Volume 31

Unequal Homes, Unequal Health: Applying the Loss of Chance Doctrine to Landlord-Tenant Cases

by Delaram Takyar

Low-income families and families of color in the U.S. are disproportionately likely to live in homes that are negligently maintained by landlords, with significant implications for their physical health. Despite suffering harm, tenants often cannot seek legal relief without ruling out all possible alternate causes of their injuries. For example, if a tenant develops asthma after being exposed to black mold in her home and can show that her landlord had knowingly refused to remediate the mold, the tenant would still be barred from relief if she were genetically predisposed to developing asthma or could have also been exposed to asthma-inducing toxins elsewhere.

This Article argues that the “loss of chance” doctrine, which has historically been used in medical malpractice cases where a doctor misdiagnoses a terminally ill patient and thereby reduces his or her likelihood of survival, should be extended to these types of landlord-tenant toxic tort cases. In misdiagnosis loss of chance, the patient would likely have not survived his or her illness regardless of the doctor’s negligence, making it impossible to prove that the misdiagnosis caused the patient’s death. Using the loss of chance doctrine, plaintiffs can rely on large-scale data, such as survival rates in the aggregate population, to establish causation instead.

Under the expanded loss of chance doctrine proposed here, tenants would be able to use public health data that shows the negative effect of poor housing conditions on health outcomes in the same way. This expansion would allow for relief even if a plaintiff cannot definitively rule out all alternate causes of his or her injury. This would be an important step forward in holding landlords accountable and reducing economic and racial housing quality disparities.

Read the full article here