Introduction
The amount of attention brought to the issue of lead poisoning in the United States cannot be overestimated. The latter specifically concerns children. In that regard, despite the government ban on the use of lead-based paint in 1978, yet, as the 1991 issue of Newsweek stated, “lead poisoning is now being called the nation’s No. 1 environmental threat to children” (Waldman, 1991). Only from to 1993 through 1994 more than 800 stories involving lead poisoning were covered in major newspapers with national readership, covering different aspects in such case, varying from environmental threat issues to overburdened Landlords, whose liability were discussed. The latter can be seen among the controversial aspects of lead poisoning, specifically in Massachusetts legislation, which is considered by many as being “unique and very burdensome for landlords because it provides that an owner is strictly liable, without negligence or fault, for a child’s injuries due to lead exposure” (Stephens and Governo Law Firm LLC, 2005). In that regard, this paper analyzes Massachusetts lead paint legislation as well as the issue of lead poisoning in general, in terms of the effects of lead poisoning, landlord duties, liabilities and public policy concerns. The paper argues that despite the fact that landlord liability for lead poisoning may come under attack as being biased in favour of the plaintiff, the liability of landlords should be upheld due to landlords’ negligence, their ability to prevent injury and from a broad public policy perspective. Therefore, the current law and current trend supports that landlords should be strictly liable for lead paint tort actions on behalf of Massachusetts children.
History/Examination/Purpose of MA Lead Paint Legislation
A landlord who is responsible for lead poisoning of children should be punished severely, as he/she is responsible for the actions performed. In fact, the attacks directed to landlords are upheld in a number of reasons. First of all, landlords disclose the negligence in the relation to lead paint use in the dwelling. Second, there are some examples of children poisoning that show that in most cases there was possible to prevent the injury, but either wrong actions of landlords or their ignoring of the problem sometimes led to unpredictable effects. Third, there is a number of public policies that regulate the responsibilities and obligations of landlords in relation to lead poisoning of children. To consider the mentioned problems and understand the state methods to combat them, the Massachusetts law and regulations are going to be reviewed from the perspective of history, examination, and purpose of Massachusetts lead paint legislation.
The standards for human habitation fitness state that “no paint that contains lead shall be used in painting any surface of any dwelling” (DEPARTMENT OF PUBLIC HEALTH, n.d., p.1627). If the cases take place and people go to court with the complaint of harmful effect of lead paint on people’s organism, this policy may be the crucial one to prove landlord guilt. Moreover, the ignoring of this document leads to fine and reparation of damages to the victim. Still, the guilt of the landlord should be proved. In this case, people should turn to lead inspector and he is responsible to conduct a research on the demand and either prove or reject the complaint.
There is the policy that regulates the actions of lead poisoning prevention and control. To prove landlord guilt in lead poisoning, a plaintiff should turn to a lead inspector. Still, the lead inspector intrusion may have the different purposes from the compliance process, such as informational ones. Notwithstanding the purposes, the lead inspector should come through the following stages to detect dangerous level of lead, if present:
- pre-inspection information,
- identification of surfaces covered with paint,
- loose paint,
- moveable impact surfaces and accessible mouthable surfaces,
- discovery of evidence of unauthorized deleading (Department of Public Health, 2002a, p.1957).
The pre-inspection information stage requires from lead inspector to explain to the landlord their responsibilities and reasons to provide the inspection. In the case of landlord absence, the necessary documents should be sent him/her. On the identification of surfaces covered with paint stage a lead inspector should clearly identify the location of the poisoning surface for testing the gathered material in accordance with internal regulations. The next stage is the loose paint that requires from the lead inspector to take the examples of the paint surface. In the case of inability for the inspector to reach the surface, it is the direct responsibility of the landlord to provide the free access to it. The other stage of the inspection is identifying the movable impact surfaces and their testing as well. There are cases when lead inspectors have right to refuse from the inspections, the unauthorized deleading. If the situation occurs, the lead inspector should create a report where to record signs of unauthorized deleading (Department of Public Health, 2002a, p.1957).
