Third Department Holds "Constructive Notice" of Lead Paint Hazards in Common Areas of Building Sufficient to Defeat Landlord's Motion For Summary Judgment
September, 2002
In Chapman v. Silber ¹, the Court of Appeals recently held that in the absence of controlling legislation, a plaintiff who is unable to establish a landlord’s actual notice of lead paint hazards (such as chipped and peeling paint) inside his or her apartment may raise a triable issue of fact sufficient to defeat a summary judgment motion based upon lack of notice by showing 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 of the hazards of lead-based paint to young children, and (5) knew that a young child lived in the apartment. Such a showing would “raise an issue [of fact] as to the landlord’s knowledge of a high degree of risk that there was a lead paint danger in the apartment sufficient to trigger its duty to address the condition.”
In Wynn v. T.R.I.P. Dev. Assocs., 745 N.Y.S.2d 97, the Third Department holds that with respect to common areas of a building, the third prong of the Chapman test is satisfied when either actual or constructive notice of chipping paint is demonstrated, because part of a landlord’s obligation to maintain the premises in a reasonably safe condition is the duty to use reasonable care to inspect and repair common areas and the landlord is generally chargeable with notice of dangerous conditions which a reasonable inspection would have revealed.
Facts
Defendants purchase, develop and manage affordable housing. In 1980, defendants purchased and “restored” a three-story residential building. Defendants assert that all interior surfaces were either removed, covered with new sheetrock or brick and painted with nonlead paint or, at the least, the existing surfaces were painted over with nonlead paint during the renovation.
Plaintiff leased the first floor apartment in 1991, renewed in 1992, and resided there until April 1993. Her infant son was born in July 1991 and thereafter resided in the apartment with plaintiff. In July 1992, the infant was diagnosed with an elevated blood-lead level. The County Health Department notified defendants in October 1992 that a child in the building had tested positive for lead and, following an inspection of the building, informed defendants by letter dated December 30, 1992 that while no lead hazards were detected inside plaintiffs’ first floor apartment, lead paint hazards were detected in the interior common areas and on the outside of the building. Specifically, the inspection revealed lead paint on the baseboards along the right and left sides of the interior stairs leading to the second floor, on the kick plates between those stairs, on an exterior wall of the building and on the frame of the front door to the building. Defendants timely completed interior and exterior abatement measures to the satisfaction of the County Health Department, as confirmed by its June 1993 inspection.
Plaintiff moved out in April 1993 and later commenced this action against defendants for the infant’s lead poisoning and related injuries, including developmental and behavioral problems claimed to relate to his ingestion and/or inhalation of lead-based paint chips and dust in defendants’ building, plaintiff also sought damages for a derivative claim for loss of services. Following joinder of issue, defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment in her favor. Supreme Court granted defendants’ motion and dismissed the complaint, and denied plaintiff's cross motion. Plaintiff appealed.
Analysis
The appellate court reversed, holding that the third prong in Chapman, when applied to common areas, is satisfied when the landlord’s actual or constructive notice of the chipping paint is demonstrated.
Plaintiff testified that while she had never reported it to defendants, there was a chronic, visible problem of chipping wood and peeling paint in the hallway where her infant often played. It has been recognized that to constitute constructive notice to a landowner of a defect or dangerous condition, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the owner to discover and remedy it. “Just as landlords who deliberately refrain from testing for lead inside apartments, thereby avoiding actual notice of lead in the paint, cannot shield themselves from all liability” the Court wrote, “landlords do not avoid constructive notice of possible lead-based paint hazards in the common areas or exterior of their buildings if a jury determines that they failed to take reasonable measures to inspect and maintain them.”
Thus, adapting the Chapman showing to the setting of the common areas of an apartment building, the Third Department holds that the tenant/plaintiff here raised a triable issue of fact regarding defendants’ constructive notice of a lead-based hazard in the common areas and exterior, by showing that defendants (1) knew that the apartment was constructed at a time before lead-based interior paint was banned, (2) knew of the hazards of lead-based paint to young children, (3) knew that a young child lived in the apartment, (4) retained control over and sufficient access to the common areas where the lead-based paint hazard was detected, and (5) had actual or constructive notice, i.e., were aware or should have been aware of the chipping or peeling paint which was visible and existed for a sufficient period of time to permit the landlords to discover and remedy it. Moreover, defendants agreed in the lease to “regularly clean all common areas” and to “maintain the common areas and facilities in a safe condition.” Because defendants had a common-law obligation to inspect and maintain the nonleased portions of the building, a jury may find that they were aware or should have been aware of the visible, chronic paint condition in the common areas as described by plaintiff’s testimony - - credited by the Court for purposes of defendants’ summary judgment motion. Under these facts, plaintiff was not required, in order to defeat defendants’ motion and satisfy the third Chapman prong, to show defendants had actual notice, i.e., that plaintiff reported the chipped paint to the owner or that the owner actually observed the chipped paint.
Learning Point:
The Third Department’s ruling will undoubtedly make it much more difficult for landlords to obtain summary judgment on “lack of notice” grounds in lead paint injury cases involving alleged paint hazards in common areas of a building. •
1. Reported on in Volume 1 of the 2002 CM Report-New York.
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