By Marnie Eisenstadt
A jury ordered Albany County to pay $90,000 each to two sisters who were brain damaged from lead poisoning they suffered in their apartment.
The jury found that the county--because it ran a lead poisoning prevention program -- was 100 percent responsible for the injuries the girls - now 7 and 5 - suffered front having contact with lead paint.
The landlords who rented the apartment to the girls' mother settled their case and agreed to pay Tanya and Marilyn Valentino $417,000, bringing the total award the sisters will split to $597,000.
Though the award is much smaller than the $1.8 million ajury in October awarded to an 8-year-old Cohoes girl who suffered lead paint poisoning, lawyers say the jury's finding was an important one.
"The fact that the jury found that the county was negligent is very significant because when the county goes in and says they are going to do a lead paint abatement, they need to do it properly to protect innocent children," said Albany attorney Peter Danziger, who represented the Valentino sisters.
There are about 30 children who have similar lead paint poisoning cases pending against Albany Counts. The verdict in the case of the Valentinos was reached late Wednesday afternoon after a 2 1/2 week trial before state Supreme Court Judge Bernard J. Malone, Jr.
Lawyers for Albany County said they were happy that the dollar amount the county was ordered to pay was relatively small.
"The amount of the verdict is very pleasing because the the proof didn't warrant a larger verdict but I am very disturbed and disappointed that the jury found the county negligent. There simply wasn't any competent proof of negligence on the county's part," said Albany attorney John W. Bailey, who represented the county.
Bailey said the county has not determined whether to appeal Wednesday's verdict because it is unlikely the county will have to pay anything, due to civil legal procedures that take effect when some parties in a case settle.
Bailey said the county is appealing the earlier, $1.8 million verdict.
Tanya and Marilyn were poisoned by having hand-to-mouth contact with lead - either by eating sweet-tasting paint chips or simply touching the lead paint - or by breathing in the lead-contaminated dust in the apartment, according to trial testimony. The girls both suffer from attention deficit disorder, are hyperactive, and have learning disabilities, according to trial testimony.
This case was different from the case of 8-year-old Sierra Dawn LaFountaine of Cohoes, who ate peeling paint chips off the wall of her mother's apartment and was awarded $1.8 million in October by an Albany County jury. In that case, the landlord was ordered to pay 70 percent of the award and the county 30 percent.
"The major difference in this case is that the defense raised a lot of family issues," said Danziger, who also handled the LaFountaine case. "There was testimony that the [Valentino girls'] mother drank during the pregnancies and smoked during the pregnancies and was addicted to Valium."
"The size of the settlement [and verdict] reflected that these injuries were a combination of factors but clearly the lead poisoning was a substantial factor in causing brain damage," Danziger said.
Tanya was first found to have elevated blood-lead levels in September 1992, when she was just a year old. Marilyn's blood-lead levels tested high in March 1994, when she was also a year old.
Albany County first inspected the apartment the girls lived in 1993 and found no lead hazard hut failed to test the air for lead-contaminated dust or check the soil around the building for lead. The county tested the apartment on three other occasions over the next three years anti found lead hazards. The landlords - Abraham Greenberg, Capitol Hill Improvement and Marcello Fazio Properties - were ordered to begin lead abatement programs.
The lead levels inside the apartment initially fell, then increased again. "The county failed to properly inspect [the apartment] and failed to require complete abatement," Danziger said. "They didn't make the landlords properly repair the lead hazard."
The jury found that the landlords were not at all responsible for the Valentino sisters' injuries but, because they agreed to settle the case prior to the trial, they will still pay $417,000 as agreed.
The jury also found that Albany County and its Health Department had a duty - through its lead poisoning prevention and outreach program - to protect children from being poisoned.
"One of the more interesting issues in the case was this special duty issue. We argued that we provided a municipal service like the police and fire departments," Bailey said. "You can't sue the fire department if your house burns down and you can't sue the police department if your house gets burglarized. All we're doing is providing information [about lead paint poisoning]."