Bartholomee v. Casey

• Decision Date: 01 September 1994
• Docket Number: No. 39,39
• Citation: 651 A.2d 908,103 Md.App. 34
• Parties: Wayne BARTHOLOMEE, et al. v. Tina CASEY, et al. ,
• Court: Court of Special Appeals of Maryland

Page 34

103 Md.App. 34

651 A.2d 908

Wayne BARTHOLOMEE, et al. v. Tina CASEY, et al.

No. 39, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Dec. 28, 1994.

Reconsideration Denied Feb. 13, 1995.

Howard J. Schulman, Baltimore, for appellant Grossman.

Scott E. Nevin (Saul E. Kerpelman, on the brief), Baltimore, for appellees.

Argued before BISHOP, FISCHER and HOLLANDER, JJ.

HOLLANDER, Judge.

In this lead paint case, appellants, Wayne Bartholomee and the personal representative of the estate of Vivian Grossman, appeal from a judgment entered in the Circuit Court for Baltimore City in favor of appellees, Tina Casey, a minor, and Michelle Robinson McDaniel, her mother and next friend. Appellees claim that Casey suffered lead poisoning from her exposure to lead-based paint at one or more residences, and that appellants, who were owners/landlords of these residences, were negligent in failing to abate the hazard. ¹ After a five day trial, the jury determined that appellants were negligent and awarded damages in the amount of $225,000.

On appeal, Bartholomee and Grossman contend that the trial court erred in several respects regarding evidentiary matters and pretrial procedure, and in its denial of their motions for judgment notwithstanding the verdict. ² In light of Richwind Joint Venture 4 v. Brunson, 335 Md. 661, 645 A.2d 1147 (1994) and Scroggins v. Dahne, 335 Md. 688, 645 A.2d 1160 (1994), we shall reverse as to Bartholomee, and reverse and remand as to Grossman.

Factual Background

In order to apply properly the legal principles that govern this case, we shall review, in the light most favorable to McDaniel and Casey, the evidence adduced at trial. Franklin v. Gupta, 81 Md.App. 345, 354, 567 A.2d 524 (1990). Additional facts pertinent to the legal issues will be addressed as necessary in our discussion of the law.

Casey was born on June 24, 1980. At that time, McDaniel had been living with Barney Casey, Tina's father, for several months at Barney Casey's apartment. The residence, located at 726 North Carrollton Street in Baltimore City (the "Carrollton Property"), was a one-bedroom apartment on the second floor of a rowhouse that had been divided into several apartments. During Casey's first months of life, the adjacent building, 724 North Carrollton Street, was undergoing demolition and construction. Casey spent almost all her time inside the Carrollton Property, except when McDaniel took Casey to play in a park across the street, which McDaniel did as often as three times a week.

In June, 1980, Bartholomee purchased the Carrollton Property. Prior to the purchase, Bartholomee inspected the entire building with the seller; Bartholomee felt that the paint, while not fresh, did not need a new coat. He was, however, aware that Baltimore City ordinances required rental dwellings to be free of flaking, chipping, and peeling paint.

McDaniel never met Bartholomee, as Barney Casey handled all matters requiring the attention of the landlord, including complaints. Barney Casey did not testify at trial. McDaniel believed, however, that Barney Casey had complained to the landlord about the condition of the paint, although she was not present when he made his complaints. ³ Bartholomee testified that he never knew that anyone other than Barney Casey was living in the apartment. He also claimed that no one ever complained to him of flaking, chipping, or peeling paint.

Bartholomee testified that he did not know whether the paint in the Carrollton Property contained lead, and he was not aware, at the relevant time, of the dangers of lead-based paint. The appellees did not present evidence that the paint in the Carrollton Property had been tested for lead content. It is undisputed that Bartholomee never received notice from the City that the Carrollton Property contained lead paint.

Between the time Bartholomee purchased the Carrollton Property and the time McDaniel and Casey moved out, Bartholomee never entered their apartment. Nor did Bartholomee or anyone else inspect the apartment or repair any chipping paint. Bartholomee ultimately sold the Carrollton Property in November, 1991.

Some time around Casey's first birthday (i.e., June 26, 1981), McDaniel and Casey moved into a house rented by Melvin and Gloria Wilson, Casey's maternal grandmother and step-grandfather, located at 1951 West Fayette Street in Baltimore City (the "Fayette Property"). ⁴ Grossman owned the Fayette Property from before 1980 until December 12, 1981. The Wilsons rented the house in 1980--well before McDaniel and Casey moved in--and they continued to rent until they purchased it in 1987.

