Tillman v. Johnson, CA

• Decision Date: 20 November 1992
• Docket Number: No. CA,CA
• Citation: 610 So.2d 866
• Parties: Priscilla TILLMAN Individually and as Duly Qualified Natural Tutrix of Her Minor Child, Cedric Tillman, v. David JOHNSON. 91 1188.
• Court: Court of Appeal of Louisiana — District of US

Page 866

610 So.2d 866

Priscilla TILLMAN Individually and as Duly Qualified Natural Tutrix of Her Minor Child, Cedric Tillman, v. David JOHNSON.

No. CA 91 1188.

Court of Appeal of Louisiana, First Circuit.

Nov. 20, 1992.

Writ Granted Feb. 5, 1993.

Richard H. Barker, IV, Barker & Boyer, New Orleans, Vincent Dagate, Jr., Authement & Larke, Houma, for plaintiff-appellant, Priscilla Tillman.

Christopher H. Riviere, Pugh, Lanier & Riviere, Thibodaux, for defendants-appellee, Moise D. Johnson, Sr., Kathleen Johnson & Millers Mut. Fire Ins. Co.

Kerry P. Camarata, Thibodaux, for intervenors, Richard A. Thalheim.

Stevens J. White, Bureau of Legal Services, Dept. of Health & Hosp., Baton Rouge, for State of Louisiana & Dept. of Health & Hospitals.

James E. Cazalot, Jr., New Orleans, for James E. Cazalot, Jr. & H. Edward Sherman.

Before LOTTINGER, C.J., FOIL, J., and COVINGTON, ^* J. Pro Tem.

GROVER L. COVINGTON, Judge Pro Tem.

Plaintiff-appellant, individually and as natural tutrix of her minor child, Cedric Tillman, seeks damages for lead poisoning suffered by the minor. She also asks awards for medical expenses and loss of consortium.

Additional parties defendant were added through supplemental pleadings.

A motion for summary judgment, filed by the defendants, was granted by the trial court, whose excellent written reasons we adopt as our own.

"The plaintiff claims that her minor child, Cedric Tillman, was injured as a result of eating lead paint on the premises of the defendants. This matter comes before the Court on a Motion for Summary Judgment. The parties have agreed that the following are the facts. This Court has inserted into the facts the dates of the passage of LSA-R.S. 40:1299.20 et seq. to establish a comprehensive sequence of events.

"The defendant, Kathleen Johnson, acquired the residence at 103-105 Lawrence Street, in 1957. Both she and her husband, David, were made defendants.

"The 'Lead Paint Poisoning Prevention and Control Act' passed in its original form in 1972. LSA-R.S. 40:1299.20 et seq.

"The defendants, Robert and Nolan Durocher, acquired the residence at 919 Harrison Street from the estate of their father in 1977.

"In mid December of 1985 Priscilla Tillman and her minor child, Cedric Tillman, moved into the house owned by the Johnsons, as a guest of a friend. The plaintiff claims that the minor child, Cedric, was injured as a result of eating lead paint found in the residence. The Johnsons had no knowledge of the presence of lead paint on or in the residence until notified by the Department of Health. The plaintiff moved out and the problem was corrected immediately.

"In the fall of 1986 Priscilla Tillman and her minor child, Cedric, vacated the residence owned by the Johnsons at 103-105 Lawrence Street.

"In December of 1986 or January of 1987 Priscilla Tillman and her minor child, Cedric, moved into the house belonging to the Durochers, at 919 Harrison Street, as a guest of her mother. The plaintiff alleges that the minor child, Cedric, was again injured as the result of the child eating lead paint found in the residence. The Durochers had no knowledge or notice of the presence of lead paint on or in the residence at 919 Harrison Street, until notified by the Department of Health. When lead paint was discovered the plaintiff moved out and the problem was corrected. All defendants have the same insurer.

"In 1988 the 'Lead Paint Poisoning Prevention and Control Act' was amended by amending LSA-R.S. 40:1299.26, .27, & .28 and sections 1299.20 through 1299.25 were repealed in 1989.

THE LAW

"Liability of the owners of residential property under the 'Lead Paint Poisoning Prevention and Control Act' is set forth in LSA-R.S. 40:1299.29 stating that 'The owner of any residential property shall be liable for all damages caused by his failure to perform the duties required of him pursuant to R.S. 40:1299.26 or R.S. 40:1299.27.'

