Jackson v. Dackman

• Decision Date: 10 September 2008
• Docket Number: No. 1080 September Term, 2007.,1080 September Term, 2007.
• Citation: 181 Md. App. 546,956 A.2d 861
• Parties: Zi'Tashia JACKSON, a Minor, et al. v. The DACKMAN COMPANY, et al.
• Court: Court of Special Appeals of Maryland

956 A.2d 861

181 Md. App. 546

Zi'Tashia JACKSON, a Minor, et al. v. The DACKMAN COMPANY, et al.

No. 1080 September Term, 2007.

Court of Special Appeals of Maryland.

September 10, 2008.

Brian S. Brown (Saul E. Kerpelman & Associates, PA on the brief), Baltimore, for appellant.

James R. Benjamin, Jr. (Thomas J. Whiteford, Whiteford, Taylor & Preston, LLP on the brief), Baltimore, for appellee.

Argued before WRIGHT, J. FREDERICK SHARER,^* JJ.

WRIGHT, J.

Zi'Tashia Jackson, a minor, and Tameka Jackson ("appellants") appeal from a decision of the Circuit Court for Baltimore City. We are asked to determine:

I) whether Md.Code (2007 Repl.Vol.), § 6-801 et seq. of the Environment Article ("Envir."), The Reduction of Lead Risk in Housing Act ("Statute"), is constitutional;

II) whether appellees, The Dackman Company, Jacob Dackman & Sons, LLC, Elliott Dackman, and Charles Skirven, complied with the Statute and were, thus, entitled to qualified immunity;

III) whether the Statute applies to persons at risk who have elevated blood lead ("EBL") levels below 25 micrograms per deciliter ("μg/dl"); and

IV) whether the Statute bars actions, pursuant to Maryland's Consumer Protection Act ("CPA"), where property owners are in full compliance with the Statute's edicts.

In review of these four issues, we affirm the decision of the circuit court with respect to I, III and IV, and reverse with respect to II.¹

PROCEDURAL HISTORY

On July 11, 2002, Zi'Tashia Jackson ("Zi'Tashia"), through her mother and next friend, Tameka Jackson ("Ms.Jackson"), filed a complaint against the appellees. In the complaint, appellants alleged that Zi'Tashia was exposed to chipping, peeling, and/or flaking lead-based paint, while residing at 1233 Cliftview Avenue and at 706 Mt. Holly Avenue. The rental units are located in Baltimore City and are owned, managed, and/or operated by the appellees. Appellants further claimed that Zi'Tashia sustained severe and permanent brain injuries, as well as cognitive and behavioral deficits, as a result of Zi'Tashia's exposure to lead-based paint at both properties. Appellants alleged that appellees violated the CPA and were negligent in failing to properly maintain and safeguard the properties against the presence of chipping, flaking, and/or peeling paint. Ms. Jackson also brought her own claim against the appellees.

On March 13, 2003, appellants filed a First Amendment by Interlineation. Appellees filed a motion for summary judgment, and, on March 14, 2003, the Circuit Court for Baltimore City, Judge M. Brooke Murdock presiding, denied the motion to allow for further discovery. On March 25, 2003, the appellees filed an answer to the amendment. On November 2, 2006, after extensive discovery, appellees filed a second motion for summary judgment and a memorandum in support thereof. Appellants opposed this motion by filing three memoranda of their own.

On November 30, 2006, the State of Maryland, Department of the Environment ("MDE"), filed a Memorandum of Law of Amicus Curiae. On December 5, 2006, appellants filed an opposition to appellees' second motion for summary judgment, along with a memorandum of points and authorities, in support thereof. On the same date, appellees filed an opposition to appellants' motion concerning the application and/or constitutionality of the Statute. On December 13, 2006, appellees filed a reply to appellants' opposition to appellees' second motion for summary judgment.

A hearing on all open motions was held on December 19, 2006. The trial court, Judge Robert B. Kershaw presiding, held the matter sub curia and issued a memorandum opinion and order on February 1, 2007, granting appellees' second motion for summary judgment, in part, and denying it, in part. The court determined that the Statute was constitutional and found that (1) the Statute did not violate appellants' right to a jury trial; (2) the Statute did not impermissibly restrict appellants' right to access the courts, nor did it restrict appellants' right to remedy; (3) the Statute did not violate Maryland's constitutional mandate on separation of powers; and (4) the Statute did not violate appellants' right to equal protection under the law. Furthermore, the court found that the Statute applies to persons with an EBL level under 25 μg/dl and that the Statute barred actions brought pursuant to the CPA, where property owners were in full compliance with the Statute's edicts. Lastly, the court ruled that there was a dispute of fact with regard to appellees' compliance with the Statute, during certain periods of time, and, therefore, denied appellees' motion for summary judgment in that matter.

