Pelaez v. Seide

• Decision Date: 25 March 2004
• Citation: 2 N.Y.3d 186,778 N.Y.S.2d 111,810 N.E.2d 393
• Parties: MARIA N. PELAEZ, as Mother and Natural Guardian of SERVANDO R. PELAEZ and Another, Infants, Appellant, v. LAURA SEIDE et al., Defendants, and COUNTY OF PUTNAM et al., Respondents. ASHLEY HARRIS, an Infant, by Her Mother and Natural Guardian, DEBBIE HARRIS, et al., Appellants, v. PHILLIP LLEWELLYN, Defendant, and CITY OF NEW YORK, Respondent.
• Court: New York Court of Appeals Court of Appeals

2 N.Y.3d 186

810 N.E.2d 393

778 N.Y.S.2d 111

MARIA N. PELAEZ, as Mother and Natural Guardian of SERVANDO R. PELAEZ and Another, Infants, Appellant, v. LAURA SEIDE et al., Defendants, and COUNTY OF PUTNAM et al., Respondents.

ASHLEY HARRIS, an Infant, by Her Mother and Natural Guardian, DEBBIE HARRIS, et al., Appellants, v. PHILLIP LLEWELLYN, Defendant, and CITY OF NEW YORK, Respondent.

Court of Appeals of the State of New York.

Argued February 10, 2004.

Decided March 25, 2004.

Nancy Fairchild Sachs, P.C., New York City (Nancy Fairchild Sachs of counsel), for appellant in the first-above entitled action.

Servino Santangelo & Randazzo LLP, White Plains (Anthony J. Servino of counsel), for respondents in the first above-entitled action.

Northern Manhattan Improvement Corporation Legal Services, New York City (Kenneth Rosenfeld, Matthew J. Chachère and Andrea L. Rodriguez of counsel), for New York City Coalition to End Lead Poisoning and others, amici curiae in the first above-entitled action. Anthony P. Rivizzigno, County Attorney, Syracuse (Karen A. Bleskowski of counsel), for County of Onondaga, amicus curiae in the first above-entitled action.

O'Connell and Aronowitz, Albany (Peter Danziger, James E. Nixon and Mark G. Richter of counsel), for New York State Trial Lawyers Association, amicus curiae in the first above-entitled action. Athari Law Office, Utica (Mo Athari of counsel), amicus curiae in the first above-entitled action.

Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly, John E. Fitzgerald, Eugene S.R. Pagano, Alberto Casadevall and Mitchell Gittin of counsel), for appellants in the second above-entitled action. Michael A. Cardozo, Corporation Counsel, New York City (Janet L. Zaleon and Kristin M. Helmers of counsel), for respondent in the second above-entitled action.

D'Agostino, Krackeler, Baynes & Maguire, P.C., Menands (Arete K. Sprio of counsel), for County of Albany, amicus curiae in the first and second above-entitled actions.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

OPINION OF THE COURT

ROSENBLATT, J.

In these two cases, we must decide whether plaintiffs — children injured by exposure to lead paint — may hold a municipality liable in tort based on certain inspection and health counseling services. As a rule, municipalities are immune from tort liability when their employees perform discretionary acts involving the exercise of reasoned judgment. In a narrow exception to the rule, we have upheld tort claims when plaintiffs have established a "special relationship" with the municipality. In the appeals before us, plaintiffs have not made such a showing, and we therefore affirm the dismissal of both complaints against the municipal defendants.¹

I.

Pelaez v Seide

Maria Nancy Pelaez gave birth to twin boys, plaintiffs Christopher and Servando, in January 1994. In November, the family moved into a house on Center Street in Brewster, Putnam County. Defendants Gary and Laura Seide owned the property and employed defendant Peter Glass as caretaker.

Soon after moving in, Christopher and Servando experienced a host of medical problems, including stomach aches, diarrhea and vomiting. Eventually, they underwent blood tests. Servando's blood lead level tested at 20 micrograms per deciliter (mcg/dl), and his physician notified the County of the results.² On March 2, 1995, Susan Ortiz, a registered nurse who served as Childhood Lead Poisoning Prevention Program Coordinator for the Putnam County Department of Health (PCDOH), learned of Servando's elevated blood lead level and sent Pelaez an informational pamphlet about lead poisoning. She also contacted Lawrence Werper, a public health engineer for the PCDOH, so that he could inspect the premises.

In March 1995, Werper visited the home several times to test for lead paint. No one was home on his first visit, but he took paint samples from the outside of the house, and they tested positive for lead. A few days later, Werper tested paint samples from inside the home and determined that the property contained no lead-safe rooms. On March 14, the County issued a notice and demand for discontinuance, ordering abatement by April 7.

