the work area through dehumidification. Be careful that airflow from fans and dehumidifiers does not impact the integrity of the isolation barriers.
13. Conduct a thorough visual inspection of the isolated work area. Use the white glove test to ensure that the area is free of dust. Re-clean as necessary.
14. Conduct post-remediation evaluation sampling. Compare the results to the company's standards for mold remediation (see box for suggested post-remediation sample criteria). Re-clean and re-sample if necessary.
15. Coordinate post-remediation verification sampling by a pre-selected third party. Evaluate the results in comparison to the criteria that were agreed upon at the beginning of the project (see box for suggested post-remediation sample criteria). Re-clean and re-sample if necessary. If the building owner chooses to forgo verification sampling, move to the next step.
16. If included as part of the remediation project, apply antimicrobial coating to exposed structural members to prevent future mold contamination. Follow the manufacturer's instructions for application. Allow all surfaces to dry thoroughly.
17. Have the HVAC system cleaned following NADCA guidelines.
18. If included as part of the project, replace and refinish building materials that were removed during remediation.
19. Remove isolation barriers and remediation equipment. Unless specifically exempted in the remediation contract, repair any damage to finish materials caused by the isolation barriers
1. Set up initial engineering controls, including isolation barriers, negative pressure system, and drop cloths necessary to protect the structure during initial response activities.
2. Remove standing water.
3. Assess condition of contents, set up appropriate decontamination structure, and remove contents from the mold remediation work area.
4. Finalize engineering controls for removal of building materials harboring fungal growth. Make sure the setup can accommodate any unexpected hidden growth.
5. Work with the air flow. Generally this means that the project should be set up so that mold impacted materials closest to the decontamination unit are removed first. Work then progresses from the decon unit toward the negative air machine.
6. Remove porous materials with visible growth. Use work practices that minimize the generation of dust. This may include the use of hand tools or power tools to which a HEPA vacuum can be attached.
7. Enforce work procedures that emphasize a clean-as-you-go approach. Whenever possible, as they are removed from walls and ceilings, cut building materials in sections small enough to fit directly into waste bags. Bag all waste immediately rather than allowing it to pile up on the floor. Change negative air machine and vacuum filters often enough to keep them operating at optimum levels.
8. Seal waste bags using the gooseneck technique. Move waste bags into the decontamination unit where the exteriors of the bags are cleaned or they are double bagged prior to movement through unprotected areas of the building.
9. Determine the remediation approach for semi-porous materials that have visible fungal growth. Depending on the condition of the material some items, such as rotted wood studs, may have to be removed for later replacement. Other semi-porous materials that have not suffered structural damage can be cleaned by scraping, sanding, scrubbing, or blasting. Whenever possible, use tools in conjunction with a HEPA vacuum. Specialty tools, such as the Scravac, are specifically designed for scraping contamination directly into a vacuum nozzle. Make sure that the cleaning technique does not exceed the capacity of the engineering controls. Blasting, for example, may require a substantial increase in the amount of negative pressure and airflow as compared to a standard mold remediation work area.
10. Clean all non-porous materials that have visible fungal growth. This usually involves damp wiping or HEPA vacuuming.
11. Using the HEPA sandwich technique, clean the entire isolated work area, including ceilings and non-impacted walls. If there are any bacterial concerns because of gray or black water, incorporate appropriate antimicrobial chemicals into the damp wiping step.
12. If necessary, dry the remaining material in the work area through dehumidification. Be careful that airflow from fans and dehumidifiers does not impact the integrity of the isolation barriers.
13. Conduct a thorough visual inspection of the isolated work area. Use the white glove test to ensure that the area is free of dust. Re-clean as necessary.
14. Conduct post-remediation evaluation sampling. Compare the results to the company's standards for mold remediation (see box for suggested post-remediation sample criteria). Re-clean and re-sample if necessary.
15. Coordinate post-remediation verification sampling by a pre-selected third party. Evaluate the results in comparison to the criteria that were agreed upon at the beginning of the project (see box for suggested post-remediation sample criteria). Re-clean and re-sample if necessary. If the building owner chooses to forgo verification sampling, move to the next step.
16. If included as part of the remediation project, apply antimicrobial coating to exposed structural members to prevent future mold contamination. Follow the manufacturer's instructions for application. Allow all surfaces to dry thoroughly.
17. Have the HVAC system cleaned following NADCA guidelines.
18. If included as part of the project, replace and refinish building materials that were removed during remediation.
19. Remove isolation barriers and remediation equipment. Unless specifically exempted in the remediation contract, repair any damage to finish materials caused by the isolation barriers
Underage drinking suicide
If a minor drinks in your home and then is hurt, you may not be liable if you didn't allow or know the minor drank in your home.
Concluding, inter alia, that the plaintiff-PR failed to establish a prima facie case of negligence based on a statutory or ordinance violation, the court held that the trial court properly granted summary disposition in favor of the defendants. Plaintiff's decedent, Jonathon, died from an apparent suicide. His body was found hanging from a rafter in a basement workshop in defendants' home. The previous evening, Jonathon and defendants' son Andrew, who were both under the age of 21, were consuming alcohol during a party at defendants' home while defendants were away. Defendants returned home after midnight, discovered that a party had been held at their house and that alcohol was served and consumed without their permission, and reprimanded Andrew and the other boys who were still present. Defendants also called Jonathon's parents to inform them that he and several others had been drinking at their home without their permission. Because Jonathon was intoxicated, it was decided that he could stay at defendants' house to "sleep it off." In the morning, another boy who spent the night at defendants' house saw Jonathon get up, use the bathroom, and return to the basement where he had been sleeping. Shortly thereafter, some boys discovered Jonathon hanging from a cord in the basement. The ME listed the cause of death as suicide. Plaintiff alleged that defendants negligently allowed underage minors to consume alcohol in their home, and that Jonathon's alcohol consumption was a proximate cause of his suicide. There was "no evidence that defendants gave either written or oral permission for, or approval of, the consumption of alcohol while defendants were away from the house. Nor was there evidence of any conduct by defendants that would have caused a reasonable person to believe that defendants had given permission for, or approval of, the consumption of alcohol at their home while they were away." Plaintiff relied on evidence that defendants were aware that Andrew and his friends had consumed alcohol at their house in the past. "However, that evidence also showed that the prior alcohol consumption was not permissive and that defendants took corrective action to prevent the consumption of alcohol in their home by Andrew and his friends." Before defendants left their home on the evening of 5/30/08, there had not been any alcohol consumption by Andrew and his friends at the house since 11/07. Also, there was no evidence that defendants had any knowledge on May 30 that Andrew or his friends planned to consume any alcohol after defendants left that evening, that Andrew and his friends possessed any alcohol when defendants left the house, or that there were any plans for a gathering at which alcohol would be furnished or consumed. The evidence showed that the alcohol that was consumed that evening was furnished, without defendants' knowledge, by others who did not arrive until several hours after defendants left the house. When they returned home and discovered that a party had been held without their permission, "they became upset, began reprimanding those who were still present, began making everyone clean up, and called other parents to let them know that their children had been drinking without permission." It "was beyond genuine factual dispute that defendants did not engage in any conduct that would cause a reasonable person to believe that they had given permission for, or approval of, the consumption of alcohol at their house while they were away." The evidence did not support a finding that they violated MCL 750.141a(2) or a township ordinance. The court also held that "plaintiff's action was properly dismissed because it was beyond genuine factual dispute that defendants' conduct did not proximately cause Jonathon's suicide." Affirmed.
