PPA v. Ottawa Enterprises et al. (2012)

MEMORANDUM OF DECISION

This action is brought by Doretta Bowman, individually and on behalf of her daughter, the minor plaintiff Amarea Moore, against the defendants, Ottawa Enterprises and Anthony Perrotti, seeking monetary damages for personal injuries suffered by the minor plaintiff as a result of exposure to lead-based paint in and upon premises rented to the plaintiffs by the defendants.   A judgment by default for failure to appear was entered against the defendants and this matter was heard as a hearing in damages by the court.

In February 2005, the plaintiffs became tenants of a first floor apartment owned by the defendants at 155 Chatham Street, New Haven, Connecticut.   The plaintiffs remained in the apartment until November 2006 and the state, through a “Section 8” voucher, paid their entire rent, in the amount of $1,000 per month, for the duration of the tenancy.

The minor plaintiff was born on February 11, 2004 and was approximately one year old when the tenancy began.   On March 22, 2005, during the course of a twelve-month well child visit with her pediatrician, a routine fingerstick lead level test of the minor plaintiff revealed a lead level within the normal range.   The minor plaintiff's subsequent two-year well child visit on September 12, 2006 revealed a normal physical exam, but the pediatrician noted that she had speech difficulties.   A routine lead screening test revealed an elevated lead level of 15.   A follow-up test on September 26, 2006 indicated a lead level of 18.   Consequently, both the plaintiff and the pediatrician contacted the New Haven department of health.   An October 23, 2006 inspection of the plaintiffs' apartment revealed toxic levels of lead paint on the windows in the living room, all three bedrooms, kitchen, pantry and backhall.   Lead paint was also present throughout the back porch and the exterior of the building.   Subsequent lead level tests performed by the minor plaintiff's pediatrician on October 27, 2006, September 8, 2008, January 21, 2010 and June 16, 2010 revealed normal to borderline lead levels.   The state paid for all evaluations and diagnostics.

On March 14 and 16, 2011, a psychologist performed a neuropsychological evaluation of the minor plaintiff and made recommendations based on her medical records, an evaluation by the plaintiff and the minor plaintiff's teacher as well as observations and a battery of tests administered to the minor plaintiff.   The psychologist noted that the minor plaintiff had achieved a normal attainment of language, motor, and social interaction through the age of 18 months.   By 22 months, however, the minor plaintiff was reported to be producing relatively few words and, between two and three years of age, demonstrating expressive language delays.

Based on the evaluations of the minor plaintiff, the psychologist observed that “[t]here is a great deal of information that suggests that [the minor plaintiff] will encounter increasing levels of academic challenge as she progresses through her elementary and middle school years.   Specifically, her neurocognitive profile contains troubling areas of pronounced weakness in the domains of language and attentional/behavioral regulation ․ These language deficits and weaknesses are viewed as entirely consistent with the numerous concerns about her language skills referenced in the medical records from the ages of two onwards ․ As the linguistic and conceptual complexity of instruction content and written narrative increases as she progresses through her school years, her varied receptive and expressive language deficits will impose increasing limitations on her academic and social efficacy unless she is provided with a combination of direct instruction targeting gains in her understanding of varied linguistic concepts and of connected narratives and in related academic skills and with reasonable accommodations in her mainstream classes.”   She went on to note that “[t]here are also distinct weaknesses in [the minor plaintiff's] capacities for attentional and behavioral regulation.   While she can remain focused for relatively short periods of time when she is in the company of an adult or engaged in clearly defined tasks, she struggles far more than her age peers to sustain her focus over time when she is working independently or completing more open-ended tasks.”

