Barksdale v. Wilkowsky

• Decision Date: 23 May 2011
• Docket Number: Sept. Term,No. 66,2010.,66
• Citation: 419 Md. 649,20 A.3d 765
• Parties: Janay BARKSDALEv.Leon WILKOWSKY, et al.
• Court: Maryland Court of Appeals

419 Md. 649

20 A.3d 765

Janay BARKSDALE

v.Leon WILKOWSKY, et al.

No. 66

Sept. Term

2010.

Court of Appeals of Maryland.

May 23, 2011.

David F. Albright, Jr. (Bennett & Albright, P.A., Baltimore, MD), on brief, for Respondents.Frank F. Daily (Lisa M. Morgan and Sean P. Edwards of The Law Offices of Frank F. Daily, P.A., Hunt Valley, MD), on brief, for Respondents.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.ADKINS, J.

In this lead paint case, we revisit the standard for determining “harmless error” in a civil case involving a faulty jury instruction. The Petitioner, Janay Barksdale, sued the owners of her childhood home (the “Owners”), alleging injuries from lead paint on the premises. At trial, the Owners questioned Barksdale's grandmother whether she had ever notified them of flaking and peeling paint in Barksdale's home. The Owners then requested a jury instruction indicating that a person's failure to report flaking paint to the landlord is evidence of negligence. The trial court gave the instruction, even though the grandmother's negligence was not attributable to Barksdale, and Barksdale herself was too young to have any duty to report. The jury issued a verdict in favor of the Owners.

On appeal, the Court of Special Appeals upheld the jury verdict. It held that the jury instruction was erroneous, but also harmless. Barksdale sought review from this Court on a number of issues. We granted certiorari to review the following questions, all involving the issue of “harmless error” from an erroneous jury instruction:

1) Whether the Court of Special Appeals correctly interpreted [and applied ¹ ] the harmless error standard for a substantive jury instruction as enunciated by the Court of Appeals?

2) Whether the Court of Special Appeals' interpretation of the harmless error standard for a substantive jury instruction is incorrect for a statutorily protected class such as lead poisoned children?

3) Whether the Court of Special Appeals' interpretation and application of the harmless error standard for a substantive jury instruction is constitutional?

We shall hold that the inclusion of the erroneous jury instruction was not harmless error, and reverse the judgment of the Court of Special Appeals.

FACTS AND LEGAL PROCEEDINGS

Janay Barksdale lived with her grandmother at 2440 West Baltimore Street (the “Property”) for eleven years, from her birth in 1988 until her grandmother moved in 1999. Later, as a teenager, Barksdale was diagnosed with “mild mental retardation,” with a low IQ score and impaired senses. These impairments have limited her ability to read, her verbal language abilities, and her mathematical reasoning. Barksdale attended school through the sixth grade, later working briefly at a fast food restaurant. She has expressed an interest in becoming a medical assistant, security guard, or computer technician. According to expert testimony, however, it would be extremely difficult for Barksdale to “obtain and maintain competitive employment” due to these impairments.

Seeking redress for these injuries, Barksdale initiated the current suit, naming the Owners as defendants.² Barksdale alleged that, during her residence in the Property, she was exposed to chipping and peeling lead paint that caused her permanent mental injury. She alleged that the Owners never inspected the property or notified their tenants of the potential dangers of lead-based paint. Barksdale introduced medical records demonstrating that she had elevated blood levels as a child, and expert testimony linking those blood levels to her current impairments.

Yet, Barksdale was able to present only limited evidence of lead paint in the Property. After she and her grandmother moved out of the house, the Property sat vacant, until being purchased and “gut rehab[bed]” by a new owner in 2005. This owner replaced all interior walls and old window frames, and did not test for lead paint. Thus, there was no scientific record of the paint that existed during Barksdale's residency. Instead, Barksdale commissioned a test of the property on August 8, 2008, which revealed lead-based paint at one location—the staircase newel post. Barksdale relied on this test, her observations of chipping and flaking paint, and her elevated blood lead levels to claim that the source of her exposure to lead was the Property.

The Owners contested this allegation on a number of levels. They introduced evidence of Barksdale's mother's behavior during pregnancy, which included drinking and smoking. They also called an expert witness who testified that Barksdale's impairments were likely caused by something other than lead paint poisoning. They argued that Barksdale's lead levels were close to the average lead level in children during the 1970's.³ They introduced an expert witness who testified that Barksdale could find employment, and who reported that Barksdale herself stated that she left her previous job to take care of her children, and that she “didn't see herself as working” in her adult life.

