United States District Court, Eastern District of New York
December 13, 2000
CHRISTIAN VALENCIA, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, TERESA FRANCO PLAINTIFFS,
SUNG M. LEE AND SHIU CHUN LEE AND THE CITY OF NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: David G. Trager, United States District Judge.
MEMORANDUM AND ORDER
Infant plaintiff Christian Valencia, by his mother and natural
guardian, Teresa Franco, brings this action against Sung M.
Lee and Shiu Chun Lee (the "Lees"), owners of the apartment in
which they lived, and the City of New York (the "City") seeking
compensatory damages for developmental injuries Christian sustained
from exposure to lead paint. At a six day bench trial, causation
of plaintiff's disabilities was fiercely contested and their severity
was somewhat disputed. Otherwise, the factual background of the case
was largely undisputed.
Teresa Franco was born in Guayaquil, Ecuador, and moved to the United
States in 1988. On March 11, 1992, she and Julio Valencia, who is now
her husband, had a child, Christian Valencia. For three and one-half
years, from Christian's birth through October of 1995, he and his mother
lived in an apartment in a building located at 441 46th Street in
Brooklyn, New York. During the family's entire tenancy in this building
it was owned by defendants Sung M. Lee and Shiu Chun Lee (the "Lees").
While pregnant with Christian, Ms. Franco received her prenatal care at
Lutheran Medical Center in Brooklyn, New York, and after his birth
continued to bring Christian to a clinic at that facility, Sunset Park
Family Health Center, for his pediatric care. Pl. Ex. 4. As required by
law, on or about his first birthday, Christian's blood was tested as part
of his pediatric care, and his blood lead level measured 14 micrograms
per deciliter (" g/dl"). Pl. Ex. 19. On July 28, 1993, at the age of 16
months, his blood lead level was 30 g/dl. Pl. Ex. 4.
While the March reading was elevated, it was not high enough to trigger
intervention by the City. The July reading required a response on the
City's part. Specifically, under the New York City Health Code, a blood
lead level above 10 g/dl in a child is considered lead poisoning. See
New York, NY, Health Code, Title II, § 11.03. When a physician
detects a blood lead level above 10 g/dl in an individual, he or she is
required to report that finding to the City's Department of Health
("DOH"). Id. Where a level over 20 g/dl is reported to DOH, DOH is
mandated to respond by inspecting the individual's apartment for lead
paint. (Tr. 243-46); see also New York, NY, Health Code, Title IV, §
173.13(d)(2). Lutheran Medical Center reported Christian's blood lead
level, and upon receiving this information, DOH sent two Public Health
Sanitarians ("PHS") to the family's apartment on August 25, 1993 to
inspect for lead paint and to advise Ms. Franco about the hazards of lead
paint. (Tr. 276).
The PHSs took 78 readings of the paint and one of the tap water. The
tap water sample was negative,*fn1 but 56 of the 78 paint readings were
positive for lead paint. Pl. Ex. 10. As a result of these positive paint
readings, the PHSs gave Ms. Franco a single page document, in English on
one side and Spanish on the other, containing information about the steps
that the City would take in attempting to remedy the lead paint hazard in
her apartment. The procedure, as outlined in this informational sheet,
was as follows:
1. Your landlord will be informed by letter that he/she is
required by law to fix your apartment within  working
days of notification.*fn2
2. If the landlord does not fix your home, the New
York City Emergency Repair Program (ERP) will contract
to do the work and bill the landlord for the cost of
3. You must allow the landlord or the ERP to come into
your home in order to do the repairs.
4. The landlord cannot dispossess you or force you to
move because of these violations.
5. I will continue to check your home until the
repairs are completed properly as required by the New
York City Department of Health.
6. A public Health Advisor from the Bureau of Lead
Poisoning will also be visiting your home to answer
your questions about lead poisoning and the medical
care you may expect for your child.
Pl. Ex. 10, p. 3. In addition, the PHSs put red "LEAD PAINT" stamps on
surfaces found to contain lead paint.
DOH sent an Order to Abate Nuisance, dated September 16, 1993, to the
Lees directing them to repair the 56 surfaces which tested positive for
lead-based paint. Pl. Ex. 10, p. 15. The Order to Abate Nuisance warned
the Lees that the lead paint covered surfaces in the apartment
"constitute a nuisance in that they present a danger to the life or
health of the child/children of the above-referenced premises." Id. In
September or October of 1993, the Lees used plywood to cover some
surfaces, but it appears undisputed that this was not a substantial
abatement of the hazard. (Tr. 60-61, 112). The plywood only covered the
walls in the living room and hall, and none of the door frames, window
frames or any surface in the other rooms in the apartment. (Tr. 135).
As promised, over the next two months DOH continued to visit the
apartment, but no significant repair work was completed. DOH sent one or
more PHSs to inspect the apartment on September 27, 1993, October 19,
1993, and November 10, 1993. Although on the previous visits the PHSs had
determined that work on the apartment was in progress, on the November
10th visit, the PHS decided that the Lees were no longer making an effort
to repair the hazard. (Tr. 264). Consequently, the inspector determined
that, consistent with the information provided to Ms. Franco upon the
first visit, the apartment should be abated by the Emergency Repair
Program ("ERP"). (Tr. 264). Upon the PHS's recommendation, DOH sent a
letter to ERP, dated November 22, 1993, ordering that agency to abate the
hazard. Pl. Ex. 10, p. 24.
Ms. Franco was never notified of this decision, (Tr. 265); indeed, at
no point was there any communication between the family and ERP. ERP did
not come in to repair the premises as scheduled, and at trial, the City
offered no evidence as to why no repairs were completed beyond noting
that there was a "lapse." (Tr. 268).*fn3
On February 16, 1995, a full fifteen months since the last PHS visit, a
PHS returned and found that the lead hazard in the apartment remained
unabated. One or more PHSs again visited on March 8, 1995, March 30,
1995, May 11, 1995, July 17, 1995, September 28, 1995, and on October 2,
1995. Throughout this period, no repairs were made to abate the lead
paint. In fact, despite DOH's significant intervention in the matter, its
September 16, 1993 Order to Abate was not fully complied with until June
of 1996, some eight months after Christian and his family moved out.
Pl. Ex. 10 (Report of Inspection, dated June 28, 1996).
In addition to the visits by PHSs relating to monitoring the
abatement, the Department of Health on four occasions stretched over a
two year period sent Public Health Advisors ("PHA") to counsel Ms.
Franco. A PHA visited on August 26,
1993, May 2, 1994, November 22, 1994, and August 30, 1995. Pl. Ex.
10. On each of these visits, the respective PHAs advised Ms. Franco
on several topics, including what to feed Christian, how and when
to wash Christian, Christian's continued blood testing, and how to
clean the apartment and Christian's toys. (Tr. 56-58, 105); see also
Pl. Ex. 10 (PHA notes, dated 8/26/93, 5/2/94, 11/22/94, and 8/30/95).
It is undisputed that Ms. Franco consistently followed this advice.
Christian's pediatrician at Lutheran Medical Center, was also involved
with Christian's care. She provided Ms. Franco with vitamins (primarily
iron), and advised Ms. Franco to give Christian milk. (Tr. 94-95). In
addition, on August 23, 1993, Christian's first visit to the pediatrician
after a dangerously high level of lead was detected in his blood, the
doctor advised Ms. Franco that one source of the lead in Christian's
blood could be paint from the apartment. (Tr. 99). Beyond this advice,
however, the pediatrician did not instruct Ms. Franco on how and when to
clean Christian or the apartment, or what diet — beyond drinking
milk — Christian should follow. (Tr. 98-101).
While acknowledging that she knew the lead paint to be a continued
hazard, (Tr. 88, 109), Ms. Franco believed that as long as she followed
the advice of the PHAs and PHSs, Christian's health would not be in
jeopardy. (Tr. 71-72). At no time did any PHS or PHA advise Ms. Franco
to remove Christian from the apartment despite the fact that DOH was
aware that he continued to be exposed to a lead hazard for over two
years. (Tr. 59-63). Nor did anyone advise Ms. Franco that the cleaning
and diet instructions she was receiving would not fully protect Christian
from the lead paint hazard. (Tr. 59-63). In fact, the first indication
that anyone advised Ms. Franco that Christian risked continued lead
poisoning even if she followed their advice was August 30, 1995 —
two years after the initial contact between Ms. Franco and DOH. (Tr.
281).*fn4 Further, no PHS or PHA explained to Ms. Franco that blood
lead levels under 30 g/dl could be dangerous to the child's health.
(Tr. 79). Ms. Franco testified that if the above advice had been given,
she would have moved from the apartment. (Tr. 72). In light of the fact
that it is undisputed that Ms. Franco was a diligent and conscientious
mother who followed the advice she was given, there is no reason not to
credit this testimony.
In November of 1995, when Christian was approximately three and
one-half years old, the family moved to a new residence in Ridgewood,
Queens. In the relevant time frame — from when Christian was first
found to have a high blood lead level (July 23, 1993) to when the family
moved (November of 1995) — Christian's blood lead level was tested
twelve times, with the following results:
Date Blood Lead Level
Pl. Ex. 19. On June 10, 1996, approximately six months after Christian
and his family moved from the apartment to Queens, his blood was tested
again and his blood lead level was 6 g/Dl. Pl. Ex. 18.
Christian attended a Head Start program from September of 1996 to July
of 1997. Throughout this program, Christian had behavioral problems,
inattentiveness, and restlessness. (Tr. 302); Pl. Ex. 6.
In September of 1997 Christian attended Public School 1K ("PS 1K") as a
first grader. After some difficulties in the first grade recognizing
letters and numbers, he attended summer school for reading. (Tr.
82-83). In second grade at PS 1K, his academic difficulties continued,
especially in math and reading, (Tr. 320-22), despite the fact that his
father and older sister would help him with his work every day for one to
three hours. (Tr. 82-84).
These difficulties were exacerbated by Christian's behavior in school.
