142 A.3d 616 (Md.App. 2016), 164-2015, Rogers v. Home Equity USA, Inc.

Docket Nº:164-2015
Citation:142 A.3d 616, 228 Md.App. 620
Opinion Judge:Graeff, J.
Party Name:TERRENCE ROGERS v. HOME EQUITY USA, INC
Attorney:For Appellant: Robert J. Leonard, Scott E. Nevin (Law Office of Peter T. Nicholl, Suzanne C. Shapiro all on the brief) all of Baltimore, MD. For Appellee: Ava E. Lias-Booker (Craig R. Haughton, McGuire Woods LLP of Baltimore, MD, Patrick M. Meacham, Justin T. Yedor, McGuire Woods LLP of Raleigh, ...
Judge Panel:Wright, Graeff, Eyler, James R. (Retired, Specially Assigned), JJ.
Case Date:July 26, 2016
Court:Court of Special Appeals of Maryland
 
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Page 616

142 A.3d 616 (Md.App. 2016)

228 Md.App. 620

TERRENCE ROGERS

v.

HOME EQUITY USA, INC

No. 164-2015

Court of Special Appeals of Maryland

July 26, 2016

          JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

          For Appellant: Robert J. Leonard, Scott E. Nevin (Law Office of Peter T. Nicholl, Suzanne C. Shapiro all on the brief) all of Baltimore, MD.

         For Appellee: Ava E. Lias-Booker (Craig R. Haughton, McGuire Woods LLP of Baltimore, MD, Patrick M. Meacham, Justin T. Yedor, McGuire Woods LLP of Raleigh, NC) all on the brief.

          Wright, Graeff, Eyler, James R. (Retired, Specially Assigned), JJ.

          OPINION

Page 617

          [228 Md.App. 622] Graeff, J.

         This appeal arises out of a complaint filed by Terrence Rogers, appellant, alleging that he suffered damages from exposure to lead while living at 3738 Towanda Avenue, in Baltimore, Maryland (the " Towanda Property" ). In this Court, he challenges the order of the Circuit Court for Baltimore City granting summary judgment in favor of the owner of the Property, Home Equity USA, Inc. (" Home Equity" ), appellee, on the ground that Mr. Rogers did not have sufficient evidence to demonstrate that the Towanda Property was the source of his lead exposure and elevated lead levels in 1997.

Page 618

          [228 Md.App. 623] On appeal, Mr. Rogers presents one question for our review, which we have rephrased slightly, as follows: Did the circuit court err in granting Home Equity's Motion for Summary Judgment on the ground that Mr. Rogers failed to establish that the Towanda Property contained lead-based paint, and therefore, he failed to meet his burden to show that the Property was a substantial factor in causing his injuries?

         For the reasons set forth below, we shall affirm the judgment of the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Rogers was born on February 28, 1994. From his birth until March 1998, when he moved to New York with his mother, Toni Rogers-Coy, Mr. Rogers lived in numerous locations in Baltimore, often staying at each location for very brief periods of time.1

         For the first " couple months" after Mr. Rogers was born, he lived at 2328 Nevada Street in Baltimore. Later in 1994, after temporarily residing at various other locations, Mr. Rogers moved to 6149 Chinquapin Parkway in Baltimore (" 6149 Chinquapin" ), where he lived until approximately October 1996.2 [228 Md.App. 624] For at least the first year of his residence at 6149 Chinquapin, the windows, doors, and radiators were in poor condition, with " broken pieces of paint."

         Following his residence at 6149 Chinquapin, Mr. Rogers moved to the Towanda Property, which was built in 1920. He lived at that residence for approximately six months.

         With respect to the presence of lead in the Towanda Property, Mr. Rogers admitted evidence that, in 1976, 20 years prior to his residency, the Baltimore City Health Department (" BCHD" ) required a lead abatement of the Towanda Property (the " 1976 Abatement" ) after an inspection and analysis showed that certain areas tested positive for lead in paint-chip sampling, and eight areas of flaking paint were in need of corrective action. In October 1976, the BCHD issued an abatement card, indicating that abatement work had been completed.

