Opinion
C.A. No. 02C-10-081 RRC.
Submitted: March 19, 2007.
Decided: May 2, 2007.
On Defendants' Motions for Summary Judgment.
GRANTED.Robert C. McDonald, Esquire Silverman, McDonald Friedman, Wilmington, Delaware.
Stephen P. Casarino, Esquire Casarino, Christman Shalk, Wilmington, Delaware.
R. Karl Hill, Esquire Seitz Van Ogtrop Green, P.A., Wilmington, Delaware.
Dear Counsel:
Before the Court are Defendant Marie DiSabatino's and Defendant Patterson Schwartz Associates' ("PSA") motions for summary judgment. Plaintiffs filed an action against Defendants for alleged injuries resulting from mold, bacteria, and other toxic substances in a house owned my DiSabatino and managed by PSA. Because Plaintiffs did not identify a standard of care expert in a timely manner and the Court finds that under the circumstances of this case a standard of care expert is required, Defendants' motions for summary judgment are GRANTED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs Stephen and Stacey Campbell leased a house located at 107 Bellant Circle, Wilmington, Delaware. The property was owned by DiSabatino and managed by PSA. Mr. Campbell apparently inspected the house at least twice before moving in and did not notice any mold or water damage. Plaintiffs moved into the property on October 12, 2000 and within a couple weeks of moving in they complained to PSA about a musty smell in the house.
Mr. Campbell testified that he believed that the source of the smell was the whole house humidifier, which was attached to the HVAC system. He inspected the humidifier and noticed that the discs in the unit were corroded and the water line was clogged. On his own, Mr. Campbell removed and disposed of the humidifier. Subsequently, on November 29, 2000, PSA hired ServPro to clean the ducts in the house.
None of the parties know where the humidifier currently is.
On December 18, 2000, Mr. Campbell complained to PSA in writing, stating that the musty or moldy smell was still present after the cleaning. Further, he stated that his family physician and his allergist told him that the "situation created an unsafe, and unhealthy condition" for the family. Mr. Campbell wrote to PSA again on December 21, 2000, reiterating his concerns about his family's health and inquiring about possible termination of the lease agreement. Plaintiffs vacated the house on December 28, 2000, leaving their furniture behind.
Michelle Fidance, a property manager for PSA, inspected the house after Plaintiffs had vacated it and noticed a musty smell, but could not determine the source of the smell. After Plaintiffs' furniture was removed, however, the smell went away, according to Ms. Fidance.
Defendant DiSabatino testified in her deposition that she never had any notice of a problem concerning mold or strange odors in the house prior to Plaintiffs' complaints. Moreover, the prior tenants, one a medical doctor and one an asthmatic, who moved out ten days before Plaintiffs moved in, testified that they never noticed a musty or moldy smell in the house. In addition, Mr. Campbell testified at his deposition that he had no evidence that PSA was ever aware of a mold problem prior to his tenancy.
On February 28, 2001, PSA brought an action on behalf of DiSabatino in Justice of the Peace Court for summary possession and back rent. Plaintiffs countersued seeking $13,680 for costs related to the alleged mold. After a trial on April 4, the court entered an order that awarded PSA $5,640 and that provided Plaintiffs seven days to retrieve their belongings from the property. Counsel for Plaintiffs appealed the decision to a three judge panel; however, prior to the hearing, Plaintiffs dismissed their appeal with prejudice. PSA, as agent for DiSabatino, satisfied the judgment on June 5, 2001.
Plaintiffs then filed a pro se complaint in this Court on October 10, 2002. Sometime thereafter, Plaintiffs retained counsel and filed an amended complaint on January 13, 2003 alleging negligence, negligence per se, breach of contract, misrepresentation, increased risk of harm relating to the alleged exposure to toxic substances, and seeking punitive damages. On January 9, 2007, the Court granted PSA's motion to exclude Michael Lynn as an expert for Plaintiffs with regard to the standard of care owed by residential landlords and property managers in Delaware because he was identified as an expert after the deadline set forth in the trial scheduling order.
Plaintiffs have since abandoned their claims of breach of contract and misrepresentation.
II. THE PARTIES' CONTENTIONS
Both DiSabatino and PSA contend that Plaintiffs' claims fail because they do not have a standard of care expert. In addition, DiSabatino claims that Plaintiffs cannot prove she was negligent because it is undisputed that she had no knowledge of any mold or musty smell on the property. Furthermore, PSA asserts that Plaintiffs' claims are barred by res judicata, or, in the alternative, by collateral estoppel.
Plaintiffs, however, contend that Defendants breach of their duty to provide a safe unit fit for renting "was so apparent that expert testimony is not required to assist the trier of fact in its determination of negligence." In addition, Plaintiffs recognize that prior Delaware case law requires a standard of care expert where tenants complain of mold in a commercial building; however, they argue that this rule should not be applied in the case of residential homes. Plaintiffs further contend that their claims are not barred by res judicata or collateral estoppel because the issues in this case were not fully litigated in the Justice of the Peace Court.
III. STANDARD OF REVIEW
IV. DISCUSSION
Super. Ct. Civ. R. 56(c).
Cook v. City of Harrington, 1990 WL 35244, at *3 (Del.Super.) (citing Ebersole v. Lowengrub, 180 A.2d 467 (Del. 1962)).
Mason v. United Servs. Auto. Ass'n, 697 A.2d 388, 392 (Del. 1997).
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992).
Norfleet v. Mid-Atlantic Realty Co., 2001 WL 282882, at *6 (Del.Super.) (quoting Hand v. Davis, 1990 WL 96583, at *2 (Del.Super.)).
For example, in Norfleet v. Mid-Atlantic Realty Co., the Court held that an expert was required to establish the standard of care owned by a landlord to tenants for injuries sustained in an apartment complex fire. Specifically, the Court stated that "[e]ven though the Court has not chosen to accept that apartment owners and managers are professionals, expert testimony to the local industry practice will be helpful and required."
2001 WL 695547 (Del.Super.).
Id. at *6.
Additionally, in Brandt v. Rokeby Realty Co., the Court held that the plaintiffs had to provide an expert on a landlord's standard of care when mold and water damage allegedly occurred in a commercial office building. The Court further stated that "[w]ithout guidance from an appropriate standard, the jury would be merely speculating about this important aspect of the case."
2004 WL 2050519 (Del.Super.).
Id. at *5.
Similar to Brandt, the central issue in this case is to what standard of care a landlord is held when a tenant complains of mold in the rental property. The fact that the rental property in this case is a residential home, instead of a commercial building like in Brandt, does not affect the complexity of this issue. Regardless of Plaintiffs' assertion that Defendants' negligence was "so apparent that expert testimony is not required to assist the trier of fact," this Court agrees with Brandt and Defendants that this issue requires expert testimony or else the jury "would be merely speculating." In addition, the Court notes that Plaintiffs did attempt to identify a standard of care expert, although they failed to do so by the deadline set by the Court. Therefore, because Plaintiffs cannot establish the standard of care that Defendants owed, Defendants are entitled to judgment as a matter of law.
V. CONCLUSION
For the above reasons, Defendants' motions for summary judgment are GRANTED. The May 7 pretrial conference and the June 4 trial are both cancelled.