On his second grade report card, his teachers referenced his classroom
behavior and his inability to obey rules or exhibit self-control as
contributing to his poor performance. Pl. Ex. 8; (Tr. 320-22). As a
result of his poor grades, at the end of his second school year, in June
of 1999, the school asked Christian to repeat the second grade. (Tr.
Christian's condition was evaluated twice in connection with this
trial. The first evaluation was performed by plaintiff's expert, Dr.
David Freyre, a licensed psychologist, on May 15, 1998, when Christian
was six years old. (Tr. 147, 154). The second evaluation was performed
by the City's expert, Dr. David Masur, a neuropsychologist, on August 7,
1998. (Tr. 511). Dr. Freyre conducted five tests, the Bender-Gestalt
test, the Wechsler Intelligence Scale for Children ("WISC"), the Thematic
Apperception Test ("TAT"), the Rorschach Inkblot Test, and a figure
drawings test. Pl. Ex. 12. Dr. Masur administered the Wechsler
Preschool and Primary Scale of Intelligence (the "Wechsler Preschool"),
the Beery Developmental Test of Visual/Motor Integration (the "Beery
Test"), the Peabody Picture Vocabulary Test, the Children's Selective
Reminding Test, a figures drawings test, and a lateral dominance test.
The results of the extensive battery of tests performed by each expert
were essentially in agreement, and, in fact, Dr. Masur did not dispute
any of the findings of Dr. Freyre. (Tr. 529).
During their respective examinations, both Dr. Freyre and Dr. Masur
found Christian to be aggressive, impulsive, hyperactive and
distractible. (Tr. 158-59, 513-14, 518-19).*fn5 Although Christian was
able to complete the tests for Dr. Freyre, he threatened to quit, hid
under the table, and stood on chairs on several occasions. (Tr.
158-59). Similarly, Dr. Masur found that Christian's lack of focus and
inattention affected his ability to perform on certain aspects of his
testing. (Tr. 514).
The first test Dr. Freyre used to evaluate Christian was the
Bender-Gestalt test. The Bender-Gestalt test measures the ability of the
child to rotate two-dimensional geometric figures in space. (Tr. 165).
Dr. Freyre found Christian to be "impaired" in his ability on this test,
a condition known as two-dimensional constructional apraxia, which would
lead to difficulties in learning to read and write. (Tr. 165). He also
found that Christian's visual memory was impaired. The combination of
these problems led Dr. Freyre to conclude that Christian likely suffers
from a language-related learning disorder. (Tr. 165-67). Because
reading and writing are related to two-dimensional shapes, Dr. Freyre's
conclusion that Christian has two-dimensional constructional apraxia was
bolstered by the fact that Christian did not have the same difficulties
with the three-dimensional figures on the WISC test. (Tr. 184). Dr.
Masur did not dispute any of these findings, and in fact
similarly found that Christian had great difficulty on the Beery
Test in dealing with simple two-dimensional shapes. (Tr. 521-22,
Christian also struggled with portions of the WISC and the Wechsler
Preschool tests. Both of these tests are intelligence tests that are
divided into three parts: verbal, performance, and full scale. (Tr.
169). Thus, the child is given a "verbal IQ" score, a "performance IQ"
score, and a "full scale IQ" score — which is a combination of his
results. As measured by Dr. Freyre, Christian's full scale IQ was an
87, but there was great disparity between the verbal IQ, which was an
82, and the performance IQ, which was a 95. (Tr. 174-75). Dr. Freyre
read this disparity to be further indication of a language-related
learning disorder — a determination that was further supported by
Christian's primitive drawings on the figure drawing test. (Tr. 175-76,
Dr. Masur came to similar conclusions about Christian's intelligence
using the Wechsler Preschool, including the disparity between verbal and
performance. The doctor found that Christian's verbal IQ was an 80, and
although he measured Christian's performance IQ as 81, he felt that
Christian was not performing to the best of his abilities and that Dr.
Freyre's result was probably more accurate. (Tr. 514-15). In fact, Dr.
Masur agreed that Christian has a language-related learning disorder.
Dr. Freyre also found that Christian's score on the arithmetic portion
of the WISC test, a 4 out of 19, was indicative of dyscalculia, a
learning disorder related to a child's ability to do mathematics. (Tr.
178). Dr. Masur found Christian's mathematical skills to be somewhat
better, placing him in the 23rd percentile. (Tr. 534-35). Even on Dr.
Masur's tests, however, Christian was often unable to perform even the
simplest of mathematical tasks — such as adding 2 plus 1 or
counting eight fingers. (Tr. 534-35). On the whole, it is apparent that
Christian's mathematical abilities are substantially impaired.
Dr. Freyre also administered two tests, the TAT and the Rorschach, to
measure Christian's mood. (Tr. 191-92). The combination of these two
tests revealed that Christian is an unhappy child, but that this mental
state did not rise to the level of a "thought disorder," such as
insanity. (Tr. 192).
In sum, based on all of these tests, the evidence shows that Christian
has dyscalculia, two-dimensional constructional apraxia, visual memory
impairment, and a language-related learning disorder.*fn6
found, and Dr. Masur did not seriously dispute, that Christian's
condition was symptomatic of a central nervous system dysfunction. Pl.
Ex. 12. These various problems, combined with his behavioral problems,
are the cause of his difficulties at school.*fn7
On the other hand,
both experts agree that with remediation, counseling and tutoring,
Christian could potentially catch up on his deficits. (Tr. 201,
Plaintiff commenced this action on May 8, 1997 by filing a complaint in
the Supreme Court of the State of New York, Kings County. Defendants
Sung M. Lee and Shiu Chun Lee failed to answer the complaint, and
plaintiffs obtained a default judgment against them.
After removing to this Court the City moved for summary judgment as to
all counts. Plaintiffs voluntarily withdrew three causes of action as
against the City, and summary judgment was granted as to four others.
See Valencia v. Lee, 55 F. Supp.2d 122 (E.D.N.Y. 1999).*fn8 The only
claim remaining is that the City had created a special relationship with
Christian, and had breached its duty to use due care with respect to his
(1) Special Relationship
The City is not normally liable for failing to properly fulfill its
duties to the general public. The New York Court of Appeals has carved
out an exception to this rule, however, where the City creates a "special
relationship" with the plaintiff. See Kenavan v. City of New York,
70 N.Y.2d 558, 568, 523 N.Y.S.2d 60, 64 (1987); O'Connor v. City of New
York, 58 N.Y.2d 184, 192, 460 N.Y.S.2d 485, 488 (1983). This "special
relationship" can be established in one of three ways: (1) where the City
"violated a duty commanded by a statute enacted for the special benefit
of particular persons;" (2) where the City "voluntarily assumed a duty,
the proper exercise of which was justifiably relied upon by persons
benefitted thereby;" or (3) where the City "assume[d] positive direction
and control under circumstances in which a known, blatant and dangerous
safety violation exist[ed]." Garrett v. Holiday Inns, Inc., 58 N.Y.2d 253,
261-62, 460 N.Y.S.2d 774, 778 (1983). Once such a "special relationship"
is created, the City is under an obligation to act reasonably, and will
be liable where its actions fail to meet that standard. Sorichetti v.
City of New York, 65 N.Y.2d 461, 470, 492 N.Y.S.2d 591, 597 (1985); see
also Raucci v. Town of Rotterdam, 902 F.2d 1050, 1056 (2d Cir. 1990).
First Garrett "Special Relationship" Category
As recognized at the summary judgment stage, the weight of authority to
have addressed the problem has found that the first category is not
applicable in the present case. See Valencia, 55 F. Supp.2d at 1129-130.
Under New York City Health Code § 173.13(d)(2), the DOH is required
to "order the removal of [lead-based] paint" when it is put on notice
that lead paint of a certain content is present in an apartment and "the
blood-lead level of any person residing in such dwelling is 20 micrograms
per deciliter or higher." New York, NY, Health Code, Title IV, §
173.13(d)(2) (as written prior to 1997). While the city did fail to
enforce § 173.13 by failing to abate the hazard, the courts to have
addressed this issue to date have held that the statute, as it was
written prior to 1997, was for the benefit all citizens, not for the
"special benefit" of a "particular class" of persons, such as children.
Davis v. Owens, 259 A.D.2d 272, 686 N.Y.S.2d 31 (1st Dept. 1999) (holding
that § 173.13 benefits general public, not specific plaintiffs, and,
therefore, does not create special relationship); Lindsay v. New York
City Housing Auth., No. 95-CV-3315, 1999 WL 104599, at *8
(E.D.N.Y. Feb. 24, 1999) ("[§ 173.13] was created for the benefit
of all residents of New York City who live in a dwelling and not for
the special benefit of children."). The New York Court of Appeals has
not addressed this issue, and there is reason to believe that it could
resolve it differently in light of the fact that — under the
current version of § 173(d)(2) — the City's intervention is
triggered upon finding a blood lead level over 20 g/dl in "a child
under the age of 18." New York, NY, Health Code, Title IV, § 173.13
(d)(2) (as amended, effective January 1, 1997). However, in light of
the text of the statute prior to 1997 and the absence of any authority
to the contrary, the First Department's holding in Davis dictates
that § 173(d)(2) was designed to protect the general public.
Accordingly, the first category of "special relationship" does not
apply to § 173(d)(2) as it was written at the time, and the
plaintiff must establish such a relationship in one of the two
Second Garrett "Special Relationship" Category
Under the second category, the City can be held liable where it
"voluntarily assumed a duty, the proper exercise of which was justifiably
relied upon by persons benefitted thereby." Garrett, 58 N.Y.2d at 61-62,
460 N.Y.S.2d at 778. In order to establish this type of special
relationship, the plaintiff must show: "(1) an assumption by the
municipality, through promises or actions, of an affirmative duty to act
on behalf of the party who was injured; (2) knowledge on the part of the
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." Cuffy v. City of New York, 69 N.Y.2d 255,
260, 513 N.Y.S.2d 372, 375, 505 N.Y.2d 937, 940 (1987).