Concluding, inter alia, that the plaintiff-PR failed to establish a prima facie case of negligence based on a statutory or ordinance violation, the court held that the trial court properly granted summary disposition in favor of the defendants. Plaintiff's decedent, Jonathon, died from an apparent suicide. His body was found hanging from a rafter in a basement workshop in defendants' home. The previous evening, Jonathon and defendants' son Andrew, who were both under the age of 21, were consuming alcohol during a party at defendants' home while defendants were away. Defendants returned home after midnight, discovered that a party had been held at their house and that alcohol was served and consumed without their permission, and reprimanded Andrew and the other boys who were still present. Defendants also called Jonathon's parents to inform them that he and several others had been drinking at their home without their permission. Because Jonathon was intoxicated, it was decided that he could stay at defendants' house to "sleep it off." In the morning, another boy who spent the night at defendants' house saw Jonathon get up, use the bathroom, and return to the basement where he had been sleeping. Shortly thereafter, some boys discovered Jonathon hanging from a cord in the basement. The ME listed the cause of death as suicide. Plaintiff alleged that defendants negligently allowed underage minors to consume alcohol in their home, and that Jonathon's alcohol consumption was a proximate cause of his suicide. There was "no evidence that defendants gave either written or oral permission for, or approval of, the consumption of alcohol while defendants were away from the house. Nor was there evidence of any conduct by defendants that would have caused a reasonable person to believe that defendants had given permission for, or approval of, the consumption of alcohol at their home while they were away." Plaintiff relied on evidence that defendants were aware that Andrew and his friends had consumed alcohol at their house in the past. "However, that evidence also showed that the prior alcohol consumption was not permissive and that defendants took corrective action to prevent the consumption of alcohol in their home by Andrew and his friends." Before defendants left their home on the evening of 5/30/08, there had not been any alcohol consumption by Andrew and his friends at the house since 11/07. Also, there was no evidence that defendants had any knowledge on May 30 that Andrew or his friends planned to consume any alcohol after defendants left that evening, that Andrew and his friends possessed any alcohol when defendants left the house, or that there were any plans for a gathering at which alcohol would be furnished or consumed. The evidence showed that the alcohol that was consumed that evening was furnished, without defendants' knowledge, by others who did not arrive until several hours after defendants left the house. When they returned home and discovered that a party had been held without their permission, "they became upset, began reprimanding those who were still present, began making everyone clean up, and called other parents to let them know that their children had been drinking without permission." It "was beyond genuine factual dispute that defendants did not engage in any conduct that would cause a reasonable person to believe that they had given permission for, or approval of, the consumption of alcohol at their house while they were away." The evidence did not support a finding that they violated MCL 750.141a(2) or a township ordinance. The court also held that "plaintiff's action was properly dismissed because it was beyond genuine factual dispute that defendants' conduct did not proximately cause Jonathon's suicide." Affirmed.
Dog Bite
If you knew the dog and there was no history of agression, you may be out of luck suing the owner.
Concluding that the defendants owed no duty to the plaintiff, the court held that the trial court properly granted summary disposition in defendants' favor in this negligence action. Plaintiff, a 16-year old resident of a manufactured home community owned and operated by defendants, visited another residence in the community, owned by the Ys. Plaintiff had been to the residence several times without incident, as the Y's teenage son, H, was his best friend. However, on that particular date, the Y's "pit bull dog suddenly and without provocation bit plaintiff in the face, causing him serious injuries that required stitches and left him scarred." Plaintiff sued defendants asserting that they were negligent in, primarily, failing to warn him of a prohibited, dangerous dog, and protect him from the same. On appeal, plaintiff contended that genuine issues of fact existed as to whether defendants knew of the dog's presence in the Y's manufactured home, and whether defendants knew that the dog had dangerous propensities such that they owed plaintiff a duty to warn of and to protect him from the dog. While the trial court found that defendants owed no duty to plaintiff concerning the dog that bit him, plaintiff asserted that this conclusion was reached through the misapplication of pertinent case law to the facts of this case. Thus, he argued that the trial court erred in its ultimate conclusion. The court disagreed. Plaintiff testified that he had known H since he was in 5th grade and that H's family had owned the dog since that time. Plaintiff testified that he had been to H's house on an almost daily basis and had always seen the dog. According to plaintiff, the dog was usually outside, but it had also been loose in the house when he was there. He testified that he had pet the dog a couple of times before and was not afraid of it. He testified that on the date of the incident, he was sitting on the floor petting the dog and that the dog seemed happy to be petted, but as he withdrew his hand from petting the dog, the dog suddenly bit him in the face. "As in Szkodzinski, no evidence was presented to the trial court indicating that this dog had a vicious nature or that defendants had knowledge of any such nature. Plaintiff was well aware of the dog's presence and had been for many years." There was no indication that he reported the dog's presence or complained of the dog to defendants. "Instead, he repeatedly went to the dog's location, interacted with the dog and, according to his testimony, was not afraid of the dog." The only basis plaintiff presented for imputing knowledge of the dog's vicious propensities was found in the written "Rules and Regulations" issued by defendant-Colonial Acres. Plaintiff stated that "since defendants set forth in their Rules and Regulations that certain breeds of dogs ‘may be dangerous to others in the community' they acknowledged that pit bulls have dangerous propensities." However, defendants did not specify that certain dogs may be dangerous to the community. Rather, they simply prohibited certain dog breeds from being brought into the community. Assuming, without deciding, that defendants were aware of the dog's presence, the court held that plaintiff must still have established that defendants were aware that this particular dog had a vicious nature, and he failed to present any evidence establishing or even creating a question of fact as to such awareness. Considering all of the Braun factors as a whole, the court concluded that no actionable duty of care existed in this case. Affirmed.
