Caldwell v. JH FINDORFF & SON, INC.
| Decision Date | 21 April 2005 |
| Docket Number | No. 2004AP1157.,2004AP1157. |
| Citation | 698 NW 2d 132,283 Wis.2d 508,2005 WI App 111 |
| Court | Wisconsin Court of Appeals |
| Parties | Sharon Caldwell, Susan Jenkins, Patricia Ethun and Dana Ringhand, Plaintiffs-Appellants, Wea Trust, Involuntary-Plaintiff-Appellant, v. J. H. Findorff & Son, Inc., Defendant-Third-Party Plaintiff-Respondent, General Casualty Company of Wisconsin, Defendant-Third-Party Plaintiff, v. Maly Roofing Company, Inc., Continental Casualty Company, M.C.I., Inc., Acuity, A Mutual Insurance Company, Bruce Griffin and Security Insurance Company of Hartford, Third-Party Defendants. |
Before Dykman, Vergeront and Lundsten, JJ.
¶1
The plaintiffs, employees of Yahara Elementary School in Deforest, appeal from a summary judgment dismissing their claims against J.H. Findorff & Sons, Inc., as barred by WIS. STAT. § 893.54(1) (2003-04),1 a three-year statue of limitations. The plaintiffs sued Findorff for negligent construction of Yahara, which, the plaintiffs allege, led to excessive moisture and mold in the building, causing plaintiffs to experience respiratory symptoms and other problems. The circuit court concluded that the plaintiffs discovered the causes of their symptoms more than three years before the filing of this suit, making their claims time-barred. We disagree and conclude that the date the plaintiffs' discovered the causes of their injuries is a question of fact for a jury to decide.
¶2 In the alternative, Findorff argues we should affirm the circuit court's judgment, at least in part, on any or all of the following grounds: (1) the statute of repose in WIS. STAT. § 893.89 bars claims for damages suffered between April 29, 1994, and August 15, 1999; (2) the plaintiffs' claims under WIS. STAT. § 101.11, the safe place statute, fail as a matter of law because the submissions did not show that Findorff had custody or control of the premises; (3) the plaintiffs' negligence claims fail as a matter of law because none of their expert witnesses offered standard of care opinions regarding Findorff. We reject each of these contentions and remand for further proceedings.
¶3 The following undisputed facts are contained in the parties' affidavits. Findorff was the general contractor for the construction of Yahara Elementary School, which opened for the 1992-93 school year. Teachers Sharon Caldwell and Susan Jenkins, and custodian Patricia Ethun worked at Yahara from 1992 through the eventual remediation of the school in 2002. Teacher Dana Ringhand worked at the school from 1994 to 2001.
¶4 All of the plaintiffs developed respiratory symptoms and other problems soon after starting work at Yahara. Sharon Caldwell found it difficult to breathe in her classroom, developed asthma and respiratory infections, and experienced fatigue, headaches and muscle aches. Caldwell's symptoms would clear up when she was away from Yahara during summer breaks, but would return shortly after the start of school in the fall. In June 1993, Caldwell attended an environmental safety conference because she "was aware that there was something in the school's environmental that was making [her] not feel well." Caldwell's doctor ordered her in 1994 to stay home from school an extra day each week, though the doctor did not determine what in the school environment was causing her symptoms. In 1997, Caldwell discovered a one-foot square patch of fuzzy mold in a storage closet of her classroom. Both Caldwell and Susan Jenkins replaced carpeting in their homes with wood flooring out of concern that something in their homes was a source of their problems.
¶5 Jenkins experienced many of the same symptoms as Caldwell, including asthma, fatigue, headaches and sinus infections. These began in 1992 and were "pretty much out of control" by early 1999. Jenkins noticed that there were problems with the heating and cooling system in the building, and that her classroom was very humid and often had a strange odor. She placed an air purifier in her room in 1994 and a dehumidifier in 1998 or 1999. Upon returning from summer vacation in 1996, and then each fall until the 2002 remediation, Jenkins discovered mold in her classroom carpet. As Jenkins' symptoms worsened in 1998 and 1999, she came to "fe[el] that there was a relationship between mold and health." She requested that the carpeting in her classroom be replaced with linoleum because of the moldy odor.
