Getting the lead out: landlord liability in lead-paint poisoning cases.It is estimated that childhood lead-paint poisoning costs society billions of dollars annually.(1) Those who believe society is doing all it feasibly can to prevent the problem falsely assume that
1. it can be economically justifiable to lead poison a child--that is, at some point the cost of cleanup exceeds the landlord's willingness to forego part of the profits;
2. city, state, or federal agencies can be forced by a lawsuit to address the problem of lead in housing; and
3. although landlords would rather go out of business than obey a law that cuts too deeply into profits, they will voluntarily do all that is necessary.
Landlords, as owners of housing containing lead paint, are in a prime position to prevent lead poisoning lead poisoning or plumbism (plŭm`bĭz'əm), intoxication of the system by organic compounds containing lead. . Unfortunately, many know their housing contains lead paint but fail to remove it. As a result, suits against landlords are fairly common. Claims may include failure to remove lead paint; violation of lead-poisoning statutes, state or local sanitary codes, and any applicable consumer protection laws consumer protection laws n. almost all states and the federal government have enacted laws and set up agencies to protect the consumer (the retail purchasers of goods and services) from inferior, adulterated, hazardous and deceptively advertised products, and ; and breach of the warranty of habitability Fitness for occupancy. The requirement that rented premises, such as a house or apartment, be reasonably fit to occupy.
A Warranty of habitability is an implied promise by a landlord of residential premises that such premises are fit for human habitation. and the covenant of quiet enjoyment A Covenant that promises that the grantee or tenant of an estate in real property will be able to possess the premises in peace, without disturbance by hostile claimants. . This article will provide strategies for handling these cases.
To establish liability, a plaintiff must first show that the landlord knew or should have known there was lead paint in the housing that posed a lead-poisoning hazard. Counsel can show knowledge by deposing property managers; identifying trade publications and conferences of which the landlord or employees were aware; and citing relevant federal, state, or local statutes and regulations. Landlords should be aware that any housing built before 1978 probably contained lead paint.
Knowledge can also be shown indirectly by documenting all the institutional conferences and publications addressing the dangers of lead paint about which the landlord knew or should have known. Examples include events sponsored and materials produced by landlord and residential property trade associations such as the Institute of Real Estate Management This article or section needs sources or references that appear in reliable, third-party publications. Alone, primary sources and sources affiliated with the subject of this article are not sufficient for an accurate encyclopedia article. and the National Association of Real Estate Investment Trusts. In addition, evidence of the widespread knowledge of these hazards can be found in newspapers, magazines, federal and scientific reports;(2) the Hazardous Substances Data Base;(3) and the ATLA ATLA Association of Trial Lawyers of America
ATLA American Theological Library Association
ATLA American Trial Lawyers Association
ATLA Air Transport Licensing Authority (Hong Kong)
ATLA Avatar: The Last Airbender Lead Paint Litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. Group's index.
Second, the plaintiff must show that lead paint was present in the child's home. In most jurisdictions, by the time counsel gets the case, the state or local board of health has already inspected the home to determine whether there are dangerous levels of lead in paint, plaster, or other accessible materials. Counsel should obtain that report. Depending on the jurisdiction, the report may constitute prima facie evidence prima facie evidence
Evidence that would, if uncontested, establish a fact or raise a presumption of a fact. of the presence of lead. A landlord's failure to appeal these findings may make them conclusive in some jurisdictions.
An increasing number of local housing authorities are conducting lead-paint inspections. In some cities, like the District of Columbia District of Columbia, federal district (2000 pop. 572,059, a 5.7% decrease in population since the 1990 census), 69 sq mi (179 sq km), on the east bank of the Potomac River, coextensive with the city of Washington, D.C. (the capital of the United States). , inspections must be preceded by a complaint. Other cities routinely inspect all housing even if no complaints are filed. Counsel can obtain these reports from the housing authority.
It is often advisable, and relatively inexpensive, to hire a private inspector or industrial hygienist who can collect samples of dust and paint chips from the building, particularly in the window wells. The soil around the building should also be examined. Lead-based paint from the building penetrates the soil over time and can cause or contribute to poisoning. An X-ray fluorescence test can also be conducted. This test involves a portable X-ray machine that can detect the presence of lead below the surface.
