Lead Industries Association, Inc., Et Al. Against Plaintiffs Kayla abater,  Supreme Court Of The State Of New York County Bronx Product Liability Attorney

 Motion by defendants pursuant to C.P.L.R. 3211 to dismiss plaintiffs claims alleging design defect, nuisance, consumer fraud and breach of express warranty and cross motion by plaintiffs and proposed plaintiffs-intervener for leave to intervene are consolidated and decided as follows:

Defendants move herein to dismiss plaintiffs' claims for design defect, nuisance, breach of express warranty and consumer fraud.

Plaintiffs Kayla Sabater, Ariel De La Rosa, Joanna De Los Santos and Genesis Duran are minors. Two of the infant plaintiffs, Kayla Sabater and Ariel De La Rosa, allege that they have ingested lead. The other plaintiffs do not allege lead ingestion.

 The manufacturing defendants are nine companies which are alleged to be either former manufactures, or their successors, of lead pigment. The defendant association is an industry trade association. It is undisputed that the manufacturing defendants ceased the manufacture of white lead pigment decades ago. For example, the complaint alleges that the defendant Atlantic Richfield Company's alleged predecessor stopped making lead pigment in 1946, and that the defendant Sherwin-Williams Company ceased manufacture in 1947. It is conceded that any interior lead paint present in the plaintiff's home was applied before 1960, at which time New York City prohibited the application of lead paint to the interiors of residences. It should be noted that the sale of interior residential lead paint was prohibited in New York City after December 31, 1959.

The manufacturing defendants were all members of the defendant Lead Industries Association at various times between 1928 and 1960. Plaintiffs maintain that the Lead Industries Association periodically reported to its members on medical studies of lead toxicity and lead poisoning.

Plaintiffs further maintain that the Lead Industries Association and its members lobbied to oppose regulations concerning lead based paints. In addition, plaintiffs assert that the Lead Industries Association conducted studies to dispute governmental, medical and press reports of lead poisoning. Plaintiff also claims that they advertised and promoted lead-based paint for use in residential interiors.

Plaintiffs do not allege an inherent defect in design. Rather, plaintiffs contend that all lead is hazardous to children, and consequently, all lead pigment used in interior residential paint was defective. Plaintiffs assert that despite their knowledge concerning the hazards of lead, the defendants continued to manufacture and promote the use of white lead pigment in lead-based paint until 1960. In addition, plaintiffs maintain that lead paint was advertised and promoted as appropriate for use on interior surfaces of residential dwellings. Plaintiffs further maintain that by the beginning of the twentieth century nontoxic alternatives to lead pigments were available.

The infant plaintiffs have either been diagnosed with lead poisoning or are considered at risk for same.

Kayla Sabater is currently four years old and has had blood levels of lead as high as 22 micrograms per deciliter, which is twice the level considered dangerous.

Ariel de la Rosa is currently two years old and has had blood levels of 26 micrograms per deciliter.

Genesis Duran is currently six years old. She has not been diagnosed with lead poisoning, but is considered at risk since her older brother has been.

The complaint asserts a number of claims. Those relevant herein include claims for negligent product design (first cause of action), negligent failure to warn (second cause of action), strict products liability (third cause of action), fraud and misrepresentation (fourth cause of action), breach of implied warranties (ninth cause of action), breach of express warranties (tenth cause of action), nuisance (eleventh cause of action), and violation of New York's consumer fraud statute (twelfth cause of action).

The relief sought by plaintiffs includes an order requiring defendants to provide warnings about lead paint to all persons residing in homes in New York City built before 1960, an order requiring defendants to contribute to a fund to provide medical monitoring to children six or under residing in New York City buildings containing lead paint, an order requiring defendants to contribute to a fund to abate lead paint in the homes of all children six or under in New York City and damages under New York's consumer fraud statute for ill infants in New York City living in residences containing lead or lead paint or who have been diagnosed as suffering from lead poisoning as a result of being exposed to lead paint in the homes.

