Brooks v. Lewin Realty

• Citation: 835 A.2d 616,378 Md. 70
• Decision Date: 13 November 2003
• Docket Number: No. 60,60
• Parties: Sean BROOKS, A Minor, et al., v. LEWIN REALTY III, INC.
• Court: Court of Appeals of Maryland

835 A.2d 616

378 Md. 70

Sean BROOKS, A Minor, et al., v. LEWIN REALTY III, INC.

No. 60, Sept. Term, 2001.

Court of Appeals of Maryland.

November 13, 2003.

Harvey S. Wasserman (Saul E. Kerpelman, on brief), of Baltimore, for petitioners.

Saul E. Kerpelman (Saul E. Kerpelman & Associates, P.A., on brief), of Baltimore, for petitioners.

Frank F. Daily (Cynthia Dietz Spirt of Law Offices of Frank F. Daily, P.A., on brief), of Hunt Valley, for respondents.

Frank F. Daily, (Cynthia Dietz Spirt of the Law Offices of Frank F. Daily, P.A., on brief), of Hunt Valley, for respondents

Argued and Reargued before BELL, C.J. ELDRIDGE RAKER WILNER CATHELL HARRELL BATTAGLIA, JJ.

ELDRIDGE, Judge.

We granted a petition for a writ of certiorari in this case to clarify the notice requirement in lead paint poisoning negligence actions based upon violations of the Baltimore City Housing Code. We shall hold that, in the context of a tort action against a Baltimore City landlord, based upon a child's consumption of lead-based paint which was present in the form of flaking, loose, or peeling paint in the leased premises, in violation of the Housing Code, the plaintiff does not have to show that the landlord had notice of the violation to establish a prima facie case. To the extent that our opinions in Richwind v. Brunson, 335 Md. 661, 645 A.2d 1147 (1994), and its progeny, are inconsistent with this holding, those opinions are modified or overruled.

I.

The following facts were set forth in the Court of Special Appeals' opinion, Lewin Realty III, Inc. v. Brooks, 138 Md.App. 244, 255-256, 771 A.2d 446, 452-453 (2001) (footnote omitted):

"In August 1988, Shirley Parker rented a house at 1202 North Patterson Park Avenue, in Baltimore City. Fresh paint was applied to the interior of the house at the beginning of the tenancy.

"Sharon Parker, Shirley Parker's daughter, moved into the North Patterson Park Avenue house (`the House') soon after her mother rented it. On December 6, 1989, Sharon gave birth to Sean, the minor appellee, who lived there too.

"Sometime in February or March 1991, when Sean was slightly more than a year old, Lewin [Realty] purchased the House at auction. Lewin is owned by four stockholders, one of whom is Marvin Sober. * * * Mr. Sober is in charge of managing the company and conducting its day to day business. Before Lewin purchased the House, Mr. Sober went on a `walk through' inspection of it. Sharon was present when the `walk through' took place, and accompanied Mr. Sober as he inspected the House. Sharon testified that at the time of the `walk through,' there was peeling, chipping, and flaking paint present in numerous areas of the interior of the House, including in Sean's bedroom.

"After Lewin purchased the House, it entered into a new lease with Shirley. It did not re-paint the interior of the House at that time.

"In February 1992, Sean was diagnosed with an elevated blood lead level. Four months later, in May 1992, a nurse from the Baltimore City Health Department (`BCHD') came to the House and spoke to Sharon about Sean's elevated blood lead level. Sharon testified that she first learned about Sean's condition at that time. That same month, the BCHD issued a lead paint violation notice for the property to Lewin. The House was inspected and found to contain 56 areas of peeling, chipping, and flaking lead paint."

Sharon Parker filed a five-count complaint individually and on behalf of her minor son, Sean, against Lewin Realty. The complaint alleged negligence with regard to Sean (count one), negligence with regard to Ms. Parker (count two), violation of the Maryland Consumer Protection Act (count three), strict liability in tort (count four), and sought punitive damages (count five). Pursuant to the respondent's motion to dismiss, the Circuit Court for Baltimore City dismissed counts four and five. The respondent then filed a motion for summary judgment as to the remaining counts in the complaint. The Circuit Court granted the motion for summary judgment with respect to the Consumer Protection Act, strict liability in tort and punitive damages, but denied the motion as to the negligence counts. Subsequently, upon the petitioner's motion, the trial court also dismissed count two of the complaint which pertained to Sharon Parker's individual claim.

