Hamilton v. Kirson
| Citation | 96 A.3d 714,439 Md. 501 |
| Decision Date | 27 August 2014 |
| Docket Number | 100 Sept. Term, 2013.,Nos. 78,s. 78 |
| Parties | Christopher D. HAMILTON, et al. v. Benjamin KIRSON, et ux. Candace Renee Alston, et al. v. 2700 Virginia Avenue Associates, et al. |
| Court | Court of Appeals of Maryland |
OPINION TEXT STARTS HERE
Scott E. Nevin (George E. Swegman, Law Offices of Peter T. Nicholl, Baltimore, MD), on brief, for Petitioners in No. 78, Sept. Term, 2013.
John Amato, IV (Goodman, Meagher & Enoch, LLP, Baltimore, MD), on brief, for Petitioners in No. 78, Sept. Term, 2013.
Brian S. Brown, and Saul E. Kerpelman (Saul E. Kerpelman & Associates, P.A., Baltimore, MD), on brief, for Petitioners in No. 100, Sept. Term, 2013.
Thomas W. Hale (Michael W. Fox, Leder Law Group, PC, Baltimore, MD), on brief, for Respondents.
Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, ALAN M. WILNER (Retired, Specially Assigned), JJ.
We consolidate these two cases, Hamilton v. Kirson, No. 78, September Term, 2013, and Alston v. 2700 Virginia Avenue Associates, No. 100, September Term, 2013, for purposes of this opinion. In each case, a plaintiff or plaintiffs brought, among other claims,1 a negligence action against landlords to recover for his or her injuries resulting from lead paint poisoning.2 Neither plaintiff adduced direct evidence that the respective demised premise was a substantial contributor to the injuries or that the interiors of the homes contained lead paint, but rather relied on circumstantial evidence in an effort to satisfy the causation element of a prima facie negligence claim. After discovery was conducted, the landlords filed motions for summary judgment, which the Circuit Court for Baltimore City granted. In both cases, the trial judges reasoned that the respective plaintiffs failed to produce sufficient evidence to present a prima facie negligence case with regard to the causation element. Our review on appeal focuses on evaluating what quantum or quality of circumstantial evidence in lead paint poisoning cases is sufficient to satisfy the causation element of a prima facie negligence claim, so as to submit the case to the fact-finder.
Because the facts and issues presented in the consolidated cases differ slightly, we set forth first the background of each case. Then, we shall address collectively the shared relevant legal precedents, applying the relevant case law and legal principles to each case.
On 26 January 2010, Candace Alston filed suit in the Circuit Court for Baltimore City against 2700 Virginia Avenue Associates, Theodore Julio, Lawrence Julio, and others, alleging that the defendants acted negligently as landlords in providing premises containing chipping, peeling, and flaking lead paint in violation of the Baltimore City Housing Code (hereinafter, “Housing Code”).3 Subsequently, an Amendment by Interlineation added to the causes of action Brian Alston (Candace's sibling) and his claims. The Complaint and amendments alleged that Candace and Brian (hereinafter, collectively the “Alstons”) suffered lead-based paint poisoning, Candace while residing for consecutive periods at dwellings located at 2752 Virginia Avenue and 2810 Virginia Avenue and Brian at 2752 Virginia Avenue.
For her part, the Alstons' mother, Leslie Sidbury, could not remember the exact time periods and locations of their residences during the relevant times. The Complaint alleged that the Alstons' mother and her children resided at a number of properties between 1989 and 1995. Specifically, Candace, who was born on 27 January1989, “lived in the dwelling or frequented the dwelling as an invitee of the tenant during 1989–1995” for the following properties: (1) 3006 Woodland Avenue; (2) 3501 Oakmont Avenue; (3) 303 N. Gilmor Street; (4) 2752 Virginia Avenue; and, (5) 2810 Virginia Avenue.
Subsequently, in the Amendment by Interlineation adding as a victim Brian Alston, who was born on 13 August 1990, the Alstons narrowed the matter somewhat that their mother lived at the 2810 Virginia Avenue property between 1992–1993. Then, they lived as a family at 2752 Virginia Avenue between 1993–1995. During the defendants' later deposition of Ms. Sidbury, it was discovered that she did not remember the exact location of their residence, but approximated that the house was located in the 2800 block on Virginia Avenue. Plaintiffs' blood lead level testing slips listed, however, only 3006 Woodland Avenue as their address.
