Do I have a case

My apartment has mold from a ceiling leak that was never repaired and repeated requests were ignored. Leak started 6/2017 and every time we have heavy rain it continued to leak. Requests for repair were made in person through leasing office and written at least 5 times. My 9 month old son has been exposed to the mold, his crib is only approximately 5 feet from the leak. He has also bee hospitalized 3 times for respiratory problems, including lung failure causing loss of breath. In addition, he has been to doctor over 15 times for respiratory illness including croup and bronchiolitis. On Monday, December 13th, after telling apartment leasing office that we were going to hire a mold inspector to inspect air quality and do some mold tests, they immediately came up to apartment to begin pulling out drywall and sheetrock. The next day they hired a 3rd party inspector to run some of the same tests as my inspector but they refused to give me a business card or any information about the company doing the inspection. They also told me that the results would not be shared with me because they work for the apartments. They also have not relocated us, offered any assistance medical bills total over $150,000 alone, this does not include the time I have had to take off work and emotional stress this has put on myself and my family.

Asked on December 14, 2018 under Personal Injury, Texas

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Prior to filing a lawsuit for negligence against the landlord, it may be possible to settle the case with the landlord's insurance carrier. Notify the landlord in writing of your son's personal injury claim.
When your son completes his medical treatment and is released by the doctor or is declared by the doctor to be permanent and stationary, which means reaching a point in his medical treatment where no further improvement is anticipated, obtain his remaining bills and his medical reports. His personal injury claim filed with the landlord's insurance carrier should include those items. It is unlikely that you will recover your wage loss , but you can include it in the claim. Stress won't be recoverable unless there is medical treatment documenting it.
Compensation for your son's medical bills is straight reimbursement. His medical reports document his injury and are used to determine compensation for pain and suffering which is an amount in addition to the medical bills.
If the case is settled with the landlord's insurance carrier, NO lawsuit is filed.
If you are dissatisfied with the settlement offers, reject them and file a lawsuit for negligence against the landlord. That lawsuit should also include a second cause of action (claim) for breach of the implied warranty of habitability (due to the mold).  You will need to be appointed guardian ad litem to file a lawsuit on behalf of your son because he is a minor.
With regard to breach of the implied warranty of habitability, you can move out and terminate your obligation to pay rent for the balance of the term of your lease.
If the case is NOT settled, the lawsuit against the landlord on behalf of your son must be filed prior to the expiration of the applicable statute of limitations or your son will lose his rights in the matter forever.


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