COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67893 JAMIE BELL, ET AL. : : : PLAINTIFFS-APPELLEES : JOURNAL ENTRY : v. : AND : : OPINION LEONARD GOLDSMITH : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CV-244982. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-appellees: Michael J. O'Shea, Esq. 1600 Illuminating Building 55 Public Square Cleveland, Ohio 44113 For Defendant-appellant: A. P. Leary, Esq. Newman, Leary & Brice 214 East Park Street Chardon, Ohio 44024 - 2 - SWEENEY, JAMES D., P.J.: Defendant-appellant Leonard Goldsmith ("Goldsmith") appeals from the bench trial premises liability verdict in favor of plaintiffs-appellees Ms. Jamie Bell, Mr. James Spearmon and minor 1 Miss Patrice Bell. The parties have waived oral appellate argument and rely on the record and briefs submitted. For the reasons adduced below, we affirm. A review of the record on appeal indicates that plaintiffs filed suit on December 31, 1992, alleging that the minor child had ingested lead-based paint chips while living in the duplex home rented to the parents by the landlord, Mr. Goldsmith, resulting in damages to the plaintiffs. Plaintiffs further alleged that Goldsmith had notice and knowledge of the dangerous condition represented by the lead-based paint and failed to eliminate the dangerous condition from the premises. At the trial, the plaintiffs offered the testimony of seven witnesses. The first witness for the plaintiffs was Goldsmith, who testified, as if on cross-examination, in pertinent part as follows (R. 10-38): (1) the plaintiffs were tenants at the duplex from July 1, 1991 to February 7, 1993; (2) during the period of the tenancy, the witness and the witness's daughter were the titled co- owners of the premises and Goldsmith managed and controlled the property; (3) the duplex is located at 4134 East 135th Street, Cleveland, Ohio; (4) prior to the plaintiffs moving in, the witness 1 Ms. Bell and Mr. Spearmon are the parents of Miss Bell. - 3 - repainted the interior of the two-bedroom unit rented by the plaintiffs; (5) at the time of repainting, the existing paint was not chipping or flaking; (6) he repainted because the walls were dirty; (7) in early November, 1992, the property owner was cited by the City of Cleveland's Health Department for having violated the City's lead abatement ordinance by having lead-based paint contamination in thirty-five areas which were flaking, chipped or in a dangerous condition throughout the interior and exterior of the house [See Plaintiffs' Exhibit 1]; (8) in response to the City's violations, the witness did not remove the existing lead- based paint on the structure. The second witness for the plaintiffs was Mr. James Spearmon, who testified in pertinent part as follows (R. 39-72): (1) at the time of moving into the duplex, three children lived with the parents, one of whom was Patrice Bell, age two at the time; (2) he painted two rooms of the interior of the duplex with paint supplied by Goldsmith after moving in; (3) a number of areas of the house had flaking, chipping and peeling paint at the time of moving in; (4) he told Goldsmith about the deteriorated existing paint in July or August of 1992; (5) shortly after the City inspected the duplex, Patrice Bell was seen by Dr. O'Connor at Rainbow Babies and Children's Hospital, where she was diagnosed with lead poisoning, which required a hospital stay and subsequent treatments; (6) he recalls that the child's mother told him that the child was seen eating paint chips at the duplex in the summertime at a time when - 4 - the child was under the care of a physician; (7) he never told Goldsmith that the child was eating paint chips; (8) he scraped the flaking paint areas, collected the scrapings, and told Goldsmith that the area needed to be painted; (9) Goldsmith never repainted the flaking areas, which continued to deteriorate after the witness's scraping; (10) the witness attempted repainting the affected areas himself, but the flaking condition returned before the City inspected the duplex; (11) it was in November, 1992, that he realized that the duplex was, in fact, contaminated with lead- based paint; (12) prior to November, 1992, he did express his fear to Goldsmith that, based on media reports of the dangers of lead paint contamination in older homes, the chipping and flaking paint had the potential to contain lead; (13) Goldsmith would come to the house once a month to pick up the rent check; (14) Goldsmith did occasional maintenance work around the house on the plumbing, the furnace, and an entrance door; (15) he and his mate made repeated complaints to Goldsmith about the condition of the house, particularly the deteriorating paint. The third witness for the plaintiff was Miss Isabella McWhorter, who testified in pertinent part as follows (R. 73-100): (1) she moved into the other side