Brown v. Wheeler

• Decision Date: 01 September 1995
• Docket Number: No. 1301,1301
• Parties: Octavia BROWN, a Minor, et al. v. Carel WHEELER, et al. ,
• Court: Court of Special Appeals of Maryland

Page 710

109 Md.App. 710

675 A.2d 1032

Octavia BROWN, a Minor, et al. v. Carel WHEELER, et al.

No. 1301, Sept. Term, 1995.

Court of Special Appeals of Maryland.

May 6, 1996.

Saul E. Kerpelman, Baltimore, for appellants.

Sandra B. Minton (Robert K. Nead and Nead, Hoffman & Karey, on the brief), Baltimore, for appellees.

Argued before BISHOP, HOLLANDER and EYLER, JJ.

EYLER, Judge.

Suit was filed by appellants, Octavia Brown and her mother, Latina Williamson, against appellees, Carel and Luella Wheeler, the owners of a rental dwelling, seeking damages for injuries caused by exposure to lead paint. The questions presented, as paraphrased, are:

1. Did the trial court err in denying appellants' motion to enter upon property owned by the appellees to conduct an inspection to determine the presence of lead paint?

2. Did the trial court err in granting summary judgment in favor of appellees, based on insufficient evidence to show the presence of lead paint in appellees' dwelling and insufficient evidence of injury related to the premises?

We answer the second question in the negative and, consequently, have no need to address the first question.

I.

The complaint was filed on January 25, 1994, and contained counts asserting negligence, strict liability, and violation of the Consumer Protection Act. Appellants sought compensatory and punitive damages. On April 5, 1994, the trial court granted summary judgment in favor of appellees with respect to the mother's claim for loss of her daughter's services, the claim based on strict liability, and the claim for punitive damages. On June 1, 1995, appellants filed a Motion to Enter Land, seeking inspection of property owned by appellees to determine the presence of lead paint. The motion was denied on June 20, 1995. On June 14, 1995, appellees filed a motion for summary judgment with respect to the remaining claims. That motion was granted on July 13, 1995.

II.

Octavia Brown was born on September 7, 1983. From January 1985 to January 1987, she lived with her grandmother at 2031 East Oliver Street, a rental dwelling owned by appellees. Brown was diagnosed with an elevated blood lead level on March 13, 1986. Brown's grandmother testified at her deposition that she noticed paint chipping from the front and back doors and in the bedroom, living room, and kitchen window sills at the time Brown resided there. She further testified that she pointed out the condition to appellee, Carel Wheeler, when he collected rent. Appellant, Latina Williamson, testified at her deposition that she saw her daughter put paint chips in her mouth when her daughter was approximately 16 to 17 months old and while residing in the house in question. Appellants had an inspection performed of the exterior of appellees' dwelling in 1995 that revealed the presence of lead on the sash and sill of an exterior cellar window and first floor window and transom. Lead was not detected on the exterior door and door frame. There was no inspection of the interior of the premises to determine the presence of lead.

III.

Appellants' Motion to Enter Upon Land was based upon an alleged need to prove that appellees' dwelling contained lead-based paint. Appellees, in their response to that motion, asserted that appellees had no prior notice that lead existed on the property and that a current inspection could only show that at some point in history lead paint was or was not applied to the property. Appellees pointed out that the alleged injury occurred over ten years prior to the filing of the Motion and that, since that time, the property had been occupied by other tenants. The plaintiffs' Motion was denied by the trial court on June 20, 1995, but the reason or reasons for the denial are not reflected in the record. On June 14, 1995, appellees filed a Motion for Summary Judgment with respect to the remaining claims, premised on the assertion that (1) there was no evidence that appellees received notice of the existence of lead on the premises in question during plaintiff's tenancy, and (2) that appellees have no liability for injuries that may have been sustained by appellants. In the memorandum in support of the motion, appellees argued that they could not be held liable absent some evidence of knowledge of a hazard and opportunity to correct it. They asserted that there was no evidence that they knew or had reason to know of the existence of lead paint in the dwelling, that it was in a deteriorated condition, or that they knew of the danger of lead poisoning. Appellees submitted an affidavit in support of their Motion for Summary Judgment, which provided as follows:

We are the owners of the property known as 2031 East Oliver Street. We lived with the family on that property in the 1960s. The family moved from 2031 East Oliver Street to a new home address and began to rent the East Oliver Street property to tenants about twenty (20) years ago. It is believed that the property known as 2031 East Oliver Street was rented to Barbara Williamson (Brown's grandmother) from approximately March 1, 1985 to October 1986. During the Williamson tenancy we received no notice from anyone of chipping and peeling paint. Prior to the new tenants moving in, I Carel Wheeler would repair and re-paint paint the property as needed. At no time have we ever been notified of the presence of lead on the premises. We are unaware of any inspection of the premises for the existence of lead.

We have only one rental property. We have no other experience with renting and/or managing rental properties. We are unfamiliar with the Baltimore City Code. We have no knowledge of how exposure to lead may effect [sic] children.

Appellants, in their Answer to Appellees' Motion for Summary Judgment, asserted that appellant Latina Williamson and appellant Octavia Brown's grandmother testified that there was chipping and peeling paint at various areas inside of the dwelling and that this condition was pointed out to the defendant Carel Wheeler. Appellants also relied on evidence that an inspection of the exterior of the house in 1995 showed the presence of lead. Appellants requested a continuance of the hearing on the Motion for Summary Judgment in order to allow for a ruling on the plaintiff's Motion to Enter Upon Land and to conduct an inspection for the presence of lead-based paint. As is apparent from the dates set forth previously, the Motion seeking an inspection was denied prior to the hearing on the Motion for Summary Judgment.

Finally, in the response to the Motion for Summary Judgment, appellants asserted that every landlord had reason to know of the dangers of lead paint and the likelihood of its presence in an older home by 1986. Appellants traced the development of knowledge of the hazard presented by exposure to lead-based paint in literature, in newspapers (including the News American and the Baltimore Sun ), and in action taken by the State and Federal governments. In addition to excerpts from the deposition of appellant Latina Williamson, appellant Brown's grandmother, and appellee Carel Wheeler, plaintiffs attached a document entitled, "Lead Poisoning Timeline," identifying publications, governmental actions, and/or events allegedly relevant to the development of knowledge of lead poisoning from 1904 through 1986. Many of the documentary items referred to in that list were attached as exhibits. With respect to appellees, appellants pointed out that appellee Carel Wheeler testified at his deposition that he received daily delivery of the News American newspaper during the 40's, 50's and 60's. He further testified that, when the News American went out of business, he converted his subscription to the Baltimore Sun. Finally, he testified that he read the newspaper daily and watched news on television at least once a day. It was appellants' position that, by the time of the alleged exposure in this case, landlords generally had knowledge of the hazards of lead-based paint to children.

The record contains a transcript of the hearing on appellees' Motion for Summary Judgment. The parties argued sufficiency of the evidence relating to the presence of lead paint and the knowledge of appellees. The trial court granted the Motion with respect to the Consumer Protection Act count, on the ground that appellants were not a party to the lease and appellant Brown was not living at the dwelling in question at the beginning of the tenancy and granted the Motion with respect to both the Consumer Protection Act count and the negligence count because "there's been no proof that the cause of injury is lead paint...."

On appeal before this Court, appellants, as they did before the trial court, rely on evidence of the following: that the family noticed chipping and peeling paint and advised appellees; that Brown was seen eating a paint chip a month or two after moving into the premises; that Brown was later tested and found to have an elevated blood-lead level; that an inspection of the premises showed lead paint on the exterior of the premises in 1995; that the use of lead paint has been banned since 1971; and that appellees introduced no evidence indicating that lead-based paint was applied to the house at any time after it was vacated by the appellants. Appellants concede that there is no evidence that appellees had actual knowledge of (1) the presence of lead based paint in the premises in question, (2) the hazard of exposure of children to lead based paint, and (3) its presence in older houses. Appellants rely on the argument that landlords generally had notice of its presence in older homes and the potential danger to children by the time of the exposure in this case.

Appellees assert that the appeal was taken only on behalf of appellant Brown and not by appellant Williamson; that the appeal was taken only with respect to the judgment entered on the negligence count and not from the judgment entered on the strict liability and Consumer...