Concluding that the defendants owed no duty to the plaintiff, the court held that the trial court properly granted summary disposition in defendants' favor in this negligence action. Plaintiff, a 16-year old resident of a manufactured home community owned and operated by defendants, visited another residence in the community, owned by the Ys. Plaintiff had been to the residence several times without incident, as the Y's teenage son, H, was his best friend. However, on that particular date, the Y's "pit bull dog suddenly and without provocation bit plaintiff in the face, causing him serious injuries that required stitches and left him scarred." Plaintiff sued defendants asserting that they were negligent in, primarily, failing to warn him of a prohibited, dangerous dog, and protect him from the same. On appeal, plaintiff contended that genuine issues of fact existed as to whether defendants knew of the dog's presence in the Y's manufactured home, and whether defendants knew that the dog had dangerous propensities such that they owed plaintiff a duty to warn of and to protect him from the dog. While the trial court found that defendants owed no duty to plaintiff concerning the dog that bit him, plaintiff asserted that this conclusion was reached through the misapplication of pertinent case law to the facts of this case. Thus, he argued that the trial court erred in its ultimate conclusion. The court disagreed. Plaintiff testified that he had known H since he was in 5th grade and that H's family had owned the dog since that time. Plaintiff testified that he had been to H's house on an almost daily basis and had always seen the dog. According to plaintiff, the dog was usually outside, but it had also been loose in the house when he was there. He testified that he had pet the dog a couple of times before and was not afraid of it. He testified that on the date of the incident, he was sitting on the floor petting the dog and that the dog seemed happy to be petted, but as he withdrew his hand from petting the dog, the dog suddenly bit him in the face. "As in Szkodzinski, no evidence was presented to the trial court indicating that this dog had a vicious nature or that defendants had knowledge of any such nature. Plaintiff was well aware of the dog's presence and had been for many years." There was no indication that he reported the dog's presence or complained of the dog to defendants. "Instead, he repeatedly went to the dog's location, interacted with the dog and, according to his testimony, was not afraid of the dog." The only basis plaintiff presented for imputing knowledge of the dog's vicious propensities was found in the written "Rules and Regulations" issued by defendant-Colonial Acres. Plaintiff stated that "since defendants set forth in their Rules and Regulations that certain breeds of dogs ‘may be dangerous to others in the community' they acknowledged that pit bulls have dangerous propensities." However, defendants did not specify that certain dogs may be dangerous to the community. Rather, they simply prohibited certain dog breeds from being brought into the community. Assuming, without deciding, that defendants were aware of the dog's presence, the court held that plaintiff must still have established that defendants were aware that this particular dog had a vicious nature, and he failed to present any evidence establishing or even creating a question of fact as to such awareness. Considering all of the Braun factors as a whole, the court concluded that no actionable duty of care existed in this case. Affirmed.
Thursday, January 19, 2012
Lips fall. If you can see it and trip on it, you probably are at fault pursant to Michigan Law.
Holding, inter alia, that any potential protections afforded by MCL 554.139 had no effect in this appeal, and that the danger posed by the broken tile on the top of the stairs was open and obvious, the court affirmed the trial court's order granting the defendant (the company hired by the property owner to maintain the rental property) summary disposition. Plaintiff alleged that she was injured by tripping over defective floor tiling at the top of a flight of stairs in her rental apartment, causing her to fall down the stairs. She alleged that defendant was negligent at common law and under the MHL and MCL 554.139. The court noted that MCL 554.139 "imposes covenants in the lease between a landlord and tenant." Any protection arising from the statute "is purely contractual in nature." Any "negligence or premises liability claims are unaffected since ‘any remedy under the statute would consist exclusively of a contract remedy.'" Plaintiff also sought to rely on provisions of the MHL to impose a statutory duty on defendant as the owner's agent. "However, nearly all of the specific sections cited by plaintiff solely refer to the duties of an ‘owner.'" The court concluded that MCL 125.533(1) eliminated any doubt as to who must comply with the MHL - "‘The owner of premises regulated by this act shall comply with all applicable provisions of the act.'" While plaintiff was correct that MCL 125.538 refers to "owner or agent thereof," this provision did not impose a statutory duty on the agent. "MCL 125.538 provides that, ‘It is unlawful for any owner or agent thereof to keep or maintain any dwelling or part thereof which is a dangerous building as defined in [MCL 125.539].' MCL 125.539, in turn, defines ‘dangerous building' as having one or more serious defects." Plaintiff did not argue or explain how her apartment met any of the conditions set forth in MCL 125.539. Thus, her reliance on MCL 125.538 and 125.539 was misplaced. Since the statutes plaintiff cited did not apply, the court held that defendant did not owe her any statutory duty. Thus, defendant could avail itself of all common law defenses, including the open and obvious doctrine. Like the plaintiff in Corey, "plaintiff admitted that she was aware of the broken tile on the top of the steps and decided to use the steps in any event." Further, the court held that there were no special aspects making the open and obvious condition unreasonably dangerous or effectively unavoidable. "Although plaintiff was required to traverse the steps several times a day, the hazard was not effectively unavoidable." A photo taken by plaintiff clearly showed that the hazard was located on the left side of the stairway opening, leaving about 75% of the width free of any hazard. The court noted that plaintiff admitted to regularly using the stairs "‘several times per day'" without tripping for over two years.