of the duplex in August, 1991; (2) she has three children; (3) as a neighbor of the Bell family, with personal knowledge of the duplex, she corroborated the extensive recurring condition of deteriorated paint in the Bell side of the duplex; (4) the flaking paint condition was personally - 5 - reported to Goldsmith by Ms. Bell, in the witness's presence, in the early Fall of 1991; (5) the witness feared that the paint was contaminated with lead; (6) the duplex also had a problem with an infestation of roaches; (7) Mr. Spearmon did the painting at the duplex, not Goldsmith; (8) the City also cited Goldsmith for eight housing violations in the witness's unit in November, 1992; (9) in the witness's presence, the child would be disciplined by Ms. Bell when the child would put paint chips from the duplex in the mouth; (10) she left the duplex after Goldsmith served her with a notice of eviction for non-payment of rent. The fourth witness for the plaintiffs was Mr. Rick Freas, who testified in pertinent part as follows (R. 101-149): (1) he is employed by the City of Cleveland Department of Health as a housing inspector, specializing in lead detection; (2) he inspected the Bell unit on November 9, 1992, for lead contamination because a child (Patrice Bell) was hospitalized for chelation therapy lasting five days to reduce the excessive lead level in the body; (3) the inspection indicated a number of areas in the unit, both inside and outside, with excessive lead levels and flaking, chipping and peeling lead-based paint, including lead paint dust [See Plaintiffs' Exhibit 1]; (4) the term "deteriorating" refers to any area of damage to the paint surface; (5) a child who engages in hand-to-mouth activity is in danger of consuming lead contaminated dust and soil; (6) approximately 70% of the homes built in - 6 - Cleveland prior to 1945, which includes the duplex in question, have lead-based paint contamination. The fifth witness for the plaintiffs was Mr. Ralph Siggars, who testified in pertinent part as follows (R. 150-166): (1) he is employed by the City of Cleveland's Health Department as a lead contamination inspector; (2) after a house inspection for suspected lead contamination, the owner gets a copy of the report; (3) he reinspected the duplex after the initial inspection by Mr. Freas, and found that as of December 4, 1992, the interior violations had been corrected, while the exterior violations had not been rectified as late as March 24, 1993; (4) the tenants moved out of the Bell unit on February 17, 1993. The sixth witness for the plaintiffs was Ms. Mary O'Connor, M.D., a pediatrician from Rainbow Babies and Childrens Hospital, who testified in pertinent part as follows (R. 166-222): (1) she specializes in the areas of lead poisoning and breast feeding; (2) a high blood lead level in a child is over 45 micrograms per deciliter, a moderately elevated blood lead level is 20 to 45 micrograms per deciliter, and a mildly elevated blood lead level is between 10 to 20 micrograms per deciliter; (3) the term "PICA" refers to a child's behavior of eating non-food objects; (4) the vast majority of lead poisoning in children occurs through exposure to lead-based paint and paint dust in the homes where they live; (5) absent chelation therapy, the body excretes the lead poisoning very, very slowly over a matter of decades; (6) lead poisoning can - 7 - cause anemia, cramping, mental retardation, liver and kidney disorders, interference with bone growth, and sometimes death; (7) it is the hospital's policy when a child is presented with lead poisoning to notify the city so that the local public health and housing department can inspect the child's home and ensure correction of any lead contamination before the child returns to the home; (8) lead in the air or water will not cause a child's blood lead level to exceed 25 micrograms per deciliter; (9) she treated the minor-plaintiff in this case; (10) when the child was first hospitalized in the Fall of 1992, her outward physical condition for lead poisoning was asymptomatic, but her blood lead level was 65 micrograms per deciliter, and on a retest, the level registered approximately 57 micrograms per deciliter; (11) at the time of trial [in August, 1994] the child still had a slightly elevated blood lead level despite a number of follow-up treatments over the years; (12) it is her professional opinion based on the medical records, interviews with family members, and review of the housing inspection reports that the child contracted the lead poisoning from exposure to the lead-based paint and dust at the duplex in question; (13) combustion of leaded gasoline would not put enough lead in the soil to cause blood lead levels in the high fifties or sixties. The seventh, and final, witness for the plaintiffs was Miss Jamie Bell, who generally corroborated the earlier