If my mother died from emphysema and we found black mold inher apartment. can the landlord be held responsible?

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If my mother died from emphysema and we found black mold inher apartment. can the landlord be held responsible?

There has been flooding issues for the last 4 years in the apt. below hers and 2 years ago she was diagnosed with emphysema. Also, my father was diagnosed 2 years ago with lung cancer and died 1/1/2 years ago. He had quit smoking 6 years ago and was healthy until he got cancer. Could these issues be caused by black mold and could their landlord be responsible?

Asked on March 9, 2011 under Real Estate Law, Colorado

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Sorry to hear about your parents.

In order to establish a case of negligence (wrongful death) against the landlord, you will need to prove duty, breach, actual and proximate cause.  Negligence is based on exercising due care (that degree of care in this case that a reasonable landlord would have exercised under the same or similar circumstances).  Although the landlord may have had a duty to remove the mold, did the landlord have a duty to discover the mold in your mother's apartment?  Did she ever inform the landlord of the mold?.  Assuming that you establish that the landlord had a duty to remove the mold, did the landlord breach the duty of care by not removing the mold from your mother's apartment?  How long had the mold been there and again was the landlord informed of the presence of the mold in your mother's apartment?  These facts will determine whether or not the landlord breached a duty of care to remove the mold.  Assuming you establish breach of duty, you will still need to prove actual cause and proximate cause.  Actual cause means but for the mold would your mother still have died of emphysema?  But for the mold would your father have died of lung cancer?  If the answer to these questions is no, you have established actual cause.  It may be difficult to establish actual cause since your parents were smokers and the link between emphysema and smoking is well established as is the link between lung cancer and smoking.  Assuming that you establish actual cause of your parents' deaths due to the mold, you will still need to establish proximate cause.  Proximate cause means were there any unforeseeable intervening events that would relieve the landlord of liability?  If the answer is no, the landlord remains liable. 

Your main problem will be establishing actual cause given your parents' smoking.  You will need to consult an oncologist (cancer specialist)  or possibly an expert on mold or possibly a bacteriologist to determine whether or not the mold was a contributing factor in the deaths of your parents. 

If you obtain medical reports which establish a link between the mold and emphysema and/ or the mold and lung cancer, you will need to file your lawsuit for negligence (wrongful death) prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

 

 


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