Monday, January 16, 2012
Slip Fall open and obvious
Issues: Premises liability; Slip and fall on "floral debris"; Whether there was a genuine issue of material fact that an "open and obvious" condition caused the plaintiff's fall; Lugo v. Ameritech Corp.; Bertrand v. Alan Ford, Inc.; Whether there were "special aspects" giving rise to a "uniquely high likelihood" of harm
Court: Michigan Court of Appeals (Unpublished)
Case Name: Preston v. Loving Care Flowers, Inc.
e-Journal Number: 50398
Judge(s): Per Curiam – Wilder, Talbot, and Servitto
Holding that there was no genuine issue of material fact that the condition causing the plaintiff's fall was open and obvious, and contained no special aspects giving rise to a uniquely high likelihood of harm, the court reversed the trial court's order granting in part plaintiff's motion for reconsideration. Plaintiff was invited into a back office at the defendant-flower shop for a business meeting with the shop's owner. To reach the office, he had to walk through a work room where floral arrangements were made. Plaintiff stated that there was nothing on the floor when he walked to the office. However, when he tried to leave after a 30 to 45-minute meeting, he saw that the floor was covered in "floral debris." He slipped and fell as he tried to walk through the space, and sustained a torn rotator cuff. Defendant moved for summary disposition, arguing that the condition that caused the fall was open and obvious, with no special aspects that removed it from the open and obvious doctrine. The trial court initially granted defendant summary disposition, but on plaintiff's motion for reconsideration, determined that a question of fact existed as to whether the condition contained a special aspect such that defendant could be liable. Plaintiff testified at deposition that it appeared there were leaves, petals, and stems "scattered all over" the floor as he retraced his route to leave the building, so he tried to watch his step, but he slipped and fell. "Plaintiff testified that he did not ask anyone to remove the debris from his path and that he ‘didn't really consider' going around the work bench the opposite way but instead retraced his steps the way he entered the business." He also provided an affidavit in which he swore that he could not have avoided the debris no matter which way he walked around the work bench. Taking plaintiff's assertions as true, the court concluded that defendant was entitled to summary disposition, for two reasons. "First, plaintiff clearly admitted to seeing the floral debris and further indicated that two employees were present and near him when he fell. Plaintiff could easily have asked the employees to remove the debris or for assistance in navigating around it, but did neither." The court concluded that if he was effectively "trapped" by the debris, it was "reasonable to place a duty upon him to ask for readily available assistance before attempting to navigate over the hazard." Second, "the critical inquiry in Lugo is ‘whether there is evidence that creates a genuine issue of material fact regarding whether there are truly "special aspects" of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm . . . .'" The court held that floral debris "on the floor near the workstation of a floral shop is a ‘typical' open and obvious danger, like a typical pothole in a parking lot. There is nothing unusual about the presence of floral debris in that setting and, more importantly, nothing suggests that the debris at issue created an unreasonable risk of harm despite its open and obviousness." Reversed and remanded.
Friday, January 6, 2012
Bus accident exception for City
The court held that even if the facts were exactly as asserted by the defendant-City Department of Sanitation, and the garbage truck was temporarily stopped on the road when the collision occurred, the temporary stops on the road to pick up garbage are included in the meaning of "operation" of a garbage truck and the motor vehicle exception to government immunity applied. Thus, the court concluded that summary disposition under MCR 2.116(C)(7) was not warranted where the motor vehicle exception would apply regardless of whether the facts were as plaintiff contended, or as defendant contended. The court affirmed the trial court's order denying the City department's motion for summary disposition. The case arose from a collision between a school bus and a garbage truck that injured the minor plaintiff, a passenger on the school bus. On the day of the incident, an employee of the City department (D) and his partner (S) were collecting garbage. D drove the truck, making periodic brief stops in the right lane to allow S to collect the garbage and put it into the back of the truck. As they collected garbage, a school bus approached from behind on the left side of the garbage truck, and then according to D, as it passed the truck, merged into the lane in which the garbage truck was sitting. D did not feel the impact, but recalled that he thought the bus nearly hit the truck. D and S continued their garbage route. About two hours later, D got a call from his supervisor, who told him that he was involved in an accident with the school bus. D said that the truck was running, and ready to proceed to the next stop, but it was not moving at the time of the collision and that the bus ran into the garbage truck. S described the events slightly differently as he was at the back of the truck, but believed that the truck was stopped at the time of the collision. The bus driver (B) stated that he felt a bump as he drove past the garbage truck. A student on the bus told him that the bus was hit. He continued to drive the bus, but stopped and inspected the bus - it was damaged in the rear. He wrote an accident report that day, in which he stated that the truck "started to take off and clipped the bus." The minor plaintiff also said that the truck moved forward and hit the bus. Several students on the bus wrote statements. Some statements supported plaintiff's contention that the garbage truck was moving at the time of the accident. Plaintiffs sued. Defendant raised the defense of governmental immunity. The trial court denied defendants' motion for summary disposition based on the defense due to the conflicting testimony as to whether the truck was moving at the time of the incident. The parties disputed whether the use of a garbage truck fell within the meaning of "negligent operation." They also disputed whether the requirement that the truck be in operation required the truck to have been moving at the time of the collision, or whether a stationary vehicle may be operating within the meaning of the statute. Affirmed.
Mold Exposure update
My building has the distinction of being an on-going laboratory for the study of how certain fungi behave in indoor environments with individual unit ventilators. I have tried to get speciation data from three main sources of fungal contamination in the building: visible mold in books, visible mold on ceiling panels and spores in floor dust in water-damaged rooms. I have concentrated the microscopy studies and ERMIs on the rooms that impact me the most. On the first floor, that would include the custodial room, the Dark Room, an art room, a science room and my own classroom. On the second floor, there is the Library, the 2nd floor hallway and a foreign language room.
