PHILADELPHIA – The parents of a local child who allegedly suffered from toxic lead exposure at his Philadelphia elementary school are opposing the dismissal of their landlord from their lawsuit, according to a recent filing in the action.
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 Feb. 11, counsel for defendants SDP, Comly School, Principal Kate Sylvester and Environmental Director Francine Locke responded with a motion to dismiss the lawsuit, citing failure to state a claim upon which relief could be granted.
The motion argued the plaintiff failed to show his 14th Amendment rights were violated, that Sylvester and Locke lack requisite personal involvement and specific conduct to be held individually liable for federal constitutional violations and are shielded from federal claims due to qualified immunity, along with pendent state claims being dismissed for lack of jurisdiction.
“The instant lawsuit is an ordinary personal injury matter masquerading as a constitutional deprivation. Counts I and II of plaintiff’s complaint do not allege facts which rise to the level required to assert federal constitutional deprivations of rights and should be dismissed,” the dismissal motion read, in part.
However, on March 6, the plaintiffs responded to the dismissal motion, charging their suit should not be thrown out due to the school’s district responsibility in causing their child to be exposed to a “state-created danger."
The Pagans argued that given the age of the school building (over 120 years), the district should have known that it contained lead and that such a condition is dangerous, particularly involving a child who had a known history of putting non-edible objects into his mouth, like the minor plaintiff – with that latter information being disclosed on a report card from his first-grade teacher the previous year.
Thereby, the plaintiffs’ request that the defendants’ motion be thrown out or in the alternative, they be permitted to amend the original complaint to cure any technical deficiencies or be allowed to pursue their negligence claim in a Philadelphia state court as opposed to federal court (should it not meet federal pleading standards).
On March 18, the City of Philadelphia motioned that it should be dismissed from the litigation, for reasons of:
• The plaintiff “not making sufficient factual allegations regarding a municipal policy or custom that was the moving force behind the constitutional violations alleged”;
• The plaintiff “failing to allege that the City defendants caused the harm alleged to plaintiff”;
• Deputy Commissioner Caroline Johnson being entitled to qualified immunity in this case and;
• The Tort Claims Act barring plaintiff’s remaining state law claims against the City defendants.
“The only conduct that plaintiff arguably alleges that is attributable to the City Defendants occurred well after minor plaintiff ingested lead paint chips and tested positive for leading poisoning. Plaintiff claims that, after being apprised of the situation and plaintiff’s positive test result, Deputy Commissioner Johnson told Ms. Locke she did not recommend notifying the community yet,” the motion read, in part.
“Plaintiff fails to explain how such alleged conduct caused him any constitutional harm. Rather, plaintiff seeks to hold the City defendants liable for conduct that has no causal relationship to the constitutional violations he has alleged.”
On April 1, counsel for the plaintiff filed a notice of non-opposition to the City’s dismissal motion.
But on April 10, the landlord defendant Gruman separately motioned to dismiss the complaint for failure to state a claim and the plaintiffs responded two weeks later, on April 24.
“Minor plaintiff tested positive for highly elevated levels of toxic lead while living at defendant’s property, which upon information and belief, contained lead paint. Minor plaintiff has alleged in the complaint that the defendant had either actual notice of the presence of lead paint, or constructive notice by virtue of the fact that the property contained chipping and/or peeling paint. The extent of defendant’s knowledge as to the presence of lead paint is an issue of material fact that must be explored in discovery,” according to the plaintiffs.
“As the owner of the property, defendant would have a full and fair opportunity to observe any chipped or peeling paint himself, without needing to be notified by minor plaintiff’s parents. The issue of notice – which includes defendant’s own knowledge regarding any lead issues in the property – must be explored in discovery.”
Plaintiff counsel seeks Gruman’s dismissal motion to be thrown out or alternatively, the opportunity to amend its complaint to cure any deficiencies – or thirdly, if the matter is deemed not to be at home in a federal court, to leave an opportunity to pursue the negligence and/or recklessness claim against Gruman in a state court.
For counts of 14th Amendment violations and negligence/recklessness, the plaintiffs seek compensatory, punitive and exemplary damages, a trial by jury, interest and all other equitable relief.
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