During discovery, the Alstons identified Dr. Michael Weitzman as their expert witness. Dr. Weitzman opined, relying on circumstantial evidence solely, that 2752 Virginia Avenue and 2810 Virginia Avenue (hereinafter, the “subject properties”) were a source of, and a substantial contributing factor to, the Alstons' lead paint poisoning and resulting injuries. To support this opinion, Dr. Weitzman relied on the following facts: (1) the Alstons lived in and/or visited the subject properties during the time period that they demonstrated elevated blood lead levels; (2) the residences had chipping, peeling, or flaking paint during the relevant time period; (3) the residences were older homes in Baltimore, built before 1979; 4 and (4) the Alstons exhibited elevated blood lead levels at the time they lived in the subject properties. No scientific testing was conducted of the paint (chipping, flaking, peeling, or otherwise) at the residences for the presence of lead.
Defendants (Respondents here) filed a Motion for Summary Judgment on 22 December 2010, arguing that the Plaintiffs “failed to sustain their burden of proving that they were exposed to and ingested chipping, peeling, or flaking lead-based paint in violation of the Baltimore City Housing Code at the Defendants' properties....” Specifically, Respondents argued that Plaintiffs' expert relied on insufficient assumptions to provide a factual basis for his opinion that Plaintiffs were exposed to a lead paint hazard at Defendants' properties. Respondents emphasized that there is no direct evidence that Plaintiffs resided at Defendants' properties or “that Defendants' properties contained lead paint hazards, or defective lead-based paint, during Plaintiffs' alleged tenancy at the properties.” Moreover, Respondents pointed out that “Plaintiffs' source expert also cannot eliminate [other] potential source[s] of Plaintiffs' recorded [blood] lead levels, which precludes Plaintiffs from providing adequate circumstantial evidence of exposure at the properties.”
After a hearing on the motion on 6 February 2012, the trial judge granted summary judgment, stating:
In this case, the identification of the address is an interesting issue. I'm not going to grant summary judgment on that basis, because I believe that the plaintiff has come up—has come forward with, it may be the barest showing, but it's a bare showing to tie herself to these two addresses on Virginia Avenue.
And this is unlike a case where the defendant comes forward with sworn statements in whatever form; interrogatories, affidavits, depositions that refute any possibility that the plaintiff actually lived or spent time at those addresses.
So although it is extremely sketchy in this case, both the identification of the specific properties and the years when the plaintiffs were living there, I don't think the defendant prevails on that basis.
I do think the defendant prevails on the basis that as to these properties the plaintiffs cannot show the requisite causation of any elevated blood lead levels derived from these properties.
I accept that the plaintiffs have shown that there was deteriorating paint at the properties. And I will even, for purposes of the motion go so far as to accept that the plaintiffs have shown that they exhibited elevated blood lead levels at around the time that they say they were living in these properties. What is missing is evidence that would tie those elevated blood lead levels to the specific conditions in these properties. And I accept the possibility that that could be proven indirectly by circumstantial means.
But I think the essential logical ingredient that must be present in order for Dow or a theory like Dow to apply is that logically there must be a—a very strong conclusion that the lead that the plaintiffs were experiencing had to come from this source because there is no other logical source that is available.
Now, there may be a number of ways that could be done. I've suggested one of them would be if there were visitation properties, that there is some evidence that tends to exclude those.
There might be evidence that the paint wasn't deteriorating in those. There might be evidence that they were built after a period when lead paint was likely present. There might be evidence that the visits were very short, were supervised closely and the children didn't ingest paint. There may be a number of bases that might be advanced by plaintiff.
But here you simply have two wide open possible properties at the same time, either of which could have been the source of the lead that is alleged. And that is insufficient to establish the prima facie case that the plaintiff would have to show on negligence.
...
For those reasons, I think that the moving defendants with respect to these two addresses on Virginia Avenue are entitled to summary judgment. And I'll grant summary judgment as to both plaintiffs as to these defendants.
(Emphasis added.) The trial judge issued a written order to like effect, stating that the Motion for Summary Judgment was granted “[f]or the reasons stated on the record at the hearing.”
Plaintiffs appealed timely to the Court of Special Appeals. The intermediate appellate court affirmed the judgment of the trial court in an unreported opinion filed on 10 July 2013. Plaintiffs–Petitioners filed a Petition for a Writ of Certiorari, which this Court granted, 435 Md. 266, 77 A.3d 1084 (2013), to consider the following questions:
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