Pierre v. US

• Decision Date: 11 July 1990
• Docket Number: Civ. A. No. 83-4214-S.
• Citation: 741 F. Supp. 306
• Parties: Gladys PIERRE and Nathania Lescouflair, p.p.a., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

741 F. Supp. 306

Gladys PIERRE and Nathania Lescouflair, p.p.a., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 83-4214-S.

United States District Court, D. Massachusetts.

July 11, 1990.

Jeffrey Petrucelly, Petrucelly & Nadler, Boston, Mass., for plaintiffs.

George Henderson, Asst. U.S. Atty., for defendant.

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

SKINNER, District Judge.

In this action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (FTCA), the plaintiff Gladys Pierre seeks recovery on behalf of her minor daughter Nathania Lescouflair for personal injuries and on her own behalf for medical and other expenses incurred as a result of a sale to her by the defendant of a residence contaminated with flaking lead based paint. The case was tried without a jury, but before any decision was reached, upon the representation of plaintiff's counsel that new evidence had surfaced in the discovery of a government file thought to have been destroyed, the trial was reopened. The new evidence was submitted in the form of deposition transcripts and government documents.

FINDINGS OF FACT

In early 1978, the United States Department of Housing and Urban Development (HUD) foreclosed its mortgage on and took possession of a two family house at 165-167 Milton Ave., in the Dorchester section of Boston, Massachusetts. At the time there were two tenant families living in the house, with at least one child under the age of six. HUD personnel knew then that the house had been built prior to 1950 and had been painted with lead based paint.

On May 5, 1978, Ms. Pierre agreed to purchase the premises from HUD for $21,550, and HUD conveyed title to her on June 29, 1978. From that time to the present she has occupied one of the apartments in the house. At the time of the sale Ms. Pierre was single and without children.

The agreement of sale required HUD to provide a fully repaired and repainted house and to repair any structural defects occurring within one year of the closing. In fact the required repairs and repainting were not undertaken prior to the closing, but were performed by HUD between mid-September and early December, 1978. This work included scraping old paint and repainting the interior ceilings and walls and parts of the exterior. Ms. Pierre informed HUD in early 1979 that the paint was peeling again, and the house was repainted by HUD's contractor. The paint continued to peel, and Ms. Pierre complained once more to HUD. At the time of her complaints to HUD in January, 1980, Ms. Pierre was eight months pregnant, and so informed the HUD property manager. Another HUD contractor repainted the exterior in the summer of 1980. At no time did anyone on behalf of HUD inspect the premises for lead paint or make any attempt to remove lead paint other than to scrape off peeling paint.

Ms. Pierre's daughter Nathania was born on March 11, 1980.

On or about October 6, 1982, agents of the Commonwealth of Massachusetts Lead Poisoning Prevention Program inspected the premises and found unacceptable levels of lead paint both in the interior and on the exterior of the house. Ms. Pierre called upon HUD to remove the lead paint, but it refused to do so. She had the work done herself at a cost of $4000. In one area the lead was so embedded that the only solution was to cover the surfaces with new wallboard.

In March of 1981 and again in March of 1982 Nathania was found to have elevated levels of lead in her blood. X-rays revealed the presence of chips of lead paint in her stomach. By the fall of 1982 the lead in her blood had reached critical levels, and she was hospitalized at Children's Hospital on two occasions, during which she was treated with a painful therapy called chelation. As a result of this therapy and subsequent medication and monitoring over the next two and one-half years, her lead level was reduced to normal. There was conflicting evidence from a child psychologist and a neurologist as to the permanent effect of Nathania's severe lead poisoning. I accept the testimony of Dr. Shaheen as being more probable than otherwise. In her opinion Nathania has suffered a permanent neuropsychological deficit which leaves her with subtle learning difficulties in mathematics, science and other subjects which depend upon visual memory bases, such as spelling. This is frustrating for Nathania, who is otherwise very bright, and leads to mildly disruptive behavior at home and at school. It is likely that she will need special tutoring and counselling and that her future lifetime earning capacity will be impaired, notwithstanding her relatively high level of general intelligence and ambition. The parties have stipulated that Ms. Pierre has expended $12,000 for hospital and medical care for Nathania to date, and that at least $5000 more will be required for further treatment, tutoring and counselling.

