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The Lead Poisoning Case

Proof of Constructive Notice Post Chapman

As scientific knowledge has grown about the severe dangers to young children arising from lead poisoning, legal principles of liability have been expanded to more liberally permit compensation due to lead exposure. Chapman v. Silber, 97 N.Y.2d 9, 21 (2001); Juarez v. Wavecrest Management Team Ltd., 88 N.Y.2d 628, 640-641 (1st Dept. 1996); U.S. Dept. Health and Human Services, Center Disease Control & Prevention, Preventing Lead Poisoning in Young Children (Oct. 1991).

Scientific research has now convincingly demonstrated that a relatively “low level” of blood lead concentration in a young person is a competent sign of associated severe cognitive impairment and lowered IQ. U.S. Dept. Health and Human Services, Center Disease Control & Prevention, Preventing Lead Poisoning in Young Children (Oct. 1991) at 9. Jour. Am. Med. Assoc. Vol 263, “Low Level Lead Exposure and the IQ of Children”, Needleman, H.L. (1990) at 673.

Moreover, this contemporary scientific understanding of lead’s impact has established persuasively that even the smallest concentrations of lead in the brain may damage brain cells. New. Engl J Med. Vol. 348, “Intellectual Impairment in Children with Blood Lead Concentrations Below 10ug per Deciliter”, Canfield RL, Henderson, Jr. MA, Cory-Slechta DA, et al. (2003) 1517. In other words, this research now makes apparent that lead in the brain, and particularly the child’s brain, does indeed cause actual brain damage. Brain, Vol. 126, “Lead Neurotoxicity in Children: Basic Mechanisms and Clinical Correlates”, Theodore I. Lidsky, Jay S. Schneider (2003) at 5-19. It has been widely recognized that the chemical valence of lead and calcium are so similar that the human body can not easily distinguish between the two. “Lead Neurotoxicity in Children: Basic Mechanisms and Clinical Correlates”, supra, at 5.In which case, lead in the bloodstream-- instead of calcium-- is literally absorbed into all tissues of the body, including the brain. “Lead Neurotoxicity in Children: Basic Mechanisms and Clinical Correlates”, supra, at 5-8.

In a developing child’s brain (particularly in the brain of a child between 18 months and 3 years of age) lead actually replaces calcium and disturbs the normal process of “pruning”. “Lead Neurotoxicity in Children: Basic Mechanisms and Clinical Correlates”, supra, at 8-9. “Pruning” is the process by which a young brain “prunes” the neural pathways and eliminates excess pathways thereby enabling the brain to efficiently and effectively process information in a mature adult. “Lead Neurotoxicity in Children: Basic Mechanisms and Clinical Correlates”, supra, at 8-9. If such pruning process is disturbed or fails to occur, cognitive processing difficulties result and are often evidenced by symptoms most frequently associated with conditions commonly known as “Attention Deficit Disorder” (ADD) and “Attention Deficit Hyperactivity Disorder” (ADHD). “Lead Neurotoxicity in Children: Basic Mechanisms and Clinical Correlates”, supra, at 8-9.

These symptoms are well recognized to include poor impulse control, substandard verbal processing, impairment of memory, delayed speech and behavioral problems typified by aggressive, inappropriate and agitated behavior. The sum consequence of these impairments frequently leads to sub-par academic achievement and capability, and, in some instances, the need for special education, psychiatric counseling and intervention. New Engl J Med. Vol. 300, “Deficits in Psychologic and Classroom Performance of Children with Elevated Dentine Lead Levels”, Needleman HL, Gunnoe C, Leviton A. Reed R, Peresie H, Maher C, et al. (1979) at 689-95. In short, the young child’s early lead exposure may have profound, often devastating effects throughout the child’s life including substantially diminished earning capacity, social mal-adjustment and severe anxiety.

Yet, the important societal interest in protecting children’s neurological development must be weighed against the significant financial costs required to upgrade older homes and buildings wherein lead paint still exists in great proportion. In other words, society has wrestled with balancing these legitimate financial and business interests against the interests of children seeking just compensation for neurologic injury. The proper balance has come to be increasingly dominated by what legally constitutes prima facie evidence of a landlord’s notice of a lead paint hazard.

