## Facts

- Rafael Bencosme (an infant) moved with his mother into an apartment owned by the defendants in Peabody, Massachusetts, in March 1973; his brother Carey was born in November 1973.
- The children lived in the apartment until September 1975, during which time Massachusetts lead-paint statutes requiring removal or covering of dangerous lead conditions in dwellings with children under six were in effect.
- Trial evidence indicated paint, paint chips, plaster chips, and ceiling dust in the apartment contained dangerous levels of lead.
- Rafael and Carey ingested lead-containing materials and suffered lead poisoning, with evidence of current disabilities and risk of future disabilities.
- The plaintiffs proceeded solely under the statutory cause of action, alleging the owners failed to remove dangerous lead materials as required by statute; they did not pursue common-law negligence.

## Issues

1. Whether Massachusetts General Laws chapter 111, section 199 imposes strict liability on owners of residential premises for injuries to a child under six caused by lead hazards the owner failed to remove as required by section 197, without proof of negligence or knowledge.

## Decision

- The Supreme Judicial Court of Massachusetts affirmed judgments for the children and their mother.
- The court held that G.L. c. 111, § 199 imposes strict liability for compensatory damages when a child under six is injured by lead poisoning resulting from the owner’s failure to comply with the removal duty in § 197.
- The court rejected the owners’ argument that liability requires proof the owner knew or should have known of the hazard or otherwise acted negligently.
- The court upheld the trial judge’s instruction that negligence or knowledge was not an element of statutory liability.

## Legal Principles

- Under G.L. c. 111, §§ 197 and 199, an owner’s duty to remove or cover materials containing dangerous levels of lead in premises where a child under six resides does not depend on the owner’s actual or constructive knowledge, inspection, or issuance of an official compliance order.
- Section 199 creates a strict-liability civil remedy for injuries from lead poisoning attributable to an owner’s noncompliance with § 197, requiring proof of statutory violation and resulting injury, not fault.
- Compensatory damages under § 199 may include damages for current injury and probable future harm when supported by evidence.
- Subsequent correction of the condition after notice does not eliminate liability for injuries arising during the period of statutory noncompliance (though it may bear on other statutory consequences).

## Conclusion

The court construed Massachusetts’ lead-paint statutory scheme to place the burden of prevention on residential owners by imposing strict liability for compensatory damages when a child under six is injured by lead hazards the owner failed to remove as required by law.


Bencosme v. Kokoras, 507 N.E.2d 748 (Mass. 1987)