United States District Court, W.D. Pennsylvania
JACQUELYN B. N'JAI, Plaintiff,
GARY BENTZ, CONNIE BENTZ, AND C.A. BENTZ LLC, Defendants.
Barry Fischer, United States District Judge
Jacquelyn B. N'Jai (“Plaintiff”) initiated
this civil action on August 22, 2013 against her former
landlords, Gary and Connie Bentz, and their real estate
company, C.A. Bentz LLC (“Defendants”). In the
operative complaint,  Plaintiff asserted common law claims based
on negligence (Count I), negligent infliction of emotional
distress (Count II), private nuisance (Count V), breach of
contract (Count VI), and breach of the implied warranty of
habitability (Count VII). She also asserted federal claims
pursuant to the Residential Lead-Based Paint Hazard Reduction
Act, 42 U.S.C. § 4852d (Count III), and the Toxic
Substances Control Act, 15 U.S.C. § 2619(a)(1)-(2)
pending before the Court are Motions for Summary Judgment
filed by Defendant C.A. Bentz, LLC (Docket No. 267) and
Defendants Gary and Connie Bentz (Docket No. 277), as well as
a Cross-Motion for Summary Judgment filed by Plaintiff
(Docket No. 285).
reasons set forth below, Defendants Gary and Connie
Bentz's Motion for Summary Judgment will be GRANTED in
part and DENIED in part; Defendant CA Bentz, LLC's Motion
for Summary Judgment will be GRANTED; and Plaintiff's
Cross-Motion for Summary Judgment will be DENIED.
2008 through 2012, Plaintiff rented and resided in an
apartment owned by the Defendants and located at 226 East End
Avenue, Pittsburgh, Pennsylvania. (Docket No. 11 at
¶¶ 1, 3). During her time in the apartment,
Plaintiff complained that she frequently observed water
discharging from a broken drainpipe into the apartment,
creating a severe mold infestation. (Id. at ¶
5-6; Docket No. 113 at ¶¶ 27, 40-41, 51). She also
complained that the walls in the apartment contained mold and
lead paint. (Id. at ¶¶ 1b-4, 6b, 17, 20).
Finally, she objected to repairs performed by Gary Bentz on
or about July 24, 2012, characterized by the Plaintiff as
“unlawful renovations, ” that caused lead and
mold dust to permeate throughout the apartment. (Docket No.
11 at ¶¶ 8-15).
on her alleged exposure to lead and mold, Plaintiff asserts
that she suffered severe cramping of her toes, spasms in her
extremities, burning in her eyes, choking and gagging, and
uncontrollable coughing. (Docket No. 11 at ¶¶
21-22). Plaintiff was also forced to move into a hotel and
utilize a storage unit until she could find another
apartment. (Id. at ¶ 29).
meantime, Plaintiff contacted the Environmental Protection
Agency (“EPA”) through a hotline and was
allegedly informed that Bentz's actions were in violation
of federal environmental laws. (Id. at ¶¶
24-25, 27). The EPA investigated and issued a Notice of
Noncompliance finding that Gary Bentz had violated the
disclosure requirements of the Residential Lead-Based Paint
Hazard Reduction Act by failing to inform tenants of the
possibility of lead-based paint in the apartment, as is
required for any residential unit built prior to 1978.
(Docket No. 291-2).
initiated the instant action on August 22, 2013. (Docket No.
1). She filed an Amended Complaint on September 4, 2013
(Docket No. 3) and a Second Amended Complaint on October 23,
2013. (Docket No. 11). In addition to her common law claims
against the Bentz Defendants, Plaintiff asserted several
federal claims against the EPA and EPA Agent Annie Hoyt.
(Id.). On June 3, 2014, the Court dismissed the EPA
and Hoyt from this action with prejudice. (Docket No. 63).
September 23, 2014, Plaintiff filed a Motion to Amend
Complaint, seeking to add several new common law and federal
claims against the Bentz Defendants. (Docket No. 96). The
Court granted the motion on November 20, 2014, granting
Plaintiff leave to add claims based on the Residential
Lead-Paint Hazard Reduction Act, the Toxic Substances Control
Act, and common law claims of private nuisance, breach of
contract, and breach of the implied warranty of habitability.
(Docket No. 111).
filed her Third Amended Complaint on December 11, 2014.