The remaining negligence count was based on several grounds, including, inter alia: (a) Lewin Realty's violation of the Baltimore City Code; (b) Sean's exposure to an unreasonable risk of harm from the lead-based paint while Lewin Realty knew that its dangerous properties were not known to Sean and not discoverable in the exercise of reasonable care; (c) Lewin Realty's failure to exercise reasonable care in properly maintaining the walls, doors, and ceilings after Lewin Realty had actual and constructive knowledge of the flaking paint condition; and (d) Lewin Realty's failure to exercise reasonable care to inspect the dwelling's paint when a reasonable inspection would have revealed the flaking paint condition.

The case proceeded to trial. Before trial, Lewin Realty had moved in limine to exclude from the evidence five documents, each entitled "Emergency Violation Notice and Order to Remove Lead Nuisance." These violation notices, which were issued at various dates in the 1980's, pertained to other properties which were not involved in this case. The notices were issued by the Baltimore City Health Department to Mr. Sober and the companies with which he was associated at the time. Lewin Realty argued that the notices were not relevant, were inadmissible as "other bad acts" evidence, and were overly prejudicial. While perhaps relevant to the matter of Lewin Realty's knowledge of the health hazards of lead paint, Lewin argued that, because Mr. Sober testified to having such knowledge at the relevant time, the issue was not contested and therefore the notices were not relevant. The court denied the motion in limine, and the notices were admitted into evidence at the trial.

The jury found that Lewin Realty was liable under count one and awarded damages totaling $750,000. After the Circuit Court denied Lewin Realty's Motion for Judgment Notwithstanding the Verdict, Lewin Realty took an appeal to the Court of Special Appeals. The arguments made to the intermediate appellate court centered upon the admission of the violation notices pertaining to the unrelated properties. The Court of Special Appeals reversed and remanded the case for a new trial, holding that the admission of the notices pertaining to the unrelated properties was prejudicial error.

This Court granted the plaintiffs' petition for a writ of certiorari, Brooks v. Lewin Realty, 365 Md. 266, 778 A.2d 382 (2001). After the initial briefing and oral argument before this Court, we issued an order directing the parties to file supplemental briefs and setting the case for reargument on a matter not previously dealt with by the parties or the courts below. Our order had the effect of amending the previous order granting certiorari and adding an issue or issues to the case. See Robinson v. Bunch, 367 Md. 432, 439-441, 788 A.2d 636, 641-642 (2002),

and cases there cited; Maryland Rule 8-131(b). The order for supplemental briefs and reargument pointed out that language in Richwind v. Brunson, supra, 335 Md. at 674 675, 645 A.2d at 1153-1154, and Brown v. Dermer, 357 Md. 344, 361-362, 744 A.2d 47, 57 (2000), requires, for landlord liability in a case like the one at bar, that the plaintiff has the burden of pleading and proving that the landlord knew or had reason to know of the defective condition, i.e., the existence of flaking, loose, or peeling paint. The order also pointed out that in Richwind v. Brunson, supra, 335 Md. at 674, 645 A.2d at 1153, the Court indicated that the landlord has no "duty to periodically inspect the premises during the leased period for dangerous conditions to determine if repairs are necessary." The order requested the parties "to address whether this Court should reconsider and modify the above-[described] requirements and standards applicable in personal injury actions against landlords based on alleged lead-based paint poisoning in leased residential property." More specifically, the order directed the parties to consider the following:

"1. Whether a landlord should have a duty to inspect the premises, either at the inception of the lease or during the lease period, to determine wither there exists a flaking, loose, or peeling paint condition, or a lead-based paint condition, which should be abated;

"2. Whether plaintiffs in these types of actions should have the burden of pleading and establishing that the landlords had notice of a defective condition involving flaking, loose or peeling paint, or the presence of lead-based paint;

"3. Whether, when there is a dangerous lead-based paint condition in leased residential property, the landlord should, as a matter of law, be presumed to have notice of the dangerous condition."

Although set forth in three separate paragraphs, the above-quoted language does not present three separate and distinct issues.

II.

If this Court holds that the plaintiff, in cases such as this, need not prove that the landlord had notice of a defective condition involving flaking, loose, or peeling paint, or involving lead-based paint, and that, as a matter of law, the landlord should be presumed to have knowledge of the dangerous condition, then the violation notices which were admitted into evidence in this case would be clearly irrelevant to the issues of liability and compensatory damages. The landlord's knowledge would be a non-issue. Consequently, under this scenario, we would affirm the Court of Special Appeals' order for a new trial, although on a different ground than that relied upon by the intermediate appellate court.

Before this Court, the petitioners essentially argue that Richwind v. Brunson, supra,

"incorrectly imported the...