Considering the inherent difficulty in balancing these competing substantial interests, it is not surprising that legal authority in New York State has been diverse and sometimes inconsistent. Illogically, there have been contradictory results for children who have sought compensation for lead poisoning arising within the confines of the City of New York (“The City”) as opposed to those who were exposed to lead paint in housing outside the City. To address lead paint’s hazards, The City enacted Local Law 1 as part of its Administrative Code. This administrative regulation mandates that multiple dwelling owners presume that the interior paint of all such dwellings constructed before 1960 is lead based. Thus, the regulation fulfills the notice requirement inherent in a common law negligence action. In short, prima facie proof of notice to the landlord of a lead paint condition in the City is a presumption. See Juarez v. Wavecrest Management Team Ltd., 88 N.Y.2d628 (1996).

While in The City notice of a lead hazard to the landlord is a regulatory presumption, lead injured children elsewhere in New York State have had to establish actual notice purusant to common law. And, the common law had traditionally established an onerous legal hurdle in this regard which was recognized and modified by the Court of Appeals in Chapman v. Silber, 97 NY2d, 9, 760 N.E.2d 329, 734 NYS2d 541 (2001).

In Chapman, supra, the defendant landlord was successful in having the infant’s case dismissed by the Appellate Division on grounds that: “[t]he fact that a landlord is aware of the presence of chipped or peeling paint in an old apartment does not raise an issue of fact as to the landlord's notice of lead in the paint”. Chapman, supra, at 547. The Court found this reasoning unduly restrictive, commenting:

[t]hat rule leaves plaintiffs in an impossible situation. Defendant-landlords cannot be held liable for a hazardous lead paint condition unless they are actually aware that lead is present in chipping paint. Yet, because lead in paint is undetectable to the senses, a landlord cannot actually know of its presence without testing. Thus, applying the Appellate Division principle, landlords who deliberately refrain from testing for lead can shield themselves from liability.” Chapman, supra, at 547.

To ease this restriction, the Court established a new analysis to explore whether landlords indeed ought to be charged with constructive notice of a hazardous lead paint condition. This analysis -- in essence a five prong test for a prima facie showing of constructive notice -- was articulated by the Court to charge constructive notice upon defendant landlords who:

1. retained a right of re-entry to the premises and assumed a duty to make repairs;
2. knew that the apartment was constructed at a time before lead-based interior paint was banned;
3. was aware that paint was peeling on the premises;
4. knew of the hazards of lead-based paint to young children; and
5. knew that a young child lived in the apartment. Chapman at 543

Simply put, no longer does recovery for injury arising from lead exposure rest upon whether or not the defendant landlord actually knew lead was contained within chipped and peeling paint. Now, such knowledge can be constructively inferred where the landlord knows that the subject dwelling is “old”. In which case, the landlord can be deemed presumptively to have known that such domicile would contain lead paint.

Thus, this five prong test undercut previous traditional ground for landlords who had theretofore successfully prevailed through summary judgment in lead poisoning cases. See, e.g., Andrade v. Wong, 251 AD2d 609, 675 NYS2d 112 (2nd Dept. 1998); Busto v. Tamucci, etal., 251 AD2d 441, 674 NYS2d 406 (2nd Dept. 1998); Lanthier v. Feroleto, 237 AD2d 877, 654 NYS2d 531 (4th Dept. 1997) Brown v. Marathon, Inc. 170 AD2d 426, 565 NYS2d 219 (2nd Dept. 1991).

But, the Chapman five prong test may have facilitated the emergence of a wholly new basis of defense. For under the Chapman test, a defendant landlord may simply now contend that he: “didn’t know that lead paint was hazardous to young children.” And, the landlord’s state of subjective general knowledge could arise as the significant factual issue upon which the outcome might turn if the Court of Appeals fourth prong of the test in Chapman –“knew of the hazards of lead-based paint to young children”--is literally construed. So consequently now, evidence demonstrating a defendant landlord’s actual subjective knowledge must necessarily be part of the infant plaintiff’s prima facie case.

Logically, proof of the landlord’s actual knowledge of the dangers of lead would seem most readily demonstrable in one of six ways.

