What's that smell?

Protect yourself from personal injury lawsuits related to fumes and vapors

When you consider your exposure to personal injury lawsuits, you probably think of falls; they continue to be the leading cause of injury and death on construction sites. But some roofing contractors have found themselves on the receiving end of personal injury claims from building occupants or others who allege they have been injured by fumes or vapors emitted from roofing products.

Roofing contractors generally do not consider the materials they use regularly to be hazardous to human health. Many roofing workers use asphalt products, adhesives, coatings, solvents, felts, insulation boards, emulsions and polymer-modified bitumen products daily for years without adverse health effects. Nevertheless, and without any predictable pattern, lawsuits alleging injury from these products are filed, and the claims can reach millions of dollars.

Alleged health effects

Material safety data sheets (MSDSs) applicable to commonly used roofing products describe "worst case" potential adverse health effects that might result from exposure to these products. MSDSs typically describe the health effects that could result from high, intense, concentrated or prolonged exposure to products, not the exposure that occurs during a single roofing project. Additionally, product manufacturers may include the most remote and unlikely potential health hazards associated with exposure to a product on an MSDS to avoid potential legal action resulting from not mentioning possible hazards.

Given the multitude of possible health hazards listed on MSDSs, it is not surprising plaintiffs allege a wide range of injuries caused by inhalation of or exposure to fumes or vapors emitted from roofing products. Eye, nose and throat irritation, chest pain, difficulty breathing, nausea, headaches and memory loss have been alleged in fume exposure cases. Asthmatic conditions, including occupational asthma and irritant-induced asthma, and other disorders, some recognized and some controversial, also have been alleged by plaintiffs.

Potential legal liability

If you install materials that emit fumes, you face a risk of being sued for fume-related bodily injury. Lawsuits alleging fume-related personal injury can be considered part of a larger subsection of civil court cases called "toxic torts" in which a plaintiff alleges exposure to a toxic substance caused his or her injury. The lawsuits may be brought against product manufacturers, sellers or those who use toxic substances or products that contain them. Toxic torts include claims for personal injury allegedly caused by the presence of mold; use of consumer or industrial products, pharmaceuticals or construction materials; or contaminants expelled as a result of particular manufacturing methods.

The typical claim for fume-related bodily injury alleges negligence or strict liability on a contractor's part for failing to warn and/or take appropriate steps to protect third parties who allegedly were exposed to harmful fumes.

However, depending on the circumstances, a plaintiff may file suit based on other legal theories such as breach of warranty, negligence per se (negligence based on the violation of a statute, building code, ordinance or other law), trespass (an illegal act committed against a person or that person's property), fraud or negligent misrepresentation. In the end, whether a contractor is liable for the bodily harm claimed often comes down to the foreseeability of the harm that occurred and whether appropriate action was taken to protect against the harm.

Generally, you are more likely to be held liable for fume-related physical injuries if you could have reasonably anticipated physical injuries would occur as a result of using a specific product or installation method. Conversely, you generally will not be liable for these claims if you could not have reasonably anticipated the injury that occurred as a result of your actions.

In Swan v. I.P. Inc., a case before the Supreme Court of Mississippi, a school teacher filed suit against a product manufacturer, a roofing company and the roofing company's president to recover for alleged injuries she sustained as result of exposure to fumes emitted during the application of spray polyurethane foam (SPF) used to reroof a school. The SPF used contained small amounts of a toxic ingredient methylene diphenyl isocyanate, or MDI.

The teacher alleged she was exposed to a "yellow mist" that was dispersed into her classroom and into the school's common areas during the roofing contractor's multiday SPF application. As a result of the exposure, the teacher alleged multiple adverse health effects, including nausea, stinging in her eyes, sharp pains in her chest and shoulders, throat irritation, headaches, vertigo, weakness in the right side of her body, memory loss, lung problems and permanent brain damage.

With regard to the teacher's claims that the roofing contractor was negligent for exposing her to the allegedly dangerous SPF mist, the contractor argued he could not have been negligent because injury to those in the vicinity of the work was not reasonably foreseeable. The roofing contractor claimed he had never received any complaints from bystanders claiming injury from spraying operations in the past and that the manufacturer's representatives visited the job site and observed the roofing contractor applying the SPF during school hours but never instructed the contractor to discontinue the application while school was in session.

Despite the roofing contractor's arguments, the court found there was evidence the roofing contractor could have foreseen and did foresee potential injury to bystanders. The contractor's mechanics wore respirators while performing their work, the contractor took precautions to ensure classroom windows were closed during spraying operations and the contractor used safeguards to prevent bystanders from entering the work area. Also, before the teacher's exposure, the school principal informed the roofing contractor several children had complained mist from the spray was irritating their eyes.