A landlord is responsible for the property he owns and has either to remove the source of the harmful effect or reduce the level of its impact. In accordance with the Chapter 111: Section 127B½. Petition for agreement to remove underground fuel storage tank, media contaminated by home heating oil or lead paint, or to provide proper service by a septic system; costs; authority to evict (Commonwealth of Massachusetts, 2009), a landlord has the right for the detection of dangerous lead paint levels and the “repair, replacement or upgrade of a septic system the owner of a structure used for human habitation may petition the board of health in a city or town to make findings consistent with its authority” (Commonwealth of Massachusetts, 2009). In other words, there are cases when a landlord may petition to the board of health in a city or town for the improvement of bad influence and for the financing of the “repair, replacement or upgrade of a septic system the owner” (Commonwealth of Massachusetts, 2009).
The strict pursuit of lead substances in the dwelling is explained in the law policies. First of all, the lead harmfully affects the nervous, reproductive and musculoskeletal systems and kidneys. Moreover, the high level of lead in the building pain influences dose-response relationships and differential effects on adults and children (Commonwealth of Massachusetts). The current deleading regulation (2010) is the main document that explains the reasons of lead harmful effects, the process of examination of the substance and the procedure of the lead deleading. Moreover, the regulations point to the behaviour of different specialists while work performance, for example, the protection of the workers and medical monitoring requirements are stated with the reference to the fact that they do not take a direct part in the lead deleading process, the renovation works are described in detailed as well as the certification procedures of the specialists of different levels and training programs. In fact, it may be concluded that the current deleading regulations (2010) state the main principles of the deleading procedures, identifies the restrictions and rules of lead poisoning effect identification and elimination.
There is one more important document in Massachusetts law that regulates the lead paint removal from the place of its direct danger and influences people’s life, the 760 CMR 14.00: lead paint abatement loan program. The main purpose of the program is to assist “residential property owners in financing the abatement and containment of lead paint hazards” (DHCD, 1993, p.1). The document regulates the relations of the LPALP and people who want to take loans. The program is rather effective abs lead poisoning influence is one of the most dangerous problems in the world. The lead effect is impossible to notice at once, still, the further consequences may greatly affect people’s health.
Thus, it may be concluded that the Massachusetts law and regulations follow the process of lead poisoning impact on people’s organisms and try either to reduce the level of the effect or absolutely remove. The Massachusetts law has the instruments of influence on dishonest landlords who do not want to follow the law. The reasons of attacks against lead poisoning dwelling of landlords are explained by serious nervous and health problems that impact people. In addition, the health legislation and administrative one are busy with the problems connected with lead poisoning and the possibility to combat the problem effectively.
Duties of Landlords
As most of the laws relating to lead based paint are shaped by litigation, it can be stated that in the case of landlords’ duties and obligations, the latter is specifically true. Chapter 111, sec.199 of the General Law of Massachusetts states that the owner of any premise “for all damages to a child under six years of age at the time of poisoning… caused by his failure to comply with the provisions and requirements, [which include] apply[ing] or caus[ing] to be applied any lead-based paint… contain and control paint, plaster or other accessible structural materials containing dangerous levels of lead” (Commonwealth of Massachusetts, 2010d, Commonwealth of Massachusetts, 2010b, Commonwealth of Massachusetts, 2010c, Commonwealth of Massachusetts, 2010a). Although the obligations mentioned in the sec. 199 of chapter 111 of the General Massachusetts law does not contain a provision whether a proof of negligence or noncompliance is required, the case of Rafael Bencosme vs. Nicholas Kokoras (1987) established that the owner of residential property is liable under the aforementioned provision without proof of negligence. It was stated in the case that “neither negligence nor knowledge of the risk is an element of liability under the first paragraph of Section 199” (Commonwealth of Massachusetts, 1987).
