Lead-Based Paint—Landlord’s Liability—Gore v. People’s Savings Banks

You asked for a copy and summary of Gore v. People's Savings Bank, 235 Conn. 360 (October 1995).

The plaintiffs initiated a lawsuit on behalf of their minor son. They claimed the defendants, People's Savings Bank and M.S.B. Real Estate Corporation, were strictly liable for the damages caused by their son's exposure to lead-based paint in defendant's dwelling. The trial court (Judge Thim) granted the defendant's motion for a directed verdict on the strict liability count. The jury returned a verdict in favor of the defendants on the remaining counts and the court denied the plaintiff's motion to set aside the verdict. The Appellate Court reversed the trial court's decision concerning strict liability, holding that §§ 47a-7 and 47a-8, when read together, and 47a-54f provide for civil damages under a strict liability claim. The Supreme Court reversed the Appellate Court. It held that although a violation of these statutes constitutes negligence per se, it does not establish strict liability. The Court construed these statutes as requiring proof that the landlord had actual or constructive knowledge of the violation and the opportunity to remedy the violation after notice. If the Court had construed the statutes as establishing strict liability, the plaintiffs would have only had to prove a violation that proximately caused the injuries.

We have enclosed copies of the three statutes involved—CGS §§ 47a-7, 47a-8, and 47a-54f. As you know, the legislature repealed § 47a-8 while the case was on appeal. The Supreme Court held that the repeal did not affect the case's outcome since the repeal did not help the Court in determining the legislative intent when § 47a-8 was originally enacted.

The Supreme Court concluded that the jury reasonably could have found the following facts. In 1984, the plaintiffs and their minor son, Kendall Copeland, moved into an apartment located at 400 Atlantic Street in Bridgeport. On May 2, 1985, a Bridgeport Department of Health employee inspected the apartment for the presence of lead. The test revealed some surfaces contained more lead than the federal statutory standard (42 U.S.C.A. § 4821 which was incorporated by CGS § 47a-8). The inspector sent notification to the landlord and asked that it correct the situation. On August 26, 1985, the health department employee reinspected the apartment and determined that all lead hazards had been abated.

The plaintiffs brought an action against the defendants for injuries that their minor son had suffered due to his exposure to lead-based paint. The plaintiffs claimed that the defendants: (1) negligently failed to comply with certain state laws relating to their tenants' health and safety (CGS §§ 47a-8(a)(2) and 47a-54f(b)), (2) failed to comply with lease provisions requiring the defendants to abide by these state laws, and (3) were strictly liable for damages caused by lead paint violations. After the close of evidence, the court granted the defendants' motion for a directed verdict on the strict liability court.

Regarding the negligence counts, the trial court instructed the jury that the defendants were liable if: (1) there was a violation of a warranty of habitability or state statute, (2) the landlord had constructive or actual notice of the violation, (3) the landlord had failed to repair the condition within a reasonable time after receiving notice, and (4) the failure to repair was the proximate cause of the plaintiff's injuries. The court also instructed the jury that a negative answer to any one of these elements would establish that the defendants were not liable.

The jury found the defendants not liable. Although they concluded that there was a violation of a warranty or statute and that defendants had actual or constructive notice of the violation, they found that the defendants had repaired the condition within a reasonable time period after notice. The plaintiffs filed a motion to set aside the verdict. The trial court denied the plaintiff's motion to set aside the verdict, concluding that the statutes in question do not modify the common law requirements of notice, and thus, do not impose strict liability on landlords.

The Appellate Court reversed the trial court's refusal to set aside the verdict. The Appellate Court concluded that the trial court erred when it directed a verdict in the defendant's favor on the strict liability count. It determined that violations of CGS §§ 47a-7, 47a-8, and 47a-54f(b) constitute negligence per se in connection with the minor's claim concerning lead-based paint because they satisfied the two-prong test for negligence per se: (1) that the plaintiffs were within the class of persons protected by the statute and (2) that the injury suffered is the type that the statute was intended to prevent. The Appellate Court further concluded that because the statutes met the threshold criteria for negligence per se and the statutes lacked any provision excusing the violation, that the legislature intended that the statutes provide for strict liability upon proof of a violation and a showing of proximate causation. Thus, it remanded the case back to the trial court for a new trial.

After the Appellate Court heard oral argument, but before it released its decision, the legislature repealed CGS § 47a-8 (PA 94-220, § 11). The defendants appealed from the Appellate Court decision.

