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Landlord Liability for Lead Paint Poisoning Lawsuits

Flowers

May 12, 2004

Greta K. Kolcon

The number of lawsuits filed on behalf of children against landlords related to lead paint poisoning is steadily growing. Although the use of lead based paint was banned throughout New York State by 1978, much of the existing housing, especially in urban areas, predates that time. Lead poisoning continues to affect a large population of US children between ages of 1 and 5. according to the United States Department of Health and Human Services, lead poisoning is “the number one environmental threat to the health of children in the United States." Children and low-income families in urban settings residing in rental units and older buildings are statistically most likely to suffer from exposure to lead. People can be exposed to lead by breathing or swallowing lead based paint dust or by eating lead contaminated soil or lead-based paint chips. In many cases, landlords may be liable for the exposure if they had notice of certain property issues, such as the existence of chipping or peeling paint.

If not detected early, high levels of lead in a child can cause serious permanent injuries which may include damage to the brain and nervous system. At high levels, lead poisoning can be fatal. Although a young child may not appear to have any symptoms at the time of exposure, as the child becomes school-age, typical symptoms include behavioral and learning problems, slowed growth, hearing problems and headaches. Lead is also to harmful to adults and can cause difficulties during pregnancy and reproductive problems, as well as increased blood pressure, nerve disorders, memory and concentration problems, and muscle and joint pain. If landlord liability is established, the serious and permanent nature of these types of injuries tend to translate into larger monetary settlements and verdicts than many other types of personal injuries.

Even landlords who consider themselves conscientious individuals who make every effort to maintain good quality rental housing for their tenants may face potential lead poisoning lawsuits. The legal and scientific standards dealing with lead exposure and abatement have changed significantly over the past several years. However, there can be a long delay between the time of a tenant's exposure to lead and the time that a lead paint poisoning case is brought in court. In the case of small children who are exposed to lead, the statute of limitations for claims is tolled until they reached the age of majority. What that means for residential landlords is that the potential for being sued in a lead paint case exists sometimes for more than a decade after the child may have lived in a rental unit. Therefore, it is essential that residential landlords maintain and preserve detailed records, including repair records and records of any past lead testing or abatement. A former landlord who is no longer in the rental business may be sued, even if they no longer own the property.

Many residential landlords now being sued for damages suffered by children for lead poisoning are also faced with the discovery that their insurance may not cover claims relating to lead-based paint. Prior to approximately 1995, many insurance policies did not contain a specific exclusion for lead paint claims. However, after approvals by the New York State Department of Insurance in the mid-1990s, insurance companies were allowed to add exclusions for lead poisoning claims, and many did so.

In addition, by 1996, federal law required all residential landlords to provide all tenants with specific disclosures relating to lead paint. Many landlords are still not aware of these requirements. If the disclosures are not provided, a landlord may be held liable for three times the amount of the plaintiff's actual damages. The National Lead Information Center (NLIC), which operates under a contract with the United States Environmental Protection Agency, can provide residential landlords with a general information packet. The NLIC can be reached at 1-800-424- LEAD (5323), or go to www.epa.gov/lead/nlic.htm.

Landlords who own residential rental property, especially homes or apartment buildings which were built prior to 1978, are encouraged to contact legal counsel to evaluate potential liability exposure to lead paint lawsuits and compliance with current standards. If you are served with a claim letter or a lawsuit, Woods Oviatt Gilman LLP is available to assist you. You may contact Greta K. Kolcon, Esq. at (585) 987-2812 for more information.



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