     Case: 17-60640      Document: 00514854875         Page: 1    Date Filed: 02/28/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 17-60640
                                                                                FILED
                                                                         February 28, 2019
                                                                           Lyle W. Cayce
CLARENCE SHED,                                                                  Clerk

              Plaintiff - Appellant

v.

JOHNNY COLEMAN BUILDERS, INCORPORATED; JOHNNY COLEMAN,
doing business as Johnny Coleman Companies, L.L.C.; SHERRY MAGGIO
FLYNN,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:16-CV-171


Before STEWART, Chief Judge, SOUTHWICK and ENGELHARDT, Circuit
Judges.

PER CURIAM:*
       The district court granted summary judgment denying the plaintiff’s
claim that he was injured while residing in a house rented from the defendant.
Nothing in the record supports the contention that the plaintiff’s injury was a
result of any breach of the defendant’s obligations to him. We AFFIRM.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-60640
              FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiff Clarence Shed rented a home located in Southaven, Mississippi,
from Johnny Coleman Companies, LLC. Shed signed a lease agreement on
December 4, 2013, and Sherry Flynn signed on behalf of Coleman. In January
2014, Shed discovered that his shoes were covered with a “green substance.”
About March 25, 2014, Shed informed Flynn that there was a mold problem in
the master bathroom closet, and that he was treated by a physician for
symptoms that could be related to mold exposure.          Flynn inspected the
premises the next day. She noticed stains on the carpet, that the carpet was
damp, a musty smell, swirls of green, and wet areas on the exterior walls.
Flynn contacted a roofer because she believed there was a leak in the roof
causing rainwater to drain into the attic.
      On March 27, the roofer confirmed there was a water leak at the water
heater vent in the roof. Neither party disputes that this leak was caused at
least in part by a recent hard rain storm. The next day, on March 28, Shed
arranged for a home inspector to evaluate the house for mold. The inspection
confirmed elevated levels of mold spores in the master closet. On April 2, Shed
told Flynn about the results of the inspection and said he would have to move
out. The defendant terminated the lease on April 6, and Shed moved out.
      On April 11, Dr. Cheryl Winfrey examined Shed. The doctor’s medical
notes state that Shed had a rash, that he had good air movement, and that he
had been exposed to mold. On April 25, Shed was examined by Dr. Joy Burbeck
and diagnosed with shortness of breath and reactive airways. Dr. Burbeck
believed those problems were “most likely precipitated by heavy black mold
exposure.” Finally, on April 27, Dr. Keith Berndston examined Shed and
concluded that his lower legs and arms had rashes that were consistent with
known allergic reactions to the mold that was “found in the Mississippi home.”
Dr. Berndston also wrote in his medical notes that Shed believed he developed
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                                 No. 17-60640
a chronic inflammatory response to mold when he lived in the house rented
from Coleman.
      In July 2016, Shed brought suit against Coleman in the United States
District Court for the Northern District of Mississippi, claiming, among other
things, breach of contract, fraud and negligent misrepresentation, tortious
breach of the implied warranty of habitability, and negligence per se, all
stemming from the mold discovered in the rental. After initial discovery,
Coleman moved for summary judgment. In August 2017, the district court
granted the motion, primarily based on Shed’s lack of evidence of causation.
Shed filed a timely appeal.
                                DISCUSSION
      On appeal, we review the grant of “summary judgment de novo, applying
the same legal standards as the district court applied to determine whether
summary judgment was appropriate.” Lifecare Hosps., Inc. v. Health Plus of
La., Inc., 418 F.3d 436, 439 (5th Cir. 2005). Summary judgment should not be
granted unless after “viewing the evidence in the light most favorable to the
nonmoving party, no genuine issue of material fact exists, and the moving
party is entitled to judgment as a matter of law.” Flock v. Scripto-Tokai Corp.,
319 F.3d 231, 236 (5th Cir. 2003). Because our review is de novo, we need not
agree with the district court’s analysis but instead may affirm “on any grounds
supported by the record.” Lifecare Hosps., 418 F.3d at 439.
      Shed on appeal presents arguments only about his negligence and
implied warranty of habitability claims for both personal injury and property
damage. Thus, we do not discuss any of the other rejected claims. In this
diversity suit, we apply Mississippi law to the claims. McKee v. Brimmer, 39
F.3d 94, 96 (5th Cir. 1994). That state’s Supreme Court has recognized an
implied warranty of habitability in rental housing, requiring landlords to
provide “reasonably safe premises at the inception of a lease, and to exercise
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                                        No. 17-60640
reasonable care to repair dangerous defective conditions upon notice of their
existence by the tenant, unless expressly waived by the tenant.” Sweatt v.
Murphy, 733 So. 2d 207, 210 (Miss. 1999) (quoting Justice Sullivan’s
concurring opinion in O’Cain v. Harvey Freeman & Sons, 603 So. 2d 824, 833
(Miss. 1991)). 1 The implied warranty of habitability permits recovery under
both contract and tort law. Sample v. Haga, 824 So. 2d 627, 631 (Miss. Ct.
App. 2001).
      To state a claim of negligence or a breach of the implied warranty of
habitability, Shed is “required to show duty, breach, causation, and damages,
and [Coleman is] entitled to raise the standard tort defenses, such as
contributory negligence, unforeseeability or intervening cause.” Murphy, 733
So. 2d at 211-12 (quoting O’Cain, 603 So. 2d at 833) (Sullivan, J., concurring)).
Coleman argues that Shed produced no evidence to show that its conduct
proximately caused Shed’s injuries. Coleman argues that Shed was required
but failed to produce an expert opinion that the mold in the home caused Shed’s
injuries or that even linked its actions to the spread of mold in the home.
      The first claim we analyze is the one for physical injury arising from the
presence of mold in the leased premises. Such a claim is one for a toxic tort.
To establish causation in toxic tort cases, general causation first must be
shown, then specific causation. Knight v. Kirby Inland Marine Inc., 482 F.3d
347, 351 (5th Cir. 2007). General causation means that a substance is capable
of causing a particular injury; specific causation looks to whether the substance
caused the specific plaintiff’s injury. Id. Shed has inferentially provided some
evidence of general causation in the form of his medical records, where a doctor
stated that his injuries were consistent with mold exposure. However, while
that statement can be viewed as evidence supporting general causation, the