         Subsequently, additional improvements were made to the property. In 1979, the Baltimore City Department of Housing

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and Community Development (" DHCD" ) issued a building permit for a new gas boiler. In 1983, the DHCD issued a rehab permit, which involved roofing, carpentry, plumbing repairs, and painting. In February 1994, DHCD issued a permit for $19,000 worth of rehabilitation work, which included re-stuccoing the home and repairing the rear decks.

         Ms. Rogers-Coy moved to the Towanda Property when " [s]omeone told [her] about it," and she paid rent to another tenant who was " just trying to help [her] out until [she] got where [she] was trying to go." Because she was not a party to the lease, she had no evidence of chipping, flaking, or peeling paint at the inception of the lease. She did not know [228 Md.App. 625] if the tenant owned the property, and she paid him " what [she] could." In her deposition, Ms. Rogers-Coy described the windows in the Towanda Property as having " really bad" chipping and flaking paint, and she stated that they " were actually more flaky than Chinquapin was." Ms. Rogers-Coy testified in her deposition that she left the Towanda Property between March and April 1997, after residing there for approximately six months. At that point, she and Mr. Rogers moved to 2534 Loyola Northway.

         Mr. Rogers was tested for elevated lead levels on multiple occasions. His medical records show the following results, which the parties do not dispute:

Date Blood Lead Level
3 Address 6/29/95 7 µ g/dL 6149 Chinquapin 3/25/96 14 µ g/dL 6149 Chinquapin 1/8/97 21 µ g/dL 3738 Towanda 3/26/97 20-21 µ g/dL 3738 Towanda 4/30/97 17-18 µ g/dL 2534 Loyola Northway 8/22/97 13 µ g/dL Foster care/ 2534 Loyola Northway          Following his test on January 8, 1997, Mr. Rogers was referred to the Community Health Nurse for evaluation. On March 17, 1997, a caseworker from the Lead Paint Poisoning Prevention Program met with Ms. Rogers-Coy at the Towanda Property. The caseworker noted that the house was " in very [] dilapidated condition." Mr. Rogers, who was three years old at the time, was observed " mouthing the window sills in the house." The property had flaking paint " inside and outside," but Mr. Rogers was " listed as playing indoors and not outdoors."          As a result of Mr. Rogers' increased blood lead level test on January 8, 1997, he was referred to the Kennedy Krieger Institute Lead Poisoning Prevention Clinic. On March 26, 1997, Ms. Rogers-Coy took Mr. Rogers to Kennedy Krieger, and his blood lead level tested 20, 21 µ g/dL. Ms. Rogers-Coy reported at that time that Mr. Rogers was at the Towanda [228 Md.App. 626] Property " [a]ll the time," and there was interior flaking paint on the ceiling, walls, window frame, windowsills, window wells, and woodwork. She reported exterior flaking paint on the front porch and window frames. There were no replacement windows. During a follow-up appointment on April 30, 1997, while Mr. Rogers was living at 2534 Loyola Northway, his blood lead levels were 17, 18 µ g/dL.          On May 29, 2013, Mr. Rogers filed a complaint in the Circuit Court for Baltimore City against Home Equity and the Page 620 owners of 6149 Chinquapin, asserting claims of negligence and unfair trade practices relating to his alleged exposure to lead: (1) between 1994 and 1996 at 6149 Chinquapin, and (2) between 1996 and 1997 at the Towanda Property, which was owned by Home Equity. He alleged that, at all times during his tenancies, the properties contained lead-based paint in such a deteriorated condition that it was peeling, chipping, and flaking from the walls, baseboards, windowsills, and other areas of the premises, and that Home Equity and the owners of 6149 Chinquapin knew or had reason to know of the hazardous conditions. He alleged that, as a consequence of his exposure to lead-based paint, Mr. Rogers " suffered permanent brain damage resulting in developmental and behavioral injuries." 4          On February 12, 2014, Home Equity answered the complaint, and discovery commenced. Dr. Robert Simon, a Ph.D. with ETI Environmental Laboratory (" ETI" ), provided a report including the following conclusions: It was my conclusion, to a...

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