Opinion
No. CV-09-5027918S
April 6, 2010
MEMORANDUM OF DECISION
This action, in eight counts, was brought by Adrienne Morris (Morris), on behalf of her minor child, DaQuay Jeffries (Jeffries) and on her own behalf, against her former landlord Todd Ingram (Ingram) alleging that Jeffries sustained injuries as a result of exposure to high levels of defective lead-based paint on the premises that Morris rented from Ingram at 312 Davenport Avenue, first floor, New Haven, Connecticut, (Counts One through Eight, ¶¶ 3, 5, 6, 7, 8, 9) and that Morris incurred expenses on his behalf (Counts Two, Four, Six, Eight). The case was tried to the court on March 17, 2010. The evidence before the court consisted of the testimony of Anton Trojanowski, a lead inspector for the City of New Haven, as well as his inspection report (ex. 3), a form identified as the "Epiform" that Trojanowski completed (ex. 2) and the inspection notification letter the city sent to Ingram on May 21, 2008 (ex. 1), the testimony of Adrienne Morris, a copy of a rental agreement between Morris and Ingram (ex. 4), certain medical records (ex. 5, 6), copies of certain checks (ex. E) and a stipulation filed in the Housing Court (ex. F).
I.
The court makes the following findings of fact: Morris leased the first floor apartment at 312 Davenport Avenue (the apartment) from Ingram, who owned and controlled the premises, moving there in July 2007. At the time she moved in, Ingram had just painted the apartment and Morris did not observe any chipped or cracked paint. Jeffries was approximately four months old when they moved into the apartment. He shared one of the two bedrooms with Morris while her older children shared the second bedroom. The apartment also had a kitchen, living room and bathroom. During most of the time that Morris resided at the apartment, she worked from 9:00 a.m. to 3:00 p.m. at one of Yale University's dining halls. For a period of time, her boyfriend babysat for Jeffries in the apartment while she was at work. Starting in approximately January 2008, her aunt provided daycare for Jeffries, from 8:00 a.m. to 4:00 p.m., at her home at 50 White Street, New Haven, Connecticut. This continued until late March 2008 when Morris sustained a foot injury and was unable to work. After that time, Morris cared for Jeffries in the apartment.
Morris's testimony was somewhat inconsistent regarding the date she sustained the foot injury as well as the dates when her aunt cared for Jeffries. She initially testified that she sustained the foot injury in May and that her aunt only cared for the children in January and February 2008. She later testified that she sustained the foot injury in late March 2008 and that her aunt was still caring for Jeffries at that time. This testimony is consistent with the medical records (ex. 5) which indicate that as of March 26, 2008 Jeffries was still being cared for by her aunt.
Jeffries was born on March 18, 2007. According to Morris, he began to crawl at approximately 8 1/2 months and began to walk just before his 1st birthday. He received his primary care from Dr. Moshe Siev at the Yale University Health Services. On March 26, 2008, Dr. Siev saw Jeffries for a 12-month well child visit. He assessed the child as a "12 month old male with appropriate growth and development." He ordered a lead screening test and a CBC, and blood was collected the same day. (Ex. 5.) The lead screening test came back with a venous blood lead level of 20 mcg/dL. At that time, according to Trojanowski's testimony, that venous blood lead level was the minimum level necessary to trigger an inspection of the premises where the child resided.
Trojanowski inspected the apartment on May 9 and May 13, 2008. His inspection "revealed the presence of toxic levels of lead in paint (intact and defective)." (Ex. 1) Notice dated May 21, 2008 was sent to Ingram by certified mail. (Ex. 1.) On June 10, 2008, Ingram submitted an abatement plan to the city and it was approved on the same date. However, Trojanowski agreed that Ingram did not have to commence the work until Morris and her family vacated the apartment in late June. The abatement and remediation was finished on August 22, 2008 and the order to remove lead paint that had been filed on the land records was released on September 18, 2008. Trojanowski testified that while Ingram indicated in May that he was willing to commence the abatement work as soon as possible, they agreed that it would be better to do the work after Morris had vacated the apartment and Ingram was given additional time to perform the work as long as the apartment remained vacant. Trojanowski also testified that the work was done in a timely fashion.
Ingram was in the process of evicting Morris from the apartment in the spring of 2008. On April 17, 2008, a stipulation of judgment was entered in the summary process action, Docket No. NHSP-093115, which was stayed through June 30, 2008 (ex. F).
Meanwhile, according to the medical evidence (ex. 5), Jeffries was referred to the Yale New Haven Children's Hospital Lead Program where he had an intake appointment on May 12, 2008. Another venous blood lead level was taken on that date and came back at 7 mcg/dL which was within normal limits. On August 27, 2008, a follow up blood lead level was 6 mcg/dL and on September 10, 2008 Jeffries was discharged from the Lead Program. There is no indication in the medical records that Jeffries received any treatment for his single elevated blood lead level, either from Yale University Health Services or the Lead Program. On November 20, 2008, Jeffries returned to the Yale University Health Services for his 18-month well child visit. He was assessed as a "20 month old male with appropriate growth and development." (Ex. 5.)