(Docket No. 113). Following a period of discovery, Defendants
filed a Motion for Judgment on the Pleadings. (Docket No.
156). On September 1, 2015, the Court granted the motion in
part and dismissed Plaintiff's claim based on the Toxic
Substances Control Act (Count IV). The remaining claims form
the basis for the instant Motions for Summary Judgment.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Pursuant to Rule 56, the Court must enter
summary judgment against the party “who fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A motion for
summary judgment will only be denied when there is a genuine
issue of material fact, i.e., if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d
Cir. 2005). The mere existence of some disputed facts is
insufficient to defeat a motion for summary judgment.
Anderson v. Liberty Lobby, 477 U.S. 242, 247-48
(1986). As to materiality, “only disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S. at 248.
determining whether the dispute is genuine, the court's
function is not to weigh the evidence, to determine the truth
of the matter, or to evaluate credibility. The court is only
to determine whether the evidence of record is such that a
reasonable jury could return a verdict for the non-moving
party. McGreevy, 413 F.3d at 363; Simpson v. Kay
Jewelers, 142 F.3d 639, 643 n.3 (3d Cir. 1998) (quoting
Fuentes v. Perski, 32 F.3d 759, 762 n.1 (3d Cir.
1994)). In evaluating the evidence, the court must interpret
the facts in the light most favorable to the non-moving
party, and draw all reasonable inferences in its favor.
Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir.
their summary judgment motion, Defendants Gary and Connie
Bentz contend that each of Plaintiff's allegations must
be dismissed because she has failed to support any of her
allegations by producing required expert reports. Each of her
claims will be discussed in turn.
Negligence (Count I)
order to prevail on a claim for negligence in Pennsylvania,
Plaintiff must establish the following elements: (1) a duty
or obligation recognized by the law, requiring the actor to
conform to a certain standard of conduct; (2) a failure to
conform to the standard required; (3) a causal connection
between the conduct and the resulting injury; and (4) actual
loss or damage resulting to the interests of another.
Lichtenstein v. Kidder, Peabody & Co., 840
F.Supp. 374; 386 (W.D. Pa. 1993); Morena v. South Hills
Health Sys., 462 A.2d 680, 684 n. 5 (Pa. 1983).
Defendants contend that Plaintiff cannot satisfy either the
third or fourth elements of her negligence claim.
toxic tort cases, a plaintiff must demonstrate that the
substance at issue “is capable of causing the alleged
harm (general causation) and that the substance actually
caused the injury suffered by the plaintiff (specific
causation).” Leake v. U.S., 843 F.Supp.2d 554,
559 (E.D. Pa. 2011); In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 752 (3d Cir. 1994) (plaintiff must
show “that they were exposed to the chemicals . . .,
that these chemicals can cause the type of harm they
suffered, and that the chemicals in fact did cause them
harm.”). This is typically accomplished by introducing
expert testimony and scientific evidence. Heller v. Shaw
Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999) (holding
that the testimony of expert witnesses was required to
demonstrate both that the level of a harmful chemical in
plaintiff's home was higher than normal and that exposure
to that chemical made him sick); Allen v. Pa. Engineering
Corp., 102 F.3d 194, 199 (5th Cir. 1996)
(“Scientific knowledge of the harmful level of exposure
to a chemical, plus knowledge that the plaintiff was exposed
to such quantities, are minimal facts necessary to sustain
the plaintiffs' burden in a toxic tort case.”);
In re Dobrowsky, 735 F.2d 90, 93 (3d Cir. 1984)
(expert testimony is required where the injury and the cause
are not “obvious, natural, or probable”).
concedes that, for various reasons, she has been unable to
engage an expert witness to testify on her behalf. Docket No.
287 at 2-4. Instead, she contends that she can proceed to
trial by introducing her own testimony about her injuries and
Plaintiff is fully capable of testifying about the injuries
named, and pictures, videos, factual data, medical records
and the like are in abundance and within the scope of common
knowledge of a laymen like her or a jury.
Id. at 1.
also contends that the link between the substances in her
apartment and her allergies is common knowledge that lies
within the scope of any layperson:
Plaintiff [does] not need an expert to tell her that she did
or did not have an allergic reaction to the dust [Gary Bentz]
and his helper caused to be air borne and then swept into
[an] air vent. It is within common knowledge that
Plaintiff knows what she is allergic to and her medical