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Childs v. Purll9/8/2005
Argued March 8, 2005
Before WASHINGTON, Chief Judge, and TERRY and GLICKMAN, Associate Judges.
This is an appeal from an award of summary judgment to the defendants in an action for damages on account of lead poisoning. We reverse the judgment in part and remand for further proceedings.
I.
Between December 1991 and October 1995, appellants Marcella Childs and her two minor children, Tiffany Childs and Robbie Davis, resided as tenants in an apartment at 1411 Ridge Place in Southeast Washington, D.C. The property was owned by appellees Samuel and Kathy Purll and managed by appellee Willoughby Real Estate Company ("Willoughby"). Appellants' lease agreements identified Willoughby as the landlord and lessor and listed each member of the Childs family by name as an occupant of the premises. It was stated in the leases that Tiffany and Robbie were one and three years old, respectively, at the start of the tenancy in 1991. In August 1993, midway through the tenancy, tests revealed that the two children had elevated levels of lead in their blood -- in other words, they had lead poisoning.
Attributing her children's lead poisoning to their exposure to lead-based paint at 1411 Ridge Place, Marcella Childs filed suit against the Purlls, Willoughby, and the management company's three principals in February 2000. Her voluminous complaint charged each defendant with negligence in failing to eradicate a lead paint hazard that persisted on the walls and other surfaces throughout the premises, failing to prevent the paint from chipping, peeling and flaking, and failing to warn her of the resulting dangers -- "thereby rendering the dwelling unsafe and dangerous, and unfit for human habitation, especially for children of tender years." The complaint further asserted that, for leasing the dwelling in a grossly defective and unreasonably dangerous condition, the defendants were strictly liable without regard to negligence. In addition, the complaint alleged that the defendants had violated the Consumer Protection Procedures Act by misrepresenting that appellants' apartment complied with the District of Columbia Housing Regulations despite the fact that it contained "flaking, loose or peeling paint or plaster, or lead-based paint accessible to children."
As a consequence of the defendants' actions, Ms. Childs alleged, her children had ingested lead-based paint and paint dust and, as a result, had suffered permanent brain damage and other serious injuries for which they were entitled to compensation . Ms. Childs also sought compensation for herself for the anguish she had suffered watching her children undergo painful drug tests and therapy, the expenses she had incurred for their medical care, and the loss of her children's services. Along with compensatory damages, the complaint requested punitive damages and, under the Consumer Protection Procedures Act, treble damages and reasonable attorneys' fees.
Following a lengthy period of discovery, the defendants moved for summary judgment on multiple grounds. Appellants failed to file a timely opposition to the motions. Four weeks after the filing deadline had passed, appellants' counsel moved for an additional fifteen days to submit an opposition. Although the trial court granted the request, appellants then filed nothing by the extended deadline. After three more weeks in which appellants were not heard from, the court issued an opinion and order on the morning of November 7, 2003, granting the motions for summary judgment on their merits. The court ruled that appellants' negligence causes of action failed for lack of evidence that the defendants had notice of any lead paint hazard in appellants' dwe
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