The psychologist concluded that “[i]t is not possible—given my relatively limited understanding of [the minor plaintiff's] family medical history—to rule out the possibility that some of her language and attentional deficits represents her genetic heritage ․ There is also some indefinable likelihood of mildly neurotoxic impact—specifically on the systems that mediate the regulation of attention, behaviors, and emotions—from the varied economic and familial stressors that [the minor plaintiff] endured during her early formative years.   Having said that, there is a rather strong likelihood that some portion of [the minor plaintiff's] current language and attentional deficits represents the neurocognitive sequelae of the clearly neurotoxic blood lead levels detected when [the minor plaintiff] was two and the somewhat elevated blood lead levels evident in subsequent blood samples.   It is noted, in this regard, that current studies ascribe some likely neurologic risk even from blood lead concentrations above four mcg/dL in children between the ages of one and five.   It is further noted that the likelihood of a direct causal relationship between [the minor plaintiff's] past exposure to elevated lead levels and her current cognitive deficits is supported by years of careful studies of populations of children who are quite similar to [the minor plaintiff].   Such studies—in confirming the very real and long-term negative effects of exposure to elevated levels of lead of the developing brain—have taken great pains to account for the complexity of factors that can influence the brain development of all children and—specifically—of children such as [the minor plaintiff] whose risk for failing to reach their inherent potential is also elevated by a host of other environmental, familial, financial, and social stressors.”

With regards to the claims of negligence per se, the report by the New Haven department of health, which indicated that there were toxic levels of lead paint throughout the plaintiffs' apartment as well as holes and cracks in the walls and chipped and flaking paint, substantiates the plaintiff's account of chipped lead-based paint that was given to the minor plaintiff's pediatrician.   Such conditions are a direct violation of General Statutes §§ 21a–82(a),¹ 47a–7,² and 47a–54f.³  See Housing Authority v. Olesen, 31 Conn.App. 359, 362–63, 624 A.2d 920 (1993) (landlord's violation of lead-paint statutes constitutes violation of § 47a–7(a)(2)).   Therefore, the court finds for the plaintiffs on those counts.

As to counts three and seven, where the plaintiffs seek punitive damages and attorneys fees for violation of CUTPA,⁴ the court finds that the defendants knew or should have known that there was lead-based paint in the plaintiffs' apartment when they rented it to them.   The act of renting an apartment with lead-based paint to the plaintiff is sufficient to sustain claim for 42–110a.   See Hardy v. Griffin, 41 Conn.Sup. 283, 287, 569 A.2d 49 (1989).

As to counts four and eight, the plaintiff seeks a return of all rent paid to the defendant pursuant to § 47a–4a.   Section 47a–4a provides:  “A rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a–7.”   Thus, one of the “remedies available to a tenant in the event of the landlord's dereliction of [the] statutory duties [of § 47–7 is that] the tenant may withhold his rental payment, § 47a–4a ․” Visco v. Cody, 16 Conn.App. 444, 449, 547 A.2d 935 (1998).   The statute does not, however, permit the recoupment of previously paid rent.   To receive a retroactive abatement of rent, the plaintiff would have had to seek the return of rental payments pursuant to General Statutes § 47a–14h.⁵  The plaintiff testified that “Section 8” paid all of her rent for the entire time that the plaintiffs resided at the premises.   She did not withhold any rent as a result of the lead-paint violations, nor could she.   Accordingly, the court does not award the plaintiff payment for prior rent payments.

When a plaintiff suffers “lead poisoning and the defendant's premises contain [s] lead-based paint, the plaintiff is entitled to recover the fair, just and reasonable damages sustained as a consequence of the elevated lead in his blood ․ The plaintiff is entitled to recover the costs of medical care, including diagnostic testing incurred to ascertain what, if any, damages may have been caused by the lead poisoning.   He is also entitled to recover the non-economic damages for pain, suffering and the loss of life's enjoyment attendant to the lead poisoning including its diagnosis and treatment.”   Hough v. Santana, Superior Court, judicial district of Hartford, Docket No. CV 05 4013555 (February 10, 2006, Bryant, J.)

In view of the foregoing, the court awards the minor plaintiff, Amarea Morra, $200,000 compensatory damages, and the plaintiff $15,810 for attorneys fees incurred for bringing this action plus taxable costs.⁶

Robert I. Berdon

Judge Trial Referee

FOOTNOTES

FN1. Section 21a–82(a) provides:  “No person, firm or corporation shall use any paint on an interior surface of any tenement house, lodging house or boarding house as defined in chapter 368o nor on or around the interior or exterior surface of any door, window, porch, stairway or railing of any such tenement house, lodging house or boarding house unless such paint conforms to the standards as required in accordance with the Lead-based Paint Poisoning Prevention Act, Chapter 63 of the Social Security Act, as amended.”.  FN1. Section 21a–82(a) provides:  “No person, firm or corporation shall use any paint on an interior surface of any tenement house, lodging house or boarding house as defined in chapter 368o nor on or around the interior or exterior surface of any door, window, porch, stairway or railing of any such tenement house, lodging house or boarding house unless such paint conforms to the standards as required in accordance with the Lead-based Paint Poisoning Prevention Act, Chapter 63 of the Social Security Act, as amended.”

