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 that 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. New residential structures constructed in Tier 1 Areas must be equipped with fully functional radon resistant 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 town homes 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 stated 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 supervisor. 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 plaintiff also introduced evidence of design and construction flaws. The plaintiffs’ expert said some of the systems were designed with a drainage pipe that was connected to a sump pit to transfer negative pressure to the neighboring unit, thereby reducing radon in both basements. However, the experts said that if the sub-surface system filled with water, this would interfere with the negative pressure system to the other unit, thereby allowing radon levels to rise in the basement.
The plaintiffs also provided evidence that many homes did not have sealed sumps covers and that the absence of the sealed covers prevented radon from being eliminated from the basements. The plaintiffs also showed that other homes had exterior exhaust pipes that terminated before reaching the roof or were located too close to upper story windows, allowing for reentry of radon through an open window. The plaintiffs’ experts also said that all of the outside mounted fans that were inspected had holes drilled into the pipe under the fan, which caused a loss of efficiency and premature fan failure. In all the homes with unfinished basements that were inspected, none of the floor to wall joints or cracks were sealed. In the opinion of the experts, 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).
No comments:
Post a Comment