A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Negligence: Restoration company sued for lead-based paint dust release
By Virginia Lawyers Weekly – 9/16/2024
Where the homeowners’ expert opined that a window-restoration company’s failure to competently perform its work caused the release and dispersal of lead-based paint dust into the house, the defendants’ motion for summary judgment was denied.
Background
Christopher and Amy Menerick hired Salem Heritage LLC to restore the windows in a pre-Civil War residence in Abingdon, Virginia, that the Menericks had recently purchased. Because of its age, the structure likely contained lead-based paint, or LBP, a hazardous substance. The Menericks claim in this lawsuit against Salem Heritage and two of its employees that the company’s failure to competently perform its work caused the release and dispersal of LBP dust into the house.
The defendants have moved for summary judgment, primarily asserting that the Menericks cannot prove that the company’s actions proximately caused the damages claimed. Their argument in this regard is that the sole expert witness for the Menericks, Chris J. Chapman, a licensed LBP inspector and risk assessor, cannot opine as to possible alternative sources of the contamination. Alternatively, and for the same reason, the company moves to preclude the testimony at trial of Chapman.
Analysis
The defendant asserts that Chapman “chose to ignore a material alternate cause – the peeling and deteriorating paint throughout the home in which Plaintiffs lived for 18 months before Salem Heritage began its work.” I disagree with this interpretation of Mr. Chapman’s expected testimony. In fact, he opines that the “widespread dispersion of dust and debris caused by Salem Heritage … would have required an abatement regardless of any pre-condition of the Residence.”
Moreover, he states under oath that “[t]he highly elevated levels of lead yielded in some of the testing by the health department are more likely than not a result of the more recent activities of Salem Heritage. The higher values would indicate that lead dust was at a higher level than would have been normally be [sic] expected present if it were simply dust arising from the existing normal conditions. This especially true since, to my knowledge, the Menericks did nothing to disturb the lead paint that would have been present in the house prior to Salem Heritage’s arrival and disturbance activities.”
Of course, at trial the plaintiffs’ witnesses, including that of their expert, will be subject to cross examination and any contrary evidence, but on this record I am unable to grant summary judgment. For the same reasons, I will deny the defendant’s motion to exclude Mr. Chapman’s opinion testimony.
The defendants also assert that the Menericks’ negligence claim is barred by their own contributory negligence and assumption of the risk. Such defenses are normally matters for the jury. In addition, as argued by the plaintiffs, it has not been indisputably shown at this point that had the Menericks sought a lead investigation earlier, it would have shown the need for abatement prior to the defendants’ work.
Finally, the defendants request that the court strike any claim for punitive damages. However, based on the present record, I will not preclude that remedy at this point.
Defendants’ motion for summary judgment denied. Defendants’ motion to exclude denied.
Menerick v. Salem Heritage LLC, Case No. 1:23-cv-00010, Aug. 29, 2024. WDVA at Abingdon (Jones). VLW 024-3-450. 10 pp.
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