DocketNumber: File No. CV960384127S
Citation Numbers: 702 A.2d 417, 45 Conn. Super. Ct. 136, 45 Conn. Supp. 136
Judges: LAGER, J.
Filed Date: 8/22/1997
Status: Precedential
Modified Date: 1/12/2023
The plaintiffs, Jonathan Rodriguez, a minor child, and his mother, Jomayra Rodriguez, brought the present action to recover for Jonathan Rodriguez' alleged injuries due to his exposure to lead-based paint while he resided in an apartment owned by the defendant housing authority of the city of New Haven (housing authority). The complaint alleges that on February 28, 1994, Jonathan Rodriguez underwent an initial venous lead test resulting in a blood lead level of eighteen micrograms per deciliter of blood (ug/dl). Notice of the plaintiffs' intention to commence an action was sent to the defendant on May 12, 1995.
The defendant has moved for summary judgment on the ground that the plaintiffs did not comply with the notice requirements of General Statutes §
A party moving for summary judgment has the burden of demonstrating both that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Practice Book § 384; UnionTrust Co. v. *Page 138 Jackson,
The admitted facts are as follows. The minor plaintiff, Jonathan Rodriguez, was diagnosed on February 28, 1994 with an elevated level of lead in his blood. As of February 28, 1994, he resided at apartment A-1, 374 Front Street, New Haven, a multi-family residential dwelling owned by the defendant. The first written notice of an intention to file a claim against the defendant in regard to the claim that the minor plaintiff Jonathan Rodriguez was exposed to lead while in the apartment is a letter sent from the attorney for the plaintiffs dated May 12, 1995. The notice letter was sent more than six months after the date that Jonathan Rodriguez was diagnosed as having an elevated level of lead in his blood. The plaintiffs claim that the elevated level of lead in the blood of Jonathan Rodriguez is due to exposure to lead from apartment A-1, 374 Front Street, New Haven, Connecticut.
In her opposing affidavit, plaintiff Jomayra Rodriguez states that on February 28, 1994, when she learned that her son had an elevated blood lead level, she did not know where the lead came from but "was concerned as to whether the source of the problem was on or within the premises where we lived," the apartment on Front *Page 139 Street. She further states that she "promptly and repeatedly contacted the City Housing Authority and requested them to send someone over to our home, but they did not come. Finally, the Department of Health sent someone here in March 1995."
Section
The issue presented by the defendant's motion for summary judgment is when the plaintiffs' cause of action arose within the meaning of §
The defendant maintains that the court may look to cases defining the term "cause of action" as it is contained in other statutes to determine its meaning as used in §
Similarly, in a negligence action, "[a] breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action. . . . [W.] Prosser [W.] Keeton, Torts, (5th Ed.) § 30, pp. 164-65; Calderwood v. Bender,
The defendant contends that the cause of action arose when Jonathan Rodriguez was diagnosed with an elevated blood lead level on February 28, 1994. The plaintiffs contend that the cause of action did not arise before March 28, 1995, when the apartment was inspected for lead paint and may not have arisen until April 24, 1995, the date when written notice that the inspection revealed excessive levels of lead in the apartment was sent. Neither contention is dispositive, as a matter of law, of the timeliness of the notice in the present case.
An elevated blood lead level, alone, does not necessarily mean that the defendant's conduct was the source of the minor plaintiff's lead exposure.4 Lead, which remains toxic indefinitely, is prevalent in the environment. Legacy of Lead: America's Continuing Epidemic of Childhood Lead Poisoning, (Environmental Defense Fund, March 1990) pp. 15-16. While lead-based paint is a significant source of exposure for children, other sources — including roadside and soil residue from leaded gasoline, other contaminated soil, drinking water, food, and commercial products — "make a notable contribution" to childhood lead exposure. Id., pp. 17-22. See P. Mushak A. Crocetti et al., The Nature and Extent of Lead Poisoning in Children in the United States: A Report to Congress (Agency for Toxic Substances and Disease Registry, Public Health Service, U.S. Department of Health and Human Services, July 1988). In a Connecticut study of the paint, dust, soil and water at the homes of nineteen children who were *Page 142 found to have blood lead levels greater than twenty-five ug/dl between October, 1988, and July, 1989, "16 of the 19 homes had elevated lead levels in two or more of those sources" and paint, although containing elevated lead levels, was not the sole source of elevated lead in any of the homes. Moreover, in one case, the probable lead source was the child's sandbox and, in another, the probable source was the child's school. Pilarski, et al., Sources of Lead in the Environments of Children with Elevated Blood Lead in Connecticut. This study also pointed out that the "emphasis on paint . . . may [be] inappropriate for children with moderately elevated lead levels, for whom studies have shown significant contribution from lead in dust, soil and water."5
Thus, the question is what facts were available to the plaintiffs, and in particular Jomayra Rodriguez; see Burns v. Hartford Hospital,
The date when the plaintiffs discovered or should have reasonably discovered that there were defective lead-based paint conditions, resulting in exposure to excessive levels of lead, in the apartment or on the premises is a genuine issue of material fact in the present case. Since the defendant has failed to sustain its burden of demonstrating the absence of a genuine issue of material fact, its motion for summary judgment is denied.
Calderwood v. Bender , 189 Conn. 580 ( 1983 )
Busko v. DeFilippo , 162 Conn. 462 ( 1972 )
Coburn v. Lenox Homes, Inc. , 186 Conn. 370 ( 1982 )
Williamson v. Adante, No. Lpl-Cv-97-0160280s (Nov. 10, 1998) , 1998 Conn. Super. Ct. 13280 ( 1998 )
Williamson v. Adante, No. Lpl-Cv-97-0160280s (Nov. 12, 1998) , 1998 Conn. Super. Ct. 13053 ( 1998 )
Caswell v. Bristol Hospital, No. Cv95-0469665s (Dec. 6, ... , 1999 Conn. Super. Ct. 15789 ( 1999 )