Opinion
No. CV01 0277536-S
May 31, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #109
I PROCEDURAL HISTORY
The plaintiffs, Devon Henderson, through his mother and next friend Yvonne Henderson, and Yvonne Henderson individually, filed a corrected amended complaint on July 29, 2003, against the defendant, Sandra Huggins, who had leased an apartment to them at 74 Gibbs Street, in New Haven, Connecticut. In the complaint, the plaintiffs allege that the apartment was painted with lead paint containing more than 0.50 percent of lead by weight and that the paint was "cracked, chipped, blistered, flaked, loosened and excessively peeling on accessible surfaces" thereby constituting an unreasonably hazardous environmental condition in violation of 42 U.S.C. § 4822, General Statutes § 47a-7(a)(2) and Chapter 16, Article 4, Section 16-50 of the New Haven Code of Ordinances. The plaintiffs further allege that the minor child plaintiff was found to have elevated blood lead levels resulting in lead poisoning in August 2000, and suffered injury from the same, some or all of which may be permanent; that on October 11, 2000, the department of health for the city of New Haven (department of health) examined the apartment vacated by the plaintiffs and detected that the paint contained more than 0.50 percent of lead; that the department of health notified the defendant to begin remedying the situation within seven days of receipt of the notice and to be in complete compliance within thirty days of receipt of the notice; and that the plaintiffs vacated the apartment in March 2001.
General Statutes § 47a-7 provides in relevant part: Landlord's responsibilities. (a) A landlord shall . . . (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition . . ."
New Haven Code of Ordinances Chapter 16, Article 4, Section 16-50 provides: "Prohibited use of lead paint. No lead-based paint, as defined in section 16-49, shall be used on any exterior surface or on any wall, ceiling, floor, interior woodwork or on or around the interior or exterior surface of any door, window, fixture, stairs, railing or porch, on any dwelling, or dwelling unit or any building intended or used, in whole or part, for human habitation or occupancy."
42 U.S.C. § 4822 is the "[r]equirements for housing receiving Federal assistance." The plaintiffs' complaint does not allege that they received Federal housing assistance at the apartment in question, so this statute does not appear to be relevant in the present case.
On August 21, 2003, the defendant moved to strike the corrected amended complaint on the ground that the facts alleged therein are legally insufficient to state a cause of action for negligence per se. The defendant submitted a memorandum of law in support of the motion. On October 7, 2003, the plaintiffs filed a memorandum of law in opposition. The matter was heard on the short calendar on February 7, 2005.
II DISCUSSION
The purpose of the motion to strike is to challenge "the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In determining the sufficiency of the complaint. "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., supra, 292-93.
The defendant argues in her memorandum of law in support of the motion to strike that the facts alleged in the plaintiffs' complaint are legally insufficient to state a cause of action for negligence per se because the plaintiffs fail to allege that the defendant had notice or knowledge of the existence of paint containing lead prior the commencement of their tenancy. The plaintiffs counter that the presence of toxic levels of lead paint in leased premises in violation of § 47a-7 can constitute negligence per se.
In order to determine whether the defendant's actions in the present case constitute negligence per se under the relevant lead paint statutes, it is necessary to apply a two-prong test: (1) whether the plaintiffs "were within the class of persons protected by the statute" and (2) that their injury is "the type that the statute was intended to prevent." Gore v. People's Savings Bank, 235 Conn. 360, 368-69, 665 A.2d 1341 (1995). The "legislative history reflects that a clear purpose of the act was to end the health problems arising specifically from the presence of lead-based paint . . . Children are those most likely to incur health problems as a result of exposure to lead-based paints . . . [W]e believe that the legislature intended to include children . . . within the class of plaintiffs protected by the statute and that it intended to protect such plaintiffs from the hazards of lead poisoning." (Citations omitted; internal quotation marks omitted.) Id., 381-82. Therefore, the court finds that the plaintiffs are among those in the class of persons protected by the statute since the plaintiff is a minor child. Further, the plaintiffs' injury of lead poisoning is the injury that the statute was intended to protect against. Hence, the court concludes that the violation of the lead paint statutes in this case can constitute negligence per se.
