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New York Municipality Not Immune in Negligent Lead Abatement Suit

Illustrating the limits on the governmental immunity defense, a New York appeals court denied summary judgment to the City of Buffalo and City of Buffalo Urban Renewal Agency in a lead paint abatement negligence suit.  See Moore v. Del-Rich Properties, Inc., No. 16-02130, 2017 WL 2604503 (N.Y. App. Div. June 16, 2017).

When tests detected dangerous levels of lead paint in plaintiff Lillie Moore’s apartment building, the building’s owner enrolled in the City of Buffalo’s federally-funded Lead Hazard Control Project to pursue lead paint abatement.  The City of Buffalo Urban Renewal Agency (BURA) managed this lead paint abatement work in early 2000.  The following year, the building’s lead retest again detected dangerously high levels of lead paint.  The plaintiff then brought suit against the City of Buffalo, the City of Buffalo Urban Renewal Agency (BURA), and the building’s owner for negligent lead paint abatement work, claiming that they were liable for the continued presence of hazardous lead paint levels and that the lead caused injuries to the plaintiff’s grandson while he visited and lived in her apartment.  The City of Buffalo and BURA moved for summary judgment, arguing they were protected by governmental immunity from liability.  The trial court denied the motion, and the City and BURA appealed.

The court found the municipal defendants could not claim immunity.  In jointly managing the Lead Hazard Control Project, the Defendants arranged and supervised the lead paint abatement project at the plaintiff’s apartment.  In doing so, the City played a proprietary role rather than a governmental function—thereby extinguishing any immunity—because the City “voluntarily assumed the homeowner’s duty to remediate the lead paint” at the plaintiff’s residence.  The court further noted that once the defendants assumed this proprietary duty, they also assumed liability, despite the fact that the City did not own Plaintiff’s apartment building.

By Jennifer Leech

© 2020 Beveridge & Diamond PC National Law Review, Volume VII, Number 254

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About this Author

Graham C. Zorn Environmental, Toxic Tort, Products Liability Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Graham Zorn focuses his practice on environmental, toxic tort, and products liability litigation.

His representative experience includes extensive work on a series of complex products liability and toxic tort cases related to alleged groundwater, and litigation over lead in drinking water. He has represented individual businesses, trade associations, and municipalities in litigation, as well as in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal environmental statutes. He also counsels domestic and...

202-789-6024
Eric L. Klein Environmental Litigation Attorney Beveridge & Diamond Boston, MA
Principal

Eric makes complex subjects simpler.

He is an environmental litigator in the Boston office of Beveridge & Diamond, with a national practice representing major companies and municipalities in a wide variety of matters including environmental and mass torts, class actions, and federal citizen suits under environmental statutes including the Clean Water Act, the Safe Drinking Water Act, and the Clean Air Act. He has handled cases in state and federal courts throughout the United States, litigating complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals. He specializes in challenging and defending technical experts in complex environmental litigation.

Eric’s litigation practice encompasses a broad range of environmental matters, including the prosecution and defense of groundwater and site contamination cases, PCB cost allocations, environmental white-collar defense and internal investigations, and data compensation under FIFRA, the federal pesticide statute. In particular, Eric has defended some of the most significant environmental citizen suits filed in recent times, including the successful resolution of a $4 trillion Clean Water Act citizen suit filed against a major U.S. transportation company.

As a second-year law student, Eric argued before U.S. Supreme Court Justice Samuel Alito, who recognized Eric with "Best Oralist" and "Best Brief" awards. Following law school, Eric clerked for the Honorable Robert I. Richter at the Superior Court of the District of Columbia. He also serves as co-chair of B&D’s Pro Bono Committee and maintains an active pro bono practice, specializing in defending tenants in eviction actions. 

Eric’s core professional belief spans his careers in education and law: success lies in making complex subjects simpler.

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