Torts—Statute of Limitations Discovery Rule Applies in Toxic Mold Case

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Wyckoff v. Mogollon Health Alliance, 667 Ariz. Adv. Rep. 26 (App. Div. II, August 22, 2013) (J. Ekerstrom)

IN TOXIC MOLD CASE THE STATUTE OF LIMITATIONS ACCRUES WHEN PLAINTIFF EXPERIENCES PHYSICAL SIGNS OF ILLNESS, KNOWS SHE WAS EXPOSED TO MOLD AND KNOWS THAT MOLD MAY PRESENT A HEALTH HAZARD

Plaintiff discovered mold in her workplace and became sick. Subsequent to leaving her employment, plaintiff brought a premises liability action against the owner of the building where she worked. Subsequent to her retirement she saw several doctors and received conflicting reports as to whether or not mold was the cause of her symptoms. The trial court granted the defendant summary judgment based upon the running of the two year statute of limitations and the Arizona Court of Appeals affirmed.

The court of appeals found that the policy behind a statute of limitations is to protect defendants from stale claims, lost or destroyed evidence and failing memories. Further the statute of limitations is designed to encourage plaintiffs to exercise due diligence in investigating and determining the existence of claims so that their claims can be brought timely. Here the plaintiff "was experiencing physical symptoms, aware of the presence of mold, knew that mold was dangerous, and suspected that the mold could be the cause of her illness" before she retired yet did not bring suit until over two years after retirement. Despite the difference in medical opinions she received as to the cause of her symptoms plaintiff did not relinquish her belief she had been injured by the mold and ultimately received a medical opinion from a specialist that there was a causal connection between her illness and the mold. Hence, once a toxic mold plaintiff experiences symptoms knowing she has been exposed to mold, that mold can be dangerous and reasonably suspecting a causal link, the statute of limitations has accrued.

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