336 Ga. App. 271
Ga. Ct. App.2016Background
- McCarney rented an apartment at the Nevadan Apartments (Aug 2012–Sept 2013) and reported multiple leaks and visible black mold in vents, closet walls, bathroom ceiling, and carpet.
- After seeing mold and notifying management (Sept 3, 2013), management had ducts inspected and approved replacement; McCarney also hired his own mold inspector and later terminated his lease (Sept 25, 2013).
- McCarney underwent sinus surgery by ENT Dr. Raymond Schettino in June 2013 and continued to have sinus problems afterward; the doctor recommended McCarney leave the apartment when symptoms persisted.
- McCarney sued landlord PA Lex Glen asserting nuisance, property damage, negligent and intentional infliction of emotional distress, defective construction, breach of contract/quiet enjoyment, and personal injury; both parties moved for summary judgment.
- Trial court granted summary judgment to PA Lex Glen on all claims; on appeal, the Court of Appeals considered whether expert testimony created a genuine issue of fact on causation for the personal injury claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff produced sufficient evidence of medical causation to defeat summary judgment on personal injury claim | Schettino’s expert testimony and circumstantial evidence (high mold counts, roommate illness, temporal onset) show mold aggravated/worsened McCarney’s sinus condition | No genuine issue of material fact on causation; expert testimony insufficient to show probable cause linking Nevadan mold to plaintiff’s injury | Reversed as to personal injury: Schettino’s testimony (that environment "definitely contributed"/"aggravated" condition) plus nonexpert evidence created a fact question on causation |
| Whether other claims (nuisance, property damage, emotional distress, contract claims) survive appeal | McCarney contends trial court erred in granting summary judgment on other claims | PA Lex Glen prevailed below and on appeal | Affirmed as to all other claims — McCarney abandoned arguments on these issues by failing to brief them adequately |
Key Cases Cited
- Allstate Ins. Co. v. Sutton, 290 Ga. App. 154 (expert medical testimony required to establish causal link based on reasonable probability)
- Fouch v. Bicknell Supply Co., 326 Ga. App. 863 (toxic-tort causation requires reliable expert testimony showing probable, not mere possible, cause)
- Rodrigues v. Georgia-Pacific Corp., 290 Ga. App. 442 (plaintiff’s testimony and other nonexpert evidence can supplement expert testimony to create a fact issue on causation)
- Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706 (medical evidence of mere possibility insufficient alone but may suffice when combined with other evidence)
- Phillips v. King, 214 Ga. App. 712 (standard for reviewing grant of summary judgment: view evidence in light most favorable to plaintiff)