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Recent Developments: Appeals Court Reverses Lower Court on Lead-Based Paint Lawsuit

In an April 1, 2015 decision, the appeals court for Long Island and parts of New York City reversed a lower court decision that had thrown out "common law" negligence claims against a landlord involving lead-based paint. A "common law" claim means the claim comes from judge-made law, not a statute.

The plaintiff was renting an apartment in a Brooklyn brownstone in the early 2000's and lived there with her two small children. In 2005, blood tests showed that the two children had elevated levels of lead in their blood. The NYC Department of Health was called in and found lead-based paint on the walls.

On behalf of her two children, the mother sued the brownstone owner, alleging statutory claims and common law claims of negligence for the injuries from the lead-based paint. Ultimately, the defendants made a motion for summary judgment to dismiss the common law claims, arguing they did not know about, and had no reason to know about, the lead-based paint until the Dept. of Health did their inspection. The lower court agreed.

The appeals court reversed the lower court, saying, first of all, a landowner "has a duty to maintain his or her premises in a reasonably safe condition." Second, a landlord should have discovered and removed lead-based paint on walls where
the landlord (1) retained a right of 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.
The court held that the defendants had not established on their motion that they did not have such "constructive notice" of lead-based paint on the walls.

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