Archive for the ‘Mold’ Category
Monday, November 12th, 2012
FEMA has issued an advisory for buildings subject to long-term flooding and widespread mold following a hurricane. As a service to our readers and fellow New York metropolitan area neighbors, we are providing the text of the FEMA recommendations. the original brochure is available at Advisory for Restoration of Flooded Buildings
1. Air Out–
- To promote drying, open all doors and windows whenever you are present and leave as many open when you are not present as security concerns allow.
- Open interior doors, especially closets, interior rooms and attic doors, to allow air movement to reach all areas of the building. Take doors off their hinges if necessary to promote air flow.
- Open kitchen cabinet and bathroom vanity doors; remove drawers and stack them to dry. When electricity is available, use fans to push moist air outside. However, avoid use of fans if the house is contaminated with sewage as the air movement may spread bacterial contamination.
2. Move Out–
- Remove salvageable contents that were not impacted by the water.
- Remove saturated porous materials such as mattresses or upholstery, especially those with visible fungal growth. These items should be moved out of the building as soon as possible. Cover contaminated items with plastic drop cloths prior to moving to prevent spread of contaminants. Appropriate personal protective equipment should be utilized to avoid
3. Tear Out–
- Prior to beginning tear out, install plastic barriers between affected and unaffected areas of the premises (typically between the first and second floors). This will reduce the potential for secondary damage occurring in the unaffected areas.
- Remove wet carpet and padding. Tack strips should also be removed completely when the carpet is taken out to minimize injury during subsequent activities. Since carpet tack strips have protruding nails, wear leather gloves to protect hands from puncture wounds while removing and handling tack strips. Removing wooden baseboards prior to carpet tear out may allow for their later reinstallation.
- Remove any curled vinyl tiles or linoleum over concrete floors, and remove all vinyl tiles or linoleum over wooden sub-floors to allow the wood to dry. Respiratory protection should be worn as many older (pre-1970s) flooring products, such as 9-inch square tiles and adhesives, often contain asbestos.
- Although punching holes in walls for drainage is commonly recommended, this practice does not drain water nor does it cause the wall to dry faster. If holes are not punched in the walls, the drywall (gypsum board) may be able to be easily repaired and restored.
- If drywall or plaster has been saturated by contaminated floodwater, it should be removed. Respiratory protection should be worn when removing drywall as some older drywall joint compound contains asbestos. If the water level was less than 2½ feet, the wall material should be removed to a height of 4 feet to facilitate reinstallation of full sheets of drywall. If the water level was greater than 2½ feet, the wall material should be removed to a height of 8 feet or the ceiling junction, whichever is higher. Electrical outlet and wall switch plates and door and window moldings must be removed prior to the tear out of the wall material.
- Fibrous wall insulation (fiberglass, mineral wool, cellulose, wood fiberboard, etc.) saturated by floodwater should be removed completely. Foam plastic insulation may be left in place and allowed to dry.
- Flooded electrical receptacles should be removed completely after the appropriate circuit breakers or fuses are deactivated.
- Wall paneling should be removed if it is swollen or if saturated drywall is behind the paneling.
4. Clean Out
- Following any necessary tear out, clean up any remaining debris and muck. Squeegees, shovels, and brooms are effective for such cleaning. Personal protective equipment should be utilized. Detailed cleaning and sanitizing of the remaining materials should be conducted. A shop vacuum with dry filters in place and with a solution of clean water and disinfectant in the tank (2-inch depth) to minimize the spread of dust can be used.
- Mold removal- Treatment with commercial mold removers does eliminate visible evidence of mold growth on exposed surfaces and is recommended for restoring flood-damaged homes. Tests have found very little or no evidence of mold growth in the non-exposed (hidden) portions of the walls. Treating the non-exposed portions of the walls for mold control does not appear warranted in most cases. Spraying vertical surfaces using a compression (pump-up) garden sprayer with a commercial mildew remover is recommended.