The first element — the assumption of a voluntary duty — is
met where the City "exceed[s] its general duty of inspection and
abatement." Bargy v. Sienkiewicz, 207 A.D.2d 606, 609, 615 N.Y.S.2d 520,
522 (3d Dept. 1994) (citing Florence v. Goldberg, 44 N.Y.2d 189, 195-97,
404 N.Y.S.2d 583, 586-87 (1978)); see also Thomas v. City of New York,
180 A.D.2d 588, 580 N.Y.S.2d 1008 (1st Dept. 1992); New York City
Coalition to End Lead Poisoning v. Koch, 138 Misc.2d 188, 197,
524 N.Y.S.2d 314, 320 (Sup. Ct. N Y County 1987), aff'd, 139 A.D.2d 404,
526 N.Y.S.2d 918 (1st Dept. 1988) (holding that plaintiffs in a class
action lead poisoning case seeking both injunctive relief and damages
"should be given the opportunity" to demonstrate a "special relationship"
between the plaintiffs and the City at trial). In Bargy, for example,
after the plaintiff's children were diagnosed with lead poisoning, the
plaintiff was notified to vacate her apartment so it could be abated. A
county health services employee subsequently informed the plaintiff that
it was safe to return to her apartment, and she did so. The hazard had
not been abated, however, and several months later one of plaintiff's
sons again tested positive for lead poisoning. Plaintiffs again moved
out of the apartment, and returned upon the assurance of the same county
employee that the lead nuisance had been abated. When her child again
tested positive for lead poisoning, and inspection of the apartment
revealed that high levels of lead in paint on window sills, plaintiffs
permanently vacated the apartment. The Third Department concluded that
the county "may have voluntarily assumed a particular duty to use due
care for the benefit of the infants . . . to protect them from lead
poisoning," which infant plaintiff relied upon to his detriment. Bargy,
207 A.D.2d at 609, 615 N YS.2d at 522.
Here, too, through its promises and actions, the City voluntarily
assumed a duty to protect Christian from harm resulting from lead
poisoning. To be sure, not all of the City's actions in this case
were voluntary. The City was under a statutory obligation to order
the Lees to abate the lead paint hazard within five days. Further,
if the Lees failed to comply, the City was under a subsequent obligation
to order the Department of Housing Preservation and Development to abate
the nuisance itself. Thus, by taking those actions, the City was not
voluntarily assuming any duty.
That is not where DOH's involvement in this matter ceased, however.
The City was under no legal obligation, statutory or otherwise, to
counsel Christian's mother on diet, cleaning or any other preventive
measures. Notwithstanding this fact, DOH took on such a role. PHSs
visited the apartment ten times between August 25, 1993 and September
28, 1995, and documented a continuing threat from lead paint to infant
plaintiff's health and life. Beyond mere inspection, however, these PHSs
also advised Ms. Franco on the hazards of lead poisoning. Moreover,
during the same period, on four occasions, one or more PHAs visited the
apartment and advised Christian's mother on proper diet and nutrition,
proper cleaning of the infant, proper cleaning of the apartment, and other
related preventative measures. Because none of this advice or counseling
was mandated by any statute or ordinance, it was a "voluntarily assumed"
duty, thus constituting the first element of a "special relationship."
The City counters by arguing that the DOH's actions in counseling and
educating Christian's mother were not "voluntarily assumed" because such
a duty is mandated by § 1370-a of New York Public Health Law. See
N.Y. Pub. Health Law § 1370-a (McKinney's Supp. 2000). Enacted in
April of 1993, section 1370-a mandates that DOH shall "establish a lead
poisoning prevention program" that will "minimize risk of exposure to
lead." Id. at § 1370-a(1). More specifically, the statute requires
(a) promulgate and enforce regulations for screening
children and pregnant women for lead poisoning, and
for follow up of children and pregnant women who have
elevated blood lead levels;
(b) enter into interagency agreements to coordinate
lead poisoning prevention, exposure reduction,
identification and treatment activities and lead
reduction activities with other federal, state and
local agencies and programs;
(c) establish a statewide registry of children with
elevated lead levels . . .;
(b) develop and implement public education and
community outreach programs on lead exposure,
detection and risk reduction.
Id. at § 1370-a(2).
The City's reliance on this statute is misplaced. The statute does not
require the type of counseling and advice given in the present case. The
fact that the City is under a general obligation to implement lead
poisoning prevention programs does not render "involuntary" all specific
tasks undertaken that relate to lead poisoning. For example, in Florence
v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583 (1978), the New York Court
of Appeals held that the City could be found liable for injuries a child
suffered when he was hit by a car on the way home from school. The City
had provided a crossing guard at the intersection every day of the school
year, but failed to do so on the day in question. Id. at 192-94, 404
N.Y.S.2d at 584-85. The court recognized that providing a crossing guard
fell within the general duty of the police to control pedestrian and
vehicle traffic, but nonetheless held that liability of the City was
warranted because the police had voluntarily assumed the specific duty of
providing officers to act as crossing guards and had been negligent in
failing to provide a guard on that day. Id. at 196-98, 404 N YS.2d at
The only duties created by § 1370-a are duties upon the DOH to
implement various programs or policies. By its terms, the statute does
not require the City to give
advice to people inhabiting apartments with lead paint. In other
words, the obligation imposed by this section is, at most, a general
obligation to create programs and implement them. If statutes or
ordinances had been enacted pursuant to § 1370-a requiring DOH
to counsel people exposed to lead paint on diet and cleaning, then
perhaps the City would have a better position. The City makes
no such claim. Furthermore, in light of the fact that § 1370-a
was enacted only a few months before Christian's ordeal began, it is
highly improbable that any of the actions taken by the City in this case
were mandated by legislation enacted pursuant to § 1370-a. In any
event, the City has provided no evidence to that effect, and absent some
showing of an affirmative obligation to give diet and cleaning advice to
inhabitants of apartments found to contain lead paint, the City was
acting voluntarily in this case. Put another way, if the City had not
advised and counseled Ms. Franco, they would not have been acting in
contravention of § 1370-a, or any other statute or ordinance.
Moreover, to whatever extent § 1370-a could be read to impose an
obligation on DOH to counsel individually citizens exposed to lead
paint, the statute itself would still create a "special relationship."
Subsections (b), (c) and (d) quite clearly create no obligations like
counseling. Subsection (a) requires that DOH "promulgate and enforce
regulations . . . for follow up of children and pregnant women who have
elevated blood lead levels," which arguably could include counseling.
See N.Y. Pub. Health Law § 1370-a(2)(a) (McKinney's Supp. 2000).
However, that subsection is specifically and expressly enacted for the
benefit of two classes of citizens — children and pregnant women.
Id. Because Christian was a member of the special class whom the statute
was designed to protect, this section — if it imposes a duty at all
— simultaneously creates a "special relationship" because it is a
statute "enacted for the special benefit of particular persons."
Garrett, 58 N.Y.2d at 261-62, 460 N.Y.S.2d at 778. Consequently,
whatever duty the City claims is mandatory under that section would
nonetheless create a "special relationship" in this case because the
statute was enacted for the benefit of children, and the specific injury
which the statute sought to avoid resulted. See, e.g., Van Gaasbeck v.
Webatuck Cent. Sch. Dist., 21 N.Y.2d 239, 287 N.Y.S.2d 77 (1967) (school
district liable where bus driver violated statute designed to protect
children riding school buses, and injury to child resulted); Chapin v.
City of White Plains, 104 A.D.2d 785, 480 N.Y.S.2d 129 (2d Dept. 1984)
(affirming denial of city's summary judgment motion because city may be
liable for failure to enforce a statute designed to protect certain class
In sum, by taking the above actions, the City voluntarily assumed a
duty above and beyond what was required of it by any statute. The duty
so assumed was a duty to use due care in protecting Christian from
dangerous exposure to lead. Thus, the first element in creating a
"special relationship" has been met in this case.
The second element in establishing a "special relationship" —
that the City's agents knew that harm could result from their action or
inaction — is also met in this case. There can be no dispute that
the City's agents knew that continued exposure to lead paint could lead
to harm to Christian, and indeed the City does not dispute this fact.
See Def. Pre-Trial Mem., p. 2-5. Moreover, it is not disputed that lead
paint is currently a leading cause of elevated lead levels in children,
and that the reason the PHSs and PHAs were sent to the apartment was that
Christian had already been found to have an elevated blood lead level.
Under these circumstances, there is no difficulty finding that the
various PHSs and PHAs that visited the apartment knew that continued
exposure to lead paint for the more than two years that elapsed between
the City's involvement and when the family moved
from the apartment created a threat to Christian's health. Consequently,
they must have known that failing to properly or thoroughly advise Ms.
Franco on how act under the circumstances could potentially lead to harm
The third element in establishing a "special relationship," that there
be some direct contact between the City's agents and the plaintiff, is
also easily satisfied here. The City does not contest that Christian and
his mother were visited and advised by DOH agents on more than ten
occasions, and apparently does not contest that this element has been
satisfied as a result. See Def. Pre-Trial Mem., p. 2-5. Indeed, it is
the advice given during many of these "contacts" that is the source of
the current dispute. The fact that the contact was primarily with Ms.
Franco, not the infant plaintiff, does not affect this issue because
where the plaintiff is an infant, contact with that infant's parents
suffices to meet this element. See Sorichetti, 65 N.Y.2d at 469, 492
N.Y.S.2d at 596 (finding that contact between police and mother of 6 1/2
year old plaintiff sufficed to meet "contact" element in suit against the
The most difficult element of the "special relationship" in this case
is the fourth — that Christian's mother justifiably relied upon the
advice given to her by the various DOH personnel. See Cuffy, 69 N.Y.2d at
261, 513 N.Y.S.2d at 375. The New York Court of Appeals has recognized
that reliance is critical because it "provides the essential causative
link between the `special duty' assumed by the municipality and the
alleged injury." Id. The question presented in this case is whether Ms.
