Brown v. Dermer

Decision Date14 January 2000
Docket NumberNo. 49,49
Citation357 Md. 344,744 A.2d 47
PartiesClayton BROWN, a Minor, et al. v. Frank DERMER, et al.
CourtMaryland Court of Appeals

William C. Parker, Jr., Jennifer Silver Cavey, Parler & Wobber, L.L.P., on brief, Towson, for respondent.

Mauricio E. Barreiro, Gregory L. Lockwood, Kathleen F. Sullivan, Baltimore, on brief of the Property Owner Ass'n of Greater Baltimore, Inc. as Amicus Curiae.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW1, RAKER, WILNER, and CATHELL JJ BELL, Chief Judge.

This is a negligence action, instituted in the Circuit Court for Baltimore City on behalf of two children, alleging lead-based paint poisoning. The issue presented to this Court is the propriety of the trial court's grant of summary judgment in favor of the respondents, Frank and Harold Dermer, trading as HF & S Partnership (hereinafter "the Dermers" or "the respondents"). More particularly, we must determine whether allegations concerning a landlord's knowledge that leased premises contain flaking, loose or peeling paint, a violation of the Baltimore City Housing Code ("housing code"), are sufficient to survive summary judgment, where the landlord denies all general knowledge of the hazards of lead-based paint and poisoning or of its presence 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 reverse.

I.

The minor petitioners, Clayton and Crystal Brown, twins, born in January 1984, periodically2 resided in a house, located at 4112 Hayward Avenue in Baltimore City and owned by the respondents. The house is a two story structure built in the early 1920's and purchased by the respondents in 1981. The petitioners' father, Christopher Brown, an existing tenant at the time of the purchase, then leased the house from the respondents.

The respondent, Frank Dermer is in business with his father, the respondent Harold Dermer. The respondents, under the name HF & S Partnership, purchased their first rental property in Baltimore City in 1968. Periodically thereafter, they invested in houses that needed restoration. The respondents also did electrical, plumbing, heating, carpentry and home improvement work for various landlords in Baltimore City.

In 1985, the petitioners were diagnosed with elevated blood-lead levels and lead poisoning. After receiving notice of the children's condition and conducting an investigation to ascertain the source of the lead poisoning, the Baltimore City Health Department (BCHD) issued a violation notice to the respondents, listing thirty (30) violations, including twelve emergency violations, regarding the presence of deteriorated lead paint at 4112 Hayward Avenue. The notice required the respondents to make certain corrections and repairs, within one week, or by January 23, 1986. The respondents did not complete the necessary repairs and corrections until April 10, 1986, more than two months later than ordered.

The Petitioners, by their mother and next friend, Janet Brown, thereafter filed suit against the respondents in the Circuit Court for Baltimore City seeking damages for lead paint poisoning, alleging their negligence.3 Janet Brown's answers to interrogatories indicated that she informed the respondents of chipping, peeling and flaking paint in the house during 1983, one month before she became pregnant with the twins, but that respondents failed to correct the condition.

The respondents denied that they were notified of chipping, flaking and peeling paint. At his deposition, the respondent Frank Dermer admitted that, at the time of the alleged lead poisoning, he was aware that Baltimore City laws and ordinances required rental properties be kept in habitable condition, that both Baltimore City ordinances and Maryland statutes banned the use of lead-based paint, and that the Baltimore City Code required the interior surfaces of rental buildings to be kept free of loose, flaking or peeling paint. In addition, he admitted that, at around the same time, he was receiving the Evening Sun newspaper, in addition to watching television and listening to radio news reports. Frank Dermer also testified at deposition that he periodically visited 4112 Hayward Avenue to do maintenance and conduct inspections. He recalled being inside 4112 Hayward Avenue approximately four to five months before the violation notice of January of 1986 was issued, but stated that he was unaware of any loose, flaking, or peeling paint anywhere in the premises.

