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Click here for the full text of this decision FACTS: The Caldwells filed a suit against Curioni, their landlord, for personal injuries and property damage to their furniture and belongings allegedly caused by the exposure to mold. As foundation for their suit, the Caldwells claim that in response to a newspaper ad describing a rental property as “freshly redone,” they met Curioni’s agent and walked through Curioni’s house on Richland Drive on two occasions. During these visits, the Caldwells noticed an odor and questioned Curioni’s agent about it. The agent told them the prior tenants had pets, but that the carpets had been thoroughly and professionally cleaned. During their second visit to the property, the Caldwells signed a lease. A handwritten note was added to the lease indicating there was a residual pet odor for which the Caldwells would not be held responsible, and the property was “as-is with refrige. ice maker not working.” Within a week of moving into the property the Caldwells allege they and their infant son became ill with a variety of symptoms including headaches, fever, diarrhea, and congestion. Mrs. Caldwell’s sister, who came to stay with their son, noticed a swollen, water-damaged door, and upon further investigation, discovered greenish-black mold along the walls and in the carpet and carpet pad throughout the house. Mrs. Caldwell and her son moved out of the house that day. Mr. Caldwell stayed one more day, but after waking the next morning with severe nausea, vomiting, wheezing, and diarrhea, he also moved out. The Caldwells contacted Baker, a friend in the construction business, who inspected the property and opined that the property had previously been flooded. After more extensive analysis, Baker offered his opinion that there had been a single catastrophic event which had flooded the house and resulted in the growth of a large quantity of mold. Baker also offered his opinion that Curioni’s agent, as a former employee of a reputable drywall company, would have been aware of the dangers of mold at the time the Caldwells rented the property. Baker noted that the carpet tackboards had been freshly painted. He suggested this was an attempt to “cover up a serious problem.” Baker noted that the water heater bore a sticker indicating it was installed in September of 1999, and the water records for the property showed a spike in water usage in September of 1999. Baker offered his opinion that the water heater had ruptured, flooded the property, and been replaced. Additionally, Baker opined that the work done to make the property ready for occupancy was inadequate and that “[a] reasonably prudent person who is in the business of renting properties to the public should have known the harmful effects of mold and should have been aware of, and cured the existence of mold in the Richland house.” The Caldwells also offered the opinion of Porter, a licensed real estate broker, that “David Curioni should have been aware of, and remediated, the mold prior to renting his house to the Caldwells.” The Caldwells contacted the Texas State Department of Environmental Health, who advised them to stay out of the house until the mold problem was fixed and recommended they hire Hulla, an industrial hygienist. Hulla collected and tested mold samples from the property and reported he found several strains of mold, including stachybotrys, which produces a mycotoxin dangerous to humans. Also, Hulla reported on the amount of mold he discovered, but observed “[t]here are no established standards for permissible airborne fungal concentrations.” The Caldwells consulted various doctors for treatment for themselves and their son regarding continuing problems they allege were caused by the mold. Reports from their doctors attributing their problems to exposure to mold were offered as summary judgment evidence by the Caldwells. The trial court granted Curioni’s traditional and no-evidence summary judgment motions. The Caldwells brought this appeal. HOLDING: Reversed and remanded. The Caldwells offered the opinion of a construction expert who said that there was widespread mold growth throughout the house which had probably resulted from flooding caused by a ruptured water heater before the Caldwells had moved in. The expert offered his opinion that the dangers of mold at the time the Caldwells signed the lease were well-known, and that Curioni’s efforts to prepare the house for occupancy were “so lacking as to be non-existent.” The expert noted that the carpet tackboards had been freshly painted, which he interpreted as an attempt to cover up a serious problem. Further, he observed that advertising the property as “freshly redone” under these circumstances indicated an attempt to deceive. In addition, the Caldwells offered the opinion of an industrial hygienist that a toxic strain of mold was present in the Richland house. Further, the Caldwells offered evidence that Curioni should have known of the mold problem at the Richland house, and made inadequate preparations for renting the house for occupancy. Under these circumstances, and in view of the standard described in section 358 of the Restatement (Second) of Torts, the court concludes Curioni failed to conclusively negate he owed a duty to the Caldwells. The handwritten “as-is”provision of paragraph 32 of the lease refers to the inoperative condition of the “refrige. ice maker.” The Caldwells have made no complaint regarding the refrigerator ice-maker. The Caldwells took the property “as is,” except for conditions materially affecting the safety or health of ordinary persons. The court concludes the “as-is” provisions of the lease did not bar the Caldwells’ causes of action against Curioni. The Caldwells offered evidence: 1) that Curioni had reason to know and that he had information that would infer that there was an infestation of mold in the Richland house, 2) that there were potentially harmful effects of mold, 3) that he should have cured the mold problem before renting the house to the Caldwells, and 4) that his failure to eliminate the mold before the Caldwells occupied the house caused their physical injuries and property damage. The Caldwells offered more than a scintilla of evidence that Curioni breached a duty to them and, thereby, caused their damages. OPINION: Lang, J.; James, FitzGerald and Lang, JJ.

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