MEDFORD, Ore. — An Oregon trial judge has ruled that homeowners who blamed building contractors for their mold problems proved negligence and damages of $58,726.65, but he reduced the award by 40 percent for a failure to mitigate. Harrison v. Viewcrest Construction Inc., et al., No. 05-3964-L3 (Ore. Cir. Ct., Jackson Cty.).

Jackson County (Ore.) Circuit Court Judge Daniel L. Harris issued a judgment for $35,235.99 on June 13, after hearing evidence in a bench trial on Feb. 26 and April 24.

Jason Harrison and Jennifer Hackwell-Harrison sued Viewcrest Construction and other parties in 2005, alleging that their home’s mold contamination was caused by negligence in the installation of plumbing fixtures and a failure to properly vent a clothes dryer.

Judge Harris concluded that the Harrisons proved the plumbing installation was “substandard and led to leaks,” crediting the testimony by plaintiffs’ expert from Kottke Plumbing Repairs in Medford, Ore., who said he found flaws in soldering and the installation of fittings.

The judge found defense testimony that Jason Harrison “dropped something on a pipe or water line” to be “inconsistent, unclear and not credible.”

Judge Harris also said the evidence showed that the dryer vent was improperly installed and that it was not disturbed prior to the time the Harrisons discovered the problem.

Judge Harris determined that compensatory damages totaled $28,726.65, including environmental testing and clean up, plumbing costs and other repairs, and a $100 insurance premium increase.

The judge also concluded, based on testimony by plaintiff’s expert Dr. Michael Stone, an allergist from Ashland, Ore., that the Harrisons had a hypersensitivity to mold and were entitled to $30,000 in non-economic damages for emotional distress, mental anguish, and inconvenience.

Plaintiffs also relied on evidence by the late Dr. Vincent Marinkovich of Redwood City, Calif., who conducted mold sampling, Wise Steps Inc. of Salem, Ore., a testing firm, and Malot Environmental, an environmental remediation company.

“Defendants are liable in negligence for reasonable and foreseeable damages that credibly and naturally flow from the negligent acts, if defendants’ conduct unreasonably creates a foreseeable risk of harm to others,” the judge explained. “The record supports the conclusion that this standard has been met as to those non-economic damages recognized herein.”

In faulting the Harrisons for failure to timely mitigate damages, the judge said it was reasonable for the couple to complain to the Construction contractor’s Board before filing suit, and reasonable for them to reject Viewpoint’s monetary offer.

“However, having [] acknowledged the plaintiffs’ efforts to remedy the problem, they did not act promptly to address the issues presented by the mold problem,” Judge Harris ruled. “The plaintiffs are required by law, under these circumstances, to act promptly to mitigate the damages. The court finds that the damages were increased as a result of the delay of plaintiffs and finds plaintiffs’ comparative negligence to equal forty percent of the overall negligence that brought about the damage.

Damian Idiart of The Idiart Law Group in Medford, Ore., represented the Harrisons.

Robert May of Portland, Ore., represented Viewcrest Construction Inc.

Related Document: Judgment - MOL-0806-15 (PDF format)
 
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