Green v. N.B.S.
| Citation | 952 A.2d 364,180 Md. App. 639 |
| Decision Date | 02 July 2008 |
| Docket Number | No. 1258, September Term, 2007.,1258, September Term, 2007. |
| Parties | Kelly GREEN, a Minor, etc., et al., v. N.B.S., INC., et al. |
| Court | Court of Special Appeals of Maryland |
Brian S. Brown (Saul E. Kerpelman & Associates, PA on the brief), Baltimore, for appellant.
Elaine R. Wilford (Ralph E. Wilson, Rollins, Smalkin, Richards & Mackie on the brief), Baltimore, for appellee.
Argued before SALMON, JAMES R. EYLER and ROBERT L. KARWACKI (Ret., Specially Assigned), JJ.
Although there are two other matters presented, the most important issue raised in this appeal is whether the Maryland statute, which sets a cap on recovery for non-economic damages, applies to all actions for wrongful death and personal injury or only to causes of action for wrongful death and personal injury based on conduct that constituted a tort at common law. We shall hold that the statutory cap as set forth in Md.Code. (2006 Repl.Vol.), Cts. & Jud. Proc. Art., sections 11-108 and 11-109 applies to all actions for personal injury and wrongful death, including actions based on statutory or constitutional violations.
Kelly Green ("Kelly"), a minor, by her mother and next friend, Celestine Green, ("Ms.Green") appeals a decision that was later reflected in an order to apply Maryland's statutory cap on non-economic damages to a jury verdict entered against Stanley Rochkind, N.B.S., Inc., Charles Runkles and Dear Management, Inc. (collectively "appellees"). The verdict was entered in a lawsuit Ms. Green filed against appellees for injuries Kelly suffered due to her exposure to lead-based paint while living at 1547 Montpelier Street in Baltimore, Maryland. Appellees' conduct in failing to maintain the property resulted in their being found liable for common law negligence as well as for violations of Maryland's Consumer Protection Act ("CPA"). See Md.Code., (1975, 2005 Repl.Vol.), §§ 13-101 et seq. of the Commercial Law Article. Over Ms. Green's objection, the verdict was reduced from $2,300,000 to $515,000.
Ms. Green gave birth to Kelly on January 16, 1995. Ms. Green had been living at 1547 Montpelier Street for approximately eight months prior to Kelly's birth. When Ms. Green moved into the house there was chipping paint around the window frames in the bedrooms as well as around several doorways within the home. Paint would fall to the floor whenever Ms. Green lifted the windows or closed the doors.
Kelly was diagnosed with having an elevated lead level in November 1995, when she was ten months old. After appellees were informed of Kelly's condition, appellees' agents failed to scrape off all the lead based paint and instead painted over some of it. Due to the condition of the house and Kelly's diagnosis, Ms. Green and Kelly moved to another location in November 1997.
Ms. Green, as Kelly's next friend, brought suit against the appellees in the summer of 2002. The complaint alleged that appellees were negligent in their ownership and/or management of 1547 Montpelier Street and, due to their negligence, Kelly was exposed to chipping, flaking and peeling lead-based paint. The complaint also alleged that appellees violated the CPA because,
by marketing, and otherwise making available to the public for lease ... [they] impliedly represented that the [Montpelier home] was in compliance with the [Baltimore] Housing Code and other Public Local Laws of Baltimore City and statutes of the state of Maryland and of the United States and thus was fit for human habitation and contained no flaking, loose or peeling paint or plaster, or lead based paint accessible to children.
According to the complaint, appellees "knew the dwelling was not fit for human habitation and contained flaking, loose or peeling paint or plaster or lead-based paint accessible to children."
A jury trial commenced on March 19, 2007. Dr. John F. Rosen was called as an expert witness by appellant. He established that the Center for Disease Control ("CDC") considers a child with blood levels of 10 or more micrograms per deciliter ("mg/dl") of lead to be lead poisoned. In Dr. Rosen's opinion, however, a child may lose IQ points even if that child has a blood lead level of less than 7.5 mg/dl.
Kelly's blood was tested seven times for the presence of lead. Those tests yielded the following results:
Date Lead Level
11/15/1995 9 mg/dl
04/10/1996 8 mg/dl
09/26/1996 20 mg/dl
12/02/1996 15 mg/dl
12/1996 12 mg/dl
01/01/1997 8 mg/dl
09/13/1997 8 mg/dl
Based upon Kelly's blood level values and upon peer review literature, Dr. Rosen opined that her exposure to lead caused Kelly to lose 10 IQ points.1
At the close of the entire case, the court granted judgment in favor of Kelly's mother and against the appellees as to liability based on common law negligence and violation of the CPA. The only issues submitted to the jury were (1) whether Kelly suffered any injury due to appellees' wrongful conduct and, (2) if so, the amount of non-economic damages she suffered.
After the court, sua sponte, reduced the $2,300,000 verdict to $515,000, appellant filed a Motion for Reconsideration and/or Motion to Alter or Amend Judgment arguing that the statutory cap was not applicable to the CPA claim and, alternatively, even if the cap was applicable to all claims, the appropriate cap should have been $530,000. Both motions were denied.
Appellant argues that the damages cap only applies to common law tort actions. This is important, appellant maintains, because an action brought by a plaintiff seeking damages for personal injury as a result of a violation of the CPA is not a common law tort action.
Section 11-108 of the Cts. & Jud. Proc. Art., provides, insofar as here pertinent:
(a)(1) In this section the following words have the meanings indicated.
(2)(i) "Noneconomic damages" means:
1. In an action for personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury; and
2. In an action for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education, or other noneconomic damages authorized under Title 3, Subtitle 9 of this article.
* * *
(b)(1) In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed $350,000.
(2)(i) Except as provided in paragraph (3)(ii) of this subsection, in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000.
(ii) The limitation on noneconomic damages provided under subparagraph (i) of this paragraph shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive.
(3)(i) The limitation established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim.
(ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award.
(Emphasis added.)
In support of her argument appellant stresses that section 11-10 8(b)(3)(i) uses the term "victim of tortious conduct." She also emphasizes that a claim under the CPA is statutorily created. This, of course, is true. Appellant then argues:
As can be seen from the plain language of Section 3(i), in order for the Cap to apply two conditions precedent must be satisfied: First, there must be a "personal injury action" and second, there must be a victim of "tortious" conduct. Appellant does not dispute that this case is a "personal injury action." However, not all personal injury actions are based on a defendant's "tortious" conduct. Sometimes, as in this case, personal injury actions are based upon statutory causes of action. Because a cause of action based on the CPA is a statutory cause of action and not a tort, the Cap does not apply and the trial court erred when it reduced the jury's award.
(Emphasis supplied in original.)
Section 11-108 does not define the words "tortious conduct" and there are no reported cases from either this Court or the Court of Appeals where the interpretation of those words, as used in the cap statute, were already at issue.2 We shall, therefore, begin by examining the dictionary definition of the words in controversy. See Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 447, 697 A.2d 455 (1997) () (internal citations and quotation marks omitted). "Tortious" is defined as "[c]onstituting a tort; wrongful." Blacks Law Dictionary 1497 (7th ed.1999). A "tort" is defined as "[a] civil wrong for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on everyone in the same relation to one another as those involved in a given transaction." Id. at 1496, 697 A.2d 455. Therefore, the term "tort" as defined by Blacks encompasses all "civil wrongs," not just wrongs that were recognized as a civil wrong at common law.
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