II. CT Page 8262
In the complaint, the plaintiff alleges alternative theories of liability. The first and second counts are premised on statutory negligence or negligence per se. In Gore v. People's Savings Bank, 235 Conn. 360, 375, 378-80, 665 A.2d 1341 (1995), the Supreme Court determined that, in a personal injury case based on exposure to toxic levels of lead, certain statutes and regulations may impose additional duties upon landlords beyond their limited common-law duties and that proof of the violation of those statutes or regulations may constitute negligence per se. Negligence per se is an independent cause of action from common-law negligence. Rivera v. Fairbank Management Properties, Inc., 45 Conn.Sup. 154, 165, 703 A.2d 808 (1997) [ 20 Conn. L. Rptr. 338]. However, under Gore, a landlord cannot be held liable for a breach of statutory or regulatory duties unless there is both proof of notice and that the landlord then failed to remedy the defect after being provided a reasonable opportunity to do so. Gore v. People's Savings Bank, supra, 235 Conn. at 388. Here, the undisputed evidence is that Ingram immediately took steps to abate the defective lead conditions in the apartment upon receipt of notice from the city, was given additional time to complete the work, as permitted by General Statutes § 47a-58, and finished it in a timely manner. Thus, the plaintiff has failed to establish that Ingram is liable on the first and second counts.In the third and fourth counts, the plaintiff alleges common-law negligence. A landlord's liability for common-law negligence depends upon actual or constructive notice of the specific defective lead condition, or the conditions giving rise to it, before the time of the minor plaintiff's injury and a failure to remedy the defect within a reasonable time after notice. Gore v. People's Savings Bank, supra, 235 Conn. at 373. When, as here, it is undisputed that the apartment was freshly painted at the inception of the tenancy and there was no cracked or chipped paint, a landlord cannot be held liable without evidence that he received actual notice of the defective condition and an opportunity to correct it. Payne v. Candelora, 45 Conn.Sup. 191, 195, 706 A.2d 22 (1997); see Gore v. People's Savings Bank, 40 Conn.App. 219, 224, 670 A.2d 332 (1996). There is no evidence that Ingram knew of the presence of lead based paint at the inception of Morris's tenancy. He did not receive actual notice until sometime after May 21, 2008 when the results of the inspection were sent to him. Once he received notice, he took immediate steps to file an abatement plan and remediate the defective condition. Thus, the plaintiff has failed to establish that Ingram is liable on the third and fourth counts.
In the fifth and sixth counts, the plaintiff alleges a CUTPA violation, General Statutes § 42-110a et seq., in very specific terms. "The allegations of the complaint limit the issues to be decided on the trial . . ." Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). To prevail on the CUTPA count as pleaded, Morris had to establish Ingram knew or should have known that the apartment contained defective paint with a lead content in excess of that permitted by law. As already stated, there is no evidence of actual knowledge and Morris failed to offer any evidence from which the court could infer constructive knowledge.
The allegations of paragraph 10 of each count are as follows:
The actions of the defendant constitute a violation of the Connecticut Unfair Trade Practices Act, Connecticut General Statutes Section 42-110a et seq., in that such actions were immoral, unethical, oppressive, unscrupulous, offend public policy and caused substantial injury to consumers, including the plaintiffs, and were done with indifference to the rights of Adrienne Morris and DaQuay Jeffries. These actions are more fully described below:
a) The defendant rented The Premises to the plaintiffs when she [sic] knew or should have known of the presence of lead-based paint throughout the dwellings and when she [sic] knew or should have known that these dwellings were unfit for human habitation; violated local, state and federal laws and regulations as set forth in subparagraph (f) below; and created a hazard to the minor plaintiff's health;
b) The defendant rented The Premises to the plaintiffs when she [sic] knew or should have known of the presence of the lead-based paint throughout the dwellings while occupied by the plaintiffs when she [sic] knew or should have known that these dwellings were unfit for human habitation; violated local, state and federal laws and regulations as set forth in subparagraph (f) below; and created a hazard to the minor plaintiff;
c) The defendant failed to inspect or failed to adequately inspect The Premises to determine whether lead-based paint was present;
d) The defendant failed to take steps to remove or reduce the hazard created by the presence of lead-based paint in The Premises;
e) The defendant failed to warn the plaintiffs of the presence of lead-based paint at The Premises; and
f) The defendant violated the following applicable housing codes, ordinances, statutes and regulations: violation of Connecticut General Statutes Sections 47a-7, 47a-53, 47a-54f, 19a-111 and 21a-82; Regulations of Connecticut State Agencies Sections 19a-111-1 through 19a-111-7 for renting lead contaminated housing containing cracked, chipped and blistering lead-based paint to the minor plaintiff.
