Mitchell v. Hous. Auth. of Baltimore City.
| Decision Date | 13 September 2011 |
| Docket Number | 2009.,Sept. Term,No. 2293,2293 |
| Parties | Kevin Antoine MITCHELLv.HOUSING AUTHORITY OF BALTIMORE CITY. |
| Court | Court of Special Appeals of Maryland |
OPINION TEXT STARTS HERE
Peter G. Byrnes (David F. Albright, Jr., Bennett & Albright PA, on the brief) Baltimore, MD, for Appellant.J. Marks Moore, III, Baltimore, MD, for Appellee.Panel: KRAUSER, C.J., DEBORAH S. EYLER, and JAMES P. SALMON (Retired, Specially Assigned), JJ.EYLER, DEBORAH S., J.
In the Circuit Court for Baltimore City, Kevin Antoine Mitchell, the appellant, sued the Housing Authority of Baltimore City (“HABC”), the appellee, for damages for injuries he allegedly sustained due to childhood lead paint poisoning. The HABC moved for summary judgment on the ground that neither Mitchell nor a representative had satisfied the notice requirements of the Local Government Tort Claims Act (“LGTCA”), Md.Code (2006 Repl.Vol., 2010 Supp.), § 5–301 et seq. of the Courts and Judicial Proceedings Article (“CJP”), as set forth in CJP section 5–304. The circuit court granted the motion and entered judgment in the HABC's favor.
Before this Court, Mitchell challenges the judgment, posing three questions for review, which we have rephrased:
I. Did the circuit court err in granting summary judgment because, under Brooks v. HABC, 411 Md. 603 (2009), recon. denied, January 8, 2010, the notice provision of the LGTCA no longer applies to claims against the HABC?
II. If the LGTCA notice provision applies to the HABC, did the circuit court err “by failing to exercise its discretion when it did not consider facts which could constitute good cause for failure to comply with the Local Government Tort Claims Act as set forth in Rios v. Montgomery County, 386 Md. 104, 872 A.2d 1 (2005)”?
III. Did the circuit court err in rejecting Mitchell's argument that the HABC waived its defense under the LGTCA?
For the following reasons, we shall affirm the circuit court's judgment.
Mitchell was born on August 18, 1987. From birth until sometime in 1990, he lived with Lovie Torain, his mother, and with his grandmother at 1011 Valley Street, in Baltimore City, in premises owned by the HABC. He alleges that, during that time, he was exposed to chipping, peeling, and flaking lead-based paint and, as a result, he suffers the effects of lead paint poisoning. 1
On April 3, 1989, when he was less than two years old, Mitchell had his first recorded elevated blood-lead level.2 He consistently tested positive for lead exposure from that point forward.
On April 3, 2008, exactly 19 years after the first test result showed he had been exposed to lead, Mitchell filed suit against the HABC for negligence and violation of the Maryland Consumer Protection Act. On April 25, 2008, the HABC answered the complaint, raising as one defense among several that Mitchell had not complied with the notice provision of the LGTCA, codified at CJP section 5–304. Discovery commenced and continued for the next 16 months.
On September 8, 2009, the HABC filed a motion for summary judgment on the ground that Mitchell had not satisfied the LGTCA notice provision. Attached to its motion were Mitchell's answers to interrogatories; Torain's deposition transcript; an affidavit by William M. Peach, III, the Director of Housing Management Administration for the HABC; and Mitchell's blood lead level records.
In his affidavit, Peach averred that the HABC first received notice of Mitchell's claim of lead paint exposure when it was served with the complaint in the instant action. Peach also averred that, due to the passage of time, the HABC no longer had a tenant folder for Mitchell's family or any records related to the 1011 Valley Street premises for the relevant time period; and the personnel working for the HABC between 1987 and 1990 no longer were employed by it. Peach attested that the HABC “has been substantially prejudiced in its ability to defend this case, because [Mitchell] failed to notify it of his claims until April of 2008.”
Mitchell filed an opposition to the HABC's motion arguing, inter alia, that he was excused from compliance with the LGTCA under the good cause exception in CJP section 5–304(d), and that the HABC should be barred from raising the LGTCA notice defense because it waited 17 months to move for summary judgment on that basis. In support of his good cause argument, Mitchell submitted three affidavits. Dr. Aaron Zuckerberg, a pediatrician, attested that Mitchell suffers from “neuropsychological injury” and has an IQ in the “Low Average range.” Mitchell and Torain both attested in separate affidavits that they had only just become aware during the pendency of the instant case of “the ‘notice requirement’ for the [LGTCA].”
