Brown v. Dermer

Decision Date01 September 1997
Docket NumberNo. 1009,1009
Citation120 Md.App. 339,707 A.2d 407
PartiesClayton BROWN, a minor, etc. et al. v. Frank DERMER, et al. ,
CourtCourt of Special Appeals of Maryland

Alan J. Mensh (Saul E. Kerpelman, on the brief), Baltimore, for Appellants.

William C. Parler, Jr., (Jennifer S. Cavey and Parler & Wobber, L.L.P., on the brief), Towson, for Appellees.

Argued before EYLER and THIEME, JJ., and MARSHALL A. LEVIN, Judge (retired), Specially Assigned.

EYLER, Judge.

The minor appellants, Clayton and Crystal Brown, by their mother and next friend, Janet Brown, filed suit against Frank and Harold Dermer t/a HF & S Partnership, appellees, seeking damages for lead paint poisoning based on negligence. On appeal, appellants challenge an order of the Circuit Court for Baltimore City granting appellees' motion for summary judgment. Finding no error, we affirm.

FACTUAL BACKGROUND

Clayton and Crystal Brown (born 01/22/84), periodically resided at the house located at 4112 Hayward Avenue (the premises). 1 In 1985, the minor appellants were diagnosed with elevated blood-lead levels--Crystal was diagnosed in July and Clayton in September. Both minor appellants required treatment for this condition.

The house located at 4112 Hayward Avenue was approximately seventy-five (75) years old, and there was evidence that, in the time period 1983-85, it contained paint in a deteriorated condition. 2 Christopher Brown rented the house from appellees, Frank and Harold Dermer, 3 trading as HF & S Partnership. At the time appellees purchased the house in July, 1981, Mr. Brown was an existing tenant who, in exchange for reduced rent, completed many of the necessary repairs. Appellees are electricians and plumbers by trade. They purchased their first rental property in 1968 and owned eight rental properties in 1986.

In 1986, the Baltimore City Health Department (BCHD) issued a violation notice to appellees regarding the presence of deteriorated lead paint on the premises. The BCHD notice to remove the lead paint was issued on 1/17/86 and expired on 1/23/86. Appellees completed the necessary repairs by 4/10/86.

PROCEDURAL HISTORY

On December 1, 1994, appellants filed their initial complaint in the Circuit Court for Baltimore City. Appellees filed a motion to dismiss, which was granted. Following a reconsideration hearing on June 7, 1995, appellants were granted leave to amend their complaint. On June 22, 1995, appellants filed an amended complaint sounding in four counts of negligence. Appellees filed an answer on July 14, 1995, and the parties then engaged in discovery. On October 9, 1996, appellees filed a motion for summary judgment. Appellants responded to the motion for summary judgment on October 25 and, after deposing Frank Dermer, filed a supplemental response on November 15. Appellees withdrew their motion for summary judgment but, on February 21, 1997, filed another motion for summary judgment. On April 9, 1997, the trial court held a hearing on the motion and, on May 20, 1997, entered an order granting appellees' motion. The basis of the ruling was that there was no evidence from which a jury could infer that appellees had knowledge of the presence of lead paint on the premises prior to service of the 1/17/86 notice upon appellees. This appeal followed.

QUESTION PRESENTED

Appellants present the following question for our review, slightly rephrased by us for clarity:

Do factual issues exist which demonstrate that appellees knew or had reason to know of hazardous lead paint on the premises prior to appellants sustaining injuries from that condition?

STANDARD OF REVIEW

Summary judgment is proper if "there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Maryland Rule 2-501(e). "In determining whether a party is entitled to judgment under this rule, the court must view the facts, including all inferences, in the light most favorable to the opposing party." Brown v. Wheeler, 109 Md.App. 710, 717, 675 A.2d 1032 (1996) (quoting Baltimore Gas & Electric Co. v. Lane, 338 Md. 34, 43, 656 A.2d 307 (1995)). The trial court decides issues of law and does not resolve disputed issues of fact. DeBusk v. Johns Hopkins Hospital, 105 Md.App. 96, 102, 658 A.2d 1147 (1995). Upon review of summary judgment matters, an appellate court determines whether the trial court was legally correct. Id.

DISCUSSION

On appeal, appellants contend that the trial court erred in granting appellees' motion for summary judgment. Specifically, they contend that factual issues exist from which a jury could reasonably infer that appellees had knowledge of deteriorated lead paint on the premises, and that the condition posed a hazard. Appellees contend that, prior to the BCHD notice, they (1) had no knowledge of the hazard of lead-based paint, (2) were unaware that flaking and chipping paint in older houses could pose a danger to children, (3) had never before received a lead paint violation notice or had a lead paint suit filed against them, and (4) were unaware that the premises at 4112 Hayward Avenue contained lead paint in a deteriorated condition. We agree with the trial court and, consequently, affirm the judgment entered by it.

