CASE NOTES

Factual Issues Bar Summary Judgment in Lead Paint Claim

Two infants sued the past and present owners of the apartment in which their mother lived during her pregnancy and after their births. They sought compensatory and punitive damages for injuries allegedly caused by exposure to lead paint in the apartment. The original landlord sold the apartment about a month before the birth of the second infant, Amorie. The defendants moved to dismiss, and the plaintiffs moved for summary judgment on the issue of liability. The trial court granted the original landlord's motion as to Amorie, the infant born after the building was sold, and denied the plaintiff's motion as to liability. Both parties appealed.

The appellate court held that the dismissal of the complaint as to the infant Amorie was improper. The infant's expert opined that she had been subjected to lead toxicity in utero. There was an issue of fact as to whether the lead levels could be attributed to any exposure prior to the date that the original landlord sold the premises; Amorie's mother was exposed to the lead paint for eight months before the landlord transferred ownership, and the dangers of exposure to lead while in utero are widely recognized by both state and federal case law. Thus, summary judgment dismissing the complaint was reversed.

The denial of the infants' motion for partial summary judgment as to liability was proper. Partial summary judgment on the issue of liability in this case required proof that there were no reasonable abatement efforts and a direct link between the infants' condition to the lead in the apartment. There were conflicting affidavits as to whether the landlords had actual or constructive notice that a child under six was living in the residential unit. Finally, the appellate court held that punitive damages were not available for ordinary negligence, and the infants failed to establish that there was anything unusual about the landlords' conduct.

Munoz v. Puretz, 2048, N.Y. App. Div. 1st Dept., January 9, 2003.

Wrongful Death Statute of Limitations Does Not Apply to Product Liability Claim

Amy Kambury died when the airbag in her Jeep deployed during an accident and struck her in the abdomen, causing irreversible blood loss.  Her husband brought suit almost three years later. He alleged claims for product liability, negligence, breach of warranty, intentional misrepresentation and negligent misrepresentation. The defendants moved for summary judgment on the grounds that the state two-year statute of limitations for product liability claims barred all of plaintiff's claims for relief.  The plaintiff responded that the action was timely under the state's three-year statute of limitations for wrongful death actions. The trial court ruled that the two-year statute of limitations applied to all plaintiff's claims and granted defendants' motion.

The appellate court reversed the trial court, holding that the three-year statute for wrongful death actions rather than the two-year statute of limitations for product liability actions applies when a defective product causes a person's death.  Kambury v. DaimlerChrysler Corp., 173 Ore. App. 372, 21 P3d 1089 (2001), rev'd 334 Or 367, 50 P3d 1163 (2002). Subsequently, the Oregon Supreme Court held that the two-year statute of limitations applied to plaintiff's product liability claim; it remanded the case to  the appellate court to decide whether that statute of limitations also applied to plaintiff's other claims for relief.

The appellate court analyzed the claims that arose before and after Amy Kambury bought the car and concluded that nothing in the language of the state statute, ORS 30.900, suggested that the statute was intended to apply to defects that give rise to strict liability but not to defects or failures that result from negligence. The court discussed the plaintiff's argument regarding failure to warn and cited several cases. It concluded that the amended complaint did not allege that defendants discovered a defect after the decedent purchased the car but failed to warn her of that defect, nor did it allege that some other negligent act occurred after the product was sold.  The complaint alleged only that defendants failed to warn decedent before she bought the car and that that initial failure continued until the date of her death. That allegation was insufficient to avoid the application of ORS 30.90. It thus applied the two-year statute of limitations to all the claims and dismissed the suit.

Kambury v. Daimlerchrysler Corp., A107705 , Oregon Ct.App., January, 8, 2003.

Factual Issues Bar Summary Judgment in Lead Paint Claim

Two infants sued the past and present owners of the apartment in which their mother lived during her pregnancy and after their births. They sought compensatory and punitive damages for injuries allegedly caused by exposure to lead paint in the apartment. The original landlord sold the apartment about a month before the birth of the second infant, Amorie. The defendants moved to dismiss, and the plaintiffs moved for summary judgment on the issue of liability. The trial court granted the original landlord's motion as to Amorie, the infant born after the building was sold, and denied the plaintiff's motion as to liability. Both parties appealed.

The appellate court held that the dismissal of the complaint as to the infant Amorie was improper. The infant's expert opined that she had been subjected to lead toxicity in utero. There was an issue of fact as to whether the lead levels could be attributed to any exposure prior to the date that the original landlord sold the premises; Amorie's mother was exposed to the lead paint for eight months before the landlord transferred ownership, and the dangers of exposure to lead while in utero are widely recognized by both state and federal case law. Thus, summary judgment dismissing the complaint was reversed.

The denial of the infants' motion for partial summary judgment as to liability was proper. Partial summary judgment on the issue of liability in this case required proof that there were no reasonable abatement efforts and a direct link between the infants' condition to the lead in the apartment. There were conflicting affidavits as to whether the landlords had actual or constructive notice that a child under six was living in the residential unit. Finally, the appellate court held that punitive damages were not available for ordinary negligence, and the infants failed to establish that there was anything unusual about the landlords' conduct.

Munoz v. Puretz, 2048, N.Y. App. Div. 1st Dept., January 9, 2003.

Wrongful Death Statute of Limitations Does Not Apply to Product Liability Claim

Amy Kambury died when the airbag in her Jeep deployed during an accident and struck her in the abdomen, causing irreversible blood loss.  Her husband brought suit almost three years later. He alleged claims for product liability, negligence, breach of warranty, intentional misrepresentation and negligent misrepresentation. The defendants moved for summary judgment on the grounds that the state two-year statute of limitations for product liability claims barred all of plaintiff's claims for relief.  The plaintiff responded that the action was timely under the state's three-year statute of limitations for wrongful death actions. The trial court ruled that the two-year statute of limitations applied to all plaintiff's claims and granted defendants' motion.

The appellate court reversed the trial court, holding that the three-year statute for wrongful death actions rather than the two-year statute of limitations for product liability actions applies when a defective product causes a person's death.  Kambury v. DaimlerChrysler Corp., 173 Ore. App. 372, 21 P3d 1089 (2001), rev'd 334 Or 367, 50 P3d 1163 (2002). Subsequently, the Oregon Supreme Court held that the two-year statute of limitations applied to plaintiff's product liability claim; it remanded the case to  the appellate court to decide whether that statute of limitations also applied to plaintiff's other claims for relief.

The appellate court analyzed the claims that arose before and after Amy Kambury bought the car and concluded that nothing in the language of the state statute, ORS 30.900, suggested that the statute was intended to apply to defects that give rise to strict liability but not to defects or failures that result from negligence. The court discussed the plaintiff's argument regarding failure to warn and cited several cases. It concluded that the amended complaint did not allege that defendants discovered a defect after the decedent purchased the car but failed to warn her of that defect, nor did it allege that some other negligent act occurred after the product was sold.  The complaint alleged only that defendants failed to warn decedent before she bought the car and that that initial failure continued until the date of her death. That allegation was insufficient to avoid the application of ORS 30.90. It thus applied the two-year statute of limitations to all the claims and dismissed the suit.

Kambury v. Daimlerchrysler Corp., A107705 , Oregon Ct.App., January, 8, 2003.