Was Landlord Responsible for Lead Paint Injuries?

Former tenant sued upstate landlord in 2008 for injuries from exposure to lead-based paint on apartment walls while she was a child. In 1991, when tenant was 2 years old, blood tests showed a high level of lead. At the time, health department inspection showed that the apartment and house were in poor condition with a great deal of peeling paint and plaster and wallpaper in and around the premises. The health department notified landlord, who covered the existing paint with lead-free paint. The health department approved the repairs. Still, tenant's medical records showed elevated lead levels in her blood through 1995. She and her family moved out of the apartment in 2000.

The court denied requests from both sides for a decision without a trial. There were too many questions of facts that needed to be resolved. Questions included whether landlord had constructive notice of a defective condition, whether landlord's act of painting over the lead-based paint sufficiently abated the dangerous condition, and whether landlord's claimed failure to adequately abate the lead paint condition caused tenant's injuries. The court ruled that tenant had no duty when she was a 4-year-old child to mitigate her damages from exposure to peeling lead paint, but landlord could try to prove that as a teenager tenant may have contributed to her injuries.

Derr v. Fleming: 2013 NY Slip Op 03371, 2013 WL 907754 (App. Div. 3 Dept.; 5/9/13; Mercure, JP, Spain, McCarthy, Egan Jr., JJ)