DALLAS — A Texas appeals court has reversed an award of summary judgment to a landlord accused of failing to disclose the existence of mold in a property rented by a family that claimed it was stricken with serious mold-related illnesses after occupying the property. Caldwell v. Curioni, No. 05-03-00135 (Texas. App. Ct., Fifth Dist.).

In a decision issued Jan. 7, the Fifth District Court of Appeals ruled that the lessee plaintiffs presented sufficient evidence indicating that the landlord owed a duty to inform them of potentially dangerous mold-related conditions on the premises. The appeals court further determined that there existed more than a scintilla of evidence that the duty was breached and that damages occurred as a result.

Warren and Laura Caldwell sued their landlord, David Curioni, for personal injuries and property damage caused by what they alleged was an infestation of toxic mold in their rental home. The Caldwells maintained that after responding to an ad describing the home as 'freshly redone,' they were brought on two 'walk-throughs' prior to entering into a lease with Curioni. During the first visit, they noticed a foul odor, which Curioni's agent explained as residual odor caused by a previous owner's pets. The agent also assured the Caldwells that the home had been professionally cleaned.

It was noted under the terms of the lease agreement that the Caldwells would not be held responsible for the residual pet odor and dictated that the home was being occupied 'as-is with refrig[erator].' The lease provision also referred to an ice maker was not working.

Within a week of moving in, the Caldwells' infant son allegedly became so ill that he and Laura Caldwell were forced to vacate the home. Warren Caldwell remained in the home, but claimed that he fell severely ill one day after his family had moved out.

A subsequent inspection of the property revealed that the property had previously been flooded and that steps had been taken to cover up significant mold growth. An industrial hygienist also identified several strains of mold, including Stachybotrys, inside the home. The Caldwell's physician concluded that their health problems were related to their toxic mold exposure, the plaintiffs alleged.

Despite this evidence, the trial court granted Curioni's traditional and no-evidence motions for summary judgment.

On appeal, the Caldwells asserted seven issues, including claims that the trial court erred in determining that Curioni owed no duty to the family and that there existed no issues of fact related to whether Curioni breached his duty and that such action caused the Caldwell's alleged damages.

The appeals court noted that under Texas law, a lessor generally has no duty to tenants or their invitees for dangerous conditions on a leased premises. However, it said that there are exceptions to the rule, namely where a lessor conceals defects on the property when he is aware that such defects are present.

In response to allegations that he had reason to know that the mold infestation could potential harm the Caldwells, Curioni asserted that he had no constructive knowledge that the property was contaminated with mold. The landlord further argued that there was no evidence of any mold in the home when the Caldwells signed the lease, or any knowledge that the amount of mold in the rental property was harmful.

However, according to the appeals court, testimony offered by one of the plaintiffs' experts indicated that the dangers of mold were well-known at the time the Caldwells signed their lease and that Curioni's efforts to prepare the house for occupancy —though apparently insufficient — indicated that he made attempts to cover up a serious, and possibly known, mold problem.

Under these circumstances, the appeals court determined, Curioni failed to conclusively negate that he owed a duty to the Caldwells.

The appeals court also ruled that the 'as-is' provision contained in the lease did not preclude the Caldwells from arguing that Curioni is liable for injuries due to any condition found on the property. According to the court, the provision unambiguously pertained to the inoperative condition of the refrigerator ice maker.

Finally, the Fifth District held that Curioni's no-evidence summary judgment motion should not have been granted because the plaintiffs presented more than a scintilla of evidence to raise fact issues related to the landlord's alleged breach of a duty to care and the resulting damages.

Curioni had argued that the Caldwells failed to produce evidence that the amount of mold in the home met a threshold requirement of showing there was a dangerous condition on the property for which he could be held liable.

'The affidavits and reports of the two expert witnesses offered by the Caldwells presented facts regarding the amount and types of mold found at [the Caldwell's home],' the court concluded. 'One of the reports confirmed the presence of Stachybotrys, which according to the report, produces a mycotoxin documented as toxic to humans. Athough Curioni correctly points out the expert admitted in his report '[t]here are no established standards for permissible airborne fungal concentrations,' the lack of any established standards does not confirm that the levels of mold present were not dangerous.'

The Caldwells are represented by Larry M. Lesh of Dallas.

Curioni is represented by Hubert A. Crouch III of Crouch & Inabnett in Dallas.

For more information, contact:

Alan L. Wozniak, CIAQP

(800) 422-7873 ext. 802