COMPLAINT

STATE OF XXX

IN THE XXX CIRCUIT COURT FOR THE COUNTY OF XXX

XXX Plaintiffvs. XXX XXX Defendants

COMPLAINTCase No. ____________

XXXX	There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the complaint__________________ Kathrine Curtis

COMES NOW Plaintiff XXX, pro se, as and for her Complaint against Defendants XXX PROPERTIES NORTH, LLC and XXX, alleges as follows:

THE PARTIES

1. Plaintiff, XXX (“Plaintiff”) is a resident of Charlevoix County.
2. Defendant XXX PROPERTIES NORTH, LLC (“Lakeside”) is a company doing business in XXX, and having its principal residence at XXXX.
3. Defendant XXX J (“XXX”) is an individual, a resident of Charlevoix County, and residing at XXX ., Walloon Lake, MI 49796.
4. Defendant BROC JOHNSON is an individual, a resident of XXX, and residing at 01319 XXX, XXX

JURISDICTION AND VENUE

5. This Court has subject matter jurisdiction pursuant to MCL 600.605 because this case involves an amount more than $25,000.
6. Venue is proper pursuant to MCL 600.1621(a) in Charlevoix County because (i) the defendants reside in XXX County; and (ii) the cause(s) of action herein arose in this County.

FACTUAL BACKGROUND

7. Plaintiff rented the property located at XXX, XXX from XXXX.
8. She rented the property to carry out her business Thick ‘n Juicy Diner, which she intended to reopen under the new name Egg XXX . Plaintiff purchased Thick ‘n Juicy the same time she signed for the lease. It was the restaurant in the space in the prior years. The landlords let them out of their lease and added their remaining 5 months on to Plaintiff’s lease. They did not check the space prior to releasing them from the lease.
9. On XXX, while renovating the property for her business, Plaintiff noticed mold on the drywall and one part of the wall basically disintegrated while removing wainscoting. Plaintiff questioned the HVAC, ceiling tiles, and insulation during her meeting with the landlords and serv-pro. She was told by Shawn Lupton from serv-pro that mold does not like insulation. Therefore, for ten months, she moved contaminated insulation constantly around the space.
10. On XXX, Lakeside brought Bay Area Cleaners to inspect the property and verify the presence the molds. Josh, Bay Area’s representative, verified the presence of mold in the property.
11. Josh was to provide Jensen a report of the investigation of the mold. On XXXX, Plaintiff received a text from Jensen stating that Josh had given him a call regarding his findings. However, when Plaintiff requested to see a copy of the report that was issued by Josh, Jensen then directed Plaintiff to contact Shawn Lupton from Servpro to receive a quote.
12. On XXX, Plaintiff met Lupton. However, Plaintiff noticed that Lupton was not diligent for she failed to take samples, failed to comment on the status of the property, and failed to provide a remediation plan.
13. On XXX, Plaintiff contacted Defendants and expressed her concern regarding the faulty floor drains and lack of tiles under the counter. XXX responded that the property had flooded, and that explained why the property had faulty floor drains and lacks tiles under the counter. Further ,XXX stated that he informed Plaintiff to get a thorough inspection of the property. He did not. Before Plaintiff signed the lease, she was told to go up and look at the roof. However, she could not look at the roof because she was having a broken a leg. XXX also told Plaintiff that three weeks prior to signing, they had their insurance company inspect the whole building, which is split into four units.
14. Plaintiff, Lupton, the Servpro team, and Jensen met to start planning for the restaurant. The restaurant could only open once remediation was completed.
15. Consequently, as Plaintiff was preparing the property for XXX to embark on the remediation, she discovered further faults in the property. She discovered more evidence of mold, and realized that it was affecting her health.
16. Due to the hazardous materials and the need to remediate, it became Plaintiff’s problem to bring Defendants’ building up to code. She therefore incurred expenses for paying for plumbing and electricals, and hiring the contractor, which she had never planned to do.
17. In XXX, when an electrician was working on the kitchen wall of the property, he noticed an odor coming from the wall. Plaintiff notified Jensen, who in turn contacted XXX to address the issue. However, the issue was not addressed properly. Defendants never got any testing done validating the issue had been taken care of. The demand for payment was for his contractor, the plumber he hired, and the electrician he hired. Plaintiff had no say in those matters.
18. Realizing that Defendants were not properly addressing the mold issue, Plaintiff decided to engage the services of Mackinac Environmental Technologies, Inc. to test for the mold. The results of the test revealed high levels of toxic mold.
19. Despite completing the remediation, the issues with the toxic mold issues still persisted. This further delayed the opening of Plaintiff’s restaurant.
20. Plaintiff suffered health effects from exposure to the toxic mold. Notably, she suffered severe headaches, skin irritation and rashes, respiratory illness, chronic fatigue, neurological and cognitive impairment, severe body pains, bacterial infections and fungal infections, insomnia, vision problems, nausea and diarrhea, hair loss, and heat intolerance.
21. On September 17, 2020, Plaintiff engaged the services of Mold Law Group to assist her in gathering evidence for the toxic mold, and the health effect it had on her. Mold Law Group conducted an environmental test using licensed mold inspectors. The testing included:
22. the EPA’s Environmental Relative Moldiness Index (ERMI) 36 Panel for mold speciation;
23. air quality samples to establish mold volumes throughout the environment;