The mold species present in this building must be very happy. They have a continuing supply of water, dust and dirt to nourish them. The humidity is above 60% several days a week in the spring and fall, and most of the time during the summer. The filters on the unit ventilators are no threat because they cannot catch and remove spores from the indoor air environment. Fungicides are not used in the building, so fungal-eating bacteria are the only natural predators facing the spores (unless you include me).
The following is a summary of the major fungal players at the middle school where I teach. I will specify whether the species of mold appears on the EPA Group One or Group Two lists, Dr. Jack D. Thrasher’s list of signal molds (“species of concern”) [Research Committee Report on Diagnosis and Treatment of Chronic Inflammatory Response Syndrome Caused by the Exposure to the Interior Environment of Water-Damaged Buildings, Ritchie C. Shoemaker MD, Laura Mark MD, Scott McMahon MD, Jack D. Thrasher PhD, Carl Grimes HHS, CIEC, July 27, 2010, page 19], and the list of nine target organisms that Dr. Ritchie C. Shoemaker relies on in assessment of WDB links to human illnesses.
The ERMI mechanism invented and patented by the EPA has given ordinary teachers and workers a major tool in assessing the overall indoor health of the building where they work. One of the industrial hygienists in our school system once said that the ERMI numbers were normed by the EPA for a house and not a school; therefore, the data that I was collecting in the school building was basically useless. He was referring to both the ERMI scores and the speciation data identified through the PCR process. I would agree that an ERMI score in a building with over 100 rooms, closets and storage areas is not a universal value on the mold burden of the entire school; however, it is pseudo-science to ignore the speciation data (and accumulating medical data from the building’s occupants). Art teacher Christine Goldman had an abnormal haplotype and worked in a classroom with Aspergillus penicillioides, Eurotium amstelodami and Aspergillus niger present in dust samples, and she did hall duty each day in front of a custodial room with Aspergillus fumigatus – no wonder she got sick! Corporate pseudo-science attacks on two levels: have the insurance doctor deny the validity of the medical data while the industrial hygienists and building engineers deny the validity of the environmental evidence – all to the detriment of the employees (and children) exposed to the poor indoor air quality conditions.
The interpretation of the Group 2 mold data in my building has been an enigma for me. When developing the ERMI Index, the EPA was trying to objectively describe the mold burden in a home. 26 species associated with homes with water damage were chosen for the Group One list. Ten species that were found in homes independent of water damage were chosen for the Group Two list. I do not think that the EPA considered the possible toxicity of the Group 2 molds when it made its list. Scientific data on possible toxin-formers on the Group 2 list is still in its infancy. Further, how safe is a school with extraordinarily high Group 2 spore counts for an eleven or twelve-year old student with an underdeveloped immune system and severe allergies/asthma. How many times must a student be transported to the hospital by ambulance before someone links the high Group 2 counts with repeated incidents of asthma? Aspergillus ustus is not regarded as particularly toxigenic in the current literature, but at 64,087,560 spores/ml liquid, even minor toxins and metabolites from this mold could cause havoc on the respiratory system of an asthmatic or allergic student. As for Cladosporium cladosporioides (types 1 and 2), Cladosporium herbarum, Epicocum nigrum and Penicillium chysogenum, all of which are present in my school, what impact are they having on the students? Are they toxin-formers? Are they a serious factor in causing respiratory ailments in the building? Students – keep those inhalers handy!
A few other molds of note have appeared in small quantities including Aspergillus flavus, Aspergillus versicolor and Stachybotrys chartarum [EPA Group One, Thrasher, Shoemaker]. At some point, they may become a serious health risk given the current state of the humid indoor air environment of the building, so they are also molds of concern to watch out for in future ERMI’s. My nightmare scenario would be a return of toxigenic species of mold to the custodial room near my classroom. Aspergillus fumigatus may be gone from that room, but other opportunistic molds lie in wait. This dark humid room has wet floors, damp unpainted wood at floor level and no mechanical or natural air ventilation (not even a window). It is an invitation for an opportunistic mold to settle and proliferate.
Stachybotrys, with its sticky spores, may have helpers in schools like mine – helpers with the potential to walk through colonies in floor dirt and then transfer spores to other areas of the school at night. This will allow me to transition into my next segment in Mold Wars – the double R’s – roaches and rodents.
The mold species present in this building must be very happy. They have a continuing supply of water, dust and dirt to nourish them. The humidity is above 60% several days a week in the spring and fall, and most of the time during the summer. The filters on the unit ventilators are no threat because they cannot catch and remove spores from the indoor air environment. Fungicides are not used in the building, so fungal-eating bacteria are the only natural predators facing the spores (unless you include me).
The following is a summary of the major fungal players at the middle school where I teach. I will specify whether the species of mold appears on the EPA Group One or Group Two lists, Dr. Jack D. Thrasher’s list of signal molds (“species of concern”) [Research Committee Report on Diagnosis and Treatment of Chronic Inflammatory Response Syndrome Caused by the Exposure to the Interior Environment of Water-Damaged Buildings, Ritchie C. Shoemaker MD, Laura Mark MD, Scott McMahon MD, Jack D. Thrasher PhD, Carl Grimes HHS, CIEC, July 27, 2010, page 19], and the list of nine target organisms that Dr. Ritchie C. Shoemaker relies on in assessment of WDB links to human illnesses.
- Aspergillus niger [EPA Group One, Thrasher, Shoemaker] – Niger has shown up in significant amounts in several water-damaged library books, in floor dust in the 2nd floor library and the adjoining workroom. Niger has also shown up in floor dust in the custodial room ten feet from my classroom in two different ERMIs. The library book The Arabian Nights had 22,882 spores/mg.
- Aspergillus fumigatus [EPA Group One, Thrasher, Shoemaker] – Fumigatus was the major toxigenic mold found in the custodial room ten feet from my classroom. Art teacher Christine Goldman’s hall duty in the year that she got sick was in front of this room. Even though the school system’s industrial hygienists were BCPS consultants on my 504 (and accommodation # 11 required the industrial hygienists to remediate the mold in the custodial room), they refused to come out to the school to inspect the room in 2009 or the first five months of 2010. By May of 2010, the visible mold bloom was eight feet tall and four feet wide. The undercover remediation of this room by two facilities personnel resulted in the injury of a student in May of 2010 [see chapter 20 of Surviving Mold]. In November of 2010, six months after the room had been scrubbed and repainted, the two industrial hygienists visited the room (apparently for the first time) and wrote that they could not remediate the mold in the custodial room because none was there!
