When three young children and their parents were exposed to toxic lead in their rented Maine home, they sought compensation through the courts.
But now, the Maine Supreme Court has found clear errors in the way the trial court handed the case, ruling that the burden of proof was unfairly shifted to the plaintiffs. The victims will now have the opportunity to seek a new trial in the case of Bratton v. McDonough.
Our Bangor child injury lawyers know that landlord liability lawsuits can be complex, particularly in cases of toxic torts alleging exposure to harmful substances. As a general rule, property owners are required to keep their premises safe from obvious hazards. Landlord responsibilities for lead control and testing are spelled out in Maine’s Lead Poisoning Control Act, codified in Chapter 292 of state law.
Most homes constructed prior to 1978 in Maine contain lead. Used to make paint more durable, it’s especially prevalent in Maine houses, which tend to skew older. It’s also sometimes found in the soil around contaminated homes. Landlords should assume this is the case unless testing has proven otherwise.
In 2010, the federal government passed a measure known as the Renovation Repair and Painting rule that requires contractors working in residential units containing lead pain to undergo special lead-safe training. Landlords are obligated to test for lead and to hire qualified contractors for any jobs that might include disturbing painted surfaces.
The substance is particularly toxic to children, in some cases leading to permanent learning and behavioral disorders, in addition to disruptions in the development of the nervous system. The Bangor Daily News reported that an estimated 300 children annually are diagnosed with elevated levels of lead in Maine.
The three children in the plaintiff’s claim in Bratton were among them. The family moved into the home in 2004, prior to the birth of a third child. Soon after the move, the children, then ages 3 and 1, tested positive for elevated blood lead levels. This prompted the mother to have home lead tests conducted, which revealed the presence of lead. She then contacted the landlord about her findings, and he assured her there was no lead. Instead, the positive tests were toxins from the diesel trucks that traveled along the major road in front of the home.
With this assurance, the family stayed in the home. Their their child was born in 2006. At age 2, the child tested positive for heightened blood lead levels.
At that point, the Department of Health and Human Services got involved, and arranged for the home to be tested. The results pointed to numerous lead hazards throughout the property. The agency notified the landlord that, pursuant to the law, he was required to relocate the family.
There were numerous setbacks, primarily caused by the fact that the landlord refused to pay for any of it, according to the plaintiffs. Although the state had mandated that he relocate them by December 2008, the move wasn’t initiated until March 2009. In the meantime, the family continued to live in the contaminated home, but had cordoned off some rooms in order to limit exposure to lead paint dust.
Later that year, they sued the landlord, asserting the lead on the property had injured the children.
After an extended discovery process, the trial court prohibited one of the plaintiff’s expert witnesses from testifying. The court also granted summary judgment to the landlord with regard to the negligence claims pertaining to the two older children, finding insufficient causal information. The court also granted summary judgment on the punitive damages grounds, finding that the children hadn’t suffered emotional distress.
The court did allow the negligence claim regarding the younger child to proceed, but the burden of proof had been skewed, and the jury sided with the landlord.
Upon review, the state supreme court determined the trial court had abused its discretion in the way it handled a number of issues.
Specifically, the supreme court indicated the trial court was wrong for precluding the testimony of a toxicologist because he did not have a medical degree. The high court indicated that “the majority of federal courts admit the testimony (of toxicologists) as reliable evidence of causation.”
Given the errors of the lower court, the supreme court reversed the earlier findings and remanded the case back to the lower court for another trial.
For premises liability issues in Bangor, contact Peter Thompson & Associates at 1-800-804-2004 for a confidential consultation to discuss your rights.
Bratton v. McDonough, May 6, 2014, Maine Supreme Court
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