Generally, a plaintiff in a lead paint poisoning case must present admissible evidence that, if believed by a fact finder, would prove that the landlord (1) had actual knowledge or reason to know of chipping, peeling, or flaking lead paint on the premises, (2) realized or should have realized that such a condition was hazardous, and (3) upon being given a reasonable opportunity to correct the condition, failed to do so. Richwind Joint Venture 4 v. Brunson, 335 Md. 661, 673-76, 645 A.2d 1147 (1994); Bartholomee v. Casey, 103 Md.App. 34, 53, 651 A.2d 908 (1994). Thus, "[k]nowledge of a hazard ... requires general knowledge that deteriorated lead paint is dangerous and specific knowledge that lead-based paint existed on the premises in question and that it was in a deteriorated condition." Brown v. Wheeler, 109 Md.App. 710, 718, 675 A.2d 1032 (1996) (emphasis added).

As indicated by Richwind, section 358 of the Restatement (Second) of Torts is instructive on the issue now before us. 4 In pertinent part, this section provides as follows:

(1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if

(a) the lessee does not know or have reason to know of the condition or the risk involved, and

(b) the lessor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to expect that the lessee will not discover the condition or realize the risk (emphasis added).

In this case, there is sufficient evidence from which a jury could infer that lead paint existed on the premises in 1984-85--when appellants' exposure to lead occurred. There is evidence that no paint was added to the premises between January, 1984 and January, 1986. The presence of lead paint was confirmed by the BCHD notice in January, 1986, and consequently, a jury could infer that lead paint existed on the premises in 1984-85.

Similarly, there is sufficient evidence from which a jury could infer that deteriorated paint existed on the premises in 1984-85 and that appellees had knowledge or reason to know of that condition prior to January, 1986. Janet Brown testified in her deposition that she complained about the peeling paint to appellees one month prior to giving birth to the minor appellants. In addition, Frank Dermer testified that between 1981 and 1986 he periodically inspected the premises and made any necessary repairs. Frank Dermer also testified that, three to four months before the violation notice was issued, he entered the premises to repair a faucet. Consequently, a jury could infer that appellees knew or had reason to know of the presence of deteriorated paint.

There is no evidence, however, to show that appellees knew or had reason to know that the deteriorated paint contained lead. First, there is no direct evidence that appellees had knowledge of the presence of lead. Appellant must, therefore, rely on circumstantial evidence as the basis from which to infer knowledge or reason to know. The only evidence in that regard is that appellees knew that the building on the premises was approximately 75 years old. This evidence, standing alone, is insufficient. For this reason, we hold that appellants failed to meet the Restatement test, as adopted by the Court of Appeals in Richwind, and affirm the judgment of the trial court.

Appellants rely on evidence 5 that knowledge of the hazard presented by lead paint was so widespread by the 1980s that appellants should be charged with knowledge (1) of the existence of lead paint on the premises and (2) of its potential danger. Appellants point to the "cautionary note" sounded in Brown, 109 Md.App. at 721, 675 A.2d 1032 6 and argue that appellees are sufficiently sophisticated to charge them with such knowledge. Appellants, however, confuse "reason to know" with "should know" and fail to appreciate the limited applicability of the "cautionary note."

According to Restatement (Second) Torts § 358, a plaintiff, in order to prevail, must first meet a "reason to know" test. Under the "reason to know" prong, a plaintiff must set forth facts that establish that the landlord knew or had reason to know that (1) there was deteriorated paint on the suspect premises, and (2) that the deteriorated paint contained lead. Restatement § 358(1)(b) ("knows or has reason to know of the condition") (emphasis added). The...

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4 cases
  • Brown v. Dermer
    • United States
    • Maryland Court of Appeals
    • January 14, 2000
    ...in the leased premises. The Court of Special Appeals affirmed the trial court's grant of summary judgment. Brown v. Dermer, 120 Md.App. 339, 345, 707 A.2d 407, 411 (1998). We disagree and, therefore, shall I. The minor petitioners, Clayton and Crystal Brown, twins, born in January 1984, per......
  • ANTWAUN A. v. Heritage Mut. Ins. Co.
    • United States
    • Wisconsin Supreme Court
    • July 9, 1999
    ...poisoning diagnosed in 1966); Montgomery, 174 So. 2d at 239-40 (lead poisoning occurred in the early 1960s); but see Brown v. Dermer, 707 A.2d 407, 408 (Md. App. 1998) (lead poisoning diagnosed in ¶ 21. Some of the more recent applications of this rule are based on binding precedent stretch......
  • Lomax v. Warden, Maryland Correctional Training Center
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1997
  • Brown v. Dermer
    • United States
    • Maryland Court of Appeals
    • September 1, 1998

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