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31. Are the residents of the uninfested building likely to prevail in a tort action against the fumigation company?
In fact, there was a hole in the fire wall separating the two buildings, but because it could only be observed from a specific position in the crawl space underneath the floor of the uninfested building, it had not been discovered by either the fumigation company or any previous building inspector.
During and shortly after the fumigation, in which a highly toxic chemical was used, many residents of the uninfested building became sick. It was determined that their illnesses were caused by the fumigation chemical.
A fumigation company was hired to eliminate pests in one of two buildings in a condominium complex that shared a common wall. The owners of the complex told the fumigation company that the common wall separating the infested building from the uninfested building was an impenetrable fire wall. The fumigation company did its own thorough inspection and determined that the buildings were indeed completely separated by the wall. Residents of the condominium units in the building that was to be sprayed were told to evacuate, but the residents of the uninfested building were told that they could remain while the other building was treated.
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A is incorrect. The facts state that the fumigation company did its own thorough inspection and determined that the buildings were separated by the wall. Additionally, no previous building inspector had discovered the hole.
B is incorrect. In strict liability, the level of care exercised is irrelevant to the analysis. If the company is found to be strictly liable, it will be liable regardless of the amount of care exercised.
D is incorrect. This is not a products liability case. The fumigation company will be held strictly liable, but not under a products liability theory.