On July 28, 2017, the Sixth Circuit court revived two class action lawsuits regarding lead-contaminated drinking water in Flint, Michigan, finding that the Safe Drinking Water Act does not preempt the lawsuits from proceeding.

The two lawsuits, Boler v. Earley and Mays v. Snyder, both involved claims that city officials in Flint, Michigan did not take proper steps to ensure the safety of Flint’s drinking water and that their negligence results in lead-contaminated water in the city. Both cases allege that Section 1983 of Title 42 of the U.S. Code allows individuals to sue municipalities, as well as officials, over alleged violations of their constitutional and federal statutory rights. In these cases, the plaintiffs alleged that their Fourteenth Amendment due process rights and equal protection rights under the Fifth and Fourteenth Amendments were violated. The lower court dismissed the proposed class actions, finding that the claims were more properly addressed under the purview of the Safe Drinking Water Act and therefore preempted.

On appeal, the Sixth Circuit reversed in part and upheld in part, finding that the rights of Flint’s citizens protected under the Safe Drinking Water Act might not be the same as their constitutional rights protected under Section 1983 of Title 42 of the U.S. Code. The portion of the claims against the municipality and its officials can proceed, the Court held. However, the Sixth Circuit dismissed claims against the state and state officials, as sovereign immunity under the Eleventh Amendment protects states and states’ officials from federal lawsuits.

Although the Flint, Michigan drinking water lead levels are currently receiving the most media attention in the lead hazard realm, in the past, the most notable target involved the lead paint industry. Prior to 1978, lead was used as one ingredient in the manufacturing process of paint in the United States. Homes built prior to 1978 likely utilized paint products that contained lead. Over time, the paint products peel, chip, or flake, creating a risk of lead paint ingestion for children. Given that rooms in homes are typically repainted when normal renovations or maintenance is performed, lead paint used in millions of homes built prior to 1978 remained there for decades. As these homes age and the paint naturally wears away, the potential for children to ingest paint chips containing lead increases.

Whenever a child’s blood lead levels show elevated lead in the blood, the easiest target for plaintiffs’ attorneys are homeowners, property managers, and landlords. This is due in large part to strict laws in many states that hold homeowners and landlords liable for elevated blood lead levels in children (whether the child shows any signs of developmental delay or not) if the child resided in the home and there was lead present in the paint in the home. As the ongoing situation in Flint, Michigan shows, though, looking only to lead paint as the possible cause of elevated blood lead levels is unfair to homeowners and landlords given the number of other potential sources for exposure to lead that a child might have.

 It is important for landlords, home owners, and property managers to take appropriate steps to test for or monitor the conditions of lead paint in their homes, and steps must be taken to notify tenants of potential lead paint hazards in order to comply with state and federal law. If you are a homeowner, landlord, or property owner, there are ways to mitigate the risk of being sued for lead paint claims and CMBG3 Law LLC can provide counsel to you on these subjects. In addition, if you have been sued because one of your tenants’ children has elevated blood lead levels, we can help.

John Gardella has represented clients in lead poisoning claims, including defending homeowners, landlords, and property managers in Housing Court and Superior Court. If you have any questions or would like more information, please contact John Gardella (email him or 617-936-4353, ext. 204).