¶6 Patricia Ethun experienced dizziness, allergies, bronchitis, eye irritation and breathing problems shortly after the school opened. Ethun had a history of migraines, but these increased in frequency and severity after she began working at Yahara. Within two to three years, she developed memory problems. As the custodian, Ethun changed the HVAC filters on a monthly basis when the building was new, which caused her to get headaches and to feel weak. In October 1992, she complained to her doctor that she thought she was suffering from "new building syndrome." Like Caldwell and Jenkins, Ethun discovered mold in the building. Two to three years after the school opened, she found mold on pipe wrapping in the ceiling, and on ceiling tiles. In summer 1993, she discovered mold on the carpets, and observed that during the summers mold would form after the carpets were cleaned.
¶7 Dana Ringhand developed allergies, eye irritation, headaches and runny nose in the winter of the 1994-95 school year, her first at Yahara. She described the humidity as "horrible" in the building, and did not believe that the air conditioning or heating worked properly.
¶8 Ringhand, Caldwell and Jenkins often complained to the custodial staff (including Ethun) about air-flow problems and excessive humidity in the building. They discussed their health problems with each other and other staff members. Custodial staff and administrators speculated that the humidity in the school was due in part to carpet cleaning over the summer break.
¶9 At the start of the 2001-02 school year, the district maintenance supervisor discovered mold in the building that could not be attributed to any readily ascertainable cause. The district hired Environmental Management Consultants, Inc., (EMC) to investigate potential mold and air quality problems. In April 2002, EMC released a report that found excessive levels of mold and moisture in the school and identified likely sources of the moisture and mold. The district immediately closed the building and hired a remediation team, which completed its work that August. During the remediation project, three, inch-wide gaps fifteen to twenty feet in length were discovered where the outside wall met the roof along the north side of the building. The HVAC engineer on the remediation, John Fredricksen, reported in a letter to the project architects that:
We also found what we believe is a more serious source of moisture [than another mentioned previously]. A condition exists behind the sheet metal fascia at the overhang. We observed a 1" gap between the Durock fascia and the wood nailer above. We suspect that this condition exists around the entire perimeter of the building. A gap also exists at the sheet metal fascia drip lip so that wind pressure can very easily drive outdoor air behind the sheet metal and through the spacing. We believe this could be a major source of building moisture.
He concluded:
¶10 On August 20, 2002, the plaintiffs sued Findorff under the safe place statute and in strict liability, alleging that defects in the original design and construction caused the excessive moisture in the building. The plaintiffs later amended their complaints to add negligence claims. Findorff moved for summary judgment. The circuit court determined that the plaintiffs failed to state a claim in strict liability. It also concluded that the plaintiffs had set forth viable claims under the safe place statute and in negligence, but that these claims were barred by WIS. STAT. § 893.54(1) because each plaintiff discovered their injuries and the causes of their injuries more than three years before filing suit. The court concluded:
The evidence shows that each of the Plaintiffs discovered that the Yahara building was making her ill well before August 20, 1999.... In their depositions, each Plaintiff testified that Yahara, from the start, had air ventilation problems and/or was humid and damp. They admit that because the onset of their physical ailments coincided with starting to work at Yahara, they attributed their symptoms to the building. Each one of the Plaintiffs took almost immediate, albeit largely unsuccessful, steps to address the problem. Furthermore, starting in the first year that Yahara opened, the staff shared with each other their concerns about the poor air quality in the building and the health problems it was causing. Finally, there was objective evidence that the humidity at Yahara was abnormal: patches of mold growing inside the school. The Court is satisfied that each Plaintiff "discovered" her claims well before three years of filing suit.
The plaintiffs have abandoned their strict liability claims, and appeal only from the court's conclusion that their negligence and safe place statute claims were not timely under Wisconsin's discovery rule.
¶11 We review summary judgment de novo, applying the same method as the trial court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987). Summary judgment is appropriate when no material factual dispute exists and the moving party is entitled to judgment as a matter of law. Schauer v. Baker, 2004 WI App 41, ¶4, 270 Wis. 2d 714, 678 N.W.2d 258. Summary judgment methodology requires that we first examine the pleadings to determine if a...
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