Get the lead out: proving notice in lead paint cases.

Childhood lead poisoning remains one of the most common--and most preventable--pediatric problems. Trial lawyers fighting to eradicate this hazard must be tenacious and know the applicable laws and the literature.

The effects of lead poisoning in young children can be lifelong and devastating. Lead is a neurotoxin that affects a young child's developing central nervous system. Although the most severe effects of lead poisoning--death and lead encephalopathy--are rare today, other effects can include convulsions, decreased stature and growth, decreased hearing acuity, decreased fine motor coordination, lowered IQ scores, impaired neurobehavioral development, and learning disabilities.(1)

Federal, state, and local statutes have been enacted to prohibit the use of lead paint require abatement of lead paint hazards, and set standards for screening children for lead poisoning. But in spite of these regulations, lead poisoning continues to be a pervasive problem.

One of every six preschool children has a dangerous level of lead in his or her blood.(2) Lead paint is found in about 57 million occupied private housing units built before 1980. Of that number, 14 million units are believed to have dangerous peeling and chipping paint, and 3.8 million of those units are occupied by young children.(3)

Plaintiff lawyers are working to eradicate childhood lead paint poisoning by holding negligent landlords accountable for lead paint hazards in dwellings rented to families with young children. Large verdicts and settlements are sending a message that landlords must provide safe housing for their tenants.(4)

Before working to develop proof of damages and causation, counsel must first prove the defendant landlord was culpable. A fundamental element of most cases will be proving the landlord had notice of a condition on the premises that was hazardous to young children. Cases have been lost by attorneys who did not do this.

The type of notice proofs required varies by jurisdiction. Local lead paint laws may influence the proofs. For example, New York City's local ordinance has been interpreted to provide constructive notice of a lead paint hazard in multiple-apartment dwellings built before January 1, 1960, if the plaintiff establishes the landlord knew or should have known the apartment was occupied by a child under age seven.(5)

Counsel must usually be prepared to prove the landlord had actual or constructive notice of chipping or peeling lead-based paint. For example, in Garcia v. Jiminez, the Second Circuit Court of Appeals upheld a defense verdict. The court found the landlord had shown that he did not know or have reason to know that the premises contained lead-based paint, or that the paint was peeling.(6)

In a failure-to-warn case, a Massachusetts court found its statutes did not impose liability against a previous landlord. Even though he was an experienced broker who knew of the hazards of lead paint and the likelihood that older houses would have it, there was no proof he had actual knowledge of lead paint in the premises.(7)

A more just result was reached in Richwind Joint Venture 4 v. Brunson. The Maryland Court of Appeals ruled that based on the evidence presented, the jury could have found management received actual notice of peeling paint and that management knew or had reason to know peeling paint in older houses was lead-based.(8)

Counsel must be prepared to prove the landlord had actual or constructive notice of the presence of (1) a young child on the premises, (2) damaged paint or painted surfaces, and (3) hazardous lead-based paint. Counsel must challenge attempts to require proofs of actual notice of lead paint conditions that alter the general rule that proof of constructive notice in negligence cases is sufficient. Thus, an attorney must understand the history of the lead paint poisoning problem, the legislative and regulatory response, and the available investigative and discovery tools.

History

The effects of lead paint on children have been known for almost 100 years. In 1904, two Australian physicians described lead poisoning in children. They concluded the children had been poisoned in their homes by contact with either freshly painted, sticky surfaces or worn and powdery surfaces containing lead paint.(9)

In 1914, the first account of a childhood lead poisoning case in the United States was published.(10) By the early 1920s, severe childhood lead poisoning was common in the country.(11) In the 1930s, lead-based paint in the home was positively identified as the source of childhood lead poisoning.(12) These discoveries led several countries to ban or severely restrict the use of lead paint on residential interior surfaces.(13)

U.S. legislative response

Originally, government interest in lead poisoning was strictly on a local level. In the 1930s, Baltimore became the first municipality to establish a lead poisoning prevention program.(14)

By 1955, only a few manufacturers had voluntarily lowered the amount of lead used in their products.(15) New York City, however, had already enacted regulations restricting the sale, possession, and use of lead paint on toys, children's furniture, and the interior surfaces of residential buildings. That city began requiring warning labels on lead paint products in 1959.(16)

Some states have also enacted lead poisoning prevention legislation. For example, in 1997 the Vermont legislature established a hazard reduction program applicable to pre-1978 rental housing and day care facilities, requiring yearly visual inspections for chipping and peeling paint and notices posted at premises covered by the legislation urging occupants to report deteriorating paint to the owner or managing agent.(17)

In 1978, in response to the Lead-Based Paint Poisoning Act, the Consumer Product Safety Commission lowered the allowable percentage of lead in paint solids to 0.06 percent.(18)

These federal regulations, and their subsequent amendments, apply to U.S. Department of Housing and Urban Development (HUD)-sponsored units, including housing projects and federally subsidized private apartments.