- Understand the limitations of bleach- While this material is convenient and appropriate as a sanitizer for hard, non-porous items after they have been cleaned, it has distinct drawbacks when cleaning flood-impacted buildings. Application of bleach water can cause corrosion of electrical components and other metal parts of mechanical systems, and can compromise the effectiveness of termite treatments in the soil surrounding the building. Its effectiveness at killing bacteria and mold is significantly reduced when it comes in contact with residual dirt. Moldy surfaces should be cleaned first and then disinfected. Residual mold spores should then be removed, since killing them does not reduce their toxicity.
- Remove mud and gross contamination from floors by shoveling into suitable containers. Reduce soil and contaminant levels on surfaces by flushing off with clear water. The fastest and most efficient method to clean and decontaminate materials and surfaces is by using a residential-type pressure washer to apply a cleaner-disinfectant solution to the affected areas. Brushes improve decontamination of floors and some walls by scrubbing solution into affected surfaces. Avoid scrubbing drywall and plaster walls at this time because they have become softened by the flooding and moisture and may have their surface damaged by scrubbing. Following the first cleaning,floors and walls should be rinsed with water and the cleaning process redone a second time. Squeegees can be used to control or direct spent solution, and wet vacuums can be used to collect spent solution.
Warning: Failure to allow for adequate drying prior to reconstruction can trap moisture in the building, which can cause structural damage and potential health problems in the future.
5. Dry Out
- Once the clean process is completed, the building and any remaining contents need to dry. Drying is a naturally occurring process. Over time, all wetted building materials will dry. Drying of structural materials will take an extended period of time to dry to pre-flood conditions. Exterior rooms with excellent ventilation can take 2 to 4 weeks to dry, depending on the temperature and humidity outside. Interior rooms, or those with minimal ventilation, can take 4 to 6 weeks or more to dry and are candidates for the use of mechanical drying equipment. The use of fans, dehumidifiers, air conditioners, and/or auxiliary electric heaters will speed drying. Allowing materials to dry naturally will take considerably longer.
- Wood framing- The moisture content of wood framing must be checked professionally or with a commercially available moisture meter before refinishing or recovering so that excessive moisture does not become trapped in the materials and cause future problems . Dryness of wood framing materials can be determined quantitatively using the table on the right above. Wetted materials are presumed dry when their moisture content readings are less than or equal to 15 percent when taken with an intrusive/penetrating moisture meter . If an intrusive/penetrating moisture meter is not available, a non-intrusive/penetrating moisture meter may be used; however, keep in mind that the material moisture results measured from non-intrusive meters may be less accurate than intrusive meters.
- Walls, floors, and other building materials- The moisture content of drywall (gypsum board), plywood floors, and other building materials must also be checked professionally or with a commercially available moisture meter before refinishing or recovering so that excessive moisture does not become trapped in the materials and cause future problems. Unlike wood framing, the dryness of other building materials must be confirmed qualitatively by comparing readings between like materials in affected areas of the building (at or below flood level) and unaffected areas of the building (a room or upper floor above the flood level, or inside a nearby building that was not flooded). Wetted materials are presumed dry when their moisture content readings are within 5% of those of like materials in unaffected areas of the building when taken with an intrusive/penetrating moisture meter. If an intrusive/penetrating moisture meter is not available, a non-intrusive/penetrating moisture meter may be used; however, keep in mind that the material moisture results measured from non-intrusive meters may be less accurate than intrusive meters.
- Kitchen cabinets, bathroom vanities, and other “built-in” furnishings that were subjected to flood water should be removed from their location to permit drying of the material behind them. Once these “hidden” areas are dried, the furnishings can be reinstalled if they are salvageable.
- When saturated wood, drywall, and/or other structural materials vulnerable to fungal growth are naturally air dried over an extended period (weeks), the application of a disinfectant prior to drying can prevent mold growth. Materials should be closely observed and disinfectant reapplied at the first sight of mold.
