By John Caher
The largest lead paint verdict ever in upstate New York, and the first to hold a county liable for failure to supervise an abatement, has been affirmed by the Appellate Division, Third Department.
In a unanimous opinion, the Third Department last week upheld the $1.8 million verdict In favor of a girl who became a “social pariah” as a result of injuries associated with lead paint poisoning. It also affirmed a finding that Albany County was 30 percent liable, and said that damages do not need to be apportioned to reflect comparative negligence.
La Fountaine v. Franzese, 87158, arises from a verdict in Albany Supreme Court and Justice Joseph C. Teresi’s refusal to set it aside.
The case centered on Sierra-Dawn La Fountaine, who had been living in a century-old home in a small city north of Albany. In 1992, when the girl was 1 year old, a routine examination detected blood lead levels at 11 micrograms per deciliter (mg/dl). Two months later, when the level had risen to 15 mg/dl, the Albany County Health Department was notified.
However, since the level was below the threshold level of 20 mg/dl, no action was taken. Miss La Fountaine’s blood lead levels continued to rise even after an abatement ordered by and then certified by Albany County.
In Albany County Supreme Court, the trial team of Peter Danziger and Stephen R. Coffey of O’Connell and Aronowitz in Albany, and David McMorris and Neil Leifer of Thornton & Naumes in Boston, alleged that the landlords failed to properly abate the hazard, and that the county neglected to supervise. The jury returned a verdict including $1 million in damages for future pain and suffering, $500,000 for past pain and suffering and $300,000 for future economic loss. Justice Teresi allowed the verdict to stand, resulting in this appeal.
On appeal the defendants maintained that they could not be held liable for injuries sustained prior to having notice of the hazard. They also argued that the evidence failed to differentiate between pre- and post-notice injuries, and therefore they could not be held liable; that the award was excessive; and that any award should be apportioned. The Third Department rejected all of those arguments.
Writing for the court, Justice John T. Lahtinen said the girl’s injuries were clearly established, and that the lead hazard was exacerbated by shoddy abatement procedures. He observed that the abatement was performed without taking steps to limit the amount of dust that would be generated and without the use of a special vacuum that had been provided by Albany County. Justice Lahtinen also credited plaintiff’s experts testimony that the injuries could not be apportioned between the pre- and post-notice exposures, but had to be attributed to total exposure.
“The courts of this state have held that injuries not capable of reasonable or practicable division are not required to be apportioned and, as a result, may be attributable in such instances to all defendants,” Justice Lahtinen wrote. “We find this legal tenet appropriate in this instance where the record is devoid of any proof which would provide the jury a nonspeculative basis upon which to make a practical division of plaintiff’s injuries.”
On the damages, Justice Lahtinen noted that the girl suffers a number of disorders from her lead poisoning and carries a haunting stigma.
“She is called retarded and stupid by her classmates, is not invited to social functions such as birthday parties, and is aware of and affected by this behavior toward her, at times coming home crying from school,” Justice Lahtinen wrote. “Additionally, the disheartening effects upon plaintiff of being a social pariah were confirmed by defendants’ expert child psychiatrist who testified that during his evaluation of plaintiff, she drew a picture where she was alone and told him that she has no friends.”
Joining Justice Lahtinen were Presiding Justice Anthony V. Cardona and Justices D. Bruce Crew Ill, Karen K. Peters and Carl J. Mugglin.
The landlords, Nicholas and Eileen Franzese, were represented by John A. Stevens, of Williamson, Clune & Stevens of Ithaca. John Bailey and Rebecca Slezak, of Ainsworth, Sullivan, Tracy, Warner & Ruslander PC in Albany, represented the county. Mo Athari of O’Connell and Aronowitz argued for the plaintiff on the appeal.