On October 26, 2009, the circuit court heard argument on the HABC's summary judgment motion. At the conclusion of argument, the judge ruled that she was “going to grant the motion ... because ... the claim is barred by the [LGTCA].” An order to that effect was entered that day. Mitchell noted a timely appeal.
We shall include additional facts in our discussion of the issues.
Mitchell contends the Court of Appeals decision in Brooks, 411 Md. at 603, 984 A.2d 836, filed a little less than a month after summary judgment was granted in the instant case, “abrogate[d] [the HABC]'s protections [u]nder the [LGTCA] for its management and operation of public housing.” He argues that the Brooks holding makes plain that the LGTCA has no application to his tort action against the HABC; therefore, he was not obligated to comply with the LGTCA's notice provision. The HABC responds that Brooks “did not involve the LGTCA at all, much less the [s]ection 5–304 notice requirement” and therefore its holding did not effect any change in the protections the HABC is afforded under the LGTCA.
We note that the HABC does not argue that the question of the effect of the Brooks decision on the applicability of the LGTCA was not raised below, and therefore is not properly before this Court for review. Of course, that precise question could not have been raised below, as Brooks had not been decided. Nevertheless, in the hearing on the HABC's motion for summary judgment, counsel for Mitchell argued generally that the LGTCA should not apply to premises liability lead paint cases against the HABC. The court rejected that argument, stating that, if that were to be the case, it would be the function of the Court of Appeals, not the circuit court, to so hold. Thus, the court below addressed the general question whether the LGTCA applied to the case at bar, even though Brooks had yet to be decided. We consider the issue to be preserved for review under Rule 8–131(a).
The common law doctrine of sovereign immunity from suit applies to the State, including its agencies and instrumentalities. Katz v. Washington Suburban Sanitary Comm'n, 284 Md. 503, 507–08, 397 A.2d 1027 (1979). “Although originally based on the tenet that ‘the King can do no wrong,’ the doctrine is presently viewed as a rule of policy which protects the State from burdensome interference with its governmental functions and preserves its control over State agencies and funds.” Id. at 507, 397 A.2d 1027. The doctrine applies “unless the General Assembly has waived the immunity either directly or by necessary implication.” Id. at 507–08, 397 A.2d 1027. However, “a legislative waiver of sovereign immunity is ineffective unless specific legislative authority to sue the agency has been given, and unless there are funds available for the satisfaction of the judgment, or power reposed in [an] agency for the raising of funds necessary to satisfy recovery against it.” Id. at 513, 397 A.2d 1027.
Unlike the State, local governments ( i.e., counties, municipalities, and their agencies) do not have from their inception broad common law immunity from suit. Indeed, “[u]ntil the twentieth century, local governments generally had no immunity under Maryland common law in either tort or contract actions.” HABC v. Bennett, 359 Md. 356, 358, 754 A.2d 367 (2000). At that time, the Court of Appeals adopted as the common law of Maryland partial immunity from liability in tort for local governments, based upon the nature of the conduct at issue. Austin v. City of Baltimore, 286 Md. 51, 53, 405 A.2d 255 (1979). Specifically, the Court held that when local governments are engaged in activities that are “governmental” in nature, they are immune from tort liability based on those activities. When local governments are engaged in activities that are “proprietary” or “private” in nature, they do not enjoy immunity from tort liability based on those activities. Bennett, supra, 359 Md. at 359, 754 A.2d 367. Irrespective of the nature of the conduct in which local governments are engaged, they have no judicially-conferred or common law immunity from liability for certain types of torts, such as nuisance, or for state or federal constitutional torts or torts based on federal statutory violations. Id.3
On September 1, 1937, Congress enacted the United States Housing Act (“Housing Act”), establishing a federal housing program for the purpose of clearing slums and replacing them with low income public housing projects. Act of 1937, ch. 896, 50 Stat. 888 () Even before the Housing Act was passed, it was understood that, when enacted, it would provide funding for states that established their own conforming housing laws. In anticipation of the Housing Act, the Maryland General Assembly, by chapters 517 and 518 of the Acts of 1937, enacted a housing law that established a state-wide policy for public housing and provided that...
To continue reading
Request your trial
- Johnson v. Balt. Police Dep't
- Zilichikhis v. Montgomery Cnty.
-
De Espina v. Prince George's Cnty.
... ... , Karpinski, Colaresi & Karp, PA, on the brief) Baltimore, MD, for appellee. Panel: KEHOE, BERGER, IRMA S. RAKER ... of local governments in several ways.” Mitchell v. Housing Authority of Baltimore City, 200 Md.App. 176, ... ...
- Sager v. Hous. Comm'n of Anne Arundel Cnty.