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City can be liable for not preventing lead poisoning through special relationship with victim - Valencia ex rel. Franco v. Lee, 123 F.Supp.2d 666 (E.D.N.Y. Dec 13, 2000)

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.

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