testimony of Mr. Spearmon and Ms. McWhorter, and additionally stated in pertinent - 8 - part the following (R. 225-308): (1) Mr. Spearmon, not Goldsmith, painted the interior of the unit with some paint supplied by Goldsmith when the plaintiffs moved in, in 1991; (2) more than being dirty, the paint throughout the unit was deteriorated [meaning chipped, cracked, peeling and flaking] in many areas when the plaintiffs moved in; (3) the plaintiffs notified Goldsmith personally of the deteriorated areas of paint and showed him the affected areas; (4) she stopped Patrice Bell many times, as early as August of 1991, from playing with or eating paint chips around the unit; (5) in August of 1991, she witnessed Ms. McWhorter tell Goldsmith that the paint chips at the duplex appeared to be lead- based (R. 252); (6) in March of 1992, Patrice was tested for anemia by Dr. Landry at Hough Norwood Family Health Center and the test result indicated that her blood lead level at that time was acceptable and not a threat; (7) during a check-up on Patrice on 2 September 14, 1992 or 1993 , by Dr. Landry, the witness, claiming that she forgot the true behavior of the child when she completed the printed questionnaire, indicated on the questionnaire that Patrice did not chew on plaster or paint and did not exhibit PICA behavior. The defendant testified on his own behalf for his case-in- chief, reiterating his previous testimony and adding in pertinent 2 The year of this report is in doubt. Although the page of the questionnaire is date stamped September 14, 1993, the doctor's signature is dated September 14, 1992. On both dates, Patrice Bell was being treated at Hough Norwood Family Health Center under the federal WIC program. - 9 - part as follows (R. 311-334): (1) he denies that Ms. Bell or Ms. McWhorter ever notified him of, or showed him, deteriorated lead- based paint in the duplex; (2) he claims to have painted a number of the unit's rooms with the help of his son before plaintiffs moved in; (3) he was diligent in responding to, and rectifying, any complaints the tenants might have; (4) he first learned that there was a lead-based paint problem at the unit when the City's inspectors inspected the duplex for lead contamination in November, 1992; (5) each unit of the duplex rented for $300 per month, but he has had to evict each tenant eventually for non-payment of rent; (6) he did give the tenants paint when they would ask for it; (7) the tenants asked for paint only to change the color he had applied; (8) the paint in the house was intact despite the finding of the City's inspectors. Following closing arguments to the bench, the court returned a verdict in favor of plaintiffs in the total amount of $32,120.70. This timely appeal presents five assignments of error. I THE TRIAL COURT ERRED, TO DEFENDANT'S PREJUDICE, IN OVERRULING DEFENDANT'S MOTION TO STRIKE DR. O'CONNOR'S TESTIMONY ON PROXIMATE CAUSE. In this assignment, appellant argues that the application of Loc.R. 21.1, Part I(B), of the Court of Common Pleas of Cuyahoga County, General Division, prohibits the introduction at trial of Dr. O'Connor's opinion on the proximate cause of the lead poisoning - 10 - of Patrice Bell because this opinion was not allegedly raised in 3 her expert report provided to defense counsel prior to trial. The expert opinion at trial perceived as objectionable to the defendant-appellant is that the child's lead poisoning was caused specifically by exposure to lead-based paint and dust at Goldsmith's rental duplex. The record indicates that Dr. O'Connor issued two written reports. The first, dated July 6, 1993 (Plaintiffs' Exhibit G), summarized the examination results and medical treatment for the child and made reference to the lead contamination at the residence through the City's inspection report. See Plaintiffs' Exhibit G, first paragraph, where the following statement was made after a discussion of the child's blood lead levels, ". . . house inspection was obtained which reported both interior and outside hazards." The hazards of which the expert and the inspection 3 Loc.R. 21.1, Part I(B) provides: (B) A party may not call an expert witness to testify unless a written report has been procured from the witness and provided to opposing counsel. It is counsel's responsibility to take reasonable measures, including the procurement of supplemental reports, to insure that each report adequately sets forth the expert's opinion. However, unless good cause is shown, all supplemental reports must be supplied no later than thirty (30) days prior to trial. The report of an expert must reflect his opinions as to each issue on which the expert will testify. An expert will not be permitted to testify or provide opinions on issues not raised in his report. - 11 - report refers is lead-based paint contamination. The second expert