An apartment owner who was sued by a woman claiming she was exposed to lead paint while living in one of her units as a girl may argue that the woman’s later use of tobacco and marijuana could have contributed to her medical problems, an appeals panel has decided. The Appellate Division, Third Department, agreed that the owner, Elizabeth Randall, can contend at trial that the neurological injuries claimed by the plaintiff, Melissa Van Wert, were caused at least in part by Van Wert’s later drug and cigarette use. Randall may also contend that Van Wert’s parents contributed to her neurological problems by allowing her to be exposed to lead as a child, the judges ruled from Albany in Van Wert v. Randall, 514389.

The panel noted that Van Wert, who was between 3 and 5 when she lived in the Randall-owned apartment in Rensselaer County from 1994 to 1996, also showed elevated lead levels in her blood at times as a child when she was not living in the Randall unit. While Van Wert is absolved of all liability for her behavior when she was no older than 5, the panel said Randall can use as a limited defense that Van Wert “later caused or exacerbated some of her injuries when she was a teenager through actions such as smoking cigarettes and marijuana daily and dropping out of school. While the defense may be limited, plaintiff did not meet her burden of showing that the defense lacked merit as a matter of law,” Justice William McCarthy (See Profile) wrote for the panel, citing Metz v. State of New York, 86 AD3d 748 (2011).

The appeals court said Acting Rensselaer County Supreme Court Justice Christopher Hummel also properly denied Van Wert’s motion for summary judgment on the issue of liability, finding that it was unclear from the evidence so far that Randall knew her apartment had peeling paint that could have contributed to the lead exposure. Justices John Lahtinen (See Profile), Bernard Malone Jr. (See Profile), Leslie Stein (See Profile) and Elizabeth Garry (See Profile) joined in the opinion.