Pelaez v. Seide, 2004 N.Y. Int. 0029 (Mar. 25, 2004).

TORT LAW — SPECIAL RELATIONSHIP — LEAD PAINT — MUNICIPAL LAW — DUTY OF CARE — PRIVATE RIGHT OF ACTION — LEAD PAINT PREVENTION ACT — PUBLIC HEALTH

ISSUE & DISPOSITION

Issue(s)

Disposition

SUMMARY

Plaintiffs were children suffering ill effects from exposure to elevated levels of lead. Per the Lead Paint Prevention Act, public employees inspected Plaintiffs’ dwellings and provided health counseling services to Plaintiffs. The employees issued orders to the owners of the dwellings where Plaintiffs lived to abate the lead levels. The children’s exposure and side effects from lead poisoning increased despite the intervention of the municipal employees, as the owners of the dwellings did not comply sufficiently with abatement orders. Plaintiffs brought suit against a variety of defendants, claiming harm as a result of negligence and dereliction. Two Defendants, Putnam County and New York City, moved for summary judgment on grounds that they did not owe Plaintiffs a duty and therefore could not be liable. Supreme Court denied the motion in one action and granted it in the other. The Appellate Division affirmed the grant of summary judgment to Defendant in one motion and dismissed the count against the Defendant in the other. The Appellate Division in both cases reasoned that a special relationship must exist between the plaintiff and the governmental entity in order for a duty to arise in a tort case, and there was no special relationship present here. The Court of Appeals affirmed.

The Court noted that, as a general matter, no duty exists between a governmental entity and plaintiffs such as these. Thus, the Court explained, a municipality is not liable for the discretionary acts of its employees, even when those acts are negligent. The only exception is when a special relationship exists between the plaintiff and the government agency. "A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction or control in the face of a known, blatant and dangerous safety violation."

The Court concluded that a special relationship did not exist here because the Lead Paint Prevention Act (the "Act") did not create a private right of action, Defendants did not voluntary assume duties not falling within the statute, and at no time did Defendants assume "positive direction or control in the face of a known, blatant and dangerous safety violation." See Smullen v. City of New York, 28 N.Y.2d 66 (1971). The Court found that the Act did not create a private right of action because such an action would be inconsistent with the legislative scheme, see Sheehy v. Big Flats Cmty. Day, Inc., 73 N.Y.2d 629, 633 (1989), as the statute was intended to reduce the hazards of lead paint and assigned the government only an advisory role in that process. The Court next found that Defendants had not voluntarily assumed any additional duties not prescribed in the Act. Defendants developed programs to educate and monitor families and children whose health might be adversely affected by lead paint, but they "did not go beyond the mandates of the lead paint laws." Lastly, the Court found that at no time had Defendants assumed control over a known safety violation. Rather, the Court concluded that Defendants were monitoring the abatement, but the landlords of the properties were at all times in "immediate control" of the process. The Court also noted that, as a matter of public policy, courts should be hesitant to open up the "public purse" out of respect for the public treasury. Therefore, the Court ruled that, because no special relationship existed between Plaintiffs and Defendants, Defendants were not liable. Thus, the Court affirmed the orders of the Appellate Division.

Prepared by the liibulletin-ny editorial board.