- Aspergillus penicillioides [EPA Group One, Thrasher, Shoemaker] – Penicillioides has been found in my classroom, the custodial room, an art room and one water-damaged library book. The amount in my classroom was small and probably gained access to my room on the flat mops used by the custodial staff or through normal air circulation. Until I complained in my application for 504 accommodations, the normal custodial procedure was to mop up all of the dust with a long flat dry dust mop and then shake out all of the collected dust in the classroom doorway before going into the next room to “clean.” This cleaning procedure was in fact putting tiny bacterial and fungal particulates back into the indoor air environment on a daily basis. After I filed for accommodations, the custodial staff was equipped with smaller mops with washable microfiber cloths (although they didn’t always use them). In the fall of 2011, the custodial department stopped using the microfiber cloths altogether and returned to the old flat dust mops.
- Aspergillus sydowii [EPA Group One] – Sydowii has shown up in water-damaged library books and in floor dust in several rooms on both floors of the school. It has not established itself on any of the water-damaged ceiling panels.
- Eurotium amstelodami [EPA Group One, Thrasher] – Eurotium has not shown up in any of the tested books, but it has shown up in floor dust in each room tested on both floors of the school. More ominously, it was one of several molds that managed to travel beyond the radius of the water-damage in the library and establish itself in a visible mold colony on a water damaged ceiling panel in a foreign language classroom during the summer of 2010.
- Aureobasidium pullulans [EPA Group One] – Pullulans has been found in floor dust in every room tested. It does not appear to have much appetite for water-damaged books in the school. It was the leading Group One mold in my classroom. A visible colony of Aureobasidium developed on a ceiling panel in a science classroom around the corner from my classroom over the summer of 2011.
- Cladosporium sphaerospermum [EPA Group One] – This species of fungus was present in floor dust in my classroom, Christine Goldman’s art room, the custodial room and in the library. There was a minor colony found in The Arabian Nights (550 spores/mg). In September of 2011, a visible colony was found on a ceiling panel in a science classroom. The number of spores/swb present was 84,755. In October of 2011, small amounts were found on a ceiling panel in a storeroom in the school’s cafeteria kitchen.
- Penicillium purpurogenum [EPA Group One] – For several years, purpurogenum only showed up in miniscule amounts in floor dust. Then unexpectedly in 2010, it established itself in a water-damaged textbook originating in a foreign language classroom and the next year in a water-damaged ceiling panel in the same room. In fact, it made-up one third of the Group One molds found in that textbook. This is a good illustration of how an opportunistic fungus can take advantage of the humid indoor air environment in a water-damaged building and proliferate when provided with a suitable food source.
- Penicillium crustosum [EPA Group One] – Crustosum had 1,139,745 spores/mg in The Arabian Night making it the largest Group One colony in this library book. Its influence has not spread beyond the library.
- Penicillium brevicompactum [EPA Group One, Thrasher] – Brevicompactum established a significant colony in the book The Arabian Nights (4,878 spores/mg), but it too has failed to spread beyond the confines of the library.
- Penicillium glabrum [EPA Group One] - There were 390 spores/mg of dust in the first floor custodial room. It’s influence has not spread beyond that room.
- Paecilomyces variotti [EPA Group One] – Paecilomyces loves paper. It established huge colonies in several water-damaged library books. There were 475,651 spores/mg in The Arabian Nights. This is another one of those molds whose influence has not been felt outside of the contaminated library. Small amounts have been found in floor dust.
- Chaetomium globosum [EPA Group One, Thrasher, Shoemaker] – Chaetomium is probably the most dangerous mold currently infesting the indoor air environment of the school. There were 10,331 spores/mg in The Arabian Nights. It was also present in significant amounts in two other library books. Since then, Chaetomium has found some fertile areas on the second floor and seems to be thriving. It made its expanding presence known by establishing itself on a water-damaged ceiling panel outside of the library. I went into the 2010-2011 school year thinking that I needed to keep off the second floor as much as possible to avoid inhaling spores from this dangerous mold. Then to my surprise, in December of 2010, it turned up in a visible mold colony in a Spanish textbook used by a 7th grade boy in my classroom!!! I taught five periods of 8th grade American history in my classroom in the fall of 2010 and a Spanish teacher “floated” into my room one period each day. All of my efforts to avoid exposure to Chaetomium were undone by a 12-year old who managed to get his textbook wet in early November of 2010. [When I saw Dr. Shoemaker in June of 2011, I showed him the blood lab for C4a that Dr. Colleen Pietrowski had ordered the previous winter. It was over 23,900 (ten-times above normal). When Dr. Shoemaker expressed his concern, I replied that despite all of my precautions, I had managed to expose myself to some serious fungi during the school year including Chaetomium.]
- Alternaria alternata [EPA Group Two] – Alternaria does not seem to like paper in the school, but it does like the cellulose in ceiling panels. It is found in floor dust on both floors of the school. Alternaria was one of the molds that managed to establish a visible colony on the ceiling panel in the hallway outside the library, on the ceiling panel in the Spanish classroom and in the main lobby of the school. In October of 2011, speciation of a sample found on a ceiling panel in a storeroom next to the cafeteria kitchen revealed 5,019 spores/mg.
- Cladosporium cladosporioides (types one and two) [EPA Group Two, Thrasher] – It does not seem to like books in the school, but it is in floor dust in multiple rooms. Both types showed up in a visible colony on a ceiling panel in a science classroom in September 2011. Cladosporioides Type One is the second most-prevalent Group Two species found in floor dust in my classroom. The presence of this mold demonstrates the failure of the filters used in the unit ventilation system to trap outdoor molds that are being sucked into the building by the air intake system.
- Cladosporium herbarum [EPA Group Two, Thrasher] - It has not established itself in books or ceiling panels, but it is in floor dust in multiple classrooms including my own. It was the most prevalent Group Two mold in the contaminated custodial room.
