Barksdale v. Wilkowsky

• Decision Date: 07 May 2010
• Docket Number: No. 48 Sept.Term,2009.,48 Sept.Term
• Parties: Janay BARKSDALEv.Leon WILKOWSKY et al.
• Court: Court of Special Appeals of Maryland

192 Md.App. 366

994 A.2d 996

Janay BARKSDALEv.Leon WILKOWSKY et al.

No. 48 Sept.Term, 2009.

Court of Special Appeals of Maryland.

May 7, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David F. Albright (Peter G. Byrnes, Bennett & Albright, PA, on the brief), Baltimore, MD, for Appellant.

Frank F. Daily (Lisa M. Morgan, Sean P. Edwards, on the brief), Hunt Valley, MD, for Appellees.

Panel: DEBORAH S. EYLER, GRAEFF and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

GRAEFF, Judge.

This appeal arises from a lawsuit filed by appellant, Janay Barksdale, against appellees, G & S Real Estate and its two partners, Stewart Sachs and Ronald Greenwald, in which she alleged that she suffered “severe and permanent brain damage” as a result of exposure to lead-based paint in a rental property owned by appellees.¹ Following a five-day trial in the Circuit Court for Baltimore City, the jury returned a verdict in appellees' favor on all counts.

Ms. Barksdale presented eleven issues for our review, which we have consolidated and rephrased as follows:

1. Did the circuit court err in its instructions to the jury by: (a) instructing about the occupant's duties regarding a dwelling unit; and (b) declining to instruct regarding the portion of the Baltimore City Housing Code that bans the use of lead-based paint?

2. Did the circuit court err in its evidentiary rulings by: (a) admitting evidence of the average blood lead level in the United States in the 1970s; (b) allowing testimony that there was not any lead paint violations on the Property in 2005; and (c) admitting evidence that Ms. Barksdale's mother smoked cigarettes and drank alcohol during her pregnancy?

3. Did the circuit court err by allowing appellees' counsel to tell the jury that he used to be a resident of, and grew up in, Baltimore City?

4. Did the circuit court err in allowing appellees' counsel to argue that the use of affidavits is unethical?

5. Did the circuit court err in denying Ms. Barksdale's motion for judgment and her motion for judgment notwithstanding the verdict?

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

FACTUAL AND PROCEDURAL BACKGROUND

Ms. Barksdale lived with her grandmother at 2440 West Baltimore Street in Baltimore, Maryland (the “Property”) from her birth in 1988 until her grandmother vacated the Property in 1999. G & S Real Estate owned the Property, and neither G & S Real Estate nor its partners inspected the Property during the time that Ms. Barksdale resided there.

In 2005, Eduardo Tarver purchased the Property. At that time, the house was “boarded up.” Mr. Tarver performed a “[t]otal gut rehab” of the Property, removing all of the interior walls, door jambs, and old window frames.

On November 21, 2006, Ms. Barksdale filed a complaint against appellees in the Circuit Court for Baltimore City. Count I alleged that, as a result of appellees' negligence in failing to maintain and inspect the Property and abate any lead paint hazard, Ms. Barksdale “suffered severe and permanent brain damage” as a result of exposure to lead-based paint. Count II alleged that appellees violated the Maryland Consumer Protection Act by marketing and leasing the Property when appellees “knew that the dwelling ... contained flaking, loose or peeling paint or plaster or lead[-]based paint accessible to children.” Ms. Barksdale requested two million dollars in damages on each count.

On October 20, 2008, appellees filed a Motion for Summary Judgment. With respect to the negligence claim, appellees argued that there was no “admissible evidence that [the Property] contained any loose, flaking or peeling lead-based paint on the newel post of the stair case,” and therefore, there was no evidence that appellees “breached any duty.” ² They further argued that Ms. Barksdale had not “provided a report from a medical expert linking the alleged exposure to lead paint at [the Property] with the Plaintiff's alleged injuries.” With respect to the Consumer Protection Act claim, appellees argued that Ms. Barksdale did not have standing to assert a claim under the Consumer Protection Act because “she was not alive at the time [her grandmother] entered into the lease for tenancy at the Property.”

On November 12, 2008, Ms. Barksdale filed a Memorandum in Opposition to Motion for Summary Judgment. Ms. Barksdale argued that summary judgment was not proper because “lead[-]based paint was present on interior surfaces of [the Property] besides the newel post when [she] resided there,” and the Property “was a substantial factor in causing the injuries.” With respect to the claim under the Consumer Protection Act, Ms. Barksdale argued that, “[e]ven though Janay was not born at the time of the inception of the lease, under the statute Janay was still a ‘consumer,’ because she was a prospective ... recipient of consumer realty.” The circuit court denied appellees' motion for summary judgment.

