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Lead Exposure and Frivolous Litigation

Owners of older residential properties are likely familiar with the legal requirement to provide warnings concerning the existence of lead. Lead exposure, particularly amongst children, can result in severe, even fatal consequences to those exposed, as well as massive liability on the property owner. For this reason, lead paint was banned in 1978 and lead pipes were banned in 1986 by the federal government. However, in pre-1978 buildings, lead exposure is still possible. Furthermore, we have recently seen in the now notorious city of Flint, Michigan that lead piping continues to pose a significant risk. In the case of Flint, poorly treated water corroded the existing lead piping system, subjecting thousands of residents to lead and the risk of lead poising.

Landlords, real estate companies, or condo associations charged with managing residential premises are subject to regulatory requirements concerning lead safety. If a resident becomes ill from lead exposure, the responsible party or parties are subject to significant liability. Due to the innumerable health effects caused by lead poisoning, including but not limited to infertility, brain damage and even death, monetary damages from lead-related lawsuits are potentially staggering.

Regrettably, because the link between lead exposure and adverse health effects is relatively strong, coupled with the fact that a reward from a lead exposure suit is potentially massive, there is also a risk of a frivolous lawsuit against a property owner, or to put more simply, a “shake down.” However, the law provides a remedy to parties that find themselves on the receiving end of a frivolous lawsuit.

In New Jersey, if a filing does NOT comply with the qualifications below, it is considered frivolous:

  1. the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
  2. the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
  3. the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and
  4. the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.

N.J. Court Rule 1:4-8; see also N.J.S.A. 2A:15-59.1.

A party or an attorney that files a frivolous filing in New Jersey is subject to sanctions and may be forced to pay for the attorneys’ fees of the prevailing party. New Jersey law requires notice to a party conducting the alleged frivolous conduct, and affords that party time to withdraw the subject filing to avoid sanctions.

Conduct in New York is defined as frivolous if:

  1. it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
  2. it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
  3. it asserts material factual statements that are false.

22 CRR-NY 130-1.1

New York law similarly allows for the imposition of sanctions and attorneys’ fees on a frivolous litigator. While such a result is rare, the risk of being sanctioned or paying an opponent’s attorneys’ fees are enough to some, but not all litigants.

Unfortunately, some litigants overlook these consequences and may serve an innocent party with a frivolous lawsuit. For a property owner or manager served with a lead exposure lawsuit, it is worth analyzing whether the case may be frivolous. A diligent property owner would have maintained records indicating that applicable regulatory requirements were complied with, such as providing lead-based paint disclosure to renters under the federal Residential Lead-Based Paint Hazard Reduction Act.

There are also state and city-specific requirements concerning lead in residential housing. New Jersey requires landlords to ensure multi-unit dwellings due not pose a hazard due to lead-based paint exposure. See generally, N.J.S.A. 55:13A et seq. and N.J.A.C. 5:10 et seq. Landlords who subject tenants to such exposure are subject to penalties pursuant to N.J.S.A. 55:13A-19(b), which calls for an initial penalty of $50 to $500, and $500 to $5,000 for each continuing violation.

New York State has established a lead prevention program pursuant to New York Public Health Law § 1370-A, which allows housing code enforcement to inspect dwellings for lead-based paint and require abatement thereof. If children test positive for lead exposure, New York law requires the health department to conduct an investigation of the child’s dwelling, which may ultimately lead to an abatement order. See 10 NYCRR § 67 et al. New York City has even more stringent standards for multi-unit buildings housing young children.

While an award for attorneys’ fees as a result of frivolous litigation is rare, the New Jersey Appellate Court made an example of a litigant in 2015 in Fulton v. Sunhillo Corp., Docket No. A-3950-13T2. In this case, the trial court found that the plaintiff “continued the prosecution of his lawsuit against [defendant] under circumstances where he knew there was absolutely no evidence supporting his claims” with the ultimate purpose of harassing and causing financial harm to the defendant. The Appellate court agreed, and found that attorneys’ fees should be awarded against the plaintiff for his appeal of the original summary judgment as well as the appeal of the award of attorneys’ fees resulting from plaintiff’s frivolous lawsuit.

A property manager that is faced with a lead exposure complaint against them must ask themselves whether they have followed all applicable Federal and State law. While this is by no means the only method to evaluate liability in a lead exposure lawsuit, regulatory compliance would likely evince a responsible landlord. A property manager might also consider what injuries are being alleged by the plaintiff, and whether such injuries could be foreseen or caused by the property owner’s acts or omissions. If there is no cognizable basis for the link between the alleged injury and the property, such lawsuit may be frivolous.

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