Insurance Defense Blog

D.C. Landlord's Liability for Lead-Based Paint Poisoning Expanded By Court of Appeals

The D.C. Court of Appeals has held that a landlord can be sued in negligence for lead-based paint poisoning of a child even if the landlord had no notice of the presence of lead-based paint on the premises, or notice of the presence of chipping, flaking or peeling paint --  provided that the landlord knew that a child under the age of 8 years old lived there. Childs v. Purll.

The Court based its decision on a D.C. regulation which creates an affirmative duty on the landlord to remediate lead paint hazards in an apartment where such young children live.

The Court stated, in pertinent part, as follows:

Although the Purlls and their management company may not have known there was lead paint in the premises, “actual knowledge [of the defect] is not required for liability; it is enough if, in the exercise of reasonable care, appellee[s] should have known that the condition . . . violated the standards of the Housing Code.” Whetzel, 108 U.S. App. D.C. at 393, 282 F.2d at 951. “Ordinarily, the landlord will be chargeable with notice of conditions which existed prior to the time that the tenant takes possession,” RESTATEMENT § 17.6 cmt. c, and the creation in § 707.3 of an affirmative duty to furnish lead-free premises implies a concomitant, antecedent duty to ascertain whether the premises in fact are lead-free.

Upon notification that the prospective tenants of 1411 Ridge Place would include children under eight years of age, § 707.3 imposed a specific, affirmative duty on the owners and their agents to provide those premises to the Childs family in a lead-free condition or not at all.

(footnotes omitted, emphasis added).

In this case, the landlord was notified of the age of the children in the lease agreement.

Citing a New York case, the Court further stated that, " In effect, § 707.3 presumptively serves to put the landlord on constructive notice of any lead paint hazard in premises occupied by children under eight."

One way to try to defend against the statutory presumption of negligence is to show that the landlord did all that all reasonable person would do to establish that the premises were free of lead paint and to comply with the regulation.

This is a major expansion of the liability of landlords for lead-based paint poisoning in the District of Columbia, in the same vein as recent lead poisoning cases in Maryland. 

The end result is that any child under 8 years old in the District of Columbia who sustains lead-based paint poisoning in an apartment has a cognizable cause of action in negligence against the landlord, even if the landlord had no knowledge that there was lead-based paint on the premises and had no knowledge that there was flaking, peeling, or chipping paint there.  The focus of lead poisoning litigation in the District will necessarily be on the proof that the child got the lead poisoning on the premises, rather than from other sources such as the municipal water system.

The Court's opinion, however, rejected the argument that a lead poisoning claim could be the basis for a claim under the D.C. Consumer Protection Act.

Legal Requirements for Lead Blood Tests Ignored In D.C.

I have often wondered why there is so much more litigation in Baltimore over lead-based paint poisoning than in the District of Columbia. One reason might be that legally required blood tests of young children simply are not being done in the District, as the Post reports today.

Guidelines for Testing for Lead in Drinking Water

Recent articles in the Washington Post have discussed the problem of elevated lead levels in residential drinking water. Here is a link to guidelines for testing for lead in drinking water.

Maryland Court of Appeals Determines Number of Claims Under An LPL Policy

If a grandmother retains an attorney to represent five minor children (who are brothers and sisters) with respect to lead-based paint poisoning, sustained while residing in the same rental property, and the attorney files a single complaint, presenting all of the claims in a single consolidated action, and later the attorney's alleged negligence in preparing the cases results in summary judgment in favor of the landlord, is the attorney's insurance coverage under his LPL policy the single limit (because the claims are related), or the aggregate limit?

It is difficult to see how the claims would not be "related" under these circumstances, given that it was joint representation by a single attorney in a consolidated lawsuit against a single defendant, the landlord; and given that the facts as to the presence of peeling or flaking lead paint in the premises would have been common to all the cases. In other words, the evidence as to liability would in large part have been common for all the children. Further, there was probably a joint retainer agreement, and the costs of the litigation would no doubt have been prorated among the minor plaintiffs.

Nevertheless, the Maryland Court of Appeals has held that these claims are not "related", and that the aggregate limit of liability under the LPL policy applies.

In Beale v. American Nat. Lawyers Ins. Reciprocal, No. 87, Sept. Term, 2002 (Md. Feb. 19, 2004), the Court held that where an attorney represented multiple clients in a tort action, a malpractice insurance provision which defines the per claim limit of liability as "all damages arising out of the same, related, or continuing Professional Services without regard to the number of claims made, demands, suits proceedings, claimants, or Persons Insured involved," the aggregate limit of liability applies, and not the limit for a single claim.

Maryland Court of Appeals Holds That Plaintiffs In Lead-Based Paint Poisoning Suits Need Not Prove Common Law Notice Requirement To Establish Prima Facie Negligence Case Against Landlord

Baltimore landlords, grab your paint brushes!

In Brooks v. Lewin Realty III, Inc., (Md. Nov. 13, 2003), the Maryland Court of Appeals held that in the context of a tort action against a Baltimore City landlord, based upon a child’s consumption of lead-based paint which was present in the form of flaking, loose, or peeling paint in the leased premises, in violation of the Housing Code, the plaintiff does not have to show that the landlord had notice of the violation to establish a prima facie case. This ruling overturned prior Maryland precedent to the contrary.

Suit Against Paint Manufacturers Dismissed

Dee McAree of the National Law Journal reports about the dismissal of an Illinois suit against 12 paint manufacturers seeking damages for the cost of treatment and clean up of lead-based paint.

Meanwhile, starting on Oct. 21, 2003, all paint sold in the U.S. will carry warnings about the dangers of lead-based paint.

By the way, next week is National Lead Poisoning Prevention Week, as I learned on the Coalition to End Childhood Lead Poisoning website. The Coalition is a Maryland-based organization. A similar national organization is The Alliance for Healthy Homes.