Shannon Easley filed her complaint on Oct. 4 against Terra Properties Inc., Mary O’Neal, as trustee of O’Neal Trust, and Raz Repair Inc.
According to her complaint, Easley claims she suffered damages to her health after being exposed to black mold in her apartment. She alleges she was hospitalized, was forced to miss time from work and incurred medical expenses.
Easley alleges the defendants knew or should have known that the apartments were infested with black mold, that the mold posed a serious health threat to the tenants and the defendants failed to rectify the mold problem.
Raz Repair filed a combined motion to dismiss on Nov. 10 through attorney Jane Unsell of Unsell, Shattnik & Phillips. The defendant seeks to dismiss count IX of the complaint, which alleges negligence against the Raz Repair.
The complaint alleges Raz Repair has a contract with Terra Properties to provide repair services to the premises and failed to repair the alleged black mold problems.
The defendant argues that the plaintiff only alleged a duty through the contract, meaning a duty to a third-party only exists when the defendant performs negligent actions but not when no action is taken.
“As such, Plaintiff, as a third-party, must show a voluntary assumption of the duty to rectify her mold problem, which requires plaintiff to allege a misfeasance, or a negligent performance of a mold repair,” the motion states. “Plaintiff cannot rely on the non-feasance of a failure to act to remove mold.”
Regardless, Raz Repair argues that no contract between the defendant and Terra Properties exists.
The defendant alleges it does work for Terra Properties on a “per-order” basis, and it cannot enter the property or perform repair work without first being hired.
Easley answered the complaint on Dec. 7 through attorneys Brian Wendler and Angie Zinzilieta of Wendler Law in Edwardsville.
She argues that a party to a contract may be liable to a third party “who otherwise has no enforceable rights under the contract under a voluntary undertaking theory of liability.”
“In this case, Raz Repair voluntarily undertook the duty of providing repairs, including rectifying mold and plumbing issues, for the premises in question and the surrounding residential units.
“For consideration, Defendant rendered services to another which it should recognize as necessary for the protection of a third person, the plaintiff, or her things, and is subject to liability to the third person for physical harm resulting from its failure to exercise reasonable care.
“Defendant’s failure to exercise reasonable care while making repairs to the premises at issue and the surrounding units increased the risk of harm to the Plaintiff,” the response states.
Easley further argues that Raz Repair’s “per-order” repairs do not defeat her cause of action.
“Defendant’s argument that it was never directed or requested to repair any mold issue in specifically in Plaintiff’s apartment ignores the undisputed fact that the source of the mold in issue is attributed to a leaking water line in the apartments above Plaintiff’s apartment.
“Defendant was involved in the repair of that water line, a fact that Defendant does not dispute. Further, Defendant’s retention to maintain and repair the apartment building as whole is at issue, not merely a single unit as Defendant suggests,” the response states.
On Dec. 15, Madison County Circuit Judge Barbara Crowder called Raz Repair’s motion to dismiss for hearing following discovery.
Easley seeks a judgment in her favor of more than $50,000, plus court costs.
Madison County Circuit Court case number 16-L-1397