The Supreme Court granted the defendant's petition for certification limited to the following two issues: (1) did the Appellate Court properly determine that the defendant's statutory violation imposed strict liability on the defendants for the minor plaintiff's injuries? and (2) what is the effect of the enactment of PA 94-220 (11) on the defendant's liability?

The defendants claimed that under common law principles of landlord premises liability, the burden is on the plaintiffs to prove not only that a condition in their apartment violates some common law or statutory duty to maintain the premises in a habitable condition, but also that the landlord had notice of the condition constituting the violation and had a reasonable time to repair the condition after receiving notice. In the defendants' view, and that of the trial court, because the provisions of §§ 47a-7, 47a-8, and 47a-54f do not expressly modify common law principles, these elements are a part of the plaintiffs' cause of action notwithstanding the statutory provisions.

The plaintiffs, on the other hand, concurred with the Appellate Court's analysis of the case according to the general tort principles of negligence per se and strict liability. The Appellate Court concluded that a violation of §§ 47a-8 and 47a-54f constitutes negligence per se, and that, because these statutory provisions do not expressly provide landlords the opportunity for proving the “excuse” of lack of notice, landlords are strictly liable for damages resulting from the violations upon proof of proximate causation.

The Supreme Court reversed the judgment of the Appellate Court concerning strict liability and remanded the case to that court for consideration of the plaintiff's other claims which the Appellate Court had not considered because of its strict liability holding. The Court held that a landlord was not strictly liable for a violation of the lead-based paint housing statutes in question. Rather, the Court held these statutes require proof that the landlord had constructive

or actual knowledge of the violation and failed to correct the violation in a reasonable time period after notice in order for an injured person to recover damages.

The Supreme Court first reviewed the following traditional principles of landlord premises liability:

1. under the common law, landlords have a duty to use reasonable care to maintain, in a reasonably safe condition, areas of the premises over which they exercise control;

2. the liability of landlords for damages to such areas depends on proof that they received either actual or constructive notice of the condition prior to the time of the plaintiff's injuries;

3. liability usually depends on proof that the landlord failed to remedy the defective situation in a reasonable period of time after receipt of notice; and

4. landlords generally do not have a duty to keep in repair any portion of the premises on the tenant's exclusive possession and control.

Based on the common law principles, the court concluded that within the common law, a tenant's claim for injuries caused by lead-based paint in the apartment would depend on proof of control and actual or constructive notice of the conditions creating the defective conditions caused by the lead-based paint.

The plaintiffs did not dispute these legal principles. Rather, they claimed that CGS § 47a-8 creates a statutory standard and that landlords are strictly liable for any violations of it.

The Court acknowledged that the legislature can impose obligations and duties over and above those imposed by the common law, and that, under general tort law principles, a statutory requirement can establish the applicable standard of care for a lawsuits. It then noted that:

Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law (page 376).

The Court then observed that in cases that invoke the doctrine of negligence per se, a defendant ordinarily may avoid liability by proving a valid excuse or justification. The court cited § 288 A of Restatement (Second) of Torts for the proposition that defendants usually may avoid liability by showing they neither knew nor should have known about the violation. The court also cited the following examples contained in the Restatement concerning this legal principle:

A statute provides that no vehicle shall be driven on the public highway at night without front and rear lights. While A is driving on the highway at night his rear light goes out because of the failure of an electric bulb. A has used all reasonable diligence and care in the inspection of his car and is unaware that the light has gone out. Before he has had any reasonable opportunity to discover it, the absence of the light causes a collision with B's car, approaching from the rear, in which B is injured. A is not liable to B on the basis of the violation of the statute (see § 288 A, comment (f), illustration 3).

The Court then noted that some statutes create a standard of care the violation of which constitutes negligence per se which does not permit a defendant to avoid liability on the basis of an excuse. According to the Court, these statutes result in strict liability, even though courts have continued to speak of liability for negligence.

The Court acknowledged that it has not often construed a statutory provision in the landlord-tenant context as creating a standard the violation of which constitutes negligence per se. The majority of negligence per se cases have arisen in the context of motor vehicle regulations, according to the Court. But the Court noted that in at least one prior case it had approved a lower court ruling that a certain housing code provision imposed on landlords additional duties the violation of which constitutes negligence per se, (citing Panaroni v. Johnson, 158 Conn. 92, (1969)).

