Vol. 5 No. 6		June 1986

"Sick" buildings. They are a product of our national response to the energy crisis; one of those unforeseen, almost inevitable third order consequences of political decision making. They pose new and unquantifiable risks in a society in which the belief is widespread that no risk should be tolerated.

Are architects and engineers responsible? Beyond the exercise of usual and customary professional care, probably not. Will they be asked to assume responsibility? Most likely so. Where unanticipated problems give rise to unanticipated costs, and where those costs are significant, you can be certain that owners and tenants alike will cast far and wide in their search for a means of redress.

They are likely to argue that you breached an implied warranty as to the suitability of the structure for its intended purpose. They will certainly claim that you failed to meet the standard of usual and customary care (which they will seek to elevate, using experts in indoor air quality, to heights well beyond your professional skills and experience). For good measure, they may even argue that you violated your principal obligation as a professional to protect the public health, safety, and welfare.

At least, until now, the implied warranty issue has not been a serious problem for architects and engineers. It is based on a standard of strict liability which requires proving, first, that you placed a faulty product into the stream of commerce. The courts have generally been unwilling to entertain the notion that the buildings you design are products.

Allegations of negligence, on the other hand, could be serious. What constitutes usual and customary professional care in a situation in which no one knows the answers is anything but certain. Your duty to your client and your obligation to keep the public safe from harm are very real challenges in the face of this uncertainty.

The potential liability problems posed by indoor pollution may be compounded by the the pollution exclusion in your policy of professional liability insurance. Some still extend to every form of environmental contamination imaginable. Other policies may have loosened the coverage available for pollution conditions considerably. Another good reason to give your independent insurance expert a call.

It is the owner who stands to profit most from the completion of a successful building project, and it is the owner who ought to take most of the risks involved. This is not likely to be welcome news to your clients, but the fact of the matter is, there is not a great deal you can do, on your own, to mitigate the risk of indoor pollution. It is best that you be candid about the limitations on your ability to deal with the health aspects of buildings.

You can agree to exercise due care in the selection of building materials, equipment, and furnishings; you can arrange to provide ventilation system options; you can recommend pre-occupancy testing and post-occupancy monitoring. You are, nevertheless, anything but an expert in the medical effects of combining minute quantities of possibly toxic, airborne substances in a closed system operated at low rates of exchange.

After you have done everything you reasonably can, the risk still remains that some combination of unforeseeable events will produce indoor pollution problems in the completed structure. You might want to make certain your client understands this. It is not likely to be welcome news either, but it will afford you with an opportunity to recommend that a qualified air quality consultant be retained to advise on the mitigation of potential hazards. If the owner refuses, you will have warned of the risk, and you will have placed responsibility for the decision (and the associated cost) where it belongs. Document your discussion in a confirming letter.

A note of caution: This recommendation may prove to be too mild. It would not be surprising, for example, for an injured plaintiff to argue that your duty to safeguard the health of the public includes a duty to seek expert advice on indoor air quality, whether your client is willing to pay for it or not. Should this argument take hold, you may have no choice but to include an air quality consultant as an integral part of the design team on some projects. This is something you might want to monitor closely.

Manufacturers have a duty under the law to test their products for dangerous properties. The failure to conduct such tests and to warn of any dangerous consequences constitutes a breach of that duty and, if someone is injured, liability. You have no independentobligation to test the products you specify, but you will want to take care to place yourself in a position to rely on the manufacturer's representations as to the possibility of toxic effects. Ask for the data in writing, and seek assistance in interpreting that data, if necessary.

It is difficult enough to select materials that have been thoroughly tested by credible suppliers and found to emit less than unsafe levels of organic contaminants. Beware of those for which the test results are not yet in. If you do not have access to information which leads you to believe that the products you specify are within reasonable tolerances as respects their potential for environmental harm, find other products. If the contractor or the owner requests a substitution for which no test data are available, and if you believe there is a possibility that the substitute material may pose a danger to the indoor environment, trade your refusal to accept it, if accept it you must, for indemnification against the unknown consequences.

Most of the health-related problems encountered in new or newly remodeled buildings have been found to occur within a very short period after initial occupancy. Given this, it may be appropriate to recommend the following, additional precautions: 1) that the mechanical system be balanced and fully operational prior to occupancy; 2) that the system be operated at an accelerated level for an initial, "break in" period; and 3) that air quality be tested prior to and monitored during initial occupancy of the building. If your client refuses, you will at least have your recommendations on record in the event the "sick building syndrome" should emerge later on.

Indoor pollution is seen by many close to the profession as something of a new frontier for the underemployed at the plaintiff's bar. Your challenge is to take steps to remove yourself from the path of the almost inevitable stampede. You can do so if you heed and act upon the early signs of danger on the horizon.