Furthermore, over the objection of Barksdale, the Owners implicitly introduced the issue of whether Barksdale's grandmother was somehow at fault. Although the Owners did not explicitly argue that Barksdale's grandmother was contributorily negligent or a superseding cause, the Owners questioned Barksdale's grandmother as to whether she had ever reported the chipping and flaking paint to them. She admitted that she had not done so. At the close of the trial, the Owners requested the jury instruction at issue in this appeal, relating to a tenant's obligation, under Baltimore City Housing Code Article 13, Section 902, to report certain conditions to the landlord. The trial court included the instruction in the middle of its longer instruction regarding the Baltimore City Housing code, stating as follows:

The violation of a statute which is a cause of [Barksdale's] injuries or damages is evidence of negligence. The Baltimore City Housing Code states as follows; Section 103; purpose. The purpose of this code is to prevent all conditions in and about dwellings which are now or which may in the future become so unsafe, dangerous, unhygienic or insanitary as to constitute a menace to the health and safety of the people.

Section 702; good repair and safe conditions. Every building and all parts thereof used or occupied as a dwelling shall be kept in good repair in safe condition. Section 703; standards for good repair and safe condition. Good repair and safe condition shall include, but is not limited to the following standards; interior walls and floors shall be maintained free of loose materials.

Section 706; painting. All interior loose or peeling wall covering or paint shall be removed and the exposed surface shall be placed in a smooth and sanitary condition. Section 1001; prohibited occupancies. No owner shall lease or permit the subletting to another for occupancy and vacant or vacated dwelling or dwelling unit which does not comply with the provision of this code.

Section 902A; every occupant of a dwelling or a dwelling unit shall keep in a clean and sanitary condition that part of the dwelling unit and the premises thereof which he occupies and controls. A clean and sanitary condition [ ] shall include, but is not limited to the following standards; walls and windows.

The Baltimore City Code of public local laws provides as follows ... in any written or oral lease or agreement for rental of a dwelling intended for human habitation, the landlord shall be deemed to covenant and warrant that a dwelling is fit for human habitation.

The Baltimore City Housing Code places a continuous duty on the landlord to maintain the property and keep it free of chipping, peeling and flaking paint at all times. It is not a violation of the law for lead paint to be present in a property. You are instructed that as a matter of law there is no evidence that the house where [Barksdale] lived was painted with lead-based paint by the Defendants.

(Emphasis added).

On appeal, the Court of Special Appeals held that the facts of this case did not justify the instruction:

Here, the requested instruction regarding the occupant's duties to maintain the Property in a clean and sanitary condition, the obligation pursuant to § 902A, was not relevant to the issues before the jury, i.e., whether the landlord was negligent or engaged in deceptive trade practices in renting the Property. Whether Ms. Barksdale's grandmother kept the Property clean had no bearing on the jury's assessment of those issues.

In Bartholomee v. Casey, 103 Md.App. 34, 66, 651 A.2d 908 (1994), cert. denied, 338 Md. 557, 659 A.2d 1293 (1995), a lead paint case, this Court stated that it “would have been error for the trial court to instruct the jury to find in favor of [the defendants] based on the parents' actions.” The Court explained that “[t]he law in Maryland is clear that the negligent acts of a parent cannot be imputed to the minor child, and that negligent acts of the parent that merely contribute to the injury do not necessarily rise to the level of superseding causation.” Id. n. 16 (citing Caroline v. Reicher, 269 Md. 125, 304 A.2d 831 (1973)).

There was no argument here that the grandmother's actions or inactions were a superseding cause of Ms. Barksdale's injuries. Accordingly, the instruction regarding § 902 was irrelevant under the facts of this case, and the court erred in instructing the jury on § 902 of the Housing Code.

Barksdale v. Wilkowsky, 192 Md.App. 366, 384–85, 994 A.2d 996, 1007 (2010).⁴

Recognizing the second step of an error analysis, the intermediate appellate court examined whether the error was harmless, by considering whether “the error was likely to have affected the verdict below”:

Ms. Barksdale has not met her burden of showing prejudice. The court's instructions made clear that the relevant issue for the jury was the conduct of appellees, not...