Before renting, the Wilsons visited the premises and met Grossman there. As Grossman showed the house to the Wilsons, the Wilsons noted that it needed painting; the walls had chips, marks, and scratches. Accordingly, Grossman offered the Wilsons a reduction of the first month's rent if they would paint the apartment, and the Wilsons agreed. Prior to moving in, the Wilsons' friends helped them paint the interior of the entire house. When they were finished, the Wilsons did not see any flaking, chipping, or peeling paint anywhere in the house. Grossman never returned to inspect the quality of the Wilson's painting.

When McDaniel and Casey moved into the Fayette Property, McDaniel noticed flaking paint around the kitchen sink and windows, falling plaster on the stairway leading up to the second floor, and peeling paint on the exterior of the house. During the first months at the Wilsons' home, Casey did not go to day care or sleep in another home. When she could, she played outside the front of the house.

The first sign of lead poisoning occurred in April, 1981. A finger-stick test, performed at the Provident Druid Children and Youth Center ("Provident"), indicated that Casey had a lead level of 34 micrograms per deciliter of whole blood ("Sg/dl"). At the time, a level of 30 Sg/dl was considered the upper limit of normal. As finger-stick tests were often inaccurate, ⁵ no one took immediate action. On August 7, 1981, when a more accurate venous sample indicated a lead level of 44 Sg/dl, Provident reported Casey's elevated blood levels to the Baltimore City Health Department. However, when the Health Department sent a health inspector to the Fayette Property on August 24 and 27, 1991, Ms. Wilson refused to let the inspector enter the home.

On September 3, 1981, Casey received another finger-stick test, which indicated a lead level of 38 Sg/dl. ⁶ On September 15, 1981, after the Health Department threatened to have Casey removed from the home, the Wilsons allowed a health inspector to inspect the Fayette Property. On September 23, 1981, the Health Department sent Grossman notice that the Fayette Property contained lead. Specifically, the notice stated that lead was present in the paint on various surfaces, both inside and outside the house. Of the 28 places listed, the notice indicated that only the paint on the front exterior of the house was flaking. The notice ordered Grossman to abate the lead hazard.

By October 15, 1981, Grossman had removed all the paint up to the four-foot level by burning and scraping the paint, as she had been directed to do by the Health Department. Grossman never repainted the house. On October 28, 1981, the Health Department reinspected the property and noted that all affected areas were then in compliance with Health Department directives. Additionally, in December, 1981, a venous blood test showed Casey's lead level at 30 Sg/dl. On December 16, 1981, Grossman sold the Fayette Property.

Later, on May 17, 1982, the Health Department visually inspected the Fayette Property, and did not discover any new hazards. Nevertheless, six venous blood tests taken between July 6, 1982 and January 19, 1983 indicated that Casey had lead levels between 39 Sg/dl and 48 Sg/dl. On August 8, 1982, Provident referred Casey to the Kennedy Institute ("Kennedy") ⁷ for further testing and treatment. Finally, in January, 1983, McDaniel and Casey moved out of the Fayette Property and into their own apartment at 2207 Booth Street. Casey continued to receive treatment for lead poisoning at Kennedy through June 6, 1989.

Procedural History

On February 14, 1989, Casey and McDaniel filed suit in the Circuit Court for Baltimore City against Bartholomee, Grossman, and the owners/landlords of 2207 Booth Street. After protracted discovery, the case was set for trial on April 6, 1993. On March 5, 1993, Grossman filed a motion for summary judgment, ⁸ to which Casey and McDaniel responded on March 19, 1993. Grossman, in turn, filed a reply on March 24, 1993. On April 2, 1993, four years after the complaint had been filed and four days before the trial was to begin, Casey and McDaniel filed a "Supplemental Answer to Defendant's Motion for Summary Judgment," which included affidavits by Melvin and Gloria Wilson. In the affidavits, the Wilsons averred that, when they moved into the Fayette Property in 1980, Grossman knew that the exterior and portions of the interior had peeling paint, that Grossman had been notified of lead paint in the premises in September, 1981, and that the flaking and chipping paint persisted in the house even after Grossman's attempted abatement.

On April 5, 1993, at the hearing on Grossman's motion for summary judgment, Grossman orally moved to strike the affidavits as conclusory, untimely, and in direct contradiction to the witnesses' earlier deposition testimony and to plaintiffs' answers to Grossman's interrogatories. Grossman also made a motion in limine to exclude any testimony as to the exterior of the Fayette Property. Grossman requested either the total exclusion of the testimony as to the exterior of the property or a postponement of the trial in order for Grossman to conduct additional discovery. The judge granted the motion to strike, denied the motion in limine, and deferred ruling on the motion for summary judgment...