Turning to the facts of the present case, the Court began its analysis by agreeing with the Appellate Court's conclusion that CGS § 47a-8 imposes on landlords a standard of care the violation of which constitutes negligence per se. In coming to this conclusion, the Court reviewed the statutory scheme in its entirety and the legislative history. But, the Court disagreed with the Appellate's Court's further conclusion that the legislature intended not to permit excuses or justifications for such per se violations. Apparently, the Appellate Court concluded that a violation of CGS § 47a-8 resulted in the imposition of strict liability because the statute did not expressly allow any excuse or justification. The Supreme Court disagreed with this conclusion. It cited Comment (d) of Section 288A of the Restatement (Second) Torts which states in part

no statute is to be construed as altering the common law, further than its words impart (and a statute) is not to be construed as making any innovation upon the common law which it does not fairly express.

Thus, according to the Court, the appropriate reasoning is that notice to the landlord of the hazard is relevant to the plaintiffs case unless the legislature had expressly removed notice considerations. The Court indicated that imposing such liability would be an extraordinary result and based on its examination of CGS § 47a-8, the court was not persuaded that the legislature intended to create such a result.

The Court also pointed to § 17.6 of the Restatement (Second) of Property which states that even if a landlord violates a negligence per se statute, no liability ordinarily attaches unless the landlord had actual or constructive notice prior to the violation. The Court pointed to the following portion of the commentary to § 17.6:

[t]he landlord is subject to liability under the rules of this section only for conditions of which he is aware, or of which he could have known in the exercise of reasonable care. Ordinarily, the landlord will be chargeable with notice of conditions which existed prior to the time that the tenant takes possession. Where the condition arises after the tenant takes possession, the landlord may not be able, in the exercise of reasonable care, to discover the condition, in which case the landlord will not be liable under the rules of this section until he has had a reasonable opportunity to remedy the condition after the tenant notifies him of it. Where the landlord is able to discover the condition by the exercise of reasonable care, he is subject to liability after he has had a reasonable opportunity to discover the condition and to remedy it.

The Court noted that Connecticut's common law has always included a notice requirement as part of a tenant's cause of action, and the statutory scheme involved in this case does not eliminate that requirement. In fact, the Court concluded that the statutory framework indicates a legislative intent to give landlords the chance to remedy housing code violations after they receive notice of violations. The Court pointed to the following provision of CGS § 47a-58(a) to support its conclusion.

[a]ny enforcing agency may issue a notice of violation to any person who violates any provision of this chapter or a provision of a local housing code. Such notice shall specify each violation and specify the last day by which such violation shall be corrected . . . . The enforcing agency may postpone the last day by which a violation shall be corrected upon a showing by the owner or other responsible person that he has begun to correct the violation but that full correction of the violation cannot be completed within the time provided because of technical difficulties, inability to obtain necessary materials or labor or inability to gain access to the dwelling unit wherein the violation exists.

The Court noted that the legislature knows how to create strict liability when it chooses to do so. It cited CGS § 22-357 which provides that dog owners “shall be liable” for damages to any person's body or property caused by a dog as an example of statutorily created strict liability.

The Court acknowledged the strong public policy arguments on both sides of the issue. For example, some argue that holding landlords strictly liable would best motivate them to eliminate the presence of lead-based paint in their rental properties and thus most effectively protect children. On the other hand, others argue that strict liability would motivate landlords to abandon their property which would stifle abatement and further cause children to be exposed to lead-based paint. In the Court's view, both these scenarios are plausible consequences of a strict liability system. But the Court stated it is up to the legislature to weigh these economic and social arguments and enact legislation it deems appropriate.

The defendants claimed the repeal of CGS § 47a-8 (PA 94-220, § 11) clarifies that the legislature had never intended that it be construed as creating strict liability. The plaintiffs, on the other hand, contended that the legislature intended to create strict liability under CGS § 47a-8 and that its repeal in 1994 cannot be applied retroactively to foreclose their preexisting strict liability action.

The court concluded that the legislative history is unclear about whether this response was intended to clarify that the legislature had never intended to create strict liability or whether the repeal was meant to eliminate strict liability that the legislature had intended to create pursuant to CGS § 47a-8. Thus the court concluded that the repeal of CGS § 47a-8 had not effect on the defendant's liability in this case.