General Notes for Drying Foundation Floors
- Crawlspaces- Access to crawlspaces is necessary for decontamination purposes. For crawlspaces that do not have an existing access opening, the simplest method to access the crawlspace is by strategically removing sections of overlying flooring to permit access. When the flooring is not salvageable, removal of the flooring provides the necessary access openings. Once access is obtained, gross (solid) contamination should be removed from the ground underneath the building for health and sanitation purposes. Next, any remaining water should be removed. If there is an existing vapor retarder on the ground, it can be left in place to collect spent water and cleaning solutions. Following remediation and any necessary final cleaning, the vapor retarder can be left in place to facilitate drying. If there is exposed ground within the crawlspace after cleaning, it should be covered with a plastic vapor retarder to minimize potential mold growth and future moisture migration into the house. Plastic vapor retarders can be made watertight by overlapping and sealing them together using either glue or heavy-duty adhesive. Suitable adhesives can be obtained from hardware stores or home improvement centers. After the vapor retarder is placed, the underlying support structure of salvageable wooden floor joists, wood sub-floors, and foundation walls should be cleaned and sanitized. Following cleaning, application of a wood preservative will provide protection against fungi and wood destroying insects.
- Grade slabs- Concrete grade slabs provide a dense barrier between the ground and the interior of the home. Remove mud and gross contamination from slabs by shoveling into suitable containers. Reduce soil and contaminant levels on surfaces by flushing off with clear water. The fastest and most efficient method to clean and decontaminate contaminated grade slabs and adjacent building materials and surfaces is by using a residential type of pressure washer to apply a cleaner-disinfectant solution to affected areas. Brushes improve decontamination of floors and base of walls by scrubbing solution into affected surfaces. Following the first cleaning, floors and base of walls should be rinsed with water and the cleaning process redone a second time. Squeegees can be used to control or direct spent solution, and wet vacuums can be used to collect spent solutions. Following cleaning, the slab should be visually examined for signs of heaving or cracking due to hydrostatic pressure. When in doubt, contact the local building inspector, structural engineer or other appropriate professional.
Sunday, November 11th, 2012
Cleanup activities related to homes and businesses damaged by hurricanes or other natural disasters can pose significant health and environmental challenges. Immediate and life-threatening conditions may arise from leaking natural gas lines, and carbon monoxide poisoning from using un-vented fuel-burning equipment indoors.
However, there are other serious hazards that are not immediately life threatening but may cause long-term health issues such as exposure to asbestos, PCBs, lead, mold and other harmful substances, EPA recommends that adequate measures be taken during emergency situations to minimize exposure to such materials from the demolition of buildings
Various federal regulations apply to building demolition activities. Areas of primary federal concern include asbestos demolition requirements, the proper disposal of electrical equipment containing PCBs (i.e., distribution transformers and capacitors) and underground storage tanks, lead-based paint, pesticides, herbicides, varnishes, pool chemicals, industrial grade cleaning solutions or other harmful substances.
EPA also suggests the segregation of various wastes streams such as:
- automotive/marine batteries;
- pesticide cans;
- automotive oils;
- fuels and fluids;
- paint thinners and stripper;
- compressed gas containers;
- household white goods (refrigerators, washer/dryers and stoves);
- asbestos containing materials (asbestos shingles, siding and insulation);
- PCBs (electrical equipment such as distribution transformers and capacitors);
- electronics (televisions, radios, stereos, cameras, VCRs, computers, microwaves);
- domestic garbage; and
- preserved woods.
EPA has established a webpage “Dealing with Debris and Damaged Buildings” that provides recommendations for handling various environmental issues associated with demolition of buildings damaged by hurricanes and major storms.
Sunday, November 11th, 2012
During flooding, systems for heating, ventilating, and air conditioning (HVAC) can become submerged in flood waters. As a result, these systems may contain substantial amounts of dirt and debris and may also become contaminated with various types of microorganisms such as bacteria and fungi. The following recommendations will help ensure that HVAC systems contaminated with flood water are properly cleaned and remediated to provide healthy indoor environments.
Microorganisms may grow on all surfaces of HVAC system components that were submerged in flood waters. In addition, moisture can collect in HVAC system components that were not submerged (such as air supply ducts above the water line) and can promote the growth of microorganisms. Therefore, all components of the HVAC system that were contaminated with flood water or moisture should be thoroughly inspected, cleaned of dirt and debris, and disinfected by a qualified professional. The following recommendations will help ensure that HVAC systems contaminated with flood water are properly cleaned and remediated to provide healthy indoor environments.