Franco's failure to move her son from the apartment at an earlier date
was the result of her justifiably relying on the advice given to her by
the PHAs and PHSs, and her understanding that this advice was adequate to
protect Christian's health.*fn9
The City's argument that Ms. Franco did not justifiably rely on the
advice given by DOH agents is primarily founded on their contention that
Ms. Franco knew of the ongoing lead hazard in the apartment, and thus
could not have justifiably relied on the advice of the PHSs and PHA.
This argument focuses on various actions and statements by Ms. Franco
during the relevant time frame which the City argues show her knowledge
that Christian continued to be in danger despite the precautions she took
at the advice of the PHAs and PHSs. As a result of her appreciation of
the risk, the argument goes, she cannot show that the City "lulled [her]
into a false sense of security and has thereby induced [her] either to
relax [her] own vigilance or to forego other available avenues of
protection." See Cuffy, 69 N.Y.2d at 261, 513 N.Y.S.2d at 375.
Specifically, the City argues that certain events show that Ms. Franco
was quite aware of the ongoing risk:
1. The PHS placed red "lead paint" stamps throughout
the apartment, and Ms. Franco knew that they indicated
that there was an ongoing lead hazard in the
2. Ms. Franco retained legal counsel to represent her
against the City approximately five weeks after the
initial inspection of the apartment.
3. Ms. Franco filed a Notice of Claim against the city
on March 28, 1994, which alleged that Christian was
still being exposed to lead.
4. On July 21, 1994, Ms. Franco testified about the
ongoing threat in the apartment, and that she had seen
Christian eat paint chips before and knew it was the
source of the lead.
Def. Pre-Trial Mem., p. 3-4.
The City primarily relies on the New York Court of Appeals decision in
support its position. Joseph and Eleanor Cuffy, owners and occupants
of a two-family house, found themselves in a dispute with their
tenants, Joel and Barbara Aitkins. Cuffy, 69 N.Y.2d at 258-59, 513
N.Y.S.2d at 373-74. After several arguments which led to police
intervention and a failed attempt at arbitration, the dispute escalated
to the point of physical violence when Joel Aitkins attacked Eleanor
Cuffy. A police officer familiar with the ongoing dispute responded but
elected not to take action, finding that the offense did not warrant an
arrest. Joseph Cuffy, not satisfied with this lack of action by the
police, went to the precinct, telling the desk officer that if the police
did not make an arrest that night, the Cuffy family would have to move
out. After being assured that an arrest would be made by the following
morning, Joseph Cuffy returned home. Id. The police took no action, and
the following evening another dispute arose wherein Joel and Barbara
Aitkins assaulted Eleanor Cuffy and two of her children with a baseball
bat and knife. Id. at 259-60, 513 N.Y.S.2d at 374.
A jury awarded the Cuffy family substantial damages against the City,
and the City appealed. The Appellate Division affirmed, and the City
appealed to the New York Court of Appeals. After dismissing one of the
plaintiffs because he had no direct contact with the police and was not a
member of the household, the court found that the remaining plaintiffs
had not established a justified reliance on the promise of the desk
officer that an arrest would be made by the next morning. Id. at
262-63, 513 N YS.2d at 376-77. The Court of Appeals pointed out that the
attack occurred the following evening, and the police had promised that
an arrest would be made that morning; because no action was taken when it
was promised, the plaintiffs knew or should have known that the promised
police action was not forthcoming. Id. Thus, the court held that the
plaintiffs' continued presence in the house despite knowing that the
police had failed to keep their promise rendered any continued reliance on
that promise unreasonable and unjustified. Accordingly, the court held
that no "special relationship" existed.
The present case is quite distinguishable from Cuffy because of the
nature of the City's involvement. Ms. Franco concedes that she knew that
lead paint was a hazard, and she knew that the abatement was not complete
so that hazard remained. This is precisely why she relied upon the advice
of the PHAs and PHSs — she needed to know how to keep Christian
safe despite the ongoing threat. The City's agents advised her on proper
cleaning and diet, which ostensibly would protect Christian, and she
followed that advice. Because she was getting no cleaning advice from
any other source, and only limited advice on diet from Lutheran Medical
Center, she relied on the advice given to her by the City's agents.
Unlike the family in Cuffy, Ms. Franco did not know, and had no reason to
know, that the advice she had been given was faulty. Therefore, it was
the continuing advice and counseling by the City's agents that "lulled"
Ms. Franco into a false sense of security, allowing her to believe that
her son was protected so long as she followed that advice. Not until
August 30, 1995, two years after their involvement began and after Ms.
Franco had already begun looking for a new apartment, did DOH inform Ms.
Franco that she would be better served by removing Christian from the
apartment. Pl. Ex. 10 (PHA report dated 8/30/1995); (Tr. 117).
The plaintiffs in Cuffy, on the other hand, knew that the promise that
they had received had not been honored, and that they were not being
protected from the threat. To be sure, Ms. Franco knew that the city
failed to honor its promise to abate the hazard itself, but it is not
this inaction which provides the foundation for her complaint. It is the
advice and counseling that Ms. Franco continued to receive — which
she believed to be reliable — that allowed
Christian to continue to be injured. It is this action by the City,
and the alleged failure to reasonably and fully perform this action,
that provides the basis for finding that a special relationship exists
in the present case.
Thus, the City in the present case "voluntarily assumed a duty, the
proper exercise of which was justifiably relied upon by persons benefitted
thereby," Garrett, 58 N.Y.2d at 261-62, 460 N YS.2d at 778.
Accordingly, a "special relationship" with the plaintiff, Christian
Valencia, was created under the second category in Garrett. The duty
created under this relationship was a duty to properly safeguard
Christian from further lead poisoning.
Third Garrett "Special Relationship" Category
In addition to forming the "special relationship" under the second
category described in Garrett, the City has also created a "special
relationship" under the third category. Under that category, the City
would be liable if it "assume[d] positive direction and control under
circumstances in which a known, blatant and dangerous safety violation
exist[ed]." Id. In Garrett, the owners of a hotel alleged that the
Town, despite having specific knowledge of blatant fire and safety code
violations at the hotel, nevertheless issued a certificate of occupancy
representing that the hotel was safe and free of violations. Id. at
262-63, 460 N.Y.S.2d at 778-79. The court held that liability could be
imposed on the Town for injuries suffered in a fire at the hotel,
[i]f, as is alleged in the complaints, known,
blatant, and dangerous violations existed on these
premises, but the town affirmatively certified the
premises as safe, upon which representation appellants
justifiably relied in their dealings with the
Id. at 262, 460 N.Y.S.2d at 779. In other words, if the City knew
of the hazards and affirmatively acted to allow exposure to these
hazards despite this knowledge, liability could attach.
Even closer to the present case is the situation presented to the Court
of Appeals in Smullen v. City of New York, 28 N.Y.2d 66, 320 N.Y.S.2d 19
(1971). In Smullen, a construction worker repairing a private sewer line
was killed when he ventured down into a trench that had been dug to allow
access to the line. The trench was over 11 feet in depth, and, in
violation of city ordinances, was not shored or otherwise safeguarded to
prevent it from collapsing in on itself. Id. at 68. The worker's
supervisor was not present at the time of the incident, but a city
inspector was. Id. at 68-69. As the inspector watched the worker
descend into the trench, he said "it is pretty solid there" and "I don't
think it needs to be shored." Id. at 69. Contrary to the inspector's
assurances, the trench caved in, and the worker was killed. Id. at 68.
After the Appellate division set aside a verdict awarded in the case
against the City, and the administratrix appealed to the Court of
Appeals. That court first recognized that the city inspector had the
power to order that the work be stopped because of the violation of the
city ordinance requiring the trench to be shored. Id. at 70.
Acknowledging, however, that the mere failure to stop the construction
would not subject the City to liability, the court went on the address
whether the City had created a "special relationship" with the worker.
The court held that by actively telling the worker that the trench looked
safe, the inspector had taken "positive action in assuming direction and
control" in the face of a blatantly dangerous condition. Id. at 71-72.
Accordingly, the Court of Appeals reversed the Appellate Division and
reinstated the trial court's verdict. Id. at 73.
The present case is analogous to the situations in Garrett and
Smullen. As described above, the unabated lead paint hazard in the
apartment was a dangerous safety hazard of which the City was well aware.
Indeed, after reviewing the file on Christian's apartment, the former
borough coordinator for DOH, Alan Fast, testified that "I would say that
this was a lead hazard for sure," and that he "would classify it as a
serious condition." (Tr. 252). Moreover, the Order to Abate Nuisance
warned that the lead paint in the apartment "presents a danger to the
life or health of the child/children of the above-referenced premises."
Pl. Ex. 10, p. 15. The City affirmatively took control of the situation
in the presence of this known hazard by instructing Ms. Franco on how to
care for the infant. Just as the City inspector in Smullen exposed the
worker to danger by instructing him that the walls were safe, implicitly
encouraging him to remain in the trench, the PHSs and PHAs exposed
Christian to danger by advising Ms. Franco on how to keep her son safe,
thus implying that he could be kept safe and implicitly encouraging her
to remain in the apartment. In the present case, the City took positive
action in the face of a known dangerous condition by giving advice, and
by doing so created a special relationship with the injured party.
Having formed a special relationship with Christian, the City was under
a duty to act reasonably. Sorichetti, 65 N.Y.2d at 470, 492 N.Y.S.2d at
597; see also Raucci, 902 F.2d at 1056. The City failed to meet this
standard by neglecting to give Ms. Franco the two pieces of advice that
would have prevented any further injury to Christian. By failing to
inform her that remaining in the apartment would leave Christian at risk
even if she followed all of their advice, the City's withdrew its help
just where such help was needed most. As stated by Judge Cardozo, "[t]he
hand once set to a task may not always be withdrawn with impunity though
liability would fail if it had never been applied at all." H.R. Moch
Co. v. Rensselaer Water Co., 247 N.Y.160, 167 (1928). Although the hand
was not fully withdrawn in this case, it did not provide the aid
necessary to prevent injury. Just as the City was liable in Florence for
failing to provide a crossing guard where the parents were relying on the
presence of that crossing guard, so would the City be liable for providing
a crossing guard that only escorted children halfway across the street.
