Jackson v. the Dackman Co.

• Decision Date: 24 October 2011
• Docket Number: 2008.,No. 131,Sept. Term,131
• Parties: Zi'Tashia JACKSON, a minor, et al.v.The DACKMAN COMPANY, et al.
• Court: Maryland Court of Appeals

422 Md. 357
30 A.3d 854

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

No. 131

Sept. Term

2008.

Court of Appeals of Maryland.

Oct. 24, 2011.

West CodenotesHeld UnconstitutionalWest's Ann.Md.Code, Environment, §§ 6–828, 6–835, 6–836, 6–836.1

[30 A.3d 855]

Brian S. Brown (Saul E. Kerpelman & Associates, P.A., Baltimore, MD; Terry J. Harris of Law Offices of Terry J. Harris, Spokane, WA; Lisa J. Smith of Law Office of Peter T. Nicholl, Baltimore, MD), on brief, for Petitioners/Cross–Respondents.James R. Benjamin, Jr. (Thomas J. Whiteford of Whiteford, Taylor & Preston, L.L.P., Baltimore, MD), on brief, for Respondents/Cross–Petitioners.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^*MURPHY,

[30 A.3d 856]

ADKINS and JOHN C. ELDRIDGE,(Retired, Specially Assigned), JJ.ELDRIDGE, J.

[422 Md. 361] The principal issues in this case concern the constitutionality of the provisions in the Reduction of Lead Risk in Housing Act which grant to the owners of certain rental properties, under specified conditions, immunity from personal injury suits based upon a child's or a pregnant woman's ingestion of lead. We shall hold that the statute's provisions granting immunity violate Article 19 of the Maryland Declaration of Rights and are, therefore, invalid.

I.

The Reduction of Lead Risk in Housing Act was enacted by Ch. 114 of the Acts of 1994 and is, for the most part, codified in Maryland Code (1982, 2007 Repl.Vol., 2011 Supp.), subtitle 8, §§ 6–801 through 6–852 of the Environment Article. As stated in § 6–802 of the Act, “[t]he purpose of this subtitle is to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing.” The Act was generally based upon the recommendations of a study commission, the “Lead Paint Poisoning Commission,” which reported to the General Assembly in December 1993 and which issued a final report in May 1994.

The Act was divided into several parts, with Part I, consisting of §§ 6–801 through 6–804, containing definitions and coverage provisions. Among the definitions, the phrase “affected property” is primarily defined as “property constructed before 1950 that contains at least one rental dwelling unit” (§ 6–801(b)). Part II of the Act, in §§ 6–807 through 6–810, creates and delineates the duties of an advisory and study commission. Part III is titled “Registration of Affected Property,” and it requires that “the owner of an affected property shall register the affected property with the Department [of the Environment]” on “or before December 31, 1995” (§ 6–811(a)). The registration involves filling out a form giving the Department various items of information about the affected property (§ 6–811(b)). The statute also requires that the registration be renewed “on or before December 31 of each [422 Md. 362] year,” updating the information about the affected property (§ 6–812 (a)(1)). If an owner first acquires affected property after December 1, 1995, the owner “shall register the affected property ... within 30 days after the acquisition” (§ 6–812(b)). Section 6–813(a) provides that, if an owner “fails to register” or “fails to renew the registration of an affected property,” the owner “is not in compliance with respect to that affected property ... for purposes of § 6–836,” which is one of the sections granting immunity from suit.

Sections 6–815 through 6–824 comprise Part IV of the Act, titled “Risk Reduction Standard for Affected Property.” These sections establish detailed and mandatory risk reduction standards for affected property,¹ set forth a schedule for [422 Md. 363] bringing affected property into compliance with the

[30 A.3d 857]

risk reduction standards, and provide that the owner of affected property may lose liability protection for non-compliance.² [422 Md. 364] Section 6–818 provides for inspections of

[30 A.3d 858]

affected property by independent inspectors who are accredited by the Department of the Environment, and § 6–819 contains a “modified risk reduction standard.” Section 6–820 requires that owners of affected property give to tenants a “ notice of tenant's rights,” and § 6–823 requires that the owners give to each tenant a “lead poisoning information packet.”

Part V of the Act, titled “Qualified Offer,” consists of §§ 6–826 through 6–842. In addition to the provisions concerning “qualified offers,” this part contains the limitations on judicial actions.