report, dated April 28, 1994 (Defendant's Exhibit 4), supplements the first report and states: Dear Mr. O'Shea: In followup of her letter of July 6, 1993, I have reviewed Patrice's medical records and reviewed the report from the housing inspection as well as her developmental test results. Patrice's elevated lead level was found on her first visit to our clinic on April 30, 1992. Her lead level had previously been measured at Hough Norwood on March 9, 1992 and she was found to have a normal ZnP which is consistent with a normal lead level. When seen on October 30th, she was found to have a lead of 57 which rapidly rose to 65. This is consistent with exposure to lead that happened between March of 1992 and October 30th of 1992. According to her history, she had lived at 4135 E. 135 Street for at least a year prior to admission (sic) the hospital in November of 1992. This means that within a reasonable degree of medical certainty, Patrice Bell contacted her lead poisoning while living at the residence located at 4135 E. 135 Street, Cleveland, Ohio. * * *. Since living at her new address and being treated twice with chelation, she has had a sustained fall in her lead level and no rise. This is consistent with removal of Patrice from a lead contaminated environment. (Emphasis added.) * * * Furthermore, Dr. O'Connor prepared a clinical resume of the child's treatment and attached it to the hospital records. See Plaintiffs' Exhibit E. In the clinical resume, prepared in mid- November of 1992, following the discharge of the child from the hospital, the doctor, again referring to the City's inspection - 12 - report, states the following in the "hospital course" section of the clinical resume: The assessment was this 2-year-old female was admitted for significantly elevated lead levels and in need of chelation. House inspection was done which revealed hazards in both the upstairs and the downstairs on the inside of the house. * * *. (Emphasis added.) This court stated the following in Downs v. Quallich (1993), 90 Ohio App.3d 799, 803, with regard to the standard of appellate review for an assignment based on Loc.R. 21.1, Part I(B): We review rulings on Civ.R. 26(E) and Loc.R. 21.1(B) for abuse of discretion. See Savage v. Correlated Health Serv., Ltd. (1992), 64 Ohio St.3d 42, 47, 591 N.E.2d 1216, 1219- 1220; Tracy v. Merrell Dow Pharmaceuticals, Inc. (1991), 58 Ohio St.3d 147, 152, 569 N.E.2d 875, 880-881; Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, paragraph one of the syllabus. "Abuse of discretion connotes more than error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Tracy, 58 Ohio St.3d at 152, 569 N.E.2d at 880-881. Based on the record before us, we conclude that the trial court did not abuse its discretion in permitting Dr. O'Connor to enlarge her pre-trial written opinion and state with specificity that the cause of the lead poisoning herein was due to lead-based paint and dust at the duplex. From these written expert opinions, which clearly referenced the city's inspection report and the violations therein for deteriorated lead-based paint throughout the structure, the defense was put on reasonable notice that the cause of the lead poisoning was ingestion of lead-based paint. The defense's claim of ambush and surprise at the time of Dr. - 13 - O'Connor's testimony as to the issue of proximate cause is therefore without merit. This is even more so when we consider that although the defense was put on notice as to the general proximate cause of the lead poisoning before the trial, the defense chose not to depose plaintiffs' expert, or seek further supplementation of Dr. O'Connor's report so as to have the expert specify precisely the vehicle or method used in the poisoning of the infant. The first assignment of error is overruled. II ASSUMING, ARGUENDO, THAT DR. O'CONNOR'S TESTIMONY ON PROXIMATE CAUSE SHOULD NOT HAVE BEEN STRICKEN, THE TRIAL COURT ERRED IN FINDING PROXIMATE CAUSE AS A MATTER OF LAW, AND BECAUSE ITS DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, appellant argues that the trial court improperly concluded that lead-based paint chips and dust proximately caused the lead poisoning because there was a possibility that the poisoning could have been caused by lead contaminated soil at the duplex. Due to this possibility surrounding the issue of proximate cause, appellant argues that the court's failure to exclude or eliminate all possible other causes renders the trial court's conclusion on proximate cause as speculative. This argument by the appellant is premised on Gedra v. Dallmer (1950), 153 Ohio St. 258. Appellant reliance on Gedra is misplaced. In Gedra, the court provided that a plaintiff had to disprove all theories of - 14 - negligence but his own to prevail only where no inference of the defendant's negligence can be drawn from any of the facts presented