The case was called to trial on July 7, 2007, and the parties agreed to proceed by stipulated facts.² This stipulation was put on the record at a pre-trial motion hearing before the circuit court, Judge Gale E. Rasin presiding. As part of the pre-trial motion hearing, appellees' second motion for summary judgment, which had been previously denied, was renewed. After hearing arguments, the court ruled that appellees' filings were timely and that appellees were fully compliant with the Statute, thereby affording them protection from suit. Accordingly, on June 18, 2007, final judgment was entered in appellees' favor on all counts.

On July 17, 2007, both parties filed a joint motion to alter or amend, to correct clerical errors that, technically, prevented the entry of a final judgment for purposes of this appeal. The court granted the joint motion on August 1, 2007, and appellants filed this timely appeal on August 13, 2007.

FACTS

Zi'Tashia Jackson was born on January 12, 1997. At the time of her birth, her mother, Tameka Jackson, was living at 1904 E. Lanvale Street in Baltimore City. When Zi'Tashia was one year old, she and Ms. Jackson moved to 1233 Cliftview Avenue ("Cliftview"). The tenants of record at Cliftview, during appellants' residency, were Takia and Tasha Jackson, Zi'Tashia's maternal aunts. Appellants lived at Cliftview for approximately one year before they moved to 706 Mt. Holly ("Mt.Holly"). The tenants of record at Mt. Holly, during appellants' residency, were Ms. Jackson and Dia Lawrence ("Mr.Lawrence"), Zi'Tashia's father. Appellants and Mr. Lawrence lived at Mt. Holly for approximately six months.

I. 1233 CLIFTVIEW AVENUE

Pursuant to § 6-811 of the Statute, appellees initially registered Cliftview with MDE on March 24, 1995. On February 19, 1997, pursuant to § 6-815 of the Statute, the interior and exterior of Cliftview underwent a full risk-reduction and inspection, whereby it was determined that the property met certification criteria and the standards mandated by the Statute. Pursuant to § 6-818 of the Statute, the full risk-reduction and inspection was conducted by an independent licensed inspector, who was accredited by the State of Maryland. The inspector determined that the interior and exterior paint, the window sashes, jambs, wells, and sills were in satisfactory condition. Consequently, an inspection certificate was submitted to MDE.

On March 27, 1997, Zi'Tashia's aunts executed a lease for a month-to-month tenancy at Cliftview, to commence April 1, 1997. The lease included a lead paint disclosure form, lead poisoning information packets (as required by § 6-823 of the Statute), and notices of tenant's rights (as required by § 6-820 of the Statute). Before executing their lease, Zi'Ta shia's aunts were required to inspect the property and identify, in writing, any defective conditions that were present, including any chipping, flaking, and/or peeling paint. Zi'Tashia's aunts executed the leases, and they did not reference any chipping, flaking, or peeling paint. They did, however, list Zi'Tashia as one of the children residing or frequently visiting Cliftview.

While residing at Cliftview, appellants allege that Zi'Tashia was lead-poisoned. Zi'Tashia had a blood lead level of 21 μg/dl on October 22, 1998, and 16 μg/dl on November 18, 1998. Appellees, however, never received a notice of defect/notice of EBL level regarding Zi'Tashia. Thus, appellees believed that, pursuant to § 6-819 of the Statute, corrective measures at the property—such as modified risk reductions—were not necessary.

II. 706 MT. HOLLY AVENUE

Pursuant to § 6-811 of the Statute, appellees registered Mt. Holly with MDE on March 24, 1995. On January 8, 1999, pursuant to § 6-815 of the Statute, the interior and exterior of Mt. Holly underwent a full risk-reduction and inspection, wherein it was determined that the property met certification criteria and complied with the standards mandated by the Statute. Pursuant to § 6-818 of the Statute, the full risk-reduction and inspection was conducted by an independent licensed inspector, who was accredited by the State of Maryland. The inspector determined that the interior and exterior paint, the window sashes, jambs, wells, and sills were in satisfactory condition. As such, an inspection certificate was submitted to MDE.

On January 29, 1999, Ms. Jackson and Mr. Lawrence executed a lease for a month-to-month tenancy at Mt. Holly, to commence February 1, 1999. The lease included a lead paint disclosure form, lead poisoning information packets (as required by § 6-823 of the Statute), and notices of tenant's rights (as required by § 6-820 of the Statute). Before executing their lease, Ms. Jackson and Mr. Lawrence were required to inspect the property and identify, in writing, any defective conditions that were present, including any chipping, flaking, and/or peeling paint. Ms. Jackson and Mr. Lawrence executed the leases and they did not reference any chipping, flaking, or peeling paint. They did, however, list Zi'Tashia as one of the children residing or frequently visiting Mt. Holly.

Zi'Tashia and her family were evicted from Mt. Holly on August 12, 1999. While residing at Mt. Holly, appellants allege that Zi'Tashia was lead-poisoned. Zi'Tashia had a blood lead level of 15 μg/dl...