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Manuel v. Elsmere Park Club, L.P.: Delaware Court Considers Mold Lawsuit

A Delaware court has considered whether a mold lawsuit should proceed as a class action lawsuit.

Ricky Manuel, Carla Kees, and Catherine Kellam (collectively, "Class Representatives") lived in apartment buildings located in the Town of Elsmere, Delaware ("Town"). The Class Representatives claimed that 38 apartment buildings were not properly remediated after Hurricane Hugo had caused all of the buildings to flood in 1989. The mold growth eventually caused the Town to condemn all of the buildings. The Class Representatives filed a lawsuit against the owners of the 38 apartment buildings, and then filed a motion seeking class action certification on behalf of the residents in the 38 apartment buildings.

The Superior Court of the State of Delaware, New Castle County, denied the Class Representative's motion to certify the lawsuit as a class action. A class action lawsuit occurs when a group or class of individuals shares a common set of facts which allows the court to try all of the claims together in the same proceeding. The court went through the various legal requirements a class representative must show in order to create a class action lawsuit: numerosity, commonality, typicality, and adequacy. In this case, the numerosity element was not contested, as there was no dispute that all of the buildings had mold conditions.

However, the court found that the Class Representatives had failed to establish the other three elements for a class action lawsuit. First, the court found the mold in each of the 38 apartment buildings could have been caused by a wide variety of factors and so ruled that there was no "commonality" in the claims against the apartment building owners, as how the mold problems were created would likely require a building-by-building determination. Second, the court also found that the typicality requirement also was not met, as the evidence before the court revealed that it was legally questionable whether certain Class Representatives had a legal right to reside in the buildings which served as the basis for this lawsuit or had lived in the buildings long enough to have a claim. Third, the court ruled that it was also questionable whether the Class Representatives would be entitled to recover any damages even if the allegations in the lawsuit were accepted by the court, causing the court to determine that the Class Representatives were also not adequate representatives of the class. Finally, the court also stated that the unique factual issues for each building would make this lawsuit unmanageable to proceed as a class action lawsuit. Thus, the court rejected the Class Representative's motion to certify the lawsuit as a class action.