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Ind. AG makes public nuisance claim, wins lead paint case

By John O'Brien | Feb 22, 2011


EVANSVILLE, Ind. (Legal Newsline) - An Indiana judge has sided with state Attorney General Greg Zoeller, ruling recently that a county can use a public nuisance claim to sue a property owner.

Zoeller's 2009 lawsuit was over a rental property that he claimed was a lead paint hazard. He filed the lawsuit on behalf of Vanderburgh County, four years after predecessor Steve Carter had notified city and county health departments that the AG's office could represent them in such actions.

Vanderburgh County Judge Carl Heldt ruled on Jan. 14 that the defendant is required to remove the lead paint from his property or demolish it. A child living there was found to have an elevated blood lead level.

Zoeller's office was also rewarded attorneys fees at a $250 hourly rate for 52 hours. Among Heldt's conclusions were:

-The Attorney General may bring an action to enjoin a nuisance;

-A civil action to abate or enjoin a nuisance may also be brought by an attorney representing the county in which the nuisance exists; and

-The state health department or county health officials may declare a dwelling that is unfit for human habitation a public nuisance and order remediation of the nuisance.

Bryan Corbin, Zoeller's public information officer, says it is the first time the AG's office has filed this type of suit on behalf of a county.

"(It) is the first that this legal strategy has been unleashed to enforce compliance to remove a lead contamination hazard to children, but we stand ready to use it in the future if other communities ask us," he added.

Defendants Mark and Tammy Bryan did not appeal in the 30 days following the ruling. They have until April 29 to follow the court's order, with a hearing scheduled for June 10 to determine if they have done so. The property is currently vacant and has been tagged for high weeds.

Public nuisance actions brought by state attorney general offices have generated some controversy in the past, mostly regarding the contingency fee arrangements given to private lawyers hired to file the lawsuits.

In Rhode Island in 2008, the state Supreme Court shot down a lawsuit brought by then-Attorney General Patrick Lynch and plaintiffs firm Motley Rice against the companies that manufactured lead-based paint before its ban in 1978.

The companies argued that the landlords who never repainted lead paint-coated properties were responsible for any damages. Similar lawsuits failed in Wisconsin, New Jersey and Missouri.

Another one brought by a group of municipalities and counties in California has been on hold while the paint companies fight the contingency fee agreement.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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