Dacey v. Homestead Design, No. S0014-01 CnC (Katz, J., Oct. 22, 2003)

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STATE OF VERMONT SUPERIOR COURT

Chittenden County, ss. : Docket No

. S0014-01 CnCv

DACEY

V.

HOMESTEAD DESIGN

ENTRY

This is a sick building case. Plaintiffs assert t hat the negligent construction of their home’s air circulation system contaminated their newly constructed home with dust, dirt, and black s oot. They claim defendants are liable for resulting physical and ec onomic harm under a myriad of theories—product liability, negligent con struction supervision, breach of implied warranty, and consumer fraud. De fendant HomesteadDesign moves for summary judgment on the basis that plaintiffs have not proffered any admissible evidence that the black so ot in their home caused them damages. Plaintiffs, Mr and Mrs. Dacey, purchased a new hom e constructed by defendant Homestead Design. Soon after they mov ed into their new home, plaintiffs noticed accumulations of a black s oot-like substance. Defendant Homestead design advised plaintiffs that such accumulations resulted from plaintiffs use of candles and oil lam ps. The accumulations continued for the next several months and both plai ntiffs experienced irritation in their throats and eyes. Mr. Dacey’s p hysician advised him that the dust particles could aggravate his pulmonary di sease and suggested that he reside elsewhere until the dust and soot problem was resolved. Plaintiffs subsequently moved out of the home. An inspection o f the duct system

revealed that it contained debris. The duct work w as replaced and the black

dust has not reoccurred.

Plaintiffs first argument against summary judgment is that even with out evidence, their claims may be proved by the doc trine of res ipsa loquitur . This doctrine recognizes that sometimes mere pro of of an event proves negligence–in other words, “the event speaks for itself.” McDonnell v. Montgomery Ward , 121 Vt. 221, 226 (1959). However, liability unde r

res ipsa may only be established upon plaintiffs’ showing t hat (1) defendant owed plaintiff a duty of care; (2) the faulty produ ct was under defendant’s control and management at the time of the injury in such a way that there can be no question of defendant’s responsibility fo r the mishap; (3) the product for which defendant was responsible must ha ve caused the injury; and (4) the event is such that it would not have oc curred but for defendant’s

lack of care. Id . at 227.

Here, the product alleged to have caused plaintiff s’ injury, the ductsystem, cannot be said to have been within the defe ndant’s control and

management at the time of the injury. Id . Air circulation ducts, by their very nature are open and easily accessible. Outside air particles are able to enter into and freely circulate throughout duct sys tems. Plaintiffs own expert, the Air Doctor, was easily able to insert t hings into and inspect the ducts. In short, the ducts were too open and easil y accessible to said to be within defendant’s control and management in such a way that there can be no serious question of defendant’s culpability. He nce, the res ipsa doctrine is inapplicable here. We therefore move on to consider whether plaintiff s have sufficiently proved that they were harmed by the bl ack soot-like residue to avoid summary judgment on their negligence and prod uct liability claims. We begin by examining plaintiffs’s evidence of phys ical harm. This evidence consists of allegations in their complaint that they experienced eye and throat irritation and a letter from Mr. Dacey’s physician stating that his physical condition “could be worsened by inhaling f oreign dust particles.” Pl.’s Comp. at ¶ 10; Pl.’s Mot. Oppos. Summ. J., ex . B. Plaintiffs also offer evidence of tests conducted by the Air Doctor, but such tests only indicate that dust was present in their home and coming from within the duct system, not any resulting physical harm. Plaintiff s themselves sum up their allegations of physical harm by stating “ there can be no question that both of the Daceys were physically affected by the dust and contamination, even if no particular scar, illness, or other condition can be traced to it.” Pl.’s Mot. Opp. Summ. J. at 4.

Such vague statements of physical harm without pro of of actual physical injury cannot satisfy plaintiffs’s burden of showing evidence of physical injury. See , e.g. , Capital Holding v. Bailey , 873 S.W.2d 187, 192 (Ky 1994) ( holding that according to toxic tort re quirements, even when exposure and negligent conduct can be proved, a cas e must be dismissed ifplaintiff cannot prove present physical injury). A bare-bones doctor’s note

stating that plaintiff may suffer physical harm and should move out does not create enough proof to survive a summary judgme nt motion. As plaintiffs admit, no physical injury can be traced to the dust contamination and plaintiffs are left with only economic loss. E conomic loss, without accompanying physical injury or damage to other pro perty, is generally not recoverable in negligence law. Paquette v. Deere & Co , 168 Vt. 258, 261 (1998) (economic loss caused by product failure mus t be plead in contract or warranty, not product liability); O’Connell v. K illington Ltd , 164 Vt. 73, 77 (1995)(negligence law does not recognize a duty absent physical harm). Hence, we grant defendant’s motion for summary judg ment on plaintiffs’s negligence and product liability claims.

We next turn to plaintiffs’ consumer fraud complai nt. Plaintiffs contend that defendants “falsely represented the qu ality of construction and construction materials of the home.” Pl.’s Comp. at ¶ 28. However, the evidence proffered by plaintiffs does not suggest t hat they purchased the home on the basis of some deceptive omission by def endant. Peabody v. P.J.’s Auto Village, Inc. , 153 Vt. 55, 57 (1990). Instead, the evidence indicates that plaintiffs purchased a house with du ct work contaminated

with construction debris which caused soot-like acc umulations in their home. Such evidence does not show a deceptive act on the part of defendant. The purpose of Vermont’s Consumer Fraud Act is to protect the public from unfair or deceptive acts. 9 V.S.A. § 2 451. It requires a deceptive act by the seller and a reliance in the b uyer, and it punishes deceptive sellers based on an objective risk of con sumer harm even if there are no actual damages. Peabody , 155 Vt. at 57. This very specific and limited purpose cannot be invoked by plaintiffs to strengthen what is essentially a warranty claim. State v. Stedman , 149 Vt. 594, 597 (1988)

To allow a claim to survive on such scant evidence would undermine thepurpose of the Act, which balances the inequalities between retailers and

buyers by punishing certain types of dishonest beha vior. See , e.g. , Stedman , 149 Vt. at 598 (refusing to extend derivative lia bility for consumer fraud without direct participation). We therefore grant defendant’s motion for summary judgment on plaintif fs’s consumer fraud

claim.

This leaves us with plaintiffs’s claim of breach o f implied

warranties. Plaintiff has offered sufficient admis sible proof that the duct system was responsible for contaminating their home with dust. They present evidence that once the duct work was replac ed the dust accumulations disappeared. Hence, summary judgment is not appropriate

on this issue.

On plaintiffs remaining breach of warranty claim, we note that plaintiffs’s damages are based on the cost of tempo rary housing necessitated by physical injury. However, plaintif fs have not offered sufficient evidence of physical harm caused by the dust or soot-like residue to justify vacating their home for several weeks. We recognize that the law may allow recovery of a few days of hotel bills inc urred due to plaintiffs having to leave the home while the duct work was re placed, but the recovery of several weeks of hotel bills must be ju stified by some proof of actual physical harm. 9A V.S.A. § 2-715. The form er is a potentially reasonable expense associated with the breach of a warranty. The latter is supported only by a note from the plaintiff’s Docto r who does not point to any objective sign of illness or exacerbation but r ather the mere possibility of future harm, which cannot create liability in Ho mestead.

Defendant’s motion for summary judgment is granted for the claims of negligence, product liability, and consumer frau d, and the claim forexpenses of living outside the home.

Dated at Burlington, Vermont________________, 20__

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________________________ Judge