Trial commenced on January 26, 2009. Ms. Barksdale, age 20, took the stand. She testified that she lived at the Property until she was 11 years old, and there was “[c]hipped, peeling paint” on the “windowsills in the hallway” and on the walls. Ms. Barksdale stated that the landlord did not do anything about the chipped and peeling paint until two weeks before she moved out.

Ms. Barksdale attended school through the sixth grade. After she left school, she worked at a fast-food restaurant for one month. Ms. Barksdale testified that she currently was raising her three children, but she was interested in becoming a medical assistant, a security guard, or “work on computers.”

Emma Oliver, Ms. Barksdale's grandmother, testified that she lived at the Property for 15 years. Ms. Barksdale lived with Ms. Oliver from the time she was born until they moved out of the house. When Ms. Oliver first moved into the Property, there was paint “chipping in the windowsills and in the kitchen.” Ms. Oliver testified that the landlord did not do anything about the chipped paint, and the landlord did not advise her of the dangers of lead paint. The landlord never inspected the Property while she lived there, and he did not fix the problem until immediately before she vacated the Property. Ms. Oliver acknowledged, however, that she did not report any maintenance problems or request that any work be performed on the Property. Ms. Barksdale did not have contact with any other sources of lead, including lead figures, naval paint, bolts, fishing weights, ceramic pottery, or folk medicine. Ms. Oliver acknowledged that Ms. Barksdale's mother smoked cigarettes and drank alcohol during her pregnancy.

Mr. Tarver testified that he purchased the Property in 2005, and he performed a “[t]otal gut rehab” of the Property. This entailed removing all of the interior walls, door jambs, and window frames, except for the upstairs windows, which were new. Mr. Tarver did not test for lead before undertaking these renovations. There were no outstanding housing or lead paint violations on the Property at the time he purchased it.

Ralph Shannon Cavalier, an expert in lead paint testing and assessment, testified that he was the President of an environmental consulting firm that conducts environmental tests, including testing for lead paint. An inspector from his company located lead-based paint on the staircase newel post. He testified that the “negative readings in a house of this date of construction” could be explained “by the fact that Mr. Tarver did the gut rehab in 2005.” Mr. Cavalier stated that, in his opinion, “there was lead[-]based paint on the interior of the property ... besides the [newel] post during the time period of 1988 to 1994,” explaining that it was “very uncommon” for “a property of this age ... to have one positive component ... unless there's been a major renovation.” He admitted, however, that he had never visited the Property. He further acknowledged that the positive test for lead paint on the newel post “could come from any layer of paint,” noting that it could be the base layer with 12 to 15 coats of paint on top.

Dr. Barry Hurwitz, an expert in neuropsychology, testified regarding his examination and testing of Ms. Barksdale. He determined that her intelligence quotient (“IQ”) was 55, which fell in the “extremely low range,” a range “that we used to refer to as mild mental retardation.” He explained that an IQ score of 90-109 is “average,” and Ms. Barksdale's IQ score was lower than 99 percent of the population. Ms. Barksdale's scores on a “visual attention” test, an “auditory attention” test, and a “tactile sensation” test fell into the “impaired range.” She “showed impairments on a wide variety of abilities compared to people who are of average level functioning.” Dr. Hurwitz further testified that Ms. Barksdale was limited in her ability to read, her verbal language abilities, and her mathematical reasoning. He was not asked to determine however, whether Ms. Barksdale's impairments were the result of exposure to lead paint. He acknowledged that “there are lots of reasons why the brain can be impaired.”

Dr. Aaron Zuckerberg, a pediatrician and an expert in childhood lead paint poisoning, testified that “the interior painted surfaces of 2440 West Baltimore Street” were “the significant contributing factor in the lead paint exposure and lead paint poisoning that Janay experience[d] from birth to 1994.” He reached this conclusion based on the following factors: (1) the age of the property; (2) “there was chipping, peeling, and flaking paint at the property when they lived there”; (3) Ms. Barksdale's documented high blood lead levels; and (4) testing of the Property revealed lead paint.³

Dr. Zuckerberg testified that children's blood lead levels typically peak “between a year and a half and three years of age and then continually decline.” He opined that it was “very likely that Janay's blood lead level peaked in the normal peak time,” suggesting that Ms....