Isn’t it ironic? Children can’t sue under federal lead-paint law

For many years, lead was a key component of paint.

Pigments used to color paint contained lead. Lead is highly opaque, so a little paint could go a long way — think “one-coat” coverage. Lead is also a very durable material and almost impervious to water, so a dirty wall could be scrubbed clean without affecting the painted finish.

But no paint job, not even a lead-based paint job, lasts forever. It eventually it cracks and peels, producing lead dust. The process also produces chips, which apparently taste sweet.

Kids just love ‘em.

But lead is toxic. Over time, if you get enough of it in you, it attacks the nervous system, among other things. You begin to act as if your brain has turned to mush. Some historians say this explains the often-insane behavior of ancient Roman nobility, who swilled wine from goblets made of lead.

Recognizing all of this, Congress enacted the Residential Lead-Based Paint Hazard Reduction Act of 1992 (RLPHRA), 42 U.S.C. §§ 4851-4856. From Sixth Circuit Judge Richard Allen Griffin, writing in Roberts v. Hamer, et al.:

Congress enacted the RLPHRA based upon its findings that low-level lead poisoning, caused primarily by the ingestion of household dust containing lead from deteriorating or abraded lead-based paint, endangers the health and development of children living in as many as 3.8 million American homes. 42 U.S.C. § 4851.

The act requires property owners to disclose the potential presence of lead-based paint in residential structures and to provide information about how to guard against the paint’s dangers. If the disclosures aren’t made and the information is not provided, the act allows someone who buys a home or rents a residence, “the purchaser or the lessee” in the act’s words, to collect three times their provable damages.

Christina Roberts, whose two children were conceived and raised in an apartment, alleged that her landlords didn’t follow the act. She sued as next friend on behalf of her children, who, she alleged, were poisoned by lead paint in the apartment.

The federal district court dismissed the case.

Griffin agreed. Roberts’ children have no cause of action under the act, he said.

We consider … the text of the relevant provision. …

“Any person who knowingly violates the provisions of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual. 42 U.S.C. § 4852d(b)(3).”

The language plainly and expressly limits private recovery to a “purchaser or lessee” of target housing, and no one else. … “Where a statute names the parties granted the right to invoke its provisions, such parties only may act.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6-7 (2000) … .

Because the language is plain — indeed, it could not be more so — we stop here and hold that children of a lessee may not sue a lessor for violations of the RLPHRA’s disclosure requirements.

We decline to expand the cause of action or to infer an implied one where Congress has expressly created one. …

Congress created a cause of action for purchasers and lessees, not those who happen to benefit from the sales and leases, yet are not, themselves, purchasers or lessees.

All is not lost, noted Griffin, citing Mason ex rel. Heiser v. Morrisette, 403 F.3d 28 (1st Cir. 2005), for the proposition that children can pursue causes of action under state and local lead-paint abatement laws.

No quibble here with Griffin’s analysis. The quibble is with Congress, which enacted a law out of concern for millions of children who are at-risk for lead poisoning but didn’t provide the children with a federal remedy.

Frederick Douglass said it best, “At a time like this, scorching irony, not convincing argument, is needed.”

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