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 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
