COA rules for E. Chicago families against state agencies in lead exposure case

Hundreds of families who were unknowingly exposed for years to high levels of lead in Northern Indiana have secured a victory against state and local entities after the Indiana Court of Appeals affirmed the denial of the latter’s motion for judgment on the pleadings.

In 2016, hundreds of families living in the West Calumet Housing Complex in East Chicago were uprooted after they received flyers from the Environmental Protection Agency informing them that high levels of arsenic and lead were found in the complex’s yard.

The levels of contaminants in the ground posed too dangerous a health hazard for the people to continue living there and residents were told to move as quickly as possible. Their homes had been built on a former industrial site occupied by Anaconda Lead Products Co. and surrounded by other lead smelting operations. The local elementary school was likewise built on land formerly occupied by U.S. Smelter and Lead Refinery, Inc.

Beginning in 1985, the Indiana Department of Environmental Management and the Indiana State Department of Health were aware of children living at the complex with high levels of lead in their blood, and further testing in 1997 revealed the same thing.

However, none of the state defendants notified the residents of the complex or the parents of students at the elementary of the elevated lead levels until 2016.

As a result, Cristobal Alvarez and more than 300 other former residents of the complex filed a lawsuit against the City of East Chicago, the East Chicago Housing Authority, the East Chicago Department of Public and Environmental Health, and the School City of East Chicago. They also sued the State of Indiana, the Indiana Department of Environmental Management, and the Indiana State Department of Health.

Their suit alleged negligence, arguing that the State Defendants and the East Chicago Department of Public & Environmental Health “owed a duty of reasonable care to the Plaintiffs, including without limitation the duty to warn the Plaintiffs of known risks to their health that had the potential to cause serious, life-altering injuries.”

It also alleged the state defendants committed intentional infliction of emotional distress and negligent infliction of emotional distress. The state defendants, however, filed a motion for judgment on the pleadings, arguing that they were immune from suit pursuant to the Indiana Tort Claims Act, that Plaintiffs’ suit was barred by the statute of limitations, and that they had failed to state a claim for intentional infliction of emotional distress.

But the Indiana Court of Appeals in a Wednesday decision affirmed for the families, first finding that the state defendants were not entitled to judgment on the pleadings pursuant to the ITCA in the case of State of Indiana, Indiana Department of Environmental Management, Indiana State Department of Health, et al. v. Cristobal Alvarez, C.A. by next friend Cristobal Alvarez, et. al., 19A-CT-587.

 The appellate court noted that it was “not clear from the face of the complaint that warning the Plaintiffs about exposure to dangerous levels of lead was a discretionary function.”

Additionally, the appellate panel rejected the state defendants’ argument that they cannot be held liable where the duty to notify the plaintiffs of the presence of toxic chemicals in the soil fell to the city defendants.

“However, the complaint alleges both the City Defendants and the State Defendants were aware that Complex residents and students at Carrie Gosch Elementary were being exposed to toxic substances, yet none of the defendants warned the Plaintiffs or took steps to reduce exposure. Even though the complaint alleges tortious conduct by both the State Defendants and the City Defendants, the Plaintiffs allege the State Defendants are liable for their own actions. Therefore, the State Defendants are not entitled to judgment on the pleadings on the ground of vicarious liability immunity,” Judge Melissa May wrote for the appellate court.

Next, the appellate court found it was unclear from the face of the complaint that the plaintiffs brought the lawsuit outside the statute of limitations period or that their claims were barred by issue preclusion.

Finally, it concluded that the plaintiffs recited sufficient facts to state a claim for intentional infliction of emotional distress and agreed that “a civilized society should not be expected to tolerate ‘a government standing silent while knowingly exposing its most-vulnerable citizens to toxic substances when reasonable alternatives [exist].’”