Harris v. Hous. Auth. of Balt. City

• Decision Date: 27 April 2016
• Docket Number: No. 43, Sept. Term, 2015.,43, Sept. Term, 2015.
• Citation: 227 Md.App. 617,135 A.3d 866
• Parties: William HARRIS, a minor by his mother, Natonia Ratchford v. HOUSING AUTHORITY OF BALTIMORE CITY.
• Court: Court of Special Appeals of Maryland

227 Md.App. 617

135 A.3d 866

William HARRIS, a minor by his mother, Natonia Ratchford

v.HOUSING AUTHORITY OF BALTIMORE CITY.

No. 43, Sept. Term, 2015.

Court of Special Appeals of Maryland.

April 27, 2016.

Reconsideration Denied June 7, 2016.

A. Reza Davani (Saul E. Kerpelman & Associates, PA, on the brief), Baltimore, MD, for appellant.

Dennis C. Whelley (Rollins, Smalkin, Richards & Mackie, LLC, on the brief), Baltimore, MD, for appellee.

Panel: BERGER, NAZARIAN, and LEAHY, JJ.

LEAHY, J.

In 2012, Natonia Ratchford¹ sued the Housing Authority of Baltimore City (“Appellee” or “HABC”) on behalf of William Harris, her minor son, for injuries due to lead-based paint exposure that occurred years earlier, between 2003 and 2007. HABC was the owner of a row house where William lived or visited during this period.²

The September 2012 complaint, filed in the Circuit Court for Baltimore City, contained allegations of negligence and violations of the Maryland Consumer Protection Act against HABC. Following discovery and a stay of proceedings,³ HABC filed a motion for summary judgment based on Appellants' failure to comply with the Local Government Tort Claims Act's (“LGTCA”) notice requirement, as well as Appellants' failure to demonstrate good cause for a waiver of the notice requirement. Appellants responded, inter alia, with an affidavit from Ms. Ratchford stating that in 2004 she had given HABC oral notice of her intention to sue HABC for William's injury due to lead exposure. The court granted HABC's motion. From this judgment, Appellants filed a timely appeal posing the following questions, which we have rephrased and reordered:

1. Is there an absolute requirement that substantial compliance under the LGTCA include written notice, so that oral notice of a claim made by the mother of a lead poisoned minor to the designated representative of HABC necessarily fails as substantial compliance?

2. Did the Circuit Court err by determining whether Appellants demonstrated good cause for waiver of the notice requirements under the LGTCA rather than submitting the issue to a jury?

3. Did the trial court err as a matter of law by misinterpreting and misapplying the test for good cause under the LGTCA?

4. Did the trial court err as a matter of law by not excluding hearsay testimony which the HABC submitted in support of its Motion for Summary Judgment?

We affirm the judgment of the circuit court. Without deciding whether oral notice could ever substantially comply with the LGTCA notice requirement, we hold that Ms. Ratchford's 2004 oral notice failed to fulfill the purpose of the requirement—which is to apprise the local government unit of its potential liability in time for it to conduct its own investigation “while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and [the local government's] responsibility in connection with it.” Ellis v. Housing Authority of Baltimore City, 436 Md. 331, 343, 82 A.3d 161 (2013) (citation and internal quotation marks omitted). We further hold that the circuit court did not abuse its discretion by failing to find good cause for a waiver of the notice requirement, nor did the circuit court usurp the role of the jury in making this determination itself. Finally, even if the hearsay issue were relevant to the circuit court's grant of summary judgment, which it was not, the circuit court did not improperly consider hearsay in its grant of summary judgment.

BACKGROUND

William Harris was born on January 11, 2003. The complaint in the underlying action alleges that, from 2003 to 2010, he lived at or frequented the row house located at 2238 Guilford Avenue (“the Property”), and that his mother, Natonia Ratchford, was a tenant, resident, or invitee of the Property.⁴ The HABC's precise role—whether it be as property owner, landlord, landlord's agent, or property manager—in regard to the Property is not pleaded in the underlying complaint, but an affidavit submitted by HABC avers that HABC “owned the property when [Appellants] claim [ ] to have lived and/or visited there.”

Although the Property was built before 1978,⁵ the record does not contain evidence of lead-based paint hazards within the Property. An April 7, 1994 report prepared for the Property by Micron, Inc., an environmental assessor, revealed no lead-based paint hazards. A Maryland Department of the Environment inspection report dated March 29, 1994, states that the Property passed the relevant certification criteria. The Property then received a full risk reduction inspection and passed the certification criteria in 2001. The Property passed further inspections in 2004, 2006, and 2009.