Such is the case here, where the City provided PHAs and PHSs to protect
Christian by advising his mother, but failed to provide all the advice
necessary. Thus, the City did not act reasonably, and did not fulfil the
duty which it assumed to protect Christian from further lead poisoning.
(2) City's Liability
The City argues that even if such a "special relationship" was formed,
and regardless of what damages were caused by the lead poisoning as a
whole, it cannot be held liable because plaintiff has not proven what
portion of his injuries, if any, occurred after the City became involved.
Because Christian's highest blood lead level was detected prior to the
attachment of the special relationship, the argument goes, the City is
not liable for the portion of the damage caused by that exposure. As a
result, the City claims that an assessment of liability against the City
for a portion of the injuries could be based on nothing but pure
speculation because there is no evidence as to how much of Christian's
cognitive deficiencies and behavioral problems were caused after the
City's liability attached. New York law, however, does not place the
burden of making this distinction on the plaintiff; if the distinction is
to be made at all, it is the defendant's burden to make it. Ravo v.
Rogatnick, 70 N.Y.2d 305, 520 N.Y.S.2d 533, 514 N.E.2d 1104;
see also 103 N.Y. Jur., Torts § 31.
The City correctly argues that it is a successive tortfeasor, not a
joint tortfeasor, with respect to the injury that occurred prior to the
time that the special relationship attached. Successive tortfeasors are
normally liable only for the injuries caused by their individual
actions, not for any injury occasioned by the actions of the initial
tortfeasor. See Suria v. Shiffman, 67 N.Y.2d 87, 98, 499 N.Y.S.2d 913
A difficulty arises, however, where the combination of the actions of
both tortfeasors causes a single, indivisible injury. The New York Court
of Appeals has addressed this question, however, and has provided a
sensible solution. In Ravo, the infant plaintiff, Josephine Ravo,
suffered brain damage during birth due to her doctor's negligence.
Ravo, 70 N.Y.2d at 307-08, 520 N.Y.S.2d at 534. The pediatrician who
subsequently treated Josephine misdiagnosed and improperly treated the
child, thereby exacerbating the injuries to her brain. Id. The jury
assessed liability against both doctors, finding that the conduct of each
was a substantial factor in causing Josephine's brain damage, and the
trial court held them each jointly and severally liable for the entire
injury. Id. at 309, 520 N.Y.S.2d at 535.
On appeal, the pediatrician argued that he should not have been held
jointly and severally liable for the initial injury caused by the
obstetrician because he was a successive tortfeasor. The Court of Appeals
agreed that he was a successive tortfeasor, but rejected his conclusion,
holding that where "a single indivisible injury" result from the conduct
of successive tortfeasors which "because of [its] nature, [is] incapable
of any reasonable or practicable division," each tortfeasor is jointly
and severally liable for the entire injury. Id. at 310-13, 520 N YS.2d
at 536-38. The burden then shifts to the defendants to apportion the
injury between or among themselves by proving, if possible, what portion
they are or are not liable for, and seeking contribution from the
others. Id.; accord Mazyck v. Long Island Railroad Co., 896 F. Supp. 1330
(E.D.N.Y. 1995); Dubry v. Champlain Valley Physicians Hosp. Med. Center,
189 A.D.2d 950, 592 N.Y.S.2d 149 (3d Dept. 1993); Lewis v. Yonkers Gen.
Hosp., 174 A.D.2d 611, 571 N.Y.S.2d 94 (2d Dept. 1991); Wiseman v. 374
Realty Corp., 54 A.D.2d 119, 387 N.Y.S.2d 612 (1st Dept. 1976).
In the present case, the City does not dispute that Christian's various
injuries are indivisible. To the contrary, part and parcel of the City's
argument that it cannot be held liable is that it would be mere
speculation to attempt to determine what portion of the injury was caused
after the "special relationship" attached. This argument is based in
part on the premise that these injuries are not readily divisible, and, in
fact, counsel for the City was careful to bring this point out on cross
examination of the plaintiff's expert, Dr. Rosen. (Tr. 441). Thus,
because the injuries in the present case are each indivisible, if
Christian's exposure to lead paint after the special relationship
attached was a substantial factor in causing his injuries, the City is
jointly and severally liable.
The burden which the plaintiff must carry is proving that the exposure
to lead paint after the City's involvement was a substantial factor in
causing Christian's injuries. On this issue the City argues that there
is no way to determine that Christian's continued presence in the
apartment after the City's involvement had any negative effect on his lead
poisoning. This argument is based on the theory that blood lead levels
take a long time to diminish, and Christian's blood lead level gradually
declined over the relevant two year period. (Tr. 447-51). From this,
the City concludes that it is entirely possible that the advice given to
Ms. Franco was sufficient to prevent further injury to Christian, and
consequently, his exposure to lead after the City's liability attached
was not a substantial factor in his injuries.
This argument fails for two reasons. First, Christian's blood lead
level did not gradually and consistently diminish, as one would expect
under the City's theory of events. The City is correct that Christian's
blood lead level was decreasing or remaining stable for the initial
period of the City's involvement, reaching a low point of 11 g/dl in
October of 1994, but this does not end the inquiry. Christian's blood
lead level then increased in April of 1995 to 12 g/dl and increased in
June of 1995 to 17 g/dl, thus indicating that Christian faced continued,
damaging exposure to lead during the City's involvement. Second, after
Christian was removed from the apartment, his blood lead level dropped to
6 g/dl within seven months. This stands in contrast to the fact that
his blood lead level remained above 11 g/dl for two years while he
remained in the apartment after the City's involvement.
Moreover, the City's liability attached relatively early on in this
case. On August 26, 1993, less than six months after a significant
amount of lead was first detected in Christian's blood on March 3, 1993,
the City created the special relationship by sending a PHA to advise Ms.
Franco. Further, Christian started crawling at six or seven months,
(Tr. 493), and prior to that time, he faced virtually no risk of lead
exposure because he could not touch the walls.*fn10 The City's
involvement continued until November of 1995, more than two years later.
Thus, the City's liability covered approximately three quarters of the
time in which Christian's blood lead level was elevated, and two-thirds
of the time that Christian could even have potentially been exposed to
After reviewing all of this evidence the plaintiff's expert, Dr.
Rosen, concluded that Christian continued to be exposed to a lead hazard
after the City's involvement, and that the continued exposure played a
substantial role in the injuries from which Christian now suffers. (Tr.
389-90). The evidence amply supports this conclusion.
This evidence also distinguishes the present case from the three
Appellate Division lead poisoning cases upon which the City relies. In
Jones v. Cox, 254 A.D.2d 333, 334, 679 N.Y.S.2d 67 (2d Dept. 1998),
Andrade v. Wong, 251 A.D.2d 609, 610, 675 N.Y.S.2d 112 (2d Dept. 1998),
and Brown v. Marathon Realty, Inc., 170 A.D.2d 426, 428, 565 N.Y.S.2d 219
(2d Dept. 1991), the respective Second Department courts found that
liability could not attach because the respective plaintiffs had adduced
no evidence that the child continued to ingest lead, much less that the
child continued to suffer from lead poisoning, after the point at which
the defendants became liable. As a result, none of those courts reached
the issue presented here and in Ravo, namely, where the conduct of the
defendant was a substantial factor in causing the injury, how is the
liability of that defendant determined. Unlike the plaintiffs in the
three Second Department cases, the plaintiff here has provided evidence
of continued exposure, and continued lead poisoning, more than two years
after liability attached.*fn11 See, e.g., Walker v. DiPaolo,
270 A.D.2d 932, 706 N.Y.S.2d 654 (4th Dept. 2000) (denying defendant's
motion for summary judgment where evidence showed plaintiff's blood lead
level remained elevated after liability attached); General Accident Ins.
Co. v. Idbar Realty Corp.,
163 Misc.2d 809, 811-12, 622 N.Y.S.2d 417, 418-19 (Sup. Ct.
Suffolk Cty. 1994) (insurance carrier can be liable even where
policy did not take effect until after lead poisoning began because
evidence showed continued exposure and injury).
In light of all of this evidence, it is more probable than not that
Christian's exposure to lead after the City's liability attached was a
substantial factor in the injuries he suffered. Accordingly, the City is
jointly and severally liable for all of Christian's injuries caused by
As more fully described above, the experts for both sides agree about
much of Christian's current condition. The only real issue with respect
to causation, therefore, is whether Christian's cognitive deficits,
learning disorders and behavioral problems were caused by lead
The City first argues that Christian's elevated blood lead may have
come from some source other than the lead paint in the apartment. The
City points out that Ms. Franco is from Equador, and that Equador has a
much greater problem with lead exposure than does the United States.
Christian, however, was born in New York, and for over a year did not
have elevated blood lead levels. In addition, Dr. Rosen credibly
testified that Ms. Franco's five year residence in the United States
prior to Christian's birth, along with the fact that Christian's sister
has never had an elevated blood lead level, conclusively exclude Ms.
Franco's place of origin as a possible source of blood lead in
Christian. (Tr. 456-57).
The City also makes reference to lead in Venetian blinds or other
common external sources, but does not support these hypothetical
suggestions with any evidence. Moreover, after reviewing the evidence,
and discussing the city environment in which Christian lived, Dr. Rosen
found no other reasonably plausible source of lead. (Tr. 354, 461).
Thus, none of the City's suggested other sources of lead find any support
in the record, and it is more probable than not that Christian's elevated
blood lead levels came from his exposure to lead paint in the apartment.