- Epicoccum nigrum [EPA Group Two, Thrasher] – Epicoccum was the most-prevalent species of Group Two mold in dust in my classroom, the library and an art room. It has not yet established any visible colonies in books or ceiling panels in the school.
- Mucor amphibiorum [EPA Group Two] – This species of mold was found in library books with minor amounts in floor dust from the library. Its influence has not spread beyond the library.
- Penicillium chrysogenum [EPA Group Two, Thrasher] – Chrysogenum likes books (1,712,919 spores/mg in The Arabian Nights) and the cellulose in multiple ceiling panels.
- Aspergillus ustus [EPA Group Two] - This mold is a major player in the school. It has been found in multiple books (including 12,850,920 spores/mg in The Arabian Nights) and on multiple ceiling panels. In October 2010, it was the predominant mold in the visible mold colony in room 212 (an astounding 64,087,560 spores/ml liquid). In September of 2011, it was found on a visible colony on a ceiling panel in a first floor science room (85,764 spores/swb). In October of 2011, it was found on a visible colony on a ceiling panel in a storage room next to the cafeteria kitchen (860,439 spores/mg). Like Alternaria alternata, it appears to be an extremely opportunistic outdoor fungus that has latched onto water-damaged books and ceiling panels in the school and then reproduced at an astounding rate. As a moisture-loving, paper and cellulose-munching fungi, Aspergillus ustus has found an ideal home in the hot humid indoor air environment of my building.
The ERMI mechanism invented and patented by the EPA has given ordinary teachers and workers a major tool in assessing the overall indoor health of the building where they work. One of the industrial hygienists in our school system once said that the ERMI numbers were normed by the EPA for a house and not a school; therefore, the data that I was collecting in the school building was basically useless. He was referring to both the ERMI scores and the speciation data identified through the PCR process. I would agree that an ERMI score in a building with over 100 rooms, closets and storage areas is not a universal value on the mold burden of the entire school; however, it is pseudo-science to ignore the speciation data (and accumulating medical data from the building’s occupants). Art teacher Christine Goldman had an abnormal haplotype and worked in a classroom with Aspergillus penicillioides, Eurotium amstelodami and Aspergillus niger present in dust samples, and she did hall duty each day in front of a custodial room with Aspergillus fumigatus – no wonder she got sick! Corporate pseudo-science attacks on two levels: have the insurance doctor deny the validity of the medical data while the industrial hygienists and building engineers deny the validity of the environmental evidence – all to the detriment of the employees (and children) exposed to the poor indoor air quality conditions.
The interpretation of the Group 2 mold data in my building has been an enigma for me. When developing the ERMI Index, the EPA was trying to objectively describe the mold burden in a home. 26 species associated with homes with water damage were chosen for the Group One list. Ten species that were found in homes independent of water damage were chosen for the Group Two list. I do not think that the EPA considered the possible toxicity of the Group 2 molds when it made its list. Scientific data on possible toxin-formers on the Group 2 list is still in its infancy. Further, how safe is a school with extraordinarily high Group 2 spore counts for an eleven or twelve-year old student with an underdeveloped immune system and severe allergies/asthma. How many times must a student be transported to the hospital by ambulance before someone links the high Group 2 counts with repeated incidents of asthma? Aspergillus ustus is not regarded as particularly toxigenic in the current literature, but at 64,087,560 spores/ml liquid, even minor toxins and metabolites from this mold could cause havoc on the respiratory system of an asthmatic or allergic student. As for Cladosporium cladosporioides (types 1 and 2), Cladosporium herbarum, Epicocum nigrum and Penicillium chysogenum, all of which are present in my school, what impact are they having on the students? Are they toxin-formers? Are they a serious factor in causing respiratory ailments in the building? Students – keep those inhalers handy!
A few other molds of note have appeared in small quantities including Aspergillus flavus, Aspergillus versicolor and Stachybotrys chartarum [EPA Group One, Thrasher, Shoemaker]. At some point, they may become a serious health risk given the current state of the humid indoor air environment of the building, so they are also molds of concern to watch out for in future ERMI’s. My nightmare scenario would be a return of toxigenic species of mold to the custodial room near my classroom. Aspergillus fumigatus may be gone from that room, but other opportunistic molds lie in wait. This dark humid room has wet floors, damp unpainted wood at floor level and no mechanical or natural air ventilation (not even a window). It is an invitation for an opportunistic mold to settle and proliferate.
Stachybotrys, with its sticky spores, may have helpers in schools like mine – helpers with the potential to walk through colonies in floor dirt and then transfer spores to other areas of the school at night. This will allow me to transition into my next segment in Mold Wars – the double R’s – roaches and rodents.
Medical malpractice Trial ... determine SOC prior to trial
In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals' judgment in a published case (see e-Journal # 46477 in the 8/2/10 edition), holding, inter alia, that the trial court correctly determined as a matter of law that the appropriate SOC was "family practice" because the defendant-physician was board-certified solely in family medicine. "Further, pursuant to MCL 600.2912a, the trial court properly allowed the jury to consider that standard of care in light of the facilities available to the defendant physician - an urgent care center, not an emergency medical facility." The court held that the trial court did not abuse its discretion in ruling that defendants' experts were qualified to provide SOC testimony under MCL 600.2169 because they satisfied the specific qualifications of MCL 600.2169(a)-(b). The court also concluded that the trial court did not abuse its discretion by excluding plaintiff's proposed document exhibits at issue for the reasons stated in the Court of Appeals dissent. "Contrary to the dissent's assertion, the trial court's error in waiting to establish the standard of care until after the proofs had closed is not ‘inconsistent with substantial justice.'" B, one of plaintiff's experts, testified that there was no difference between family practice medicine and emergency medicine. "Thus, under plaintiff's theory of the case, additional and perhaps distinct testimony" on the SOC for doctors specializing in family medicine was unnecessary. Further, the court concluded that the plaintiff "significantly contributed to the trial court's error" by arguing that the trial court should have used Woodard's "one-most-relevant-specialty" test to determine the physician was practicing emergency medicine and thus, should have been held to the SOC of an emergency medicine specialist. "Plaintiff should not be rewarded with a retrial simply because her faulty argument only half side-tracked the trial court." The court also determined that the trial court did not preclude plaintiff from presenting SOC testimony from a doctor specializing in family medicine. While "the trial court did not manage the standard of care or the expert qualification issues perfectly, its error did not prejudice plaintiff so as to make upholding the jury verdict ‘inconsistent with substantial justice' under MCR 2.613(A)." The court remanded the case to the Court of Appeals for consideration of issues plaintiff raised but the Court of Appeals did not address in its initial review.