William's blood tested positive for lead several times between December 30, 2003, and June 14, 2007. The highest level readings were 19 micrograms per deciliter on July 16, 2004, and 11 micrograms per deciliter on October 18, 2004.⁶

Ms. Ratchford executed an affidavit in the underlying case on January 20, 2014, describing certain events that occurred in 2004. She averred that, in 2004, the Property's bedrooms, living room, and dining room had “chipping, peeling and flaking paint,” and she observed William putting paint chips in his mouth. In her affidavit, Ms. Ratchford further stated:

6. I called the housing manager at my rental office numerous times and complained about the chipping, peeling and flaking paint. In approximately 2004, after I got one of William's lead tests that showed he had lead in his blood, I was so furious that I went to the rental office and I showed them the results of the lead test. I was so angry that I told the HABC I was going to sue them for poisoning my child.

7. In response to my threat to sue, the HABC had someone come in to do a lead test. The HABC also had maintenance people come to the house and paint over the chipping, peeling, and flaking paint. I relied on the HABC in believing that this was the only thing they could do in response to my complaints and threat to sue, and that painting over the deteriorated paint would stop William from having lead in his blood.

8. However, the paint kept chipping, peeling, and flaking onto the floor and windowsills. To address the ongoing problem, the HABC had maintenance people come every year to paint over the chipping, peeling, and flaking paint.

I relied on the HABC in believing that this regular upkeep would prevent William from having lead in his blood.

(Emphasis supplied).

Nevertheless, Appellants waited until September 6, 2012, to file suit against HABC in the Circuit Court for Baltimore City, alleging negligence and violations of the Maryland Consumer Protection Act.⁷

On January 9, 2015, HABC filed a motion for summary judgment, arguing that Appellants had failed to comply with the LGTCA requirement that one who intends to sue a local government entity must provide notice within 180 days of the tort's occurrence. HABC also contended that Appellants had not demonstrated good cause for waiver of the requirement and that HABC had suffered prejudice as a result of Appellants' failure to comply with the LGTCA. HABC filed with its motion an affidavit by William M. Peach, III, Director of Housing Management Administration, who had been employed by HABC since 1987. The affidavit stated that, before 2011, HABC's record retention policy was to destroy records after three years and that HABC no longer had complete records for the Property for the time that William was a resident or visitor of the Property. Mr. Peach's affidavit further averred to his attempts to contact people employed by HABC from 2003–10 in order to find information concerning Appellants' claims:

6. Some of the HABC managers involved in the operation and/or maintenance of the property when the Plaintiff claim[s] to have resided at and/or visited there are no longer employed by the HABC. In cases where I have been able to find current employees of HABC who were in any managerial capacity during the time-frame referenced in Plaintiff's complaint they have been uniformly unable to recall anything about the condition of specific property during the time frames referenced in Plaintiff's Complaints.

(Emphasis supplied). Mr. Peach affirmed that a search through HABC's records did not reveal any notice of any injury to William due to lead exposure at the Property until the filing of the lawsuit in 2012:

7. I have caused a search of all of the HABC's files and records for any complaints, letters, notices or related documentation made by the Plaintiff or anyone in the Plaintiff's family prior to service of suit in this case regarding a claim for damages because of Plaintiff's alleged injurious exposure to lead-based paint at the property during the time the Plaintiff claims to have lived or visited there and I have found none. The first documentary evidence found regarding Plaintiff's claims for damages as a result of alleged injurious exposure to lead-based paint at the property was this lawsuit upon it on September 14th 2012.

The affidavit then stated that because of the untimely notice, HABC was prejudiced because it was not able to perform a physical investigation of the Property during the time of William's alleged injuries:

8. Because of Plaintiff's untimely notice, the HABC was deprived of any opportunity to respond to an appropriate statutory notice and conduct a full, litigation-focused, physical investigation of any alleged “defective paint” condition at the property during the time that Plaintiff claims to have resided at and/or visited there and was deprived of any opportunity to document the alleged defective condition with photographs, or to take depositions for preservation of evidence.

Appellants filed a response in opposition to summary judgment on January 27, 2015, arguing that: (1) Appellants needed additional time to procure expert testimony as to evidence of when facts existed to support each element of Appellants'...