The seventh and eighth counts allege nuisance based on the presence of defective lead-based paint in the apartment. "When a tenant takes exclusive possession of the demised premises, he ordinarily takes them as he finds them, and the landlord is not liable for structural defects therein . . . No cause of action sounding in nuisance is available to the tenant against his landlord." (Citations omitted.) Bentley v. Dynarski, 150 Conn. 147, 153, 186 A.2d 791 (1962). In a series of decisions, this court has concluded that actionable nuisance claims cannot be brought against a landlord for defective lead-based paint conditions existing within the fully demised premises and that the tort of negligence, not nuisance, provides the sole remedy for personal injuries sustained by a tenant due to defective conditions appurtenant to the demised premises. See Martinez v. Maturana, 45 Conn.Sup. 334, 335m 714 A.2d 740 (1998); MacLeod v. Gottlieb, Superior Court, Judicial District of Fairfield, docket no. LPL-CV-97-0345566 (June 27, 1998, Lager, J.) [ 22 Conn. L. Rptr. 456]; Lovick v. Nigro, Superior Court, Judicial District of Hartford-New Britain, docket no. LPL-CV-94-0542473 (Feb. 21, 1997, Lager, J.); Sanchez v. General Urban Corp., Superior Court, Judicial District of New Haven, docket no. LPL-CV-95-0378774 (Feb. 6, 1997, Lager, J.) [ 19 Conn. L. Rptr. 97]. This court adheres to this position with respect to the claims made in the seventh and eighth counts.
III.
Under any theory of liability, moreover, the court concludes that the plaintiff has failed to meet her burden of proof with respect to two critical elements: (1) that Jeffries was exposed to toxic levels of lead at Davenport Avenue and (2) that Jeffries sustained any injuries as a result of exposure to lead.
The fact that Jeffries' blood lead level was elevated on March 26, 2008 does not establish the source of his exposure. Lead is prevalent in the environment. See Legacy of Lead: America's Continuing Epidemic of Childhood Lead Poisoning, pp. 15-16 (Environmental Defense Fund, March 1990). Although lead based paint is undoubtedly a potential source of exposure, many other sources of lead, including contaminated soil, drinking water, food and commercial products have been found to "make a notable contribution" to childhood lead exposure. Id., pp. 17-22.
The plaintiff did not introduce any fact evidence or expert evidence to establish that the unacceptable lead levels found during Trojanowski's inspection of the apartment on May 9 and 13, 2008 were a substantial factor in causing Jeffries' elevated blood lead level. To the contrary, it can be reasonably inferred from the evidence that the source of his exposure was not the apartment, but some other location, because by May 12, 2008 Jeffries' venous blood lead level had declined to 7 mcg/dL while he continued to reside in the apartment. The only change of circumstance between March 2008 and May 2008 was that Jeffries was no longer spending eight hours a day at the home of Morris' aunt, as he had done from January through March 2008.
An essential element of actionable negligence per se is that any breach of the statutory or regulatory duty is proven to be a proximate cause of the plaintiff's injuries. Coughlin v. Peters, 153 Conn. 99, 102, 214 A.2d 127 (1965). Likewise, an essential element of common-law negligence is that the landlord's breach of his duty to the tenant is proven to be a proximate cause of the plaintiff's injuries. Moreover, evidence of actual injury is an essential element of both causes of action. RK Constructors, Inc. v. Fusco Corp., 231 Conn 381, 384, 650 A.2d 153 (1994); Angiolillo v. Buckmiller, 102 Conn.App. 697, 711, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). The failure to prove any of these elements is fatal to the cause of action. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). Similarly, to recover under CUTPA, the plaintiff must establish a causal relationship between the defendant's conduct and any losses sustained. See PAR Painting, Inc. v. Greenhorne O'Mara, Inc., 61 Conn.App. 317, 328, 763 A.2d 1078, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001).
There is no evidence before the court that Jeffries sustained any injury as a result of his single elevated blood lead level which was discovered as a result of a routine screening process. To the contrary, the evidence establishes that Jeffries was healthy well child, with "appropriate growth and development" on March 26, 2008 and continued to be a healthy well child, with "appropriate growth and development" when he had his next routine examination on November 20, 2008. Arguably, the only impact on him were the follow-up non-routine blood tests performed on May 12, 2008 and August 27, 2008 but the court cannot conclude that any conduct on Ingram's part was a proximate or actual cause for those tests. Finally, according to Morris, Jeffries is doing well and has not had any repeat blood testing for lead since April 2009 when his venous blood lead level was 3 mcg/dL. Indeed, Morris testified that there was nothing about her son that she wished to bring to the court's attention.
IV.
Based on the foregoing findings of fact and discussion of the pertinent law, the court enters judgment in favor of the defendant Todd Ingram on all counts of the complaint.