Next, it is necessary to determine whether the defendant had notice of the defective condition and what kind of notice the defendant was required to have. The common law requires that the landlord have notice of a defective condition. Lovick v. Nigro, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 94 0542473 (February 24, 1997, Lager, J.), quoting Sanchez v. General Urban Corp., Superior Court, judicial district of New Haven, Docket No. 95 0378774 (February 6, 1997, Lager, J.) ( 19 Conn. L. Rptr. 97). Accordingly, since the court in Gore determined that the legislature did not intend to abolish the common-law notice requirements, it is necessary to determine whether the defendant had notice, actual or constructive, of the alleged violative condition. Gore v. People's Savings Bank, supra, 235 Conn. 383.
The defendant argues that the plaintiffs' complaint does not specifically allege notice or knowledge of the existence of lead paint in the apartment prior to the plaintiffs' tenancy. The defendant further argues that these facts would need to be alleged and proven before the defendant could be held liable for negligence per se under the lead paint statutory scheme. The plaintiffs argue in opposition that they sufficiently allege that the lead paint condition existed prior to their tenancy because they claim that the condition existed "throughout" their tenancy, thereby implying that the condition existed prior to their tenancy and did not arise during their tenancy. The plaintiffs further allege that the term "throughout" encompasses "from start to finish," also implying that the condition must have existed prior to their tenancy since it was present at the start of their tenancy. Finally, the plaintiff alleges actual notice to the defendant of the lead paint since the department of health sent, by certified mail, notice of the hazardous condition on October 24, 2000, and the plaintiffs continued their tenancy through March 2001, meaning that the actual notice was effected during their tenancy.
The court in Gore adopted the approach set forth in the commentaries to the Restatement (Second) of Property, that a landlord is liable for conditions "of which he is aware, or of which he could have known in the exercise of reasonable care." Gore v. People's Savings Bank, supra, 235 Conn. 384 (citing 2 Restatement (Second), Property, Landlord and Tenant § 17.6, comment (c) (1977)). Generally, this means that the landlord is "chargeable with notice of conditions which existed prior to the time that the tenant takes possession." Gore v. People's Savings Bank, supra, 384. A plaintiff, however, need not specifically allege constructive notice. Sanchez v. General Urban Corp., supra, 19 Conn. L. Rptr. 97 (citing Gore v. People's Savings Bank, 40 Conn.App. 219, 224 n. 5, 670 A.2d 332 (1996) ( Gore II)). The burden of proving lack of notice is on the defendant since notice is imputed to the defendant. Sanchez v. General Urban Corp., supra, 19 Conn. L. Rptr. 97. If the condition arises during the tenancy, however, the landlord is only liable upon actual notice by the tenant and the landlord must have had a "reasonable opportunity" to repair the condition, but failed to do so. Gore v. People's Savings Bank, supra, 235 Conn. 384-85.
In the present case, the court finds that the plaintiffs have alleged facts sufficient to sustain their claim of negligence per se against the defendant. The plaintiffs allege in paragraph five of their corrected amended complaint that "[t]hroughout the term of Yvonne Henderson and Devon Henderson's occupancy of 74 Gibbs Street, said premises were painted with lead paint containing more than 0.50 [percent] lead by weight." The use of the words "throughout the term" connotes that the condition was in existence prior to the start of their tenancy. Since "[w]hat is necessarily implied [in an allegation] need not be expressly alleged"; (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., supra, 268 Conn. 292-93; the plaintiffs need not specifically allege that the lead paint was present prior to their tenancy with those exact words. A landlord is "chargeable with notice of conditions which existed prior to the time that the tenant takes possession." Gore v. People's Savings Bank, supra, 235 Conn. 384. In as much as the lead paint was present at the start of the tenancy, it is imputed that the defendant had constructive notice of that condition. Therefore, the plaintiff has alleged sufficient facts, which if proven, would support a finding of constructive notice of the defendant.
III CONCLUSION
The defendant's motion to strike count one of the corrected amended complaint is denied.
The defendant argues alternatively that the plaintiffs' complaint does not allege actual notice of the condition of the lead paint arising during the tenancy and a reasonable opportunity to repair during the tenancy. The plaintiffs do not dispute this point. The plaintiffs maintain, however, that the facts of their case are distinguishable from this situation since the violative condition was present throughout their tenancy and did not arise after their tenancy had commenced.
So Ordered.
BY THE COURT
Peter Emmett Wiese, Judge