• bacteria testing to detect the presence of gram-negative bacteria growth;

1. endotoxin testing to identify bacteria byproducts; and
2. a direct swab sample on your HVAC unit and/or any visible microbial colonies to further identify widespread contamination.
3.  Mold Law Group also conducted medical test on Plaintiff through urinalysis.
4. Upon collecting the samples, Mold Law Group, through its Certified Industrial Hygienist, Epidemiologist, and Toxicologist, reviewed the collected data to ascertain whether the symptoms Plaintiff has been experiencing are caused by the toxic mold.
5. The Mold Law Group concluded that Plaintiff experienced medical damages from the mycotoxins and endotoxins produced by the mold and that she would likely continue to experience medical damages.
6. Plaintiff has suffered pecuniary damages for the replacement of her business furniture and belongings in an amount to be determined in trial. She has also incurred medical expenses amounting to $38,000. Further, she has suffered lost wages as a result of shutting down her restaurant because of the mold problem. Notably, when signing the lease, Plaintiff paid the first, last and security in total $4500. She also paid July, August, and XXXX, and never opened her business in 10 months. Plaintiff had planned to open her restaurant in XXX. However, due to the hazardous materials lurking within in the building, she could not open. The landlords were still trying to remediate in XXXX. The construction was halted end of March to May due to covid close downs.

 

 

 