With respect to Christian's injuries, there is no dispute that
Christian's exposure to lead more likely than not damaged his cognitive
abilities and affected his behavior. Initially, the experts agree that
Christian's overall IQ was diminished, but disagree as to what the impact
of the lead poisoning would have been.*fn12
Because the impairments
discussed below are the real source of injury and damages in this case,
it is not necessary — and probably not possible — to
determine exactly what Christian's overall IQ loss was. Suffice it to
say that Christian suffered some damage to his cognitive abilities as a
result of his lead poisoning. The issue then becomes whether lead
poisoning was a substantial factor in causing the specific injuries
Christian suffers from various linguistic and cognitive deficiencies,
including a language-related learning disorder, two-dimensional
constructional apraxia, and dyscalculia
(collectively, the "deficiencies"), as well as various behavioral
problems. It should be noted that the deficiencies and Christian's
behavioral problems are related to a certain extent. Dr. Masur, the
City's psychologist, testified that there is a "high relationship"
between having a language-related learning disorder and behavioral
problems because the difficulties in learning make the child frustrated,
anxious and agitated, and thereby cause behavioral problems.
(Tr. 518-19). Thus, to a certain extent, causation of Christian's
behavioral problems is furthered by the fact that Christian has
undisputedly suffered some injury to his cognitive abilities.
The causation analysis is also aided by reference to the
long-established principle of New York law that where a violation of a
duty exists, and an injury results which was the very injury which the
duty was intended to prevent, this in and of itself creates a prima facie
causal link between the action and the injury. See Martin v. Herzog,
228 N.Y. 164 (1920) (Cardozo, J.). In such a situation, "[i]f nothing
else is shown to break the connection, we have a case, prima facie
sufficient, of negligence contributing to the result." Id. at 170.
This principle was recently reiterated by the Second Circuit in Liriano
v. Hobart Corp., 170 F.3d 264 (2d Cir. 1999). Luis Liriano, an employee
of a grocery store, was injured while operating a meat grinder
manufactured by the defendant. Id. at 266. The meat grinder had been
sent to his employer with a safety guard, but the guard had subsequently
been removed. The meat grinder did not have a warning label indicating
that it should only be operated with the safety guard in place, and
Liriano sued the manufacturer for, inter alia, failure to warn. Id. A
jury returned a verdict in favor of Liriano based on that theory, and the
The manufacturer argued that there was no evidence that the lack of a
warning label caused Liriano's injury. The Second Circuit disagreed,
the kind of negligence that the jury attributed to the
defendant tends to cause exactly the kind of injury
that the plaintiff suffered. Indeed, that is what the
jury must have found when it ruled that Hobart's
failure to warn constituted negligence. In such
situations, rather than requiring the plaintiff to
bring in more evidence to demonstrate that his case is
of the ordinary kind, the law presumes normality and
requires the defendant to adduce evidence that the
case is an exception. Accordingly, in a case like
this, it is up to the defendant to bring in evidence
tending to rebut the strong inference, arising from
the accident, that the defendant's negligence was in
fact a but-for cause of the plaintiff's injury.
Id. (citing Zuchowicz v. United States, 140 F.3d 381, 388 n. 6-7 (2d
Cir. 1998)). Accordingly, where the injury which occurs is the type of
injury that the relevant duty was meant to avoid, this is sufficient to
establish a prima facie causal link, and the burden is then on the
defendant to rebut it.
The City argues, relying on dicta from Zuchowicz, that the present case
does not fall into this category of cases because the injurious effects
of lead poisoning take some time to develop, and therefore the temporal
link is too attenuated to find causation absent more direct evidence.
See Zuchowicz, 140 F.3d at 190 (finding liability because, in part,
"unlike many toxic torts situations, there was not a long latency period
between the onset of the symptoms and the patient's exposure . . ."). In
Zuchowicz, the Second Circuit affirmed liability in a wrongful death
action against a doctor who prescribed an overdose of Danocrine, despite
the fact that there were no studies to support a connection between
Danocrine and the particular symptoms from which the plaintiff had
perished. Id. at 385 (noting that no studies had been done on the effects
of Danocrine at the dosage in question). In
that case, therefore, the plaintiff could not provide any epidemiological
support to prove causation, and the temporality was necessary to
establish a causal link. Id. at 385-90. The court found liability
based on the temporal proximity of the overdose and the death, and on
the fact that expert witnesses opined that the symptoms were indicative
of a drug-induced illness. Id. 390-91.
In the present case, the plaintiff has both the epidemiological
evidence that was absent in Zuchowicz, and the circumstantial evidence
discussed in that case, Liriano, and Martin. As more fully discussed
below, the evidence is replete with epidemiological studies connecting
lead poisoning to cognitive deficits and behavioral problems. The
effects of lead poisoning in children, including children with blood lead
levels comparable to Christian's, have been extensively studied for many
years. Therefore, the temporal proximity is not as crucial as it was in
Zuchowicz because causation has been shown by these studies despite the
length of time it takes the injuries to develop.
Because this is not a case where we can document the absence of
Christian's injuries prior to his lead exposure, one aspect of the causal
link in Martin, Liriano, and Zuchowicz is not present. As a result,
shifting the burden to the City may not be appropriate based solely on
the fact that Christian has these injuries. On the other hand,
considering the fact that each of the deficiencies is uncommon, and
common sense dictates that having all of them together is more uncommon,
it is more likely than not that Christian was not born with them. In
addition, Christian's developmental milestones prior to his starting
school — e.g. learning to crawl — were normal. (Tr. 493).
These pieces of evidence combined with the limited differential
epidemiology performed by plaintiff's expert (described below) are
sufficient to create a prima facie causal link. Therefore, the City
cannot be permitted to rest entirely on hypothetical speculation by its
attorney and experts. Thus, if Christian's injuries are the kind of
injuries caused by exposure to lead, it is appropriate to shift the
burden to the City to show affirmatively that some other factor was at
work in causing Christian's injuries.
All of the evidence in this case leads to the conclusion that
Christian's injuries are the very type of injuries which are caused by
lead exposure.*fn13 Lead is a toxin which is especially damaging to the
brains and nervous systems of young children. Pl. Ex. 17, p. 7 (1991
statement by the Centers for Disease Control and Prevention, "Preventing
Lead Poisoning in Young Children" ("CDC Statement")). Currently, the
primary source of lead poisoning in children is lead paint in older
apartments and houses. Id. Because lead has been a prevalent toxin for
such a long time, members of the scientific community have conducted
numerous studies concerning the effects of lead poisoning, and the
results of these studies have been "remarkably consistent." Def. Ex. and
Docs. That May Be Used for Impeachment ("Def. Impeachment Ex."), Ex. F
(Rosen article); (Tr. 591) (City expert Dr. Wasserman agreeing that
results of studies are "very comparable").
In 1991, as a result of the studies available at the time, the CDC
lowered the blood lead level considered to be lead poisoning from 25
g/Dl to 10 g/Dl. This move was prompted by "a large number of rigorous
epidemiologic and experimental studies," the majority of which found
between blood levels "well below 25 g/dl" and negative neurological
effects in children. Id., p. 9.
Since 1991, our understanding has only improved. In 1997, the United
States Department of Housing and Urban Development, Office of Lead Hazard
Control, released a report on lead poisoning to Congress entitled "Moving
Toward a Lead-Safe America" (the "HUD Report"). Pl. Ex. 16. The HUD
Report recognized that lead's effect on neurological development and
behavior was "of greatest concern." Id. at 41. In addition, it
recognized that about a dozen different studies showed "declines in
intelligence, regardless of whether or not exposures were high or low."
Id. (citations to studies omitted). The HUD report also recognized that
at least five studies have linked lead exposure to "anti-social
behavior, juvenile delinquency and adult criminality." Id. at 42.
An evaluation of some of these studies confirms that the specific
impairments from which Christian suffers are consistently linked to lead
exposure. For example, the City's own expert, Dr. Gail Wasserman, was
co-author of a study in Yugoslavia which studied the effect of lead
exposure on cognitive development in children through age 4, as measured
by the McCarthy Scales of Children's Abilities ("MSCA"). Pl. Trial
Mem., Ex. 3A. This study found that blood lead levels from 9.93 g/dl to
20.07 g/dl — the same range as Christian's level — were
associated with declines in all measures of cognitive development under
the MSCA. See id., Figs. 3, 4 (graphs comparing various MSCA scores at
age four, based on blood lead levels). Although the study found an
especially strong association between lead exposure and "performance"
level, the study also found deleterious effects of lead on the children's
"verbal," "quantitative," "memory," and "motor" scores. Id.
Dr. Wasserman also acknowledges in her study that levels of 6.4 g/Dl
in the Boston study and 16.4 g/Dl in the Port Pirie study were
associated with declines in children's performance on intelligence
tests. Def. Trial Mem., Ex. 2A (Wasserman study). Her findings in
Yugoslavia "concur" with those studies, finding that "continued Pb
exposure [after age 2] imparts additional damage to the developing
nervous system." Id.
Similarly, Dr. Wasserman concedes that difficulty with two-dimensional
figures — which Christian suffers from, and which is related to his
language disorder — is associated with lead exposure. (Tr. 640).
In other words, the City's expert links the very same injuries from which
Christian suffers to the blood lead levels that Christian had during the
relevant time frame. Id.; see also Pl. Trial Mem., Ex. 4A (study by Dr.
Wasserman of 7 year old children in Yugoslavia finding adverse impact of
lead on full scale, performance, and verbal IQ scores as measured by WISC
Several studies also support the connection between the behavioral
problems from which Christian suffers and elevated blood lead levels.
See Def. Impeachment Ex., Ex. O (Bellinger article); Id., Ex. I (Rosen
article). Moreover, the City expressly recognizes in its own literature
that, especially in small children, "[l]ead poisoning may cause learning
disability, irritability and behavioral problems". Pl. Ex. 15 (pamphlet
distributed by DOH to landlords). Perhaps most importantly, the City's
expert Dr. Wasserman agrees that lead exposure has a measurable effect on
child behavior, although she argues that, at Christian's level of
exposure that effect would be minimal. (Tr. 658).