In general, HUD's own manuals and regulations provided that residential housing owned or controlled by HUD should be sufficiently repaired before occupancy so that it is structurally sound and free of hazards to health and safety. The specific provisions with reference to lead paint hazards are contained in 24 CFR Part 35, reprinted as Appendix 27 to HUD's publication HM 4325.1 entitled Property Disposition Handbook — Reconditioning Acquired Properties.

Ms. Pierre's house was "HUD-associated housing" as defined by § 35.3(e). Subpart C of this regulation is entitled Elimination of Lead-based Paint Hazards in HUD Associated Housing. Under § 35.24 all immediate hazards of lead based paint must be removed from "HUD-associated housing" by the most practicable means. All defective paint conditions are assumed to be such immediate hazards. The local HUD staff is obliged to inspect the premises to determine whether immediate lead paint hazards exist and to cause them to be removed or covered over by the methods specifically described in sub-section (3) of § 35.24. None of this was done by HUD with respect to Ms. Pierre's house, and these regulations were apparently completely ignored.

HUD also had the option of selling property with a lead paint hazard if the purchaser was notified of the presence of lead paint and was contractually bound to remove the lead paint before occupancy. These conditions were required to be in the bid documents and incorporated into the contract of sale. Ms. Pierre was not notified by HUD of the presence of lead paint prior to the sale, nor were any such conditions included in her contract. Obviously such conditions would affect the purchase price of the property.

Upon the birth of Nathania, Ms. Pierre became obligated under state law to remove lead based paint likely to be hazardous. I find that Ms. Pierre was not contributorily negligent in failing to comply with this state law because she was entitled to rely on HUD's representation that the premises were habitable and to assume that HUD would comply with its own regulations.

RULINGS OF LAW

The plaintiff originally sought recovery on a wide range of theories, which have already been discussed at length in my memoranda and orders dated March 7, 1985, February 26, 1986 and June 2, 1988, which are incorporated herein and annexed as Appendices A, B and C. The only claim left is a claim under the FTCA for negligence. Under the FTCA the government is liable for conduct which would constitute negligence under state law if done by a private person. Massachusetts has adopted the "good Samaritan" theory of negligence, which requires even a volunteer to use due care. Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331 (1983). The Massachusetts court apparently makes a distinction between "voluntary" and "gratuitous" undertakings, basing liability in the case of gratuitous undertakings on gross negligence only. 449 N.E.2d at 336, n. 10. The distinction presents a serious conceptual problem, because one would suppose an undertaking to be voluntary in the absence of a contractual obligation, i.e., without consideration. Apparently an undertaking is voluntary but not gratuitous if it is "an indispensable part of a bundle of services" for which consideration had been given, even though the undertaking in question has not been specifically contracted for. Id., 449 N.E.2d at 336. This resolution is the only way to explain the result in Mullins, in which the defendant was held liable for ordinary negligence in an undertaking which was described as "voluntary" but not "gratuitous." In addition to proof of negligence the plaintiff must show either "(a) that the failure to exercise due care increased the risk of harm, or (b) the harm is suffered because of the plaintiff's reliance on the undertaking."

Under Massachusetts law, failure to comply with applicable rules and regulations is evidence of negligence. Perry v. Medeiros, 369 Mass. 836, 343 N.E.2d 859 (1976). Cf. Mallen v. United States, 506 F.Supp. 728 (N.D.Ga.1979). The defendant violated M.G.L. c. 111, § 197 with respect to the prior tenants' child under the age of six. The plaintiff can not recover on that account, however, but only on account of the defendant's violation of its duty to obey its own regulations when it repainted the premises.

The defendant asserts that the failure to remove lead paint from the plaintiff's premises was a discretionary decision beyond the reach of the FTCA. In my opinion, however, these regulations were mandatory. The discretion had been earlier exercised by the Secretary in favor of the removal of lead paint from all "HUD-associated" property. See Appendix C for a more extensive discussion of this issue.

CONCLUSION

I conclude on the basis of the facts and law recited above that the defendant was negligent in the performance of a voluntary undertaking to paint the plaintiff's house. Although voluntary, I find and rule that this undertaking was not gratuitous, because it was part of a bundle of services for which consideration had been...