Kennedy Krieger Inst., Inc. v. Partlow

• Decision Date: 13 August 2018
• Docket Number: No. 82, Sept. Term, 2017,82, Sept. Term, 2017
• Citation: 460 Md. 607,191 A.3d 425
• Parties: KENNEDY KRIEGER INSTITUTE, INC. v. Ashley PARTLOW
• Court: Court of Special Appeals of Maryland

460 Md. 607

191 A.3d 425

KENNEDY KRIEGER INSTITUTE, INC.

v.Ashley PARTLOW

No. 82, Sept. Term, 2017

Court of Appeals of Maryland.

August 13, 2018

Argued by Michael E. Blumenfeld (Michael A. Brown, Nelson Mullins Riley & Scarborough, LLP, Baltimore MD; Barry C. Goldstein and Michele Z. Blumenfeld, Waranch & Brown, LLC, Lutherville, MD; and Laura A. Cellucci, Miles & Stockbridge P.C., Baltimore, MD), on brief, for Petitioner.

Andrew H. Baida, Esquire, Rosenberg Martin Greenberg, LLP, 25 S. Charles Street, 21st Floor, Baltimore, MD 21201, Natalie C. Magdeburger, Esquire, Mark D. Maneche, Esquire, James R. Benjamin, Jr., Esquire, Pessin Katz Law, P.A., 901 Dulaney Valley Road, Suite 500, Towson, MD 21204, Amicus Curiae The Maryland Hospital Association, Incorporated in Support of Petitioner.

Argued by Brian S. Brown (Leah K. Barron, Brown & Barron, Baltimore, MD), on brief, for Respondent.

Argued Before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Watts, J.

This case concerns the important question of whether a duty of care extends from a medical research institute to a child, who was not a participant in a research study that sought to investigate the effectiveness of lead-based paint abatement measures,¹ but who the medical research institute knew resided in a property subject to the research study along with a family member participating in the study, and who was allegedly injured by exposure to lead. If the answer to this question is "yes," then a child who was not a participant in the research study but who the medical research institute knew resided in the property with a participant of the research study, would have an opportunity for recourse in the event of an alleged injury, as the medical research institute would owe that child a duty of care. To prevail, such a person would, of course, still need to establish the other three elements of negligence, i.e. , a breach of the duty of care, "a legally cognizable causal relationship between the breach of duty and the harm suffered, and damages." Kiriakos v. Phillips, 448 Md. 440, 456, 139 A.3d 1006, 1016 (2016) (cleaned up). If the answer to the question is "no," then a child who was not enrolled in the research study but who was allegedly injured would not have the ability to pursue a claim for negligence against the medical research institute, despite any purported injury. Thus, we must determine whether a duty of care exists under the circumstances.

Before we answer this significant question, we briefly set the stage. From 1993 to 1999, Kennedy Krieger Institute, Inc. ("KKI"), Petitioner, conducted a "Lead-Based Paint Abatement and Repair and Maintenance Study" ("the R & M Study") to investigate the effectiveness of various levels of repair and maintenance interventions, i.e. , lead-based paint abatement methods, in reducing exposure to lead in houses and reducing children's blood-lead levels. Shortly after the R & M Study concluded, in Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 48-56, 63, 782 A.2d 807, 819-24, 828 (2001), this Court discussed the R & M Study at length, and held that a trial court erred in granting KKI's motions for summary judgment in two cases in which the plaintiffs were child participants in the R & M Study by consent agreements. We explained:

Such research programs[, e.g. , the R & M Study,] normally create special relationships and/or can be of a contractual nature, that create duties. The breaches of such duties may ultimately result in viable negligence actions. Because, at the very least, there are viable and genuine disputes of material fact concerning whether a special relationship, or other relationships arising out of agreements, giving rise to duties existed between KKI and both sets of [plaintiff]s, we hold that the [trial c]ourt erred in granting KKI's motions for summary judgment in both cases .... Accordingly, we vacate the rulings of the [trial court] and remand the[ ] cases to that court for further proceedings[.]

Id. at 48, 782 A.2d at 819. Stated otherwise, in Grimes, id. at 48, 782 A.2d at 819, this Court concluded that a duty of care may exist between KKI and a participant in the R & M Study. In Grimes, id. at 113, 782 A.2d at 858, this Court concluded "that, under certain circumstances, [consent] agreements can, as a matter of law, constitute ‘special relationships’ giving rise to duties, out of the breach of which negligence actions may arise[,]" and "that, normally, such special relationships are created between researchers and the human subjects used by the researchers."