Third, the plaintiff must prove the child was exposed to lead paint. A simple blood test is the only positive proof of exposure. According to the Centers for Disease Control and Prevention Centers for Disease Control and Prevention (CDC), agency of the U.S. Public Health Service since 1973, with headquarters in Atlanta; it was established in 1946 as the Communicable Disease Center. (CDC See Control Data, century date change and Back Orifice.
CDC - Control Data Corporation ), levels of 10 micrograms of lead per deciliter deciliter /dec·i·li·ter/ (dL) (des´i-le?ter) one tenth (10minus;1) of a liter; 100 milliliters.
100 cubic centimeters (cc).
Mentioned in: Hypercholesterolemia of blood are hazardous; levels of 20 micrograms per deciliter require medical intervention.(4) Because lead does not remain in the bloodstream for long, a child who is possibly at risk should be tested often.
Another way to establish exposure is through expert testimony Testimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field. relying on uptake models developed by the Environmental Protection Agency Environmental Protection Agency (EPA), independent agency of the U.S. government, with headquarters in Washington, D.C. It was established in 1970 to reduce and control air and water pollution, noise pollution, and radiation and to ensure the safe handling and (EPA EPA eicosapentaenoic acid.
n.pr See acid, eicosapentaenoic.
n. ).(5) These models establish a range of lead amounts possibly absorbed by the child on the basis of the lead levels in the child's environment, including the child's home. In a recent case, the trial court admitted expert testimony relying on these models to prove exposure.(6)
Generally, defendants will try to prove the child was exposed to other sources--nearby highways whose traffic emissions may have produced lead fallout in the soil, or even a buildup of lead in the home from airborne sources other than the home itself. However, under principles of joint and several liability, a plaintiff need only show that ingestion ingestion /in·ges·tion/ (-chun) the taking of food, drugs, etc., into the body by mouth.
1. The act of taking food and drink into the body by the mouth.
2. of lead paint in a house is a substantial contributing cause, not the sole cause, of the injury.
Lead poisoning may cause injuries as severe as brain damage, mental retardation mental retardation, below average level of intellectual functioning, usually defined by an IQ of below 70 to 75, combined with limitations in the skills necessary for daily living. , and even death. Fortunately, the most serious injuries are relatively rare today. More common injuries affect behavior (for example, attention deficit disorder attention deficit (hyperactivity) disorder (ADD or ADHD)
Behavioral syndrome in children, whose major symptoms are inattention and distractibility, restlessness, inability to sit still, and difficulty concentrating on one thing for any , hyperactivity, problems with fine motor skills); result in diminished IQ, or adversely affect language or other cognitive skills.
Often the defense will argue that mental or neurologic deficits cannot be shown in young children because they are too young for objective testing. However, special tests by neuropsychologists--experts in the relationship between brain structure and function--can demonstrate lead-related deficits even in young children. A neuropsychologist Neuropsychologist
A clinical psychologist who specializes in assessing psychological status caused by a brain disorder.
Mentioned in: Post-Concussion Syndrome can give a series of behavioral and psychological tests Psychological Tests Definition
Psychological tests are written, visual, or verbal evaluations administered to assess the cognitive and emotional functioning of children and adults. to evaluate the effects of brain dysfunction or damage on a child's performance. This expert can testify about the services that the child will need to reach the full (though diminished) educational and vocational potential that remains and can offer an opinion on how the child's problems will manifest themselves later.
Counsel should be aware that diminished IQ is difficult to prove in children under age six. However, the government has developed IQ deficit models that translate lead levels in the blood to IQ deficit.(7) With them the CDC has developed economic analyses that translate IQ loss into lost wages.(8) Experts should use these models to support their opinions regarding the impact of lead poisoning on the child.
Counsel must avoid concluding the case before all the damages are manifest, yet not postpone recovery for a young child who needs money to address present deficits. Where a child under six is involved, the attorney should convince the court to bifurcate To divide into two. the damages portion of the case into two trials--an early one to get immediate compensation to cover speech and physical therapy and special preschooling pre·school·ing
Early childhood education, especially when received at a preschool. , and one after the child is six, when the IQ deficits, more severe neurologic effects, and poor school performance are measurable.
Attacks on Experts
As the evidence of the hazards of lead has mounted dramatically, landlords and the lead industry have shifted from defending lead to attacking the plaintiffs' experts. For example, Dr. Herbert Needleman, one of the first researchers to do a large epidemiological study of the effects of lead-paint poisoning on children, has been the subject of an attack launched by two industry consultants.(9) The attack is based primarily on quibbles over the use and interpretation of data. The consultants are now surfacing as witnesses in cases to attack Needleman.(10) They have been trying to discredit him for more than a decade, and they will surface again.