1. A simple admission by the defendant of such knowledge. (In fact, the defendant in Chapman made such an admission.) Of course, a “simple” admission is generally not at all simple. A defendant in these circumstances can be expected to evade or avoid acknowledgment of such awareness.
2. A witness testifies that he told the defendant about the dangers of lead to children. While such proof of a defendant’s knowledge is conceivable, it would seem inpracticable that this sort of evidence would be readily available except in the most unusual of circumstances.
3. An actual violation of the multiple dwelling unit involved. Any local health authority who conducts an inspection positive for chipped and peeling lead paint will notify the landlord of such findings which will ordinarily include a statement that the lead hazard is dangerous to young children. The difficulty for plaintiff created-- by reliance on this means of establishing the defendant’s knowledge-- is that the exposure to the lead hazard may cease at this point if the child is removed from the subject premises. In such circumstances, the defensel may prevail-- not on the issue of notice-- but rather by arguing that plaintiff has failed to establish proximate cause between the lead exposure for which the landlord can be held at fault and the damages resulting thereby to the infant.
4. Another apartment or a common area (not the unit involved in the law suit) within the landlord’s dominion and control has been the subject of a prior notice that lead hazards exist. This source of proof would most likely apply to the “professional landlord” who owns several multiple dwelling units. Notice here might be established if a local health department or building department has given the landlord actual notice of a hazardous lead condition for another dwelling, common area, or unit provided such notice occurred prior to the lead exposure of the child at issue. Aldrich v. County of Oneida, 299 AD2d 938, 939 (4th Dept. 2002); Rodriguez v. Amigo, 244 AD2d 323 (2nd Dept.1997); Smith v. Fields, N.Y.L.J., June 12, 1997, p.28, Col. 6 (Sup. New York).
5. A landlord’s participation in a federally assisted housing program, “Section 8 housing program”. Federal rental assistance is provided to low income tenants under a federal law commonly known as “Section 8". Tenants in the program execute a lease withthe landlord who has during the pendency of the lease, a contractual relationship with a local housing authority. It is this contractual relationship with the local housing authority which enables the landlord to receive the “housing assistance payment” or “HAP.” Such contractual relationship mandates that the premises in question meet or exceed federal standards known as the Housing Quality Standards (known as “HQS”). Housing Quality Standards specifically make reference to lead based paint and its hazards. For example these standards effective as early as 1995 stated:

   I) Lead based paint-(1) Purpose and applicability. The purpose of this paragraph is to implement the provisions of . . . The Lead Based Paint Poisoning Prevention Act . . . By establishing procedures to eliminate as far as practicable the hazards of lead based paint poisoning. . . . . (3) Defective paint. In the case of a unit . . . which includes a child under the age of seven years . . . The initial inspection . . . Shall include an inspection for defective paint surfaces(4) Chewable surfaces. In the case of a unit constructed prior to 1978 which includes a child under the age of seven years with an identifiable EBL condition, the initial inspection . . . Shall include a test for lead based paint on chewable surfaces.

   No landlord, who participates in the Section 8 Housing Program can credibly deny knowledge of the dangers of lead based paint to young children. Even were the Section 8 landlord to deny such actual knowledge, the existence of Housing Quality Standards governing the maintenance of any of his premises should be deemed sufficient notice to the landlord of the dangers of lead paint.
6. Lead Paint Disclosure Affidavit. In cases of exposure arising after September, 1996 proof of the defendant landlord’s actual knowledge of the dangers of lead paint is evidenced by the purchase, sale or mortgage of real estate in New York State which necessarily entails affidavits of lead paint disclosure. As of 1996, every contract for the purchase or sale of any interest in target housing "target housing" (generally, pre-1978 housing dwellings, see §§1004(27) must contain a disclosure warning of the dangers of lead paint along with an affidavit signed by the purchaser and seller that evidences such disclosure has been given and that the seller is not aware of any undisclosed lead paint condition. Title X of the Housing and Community Development Act of 1992. Pub. L. No. 102-550, Title X §§1002 et seq., 106 Stat. 3897 et seq. (Oct. 28, 1992), codified primarily at 42 U.S.C. §§4851(amendment to LPPPA); 42 U.S.C. §§4858 et seq. (the RLBPHRA); and 15 U.S.C. §§2681 et seq. (provisions added to the TSCA) (Supp V. 1994).

Attorneys must be vigilant and zealous in seeking fair compensation for those grievously harmed by lead poisoning as it is now clear that those so harmed have suffered actual brain damage with life-long permanent and devastating consequences. And, every reasonable avenue should be explored in discovery to establish a landlord’s subjective knowledge of the dangers of lead so long as the Chapman test is the applicable rule for showing notice in lead posioning cases.

The common law adapts to changed circumstances. The Court of Appeals decision in Chapman, supra, exemplifies this principle in that change of the law came about following an increased scientific awareness of the catastrophic toxic hazards of lead upon young children. And, the decision has wrought a potentially significant modification of the prior rule for establishing notice. How significant the Chapman modification is--- in actually preventing landlords from escaping liability--- for lead hazardous conditions will ultimately be defined by the case law following Chapman. Nevertheless, Chapman’s constructive notice test has created the potential for children whose exposure to lead has occurred in New York State outside The City to now have a reasonable opportunity to have their injuries compensated.