Appeals court affirms continuation of lead paint suit against Beaumont Housing Authority

David Yates Nov. 6, 2008, 4:54am

Beaumont justices looked at a 10-year-old case last week and affirmed a lower court's ruling to allow a lead paint suit against the Beaumont Housing Authority to continue.

In December 1998, several plaintiffs filed suit against BHA individually and on behalf of their minor children in Jefferson County District Court, alleging they and their children had negligently been exposed to lead paint.

Plaintiffs Bernadette Landrio, Ida Faye Guidry, Mary Frances Sias, and Carole Conway claim their children were injured by exposure to lead-based paint at BHA-owned apartments and contend BHA knew or should have known of the lead paint hazard at the apartment complexes, court papers say.

The litigation stretched on for a decade. Then in 2008 BHA's appealed to the Texas Ninth District Court of Appeals, after Judge Gary Sanderson, 60th Judicial District, denied its plea to the jurisdiction.

According to the plaintiff's suit, some of the children were eating the paint chips, causing them to suffer headaches, differences in behavior and hair and weight loss.

"On the record presented, disputed jurisdictional fact issues preclude granting BHA's plea," an opinion authored by Justice David Gaultney stated. "We therefore affirm the trial court's order."

On appeal, BHA argued the trial court erred because the plaintiffs failed to establish that they provided timely written notice; failed to establish waiver of BHA's immunity under the Texas Tort Claims Act; and failed to offer sufficient evidence to show that exposure to lead paint at the BHA-owned premises proximately caused the children's injuries.

A governmental unit, such as BHA, is generally immune from lawsuits suit unless that immunity has been waived. However, the Texas Tort Claims Act waives governmental immunity to suit in certain specified circumstances, the opinion stated.

Before the plaintiffs moved into their BHA supplied home, the organization required them to attend an orientation and read information entitled "Protect Your Family from Lead in Your Home" and "The Danger of Lead Poisoning to Renters," the opinions stated.

Nonetheless, the plaintiffs argued in their suit that BHA "failed to warn of the dangers of lead poisoning" and "breached the warranty of habitability."

"We do not reach the merits of the claims in this appeal," the opinion stated. "Plaintiffs' pleadings assert BHA's fault caused injuries to the minor plaintiffs. Generally, unless the undisputed jurisdictional evidence establishes otherwise, we are to accept the plaintiffs' allegations as true in determining jurisdiction. Plaintiffs are not required 'to put on their case simply to establish jurisdiction.'

"Furthermore, when material evidence concerning causation is disputed, the issue is one for the fact finder to resolve. Considering plaintiffs' pleadings of causation and damages, and the disputed jurisdictional facts before the trial court, the trial court did not err in denying the plea to the jurisdiction."

The plaintiffs are suing for past and future mental anguish, lost wages, medical expenses and impairment.

Established in 1941, BHA strives to be responsive to the needs of the community and the people it serves by providing decent, safe housing and rental assistance to low and moderate income families, elderly and disabled individuals, the organization's Web site states.

The plaintiffs are represented in part by attorney Adam Terrell.

BHA is represented in part by Scott Alexander.

Appeals case No. 09-08-00136-CV
Trial case No. B-160,224

More News