The respondents moved for summary judgment,4 arguing 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. The petitioners filed an opposition to the motion, contending that there was sufficient evidence from which the respondents' knowledge of the hazardous lead-based paint condition existing on the premises could be inferred. They also asserted that the Dermers could not, and should not be permitted to "close their eyes" to the issue of lead paint.

The trial court granted the respondents' summary judgment motion. It determined that there was no evidence from which a jury could infer that the respondents had knowledge of the presence of lead-based paint on the premises before they were served with notice of the BCHD notice. The petitioners noted an appeal to the Court of Special Appeals. Relying on Richwind Joint Venture 4 v. Brunson, 335 Md. 661, 645 A.2d 1147 (1994) and Section 358 of the Restatement (Second) of Torts, the Court of Special Appeals affirmed the judgment of the trial court. The intermediate appellate court held that "a plaintiff must present admissible evidence to permit a jury to infer that a landlord knew or had reason to know (1) that there was deteriorated paint on the premises, and (2) that the deteriorated paint contained lead." Brown v. Dermer, 120 Md.App. at 345, 707 A.2d at 411. The Court of Special Appeals was satisfied that the record contained "sufficient evidence from which a jury could infer that lead paint existed on the premises in 1984-85—when [the petitioner's] exposure to lead occurred," id. at 346, 707 A.2d at 410, and, "sufficient evidence from which a jury could infer that deteriorated paint existed on the premises in 1984-85 and that [the respondents] had knowledge or reason to know of that condition prior to January, 1986." Id. The court concluded, however, that "there is no... evidence to show that [the respondents] knew or had reason to know that the deteriorated paint contained lead." Id.

The court also rejected the petitioners' alternative claim, that the failure of the respondents to abate the hazardous condition within a reasonable time after they received the BCHD notice exposed the petitioners to lead-based paint for an additional period and, thereby, caused the petitioners to suffer injuries. The court reasoned that there was insufficient evidence in the record to support this allegation. Id. at 349, 707 A.2d at 412. Specifically, the court concluded that the evidence on which the petitioners relied, did not support the claim factually. Id.5

We granted certiorari in this case, Brown v. Dermer, 350 Md. 279, 711 A.2d 871(1998), to determine whether the trial court correctly granted summary judgment, and to clarify the knowledge requirement in lead paint poisoning negligence actions based upon a violation of the housing code. Because we conclude that summary judgment should not have been granted, we reverse the judgment of the Court of Special Appeals and remand this case to the circuit court for further proceedings, consistent with this opinion.

II.

The petitioners contend that the trial court's grant of summary judgment was legally incorrect. Citing Richwind, supra, and § 358 of the Restatement (Second) of Torts, they argue that, where an injury is proximately related to a violation of the housing code—which, they point out, defines any flaking, loose or peeling paint as an unsafe condition, see Baltimore City Code (1983 Repl.Vol.), Art. 13 §§ 702 and 703—the plaintiff, in order to survive summary judgment, need only present evidence that the defendant had notice of the noncomplying condition and a reasonable opportunity to correct it. See Richwind, 335 Md. at 674,

645 A.2d at 1153. As they see it, because sufficient evidence was present to allow a jury to conclude that the respondent had notice of flaking, loose or peeling paint on the premises, and that the condition was the proximate cause of their injury, the trial court should not have granted summary judgment in favor of the respondents. Alternatively, the petitioners argue that, even if knowledge of chipping, peeling and flaking paint is not enough, if the law requires the landlord to know or have a reason to know of the presence of lead-based paint before liability can attach, every landlord is presumed to know of the dangers of lead-based paint in older houses. In this case, they contend, the issue of the landlord's "reason to know" of the dangers of lead-based paint in older houses and of the reasonableness of a landlord's purported lack of knowledge is for a jury to decide after considering of all of the evidence. To hold otherwise, they argue, would invite landlord perjury.

As expected, the respondents maintain that the trial court correctly granted summary judgment in its favor. They, too, rely on Richwind, supra, and § 358 of the Restatement (Second) of Torts. Before liability can attach, the respondents argue, a landlord must have notice of a defective condition and a reasonable opportunity to correct it. S...

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