The Residential Lead-Based Paint Hazard Reduction Act of 1992, known as "Title X," which took effect in 1996, applies to most types of privately owned housing, as well as to public housing built before 1978.(19) The act requires disclosure of known lead hazards by sellers and landlords to buyers and renters, mainly through distribution of warning pamphlets.

Publicity

There has been so much publicity about lead paint poisoning that landlords cannot reasonably claim they do not know about its hazards. Although the childhood lead paint poisoning problem has been publicized for decades, heightened media attention began when the Centers for Disease Control and Prevention issued its 1991 statement pinpointing lead-based paint in pre-1978 housing as the primary source of this preventable disease.

Attorneys who must prove notice in lead paint poisoning cases need to be familiar with this publicity in order to effectively cross-examine the defendant landlord at deposition and at trial. If necessary, media reports should also be included in a Brandeis brief to convince the courts that plaintiffs do not need to prove actual notice of lead paint in the apartment to recover damages.

National television and magazine coverage of lead paint poisoning has been extensive. For example, in May 1991, Good Morning, America broadcast stories about the "Lead Menace" for three consecutive days. Popular magazines, such as Good Housekeeping and Time, published comprehensive articles about lead poisoning in children and its sources.(20) Consumer Reports ran three separate articles about lead paint, lead paint testing, and lead in the water in its "Safe at Home" issue.(21) Childhood lead poisoning also ran as the cover story in Newsweek in 1991.(22)

Publicity about lead poisoning has been extensive in local newspapers and trade publications. The Detroit News & Free Press ran two articles about lead paint hazards and once devoted its front page to the topic of lead poisoning.(23) Articles about lead poisoning and lead hazards have also appeared in The New York Times and the Newark (N.J.) Star-Ledger.(24)

Attorneys should check their local newspaper and television archives for stories on lead paint hazards. Trade publications, such as Real Estate Weekly, have also included articles about the dangers of lead paint to children.(25)

With all this publicity, a landlord should have known of the likely presence of lead paint in pre-1978 housing and the hazards it posed to children. The courts should not immunize landlords who have ignored these reports or who claim lack of actual knowledge.

Investigation and discovery

Investigation and discovery to prove notice in these cases is similar to investigation and discovery in other premises liability lawsuits. As soon as the investigation begins, plaintiff counsel should start thinking about direct examination of fact witnesses and about what exhibits to introduce at trial.

Lawyers litigating these cases must build a lead safety library and keep abreast of the medical, technical, trade, and scientific literature as well as media reports of lead paint hazards and lead paint laws. The National Safety Council's National Lead Information Center can provide technical assistance.(26) Local health departments may have prepared reports identifying areas with high incidence of lead paint violations. These are often referred to as "lead belts."

It is important for counsel to conduct a thorough investigation of the building's history and obtain all building department records and violation notices. Significant legwork may be required to obtain these documents, as they are likely to be on file at several different agencies, including the local health department local buildings department, and local environmental protection department.

Key questions to ask include: Were any lead paint violations issued for this building? Were any violations issued for peeling paint damaged plaster, or unrepaired leaks for this apartment? Government documents showing when the structure was built and when the defendant became the owner should be obtained.

Other queries to make: Did the plaintiff--or family members, caseworkers, or other tenants--ever give written or oral notices to the landlord about the paint problem? Did someone else do so? Who told the landlord there was a young child in the building? How often did the landlord come into the apartment to collect rent or make repairs and, therefore, could observe the chipped paint areas? Did the landlord perform any repair work that damaged the painted and plastered surfaces?

Did anyone tell the landlord the child was seen eating paint in the apartment? Did the child suffer increased lead levels or require hospitalization after the defendant was notified in this case? Did the landlord ever give the plaintiff any Lead Warning Statements as required under Title X and the HUD regulations found at 24 C.F.R. pt. 35 and Environmental Protection Agency regulations at 40 C.F.R. pt. 745? What does the lease say? Is this a federally subsidized apartment?

