INDOOR AIR QUALITY DEFECT CLAIMS

Design and construction defects claims related to sick building syndrome and building-related illnesses are growing in frequency and consequence. Exposure to Indoor Air Quality (IAQ) liability should be of major concern to designers, developers, tenants, building owners and managers, and service providers.¹

Even though OSHA's proposed IAQ standards are not yet fully in effect, IAQ litigants may hold up the proposed standards as the current minimum "standard of care" for building owners, designers, and contractors. Most defendants settle out of court to escape media coverage and avoid establishing legal precedents.

IAQ is not a "stand-alone" issue. Inadequate IAQ, sick building syndrome, and building-related incidents of illness have many causes: improper building and systems design, management decisions to cut costs, inadequate due diligence, and the building owner's and manager's failure to institute internal environmental management processes.

The 500,000 square foot Polk County Courthouse in Bartow, Florida cost $37 million to build in 1987. After five years of operation, the county faces a $37 million retrofit including replacement of all the duct work and temporary lease and relocation costs due to air quality problems. The county has sued all parties to the buildings construction, including interior designers and manufacturers.

The Polk Courthouse problems were described to be due to interdisciplinary error: bad design; bad construction; deficient specifications for the envelope and interior spaces; poorly positioned air intakes and exhausts; HVAC that was oversized by a factor of three and had no dehumidification controls; poor filtration; improper space planning; and lack of circulation and ventilation systems.

In 1985, HVAC work triggered a sequence of events that resulted in health problems among the tenants in a 24-story office building in El Segundo, California a month after they moved in, including dizziness, nose bleeds, disorientation, breathing difficulties, numbness, anxiety, and drowsiness. The premises had to be evacuated during acute episodes, and several windows were removed in an effort to provide additional ventilation. The IAQ problems were never resolved, and the tenants moved out within a year.

In a lawsuit that followed, Call v. Prudential, the tenants claimed that the HVAC system was defective in design and installation, that certain building products and construction materials emitted toxic substances, and that building management waited too long to act to correct the problems.

Call v. Prudential is significant because it was the first IAQ/sick building syndrome case to reach a jury. It is also significant because it was the first time a judge has ruled that those involved in the design, construction, and installation of an HVAC system could be held liable under the theory of strict product liability. In addition, the general contractor ultimately was forced to bear the cost of the settlement due to the standard indemnity agreement it had signed with the developer.²

¹Construction Defect Claims and Litigation (Aspen Publishers, Inc., 1995).

²Bledel, Indoor Air Quality Defects, Urban Land 37 (June 1995.)

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