A “qualified offer” is an offer of money by an owner, the owner's agent, or an insurer of the owner, made to a person at risk or to a parent or legal guardian of a person at risk who is a minor (§§ 6–831 through 6–834). A “person at risk” is defined as “a child or a pregnant woman who resides or regularly spends at least 24 hours per week in an affected property” (§ 6–801(p)). “Child” is defined as “an individual under the age of 6 years” (§ 6–801(d)). A “qualified offer” is [422 Md. 365] designed to cover some expenses which are incurred on behalf of an affected person at risk.³

[30 A.3d 859]

Nevertheless, the maximum [422 Md. 366] amount payable under a qualified offer is only $17,000, and most of this is payable to the provider of medical or other services and not to the person at risk.⁴

The Act, in § 6–835, provides that “[a]cceptance of a qualified offer by a person at risk, or by a parent [or] legal guardian” of a person at risk, “releases all potential liability of the offeror, the offeror's insured or principal.” ⁵ Section 6–836, [422 Md. 367] on the other hand, provides that if a qualified offer is rejected, “[a]n owner of an affected property is not liable, for alleged injury or loss caused by ingestion of lead by a person at risk in the affected property.” ⁶

[30 A.3d 860]

Section 6–836.1 purports to direct a trial court to proceed in a particular manner if an owner's claim of immunity from liability under §§ 6–835 or 6–836 is challenged by any party.⁷

[422 Md. 368] Although certain sections of the Act are written as if §§ 6–835 and 6–836 were the only provisions granting immunity to the owners ( see, e.g., §§ 6–813(a) or 6–836.1), §§ 6–827 and 6–828 also deal with liability and immunity from personal injury suits. Section 6–827 indicates that Part V of the statute, relating to qualified offers and owners' immunity from suit, is intended to be very broad. Section 6–827 states:

“§ 6–827. Applicability.

This part applies to all potential bases of liability for alleged injury or loss to a person caused by the ingestion of lead by a person at risk in an affected property.”

Section 6–828 appears to grant immunity from personal injury suits to an owner, if that owner has complied with the statute, unless certain notice is given to the owner and the owner has been given the opportunity to make a qualified offer. Section 6–828 provides as follows:

“§ 6–828. Failure to give notice to owner in compliance.

(a) Applicability.—This section applies to an owner of an affected property who has, with respect to the affected property, complied with the applicable requirements of §§ 6–811, 6–812, 6–815, 6–817, and 6–819 of this subtitle, and has sent to the tenant the notices required by §§ 6–820 and 6–823 of this subtitle.

(b) In general.—A person may not bring an action against an owner of an affected property for damages arising from alleged injury or loss to a person at risk caused by the ingestion of lead by a person at risk that is first documented by a test for EBL of 25 ug/dl [micrograms per deciliter] or more performed between February 24, 1996 and February 23, 2001, inclusive, or 20 ug/dl or more performed between February 24, 2001 and February 23, [422 Md. 369] 2006, inclusive, or 15 ug/dl or more performed on or after February 24, 2006, unless the owner has been given:

[30 A.3d 861]

(1) Written notice from any person that the elevated blood level of a person at risk is:

(i) Greater than or equal to 25 ug/dl as first documented by a test for EBL performed between February 24, 1996 and February 23, 2001, inclusive;

(ii) Between February 24, 2001 and February 23, 2006, inclusive, an EBL greater than or equal to 20 ug/dl as first documented by a test for EBL performed between February 24, 2001 and February 23, 2006, inclusive; or

(iii) On or after February 24, 2006, an EBL greater than or equal to 15 ug/dl as first documented by a test for EBL performed on or after February 24, 2006; and

(2) An opportunity to make a qualified offer under § 6–831 of this subtitle.” ⁸

[422 Md. 370] II.

As the present case was resolved in the Circuit Court by a grant of the defendants' motion for summary judgment, “ ‘we must review the facts, and all inferences therefrom, in the light most favorable to the plaintiffs.’ ” Bednar v. Provident, 402 Md. 532, 542, 937 A.2d 210, 215 (2007), quoting Lovelace v. Anderson, 366 Md. 690, 695, 785 A.2d 726, 728 (2001). See, e.g., Reiter v. Pneumo Abex, 417 Md. 57, 67, 8 A.3d 725, 731 (2010) (“ ‘We review the record in the light most favorable to the non-moving party and construe any reasonable inferences which may be drawn from the facts against the movant’ ”); LaBelle v. Old Europe, 406 Md. 194, 208, 958 A.2d 269, 277 (2008); Anderson v. The Gables, 404 Md. 560, 570, 948 A.2d 11, 18 (2008); Lee v. Cline, 384 Md. 245, 248, 863 A.2d 297, 299 (2004).

This case began in July 2002 when ZiTashia Jackson and her mother, Tameka Jackson, filed in the Circuit Court for Baltimore City a complaint against the Dackman Co., Jacob Dackman & Sons, L.L.C., Elliot Dackman, and Charles A. Skirven, Trustee.⁹ The case involved two separate pieces of residential, rental property in

[30 A.3d 862]

Baltimore City, one of which was 1233 Cliftview Avenue and the other was 706 Mt. Holly Street. The complaint alleged that both properties were owned, controlled, managed, supervised or maintained by the defendants. The plaintiffs sought damages based on ZiTashia's claimed severe and permanent brain injuries allegedly resulting from her ingestion of...