On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4812-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2009
Before Judges Lisa and Baxter.
Plaintiff, Gloria Smith, appeals from a summary judgment dismissing her personal injury complaint for a respiratory disorder allegedly caused by a mold condition in the basement apartment she occupied. After initially granting the summary judgment motions of the owners of the condominium unit in which plaintiff was a tenant and the owner of the apartment complex and its tenants association, the judge considered plaintiff's reconsideration motion. The judge granted reconsideration but determined that the prior order was correctly entered and again granted summary judgment in favor of all defendants. Plaintiff appeals from that order as well.
The basis of the court's ruling was that plaintiff presented insufficient evidence from which a rational jury could find that the condition of the apartment was the cause of her respiratory disorder. In essence, the judge concluded that the opinion rendered by plaintiff's treating doctor on causation was a net opinion because he did not identify the specific nature of the mold spores or any other contaminant that was present in the apartment. Similarly, plaintiff's environmental expert did not test for specific spores when he inspected the apartment and did not identify any specific kind of mold or other contaminant present at the time plaintiff claims she became ill.
Plaintiff argues that the opinions rendered by her doctor were not net opinions and were sufficient to withstand summary judgment on the issue of causation. We agree with plaintiff and reverse.*fn1
Viewing the evidential materials in the motion record in the light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), these are the facts. On July 1, 2003, plaintiff became a tenant in Unit 139 of Building 13 of the Northridge Apartments in Edison. Unit 139 was owned by defendants Joseph and Susan Buettel. The buildings in this complex are three stories high. Unit 139 is a basement apartment, approximately three feet below grade. In September 2003, rainwater infiltrated the apartment above plaintiff's apartment and also entered the walls of plaintiff's apartment, causing the carpet in her hallway to become wet. The upstairs neighbor stated that water infiltration was an ongoing problem in the building. Plaintiff also observed water stains in other areas of the apartment, including the living room and bathroom. Sometime prior to plaintiff's occupancy, the sprinklers had apparently been activated, thus providing another source of water.
In January 2004, the pipes in the laundry room adjacent to plaintiff's apartment broke, causing extensive flooding in her unit. The Buettels arranged for removal of the carpet and installation of a new carpet within ten days of that incident. From time to time, plaintiff observed black mold in her bathroom. After removing it, it would return.
On October 13, 2004, about two weeks after plaintiff moved out of the apartment, Steven Temes, an industrial hygienist and certified microbial consultant, of AirWays Environmental Services, inspected the apartment and building. He identified other sources of water infiltration that had occurred in the past, caused by such things as the design and condition of the roof, the condition of the downspout in the vicinity of plaintiff's apartment, and the grading of the ground adjacent to her apartment. He observed that the French drain in the master bedroom had a mild odor of microbial volatile organic compounds (MVOCs), but the slab was not wet at the time of inspection as determined with the use of a moisture meter. Because the contaminated carpeting had previously been removed and replaced, and because the French drain was dry at the time of inspection, Temes concluded that "conditions at that time with regard to airborne microbial contamination would not have been representative of the chronic exposures [plaintiff] received while living in the apartment when she became sensitized." Temes also observed a heavily rusted return register, indicating a condition of high indoor relative humidity for an extended period of time.
Among the findings and conclusions contained in Temes' report was the following:
The condition of water/moisture in the open French drain as a result of foundation seepage and flooding of the laundry room which shares this same drain would certainly have produced bacterial and fungal growth. The characteristic and recognizable odor of MVOCs produced by fungal organisms (a musty, mildewy odor) was detected by AirWays in the October 13, 2004 site inspection. The drain and slab were determined to be dry at this time with the use of a moisture meter. Evidence of a previous moisture condition existing in this drain was clear and convincing. The open French drain was approximately 4 feet from where Ms. Smith's head would have rested on her pillow when she was sleeping. Because her most severe breathing difficulties occurred while she was sleeping, it is very likely that her exposure to the microbial contamination to which she became sensitized occurred in her bedroom. Additional known water damage to Apartment 139 included saturation of the carpeting in the rear hallway where the appearance of the carpet tackless strip was consistent with significant impact by water. The known water intrusion event in the rear hallway in September of 2003 may not have been the first occurrence from the roof leak based upon statements reportedly made by Ms. Smith's former upstairs neighbor. Evidence of a sewage leak running onto the floor of the electrical utility room adjoining Gloria Smith's bedroom was also observed. This may have permitted sewage contaminants to enter the common French drain.
Among the indoor bioaerosol contaminants known to be capable of producing sensitization in occupants are fungi (especially mold spores and fragments), bacterial endotoxins, MVOCs, and any other allergen or chemical irritant associated with microbial growth in water-damaged buildings. The potential to develop an environmental hypersensitivity, as with any allergy, is a function of genetic predisposition.
In July 2004, plaintiff began experiencing severe respiratory symptoms. The episodes occurred primarily through the night, while plaintiff was sleeping. She experienced serious problems breathing because her throat closed up. She saw her family physician on August 2, 2004, and was prescribed antibiotics. Although she took the antibiotics as prescribed, the symptoms continued, and indeed worsened. On August 12, or 13, plaintiff experienced a severe episode and went to the emergency room of a local hospital. Chest x-rays were performed. Plaintiff was given a nebulizer and additional antibiotics were prescribed. On August 24, 2004, late at night, plaintiff could hardly breathe. She drove herself to the emergency room. She was admitted ...