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Lead Paint Defense Verdict Upheld

Case Study

Lead Paint Defense Verdict Upheld

June 14, 2011
William J. Greagan

William J. Greagan, a trial attorney in Goldberg Segalla’s Albany office, successfully defended an apartment building owner in a case before the New York Appellate Division, 3rd Department. The ruling, issued June 9, 2011, upheld a defense verdict in a lead paint case where the plaintiff was diagnosed with attention deficit hyperactivity disorder, oppositional affiant disorder, a cognitive disorder and learning disabilities which were alleged to have been the result of an elevated blood lead level at the defendant’s apartment house. The court held in Cunningham v. Anderson, 2011 NY Slip Op 4800, that the landlord’s liability for injuries related to a defective condition including lead paint cannot be established without proof that the landlord had actual or constructive notice of the condition for sufficient period of time such that the condition should have been corrected.  In a lead case, notice can be established by proof that 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 the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.

The jury found that the defendant had such notice and was therefore negligent — but the negligence was not a substantial factor in causing the plaintiff’s injuries. The appellate court agreed that the jury could rationally credit the testimony of the defendant’s experts and their opinion that the effects of lead poisoning only minimally affected the plaintiff in relation to the factors that were present, thereby finding that the defendant’s negligence was not a substantial factor in causing the plaintiff’s injuries. The defendant’s experts opined that ADHD is a congenital condition and that there are no scientific studies proving that it is caused by lead exposure. They further opined that the plaintiff’s disorders and disabilities were caused by other factors, mainly social and environmental circumstances in his upbringing, which were supported by scientific studies and articles showing a link between socio-economic factors and psychological development.  Proof of the plaintiff’s social and family factors was presented through school and medical records as well as testimony from the plaintiff’s sister.

The court also agreed that the plaintiff’s conduct when he was a preteen and teenager, including discontinuing prescribed medication in failing to attend school, may have constituted a failure to mitigate damages at a time when the plaintiff could be held legally responsible for his actions.