If counsel is lucky and asks the right questions, family members or friends may have photographs or videos that show the conditions and will reveal how long they existed.

Counsel will want to investigate other properties the landlord owns to see if other lead paint violations were issued. A complete investigation into prior litigation involving the landlord or the building is essential.

Both personal injury and landlord-tenant actions should be explored. Was there ever a claim of lead paint violations against the landlord for any building owned? Was there a prior landlord-tenant matter of claims of damaged paint or plaster or unrepaired leaks that could cause the paint or plaster to deteriorate in the apartment in question? Counsel should also check their own files for other lawsuits against the landlord or that involve the same building.

In requests for production, plaintiff counsel should demand the complete tenant file, including all leases, lease applications (which frequently list children and their ages), inspection documents, complaints, work orders, and lead disclosure documents.

Counsel should also demand production of the real estate file detailing the defendant's purchase of the building. The file should include the purchase agreement, engineer's report, lead inspection report, and lead disclosure statements from the previous owner. The building file is important because it may contain building violations or complaints of lead paint hazards in other apartments or in common areas of the building. The file also may indicate if unrepaired leaks from other areas of the building contributed to the peeling paint conditions in the plaintiff's apartment.

Counsel should obtain all maintenance, painting, and repair records and logs, not restricting this demand to the time of tenancy, as prior logs may have information about the use of lead-based paint or recurring problems. Counsel should ask for preinsurance approval inspection documents and photographs and videotapes taken by the defendant and notices the defendant received for lead paint violations. Counsel should also get the names and addresses of building employees and talk to those no longer employed by the defendant.

Counsel should treat the deposition of the defendant as trial testimony and should thoroughly cross-examine the defendant on the issues of notice. Questioning should reveal the defendant's knowledge and experience in real estate, experience with other buildings and with lead paint in them, and membership in real estate and other professional organizations that publish articles or hold meetings on lead paint hazards.

Cross-examination should cover the landlord's legal responsibilities and determine how familiar the landlord is with lead paint laws and the new federal disclosure rules. Counsel should ask the following questions. Does the landlord have any educational or occupational background in medicine, science, the military, or building trades where the hazards of lead may have been taught? What safety courses has the landlord taken? What exposure has the landlord had to media accounts publicizing lead paint hazards? Did the defendant buy painting supplies in stores that sold lead-paint testing kits?

Counsel should cross-examine the landlord to find out how much he or she knows about the plaintiff's living conditions in the apartment. Questioning should establish how frequently the landlord visited the apartment and was able to observe the conditions and the presence of the children. When cross-examining about methods used to record and respond to complaints, counsel should ask on what basis the landlord determined when an apartment needed repainting.

If a landlord produces someone for deposition who does not have specific knowledge of the answers to these questions, counsel should demand depositions from the building superintendent, managing agent, and other relevant building employees to get the answers.

Counsel should disclose an expert witness to help prove the landlord had constructive knowledge of the hazards and establish the likelihood that the plaintiff's apartment had lead paint because of its age or location in a known "lead belt." This expert can also help prove the standard of care under which prudent landlords remove lead paint hazards before they pose a threat to children.

Continuing challenge

Plaintiff lawyers have long recognized that the "economic as well as emotional costs of preventable injury and death--the loss of productivity as well as agony and pain--are an insupportable burden on American society."(27)

Tort law can reduce the burden of childhood lead paint poisoning; result in safer, lead-free housing for children; and force wrongdoers to pay for the special education, counseling, and therapies children poisoned by lead paint need. It is unconscionable that some courts are still requiring proof that a landlord actually knew of lead paint in a plaintiff's apartment while simultaneously refusing to impose a duty on a landlord to inspect--especially since lead paint hazards in homes built before 1978 are so well known.(28)

As plaintiff lawyers, we have often been reminded that the law is never settled until it is right, that it is never right until it is just, and that it is never just until it serves society to the fullest. We must accept the challenge to advance the law to serve the needs of the victims and of society, and to prevent the continued lead poisoning of children.

Notes

(1.) CENTERS FOR DISEASE CONTROL, U.S. DEP'T HEALTH & HUMAN SERVS., PREVENTING LEAD POISONING IN YOUNG CHILDREN: A STATEMENT 1 (4th rev. 1991).

(2.) Id. at 12.

(3.) Id. at 18.