The CDC has a website “Cleaning Recommendations for the Cleanup and Remediation of Flood-Contaminated HVAC Systems: A Guide for Building Owners and Managers” that covers the following issues:
- Steps Before Cleaning and Remediation
- HVAC Cleaning and Remediation
- Resuming HVAC Operations
- Additional Resources
Sunday, November 11th, 2012
The federal Department of Housing and Urban Development (HUD) Office of Policy Development and Research (PD&R) has prepared a number of guides, brochures, reports and other resources to assist contractors and homeowners with flood-damaged homes and buildings. Following are links to some of these resources:
- Rehabbing Flooded Homes: A Guide for Builders and Contractors – This resource discusses methods for determining how badly a building has been damaged and how to repair it are relatively similar no matter where you are working.
- Creating a Healthy Home: A Field Guide for Cleanup of Flooded Homes– This guide is meant for do-it-yourselfers and contractors who need to clean up mold in flooded homes before starting to rebuild or renovate. This booklet tells how to clean up after flooding, but does not describe how to rebuild.
- The Rehab Guide– This nine-volume guidebooks covers distinct elements of housing rehabilitation. It focuses on state-of-the-art building technologies, materials, components, and techniques.
- Moisture-Resistant Homes– This report describes best practices for designing, building, and maintaining houses to effectively manage moisture penetration. It addresses many common moisture-related problems that are well known to builders, homeowners, and insurers.
Centers for Disease Control and Prevention (CDC) has a webpage for Preventing and Treating Illnesses and Injuries After a Hurricane or Flood. This page contains fact sheets and videos on various topics including the following:
The federal Department of Energy ( DOE) Building Technologies Program is partnering with State Energy Offices (SEOs) to encourage regional exchange of information and best practices. The DOE website Disaster Recovery and Building Reconstruction provides numerous links for builders, home owners and local officials. The FEMA Hurricane Sandy website offers a wide variety of resources, including a Frequently Asked Questions Webpage- The SBA provides low interest disaster loans to homeowners, renters, businesses of all sizes and private, nonprofit organizations to repair or replace real estate, personal property, machinery & equipment, inventory and business assets that have been damaged or destroyed in a declared disaster. Information is available at the SBA Disaster Loans webpage.
Tuesday, November 6th, 2012
NY Building owners are grappling with a number of environmental issues associated with Hurricane Sandy. Following is a summary of the more common issues and regulatory initiatives announced by NYC Department of Buildings and the NY Department of Environmental Conservation (NYSDEC) to expediate cleanup and recovery efforts.
Commercial and Residential Buildings With Flooded Basements/Parking Garages
Commercial or residential buildings in lower Manhattanor other areas where flooding occurred may have had underground parking garages. Gasoline, oil and other automotive fluids may have contaminated the flood water. Other sources of contaminants can include boilers, storage tanks and transformers.
Normally, contaminated water must be treated before it can be discharged into the sewer system. However, the New York City Department of Environmental Protection announced that is was temporarily waiving its requirements for businesses and homeowners seeking to discharge water from flooded properties into the City’s sewer system
Owners or operators of properties with parking garages that have petroleum-contaminated flood waters have to comply with the NYSDEC spill notification requirements. Click here for the NYSDEC spill guidance manual. The NYSDEC has also indicated that if water contains significant recoverable material, such as fuel oil floating on water that could cause significant further damage to the structure if not removed first or significant environmental damage, all reasonable measures should be taken to collect and properly dispose of the material prior to pumping out the structure. If the water to be removed does not have significant recoverable material, the discharge will not be subject to a State Pollution Discharge Elimination (SPDES) Permit. NYSDEC has indicate that such pump outs should be directed to the storm sewer whenever possible.
Where a significant spill has occurred, the owner or operator use environmental contractors to handle, treat and dispose of such substances properly prior to discharging to the City sewer system. Contractors who collect and dispose of released petroleum or hazardous substances must comply with all requirements for the handling, treatment and disposal of the collected materials.
