By Nan L. Haynes
It’s no surprise that young children in Western New York suffer from the highest rate of lead poisoning in upstate New York. Eighty-seven percent of the homes in Erie County were built before 1978, the year the federal government banned toxic lead-based paint from use in residential structures. Prior to the ban the paint was widely used in residential homes. It continues to be a threat to children because newer layers of paint peel or flake, and the old paint under it deteriorates into dust that children breathe in, or touch with fingers they then put in their mouths.
The most vulnerable children in our community live in residences owned by negligent landlords who fail to remove or properly paint over the toxic paint. In New York, landlords who know of yet fail to correct such conditions are responsible for the damages that result from their negligence.
The problem is that more than 20 years ago New York approved the use of lead paint exclusions for insurance carriers. The result is that most landlords in New York have no insurance that covers claims of lead exposure.
Children exposed to lead suffer from cognitive and behavioral problems. The costs associated with the problems are high because they affect a child’s capacity to learn, and in turn their capacity to earn a living as adults. So some families turn to litigation as a remedy. They file suit against their landlords asking for money damages to pay for the cost of treatment, special education and long-term care for their children.
As an attorney who represented such families, I know of the devastating consequences of childhood lead poisoning and the importance of securing money to help make the affected children whole.
I also know that insurance companies that exclude lead paint claims harm children whose families cannot afford to pay for the services necessary to help them. Though these families can sue their negligent landlords, when the landlords are without insurance coverage any judgment against them is virtually worthless.
The children may nevertheless receive limited services from the government in the form of special education, but to the extent they do it’s the taxpayers and not the negligent landlords who foot the bill. So the children suffer, taxpayers help and the negligent landlord continues to collect rent.
It’s wrong, but there is a solution. The superintendent of the State Insurance Department has the power to regulate insurance. He could amend New York’s insurance regulations to prohibit lead paint exclusions from insurance policies. Then children and their families affected by lead paint poisoning would have an effective legal remedy against landlords who chose to do nothing to protect their young tenants.
Nan L. Haynes, of Buffalo, teaches legal writing and analysis at the University at Buffalo Law School.