The Healthy Homes Initiative: The The Healthy Homes Initiative: The Role of LawRole of Law

Doug Farquhar, JDDoug Farquhar, JDNational Conference of State LegislaturesNational Conference of State Legislatures

Denver, ColoradoDenver, Colorado

Standard of Care for Housing

• Hazardous Building Materials (VOCs, Pb, Asbestos)Hazardous Building Materials (VOCs, Pb, Asbestos)– Toxics unsafe at any speedToxics unsafe at any speed

• No amount is healthfulNo amount is healthful• Levels determined to be acceptable have been later determined Levels determined to be acceptable have been later determined

to be harmfulto be harmful

• Hazards in the homeHazards in the home– Faulty wiringFaulty wiring– Gas FurnacesGas Furnaces– FallsFalls

• Who's at fault????Who's at fault????

We must think like lawyersWe must think like lawyers

"You come into law school with a mind of mush, you leave

thinking like a lawyer."

Legal Standard of Care

• Reasonable PersonReasonable Person: the degree of care that : the degree of care that a person of ordinary prudence would exercise a person of ordinary prudence would exercise in the same or similar circumstances; the in the same or similar circumstances; the standard in which a property owner must standard in which a property owner must observe to avoid liability for harm from health observe to avoid liability for harm from health hazards in the buildings he ownshazards in the buildings he owns

• Defined by court casesDefined by court cases (legal precedence); (legal precedence); based on the foreseeability of harm to the based on the foreseeability of harm to the plaintiff (was it reasonable for the owner to plaintiff (was it reasonable for the owner to foresee the hazard or dangerous outcome)foresee the hazard or dangerous outcome)

Statutory Standard of Care• Based on Based on Statutory or Regulatory lawStatutory or Regulatory law; ;

takes precedence over legal standard of takes precedence over legal standard of carecare

• Determined either by agency personnel Determined either by agency personnel through regulatory process, or mandated through regulatory process, or mandated by legislature/Congress in statuteby legislature/Congress in statute– Supreme CourtSupreme Court gives "great deference" to gives "great deference" to

agency decisions (agency decisions (Chevron CaseChevron Case))

Statutory Standards

• Federal RegulationsFederal Regulations– HUD RegulationsHUD Regulations– EPA RegulationsEPA Regulations– OSHA RegulationsOSHA Regulations– CDC GuidelinesCDC Guidelines

• Though only guidelines, can demonstrate Though only guidelines, can demonstrate to a court a standard of careto a court a standard of care

State Statutory Standards

• State StatutesState Statutes– Interpreted by state Interpreted by state

agenciesagencies

• Local OrdinancesLocal Ordinances– Interpreted by local Interpreted by local

agenciesagencies

Private Standards

• National Association of Home BuildersNational Association of Home Builders• American Society of Testing and MaterialsAmerican Society of Testing and Materials• Code OrganizationsCode Organizations

– International Code CouncilInternational Code Council– Southern Building CodesSouthern Building Codes

• Codes apply only if governments adopt themCodes apply only if governments adopt them• Or if you have a Or if you have a really smart lawyerreally smart lawyer

Policy Implications• HUDHUD Standards Required to be met in Standards Required to be met in

Federal HousingFederal Housing– HUD Section 8 Housing, Indian Housing, DOD HUD Section 8 Housing, Indian Housing, DOD

HousingHousing

• OSHAOSHA only applies in worker setting only applies in worker setting– Employee/employer settingEmployee/employer setting

• EPA, CDCEPA, CDC in very specific circumstances in very specific circumstances– Only force of law is if a state or local government Only force of law is if a state or local government

adopts it as lawadopts it as law

Policy Implications

• InsuranceInsurance may require property to meet may require property to meet state/federal standardsstate/federal standards

• Lending InstitutionsLending Institutions may require may require properties meet a standardproperties meet a standard

• CourtsCourts may accept a state/federal may accept a state/federal standard as legal standard of carestandard as legal standard of care

Causes of ActionCauses of Action Fraud and Concealment Civil Conspiracy Strict Product Liability - Failure to Warn including

Claim for Market Share Liability Strict Product Liability - Including Claim for Market

Share Liability Negligence - Including Claim for Market Share

Liability Nuisance Unjust Enrichment Indemity

The Healthy Homes Initiative: The The Healthy Homes Initiative: The Role of LawRole of Law

Doug Farquhar, JDNational Conference of State Legislatures7700 East First PlaceDenver, CO 80230303/856-1397Doug.farquhar@ncsl.org