Lead is a non-biodegradable element. Once entering the environment it remains until it is removed. The manufacturing defendants and their successors produced the lead pigments which were used in lead paint. Lead pigments in the form of dust can become air borne and migrate elsewhere. Lead may be poisonous and in significant levels it may result in lead poisoning.

Lead poisoning is extremely troublesome for fetuses, babies and children under the age of six since it may significantly impact upon their developing nervous systems.

It is alleged that the defendants, herein, produced lead pigments until approximately 1950. It is further alleged that the manufacturing defendants were responsible for the production of virtually all the metallic lead and lead pigments produced in this country between 1910 and 1960. Plaintiffs contend that the manufacturing defendants were vertically integrated and controlled the mining, manufacture, distribution, and promotion of lead pigments. Plaintiffs further contend that the product of one company cannot be distinguished from that of any other company.

Plaintiffs maintain that despite knowing the risks inherent in lead, the manufacturing defendants and the defendant trade organization advertised and promoted lead-based paint as appropriate for use inside residential dwellings.

Defendants move, pursuant to C.P.L.R. 3211, to dismiss a number of causes of action asserted in the plaintiffs' complaint. Defendants seek dismissal of plaintiffs' claims alleging design defect, nuisance, breach of express warranty and consumer fraud.

It is well established that in considering a motion to dismiss the court must accept the complaint as true and give the complaint every possible favorable inference in construing its allegations. A pleading must give notice of the event from which it arises and cover the substantial material elements that make up the particular cause of action relied upon. A complaint need not, and should not, anticipate and refute defenses. In opposing a motion to dismiss, plaintiffs have no obligation to show evidentiary facts to support the allegations in their complaint (Pallmisano v. Modernismo Publications, Ltd., 98 A.D.2d953, 470 N.Y.S.2d 196).

Negligent Product Design - First and Third Causes of Action

Plaintiffs in their first and third causes of action allege a design defect. The defendants move to dismiss these causes of action on the grounds that plaintiffs have failed to plead and are unable to prove that there was a feasible design alternative that would have made the product safer.

A product may contain a design defect as the result of a manufacturing flaw, improper design or a failure to warn. (Sage v. Fairchild-Sweringen Corp., 70 N.Y.2d 579, 523 N.Y.S.2d 418, Sukljian v. Charles Ross & Sons, 69 N.Y.2d 89, 511 N.T.S.2d 821.) In a cause of action alleging a design defect, the basis for the claim is that the entire product is defective. See: Sage v. Fairchild-Sweringen, supra.

 To recover under a strict products liability or negligence theory for sale of a defectively designed product, it is well established that a plaintiff must plead and prove that there was a feasible design alternative that would have made the product safer. Thus, a plaintiff must establish that it was feasible to design the product in a safer manner, (Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398).

In the matter at bar, the plaintiffs have failed to allege that the white lead pigment could have been designed differently. Rather they assert that the continued use of the lead pigments was a design defect in that the lead pigments were inherently dangerous; plaintiffs contend that all lead pigment is inherently dangerous and that the defendants should have produced only pigments other than lead pigment.

It has been held, however, that merely alleging that a product is inherently dangerous is insufficient to establish a design defect (See, e.g. Foml v. Ferguson, 232 A.D.2d, 176, 648 N.Y.S.2d 73; Landrine v. Mego Corp., 95 A.D.2d 759, 44 N.Y.S.2d 516).

Plaintiffs argue, however, that failure to plead an alternative safer design is not a proper ground to attack a complaint as insufficient. Plaintiffs contend that a product which is so irremediably and unreasonably dangerous that it should not have been produced at all can be defective.

The court finds this argument to be unsupported by existing case law. It is well settled that to establish a claim predicated upon a design defect, plaintiffs must present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and that it was feasible to design the product in a safer manner. (Voss v. Black & Decker Manufacturing Co., supra). Thus, in order to sustain a claim for design defect, it is necessary to establish an alternative safer design. In the matter at bar, plaintiffs have failed to allege a safer alternative design.