RAFAEL BENCOSME & others [Note 1] vs. NICHOLAS KOKORAS & another. [Note 2]

WILKINS, J. We conclude that, without proof of negligence, an owner of residential property is liable under G. L. c. 111, Section 199 (1984 ed.), for injuries sustained by a child under six years of age who ingested lead-based paint or other material which the owner failed to remove from those premises as required by G. L. c. 111, Section 197 (1984 ed.). The plaintiffs presented their case solely on the theory that the landlords' failure to remove paint, plaster, and other material with dangerous levels of lead established liability for injuries sustained by two young children who ingested paint chips and other particles and suffered the effects of lead poisoning.

We agree with the trial judge's determination that an owner of premises may be liable under Section 199 without proof either that the owner knew there were materials containing dangerous levels of lead on the premises or that the owner was negligent in not removing the offending materials. Section 199, which

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is set forth in full in the margin, [Note 3] provides for strict liability, that is, liability without proof of fault beyond the owner's noncompliance with statutory requirements for the removal of materials containing dangerous levels of lead. [Note 4]

We need not set forth fully the evidence supporting the plaintiffs' case. Rafael was eleven months old in March, 1973, when he, his mother, and older sister came from the Dominican Republic to live with his father in an apartment in Peabody in a building owned by the defendants. The relevant statutes concerning the removal of lead-based paint and other materials were then in effect. See St. 1971, c. 1081, Section 3. In late November, 1973, Carey, the other minor plaintiff, was born. Rafael and Carey lived in the apartment until September, 1975. During that time the two boys ingested lead and sustained lead poisoning. There was evidence that paint, paint chips, plaster chips, and dust from the ceiling in the apartment had dangerous levels of lead. There was also evidence that the boys had current disabilities caused by lead poisoning and had a risk of future disabilities.

The jury returned verdicts for Rafael ($75,000) and Carey ($100,000), and verdicts awarding their mother damages for medical bills. The jury determined, however, that the owners had satisfactorily corrected or removed the dangerous condition

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when they were notified of it. Consequently, the defendants were not additionally liable under Section 199 for punitive damages in an amount three times the actual damages.

1. The defendants argue that their obligations under Section 199 are not based on strict liability but rather require proof of negligence or noncompliance with a remedial order under Section 194. Thus, they say, no duty arose until they knew or should have known of the dangerous condition. The defendants contend that their motion for directed verdicts should have been allowed and that the judge erred in instructing the jury that the plaintiffs did not have to prove that the owners were aware of the presence of lead. [Note 5]

We are not dealing here with the question whether this court should adopt a common law principle that would impose liability without proof of fault. The issue is whether the Legislature has created such a rule in Section 199. We think it has.

The language of Section 199 virtually compels the conclusion that neither negligence nor knowledge of the risk is an element of liability under the first paragraph of Section 199. An owner "shall be liable for all damages caused by his failure to perform the duties required of him pursuant to...[Section 197]." G. L. c. 111, Section 199. Section 197 imposes a duty to remove or cover lead paint, plaster, and other material when a child under six years of age resides in the premises. See Commonwealth v. Racine, 372 Mass. 631, 637 (1977). Neither section imposes that duty only if the owner knew or should have known of the risk or only if the premises had been inspected and a compliance order had been issued. The last paragraph of Section 199 imposes punitive damages when an owner, notified pursuant to Section 194 of the dangerous level of lead in paint or other material, does not satisfactorily correct or remove the dangerous condition. The implication is clear that liability for compensatory damages under the first paragraph of Section 199 does not require such a notice. We think it follows that the first paragraph of Section 199 was not intended

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to require proof of negligence and that it should be read and applied literally. There is nothing in the legislative history of St. 1971, c. 1081, that indicates that the literal reading we give to Sections 197 and 199 was not intended.

2. The defendants object that the judge did not instruct the jury that a portion of the plaintiffs' closing argument was improper. In his closing plaintiffs' counsel asked the jury to consider why the defendants had not produced their cousin Eva as a witness to support their testimony and to contradict the plaintiffs'. There was conflicting testimony as to whether she collected rent from tenants and relayed their complaints. Although it might be reasonably inferred that she probably was available to testify and was under the defendants' control, there is no indication that she knew anything bearing on the issues at trial. Thus it was not clear that the defendants naturally would be expected to call her as a witness. See Grady v. Collins Transp. Co., 341 Mass. 502, 506 (1960). Cf. Commonwealth v. Franklin, 366 Mass. 284, 292-293 (1974) (judge's charge that inference against criminal defendant could be drawn from his failure to call witnesses upheld). In such a situation, comment on Eva's absence was not warranted. The judge told the jury so but only in general terms. He gave an instruction that the defendants were not obliged to produce any witnesses. He did not explicitly tell them that the plaintiffs' argument was improper. He did so, however, inferentially and adequately.

3. The defendants' abbreviated argument that the judge erred in permitting a juror to have notes in the jury room is meritless. The judge instructed the jury appropriately that no greater weight should be given a juror with notes than one without. See Commonwealth v. Wilborne, 382 Mass. 241, 253 (1981).

4. The defendants contend that the judge should have allowed their motion for judgment notwithstanding the verdicts because there was no proof of special damages, such as the amount of past and future medical expenses. No evidence of the amount of any medical bill was introduced. This argument goes only to the mother's counts for medical expenses. Hospital records and the testimony of physicians and psychologists as to past

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and anticipated future services permitted the jury to use their judgment to award more than nominal amounts on the counts for medical expenses. Any claim that the amounts awarded were excessive could not properly be raised by a motion for entry of judgment notwithstanding the verdict. In any event verdicts of $10,000 and $12,000 respectively, were warranted. [Note 6]

5. The plaintiffs' appeal is without merit. The evidence did not require the jury, as a matter of law, to return verdicts for the plaintiffs on their treble damage claims. It was a jury question whether the defendants did "not satisfactorily correct or remove [the] dangerous conditions" (G. L. c. 111, Section 199, second par.) once they were notified of a dangerous level of lead on the leased premises.

Judgments affirmed.