The liability of the landlord is not only enforced under the lead laws, where such liability extends under the provisions of wrongful acts of landlord, namely quiet enjoyment violation. A landmark case in Massachusetts case law can be considered Husam H. Al-Ziab vs. George A. Mourgis (1997), where the court concluded that violation of the lead paint statute constitute a violation of the statutory covenant of quiet enjoyment. The difference in the aforementioned can be seen in the obligation of showing of at least negligent conduct by the landlord (Commonwealth of Massachusetts, 1997). Accordingly, the obligations of the landlord can extend to not to interfere with the “quiet enjoyment of any residential premises by the occupant” (Commonwealth of Massachusetts, 2010e), where the interference with quiet enjoyment in the context of lead paint can be interpreted as the consequences of the failure of the landlord “to act reasonably in the circumstances concerning a problem known to the landlord” (Commonwealth of Massachusetts, 1997). In that regard, it can be seen that the duties of the landlord enacted through strict liability can be rationalised through the emphasis on prevention, rather than punishment. It should be stated that Massachusetts is among a few states which provides guidelines for controlling lead hazards (Osborn, 1999). The regulations of connected to the compliance of landlords are explicitly stated in Chapter 111, section 197, in which the law included the minimum regulations for inspectors, in order to certify compliance with the emergency lead management plan. The latter might serve as an indication that the law being burdensome is fact, a protection for landlords against litigation.
Lead Poisoning in Children
Outlining the duties and the cases of lead poisoning, it should be mentioned that the basis is the seriousness of the health hazard, caused by lead to children. In fact, the punitive damages sought in various cases, only reflect a portion of the medical expenses the children and accordingly their parents are going to bear. Lead poisoning is measured through the presence of lead in the blood, which is expressed as “micrograms (1/1,000,00 of a gram) per deciliter (1/10 of a liter or about 3 oz.) or µg/dl” (Stephens and Governo Law Firm LLC, 2005). The level of concern, as established by the Centre for Disease Control, is 10 µg/dl, where the experts believe that such level can cause “hyperactivity, loss of IQ points, and can interfere with learning of language” (Stephens and Governo Law Firm LLC, 2005). Nevertheless, Massachusetts established a higher threshold for lead poisoning, in which “disease [is] present in a child when the child has a concentration of lead in whole venous blood of 25 micrograms per deciliter or greater” (460.020) (DEPARTMENT OF PUBLIC HEALTH, 2002b).
The short term effect of lead poisoning in children can be seen through a set of symptoms, which are associated with high lead levels. Generally, the symptoms and the signs of lead poisoning might be subtle and nonspecific, where the classical features include “irritability, loss of appetite, weight loss, sluggishness, behaviour and learning difficulties, abdominal pain, vomiting, constipation, anaemia and renal failure” (Pearce, 2007, p.119). Prolonged lead exposure might be seen in such symptoms as “ataxia, forceful vomiting, lethargy, or stupor, and can progress to coma and seizures” (Erickson, 2005, p.463).
The exposures to low doses of lead can also lead to serious consequences, which might be revealed in the long term. The latter is specifically associated to the neuropsychological and academic performance of children. In Needleman, Schell, Bellinger, Leviton, and Allred (1990), the results of a follow-up study of children with low-lead exposure found that young people with dentin lead levels higher than 20 ppm had a higher risk of dropping out of high school and a reading disability, as compared to with dentin levels lower than 10 ppm (p.83). Additionally, high lead levels in childhood were significantly associated with such long-term effects as “lower class standing in high school, increased absenteeism, lower vocabulary and grammatical-reasoning scores, poorer hand-eye coordination, longer reaction timers and slower finger tapping” (Needleman et al., 1990, p.83). Additionally, an inverse correlation was found between blood lead levels and IQ scores, where an increase in concurrent blood lead levels from 2.4 to 30 μg/dL led to 6.9 IQ point decrement for children, followed from birth until 5–10 years of age (Lanphear et al., 2005, p.894)
Tort Actions
It can be stated that the developments of lead laws and regulations in Massachusetts as well as in other states were largely driven by litigations and lawsuits. The law has undergone numerous changes during the last thirty years, and as regulations have not been forthcoming, “much of the impetus to address these issues has come from lawsuits” (Osborn, 1999, p.1). In addition to the previously mentioned, Rafael Bencosme vs. Nicholas Kokoras (1987) and Husam H. Al-Ziab vs. George A. Mourgis (1997), there are other cases, in which parents/guardians filed for tort actions on behalf of minors for injury resulting from lead paint.