Even if plaintiff's counsel does not use Needleman in a case, it will be difficult to avoid having the expert rely, directly or indirectly, on Needleman's work. Should an attack against Needleman or his work surface, the scientific literature provides ample evidence to establish, among other things, that
* Needleman has done nothing wrong;
* even if all his alleged "errors" were corrected, it would not change the results of his work;
* other studies that have not been attacked have replicated his results; and
* government agencies have consistently used his work as the basis for lead-paint and lead-level regulations across the board, whether they address air pollution, lead-paint poisoning, or other issues.(11)
Landlords, particularly those operating substandard low- and moderate-in-come housing, may claim they cannot pay the judgment. Counsel should not believe it. Careful research may disclose that the landlord transferred assets to other parties--cousins, siblings, nephews, and so on. To prevent this, counsel can attach property at the beginning of the suit. Counsel can also bring a fraudulent conveyance A transfer of property that is made to swindle, hinder, or delay a creditor, or to put such property beyond his or her reach.
For example, a man transfers his bank account to a relative by putting the account in the relative's name. claim.
If the landlord does not have the resources, the attorney may look to the landlord's insurer. The insurer may claim no coverage exists because lead-paint poisoning falls under the pollution exclusion clause, which denies coverage for damage caused by environmental pollution. However, careful review will often show that the clause does not apply to products installed on the walls, doorways, or windows of a landlord's house.
In many states, a settlement can be reached with the landlord, with notice to the insurer and approval by the court, and the plaintiff can stand in the landlord's shoes and sue the insurer. If the settlement is approved, the suit will only address the issues of coverage and reasonableness of the settlement.(12)
Tort litigation is useful in reforming landlord conduct, but one more weapon is needed. Most environmental statutes contain a citizen enforcement provision allowing citizens to sue if the government, for whatever reason, does not. Every lead-paint regulation law in the country should contain such a provision. Consequently, if states and the federal government decide that they do not have the resources to go after a landlord, citizens can be deputized to do it themselves. These provisions are effective ways of enforcing environmental law and of preventing environmental damage before it occurs.
Lead poisoning is one of the leading results of environmental racism--the disproportionate share of pollution that falls on the poorest people in our society. By destroying the minds of the children of the poorest Americans, it perpetuates their poverty and denies them the opportunity to improve their lot. Trial lawyers can become a vital part of the battle against environmental racism by reaching out to groups like the National Association for the Advancement of Colored People National Association for the Advancement of Colored People (NAACP), organization composed mainly of American blacks, but with many white members, whose goal is the end of racial discrimination and segregation. and local offices of the Legal Services legal services n. the work performed by a lawyer for a client. Corp. Both often look for competent litigators to represent the victims of lead-paint poisoning. You can join the fight today.
(1)CENTERS FOR DISEASE CONTROL (CDC), U.S. DEP'T OF HEALTH & HUMAN SERVS SERVS Ship Escort Response Vessel System (Alyeska Pipeline Service Company) ., STRATEGIC PLAN FOR THE ELIMINATION OF CHILDHOOD LEAD POISONING, app. II at 1 (1991).
(2)COMMITTEE ON MEASURING LEAD IN CRITICAL POPULATIONS, NAT'L RESEARCH COUNCIL, MEASURING LEAD EXPOSURE IN INFANTS, CHILDREN AND OTHER SENSITIVE POPULATIONS 93 (1993) [hereafter NRC NRC
1. National Research Council
2. Nuclear Regulatory Commission
Noun 1. NRC - an independent federal agency created in 1974 to license and regulate nuclear power plants Report] ("In children, blood lead concentrations around 10 ug/dl are associated with disturbances in early physical and mental growth and in later intellectual functioning and academic achievement."); AMERICAN ACADEMY OF PEDIATRICS The American Academy of Pediatrics ("AAP") is an organization of pediatricians, physicians trained to deal with the medical care of infants, children, and adolescents. Its motto is: "Dedicated to the Health of All Children. , LEAD POISONING FROM SCREENING TO PREVENTION 176 (1993) ("There is a general consensus of opinion about the relationship between lead and cognitive function cognitive function Neurology Any mental process that involves symbolic operations–eg, perception, memory, creation of imagery, and thinking; CFs encompasses awareness and capacity for judgment ."); CENTERS FOR DISEASE CONTROL, U.S. DEP'T OF HEALTH & HUMAN SERVS., PREVENTING LEAD POISONING IN YOUNG CHILDREN 7 (1991) ("Lead is a poison that affects virtually every system in the body. It is particularly harmful to the developing brain and nervous system of fetuses and young children.").