      1   Justice Sullivan’s concurrence was joined by a majority of the justices.
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                                  No. 17-60640
medical records do not contain sufficient information to show that the mold in
the Coleman rental home caused his specific injuries.
      Shed attempts to analogize his case to Curtis v. M&S Petroleum, Inc.,
174 F.3d 661 (5th Cir. 1999).      There the court found that an industrial
hygienist’s expert testimony was sufficient to establish a dispute of material
fact on causation in a toxic tort case. Id.at 668-72. That case differs materially
from this one. The expert in Curtis was aware that the levels of the toxic
substance to which the plaintiff was exposed greatly exceeded the permissible
exposure level. Id. at 670-72. Here, there is no evidence or testimony from the
doctors who treated Shed concerning the levels of exposure to mold experienced
by Shed. Furthermore, unlike the expert in Curtis who concluded that the
toxic substance had caused the plaintiff’s injury, Shed’s doctors observed that
the injuries were consistent with mold exposure without concluding that mold
was in fact the cause. Therefore, Shed has failed to produce sufficient evidence
to create a material issue of fact that the mold in his rental unit caused his
physical injury.
      Shed also has a property damage claim. A landlord has liability when it
fails “to exercise reasonable care to repair dangerous conditions upon notice of
their existence by the tenant.” Murphy, 733 So. 2d at 211 (quoting O’Cain, 603
So. 2d at 833 (Sullivan, J., concurring)). Further, a “landlord/lessor must have
actual or constructive knowledge of the defect and a reasonable opportunity to
make repairs.” Dulin v. Sowell, 919 So. 2d 1010, 1013 (Miss. Ct. App. 2005).
In Dulin, the tenant claimed that moisture on the concrete floor of the
property’s garage, which was a recurring problem, caused her to slip and fall.
Id. at 1012. The tenant had never informed the landlord of the problem, and
there was no evidence that the landlord was otherwise aware of the condition.
Id. at 1013. The claim was properly denied. Id.


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                                 No. 17-60640
      Here, Shed has produced no evidence that Coleman should have
discovered the roof defect that caused the water leak through the exercise of
reasonable care or had actually been aware of it prior to being notified by Shed
in late March 2014. To the contrary, the only evidence on the point is that it
was not until after a hard rain storm that the defect was revealed. Further, it
is undisputed that Coleman addressed the mold problem once notified. See
Dulin, 919 So. 2d at 1013 (holding that a landlord must be given a reasonable
opportunity to repair a defect upon notice).
      AFFIRMED.




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