AS AND FOR PLAINTIFF’S FIRST CAUSE OF ACTION

PREMISES LIABILITY

26. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in paragraphs 1 through 25 hereinabove, with the same force and effect as though more fully set forth herein.
27. Owners of premises have a duty of care, regardless of the “status” of the injured person, to maintain their property in a safe condition.
28. It is also trite law that the use to which one’s property is put, and the frequency of that use by others, weighs heavily in determining the likelihood of injury, the seriousness of the injury, and the burden of avoiding the risk.
29. In this case, the instant case, Defendants had a duty to investigate the property for the presence of mold, and to carry out remediation to eliminate the mold.
30. There is a high likelihood of injury at the premises, considering the intended nature and use of the premises as a restaurant. This therefore creates a burden on Defendants to avoid the risk of exposure to toxic mold at the premises.
31. In spite of the foregoing, Defendants failed to ensure the mold growth was properly investigated and removed. Defendants engaged incompetent individuals to allegedly carry out the remediation, which was poorly done. Besides, Plaintiff was forced to pay for electrician, plumber, and contractor, as a result of the mold issues. In XXX, when an electrician was working on the kitchen wall of the property, he noticed an odor coming from the wall. Plaintiff notified XXX, who in turn contacted Servpro to address the issue. However, the issue was not addressed properly.
32. Plaintiff therefore had to further expenses to sort the mold issue. She engaged Mackinac Environmental Technologies, Inc. to test for the mold. The results of the test revealed high levels of toxic mold. Plaintiff also had to engage the Mold Law Group to carry out experiments on the property, which experiments concluded that there was toxic mold at the property.
33. But for the Defendants’ failure to ensure safe premises, Plaintiff would not have suffered health effects from exposure to the toxic mold. Notably, she suffered Chronic Inflammatory Response Syndrome (CIRS), which is a progressive, multi-system, multi-symptom illness characterized by exposure to biotoxins. She also experiences severe headaches, skin irritation and rashes, respiratory illness, chronic fatigue, neurological and cognitive impairment, severe body pains, bacterial infections and fungal infections, insomnia, vision problems, nausea and diarrhea, hair loss, and heat intolerance.
34. Plaintiff is currently paying $1200 – $1500 a month for medication that insurance does not pay for. It is quite possible that she would be on the medication 10 plus yrs. Plaintiff has 3 years’ lost wages (approx. $400,000 per year).
35. Further, were it not for Defendants’ actions and/or inactions, Plaintiff has suffered pecuniary damages for the replacement of her business furniture and belongings in an amount to be determined in trial. She has also incurred medical expenses amounting to $38,000. Further, she has suffered lost wages as a result of shutting down her restaurant because of the mold problem.
36. The Defendants are therefore liable for Plaintiff’s injuries and should compensate Plaintiff accordingly. It is settled law that liabilities for defective conditions are predicated upon ownership, occupancy, control or “special use” of the property.

 

AS AND FOR PLAINTIFF’S SECOND CAUSE OF ACTION

NEGLIGENCE

37. Plaintiff repeats, reiterates and re-alleges each and every allegation set forth in paragraphs 1 through 36 hereinabove, with the same force and effect as though more fully set forth herein.
38. Defendants owed a duty to Plaintiff, and other users of the property, to ensure their safety.
39. This duty extended to the duty to carry out inspections and investigations on the presence of mold. The duty also includes carrying out remediation, to deal with any environmental issue at the premises.
40. Defendants breached the duty of care by failing to ensure the safety of all persons accessing the premises. They not only failed to properly investigate and deal with the mold growth, but also made Plaintiff pay for contractors who never performed their services. As a result of the Defendants’ failure to properly address the mold issue, Plaintiff had to incur additional costs to hire other professionals to deal with the mold.
41. As a proximate cause of the Defendants’ negligence, Plaintiff suffered health effects from exposure to the toxic mold. Notably, she suffered severe headaches, skin irritation and rashes, respiratory illness, chronic fatigue, neurological and cognitive impairment, severe body pains, bacterial infections and fungal infections, insomnia, vision problems, nausea and diarrhea, hair loss, and heat intolerance.
42. Plaintiff has also suffered pecuniary in an amount to be determined in trial. She has also incurred medical expenses amounting to $38,000. Further, she has suffered lost wages. Notably, because of the hazardous toxins and Defendants’ negligence in remediating, Plaintiff has been denied her livelihood, and her dream of owning her own restaurant.

PRAYER FOR RELIEF

WHEREFORE, the foregoing considered, Plaintiff demands judgment against Defendants as follows:

1. For damages amounting to $5,000,000 for lost wages, medical bills, and compensation for pain and suffering;
2. For pre-judgment and post-judgment interest on all damages awarded;
3. For reasonable attorneys’ fees;
4. For costs of suit incurred;
5. For such other and further relief that the Court deems just, proper, and equitable.

By:­­­­­­­­­­­­­­­­___________________________ XXX

Respectfully submitted,

Dated: _______________

 

 

 

 

 

CERTIFICATE OF SERVICE

I hereby certify that on [ENTER DATE], copies of the foregoing document have been sent to the Defendants in the following address:

[ENTER ADDRESS]

________________________________

XXX

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