Note that buildings that were located in the flood zone A and subject to mandatory evacuation cannot be reoccupied until the NYC Department of Buildings (DOB) has determined that re-occupation is permitted. The DOB will issue a green placard after authorizing re-occupation. Building owners can also obtain a green sticker by issuing a report prepared by a professional engineer that certifies that there is no standing water in the building, it is structurally safe, all required life systems are properly functioning, at least one elevator is working and the building is otherwise safe for occupancy. More information is available at: Getting Back in Your Home
Residential Oil Spills and Flooding–What Homeowners Need to Know
In some cases, the oil is mixed with the water that has flooded your home. If so, do NOT pump the water out into your yard. The oil may spread and contaminate other areas, including nearby wells, water bodies and homes. Oil spills can contaminate indoor air.
If your home is affected by a flood that causes an oil spill in or near your home, you should contact the New York State Department of Environmental Conservation (NYSDEC) Spill Hotline immediately at 1-800-457-7362 to report the spill.
Although New York law stipulates that oil tank owners and operators may be legally responsible for costs associated with oil spill cleanups, including relocation costs, State officials are exploring all other avenues to pay for such costs, including FEMA, the federal Oil Pollution Act of 1990, and insurance.
Oil and Water in Basement
In some cases, the oil mixes with the water that floods your home. If so, do NOT pump the water out into your yard. The oil may spread and contaminate other areas, including nearby wells, water bodies and homes. The NYSDEC can help coordinate this work.
If a layer of oil is on water in a basement, you can minimize the amount of oil spread on walls and floors and the amount of other damage to your property by removing the oil before pumping the water out.
- For an oil film, absorbent pads may be sufficient to collect the oil.
- For a thicker layer of oil, a vacuum truck may be necessary to skim the oil off the water.
NYC DOB cautions that oil spills can also contaminate indoor air.
- Keep all doors, laundry chutes, etc., between the basement and living space closed.
- Stairways between the basement and the first floor living space that do not have a closable door should be partitioned off with a sheet of plastic.
- Avoid tracking oil in the home. Do not wear any shoes in the living space that may have been contaminated with oil.
- Fans can help to control odors. The DIRECTION of fan air flow is critical to keeping odors out of the living space.
- Exhaust basement areas by BLOWING AIR OUT of basement through a single window, with no other basement windows open.
- If the only opening to the outdoors is a walkout basement door, then a large fan should be placed in the doorway, blowing out.
- If possible, block or reduce the open space around fans (shroud) to increase the fan’s effectiveness.
- Any windows near the basement exhaust air should be kept closed to prevent contaminated air from re-entering the home.
- Fans used in the living space for occupant comfort (reduce odors) should blow outdoor air inward.
- Use caution when operating central heating or central air conditioning systems, as these could further distribute odors and possibly contaminate system components.
Furnaces and Boilers
Oil-fired furnaces or boilers should not be started, until they have been checked by a service technician. Combustion processes using fossil fuel generate exhaust gases including carbon monoxide which can be deadly and must be vented. If a furnace or boiler is damaged, gases may be released in your home. Be sure all tank vents are clear. Be sure all flue vents are clear so gases exhaust freely. When basement exhaust fans are operating, the potential for back drafting should be evaluated.
Drinking Water Wells
Drinking water from wells contaminated by petroleum will often have an odor. If you think this is the case, do not drink the water and notify the NYSDEC and/or NYSDOH.
Potential Health Effects-
Most of the information on the health effects of petroleum products in humans is based on inhalation exposure to petroleum product vapors. Long-term exposure to petroleum product vapors should be minimized to the extent practical. If petroleum odors are present, measures to reduce long-term exposures should be considered
- Exposure to high levels of petroleum products can cause health effects, primarily on the nervous and respiratory systems.
- People who inhaled elevated air levels of fuel oil vapors for short periods of time had nausea, increased blood pressure, eye irritation, headaches, light-headedness, and poor coordination.
- Longer term exposure to elevated levels of fuel oil vapors can cause similar effects on the nervous and respiratory systems and may also affect the blood, liver and kidneys.
- Petroleum products in contact with the skin may cause irritation and blistering in some people.
- The elderly, the very young, and people with respiratory diseases may be especially sensitive to the effects of inhaling petroleum vapors.
After a flood, it is important to clean and dry affected items as quickly as possible to prevent mold growth. Click here for more information about mold risks. To minimize mold growth, the NYC Department of Health has the following recommendations:
- Dry all affected areas and items quickly and thoroughly.