(4.) Jones v. City of New York, No. 7630/92 (N.Y., Kings County Sup. Ct. Aug. 1, 1997), 40 ATLA L. REP. 388 (Dec. 1997).

(5.) Juarez v. Wavecrest Management Team Ltd., 672 N.E.2d 135, 139 (N.Y. 1996).

(6.) 539 N.E.2d 1356, 1359 (Ill. App. Ct.), appeal denied, 545 N.E.2d 109 (Ill. 1989).

(7.) Underwood v. Risman, 605 N.E.2d 832 (Mass. 1993).

(8.) 645 A.2d 1147, 1155 (Md. 1994).

(9.) Herbert L. Needleman, Low Level Lead Exposure. A Continuing Problem, 19 PEDIATRICS ANNALS 208 (1990).

(10.) Richard Rabin, Warnings Unheeded: A History of Child Lead Poisoning, 79 AM. J. PUB. HEALTH 1668 (1989).

(11.) Id. at 1669.

(12.) Id.

(13.) These countries include Australia (1922), Greece (1922), Tunisia (1922), Belgium (1926), Great Britain (1926), Sweden (1926), Poland (1927), Spain (1931), Yugoslavia (1931), and Cuba (1934). Rabin, supra note 10, at 1669.

(14.) Id.

(15.) Edmund J. Ferdinand III, Asbestos Revisited: Lead-Based Paint Toxic Tort Litigation in the 1990s, 5 TUL. ENVTL. L.J. 581, 585 (1992).

(16.) N.Y. CITY HEALTH CODE [sections] 173.13 (1960).

(17.) 18 VT. STAT. ANN. [subsections] 1751-1765 (1997).

(18.) 42 U.S.C. [sections] 4841 (1994).

(19.) 42 U.S.C. [sections] 4852d (1992).

(20.) Dianne Hales, The Silent Health Threat to Children, GOOD HOUSEKEEPING, Aug. 1992, at 89; Leon Jaroff, Controlling a Childhood Menace, TIME, Feb. 25, 1991, at 68.

(21.) Lead in Paint: Controlling the Hazard, 60 CONSUMER REP. 460 (1995); Lead in Paint: Test Kits, 60 CONSUMER REP. 462 (1995); Lead in Water: Pipe Nightmares? 60 CONSUMER REP. 463 (1995).

(22.) Steven Waldman, Lead and Your Kids, NEWSWEEK, July 15, 1991, at 43.

(23.) Tim Carter, With Care, You Can Make Remodeling Fallout Bite the Dust, DETROIT NEWS & FREE PRESS, Feb. 26, 1994, at 28D; Dian Hymer, Buying a Home Can Be Hazardous If Toxins Are Found on Your Property, DETROIT NEWS & FREE PRESS, Jan. 31, 1994, at 10F; Paige St. John, Lead Still Plagues the City's Young, DETROIT NEWS & FREE PRESS, Aug. 30, 1992, at 1A.

(24.) William E. Schmidt, Lead Paint Poisons Children Despite 1971 Law on Removal, N.Y. TIMES, Aug. 26, 1990, at 32; Tom Yulsman, Lead Hazards at Home, N.Y. TIMES, Apr. 28, 1991, [sections] 2 (Magazine), at 28; Bill Gannon, Lead Poisoning, NEWARK (N.J.) STAR-LEDGER, Sept. 11, 1991, at 1.

(25.) Lois Weiss, Industry Ready for Lead Lawsuit? REAL EST. WKLY., Sept. 23, 1992, at 1A.

(26.) The National Safety Council's National Lead Information Center can be contacted at 1019 19th St., N.W., Suite 401, Washington, DC 20036-5105. The center staffs a lead hotline at (800) LEAD-FYI (532-3394) or (800) 424-LEAD (424-5323).

(27.) Harry M. Philo Sr., Preventable Injury and Disease in America, in ATLA MONOGRAPH vii (1988).

(28.) See Garcia v. Freedland Realty, Inc., 314 N.Y.S.2d 215, 219 (Civ. Ct. 1970).

For further reading

Benjamin Hiller, Expert testimony in childhood lead-poisoning cases, TRIAL, Mar. 1991, at 46.

Anthony Z. Roisman, Getting the lead out: landlord liability in lead-paint poisoning cases, TRIAL, Jan. 1995, at 26.

Judy Keenan and Erin K. Hurley practice law with Schneider, Kleinick, Weitz, Damashek & Shoot in New York City.