A New Jersey court affirmed certification of a class action involving residents of a condominium complex who alleged that radon mitigation systems were improperly installed. The defendants are the developer, the engineering firm who installed the radon systems, and the condo association which was responsible for maintaining the radon mitigation systems at the villa residences.
The development known as Overlook at Lopatcong consists of 384 residential units comprised of 142 villas, 132 garden houses and 110 townhouses. The development is located in an area in New Jersey known as Tier 1 Area which requires new residential structures to be equipped with fully functional radon resistent construction pursuant to N.J.S.A. 5-23-10. The villas were constructed so that every two units shared a common basement and a radon mitigation system. The townhomes and garden homes each had their own systems.
The plaintiffs filed an eight-count complaint alleging defendants improperly designed, installed, maintained and tested the radon mitigation systems. Plaintiffs pled theories of negligence, gross negligence, trespass, nuisance, fraud, consumer fraud, and assault and battery; and sought injunctive relief, which included medical monitoring and periodic testing of radon levels in the residences. Plaintiffs subsequently moved for class certification.
To support their motion, plaintiffs submitted the certification of a former employee of the engineering firm assigned to the development, and three reports from their expert. The former employee averred that when many of the units were tested for radon before a certificate of occupancy was issued, the units were tested with doors and windows open as directed by a RAdata employee. He also said that one radon pump was used for multiple dwellings to save money, and many units had cracks in basement slabs because Segal would not pay for expansion joints.
The plaintiffs experts Some of the systems use the drainage pipe to the sump pit to transfer negative pressure to the neighboring unit, thereby reducing radon in both basements, but if the sub-drainage pipe fills with water, negative pressure to one unit is cut off allowing radon levels to rise in the basement. In many homes the sump covers were unsealed, which keeps radon from being eliminated from the basement. In other systems, exterior exhaust pipes terminated before reaching the roof and were thus too close to upper story windows, which can result in the reentry of radon through an open window. All of the [*5] outside mounted fans that were inspected had holes drilled into the pipe under the fan, which causes a loss of efficiency and premature fan failure. In all the homes with unfinished basements that were inspected, no floor to wall joints or cracks were sealed. In the expert's opinion, these and other deficiencies were sufficient to require that all units have radon tests performed.
In October 2010, the trial court certified a class of all current owners of units for negligence, gross negligence, nuisance and assault and battery claims. The court also certified a sub-class against the Condo Association of all current owners of villas for nuisance and trespass claims. The court also denied plaintiffs' motion to certify a class for fraud, consumer fraud, and the remedy of medical monitoring. In May, the appeals court affirmed the class certification. Casale v Segal & Morel et al. 2011 N.J. Super. Unpub. LEXIS 1228 (App. Div. 5/12/11).
Since radon mitigation systems are frequently used for vapor intrusion, this case could provide support for future vapor intrusion litigation.
The development known as Overlook at Lopatcong consists of 384 residential units comprised of 142 villas, 132 garden houses and 110 townhouses. The development is located in an area in New Jersey known as Tier 1 Area which requires new residential structures to be equipped with fully functional radon resistent construction pursuant to N.J.S.A. 5-23-10. The villas were constructed so that every two units shared a common basement and a radon mitigation system. The townhomes and garden homes each had their own systems.
The plaintiffs filed an eight-count complaint alleging defendants improperly designed, installed, maintained and tested the radon mitigation systems. Plaintiffs pled theories of negligence, gross negligence, trespass, nuisance, fraud, consumer fraud, and assault and battery; and sought injunctive relief, which included medical monitoring and periodic testing of radon levels in the residences. Plaintiffs subsequently moved for class certification.
To support their motion, plaintiffs submitted the certification of a former employee of the engineering firm assigned to the development, and three reports from their expert. The former employee averred that when many of the units were tested for radon before a certificate of occupancy was issued, the units were tested with doors and windows open as directed by a RAdata employee. He also said that one radon pump was used for multiple dwellings to save money, and many units had cracks in basement slabs because Segal would not pay for expansion joints.
The plaintiffs experts Some of the systems use the drainage pipe to the sump pit to transfer negative pressure to the neighboring unit, thereby reducing radon in both basements, but if the sub-drainage pipe fills with water, negative pressure to one unit is cut off allowing radon levels to rise in the basement. In many homes the sump covers were unsealed, which keeps radon from being eliminated from the basement. In other systems, exterior exhaust pipes terminated before reaching the roof and were thus too close to upper story windows, which can result in the reentry of radon through an open window. All of the [*5] outside mounted fans that were inspected had holes drilled into the pipe under the fan, which causes a loss of efficiency and premature fan failure. In all the homes with unfinished basements that were inspected, no floor to wall joints or cracks were sealed. In the expert's opinion, these and other deficiencies were sufficient to require that all units have radon tests performed.
In October 2010, the trial court certified a class of all current owners of units for negligence, gross negligence, nuisance and assault and battery claims. The court also certified a sub-class against the Condo Association of all current owners of villas for nuisance and trespass claims. The court also denied plaintiffs' motion to certify a class for fraud, consumer fraud, and the remedy of medical monitoring. In May, the appeals court affirmed the class certification. Casale v Segal & Morel et al. 2011 N.J. Super. Unpub. LEXIS 1228 (App. Div. 5/12/11).
Since radon mitigation systems are frequently used for vapor intrusion, this case could provide support for future vapor intrusion litigation.
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