Werper visited again on March 29, accompanied by Ortiz. While Ortiz spoke with Pelaez and the children, Werper inspected the premises and saw that abatement had not yet begun. According to Pelaez, Ortiz told her to follow a regimen that would help the children's condition, such as feeding them vegetables, removing the carpet and mopping the floors instead of sweeping them. Ortiz also performed a developmental assessment of the children — in her words, she picked them up and noted that although they were small for their age, they could raise their arms, look at her when she spoke to them, hear her properly and support their own weight. Pelaez stated that Ortiz did not advise her that lead poisoning "was a very dangerous thing," or suggest that she move her family from the premises.

Ortiz and Werper continued to watch the situation over the next few months. On April 24, Werper returned to the residence and found that abatement was proceeding inadequately. He issued a notice of hearing to the landlord, but later cancelled the hearing when a June inspection showed progress. Although Werper admitted that he did not aggressively press the owners or discuss the dangers of lead poisoning with Pelaez, Ortiz returned to the home in April to make sure that Pelaez was following her instructions. She also sent Pelaez a letter in May 1995, after further testing showed that Servando's blood lead levels dropped to 13 mcg/dl. In the letter, Ortiz applauded the improvement and said that Servando did not need to be retested until September.

Werper reinspected the premises on August 9 and September 14. He determined that abatement was not proceeding well enough and reissued the notice of hearing for October 11, 1995 before a Putnam County administrative hearing officer. At the hearing, the judge ordered defendant Glass to relocate the children immediately. The children were retested the very next day. Christopher's blood lead level was 50 mcg/dl, and Servando's measured 70 mcg/dl. Recognizing that these levels constitute medical emergencies, Ortiz had the children admitted to the hospital, where they underwent chelation treatment. The day after the children entered the hospital, Werper had the house condemned as unfit for human habitation.

Plaintiffs commenced this personal injury action against the Seides, Glass, Putnam County and its DOH, claiming that the children suffered neurological and behavioral injury based on defendants' negligence and dereliction. The Putnam defendants moved for summary judgment, which Supreme Court denied, determining that there were questions of fact as to the existence of a special relationship.

The Appellate Division reversed and dismissed the complaint against the County defendants, holding that the employees' conduct involved discretion and judgment, which could not result in liability even if their actions were negligent. Further, the Court found that no special relationship existed. It also determined that because the Public Health Law was enacted for the benefit of the general public — and not to protect a special class of persons, such as children — the County violated no statutory duty. Lastly, the Court concluded that plaintiffs did not raise issues of fact that the County voluntarily assumed either a duty to protect the children, or assumed a positive direction or control over the situation.

Harris v Llewellyn

In 1988, Debbie Harris moved to an apartment on Newkirk Avenue in Brooklyn. She gave birth to her daughter, plaintiff Ashley, four years later. In September 1996, Ashley's blood lead level tested at 33 mcg/dl, triggering intervention by the City of New York. A City Department of Health public health advisor (PHA) visited the Harrises at home and provided nutritional and hygienic advice to help lower Ashley's lead levels. Also, a City DOH public health sanitarian (PHS) inspected the apartment using an x-ray fluorescence machine, finding that many painted surfaces in the apartment contained hazardous levels of lead.

In October 1996, City DOH issued an order to abate nuisance, but when a PHS and PHA reinspected the apartment in November, they determined that abatement had not begun. In the meantime, the PHA provided Harris with further nutritional and hygienic counseling. Later that month, the Harrises temporarily relocated to another apartment while the landlord abated the condition. In January 1997, the landlord told Harris that the process was complete and that she and Ashley could return to the apartment, which they did. On the 17th, a PHS inspected the apartment again. She observed that the landlord appeared to be in compliance and took a single dust wipe sample that tested negative for lead dust. According to Harris, the PHS told her that all lead had been removed from the apartment.

Over the next year, Ashley's blood lead levels remained elevated. In January 1997, she tested at 28 mcg/dl, prompting a PHA to visit Ashley's pediatrician to discuss the situation. The PHA returned to the Harris home in February 1997, noting in his report that the apartment had been fully abated but that Ashley's blood lead levels still remained high. For several months in 1997, Ashley continued to show elevated lead levels, and she eventually entered a lead poisoning treatment program. Ashley's hospital records for these treatments reveal that her mother believed all lead violations had been abated as of January 1997, and that the DOH had personally confirmed the abatement.

In May 1997, the Harrises sued the City and the landlord, alleging negligence and related causes of action. Although Ashley's blood lead levels dropped below 20 mcg/dl³ after November 1997, they hovered in the teens in tests administered through 1998. In September 2000, when ...