Norwood v. Lazarus, s. 43371

• Decision Date: 25 May 1982
• Docket Number: 43373,Nos. 43371,s. 43371
• Citation: 634 S.W.2d 584
• Parties: Belinda NORWOOD, a Minor, by Tony Norwood, her father and Next Friend, Plaintiff-Respondent, v. Raymond LAZARUS and Mrs. Raymond Lazarus, and Eli Bukovich, Defendants- Appellants.
• Court: Missouri Court of Appeals

Page 584

634 S.W.2d 584

Belinda NORWOOD, a Minor, by Tony Norwood, her father and Next Friend, Plaintiff-Respondent, v.Raymond LAZARUS and Mrs. Raymond Lazarus, and Eli BukovichDefendants- Appellants.

Nos. 43371, 43373.

Missouri Court of Appeals, Eastern District, Division One.

May 25, 1982.

Robert C. Ely, St. Louis, for Lazarus.

Edward S. Meyer, St. Louis, for Bukovich.

Mark I. Bronson, St. Louis, for respondent.

STEWART, Presiding Judge.

Belinda Norwood, an infant by next friend brought an action for injuries received by reason of lead poison alleged to have occurred at premises owned by defendants Mr. and Mrs. Raymond Lazarus and later at other premises owned by defendantEli Bukovich.Defendants Lazarus and defendant Bukovich appeal from the judgment entered upon a jury verdict awarding plaintiff damages in the sum of $9,350.00.We affirm.

The defendants contend that (1) there was no substantial evidence to sustain the verdict; (2) the amount of the verdict was so excessive as to indicate bias and prejudice on the part of the jury; and (3)defendants Lazarus contend that the court erred in submitting the verdict directing instruction as to them.

When considering the question of the sufficiency of the evidence to warrant submission of a cause to the jury, we view the facts in the light most favorable to the plaintiff.Winters v. Sears, Roebuck and Co., 554 S.W.2d 565, 569(Mo.App.1977).

Plaintiff, Belinda Norwood, was two years of age and living with her parents, Tony Norwood and Evelyn Graysonat 2704 St. Louis Avenue, St. Louis, Missouri, in 1972.The family rented a three room apartment at that address from defendants Lazarus.There were seven other apartments on the second floor above a store operated by defendants, and a common hallway served the apartments.In 1972, paint flaked from the walls of the hallway and there were flakes of paint on the floor.

Plaintiff played in the hallway in 1972 and on occasion was left alone in the hallway.Plaintiff's parents left the door between the hall and apartment open when plaintiff was playing in the hall.Mr. Lazarus came up to the hallway in the summer of 1972 and saw plaintiff playing in the hallway.She was seen by her parents eating flakes of paint that fell from the wall to the floor of the hall in the summer of 1972 and the spring and summer of 1973.When her parents saw her eating paint chips, they spanked her and told her not to do that.In January, 1973, she was taken to the hospital with a fever; the diagnosis was "acute pharyngitis."

Hospital records indicate that plaintiff was admitted August 30, 1973 for high lead levels in the blood.She was hospitalized from September 4, 1973 to September 11, 1973 for chronic lead poisoning.She was again hospitalized on October 16, 1973 because of high levels of lead in her blood.She was discharged October 22, 1973.

An inspection was made of the Lazarus' property by the Lead Poison Control Unit of the City of St. Louis.Samples taken in the apartment occupied by plaintiff and her parents were negative.The sample taken from the common hallway was positive.There was 1.8% lead in the paint.Mr. and Mrs. Lazarus were sent a violation letter on June 14, 1972.A violation letter advises the recipients of the presence of lead paint and gives them 14 days in which to correct the deficiency.There is nothing in the records of the Lead Control Unit that would indicate whether there had been compliance with the violation letter.

In October of 1973, plaintiff's parents received an eviction notice and in November, 1973, they moved into one of the units of a four family flat at 3114 North Sarah Avenue.

During the summer of 1973, the hallway walls at the Lazarus property were scraped and painting was started.It had not been completed when plaintiff's parents moved.Flakes of paint remained in the hallway during all this time.

The flat that plaintiff's parents occupied commencing in November, 1973, was owned by defendantEli Bukovich and managed by his brotherPete Bukovich.The building consists of two stories with two units upstairs and two units downstairs with a common porch in front and rear.Pete Bukovich inspected the property at least once a week.