(3)A valuable research tool for linking toxic substances to particular illnesses is the group of computer databases maintained by the National Library of Medicine (NLM Software that runs in a NetWare server. Although NetWare servers store DOS and Windows applications, they do not execute them. All programs that run in a NetWare server must be compiled into the NLM format. They are typically written in C and use Novell's libraries. ), part of the National Institutes of Health. These databases are generally accessible through TOXNET TOXNET Toxicology Data Network and MEDLINE The online medical database of the U.S. National Library of Medicine (NLM) whose parent is the National Institutes of Health, Bethesda, MD. MEDLINE contains millions of articles from thousands of medical journals and publications. The consumer section of the site (http://medlineplus. . To help in searching these databases, NLM sells GRATEFUL MED, a useful software program. For more information, write to the National Library of Medicine, Bldg. 38A, 8600 Rockville Pike, Bethesda, MD 20894, or call (301) 496-6531.
(4)See CENTERS FOR DISEASE CONTROL, supra note 2, at 5-6 (table 1).
(5)U.S. ENVIRONMENTAL PROTECTION AGENCY, GUIDANCE MANUAL FOR THE INTEGRATED EXPOSURE UPTAKE BIOKINETIC MODEL FOR LEAD IN CHILDREN iii (1994).
(6)Wagner v. Anzon, Inc., No. 87-3502 (Pa., Philadelphia County Ct. Common Pleas, Sept. 1994) (order admitting expert testimony was issued from the bench).
(7)See COMMITTEE ON MEASURING LEAD IN CRITICAL POPULATIONS, supra note 2, at 59 (1993) (calculating a drop of 2-4 IQ points for each increase of 10-15 ug/dl of lead in the blood above 10); see, e.g., Wagner, No. 87-3502.
(8)CENTERS FOR DISEASE CONTROL, supra note 1, at app.
(9)Claire Ernhart, Ph.D., and Henrietta Sachs, M.D., have frequently appeared as hired experts for lead defendants, spokespersons for the lead industry, or researchers for institutes funded by the lead industry.
(10)See, e.g., Wagner, No. 87-3502.
(11)For example, the criticisms by Dr. Ernhart in 1981 were considered and rejected by the EPA in 1986, IV U.S. ENVIRONMENTAL PROTECTION AGENCY, AIR QUALITY CRITERIA FOR LEAD 12-87 (1986), and by the National Research Council in 1993, COMMITTEE ON MEASURING LEAD IN CRITICAL POPULATIONS, supra note 2, at 64. But Dr. Ernhart continues the attack. On Mar. 16, 1994, she wrote to the CDC seeking to have Dr. Needleman removed from its Advisory Committee on Childhood Lead Poisoning Prevention. Dr. Henry Falk, Director, Division of Environmental Hazards and Health Effects, National Center for Environmental Health at the CDC flatly rejects this latest assault on Dr. Needleman. He concludes, "Dr. Needleman remains a valuable member of our advisory committee and continues to make valuable contributions to the effort to eliminate childhood lead poisoning."
(12)See, e.g., Damron v. Sledge, 460 P.2d 997 (Ariz. 1969).
@Kayla Wildflower (Member): FAIL: Article outdated and inaccurate 5/1/2010 12:56 PM
At the time of this comment in 2010 this article is 15 years old. Due to its inflammatory content an update should be posted at the top.
The author's early comment, "Landlords should be aware that any housing built before 1978 probably contained lead paint," is false for two reasons.
1. Landlords are not aware if their housing has lead paint unless tests reveal so or they owned it and had it painted with lead paint decades ago.
2. In homes built after 1950 there is a very good chance there is no lead paint, as that is the year manufacturers voluntarily began phasing out the use of lead in paint.
Listen to from 34 seconds to 1:23 of the video "Is there a way to avoid this rule" (of using certified lead paint renovators)http://www.realtor.org/government_affairs/lead_paint_property_managers_faq.
Then type into your search engine % of homes with lead paint built after 1950. You will be inundated with information.
Given these facts, it is unconscionable to advocate suing landlords under the erroneous assertion that they "knew or should have known" their housing contained lead paint.