by the plaintiff. See also Kurzner v. Sanders (1993), 89 Ohio App.3d 674. In the present case, the plaintiffs established facts from which an inference of negligence can be drawn based on the weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279. Thus, plaintiffs did not have to disprove all other possible causes for the lead poisoning to prevail. The second assignment of error is overruled. III THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT HAD NOTICE OF THE EXISTENCE OF A DEFECTIVE CONDITION IN THE LEASED PREMISES. It is unquestioned that a landlord is liable for injuries proximately caused by the landlord's failure to fulfill his or her statutory duties. Shroades v. Rental Homes (1981), 68 Ohio St.2d 20. One of the duties imposed on a landlord is to put and keep the rental premises in a fit and habitable condition. R.C. 5321.04(A)(2). In proving that the landlord breached a statutory duty of maintenance and repair, it must be demonstrated that the landlord had notice of the hazardous condition at the premises. Shroades, supra, at 26. This notice may be actual or constructive. Wallenstein v. Marsol Towers (August 8, 1991), Cuyahoga App. No. 58822, unreported. - 15 - In this case, the defendant-landlord received at least constructive notice of the hazardous condition when: (1) in 1991, Ms. McWhorter, in the presence of Ms. Bell, complained to Goldsmith that the paint was deteriorated and that it appeared to be lead- based paint based on her familiarity with the lead poisoning of Ms. McWorter's brother; (2) Ms. Bell complained to the landlord that the infant, Patrice Bell, had been caught attempting to eat paint chips at the duplex; and, (3) the landlord admitted to being aware through media reporting at the time of the plaintiffs' tenancy that lead-based paint is a problem in older homes. The third assignment of error is overruled. IV PLAINTIFFS JAMIE BELL AND JAMES SPEARMON ARE BARRED BY CONTRIBUTORY NEGLIGENCE FROM ANY RECOVERY FOR MEDICAL EXPENSES OR OTHER DAMAGE. In his Answer to the Complaint, Goldsmith raised the affirmative defense of comparative/contributory negligence. See Answer, at Fourth Defense; Civ.R. 8(C). Yet, the trial court, after hearing the evidence and judging the credibility of the witnesses, awarded plaintiff-parents $4,000 in compensatory damages for their pain and suffering and emotional distress. Essentially, this assignment argues that the manifest weight of the evidence, contrary to the determination of the fact-finder, supported defendant's belief that the plaintiff-parents were comparatively negligent to such an extent as to negate any award of damages. Reviewing the record on appeal and the evidence - 16 - presented, we conclude that the trial court did not abuse its discretion in not finding the parents to be comparatively negligent. C.E. Morris Co., supra. The fourth assignment of error is overruled. V THE DAMAGE AWARD IS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE. At trial, the court announced the following items and amounts: a. $5,000 for the child's hospital stay; b. $650 for 22 blood tests; c. $1,500 for four future blood tests; d. $10,000 for 1,000 days of pain from the time of discovery of the po is on in g (t o th e en d of tr ea tm en t) ; e. $350 for four tests; f. (?) for the child's mental health and pain and suffering; g. $4,000 for parents' pain and suffering. (R. 408-409.) The court announced that the total sum was $32,120.70 (R. 401, 409), and this award of $32,120.70 is reflected in the court's - 17 - status form judgment entry dated August 26, 1994 and journalized on September 1, 1994. Journal Vol. 1771, page 361. Yet simple addition of the items above indicates that the total is $21,500. It is this difference in amounts that appellant takes issue with; $32,120.70 minus $21,500 equals $10,620.70. The difference of $10,620.70 can be attributed to the award for the child's mental health and considerable pain and suffering associated with the treatments, which was addressed by the court even though the court failed to place a dollar figure on the item of damage. We note that the assessment of damages is within the discretion of the fact-finder, and that absent a finding of passion or prejudice or that the award is manifestly excessive, an appellate court may not disturb the award. Further, an appellate court may not reverse an award of damages as against the manifest weight of the evidence where there is some competent evidence to support the award. Oak Hill Investment Co. v. Jablonski (1992), 78 Ohio App.3d 643. In the present case, there was competent evidence to support the total award of damages. The fifth assignment of error is overruled. Judgment affirmed. - 18 - It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATRICIA A. BLACKMON, J., and SARA J. HARPER, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .