Canada By and Through Landy v. McCarthy

• Decision Date: 07 August 1997
• Docket Number: No. C5-96-266,C5-96-266
• Citation: 567 N.W.2d 496
• Parties: Tiera CANADA, By and Through Robin LANDY, her Guardian Ad Litem, Respondents, v. Robert R. McCARTHY, Appellant.
• Court: Minnesota Supreme Court

Page 496

567 N.W.2d 496

Tiera CANADA, By and Through Robin LANDY, her Guardian Ad

Litem, Respondents, v. Robert R. McCARTHY, Appellant.

No. C5-96-266.

Supreme Court of Minnesota.

Aug. 7, 1997.

Syllabus by the Court

1. When performing lead abatement work at a tenant's property, a landlord owes a duty of reasonable care to the tenant and the guest of the tenant.

2. Competent evidence existed to support the jury's finding that the defendant breached his duty of care.

3. Competent evidence existed to support the jury's finding that the defendant's breach of duty was a direct cause of the plaintiff's harm.

4. The negligent supervision of the plaintiff by the plaintiff's mother and grandmother were not superseding causes of the plaintiff's injuries.

5. The plaintiff had no burden to apportion damages.

William J. Maddix, Minneapolis, for respondent.

James T. Martin, Dan T. Ryerson, Gislason, Martin & Varpness, P.A., Edina, for appellants.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Justice.

This suit was filed on behalf of a minor, Tiera Canada, to recover damages caused by lead poisoning. Robert McCarthy, one of the defendants, was the owner of Tiera's grandmother's South Minneapolis apartment which was found to have hazardous levels of lead paint. A Hennepin County jury held McCarthy responsible for a portion of the more than $1.4 million in damages. McCarthy filed post-trial motions for a new trial or for judgment notwithstanding the verdict (JNOV). The trial court denied McCarthy's motions, and he appealed to the court of appeals, which affirmed. McCarthy asks this court to reverse the lower courts with instructions that a judgment of dismissal be entered in his favor.

McCarthy argues that the trial court erred in not granting a JNOV for the following reasons: 1) Tiera did not prove that McCarthy owed a duty of reasonable care to Tiera; 2) Tiera did not prove that McCarthy breached a duty of reasonable care to Tiera; 3) Tiera did not offer any proof of causation; 4) McCarthy was relieved of any liability because the negligence of Tiera's mother and grandmother were superseding causes of Tiera's injuries; and 5) Tiera did not sustain her burden of proving damages. We affirm.

Tiera Canada was 2 years old when, in July 1992, doctors diagnosed her with lead poisoning. Tests conducted at Minneapolis Children's Medical Center (Children's) on July 23, 1992, showed her blood lead level to be 56 ug/dl. ¹ On the basis of the test results, Children's notified the Minneapolis Health Department (health department). On July 31, 1992, Children's admitted Tiera for a five-day course of chelation therapy involving the infusion of calcium ethylenediaminetetraacetic acid through an intravenous line in her head.

At Children's, abdominal x-rays revealed opaque materials in Tiera's stomach and intestine which her doctors believed to be lead paint chips. Doctors also looked at Tiera's bones and found that she had abnormally thick and dense metaphyseal bands which are consistent with heavy metal poisoning. Treating physician Dr. Shashikant W. Sane, a pediatric radiologist, testified that the paint chips in the large intestinal tract were less than two weeks old. He also opined that based on the width of the metaphyseal bands and the presence of paint chips in Tiera's body, Tiera had been poisoned within the previous six to eights weeks.

At the time of this first lead testing and treatment, Tiera lived with her mother, Christine Canada, in an apartment at 3514 14th Avenue South in Minneapolis, Minnesota (14th Avenue apartment). The 14th Avenue apartment was owned by Mark Klinkner and later sold to Brent Investment, Inc., a company owned by Brent Weiss. Christine Canada told doctors at Children's that she had seen Tiera eating paint chips at the 14th Avenue apartment about a year prior to her hospitalization.

At trial, Tiera's grandmother, Gertrude Canada, testified about Tiera's symptoms prior to her diagnosis. Gertrude Canada noticed that Tiera was acting differently than other children. Tiera cried a lot and was more hyperactive. Tiera also suffered from nosebleeds and would scratch herself so much she bled.

On July 31, 1992, the same day that Children's admitted Tiera for chelation therapy, Rebecca Caulfield, a sanitarian with the health department, visited Christine Canada's 14th Avenue apartment and collected samples of paint chips and dust for lead testing. Based on her conversation with Christine Canada, Caulfield also inspected Gertrude Canada's home, one unit of a four-plex apartment building owned by McCarthy at 3520 15th Avenue South (McCarthy property). At the McCarthy property, Caulfield collected dust swabs and a paint chip sample from the living room window jamb.