Both the front and back porch at 3114 North Sarah had flaking paint.Plaintiff played on both the front and back porch and was seen eating paint flakes.Plaintiff was hospitalized for lead poisoning on December 26, 1973 and discharged January 2, 1974.An inspection by the Lead Control Unit made in April of 1974 showed 4% lead content in the paint on the porch.

In addition to the periods of hospitalization mentioned above, plaintiff made regular visits to the clinic for tests.The records show 21 visits to the clinic through May 24, 1974.One visit in 1975, 1976 and 1978.

Other facts necessary to the determination of particular issues will be set forth as those issues are discussed.

In addition to common law negligence, plaintiff pleaded a violation of an ordinance of the City of St. Louis with respect to lead paint.Plaintiff concedes that she abandoned her cause of action based upon the ordinance and submitted her case on the theory of common law negligence.We need not discuss the ordinance.

In contending that plaintiff did not make a submissible case, all of the defendants rely heavily upon Weaver v. Arthur A. Schneider Realty Co., 381 S.W.2d 866(Mo. banc 1964).In Weaver, the court sustained the trial court's dismissal of plaintiff's petition in an action for damages occasioned by lead poisoning to a child sixteen months of age.The court there recognized the obligation of the landlord to keep the common portions of the premises in repair and in a reasonably safe condition and the liability of the landlord for failure to do so.The court in sustaining the dismissal based its opinion upon the 1948 Supplement to § 435(2) of the Restatement of Torts that reads as follows " 'The actor's conduct is not a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.' "

The court then holds at p. 869:

"Looking back from the harm to plaintiff to defendant's negligent conduct, our view is that the result (plaintiff being in the hallway and sustaining injury by putting fallen plaster in her mouth) does appear to be so highly extraordinary, under the facts alleged, as to prevent defendant's conduct from being considered the legal cause of it, when there is nothing in the petition to show that defendant knew or had any reason to expect that such small children would be in the hallway unattended."

This places a great deal of stress on the word "unattended."We do not believe the opinion should be read as narrowly as defendant would have us read.We are not persuaded that the reasoning in Weaver requires that emphasis.We base this upon a reading of earlier comments by the court where it distinguished Acosta v. Irdank Realty Corp., 238 N.Y.S.2d 713, 38 Misc.2d 859(1963).The court said, l. c. 867:

"In this case, the defective condition was in a common hallway and it is not alleged that such small children as plaintiff were ever in the hallway alone or allowed to play there or that defendant had any notice of the presence of such small children there or any reason to expect them to be in the hallway without an older person in charge."

We do not read this as an absolute holding that defendants must know that children played in the hallway unattended.

As to defendants Lazarus, there was sufficient evidence to permit a jury to find that there was lead based paint in the common hallway that flaked and fell upon the floor and as a result violated the duty that defendants owed to their tenants.They were thereby negligent.Weaver, supra, at 867.The issue which we must determine is whether it can be said that the injury to plaintiff was a natural consequence of defendants' negligence.Paraphrasing Weaver, looking back from the harm to plaintiff to defendants' negligent conduct, was the result (plaintiff being in the hallway and sustaining injury by putting fallen paint flakes in her mouth) so highly extraordinary as to prevent defendants' conduct from being considered the legal cause of plaintiff's injury?

In our determination we consider that the exercise of ordinary care where children are concerned requires more vigilance and caution then might be required with respect to an adult.Howard v. Lundry, 591 S.W.2d 193, 197(Mo.App.1979).We also take judicial notice of the known characteristic of small children; their curiosity and propensities.Haberly v. Reardon Co., 319 S.W.2d 859, 868(Mo. banc 1958);Howard v. Lundry, supra.It is well known that children of tender years have a proclivity to put anything they can get into their hands into their mouths.Acosta v. Irdank Realty Corp., supra.

DefendantRaymond Lazarus operated a store on the ground floor of the building in which plaintiff lived.He had occasion to be in the common hallway.Plaintiff's mother saw him there on one occasion while plaintiff was playing in the hallway.Plaintiff's father also testified that he saw Mr. Lazarus in the hallway while plaintiff was playing there.Mr. Lazarus testified that one of the walls in the hall was affected by the...