In this case, Ashley Partlow ("Ashley"), Respondent, filed in the Circuit Court for Baltimore City ("the circuit court") a complaint against KKI alleging negligence and violations of the Baltimore City Housing Code and the Maryland Consumer Protection Act. Unlike the plaintiffs in Grimes, however, Ashley was not a participant in the R & M Study, which only included children aged six months to four years. In May 1994, when Ashley's mother, Jacqueline Martin, completed an eligibility questionnaire for the R & M Study, Ashley was five years old, and was ineligible to be a participant. In May 1994, Ashley's younger sister, Anquenette Partlow ("Anquenette"), who was two years old, became a participant in the R & M Study through a consent form signed by Martin. Although Ashley was not a participant in the R & M Study, she lived in the subject property with her family, including Anquenette, during her younger sister's participation in the R & M Study.

In response to Ashley's complaint, KKI filed various motions for summary judgment, including one concerning the claim for negligence, arguing that it did not owe a legal duty to Ashley because Ashley was not a participant of the R & M Study and it did not own, lease, or operate the subject property. Following a hearing, the circuit court issued an order granting the motions for summary judgment. In a memorandum opinion, the circuit court concluded that KKI did not owe Ashley a duty of care, and that the researcher-subject duty that this Court recognized in Grimes did not extend to Ashley. The circuit court also ruled that KKI did not owe Ashley a duty of care under the Baltimore City Housing Code, and that Ashley had failed to allege facts sufficient to support a claim for violation of the Maryland Consumer Protection Act.

Ashley appealed. In an unreported opinion, the majority of a panel of the Court of Special Appeals reversed the circuit court's grant of summary judgment in KKI's favor as to Ashley's negligence claim, concluding that a "special relationship created by the R & M Study encompassed her as well as her sister." Ashley Partlow v. Kennedy Krieger Inst., et al., Nos. 44 and 530, Sept. Term, 2015, 2017 WL 4772626, *1 (Md. Ct. Spec. App. Oct. 23, 2017). The Court of Special Appeals held that KKI owed Ashley a duty of care under the common law, stating "that KKI owed to Ashley the same duty of care it owed to R & M Study participants who lived in the same dwelling pursuant to the same lease agreement." Id. at *7, *9. The Court of Special Appeals held, however, that the circuit court properly granted summary judgment as to the claims for violations of the Baltimore City Housing Code and the Maryland Consumer Protection Act. See id. at *9, *10. The Honorable Stuart R. Berger dissented as to the holding that KKI owed Ashley a duty of care under the common law, and concurred with the majority's holdings that the circuit court properly granted summary judgment on the claims for violations of the Baltimore City Housing Code and the Maryland Consumer Protection Act. See id. at *10 (Berger, J., concurring and dissenting).

KKI filed a petition for a writ of certiorari , raising one issue: "Whether the [Court of Special Appeals], relying on Grimes , erred in imposing a duty on [KKI] to an individual who was not enrolled in the research study at issue[.]" This Court granted the petition. See Kennedy Krieger Inst. v. Partiow, 457 Md. 398, 178 A.3d 1242 (2018).

In Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 415, 879 A.2d 1088, 1092-93 (2005), we explained duty of care and the determination of whether a duty exists as follows:

Duty is an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. There is no set formula for the determination of whether a duty exists. We have applied a foreseeability of harm test, which is based upon the recognition that duty must be limited to avoid liability for unreasonably remote consequences. We also have looked at the relationship of the parties.

At its core, the determination of whether a duty exists represents a policy question of whether the plaintiff is entitled to protection from the defendant.

(Cleaned up). And, in Kiriakos, 448 Md. at 486, 139 A.3d at 1033-34, we set forth "the classic factors we use to decide questions of duty under the common law":

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost[,] and prevalence of insurance for the risk involved.

(Cleaned up); see also Doe, 388 Md. at 416, 879 A.2d at 1093 (This Court set forth the same factors, characterizing them as a "non-exhaustive list for balancing the policy considerations inherent in the determination of whether a duty exists[.]").

Against this backdrop, we hold that a duty of care exists in the limited circumstances where: (1) a medical research institute knows of the presence of a child, who is not a participant in a research study concerning lead-based paint abatement of a property, who resides at a...