Home |
Climate Change Project |
Table of Contents |
Courses | Search |
Brief provided by Thomas McLean, M.D., J.D.
At issue in this case is to what extent is a city liable for a child who sustained
CNS damage from the ingestion of lead paint. After the city was notified by
the child's physician of an elevated serum lead level, the city inspected the
apartment residency and found lead in 56 out of 78 location tested. The
owners of the apartment who later had a default judgment entered against them,
covered many of the locations with plywood, but it was undisputed that "was
not a substantial abatement of the hazard." Accordingly, an inspector for
the city determined that the apartment should be abated under the Emergency
Repair Program. Unfortunately, this information was not communicated to the
child's mother. Remedial measures were not undertaken, and the city did not
offered explanation for why the repairs where not completed. When the Order
to Abate was finally complied with three years later, the child did not receive
any mitigation of his environment because the family had moved out of the apartment
eight months earlier.
The City provided the mother with advice on diet and hygiene, and it was undisputed
that the mother followed this advice. The mother testified that she knew the
lead paint continued to be a hazard, but believed that as long as she was following
the advice of the City, her child was not in jeopardy. The first evidence that
any one provided advice to the mother on the continued risk of lead exposure
did not occur until two years after the initial inspection. During the time
in question, the child underwent serial serum lead examinations. Although the
first serum lead level was 30 micrograms/dl, all subsequent levels where lower.
After the child was required to repeat second grade, he underwent a battery
of psychologic testing. Based on this examination the plaintiff's expert psychologist
Dr.Freyre and the City's expert neuropsychologist Dr. Masur were in agreement
that the child's "condition was symptomatic of a central nervous system
dysfunction."
After the plaintiff voluntarily withdrew three cause of action, and the City
had obtained summary judgment on four other cause of action, the sole cause
of action that remained to be litigated was whether the City had created a special
relationship with the child. The general rule is that a city is not liable for
failing to properly fulfill its duties to the general public. However, Garrett
v. Holiday Inns, Inc., 58 N.Y.2d 253, 261-62, 460 N.Y.S.2d 774, 778, 447 N.E.2d
717 (1983) carved out three exceptions to this rule based on the creation of
a "special relationship." The city establishes a special relationship
with a plaintiff if (1) the City "violated a duty commanded by a statute
enacted for the special benefit of particular persons;" (2) where the City
"voluntarily assumed a duty, the proper exercise of which was justifiably
relied upon by persons benefited thereby;" or (3) where the City "assume[d]
positive direction and control under circumstances in which a known, blatant
and dangerous safety violation exist[ed]." If a special relationship is
created, the "City is under an obligation to act reasonably, and will be
liable where its actions fail to meet that standard." (Sorichetti v. City
of New York, 65 N.Y.2d 461, 470, 492 N.Y.S.2d 591, 597, 482 N.E.2d 70 (1985)).
The court held that the first Garnett special relationship was not present
in this case. While the city did fail to enforce the Emergency Repair Program
abatement statute, the court took notice that this statute was for the benefit
of all citizens and, not for the "special benefit" of a "particular
class" of persons, such as children. Therefore, citing Davis v. Owens,
259 A.D.2d 272, 686 N.Y.S.2d 31 (1st Dept.1999) the court held that no special
relationship could be established.
To establish a special relationship under second Garnett rule, plaintiff must
satisfy four elements: "(1) an assumption by the municipality, through
promises or actions, of an affirmative duty to act on behalf of the party who
was injured; (2) knowledge on the part of the municipality's agents that inaction
could lead to harm; (3) some form of direct contact between the municipality's
agents and the injured party; and (4) that party's justifiable reliance on the
municipality's affirmative undertaking." Cuffy v. City of New York, 69
N.Y.2d 255, 260, 513 N.Y.S.2d 372, 375, 505 N.E.2d 937, 940 (1987). The court
observed that the only duties imposed on the City were to implement the policies
and programs of the abatement statute. Because the City's counseling on diet
and hygiene went beyond the outline of the policies and programs of the abatement
statute, the first element was satisfied. The second element was satisfied
because the city did not dispute that it was aware that continued lead exposure
poised a health hazard. Similarly, evidence that the city had advised the mother
on more than ten occasions satisfied the third element concerning actual contact
with the plaintiff.
The court acknowledged that in this case the fourth Garnett element concerning
the reasonableness of the mother's reliance was a bit problematic. The court
"recognized that reliance is critical because it "provides the essential
causative link between the 'special duty' assumed by the municipality and the
alleged injury."" (Quoting Cuffy supra.) In Cuffy the plaintiff remained
in his home after securing a promise from the police that an abusive tenant
couple would be arrested within 24 hours. A dispute arose with the tenants more
than 24 hours latter and the plaintiff's wife and children were assaulted by
the abusive tenants with a baseball bat and knife . The Franco court rejected
the City's argument that based on Cuffy that because the mother had knowledge
of the mechanism of lead poisoning she was precluded from claiming that she
had been lulled into a false security. The court distinguished this case
from Cuffy by observing that the mother had no reason to know that the remedial
advice that the City provided concerning diet and hygiene was faulty. Accordingly,
the court concluded that all four elements of the second Garnett special relationship
were satisfied.
The court went on to analyze the third test for a special relationship under
Garnett. Under that category, a special relationship would be established if
the City "assume[d] positive direction and control under circumstances
in which a known, blatant and dangerous safety violation exist[ed]." Here
the court found that the City inspection of the apartment and advice to the
child's mother were analogous to the situation in Smullen v. City of New York,
28 N.Y.2d 66, 320 N.Y.S.2d 19, 268 N.E.2d 763 (1971). In Smullen, a construction
worker was killed after an 11 foot unshored wall, in violation to the constriction
code, collapsed. Immediately prior to the worker's entrance into the trench
a city inspector had told the worker that the trench looked pretty solid and
that he did not think it had to be shored. Similarly, the Franco court observed
that the city had affirmatively taken "control of the situation in the
presence of this known hazard by instructing Ms. Franco on how to care for the
infant." Accordingly, the court found that in this case the City had also
established a special relationship under the third Garnett test.
The court then went on to dismiss the City's claim that is was not liable because it was a successive tortfessor rather than a joint tortfessor. The court agreed that the city was a successive tortfessor and that the general rule is that a successive tortfessor is liable only for that portion of the damages that occurred after the exposure. However, the general rule concerning the liability of a successive tortfessor is more complicated in cases where there is an indivisible injury. Where ""a single indivisible injury" results from the conduct of successive tortfeasors which "because of [its] nature, [is] incapable of any reasonable or practicable division," each tortfeasor is jointly and severally liable for the entire injury." (Ravo v. Rogatnick, 70 N.Y.2d 305, 520 N.Y.S.2d 533, 514 N.E.2d 1104). Here, the court held that the damaged cause by the lead poisoning was due to an indivisible injury cased by the breach of duty by the apartment owner and the city. Because the City was jointly and severely liable it was ordered to pay the plaintiff $350,000.
The Climate Change and Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation
See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina
Professor Edward P. Richards, III, JD, MPH - Webmaster
Provide Website Feedback - https://www.lsu.edu/feedback
Privacy Statement - https://www.lsu.edu/privacy
Accessibility Statement - https://www.lsu.edu/accessibility