The results from the samples showed acceptable levels of lead at the 14th Avenue apartment. In contrast, the test of the paint sample taken from the McCarthy property showed a lead level of 18.7 percent, about 36 times the permissible level of .5 percent. The dust swabs, however, did not show excessive amounts of lead.

In a letter dated August 4, 1992, Caulfield issued an order to McCarthy requiring him to remove the windows in the apartment, to replace the sashes and window part stops, to install jamb liners, and to cover blind stops, window wells, and any exposed paint within the pocket of the window. The letter informed McCarthy that "CHILDREN AND PREGNANT WOMEN MUST NOT BE IN THE DWELLING DURING PAINT REMOVAL." (Emphasis in original). The letter also notified McCarthy that the Minneapolis Community Development Agency might be able to provide shelter for tenants during work. A contractor checklist accompanied the letter and order. The contractor checklist asked McCarthy to designate which abatement methods would be used in complying with the order.

McCarthy completed the contractor checklist on August 15, 1992. On it, he certified by his signature that his projected start date for the abatement work was August 17, 1992, and that he expected to finish by September 7, 1992. McCarthy indicated he would scrape and repaint the original window wells, jambs, crosspiece, exterior side of the upper sashes, and the lower sashes. He also indicated he would control dust by covering the furniture and carpeting. Finally, he indicated he would use a high efficiency particle accumulator (HEPA) vacuum to clean up, followed by a wet wash.

Soon after, on August 26, 1992, Caulfield inspected Christine Canada's 14th Avenue apartment a second time with an x-ray fluorescence lead detector, and discovered an excess of lead on the window trim in the bathroom. Caulfield then ordered the owner, Weiss, to remove the paint. Weiss never complied with this order and the property subsequently was condemned.

On August 28, 1992, Caulfield notified Children's by letter that she had told Christine Canada that the McCarthy property was "probably the primary source" of the lead Tiera ingested.

By September 21, 1992, Tiera's blood lead level had dropped to 25 ug/dl. At this time, Tiera continued to live at the 14th Avenue apartment with her mother. However, Tiera began to spend a lot of time at Gertrude Canada's home because her mother started working the morning shift at a 40-hour-per-week job. Christine Canada's job lasted a couple of months.

Meanwhile, sometime in mid-September, McCarthy began abatement work at the McCarthy property. He testified that he did not start until then because he had to wait for the replacement windows. McCarthy, who described the abatement as a "wrecking sort of operation," removed all the window sashes from all the windows, placed them in plastic bags and put them away.

McCarthy testified that when he was performing the abatement, he covered the furniture and also covered the floor with a plastic drop cloth which caught all of the dislodged paint chips. He also closed the doors, when there was one, to seal off the work area. He did not, however, see any need to seal off the area between the dining room and the living room. He also did not use a HEPA vacuum to clean up; rather, he used a Shop Vac. McCarthy testified that he tried to rent a HEPA, but was unsuccessful. The one rental company he contacted did not have one available. McCarthy also talked to a contractor about purchasing a HEPA, but learned that such a vacuum would cost about $3,500. After not being able to secure a HEPA, McCarthy said he believed he told Caulfield he was going to use a regular vacuum. Caulfield, however, could not recall giving McCarthy permission not to use a HEPA vacuum, and said she would never allow someone to use a regular vacuum to pick up lead debris. Caulfield testified that it was important to use a HEPA vacuum for cleanup because it traps the lead so that it does not become airborne as it would with a typical vacuum cleaner.

McCarthy was aware that Gertrude Canada had young children living with her. He testified that he saw Tiera "once or twice" while he was doing abatement. He testified that he told Gertrude Canada that Tiera was not supposed to be there and that Tiera was never in a room where he was actually doing work.

Much of Gertrude Canada's testimony concerning abatement conflicted with that given by McCarthy. She testified that her family members would come and go freely while McCarthy was doing abatement work and that McCarthy never offered to relocate her family during abatement. Further, Gertrude Canada testified that McCarthy did not seal off the rooms as he worked, except that he "might have" shut the door to her bedroom, which is the only door he possibly could have closed. In contrast to McCarthy's testimony, she said he did not cover any of the furniture, including the bed in which Tiera occasionally slept. Gertrude Canada also said the floor coverings did not cover the entire floor surface and that at the end of each day's work, McCarthy would vacuum the floor with a Dirt Devil vacuum.

Gertrude...