Pelaez v. Seide

mational pamphlet about lead poisoning. She also contacted Lawrence Werper, a public health engineer for the PCDOH, so that he could inspect the premises.

In March 1995, Werper visited the home several times to test for lead paint. No one was home on his first visit, but he took paint samples from the outside of the house, and they tested positive for lead. A few days later, Werper tested paint samples from inside the home and determined that the property contained no lead-safe rooms. On March 14, the County issued a notice and demand for discontinuance, ordering abatement by April 7.

Werper visited again on March 29, accompanied by Ortiz. While Ortiz spoke with Pelaez and the children, Werper inspected the premises and saw that abatement had not yet begun. According to Pelaez, Ortiz told her to follow a regimen that would help the children’s condition, such as feeding them vegetables, removing the carpet and mopping the floors instead of sweeping them. Ortiz also performed a developmental assessment of the children—in her words, she picked them up and noted that although they were small for their age, they could raise their arms, look at her when she spoke to them, hear her properly and support their own weight. Pelaez stated that Ortiz did not advise her that lead poisoning “was a very dangerous thing,” or suggest that she move her family from the premises.

Ortiz and Werper continued to watch the situation over the next few months. On April 24, Werper returned to the residence and found that abatement was proceeding inadequately. He issued a notice of hearing to the landlord, but later cancelled the hearing when a June inspection showed progress. Although Werper admitted that he did not aggressively press the owners or discuss the dangers of lead poisoning with Pelaez, Ortiz returned to the home in April to make sure that Pelaez was following her instructions. She also sent Pelaez a letter in May 1995, after further testing showed that Servando’s blood lead levels dropped to 13 mcg/dl. In the letter, Ortiz applauded the improvement and said that Servando did not need to be retested until September.

Werper reinspected the premises on August 9 and September 14. He determined that abatement was not proceeding well enough and reissued the notice of hearing for October 11, 1995 before a Putnam County administrative hearing officer. At the hearing, the judge ordered defendant Glass to relocate the children immediately.

The children were retested the very next day. Christopher’s blood lead level was 50 mcg/dl, and Servando’s measured 70 mcg/dl. Recognizing that these levels constitute medical emergencies, Ortiz had the children admitted to the hospital, where they underwent chelation treatment. The day after the children entered the hospital, Werper had the house condemned as unfit for human habitation.

Plaintiffs commenced this personal injury action against the Seides, Glass, Putnam County and its DOH, claiming that the children suffered neurological and behavioral injury based on defendants’ negligence and dereliction. The Putnam defendants moved for summary judgment, which Supreme Court denied, determining that there were questions of fact as to the existence of a special relationship.

The Appellate Division reversed and dismissed the complaint against the County defendants, holding that the employees’ conduct involved discretion and judgment, which could not result in liability even if their actions were negligent. Further, the Court found that no special relationship existed. It also determined that because the Public Health Law was enacted for the benefit of the general public—and not to protect a special class of persons, such as children—the County violated no statutory duty. Lastly, the Court concluded that plaintiffs did not raise issues of fact that the County voluntarily assumed either a duty to protect the children, or assumed a positive direction or control over the situation.

Harris v Llewellyn

In 1988, Debbie Harris moved to an apartment on Newkirk Avenue in Brooklyn. She gave birth to her daughter, plaintiff Ashley, four years later. In September 1996, Ashley’s blood lead level tested at 33 mcg/dl, triggering intervention by the City of New York. A City Department of Health public health advisor (PHA) visited the Harrises at home and provided nutritional and hygienic advice to help lower Ashley’s lead levels. Also, a City DOH public health sanitarian (PHS) inspected the apartment using an x-ray fluorescence machine, finding that many painted surfaces in the apartment contained hazardous levels of lead.

In October 1996, City DOH issued an order to abate nuisance, but when a PHS and PHA reinspected the apartment in November, they determined that abatement had not begun. In the meantime, the PHA provided Harris with further nutritional

its contrary intent, in light of decisional law denying liability where a school district had failed to administer scoliosis tests.

Given our precedents and the thrust of the Lead Poisoning Prevention Act, we conclude that a private right of action is not available under the statute. Therefore, plaintiffs may not assert a special relationship based on a claimed violation of a statutory duty.

Clearly, plaintiffs meet the first prong, as part of the class to be benefitted. The Lead Poisoning Prevention Act specifically mentions children and pregnant women as the statutory beneficiaries (see e.g. Public Health Law § 1370-a [2] [a]). Moreover, the Bill Jacket is filled with references to the protection of children (see e.g. Governor’s Program Bill Mem, Bill Jacket, L 1992, ch 485, at 12; Mem of Assembly Member Eve, id. at 17; Governor’s Approval Mem, id. at 27). Indeed, the Putnam County protocols list children under the age of six as the class of persons they intend to protect. In New York City, the pertinent regulation (24 RCNY 173.13 [d] [2]) was amended effective January 1, 1997, to apply to children under age 18, and it was during that month the city inspector told the Harrises that the apartment was lead-free.

Creation of a private right of action, however, is not consistent with the legislative scheme, and thus fails under the third Sheehy prong. While a private right of action might, at least indirectly, promote the ultimate legislative purpose—reducing lead paint hazards—and thus satisfy the second Sheehy prong, it does not comport with the legislative scheme. The enactment contemplates a program of oversight in which the role of government is, in the main, administrative and advisory. Municipalities participate by conducting lead screening, compiling a statewide registry for children with elevated lead levels, and developing public education and community outreach programs (see Public Health Law § 1370-a [2]). Insofar as they can compel property owners to abate the nuisance, municipalities have a hand in enforcement (see Public Health Law § 1373), but in all, the Public Health Law is best read to assure that owners, not government, bear the ultimate responsibility for compliance.