Relying on the results of these and other studies, an interview with
Christian, Dr. Freyre's report, Christian's medical records, and DOH
records, the plaintiff's expert, Dr. John Rosen, opined that, to a
reasonable degree of medical certainty, Christian's various cognitive and
behavioral problems were caused by his exposure to lead. Pl. Ex. 19;
The City's first challenge to Dr. Rosen's claim is that Christian's low
verbal IQ score shows that whatever difficulties Christian has were not
caused by his exposure to lead paint. It points out that several studies
have found that a child's performance IQ usually suffers more than his
verbal IQ as a result of lead exposure. (Tr. 585-86). Consequently, the
City argues that Christian's problems are not consistent with those of a
This argument is without force. First, there are studies which
indicate that a child's verbal abilities suffer more than his or her
performance abilities. Def. Impeachment Ex., Ex. O, p. 54. The experts,
in this trial and generally, agree that exposure to lead, even at low
levels, has an adverse affect on a child's performance IQ and verbal IQ.
See, e.g. Def. Impeachment Ex., Ex. R, Fig. 1 (Baghurst study); Pl. Trial
Mem., Ex. 4A (Wasserman study). Thus, a deficiency in verbal IQ is an
injury that is attributed to lead exposure. Accordingly, Christian
suffers from an injury that is associated with lead exposure; the fact
that he does not suffer from an additional injury that is also associated
with lead exposure does not change that fact.
By analogy, if a toxin causes three known illnesses, and a person
exposed to that toxin has only two of these illnesses, it does not
necessarily follow that those two illnesses were not caused by the
exposure. Only where the toxin always causes the three illnesses in
unison, or none at all, could the lack of one particular symptomatic
illness be evidence that the other illnesses were from a different
The fact that Christian's "performance" ability is still in the normal
range does not mean that he was not damaged by his exposure to lead.
Because Christian suffers from many of the injuries that lead poisoning
prevention aims to prevent, it is the City's burden to demonstrate another
reason for these symptoms. The City offers no evidence that lead will
always cause an injury to a child's performance abilities greater than
the injury to his verbal abilities, and none of the studies before the
Court support this proposition. To the contrary, as in any statistical
study, there are children who fall all over the spectrum with respect to
the nature of their ailments, some of whom would fall within Christian's
category of lower verbal testing than performance testing. (Tr. 437-38)
(cross-examination of Dr. Rosen discussing various signature injuries of
lead poisoning do not always occur in unison). Moreover, as more fully
discussed below, the City did not interview his mother, take a family
medical history, or take any other steps to ascertain other possible
causes for these injuries.
Thus, the fact that Christian's verbal abilities are lower than his
performance abilities does not automatically lead to the conclusion that
his injuries were not caused by lead exposure. It could mean that his
performance abilities were unusually strong, and thus the damage was not
as noticeable, or that his brain or nervous system was unusually
susceptible to damage in his verbal abilities. In any case, the bottom
line is that Christian suffers from injuries associated with exposure to
lead paint, and thus the injuries that resulted were the very injuries
that the City's duty was aimed to prevent.
The City's next argument with respect to causation is that Dr. Rosen's
opinion failed to exclude other possible causes for Christian's injuries.
The City argues that in studies that have found that lead poisoning
causes cognitive deficiencies or behavioral problems, lead poisoning has
only accounted for a small portion of the variance detected. (Tr.
427-28); see also Def. Impeachment Ex., Ex. O, P (studies by Bellinger
and Dedrick finding that other environmental factors had greater effect
on behavioral problems and IQ loss than did low-level lead poisoning).
None of the potential causes offered by the City are credible in this
Initially, it should be noted that none of the City's allegations of
other potential causes are supported by any evidence beyond mere
hypothetical surmise by the attorneys and experts. This is precisely the
type of evidence that the New York Court of Appeals found to be
insufficient to withstand the plaintiff's motion for summary judgment in
Juarez v. Wavecrest Management Team, Ltd., 88 N.Y.2d 628, 649 N.Y.S.2d 115
(1996). The plaintiff in Juarez introduced evidence that the apartment
contained hazardous levels of lead-based paint, that the infant was
observed ingesting paint chips and dust, that the infant had elevated
blood levels of lead, that the infant was not out of her mother's custody
for any substantial period of time and that she did not complain of
illness or manifest any behavioral changes prior to moving into the
apartment in question. Id. at 648. In granting summary judgment in favor
of the plaintiffs on the issue of causation, the court explained that:
[i]n response, defendant submitted speculative
assertions by its attorney as to other possible
sources of the lead poisoning and [the infant's]
behavioral disorders. The bare allegations of
counsel, who lacked personal knowledge of the
underlying facts, do not constitute competent
evidentiary proof sufficient to defeat a motion for
summary judgment. . . . The only other proof offered
was an affidavit by [a doctor] who evaluated [the
infant]. Although he did not dispute the diagnosis of
lead poisoning and even agreed that it may have
contributed to [the infant's] deficiencies, [he]
speculated that they may also have been the result of
her bilingual background and parents' educational
level. Such surmise however is insufficient to raise
a triable issue of fact.
Id. Thus, the New York Court of Appeals held that causation of
behavioral problems was established based on the same type of
circumstantial evidence presented in the present case. See also Davis
v. City of New York, 264 A.D.2d 379, 693 N.Y.S.2d 230 (2d Dept. 1999)
(affirming city liability for pain and suffering of lead poisoned infant
with behavioral problems). This holding, especially in light of the
prima facie causal link created by the reasoning in Martin and Liriano,
puts the burden on the City to come up with some evidence to support its
assertion that another cause was at work in the present case.
Any attempt by the City to claim that Christian's injuries were derived
from another source loses credibility by its failure to identify such a
potential cause. Dr. Masur testified that Christian's language disorder
could "have multiple etiologies including a family history of learning
problems and can be exacerbated by reduced facility with English due to
cultural factors." (Tr. 539). Dr. Masur, however, found no such family
history, nor did he identify any cultural factors that may have been
involved in the present case beyond the fact that Christian was
bilingual, which he admitted would have no effect unless Christian
already had a learning disorder. (Tr. 540-41, 550-51). In addition, Dr.
Masur conceded that he did not deal with lead poisoning in his practice,
and could express no medical opinion as to what effect long-term lead
poisoning will have on a child. (Tr. 549). In light of this concession
and his failure to examine any other potential causes, his opinions as to
causation are entitled to virtually no weight.
Dr. Wasserman also testified for the City on the issue of causation.
She opined that lead exposure normally only accounts for about one fifth
of the variance in a given child's cognitive deficiencies as compared to
social factors. (Tr. 580). Further she argued that unexplained factors
contribute to cognitive deficiencies to an even greater extent than do
social factors. (Tr. 583). In other words, similar to Dr. Masur, Dr.
Wasserman explained that Christian's cognitive deficits — and
presumably his learning disorders — were far more
likely to be the result of social factors or some "unexplained" cause
than the result of his lead exposure. (Tr. 582-86). Dr. Wasserman
argues that the effect of lead on behavior is also much smaller than
other causes. (Tr. 586-87).
On the other hand, she testified that much of the "unexplained" reasons
for cognitive deficits can be explained away by learning more information
about the child, and the strongest social factor is the home environment
— including the quality of parenting and similar factors. (Tr.
583-84). In her own lead study in Yugoslavia, Dr. Wasserman eliminated
confounding factors by conducting an "in-home observation and interview,"
and that review was sufficient to pinpoint lead poisoning as the cause of
the deficits she found. (Tr. 665). Put another way, Dr. Wasserman
herself felt that other possible causes were sufficiently controlled for
in her own study by conducting a home investigation to find that lead
caused the various injuries that she documented in the study.
Dr. Wasserman conducted no such investigation in this case. She did not
interview Christian or visit or note anything about Christian's home
In fact, Dr. Wasserman did not make any credible
attempt to identify any other potential cause. (Tr. 607-08, 630-32). As
a result, although she surmised that there could be another cause, she
failed to identify one or support this conjecture with any evidence.
In fact, the only expert to make an attempt to eliminate other causes
was plaintiff's expert, Dr. Rosen. Dr. Rosen reviewed Christian's birth
records and pediatric records. (Tr. 385-86). He actually examined
Christian, unlike Dr. Wasserman, and considered Christian's sister's
school performance. (Tr. 456-57). In addition, he relied on, and agreed
with, Dr. Freyre's opinion that Christian's symptoms were consistent with
a central nervous system dysfunction, which — if true — would
preclude social factors as playing a role. Pl. Ex. 12. Thus, while
perhaps he could have done more in this differential epidemiology, Dr.
Rosen's conclusion that Christian's injuries were caused by lead
poisoning, as opposed to some other unidentified cause, is substantially
more credible than Dr. Wasserman's contrary conclusion. As a result, the
City's attempt to counter this determination by proposing hypothetical,
largely unidentified, and factually unsupported other causes falls
This brings us to the City's strongest challenge to causation, and
really the essence of its position. Relying on the myriad studies
performed on the effects of lead poisoning, the City contends that the
blood lead levels in the present case were too low to cause any
significant, appreciable harm. Initially, the City points out that as
recently as 1980, 88% of the children in this country had blood lead
levels over 10 g/dl. (Tr. 413-14). Similarly, in the 1940s and 1950s,
the average blood lead level in children was over 30 g/dl. (Tr. 416).
Thus, the City argues, if blood lead levels of this magnitude were that
prevalent and such levels regularly caused learning disabilities and
behavioral problems, a large number of people who were children at that
time would be so injured. Because this is not the case, the City
argues, it follows that lead levels comparable to Christian's would
normally not cause the injuries from which Christian suffers.
In further support, the City points out that large studies can observe
small cognitive deficiencies that would be otherwise undetectable on an
individual basis, and as a result even if a study shows a "significant"
association between a toxin and an injury, that injury may be too subtle
to perceive on an individual level. (Tr. 426-27). From this statistical
evidence, the City concludes that Christian's deficiencies
and behavioral problems could not have been the result of his lead
poisoning because his blood lead level was not sufficiently elevated
to cause such serious results.
