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

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

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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 that the negligent 

construction of their home’s air circulation system contaminated their 

newly constructed home with dust, dirt, and black soot. They claim 

defendants are liable for resulting physical and economic harm under a 

myriad of theories—product liability, negligent construction supervision, 

breach of implied warranty, and consumer fraud. Defendant Homestead 
Design moves for summary judgment on the basis that plaintiffs have not 

proffered any admissible evidence that the black soot in their home caused 

them damages. 

 Plaintiffs, Mr and Mrs. Dacey, purchased a new home constructed 

by defendant Homestead Design. Soon after they moved into their new 

home, plaintiffs noticed accumulations of a black soot-like substance. 

Defendant Homestead design advised plaintiffs that such accumulations 

resulted from plaintiffs use of candles and oil lamps. The accumulations 

continued for the next several months and both plaintiffs experienced 

irritation in their throats and eyes. Mr. Dacey’s physician advised him that 

the dust particles could aggravate his pulmonary disease and suggested that 

he reside elsewhere until the dust and soot problem was resolved. Plaintiffs 

subsequently moved out of the home. An inspection of the duct system 

revealed that it contained debris. The duct work was 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 doctrine of res ipsa

loquitur. This doctrine recognizes that sometimes mere proof of an event 

proves negligence–in other words, “the event speaks for itself.” McDonnell 

v. Montgomery Ward, 121 Vt. 221, 226 (1959). However, liability under 

res ipsa may only be established upon plaintiffs’ showing that (1) defendant 

owed plaintiff a duty of care; (2) the faulty product 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 for the mishap; (3) the 

product for which defendant was responsible must have caused the injury; 

and (4) the event is such that it would not have occurred but for defendant’s 

lack of care. Id. at 227. 

 Here, the product alleged to have caused plaintiffs’ injury, the duct 
system, cannot be said to have been within the defendant’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 systems. Plaintiffs own 

expert, the Air Doctor, was easily able to insert things into and inspect the 

ducts. In short, the ducts were too open and easily 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. Hence, the res ipsa doctrine 

is inapplicable here. 

 We therefore move on to consider whether plaintiffs have 

sufficiently proved that they were harmed by the black soot-like residue to 

avoid summary judgment on their negligence and product liability claims. 

We begin by examining plaintiffs’s evidence of physical 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 foreign 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. Plaintiffs 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 proof 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 requirements, even when 

exposure and negligent conduct can be proved, a case must be dismissed if 
plaintiff 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 judgment motion. As 

plaintiffs admit, no physical injury can be traced to the dust contamination 

and plaintiffs are left with only economic loss. Economic loss, without 

accompanying physical injury or damage to other property, is generally not 

recoverable in negligence law. Paquette v. Deere & Co, 168 Vt. 258, 261 

(1998) (economic loss caused by product failure must be plead in contract 

or warranty, not product liability); O’Connell v. Killington Ltd, 164 Vt. 73, 

77 (1995)(negligence law does not recognize a duty absent physical harm). 

Hence, we grant defendant’s motion for summary judgment on plaintiffs’s 

negligence and product liability claims. 

 

 We next turn to plaintiffs’ consumer fraud complaint. Plaintiffs 

contend that defendants “falsely represented the quality of construction and 

construction materials of the home.” Pl.’s Comp. at ¶ 28. However, the 

evidence proffered by plaintiffs does not suggest that they purchased the 

home on the basis of some deceptive omission by defendant. Peabody v. 

P.J.’s Auto Village, Inc., 153 Vt. 55, 57 (1990). Instead, the evidence 

indicates that plaintiffs purchased a house with duct work contaminated 

with construction debris which caused soot-like accumulations 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. § 2451. It requires a 

deceptive act by the seller and a reliance in the buyer, and it punishes 

deceptive sellers based on an objective risk of consumer 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 the 
purpose of the Act, which balances the inequalities between retailers and 

buyers by punishing certain types of dishonest behavior. See, e.g., 

Stedman, 149 Vt. at 598 (refusing to extend derivative liability for 

consumer fraud without direct participation). We therefore grant 

defendant’s motion for summary judgment on plaintiffs’s consumer fraud 

claim. 

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

warranties. Plaintiff has offered sufficient admissible proof that the duct 

system was responsible for contaminating their home with dust. They 

present evidence that once the duct work was replaced 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 temporary housing 

necessitated by physical injury. However, plaintiffs 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 incurred due to plaintiffs 

having to leave the home while the duct work was replaced, but the 

recovery of several weeks of hotel bills must be justified by some proof of 

actual physical harm. 9A V.S.A. § 2-715. The former is a potentially 

reasonable expense associated with the breach of a warranty. The latter is 

supported only by a note from the plaintiff’s Doctor who does not point to 

any objective sign of illness or exacerbation but rather the mere possibility 

of future harm, which cannot create liability in Homestead. 

 Defendant’s motion for summary judgment is granted for the claims 

of negligence, product liability, and consumer fraud, and the claim for 
expenses of living outside the home. 

 Dated at Burlington, Vermont________________, 20_______. 

 

 ________________________ 

 Judge