The dissent stated that by "reversing the Court of Appeals' grant of a new trial, the majority ignores that the trial court waited until the close of proofs to determine the appropriate" SOC. "The trial court's error essentially nullified much of the expert testimony already heard by the jury, disqualified at least one expert who had already testified, and emphasized the testimony of defendants' experts over those of plaintiff." The dissent concluded that this error "rendered the trial so fundamentally deficient that a refusal to grant a new trial is ‘inconsistent with substantial justice.'" The dissent noted that there is no board certification available for family practice in an urgent-care center. Thus, the trial court's hybrid SOC violated Woodard. Further, if the applicable SOC was family medicine, then the trial court should not have allowed an emergency physician to testify as to the SOC under MCL 600.2169(1). Had the trial court conclusively ruled on the applicable SOC before trial, "plaintiff would have had at least some opportunity to secure another expert and focus the testimony solely on family medicine." Also, the dissent concluded that the trial court's jury instruction rendered irrelevant much of plaintiff's experts' testimony. The dissent would affirm the Court of Appeals result and remand for a new trial. However, the dissent would vacate the Court of Appeals' conclusion that emergency medicine was the applicable SOC and require that the governing SOC be determined before trial in order to give all parties a reasonable opportunity to prepare accordingly. The dissent would also affirm the Court of Appeals as to the admissibility of guidelines and internal policies.
The dissent stated that by "reversing the Court of Appeals' grant of a new trial, the majority ignores that the trial court waited until the close of proofs to determine the appropriate" SOC. "The trial court's error essentially nullified much of the expert testimony already heard by the jury, disqualified at least one expert who had already testified, and emphasized the testimony of defendants' experts over those of plaintiff." The dissent concluded that this error "rendered the trial so fundamentally deficient that a refusal to grant a new trial is ‘inconsistent with substantial justice.'" The dissent noted that there is no board certification available for family practice in an urgent-care center. Thus, the trial court's hybrid SOC violated Woodard. Further, if the applicable SOC was family medicine, then the trial court should not have allowed an emergency physician to testify as to the SOC under MCL 600.2169(1). Had the trial court conclusively ruled on the applicable SOC before trial, "plaintiff would have had at least some opportunity to secure another expert and focus the testimony solely on family medicine." Also, the dissent concluded that the trial court's jury instruction rendered irrelevant much of plaintiff's experts' testimony. The dissent would affirm the Court of Appeals result and remand for a new trial. However, the dissent would vacate the Court of Appeals' conclusion that emergency medicine was the applicable SOC and require that the governing SOC be determined before trial in order to give all parties a reasonable opportunity to prepare accordingly. The dissent would also affirm the Court of Appeals as to the admissibility of guidelines and internal policies.
Wednesday, January 4, 2012
Mold Exposure
Dr. Shoemaker has devoted his life to finding the answer to this illness, and discovering how to help you. We are working to train physicians, with the goal of having physicians trained in Dr. Shoemaker's protocol located around the nation. SurvivingMold.com continues to make many resources available to you to help you find the information you need. Sometimes you are the only way your doctor can be educated.
Auto accident is not slip fall
The court held that plaintiff was not entitled to PIP benefits under the No-Fault Act because her injury did not arise out of the use of a parked vehicle under MCL 500.3106(1). Since the circumstances of plaintiff's injury were not included in any of the exceptions enumerated in MCL 500.3106(1), the defendant-insurer was not liable to pay benefits under MCL 500.3105(1). Thus, the court reversed the Court of Appeals' judgment affirming the trial court's denial of defendant's motion for a directed verdict and remanded the case to the trial court for further proceedings consistent with this opinion. Plaintiff was injured when she slipped and fell on a patch of ice while closing the passenger door of her vehicle. Plaintiff had placed a few personal items in the passenger compartment via the passenger door, stood up, and stepped out of the way of the door when she closed the door and fell. While she was in contact with the door of the vehicle at the time of her injury, she was clearly in contact with the vehicle itself, not with "equipment" mounted thereon. Thus, her injury was not "a direct result of physical contact with equipment permanently mounted on the vehicle . . . ." Further, before her injury, plaintiff had been standing with both feet planted firmly on the ground outside of the vehicle. She was entirely in control of her body's movement, and she was in no way reliant upon the vehicle itself. Thus, she was not in the process of "alighting from" the vehicle. At the time of her injury, plaintiff had already alighted. Also, because defendant did not owe benefits to plaintiff, its refusal to pay them was not unreasonable, and plaintiff was not entitled to attorney fees under MCL 500.3148(1).
Justices Kelly and Cavanagh dissented believing plaintiff was "alighting" from her vehicle within the meaning of MCL 500.3106(1)(c) when she was injured. Thus, they opined that the trial court correctly denied defendant's motion for a directed verdict on this issue. Believing that the Court of Appeals properly affirmed that decision, the Justices would have denied defendant's application for leave to appeal.
Justice Hathaway dissented and would have denied leave to appeal because she was not persuaded that the court should have taken any further action in this unique, fact-specific case that should have no precedential value.
Justices Kelly and Cavanagh dissented believing plaintiff was "alighting" from her vehicle within the meaning of MCL 500.3106(1)(c) when she was injured. Thus, they opined that the trial court correctly denied defendant's motion for a directed verdict on this issue. Believing that the Court of Appeals properly affirmed that decision, the Justices would have denied defendant's application for leave to appeal.
Justice Hathaway dissented and would have denied leave to appeal because she was not persuaded that the court should have taken any further action in this unique, fact-specific case that should have no precedential value.
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