Accordingly, the City argues that no damages can be awarded because
whatever effect the lead poisoning had on Christian, it could not have
caused his deficiencies or behavioral problems, and similarly could not
have been a substantial factor in his difficulties at school. Put
another way, the City argues that Dr. Rosen's opinion that Christian's
injuries were caused by his lead poisoning is contradicted by the lead
poisoning studies which would indicate that the impact of these blood lead
levels would normally not cause serious cognitive deficits or behavioral
problems. Thus, because the City does not deny that Christian suffers
from the deficiencies or behavioral problems, its position is that
Christian would have had the same problems regardless of his exposure to
Dr. Rosen did not dispute that the studies do not support the idea that
learning disabilities and severe behavioral problems would be expected
from the blood lead levels Christian was found to have had. Instead,
Dr. Rosen responded by arguing that the studies show only overall average
impact, and do not prove that Christian, as an individual, was not
impacted to the point of requiring tutoring or special schooling.
What follows from Dr. Rosen's claim is that Christian's deficiencies
and behavioral problems resulted from relatively low levels of lead
poisoning for one of two reasons: first, that Christian's lead poisoning
had a greater impact on Christian than it would on the average child
represented by the study results because Christian — as an
individual — is unusually susceptible to lead poisoning; or,
second, that Christian is not unusually susceptible to lead poisoning,
and — absent lead exposure — he would have barely been able
to successfully perform in school, but the small impact that the lead had
on him pushed him to the point of being unable to complete his schoolwork
without additional tutoring and counseling.
If either of these theories is correct, the injuries from which
Christian suffers are not inconsistent with the studies. Under the first
theory, Christian would simply be an individual on the very high end of
the scale as far as impact of lead exposure. Accordingly, while he would
not be in the heart of the average response distribution, he would still
be comparable to individuals in the study. Under the second theory, the
impact on Christian was the small impact that would normally be expected
on an average child, but because of what Christian's abilities and
behavioral tendencies were to begin with, even a small impact was
sufficient to have caused Christian's academic problems.
In either event, the City would be liable. If Christian is unusually
susceptible to lead poisoning, the City would be liable for all of
Christian's injuries because under New York law "a defendant is
chargeable for all the harm and suffering which his negligent act brought
on even though the plaintiff's injuries were aggravated by his own
predisposition or weakness." Owen v. Rochester-Penfield Bus Co.,
304 N.Y. 457, 461 (1952) (internal quotation omitted). Similarly, if
Christian would have been barely able to make it through school, but the
small impact of the lead poisoning was enough to make it impossible for
him to compete without additional tutoring and counseling, the City would
be liable because under New York law the defendant is liable for the
damages caused where plaintiff's preexisting condition is exacerbated by
the defendant's conduct. See Bartolone v. Jeckovich, 103 A.D.2d 632,
635, 481 N.Y.S.2d 545 (4th Dept. 1984) (holding the defendant liable
where a preexisting psychotic illness was not severe enough to prevent
the plaintiff from functioning, but aggravation of that illness resulting
from the defendant's conduct left him permanently disabled) (citing
McCahill v. New York Trans. Co., 201 N.Y. 221 (1911)). Consequently, the
City would be liable for the injuries in this case under either of the
The issue then becomes whether it is more probable than not that one of
these two theories is correct, or is it equally or more probable that
Christian would have had the deficiencies and behavioral problems absent
his exposure to lead. This is not an easy issue to resolve, especially
considering the sparsity of evidence on either side. Several factors do
weigh in favor of the plaintiff, however.
Initially, as explained above, the likelihood that social causes were
at work has been diminished to some extent by Dr. Rosen's review of the
medical and factual background. This limited differential epidemiology
makes it more probable that lead poisoning was a proximate cause.
Similarly, the City does not dispute that Christian's birth records
reflect a normal, healthy baby, or that Christian reached his
developmental milestones at normal times. (Tr. 493). Thus, while this
evidence does not prove that Christian would not have had the
deficiencies and behavioral problems prior to his lead exposure, it
increases the probability that he would not.
In contrast, the City provides absolutely no evidence that he would
have suffered from the deficiencies or behavioral problems regardless of
his lead exposure. As discussed above, Dr. Wasserman did not make any
attempt to identify any other cause for Christian's condition, despite
the fact that she conceded that it is possible to control for confounding
factors by investigating the infant's home environment. Nor did she, or
anyone else, make any attempt to ascertain whether Christian had any
family history of such deficiencies or behavioral problems. Her opinion
that Christian would have had his injuries regardless of lead exposure is
based on the assumption that there is another cause — whether it be
genetics or an environmental cause. This position becomes less credible
for the reasons discussed above.
Dr. Wasserman's position also loses credibility because it was based on
the erroneous assumption that the City was only liable for Christian's
lead exposure after the special relationship attached. (Tr. 599-600).
Thus, her opinions were based on a lower level of exposure, approximately
13 g/dl (Tr. 599), than should have been considered. Christian's blood
lead level averaged approximately 18 g/dl for the first year of
exposure, with a high point of 30 g/dl, then averaged 13 g/dl for the
remainder of time, never dropping below 11 g/dl. Pl. Ex. 19. Because
the City is jointly and severally liable for the entire injury,
Christian's entire exposure should have been considered.
Moreover, it is beyond doubt that Christian was harmed to some extent
by his lead exposure. It is true that we will never know what
Christian's abilities would have been absent his exposure to lead, but at
a minimum we know that they would have been better, even if only
minimally so, than they are now. Thus, this is not a case like many
toxic tort cases where the defendant can argue that the toxin had
absolutely nothing to do with the injury — the City in the present
case only argues that the impact was small.
These factors dictate that it is more probable than not that
Christian's lead poisoning was a substantial factor in causing his
deficiencies and his behavioral problems. Although the experts agree
that the impact of the blood lead levels similar to Christian's would be
expected to be small, in this particular case that impact was sufficient
to cause Christian's deficiencies and behavioral problems. Whether this
outcome results from his predisposition to cognitive difficulties and
behavioral problems or his susceptibility to lead poisoning is immaterial
because, as explained above, in either event the City would be liable.
Therefore, the City's negligent conduct in failing to protect Christian
from lead poisoning was a substantial factor in
causing his difficulties in school, and the City is liable for the
damages caused thereby.
The plaintiff has offered two theories on economic damages. The first
is the theory that, as a result of his learning disorders and behavioral
problems, Christian will be relegated to a life of earning minimum wage,
instead of, at the least, earning what the average high school graduate
earns. On this theory, plaintiff seeks economic damages in the form of
lost future earnings.
In this regard, Dr. Seymour Barcun, an economist, testified as to the
projected salaries of a high school graduate and a life-long minimum wage
earner for what would be Christian's expected working life. He then
adjusted for time value of money, and subtracted the latter figure from
the former, leaving him with a difference of approximately $387,000.
(Tr. 289-93); Pl. Ex. 14. This, plaintiff contends, is the measure of
In this case, this figure is not a proper measure of damages because it
is unsupported by the evidence. There is no evidence to support the
proposition that Christian is, more probably than not, going to earn the
minimum wage for the rest of his life. Common sense indicates that too
many other variables would have an effect on what Christian will earn,
and as many other variables could explain why — if at all —
he ends up earning minimum wage. It would be overly pessimistic
speculation to assume that this is Christian's fate. Second, there is no
evidence, nor any reason to believe, that, absent the lead poisoning,
Christian would be earning what an average male high school graduate
earns. It seems that a more appropriate comparison, if any exists, would
be an average male with Christian's background, including those that
finished high school, as well as those that finished college, vocational
school or any other type of professional training. Finally, and most
importantly, all of the evidence, even from plaintiff's own witnesses, is
that Christian can make up his deficits with proper remediation,
tutoring, and counseling.
As a result, this damages theory rests on subtracting one faulty number
from another faulty number, based on a the speculative premise that
Christian's fate has already been decided. Accordingly, this measure of
damages is rejected. See Davis v. City of New York, 264 A.D.2d 379,
693 N.Y.S.2d 230 (2d Dept. 1999) (rejecting similar damages claim in lead
As a second measure of damages, plaintiff submits the costs of the
remediation necessary to allow Christian to catch up and keep up in
school. Dr. Rosen testified that such costs would include attending a
private school with a high teacher to student ratio, counseling from a
social worker or therapist to help his self-esteem, and tutoring to help
him with his schoolwork. (Tr. 402). Indeed, Dr. Wasserman agreed that,
even small decreases in cognitive abilities and increases in behavioral
problems that she would associate with lead poisoning could lead to a
two-fold increase in the number of students requiring educational
assistance. (Tr. 674). This concession acknowledges the possibility
that certain individuals, like Christian, would require this type of
remediation even where the lead exposure was small.
Dr. Rosen also opined as to the cost of this remediation. He estimated
that the tutor would cost $50 to $75 per session and would be necessary
three times per week, the social worker or psychologist would cost $150
per session and would be necessary two to three times per week, and the
private school would cost $20,000 to $30,000 per year. (Tr. 403).
Significantly, the City did not challenge any of these figures by
introducing evidence of less expensive remedies, or even cross-examining
Dr. Rosen. Accordingly, these figures, while they may appear somewhat
high, are completely unrebutted. This is the proper measure of economic
damages in this case.
Christian is currently repeating second grade, so he will require help
in school for ten and one-half more years. Taking a conservative estimate
from Dr. Rosen's figures, this will amount to $20,000 per year for school
tuition at a private school, starting next year. In addition, if
Christian receives tutoring costing $150 per week for the forty weeks of
a typical school year, this would amount to $6,000 per year for ten and
one-half years. Finally, if Christian receives counseling year-round
costing $300 per week, this would amount to $15,600 per year for ten and
one-half years. Thus, the City is liable for $10,800 for counseling and
tutoring for the remainder of Christian's second grade school year, and,
in addition, $41,600 per year over the next ten years. Thus, adjusted
for the time value of money, the total award is approximately $385,000.