Limit on lead lawsuits sought

City landlords want immunity regarding kids under threshold

Advocates fear precedent

October 04, 2001|By Sarah Koenig | Sarah Koenig,SUN STAFF

A group of Baltimore landlords is asking the city's Circuit Court to bar certain lead-affected children from suing them, a decision that would stymie hundreds of pending lawsuits and, advocates say, greatly weaken compliance with the state's lead-safety standards.

The group, led by Lawrence Polakoff, former president of the Property Owners' Association of Greater Baltimore, is asking the court to reinterpret the state's Lead Poisoning Prevention Program Act, implemented in 1996.

The act was meant to encourage landlords to make their properties safer by offering them the reward of limited liability. If landlords comply with the lead cleanup standards in the law, children with certain blood-lead levels -- 25 micrograms per deciliter or higher on or after Feb. 24, 1996, or 20 micrograms on or after Feb. 24, 2001 -- can't sue, although they are entitled to payments of up to $17,000 in combined medical and relocation costs.

Attorney Ira C. Cooke represents Polakoff; two of his companies, CFSP Limited Partnership and Chase Management Inc.; and Stanley Sugarman and his companies, Sugarcorn Realty and Homewood Realty Inc. The plaintiffs, who own hundreds of rental units in the city, want a judge to rule that because the lead prevention act does not discuss children with blood-lead levels below those mentioned in the law, they have no right to sue.

"There is a glaring issue as to what happens to children whose lead levels do not rise sufficiently to be under the program itself," Cooke said. "Our position is that they are barred from suit."

Instead, he said, such plaintiffs could seek relief under the state's landlord-tenant statues, which allow far less money in damages.

Cooke's request to the court was made in a lawsuit filed late last month that claims there is "real controversy" about the lead prevention law.

"We're saying: `The system needs some help. Can you guys on the judicial level give us some help?' This is the only way of getting judicial guidance," Cooke said.

The suit names two mothers: Brenda A. Hampton, who Cooke says is preparing to sue his clients; and Kimberly Y. Robinson, who is suing Homewood Realty. It also names Saul E. Kerpelman, the attorney who handles most of the city's lead-poisoning cases (between 800 and 900 now), who represents Robinson.

In a separate action in January, Cooke tried to get Robinson's case dismissed using the same arguments. A judge denied his motion. With this lawsuit, Cooke is trying to establish a legal precedent that would apply to all such cases.

Kerpelman says Cooke's move is an "inappropriate" tactic. "I don't think he'll get away with it," he said.

Robinson filed a $15 million lawsuit last year on behalf of her daughter, Kaletha Leggette, who was born in July 1997 and lived in a property managed by Homewood Realty. When she was 2 she had a blood-lead level of 17. A month later, it rose to 20.

Robinson claims the landlord was negligent, and broke the city housing code and the state consumer protection laws by failing to properly rid the apartment of peeling and chipping lead-based paint.

As a result, the suit claims, Kaletha "suffered severe and permanent brain damage" and has "a learning disability, shortened attention span, impulsivity, hyperactivity and extreme difficulty reading." She underwent "a harrowing course of medical therapy by painful deep muscle needle injection over the course of many days," the suit says.

Cooke argued that Robinson could not sue because her daughter's blood-lead level was below 25.

Kerpelman countered that because Homewood did not comply with the lead poisoning prevention act, it could not claim immunity. He also argued that the act was unconstitutional since it denied judicial relief to a certain set of injured plaintiffs -- namely, "innocent little kids who mostly live in poor, black neighborhoods" -- and that the lead thresholds it uses to determine who can sue are arbitrary.

Although rebuffed once in Robinson's case, Cooke said he's confident he'll win this time. He noted that lawyers from the Office of the Attorney General have written opinions that support his position.

If he prevails, lead poisoning-prevention advocates say the purpose of the state law would be subverted because landlords would no longer be motivated to earn liability protection through compliance.

"What the landlords seek in this blanket immunity really goes against the logic of a lead prevention program," said Ruth Ann Norton, executive director of the Baltimore-based Coalition to End Childhood Lead Poisoning. "They would take us back to the dark ages where we only talk about lead-poisoned kids after the fact."

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