Opening municipalities to liability for carrying out their duties imperfectly could even disserve the statutory objective by, causing municipalities to withdraw or reduce services in dealing with lead paint. Lawsuits are not the only way to deal with the problem. We read the legislative design as encouraging munici

palities to cooperate administratively, while preserving the tort remedy against owners, when appropriate.

B. Voluntary Assumption of a Duty

Most of our municipal special relationship cases have centered on whether a municipality has assumed an affirmative duty that generated justifiable reliance by the plaintiff. We laid out the test in Cuffy v City of New York ( 69 NY2d 255 [1987]). It requires (1) an assumption by a municipality, through promises or actions, of an affirmative duty to act on behalf of the injured party; (2) knowledge on the part of a municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking {id. at 260).

Undisputedly, the officials in both cases had direct contact with the plaintiffs. Their claims fail, however, because neither municipality voluntarily assumed a duty on which plaintiff could justifiably rely. In retrospect, the municipal employees in both cases may have carried out their duties imperfectly, and it surely would have been far better—and the harm perhaps avoided— had the Putnam authorities been more aggressive and the New York officials more thorough. But that is not the test. If it were, municipalities in all their governmental functions would be insurers of the safety of their citizens and be open to liability whenever it can be shown that they could have or should have done better.

The Pelaez plaintiffs argue that the County exceeded its responsibilities and took on affirmative duties by offering advice as to nutrition and hygiene. They also fault the County for eliciting medical information about the children, for promising to conduct reinspections and ensure abatement, and for following up with visits and letters erroneously advising them that it was not necessary to take Servando for testing until September. The Harris plaintiffs similarly argue that the health and hygienic advice provided by the City went beyond the purview of the Public Health Law. We disagree. On this record, we cannot say that in their contacts with plaintiffs either municipality took on an affirmative duty to act on plaintiffs’ behalf. Indeed, when dealing with plaintiffs, the officials did not go beyond the mandates of the lead paint laws.

The Public Health Law calls for the inspection and counseling activities undertaken by the municipalities. Public Health

Law § 1370-a (1) directs that lead poisoning prevention programs “be responsible for establishing and coordinating activities to prevent lead poisoning and to minimize risk of exposure to lead.” Further, subdivision (2) (d) mandates the development and implementation of “public education and community outreach programs on lead exposure, detection and risk reduction.” Providing advice on health and hygiene issues is a governmental activity meant “to prevent lead poisoning and to minimize risk of exposure to lead.” It also constitutes education and outreach, thus falling well within the statute.

Moreover, the Putnam County protocols expressly provide for home visits and follow-ups by public health nurses. Thus, Ortiz’s follow-up visit and letter were not over and above the protocols. Indeed, the home visit packet contains a questionnaire “used to assess the child for signs and symptoms of lead poisoning.” The questionnaire includes medically-related queries, such as whether the child exhibits pica, has convulsions, or has problems hearing or speaking clearly. Thus, the developmental assessment was plainly within the protocols. Moreover, any promises by the inspector did not fall outside the inspection and enforcement tasks the statute contemplated.

In light of our holding that the County and City did not voluntarily assume an affirmative duty, we need not address whether the plaintiffs justifiably relied on the County’s and City’s actions.

C. Positive Direction and Control

Lastly, a special relationship may be formed when a municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation. Smullen v City of New York ( 28 NY2d 66 [1971]) is the prototypical case for this exception. Applying the criterion, we found a special relationship between the municipality and a worker who was killed when a trench collapsed. Before entering the trench, a city inspector, who was in control of the site and had the power to stop work, assured the worker the trench was “solid.” (Id. at 69.) Indeed, the trial court instructed the jury that there could be no recovery against the City in the absence of a finding that “the inspector assumed control and direction of the work and that such a conclusion could only be arrived at if it could be found that he gave decedent ‘an order or affirmative instruction to enter the excavation.’ ” (Id.) The trench, however, had not been braced or shored as required by regulation. We sustained a

verdict for the plaintiff, “because of the city’s actual knowledge of the dangerous condition and its failure to do anything about it at a time when the inspector was directly on hand as the peril heightened” (id. at 71).

Here, however, neither municipality assumed positive direction or control in the face of a known, blatant and dangerous safety violation. The Pelaez plaintiffs argue that the County took control of the situation by failing to inform Pelaez of the dangers of abatement and allowing her to believe that the implementation of health and hygiene measures would protect her children. She also contends that the County promised to perform further inspections and ensure abatement, but instead took no action for several months even though the landlord did not properly comply. Similarly, the Harris plaintiffs argue that the City took control by identifying violations, ordering abatement, providing health and hygiene counseling, and assuring them the apartment was safe, although a later inspection showed that abatement had not been successful.

The record reveals that, although the municipalities had personal contact with plaintiffs, they did not take positive direction and control of either situation. By way of contrast, the city inspector in Smullen had the power to prevent the worker from entering the trench, and could have halted the work altogether (see id. at 73 ). We recognize that municipalities have certain enforcement mechanisms at their disposal, such as the ability to issue a notice and demand for discontinuance (see Public Health Law § 1373), but property owners must first fail to comply before the municipality can take steps, such as applying for a receivership (see Public Health Law § 1374). Here, the landlords, as opposed to the municipalities, were in immediate control of the abatement process and had shown some level of compliance. The municipalities monitored the process and urged it along but did not take control of abatement.

Moreover, providing health and hygiene advice does not constitute positive direction and control. The actions of the officials in both instances were largely advisory. In any event, although they proved insufficient, the suggested measures—implementing certain cleaning procedures and feeding children a diet rich in iron and calcium—cannot be equated with the actions of the city official in Smullen.

Unlike the blatant hazard in Smullen, the hazard in the Harris apartment had ostensibly been abated, as confirmed by a