"The prohibitions in the 1972 version of section 1299.26 as it might apply to residential landlords in the context of this case forbids the knowing application of lead based paint on the interior surfaces of any dwelling and the exterior surfaces of any dwelling to which children under six may be commonly exposed."1 Since there is no allegation that lead base paint was applied to either of the residences owned by the Durochers or the Johnsons there is no liability imposed upon them under section 1299.26 or .26(a) of the 'Lead Paint Poisoning Prevention and Control Act'.

"If there is to be liability imposed on the Durochers or the Johnsons it must come from section 1299.27 of the 'Lead Paint Poisoning Prevention and Control Act'. Since the acts complained of occurred before 1988, we must consider the potential liability of the defendants under the 1972 version of section 1299.27 of the 'Lead Paint Poisoning Prevention and Control Act'. Under section 1299.27 the landlord may be liable under two separate circumstances. The first is when a child under six or a mentally retarded person resides in the residence and the landlord receives notice of the existence of lead paint. He then has a duty to remove it."2 The statute clearly requires notice of the lead contamination be given to the owner of the property. It is obvious that since the Johnsons acquired their rental residence in 1967, and they received no notice of the presence of lead paint, they are not liable under the 'Lead Paint Poisoning Prevention and Control Act'."3

"Secondly, since there was a change of ownership in the premises belonging to the Durochers, after the 'Act'; then we must consider whether or not the statute imposes a duty upon them to remove the lead paint from the house as of the date of the change of ownership. It should be noted that in LSA-R.S. 40:1299.27 A. & B.(b) there are dual requirements which trigger the duty of the landlord to remove the lead contamination from a residence. The statute requires that there must be a '... change of ownership and as a result thereof a child or children under six years of age or mentally retarded persons shall reside therein ...' (Emphasis Supplied)."4 It appears that the Durochers meet the first of the requirements in that ownership changed. They do not meet the second requirement and that is as a result of the change of ownership the dwelling became inhabited by a child under six or a mentally retarded person. There is no connexity between the change of ownership and the presence of the child, Cedric Tillman, in the residence. Further, the statute carries a dual caveat in that it is to be '... strictly construed and enforced so as to best protect the safety of residents of such dwellings.' "5 Strict construction of the statute requires that it have a narrow construction. Under the rules of strict construction the Courts are not free to find a remedy by implication."6 When a requirement of narrow construction is coupled with the caveat that it be enforced for the safety of the residents we must not conclude that there is conflict in the statute. The Court must consider the statute as a whole and it cannot be presumed that only clauses and phrases were enacted. We must find a sensible way to read this act of the Legislature. The only sensible way to read the statute without conflict is that the statute is to be narrowly construed and vigorously enforced.

"Therefore, the Durochers do not incur liability under the statute without having notice of the lead contamination. They had no notice of the contamination and therefore have no liability under the statute.

"We must now explore the potential liability of the Johnsons and the Durochers under other avenues. The Civil Code provides several avenues for liability. They are Louisiana Civil Code Articles, 660 (formerly 670), Article 2322, Article 2695, Article 2315, & Article 2316.

"Articles 660, 2322 & 2695 seem to be commonly lumped together. This seems to be because they relate to one touchstone of liability, ownership of the premises."7

"Louisiana Civil Code Article 660 provides that: 'The owner is bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor or to a passer-by. He is answerable for damages caused by his neglect to do so.' This article by its terms applies only to neighbors and passers-by."8 Thus, defendants are not liable under this article.

"Louisiana Civil Code Article 2322 provides that: 'The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.' The ruin contemplated by this article is apparently the actual fall or collapse of the building, some part of the building must break or give way."9 At any rate, the falling paint chips are not the ruin contemplated by this article."10 There seems to be a more modern view of ruin as contemplated by this article; but even that falls short of lead paint. The more modern view of liability under this article seems to contemplate:

1. There be a building.

2. The defendant must be its owner.

3. There must be a 'ruin' caused by a vice in construction or a neglect to repair, which occasions the damage to be recovered. Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978); Charpentier v. St. Martin Parish School Bd., 411 So.2d 717 (La.App. 3rd Cir.1982).

However none of these cases espousing a more modern view overrule the two Louisiana lead paint cases, Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1970); Montgomery v. Cantelli, 174 So.2d 238 (La.App. 4th Cir.1965).

"Finally, we must contemplate Article 2695 as a potential source of liability. Article 2695 provides that: 'The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and...