# Presentation: 785149

## The Healthy Homes Initiative: The Role of Law 

- Doug Farquhar, JD
- National Conference of State Legislatures
- Denver, Colorado

## Standard of Care for Housing

- Hazardous Building Materials (VOCs, Pb, Asbestos)
- Toxics unsafe at any speed
- No amount is healthful
- Levels determined to be acceptable have been later determined to be harmful
- Hazards in the home
- Faulty wiring
- Gas Furnaces
- Falls
- Who's at fault????

## We must think like lawyers

- "You come into law school with a mind of mush, you leave thinking like a lawyer."

## Legal Standard of Care

- Reasonable Person:  the degree of care that a person of ordinary prudence would exercise in the same or similar circumstances; the standard in which a property owner must observe to avoid liability for harm from health hazards in the buildings he owns
- Defined by court cases (legal precedence); based on the foreseeability of harm to the plaintiff (was it reasonable for the owner to foresee the hazard or dangerous outcome)

**Notes:**
Law follows the reasonable person standard; what the average person should do in their society
	Is it reasonable for a property owner to expect a child to become poisoned in their unit?
	Does the property owner have knowledge that the unit contains lead; is pre-1978 unit considered knowledge

Very broad standard of care; however gives persons the flexibility to argue that they had followed common; reasonable practices
Allows the poisoned child to argue that the common, reasonable practices were insufficient in preventing poisonings.

## Statutory Standard of Care

- Based on Statutory or Regulatory law; takes precedence over legal standard of care
- Determined either by agency personnel through regulatory process, or mandated by legislature/Congress in statute
- Supreme Court gives "great deference" to agency decisions (*Chevron Case*)

**Notes:**
Not based on reasonable standard, based on trying to protect 100% of the public
	How many poisoned children is considered acceptable?  None
Circumvents legal standard of care for a prescribed standard of care

Based on some statutory or regulatory determination
	Legislature/Congress defines standard based
	Or agency must construct a standard  based on certain parameters
		Health-based
		Epidemiological
		Protect certain homes; communities

## Statutory Standards

- Federal Regulations
- HUD Regulations
- EPA Regulations
- OSHA Regulations
- CDC Guidelines
- Though only guidelines, can demonstrate to a court a standard of care

**Notes:**
Federal standards are determined due to specific factors;
	previous standards were developed to protect persons from lead in gasoline, to protect children from the 70ug/dL range
	HUD guidelines sought to make HUD housing livable
	EPA (403) Standards are health-based standard; to meet the needs of the Residential Lead-Based paint act of 1992

NONE WERE DESIGNED AS A LEGAL STANDARD OF CARE
EASCH OF THESE STANDARD CAN ALLOW FOR CHILDREN TO BECOME POISONED, TO MEET ANY OF THESE STANDARDS REQUIRES MONEY

## State Statutory Standards

- State Statutes
- Interpreted by state agencies
- Local Ordinances
- Interpreted by local agencies

## Private Standards

- National Association of Home Builders
- American Society of Testing and Materials
- Code Organizations
- International Code Council
- Southern Building Codes
- Codes apply only if governments adopt them
- Or if you have a *really smart lawyer*

## Policy Implications

- HUD Standards Required to be met in Federal Housing
- HUD Section 8 Housing, Indian Housing, DOD Housing
- OSHA only applies in worker setting
- Employee/employer setting
- EPA, CDC in very specific circumstances
- Only force of law is if a state or local government adopts it as law

**Notes:**
HUD’s Standards apply to HUD housing; that’s what they were designed for; not for private residential housing

Indian Housing was considered in HUD housing, though not the primary housing 

Dept. of Defense housing was included as federal housing; however DoD will only comply as funding is available; DoD only MUST comply when they sell their housing

EPA’s Section 403; no enforcement authority behind it; not developed for an EPA clearance level, not designed for a specific mandate;
	simply created as guidance; intent is simply health-based standards
	403 followed the UBK model
	State or local government can use these standards in their work practices or clearance levels, or they may use other standards

## Policy Implications

- Insurance may require property to meet state/federal standards
- Lending Institutions may require properties meet a standard
- Courts may accept a state/federal standard as legal standard of care

**Notes:**
What could make these stds important
If insurance industry requires property owners to meet std for homeowners ins.
If mortgage cos. Refuse to lend unless property meets std.
If courts begin to use these std as legal std. Of care.

## Causes of Action

- Fraud and Concealment
- Civil Conspiracy
- Strict Product Liability - Failure to Warn including Claim for Market Share Liability
- Strict Product Liability - Including Claim for Market Share Liability
- Negligence - Including Claim for Market Share Liability
- Nuisance
- Unjust Enrichment
- Indemity

## The Healthy Homes Initiative: The Role of Law

- Doug Farquhar, JD
- National Conference of State Legislatures
- 7700 East First Place
- Denver, CO  80230
- 303/856-1397
- Doug.farquhar@ncsl.org