- Open windows to let in fresh air (if it is not raining).
- Use fans to help dry out your home and reduce odors. Warning: Do not run any electrical equipment or appliances near standing water.
- Use a dehumidifier to help dry out enclosed spaces.
- Bring in professionals to clean and restore your home if there is extensive flood damage (you may not be able to do it all yourself).
The NYC Department of Health (DOH) cautions that mud left from floodwaters may contain sewage and hazardous chemicals. To prevent infection, the NYC DOB recommends:
- Keep children, pets and people with compromised immune systems away until the area has been cleaned and disinfected.
- Throw away any food (including packaged food) that was touched by sewage water.
While it is important to disinfect sewage-contaminated items, the NYC DOH warns that it is important not contact with the sewage during cleaning. When cleaning water that has come into contact with sewage, DOH recommends taking the following steps:
- Pre-rinse fabrics with cold water to help prevent staining.
- Launder with detergent.
- Dry clean items that cannot be laundered. This process will generally disinfect clothing.
- Throw out soaked leather shoes, as it may be very difficult to disinfect them.
- Speak to a professional trained in conservation methods about cleaning valuable papers and photographs
For cleaning rugs and carpets that have been contaminated with sewage, the NYC Department of Health has the following recommendations:
- sewage-contaminated rugs and carpeting be cleaned?
- Clean small contaminated areas with detergents and disinfectants.
- Dry thoroughly and quickly.
- Hire a professional to clean larger areas.
- Throw away soaked rug padding.
Monday, April 2nd, 2012
Can a person faced with environmental conditions posing potential health risks implement remedial measures without running the risk of being sanctioned for destroying evidence? This problem can arise when a consultant destroys soil or groundwater samples but what about a mold case where the home itself is the evidence? This was the issue addressed in Miller v. Lankow, 801 N.W.2d 120 (Minn. 2011).
In this case, defendant Lankow entered into a purchase agreement to sell her home. The buyer’s home inspection revealed fungal growth in a basement wall and cancelled the sale. Lankow then hired Industrial Hygiene Services Corporation (IHSC) to test the home’s interior drywall for fungal problems. After IHSC found evidence of elevated moisture in the wall cavity, the defendant Lankow hired three contractors to repair basement wall. Total Service Company (TSC) investigated and repaired the moisture damage. Diversified Contractors, Inc. (DCI) applied anti-fungal paint to the affected wood. Donnelly Brothers replaced the stucco removed as a result of the repairs. Lankow also hired a landscape contractor to redirect water flow from away the home.
After the repairs were completed, Lankow entered into a purchase agreement with the plaintiff. A disclosure statement to the purchase agreement that stated “Seller became aware of a moisture intrusion/mold issue in spring of 2003. The affected areas were remediated by licensed professional contractors and engineers.” The disclosure also cautioned buyers that “If you have a concern about water intrusion or the resulting mold/mildew/fungi growth, you may want to consider having the property inspected for moisture problems before entering into a purchase agreement or as a condition of your purchase agreement.” The IHSC reports, and invoices from DCI, TSC, Donnelly Brothers, and the landscaper were attached to the disclosure statement.
The plaintiff purchased the home in May 2004. When signing the purchase agreement, plaintiff signed a receipt for the disclosure forms, acknowledging his awareness of the previous moisture and mold problems and the repairs performed by the contractors. He also expressly waived an inspection of the home.
One year later, the plaintiff decided to sell the home, and entered into a purchase agreement with a prospective buyer. Along with the purchase agreement, plaintiff provided a statement that disclosed that the home’s previous owner had experienced moisture problems. After receiving this information, the prospective buyer retained its own home inspector who reported that that the home still had significant moisture intrusion problems and the prospective buyer declined to purchase the home.
The plaintiff then notified Donnelly, TSC, and DCI of the discovery of renewed moisture intrusion problems. At a site visit, the contractors agreed there was moisture in the wall in the area that had been repaired. Plaintiff told the contractors that the problem had to be immediately repaired because he did not want his children living in a mold-infested home.