Prior to mentioning examples, it should be stated that lawsuits involving lead manufacturers as one of the parties are generally unsuccessful, where the reasons behind the absence of a successful lead paint suit can be seen in the view that “landlords are the proper target for lead paint injuries because lead paint only causes problems when landlords fail to adequately maintain the property” (Rudlin and American Bar Association. Mass Torts Litigation Committee., 2007, p.342). In Jeanette Leblanc vs. the Sherwin Williams Company (1990), the laws suit was initially against the landlord Joseph Marderosian, who amended the complaint to add, as defendants, lead manufacturers (Commonwealth of Massachusetts, 1990). The claims against manufacturers were dismissed. The cases in which the claims against the manufacturers, unlike landlords were dismissed are numerous, and in that regard, cases such as Coren v. Cardoza v. Sherwin-Williams Co., Pacheco v. Ortiz v. Sherwin-Williams Co., and Barros v. Pires v. Sherwin-Williams Co., demonstrate that the landlords are acting as third parties, bringing manufacturers as defendants are merely reducing their responsibility in preventing lead poisoning. Tort actions on lead poisoning specifically outline the role of landlords due to their ability to control lead-based hazards in their respective properties.
Public Policy Concerns
The public policies, enacted on the issue of lead paints, established laws that show concern for both parties, in the landlord-tenants relationships. In that regard, the updated provisions of Massachusetts Lead Paint Law ensure that the strict liability of landlords will not be exploited. The obligation to provide written information about the lead status of the home or apartment they occupy or are about to rent is not only a guarantee for the tenants, but also a protection for the landlords themselves against potential lawsuits. In such way, it can be stated that the preventive measures are also a major focus of public policy, where the obligation to provide any existing lead status documentation to tenants will eliminate any disputes on whether the landlord knew or should have reasonably known about any lead hazards contained in the property he/she owns.
Civil suits on children exposed to lead hazard, considering the potential severe medical consequences, are one of the areas of concern for public policies. In that regard, the key aspect for filing for damages is in acknowledged violation, where the amount liable by the landlord to the lessee “equal to 3 times the amount of damages incurred by such individual”, under the federal law (US Congress, 1992). The acknowledgement factor can be seen in the refusal of the landlord to take an action after being ordered to do so. Analyzing the balance between the medical costs, the actual costs, and the punitive damages which are three times equal the actual damages, it can be stated that the cost of medical treatment is considerably small, comparing to the future problems that the child might face, including the risk for learning disability. Accordingly, part of the costs can be seen associated with the purpose of making the violation of the law costly for the landlord, as compared to undertake efficient and reasonable measures precautions, e.g. abatement.
A major achievement for the management of children deal poisoning in Massachusetts was the Childhood Lead Poisoning Prevention Program (CLPPP). The purpose of the program was formulated in three terms, which are prevention, diagnosis and treatment. The range of services included within the scope of the program include educational case management services, which can be seen through providing consultation regarding treatment and follow-up and referring identified children for assessment and education(Massachusetts Department of Public Health, 2004, p.4). Additionally the program provides environmental services, which can be represented through “lead paint inspections, tenant and owner education, and enforcement of the MA Lead Law” (Massachusetts Department of Public Health, 2004, p.4). Accordingly, it should be stated that regulatory development is largely driven by the efforts of the CLPPP, where one of nation’s strongest and most comprehensive state laws addressing lead poisoning, the provisions of which were addressed in this paper can be considered among the accomplishment so the program, where sections 189A-199B of Chapter 111 of Massachusetts general law are derived from the Massachusetts CLPPP Act of 1971 (Massachusetts Department of Public Health, 2004, p.3). The current efforts of the program are related to designing, promulgating and administering Commonwealth’s Regulations for Lead Poisoning Prevention and Control. These regulations address the blood screening, lead inspections, authorizations of performing lead abatement, liability, and others.
Conclusion
It can be concluded that the claims of landlord liability being biased are largely ungrounded. In that regard, it can be seen that such liability has a major preventive aspect, which in the context of the children as plaintiffs is specifically significant. The role of the state of Massachusetts in such a sense cannot be overestimated. Not only Massachusetts was among the first states to adopt a lead prevention law, they were also leading in continuous developments of new lead legislation. The provision of strict standards and guidelines for landowners to control lead hazard eliminate the possibility for exploitation and give the chance for landowners to protect themselves. Thus, it can be stated that the current law and current trends of keeping landlords strictly liable should be upheld.
References
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