Another important factor in the court's decision was the roofing contractor typically would ask the manufacturer of any product used for the product's MSDS and technical information before commencing work to determine whether there were any specific hazards with using that particular product. On this project, the roofing contractor apparently did not request any information from the manufacturer as required under the Occupational Safety and Health Administration's (OSHA's) hazard communication standard.

Regardless of the specific cause of action on which a plaintiff relies, he or she may seek to recover damages for medical conditions alleged to have been caused by the exposure, including medical expenses, lost income and loss of consortium (the plaintiff's inability to have normal marital relations with his or her spouse). A plaintiff also may seek damages for future medical conditions that are known to develop as a result of the plaintiff's current alleged medical conditions, pain and suffering, and mental distress that may have resulted from the plaintiff's current condition or the fear of developing related medical problems. Depending on the plaintiff's age, income and the extent of injuries, claims for medical expenses and lost income can reach into the millions of dollars. This also is true of intangible losses such as pain and suffering and mental distress.

In a recent case that has garnered a fair amount of media attention, several air traffic controllers from Florida's Jacksonville International Airport and their spouses sued a roofing contractor who replaced the roof system on an air traffic control tower, seeking tens of millions of dollars in collective damages.

During the course of installation, some roofing adhesive leaked into the building. The air traffic controllers claimed because of permanent side effects resulting from exposure to the adhesive fumes, including alleged neurological, cardiac and pulmonary problems, they no longer could perform their jobs for which they received six-figure salaries. The number of plaintiffs, combined with their relatively young ages, high salaries and extensive alleged injuries, resulted in a high-dollar claim.

In extreme cases, a plaintiff also may be allowed to recover punitive damages from a defendant when the evidence shows the defendant's conduct was especially reckless or intentional.

How to reduce liability

The public's general perception of roofing contractors makes them easy targets for personal injury claims. Given the litigious environment in which we live, take proactive steps to reduce the possibility of such claims.

Because the typical claim for fume-related bodily injury alleges negligence for failing to appropriately recognize, warn and/or protect foreseeable parties from fume-related bodily injuries, you should develop good working relationships with product manufacturers before using certain products at particular jobs. You should meet with manufacturers' safety representatives to gain a better understanding of the products, including any risks associated with their use. During these meetings, ask about practical guidelines the manufacturer recommends for safe use of its products. With this information, you will be able to make a fully informed decision about which products are safe and which products should be avoided.

Once you have elected to perform a particular job, also meet with the manufacturers of the products specified for the project, design professional, building owner and/or general contractor early in the bidding or project planning stage to establish a site-specific plan to minimize and manage the risks of harmful emissions to third parties during roofing work, and define any specific steps that will be implemented and each party's responsibilities.

At these meetings, discuss the potential harmful health effects of the specific products to be used and seek additional advice from manufacturers regarding how to protect those in the work area against injury. In particular, inquire as to whether normal use of a proposed product could expose bystanders or others in the work area to concentrations of potential hazardous chemicals exceeding OSHA's permissible exposure limits. If this is a possibility, an alternative product should be considered.

Obtain any applicable MSDSs and other available product literature for the roofing products that have been proposed or specified. Even if a manufacturer claims a particular product is safe, review MSDSs thoroughly to assess potential health hazards. If, after reviewing an MSDS and discussing the potential risks of using a particular product with those involved in the project, alternative products are identified that can reduce or eliminate the potential for third-party exposure to fumes, those products should be considered.

All applicable product literature, including MSDSs, should be kept on hand at the project site and distributed to all parties involved with the project, including the building owner. OSHA allows contractors to use an electronic MSDS management system; however, you must have an adequate backup system in place for emergency situations such as power outages or equipment failures. An electronic MSDS management system must be integrated into your overall hazard communication plan. Also, employees must be provided with hard-copy access if requested.

Before implementing an electronic MSDS management system, you should review OSHA's letter of interpretation, "Clarification of systems for electronic access to MSDSs," as well as the 1998 directive, "Inspection Procedures for the Hazard Communication Standard."

When developing the schedule of work with a building owner or general contractor, the likelihood of third-party fume exposure should be discussed. If a particularly hazardous product has been specified, the parties may choose to schedule the roofing work during periods when traffic in the work area is limited or eliminated completely. For instance, work could be performed after work hours or on weekends.

