PHILADELPHIA – The landlord for parents of a local child who allegedly suffered from toxic lead exposure at his Philadelphia elementary school has denied claims he’s responsible for the child’s subsequent medical issues.
D.P., a minor by his parents and natural guardians Cristine and David Pagan, first filed a complaint on Dec. 10 in the U.S. District Court for the Eastern District of Pennsylvania, against the School District of Philadelphia, the City of Philadelphia, Watson T. Comly School and others.
According to the complaint, D.P. was enrolled in kindergarten at Watson T. Comly Elementary in April of 2017. In the fall of 2017, his first-grade teacher noticed D.P. was eating paint chips that had fallen from the ceiling.
He was then tested on Nov. 13, 2017, and found to have 46 micrograms of lead per deciliter in his blood and was admitted to the hospital for lead toxicity, the suit said.
The school, which was constructed in the 1890s, then tested positive for lead-based paint concentrations that exceeded federal government standards, the suit stated.
On April 10, defendant Michael Gruman filed a motion to dismiss in the matter, for failure of the plaintiffs to state a claim upon which relief could be granted.
“The complaint does not allege that plaintiff’s parents notified defendant Gruman that there was lead-based paint in the house, or that the paint was chipping and dangerous. The complaint does not allege when the subject property was constructed,” according to Gruman’s answer.
“By contrast to the allegations against the school defendants, the complaint does not allege that the chipping paint in the subject property was tested and found to contain dangerous levels of lead. Instead, the only other allegation that the plaintiff pled in support of his claim against Gruman is that the defendant had actual or constructive knowledge that a person under 7 years of age lived in the property.”
According to Gruman, state courts have ruled that “a property owner, absent actual notice of a hazardous condition on the premises, will not be liable to a tenant for injuries flowing from such a condition.”
“More importantly, the Court…expressly held that absent actual notice of a dangerous lead paint condition, a property owner owes no duty of care to the tenant to inspect the property for the danger, or to repair the dangerous condition,” the answer said.
“Specifically, the Court held the appellants have failed to point to any authoritative source holding that a landlord has a duty (legally imposed) to inspect for the presence of lead-based paint in rental property, the failure of which constitutes negligence.”
According to Gruman, the plaintiff only alleged in a conclusory manner that Gruman “knew or should of known [that the property] was contaminated with toxic lead-based paint”, nor does plaintiff support this legal conclusion with any factual allegations establishing that Gruman “knew or should have known” of the dangerous condition.
“Plaintiff alleges, again in conclusory manner, that there was “peeling, deteriorating lead-based paint”, but there are absolutely no allegations supporting the inference that Gruman actually knew of this condition, or, more importantly, that the plaintiff informed him of the peeling paint chips, or the fact that they were lead-based or dangerous,” the answer stated.
“Indeed, there are no allegations from which a reasonable inference could be drawn that the paint chips were in fact lead-based or dangerous. Plaintiff does not allege that the subject property was built before 1978, or that the paint chips were even tested to determine if they were lead-based and dangerous. For that matter, there is not even an allegation that the paint chips were in an area of the house that was accessible to the minor child or would have exposed him risk.”
Gruman argued the complaint is void of any factual allegation supporting the inference that he had actual knowledge of lead-based paint chips, and hence had a duty of care to the plaintiff to inspect the premises for the dangerous condition and/or repair the dangerous condition and/or warn the plaintiff of the dangerous condition. Therefore, Gruman said the plaintiff failed to allege both negligence and causation.
The plaintiffs are represented by David Alexander Latanision of Levy Konigsberg in New York, plus Stephen Specht of Green & Schafle, in Philadelphia.
The defendants are represented by Susanna Randazzo of Kolber Freiman & Randazzo, Thomas Bruno II of Abramson & Denenberg and Shannon G. Zabel of the City of Philadelphia’s Law Department, all also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05799
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com