A Collinsville property management company alleges that concealed mold was an open and obvious condition on one of its rental properties in a family’s lawsuit alleging the mold made them sick.
Eric and Amanda Zimmerman, individually and as next friend of minors E.Z. and A.Z., filed the lawsuit on Oct. 15 against Horrell Homes Property Management and Jennifer Ingles of Fort Myers, Fla., who owned the rental property.
According to the complaint, the Zimmermans signed a lease with Ingles on Sept. 30, 2013, who allegedly did not allow them to see the basement during an inspection. The plaintiffs allege Ingles said they were unable to go in the basement because her dogs were down there. However, the plaintiffs claim she knew that mold was present and was attempting to conceal it.
Then on Nov. 1, 2013, the plaintiffs moved in and began experiencing recurrent respiratory issues, including wheezing, coughing, eye inflammation and headaches, among other issues.
While moving boxes into the basement in June 2014, the plaintiffs claim they discovered mold covering the walls of the front room, which had been painted in an attempt to hide it, the suit states.
The Zimmermans allegedly sent the mold out for testing when it revealed four different types of mold. They moved out shortly after the discovery.
The plaintiffs allege negligence and fraudulent concealment of mold against the defendants. They seek redress under the Family Expense Act, because the minors were hospitalized and the plaintiffs have incurred medical expenses.
Horrell Homes answered the complaint on Nov. 25 through attorneys Martin Daesch and Jeff Wehmer of Sandberg Phoenix & von Gontard in St. Louis. The defendant asserted 23 affirmative defenses against the Zimmermans, arguing that the plaintiffs’ claims are barred.
The defendant also denies that the plaintiff suffered injuries or that any defendant is liable.
It also argues that the alleged conditions of the property were open and obvious conditions, “or would have been open and obvious to plaintiffs had plaintiffs been diligent in their inspection of the premises.”
Horrell Homes also alleges the claims are barred “because the injuries allegedly sustained by plaintiffs were proximately caused by plaintiffs’ free and voluntary acts of knowingly and voluntarily placing themselves in a position of danger and thus assuming the risks ordinarily incident to such acts.”
The plaintiffs answered the affirmative defenses on Dec. 21. They argue that the defendant failed to offer any factual basis for asserting its affirmative defenses. They claim the affirmative defenses are inadequate at law and should be stricken.
Ingles answered the complaint on Dec. 3. She argues that any alleged injuries were not caused by any omission or breach of duty on her part. Instead, she claims the alleged injuries were caused by the plaintiffs’ own negligence, fault and assumption of risk.
The plaintiffs seek damages of at least $50,000 for each count and for each family member, plus court costs and attorney’s fees.
They are represented by Chad Mooney and Ryan Mahoney of Cates Mahoney in Swansea.
St. Clair County Circuit Court case number 15-L-592