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.

Landlord Wins Eviction Suit By Rummaging Through Tenant's Trash; D.C. Court of Appeals Affirms Dismissal Of Follow-On Privacy Suit By Tenant

In Danai v. Canal Square Associates, there was a dispute between the landlord and the tenant, a travel agency, concerning whether the tenant failed to renew its multi-year lease.  During a bench trial, the landlord impeached the President of the travel agency, who had testified concerning her understanding of the renewal provision in the lease, by questioning her about a draft letter to the landlord which the landlord had found in the tenant's trash.  The trial court entered judgment for the landlord, giving it possession of the premises.

The tenant then brought suit against the landlord for invasion of privacy and intentional infliction of emotional distress.   It was undisputed that the tenants' trash was taken out from the leased premises and stored in a "trash room" in the building.  The letter had been written and then torn up on March 30, and on April 1 a Vice President of the landlord went through the tenant's trash in the trash room and recovered the letter.  The letter was used at trial to prove that the tenant was aware of its failure to give notice to the landlord of its intent to renew the lease.

The trial court granted summary judgment to the landlord, finding that the tenant did not have a reasonable expectation of privacy in its trash, and the D.C. Court of Appeals affirmed.

Jury Verdict for Plaintiff in Private Nuisance Reversed By Maryland Court of Special Appeals

The Maryland Court of Special Appeals has reversed a jury award of $25,000 to a property owner who sued a neighbor under a private nuisance theory. The neighbor had engaged in a series of rude and threatening actions in response to the plaintiff's construction of a fence along the property line. The plaintiff then sued the neighbor under a nuisance theory and received a jury verdict. The neighbor then appealed.

The Court of Special Appeals reversed, reasoning that the fact that the plaintiff avoided using her own back yard to avoid the rude neighbor was not enough to support a theory of private nuisance:

This avoidance policy was one of free choice. If they had used their yard (according to their proof), they would have risked nothing more than having to endure rude gestures or words from their neighbor. In sum, proof that they adopted such an avoidance policy was insufficient to prove either of the two necessary elements of a private nuisance action, i.e., (1) their injury was of such “a character as to diminish materially the value of the property for” use as a dwelling and (2) Echard’s actions caused “serious interference with the ordinary comfort and enjoyment” of the Krafts’ property. Slaird, 260 Md. at 9.

Summary Judgment In Favor of Retail Store On Res Ipsa Theory Reversed

In Norris v. Ross Stores, the Maryland Court of Special Appeals reversed the trial court's award of summary judgment to a retail store with regard to the plaintiff's negligence theory which relied upon the doctrine of res ipsa loquitur.

The plaintiff had been shopping in the store and was injured when, as she passed by a glass shelving unit displaying goods, the shelving unit collapsed and shattered. The store was open to the public at the time. The shelving unit had been installed in the store by an independent contractor.

The trial court awarded summary judgment to the store, evidently because the court reasoned that no reasonable jury could find that the store had exclusive control over the shelving at the time of the occurrence.

The Court of Special Appeals reversed, finding that under these facts, the element of exclusive control was an issue of fact for a jury, and reasoned in part as follows:

Nor did Ross submit any evidence that Norris or others contributed in any way to cause the incident. On this evidence, we are satisfied that it was for a jury to determine whether Ross was in fact in exclusive control of the shelving unit. The resolution of whether the display was improperly installed, unstable, or otherwise capable of causing injury for any reason attributable to Ross was a function which should have remained with the jury. A jury could, but would not be required to, accept Norris's testimony that she did not touch the shelving unit and did not see anyone else do so. In order to find that a third person interfered with Ross's exclusive control and was responsible for the collapse of the unit, a jury would have to accept that someone other than a Ross employee or agent tampered with or caused damage to the unit, and did so without detection by Ross. Ross suggests that "a store patron could have struck the shelves with a shopping cart, or misused the shelves by standing, climbing or sitting on same. . . .” This hypothesis does not conclusively refute Norris's version of the incident. A jury might deem Ross's theory to be rather remote. It could determine that the speculated "misuse" of Ross would most likely result in the immediate collapse of the shelving unit, while an improper installation or stacking might be more likely to result in a delayed collapse.