When using less dangerous products, the parties still may consider scheduling roofing work around periods when people are less likely to enter and leave the building, such as the beginning or end of the work day or lunchtime. Before beginning work, the parties also may choose, where appropriate, to disable or cover HVAC units that may circulate fumes throughout the building.

If a building owner, general contractor or design professional requires the use of a product that may emit potentially harmful fumes or the use of such a product is otherwise required because of the project's specific circumstances, it is advisable to include fume-related indemnification provisions in your contract(s). You also may attempt to negotiate the inclusion of a similar provision in your licensed applicator agreements with manufacturers of potentially harmful products that likely will be used. Of course, if fume-emitting work is subcontracted to another roofing contractor, indemnification language should appear in your subcontract with the subcontractor.

The following language is appropriate for insertion into your contract with a building owner or general contractor: "[Owner/Contractor] acknowledges that certain roofing products may emit fumes, odors and vapors during normal roofing operations and that these products may be used during Roofing Contractor's work. [Owner/Contractor] shall be responsible for interior air quality, including controlling mechanical equipment, HVAC units, intake vents, wall vents, windows, doors and other openings to prevent fumes, odors and vapors from entering the building. [Owner/Contractor] shall protect, indemnify and hold harmless Roofing Contractor from and against any claims, damages, losses and expenses, including, but not limited to, attorneys' fees, arising out of or resulting from the emission of fumes and vapors during Roofing Contractor's work."

Before entering into any licensed applicator agreement with a manufacturer whose products emit fumes that could be the basis of a claim, negotiate to include language similar to the following in your licensed applicator agreement: "Manufacturer shall protect, indemnify and hold harmless Roofing Contractor from and against any claims, damages, losses and expenses, including, but not limited to, attorneys' fees, arising out of or resulting from the emission of fumes and vapors from Manufacturer's products during Roofing Contractor's work, provided Roofing Contractor adheres to Manufacturer's specifications for use of such products."

Manufacturers may not agree to such language. In the event a manufacturer is unwilling to assume such liability, it becomes even more critical to include the proper language in your contract with the building owner or general contractor.

Insurance coverage is a central aspect of managing potential liabilities. Commercial general liability (CGL) policies invariably include "total" or "absolute" pollution exclusions. This exclusion excludes coverage for bodily injury or property damage claims "arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants" at or from any premises, site or location where the insured is performing operations. "Pollutants" is broadly defined in the policy to include "any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste."

Despite the broad, all-encompassing language in the pollution exclusion, courts have taken differing views on its scope and applicability to claims arising from the normal operations of an insured contractor who has purchased CGL insurance coverage.

Courts in some states, including Arizona, California, Illinois, Maine, New Jersey and New York, have interpreted the exclusion to apply only to traditional environmental pollutants. Others, including courts in Colorado, Florida and Pennsylvania, have applied the pollution exclusion literally and much more broadly, considering it to be "absolute" so as to exclude coverage for all claims based on release of fumes and vapors from normal construction operations.

Regardless of how a court interprets the pollution exclusion, your insurer is likely, at least as an opening position, to deny coverage for a bodily injury claim made against you arising from the use of a roofing product because your CGL policy includes a pollution exclusion.

When making insurance purchasing decisions, ask your insurance adviser and carriers to ascertain whether certain policies include coverage for claims that may be attributed to emissions from normal roofing operations. Rather than relying on a narrow court interpretation of a pollution exclusion, which may be overruled by a subsequent decision from a higher court, investigate purchasing a separate pollution or other policy that will not exclude claims based on fumes and vapors emitted from products used in normal operations.

During the actual work, your crew should follow manufacturers' recommendations for use of fume-emitting products. Additionally, you may choose to use fume recovery equipment or filtration systems that can minimize or eliminate fume emissions altogether. Finally, coordinate with the building owner and general contractor to ensure any complaints regarding vapor or fume emissions or exposure are taken seriously, documented thoroughly and, if appropriate, addressed immediately.

A multifaceted approach

Understanding and managing the inherent risks associated with fume-emitting products requires a multifaceted approach. Work with others involved with a project to evaluate and assess the products to be used, identify potential detrimental physical effects of any resulting vapor or fume exposure to third parties in the work area, and develop a plan to prevent such exposure.

Also, consider including provisions in your contracts, subcontracts and licensed applicator agreements so the parties who sell the products or require the use of such products are responsible for any resulting claims, provided you install the materials as proscribed. In addition, obtain insurance coverage so that the risks arising from fume or vapor exposure are covered.

David M. Gersh is an attorney with Atlanta-based law firm Hendrick, Phillips, Salzman & Flatt.



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