FN2. The complaint sets forth § 47–4 as the applicable General Statutes section.   The court believes, however, that it is a scrivener's error and that the correct section is § 47a–7.  Section 47a–7 provides in relevant part:  “(a) A landlord shall:  (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof;  (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant ․.  FN2. The complaint sets forth § 47–4 as the applicable General Statutes section.   The court believes, however, that it is a scrivener's error and that the correct section is § 47a–7.  Section 47a–7 provides in relevant part:  “(a) A landlord shall:  (1) Comply with the requirements of chapter 368o and all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof;  (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant ․

FN3. Section 47a–54f provides in relevant part:  “(b) Paint on the exposed surfaces of the interior of a tenement house shall not be cracked, chipped, blistered, flaking, loose, or peeling so as to constitute a health hazard.   Testing, remediation, abatement and management of lead-based paint at a tenement house or its premises shall be as defined in, and in accordance with, the regulations, if any, adopted pursuant to section 19a–111c.”.  FN3. Section 47a–54f provides in relevant part:  “(b) Paint on the exposed surfaces of the interior of a tenement house shall not be cracked, chipped, blistered, flaking, loose, or peeling so as to constitute a health hazard.   Testing, remediation, abatement and management of lead-based paint at a tenement house or its premises shall be as defined in, and in accordance with, the regulations, if any, adopted pursuant to section 19a–111c.”

FN4. Count three of the complaint cites the CUTPA provision as 42–110.   In count six, however, it is correctly cited as 42–110a.   Again, the court will construe the citation in count three as a scrivener's error..  FN4. Count three of the complaint cites the CUTPA provision as 42–110.   In count six, however, it is correctly cited as 42–110a.   Again, the court will construe the citation in count three as a scrivener's error.

FN5. The court notes that even if the plaintiff had brought a count pursuant to § 47a–14h, she would not have prevailed.   In holding that a tenant could only receive monies which she actually paid in rent, the court in Farver v. Norris Graves Agency, Superior Court, judicial district of Hartford, Docket No. HC H9110250 (October 2, 1992, Holzberg, J.) [7 Conn. L. Rptr. 419], reasoned that “[s]ubsection (h) provides that ‘if all or a portion of the tenant's rent is being paid to the landlord by a housing authority, municipality, state agency or similar entity,’ the amount that must be paid into the court is the tenant's share only.   Accordingly the court holds that only those monies actually paid by the tenant may be abated.   To hold otherwise would be to allow a tenant to receive an undeserved windfall if she could recover amounts far in excess of what she actually paid to the landlord.”.  FN5. The court notes that even if the plaintiff had brought a count pursuant to § 47a–14h, she would not have prevailed.   In holding that a tenant could only receive monies which she actually paid in rent, the court in Farver v. Norris Graves Agency, Superior Court, judicial district of Hartford, Docket No. HC H9110250 (October 2, 1992, Holzberg, J.) [7 Conn. L. Rptr. 419], reasoned that “[s]ubsection (h) provides that ‘if all or a portion of the tenant's rent is being paid to the landlord by a housing authority, municipality, state agency or similar entity,’ the amount that must be paid into the court is the tenant's share only.   Accordingly the court holds that only those monies actually paid by the tenant may be abated.   To hold otherwise would be to allow a tenant to receive an undeserved windfall if she could recover amounts far in excess of what she actually paid to the landlord.”

FN6. The attorney representing the plaintiffs in this action support the amount of attorneys by an affidavit..  FN6. The attorney representing the plaintiffs in this action support the amount of attorneys by an affidavit.

Berdon, Robert I., J.T.R.