In the wake of the Flint, Michigan, water crisis, Western New York’s lawmakers are reviewing the effectiveness of laws and policies aimed at protecting children from lead poisoning. While lead-contaminated water was the culprit in the recent public health crisis in Flint, lead paint in older homes (particularly in inner-city areas) remains the primary source of childhood lead poisoning in New York State. As such, local courts and municipalities are attempting to make it more difficult for landlords to ignore dangerous lead paint conditions in their rental properties.
For the past twenty years, the Erie County Department of Health has been the primary agency responsible for lead poisoning control in the City of Buffalo. The Health Department inspects city homes after receiving reports that children residing therein were diagnosed with elevated blood lead levels. After the inspections, the Health Department orders the responsible property owners to remediate lead paint hazards present in the homes.
During the spring of 2016, however, City of Buffalo Mayor Byron Brown proposed a city-wide “Lead Hazard Control Program,” which, if adopted, would add more proactive lead poisoning prevention laws to the City’s code. The program would require property owners to determine whether any lead paint hazards exist in their homes and then disclose this information to prospective tenants. The program would also require rental property managers to attend a lead paint remediation training class. Most significantly, the program would require the City to deny renewal of a Certificate of Occupancy if there were any lead paint hazards present in the rental properties that were easily accessible to young children, such as protruding windowsills and trim. Unfortunately, the City of Buffalo failed to enact what has arguably been the most successful measure used by the City of Rochester to drastically reduce its rate of childhood lead poisoning: a requirement that no Certificate of Occupancy be issued to any rental dwelling, including 1- and 2-unit properties without first performing a lead paint hazard inspection.
Similar to its Erie County counterpart, the Monroe County Department of Health has been the primary agency responsible for lead poisoning control in the City of Rochester. However, the City of Rochester has taken the initiative in recent years to enact measures that go even further than the measures taken by the Monroe County Department of Health. By requiring a lead paint hazard inspection to be part of all inspections performed prior to the issuance of a Certificate of Occupancy for rental dwellings, combined with other measures, the City of Rochester decreased its number of reported childhood lead poisonings from a high of 1,019 cases in 2003 to 206 cases in 2015. Additionally, in late 2016, the City of Rochester will train approximately one hundred inner-city property owners to proactively identify and remediate lead paint hazards. The City of Rochester will also provide funding to property owners seeking to proactively abate lead paint hazards in their homes.
As local municipalities seek to decrease lead poisoning through education, advocacy, and increased regulation, the courts are also cracking down on landlords after lead poisoning has occurred. In the past, a legal loophole allowed many negligent landlords to escape liability in civil lead paint injury lawsuits by claiming that they were unaware of the health hazards of lead paint prior to the time of their victim’s poisoning. In a case recently handled by Lipsitz & Ponterio, LLC, a Rochester Appellate Court affirmed a trial court decision to more closely examine a landlord’s bald assertion that she was unaware of the health hazards of lead paint prior to her tenant’s elevated blood lead level diagnosis. In a written opinion, the Court noted that, prior to the diagnosis, the landlord subscribed to a local Rochester newspaper that published a number of articles on the topic of childhood lead poisoning. The Court reasoned that, based on the landlord’s newspaper subscription history, a jury could find the landlord’s statements of ignorance to be incredible on its face. The case, June v. Vatter, 121 A.D.3d 1588 (4th Dept. 2014), is now binding precedent in all childhood lead poisoning lawsuits throughout Buffalo, Rochester and Syracuse.