In December 2005, plaintiff’s attorney sent letters to the contractors alleging that the remediation work they performed in 2003 was defective, resulting in continued moisture intrusion and mold. The letter also provided notice of a possible claim for breach of the home-improvement warranty provided under state law. The letter requested that the contractors him to discuss possible resolution of the problem. Plaintiff’s attorney also sent a notice letter to Lankow alleging that they had falsely represented that the moisture and mold problems had been remediated and demanding that they contact him by January 9, 2006, to avoid legal action.
In March 2007, plaintiff’s attorney sent a letter to the defendants instructing them to immediately schedule any further inspections of the home because plaintiff planned to proceed with necessary repairs beginning on March 22, 2007. As it turned out, the plaintiff had hired a contractor to remediate and repair the home in January 2007 so that when a representative from Donnelly visited the home in March, the entire exterior of the home, including the stucco and the underlying plywood, had already been removed, and only insulation remained in the wall cavities.
In April 2007, plaintiff filed a suit against Lankow and the contractors. The defendants cross-claimed against each other for contribution and indemnity, and the seller brought a third-party claim against the real estate brokerage and agent. The defendants moved for summary judgment, claiming that appellant had spoliated the evidence of water damage and mold by making repairs to the home without providing them with a meaningful opportunity to inspect the premises.
The district court found that the defendants did not did not have an opportunity to independently inspect the evidence prior to its destruction and therefore suffered “extremely significant” prejudice. The court sanctioned plaintiff by excluding all of his expert reports and testimony relating to moisture intrusion and the extent of the mold. Since there was no other evidence as to the cause or origin of the moisture intrusion and the extent of the mold, the court granted summary judgment and dismissed all claims for lack of evidence. A divided court of appeals affirmed the district court.
However, the Minnesota Supreme Court found the lower courts had misapplied the rules for spoliation. The court began its analysis by stating that while parties have an obligation to preserve evidence necessary for litigation, the duty to preserve evidence wais not boundless. The court noted that several jurisdictions have recognized limited circumstances where a party’s destruction of evidence may be excused. The court then held that the duty to preserve evidence must be tempered by allowing custodial parties to dispose of or remediate evidence when the situation reasonably requires it.
The court then articulated provided guidance for lower courts to follow when considering whether to impose sanctions for the spoliation of evidence. The court said judges should consider the totality of the circumstances in determining whether the notice given was sufficient to satisfy a custodial party’s duty to preserve evidence. The court said that sanctions for spoliation may not be appropriate when a custodial party with a legitimate need to destroy evidence gives notice that is sufficient for the noncustodial parties to protect themselves by taking steps to inspect or preserve the evidence and the noncustodial parties nevertheless do nothing to inspect the evidence.
The court suggested that sufficient notice might be a meeting or a letter indicating the time and nature of any action likely to lead to destruction of the evidence, and offering a full and fair opportunity to inspect. While the court said it would be good practice to explicitly provide such a notice in written form, failure of the custodial party to provide further notice of destruction should not deprive the custodial party of an otherwise valid claim or defense where a court is able to determine that noncustodial parties had sufficient knowledge to protect its interests but failed to inspect important evidence.
The court noted that the evidence in this lawsuit was the plaintiff’s home and that remediation of the moisture intrusion problem was likely necessary and perhaps essential to address immediate health concerns. The court said the plaintiff had advised the contractors at the September 2005 meeting that he was concerned about the health implications for himself ad his children. Under such circumstances, the court reasoned, it would be unfair to force him to make the unpleasant and perhaps dangerous choice between preserving evidence for a potential lawsuit by living in a mold-infested home or remediating the mold infestation at the risk of fatally compromising at action for damages.
As a result, the court reversed the lower court rulings and remanded the matter for further proceedings to determine if plaintiff had a legitimate reason to destroy the evidence and whether he provided notice sufficient to enable the respondents to protect themselves by inspecting the relevant evidence. After making these determinations, the court said the trial judge should determine whether imposition of sanctions for spoliation is appropriate and, if so, whether it was appropriate to exclude all of plaintiff’s expert reports and testimony relating to moisture intrusion and the extent of mold or if some lesser sanction is more appropriate