Kirson v. Johnson

• Decision Date: 02 April 2018
• Docket Number: No. 1861, Sept. Term, 2016,1861, Sept. Term, 2016
• Citation: 236 Md.App. 384,182 A.3d 193
• Parties: Benjamin L. KIRSON, et al. v. Devon JOHNSON
• Court: Court of Special Appeals of Maryland

236 Md.App. 384

182 A.3d 193

Benjamin L. KIRSON, et al.

v.Devon JOHNSON

No. 1861, Sept. Term, 2016

Court of Special Appeals of Maryland.

April 2, 2018

Argued by: Thomas W. Hale (Michael W. Fox, Leder & Hale, PC, on the brief), Baltimore, MD, for Appellant

Argued by: Bruce H. Powell (Scott E. Nevin, William Beveridge, Jr., Law Offices of Peter T. Nicholl, Suzanne C. Shapiro, on the brief), Baltimore, MD, for Appellee

Panel: Kehoe, Nazarian, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Nazarian, J.Devon Johnson sued his former landlords, Benjamin L. Kirson, individually and as trustee of assets of BenLee Realty, LLC (collectively the "Landlords"), in the Circuit Court for Baltimore City. He alleged that he had been poisoned by lead-based paint during the time he lived in a home that the Landlords owned and managed. At the close of Mr. Johnson's case, the Landlords moved for judgment, and the trial court denied the motion. After a six-day trial, a jury returned a verdict in Mr. Johnson's favor and awarded damages in the amount of $1,628,000.

The Landlords moved for judgment notwithstanding the verdict ("JNOV") or, in the alternative, a new trial, and moved to reduce the amount of non-economic damages. The trial court denied their JNOV motion but reduced the non-economic damages to $1,173,000. The Landlords appeal and we affirm.

I. BACKGROUND

Mr. Johnson was born on April 18, 1997 at Union Memorial Hospital. From December 1997¹ until February 2000, he lived with his mother, Varnell Thames, at 741 E. 36^th Street ("36^th Street" or the "Property") in Baltimore City. 36^th Street was owned and managed by BenLee Realty, LLC, of which Benjamin Kirson was a member. Mr. Kirson managed the day-to-day operations of the company and oversaw its properties, including 36^th Street. Before Ms. Thames rented the Property, she performed a walk-through inspection with an unidentified man who handled the execution of her lease.

Ms. Thames testified that when she moved into the home, she saw chipping paint on the window sills in the basement and bedrooms and on the front porch door. Mr. Johnson and his brother often played in the basement, on top of the washing machine, especially while it was running, and on the front porch during the summer. She testified that she saw paint chips on Mr. Johnson's fingertips and on the bottom of a bottle of bleach that sat on the window sill behind the washing machine in the basement.

Mr. Johnson's blood was tested eight times for lead between August 1998 and January 2012, and the tests revealed elevated blood lead levels four times between the time he lived at 36^th Street and the time he moved away:

                Date Taken Blood Lead Level2
                August 17, 1998      16 μg/dL
                October 27, 1998     16 μg/dL
                March 18, 1999       17 μg/dL
                April 22, 1999       13 μg/dL
                

[Editor's Note: The preceding image contains the reference for footnote² ]

In 2014, Ms. Thames, on Mr. Johnson's behalf, sued the Landlords in the Circuit Court for Baltimore City, alleging negligence and unfair trade practices in violation of the Maryland Consumer Protection Act ("CPA"). During discovery, Arc Environmental ("Arc") tested 36^th Street for lead-based paint and issued a report (the "Report") identifying six areas of the Property that contained lead in excess of the Maryland standard.³ The Report identified lead-based paint in the rear exterior of the Property's basement door casing, the window casing in the basement, the front door's casing and threshold, and the front porch's post and header.

Mr. Johnson designated two experts: (1) Dr. Paul Rogers, a pediatrician who specializes in neurodevelopmental disabilities in children, as an expert witness to testify on the source of his lead exposure (source causation) and the cause of his injuries (medical causation); and (2) Edward Rush Barnett, an accredited lead risk assessor, as an environmental safety and health expert to testify on the presence of lead-based paint hazards at 36^th Street. In his December report, Dr. Rogers concluded that "[Mr. Johnson] had extensive exposure to lead based paint at [36^th Street] that caused his elevated blood levels and subsequent poisoning and was a substantial contributing factor to his neurodevelopmental disabilities." He based his opinion on a variety of documents, including: (1) Mr. Johnson's medical and school records, blood lead test results, and neuropsychological evaluation; (2) the age of the Property, which was built in 1927; (3) Maryland Department of the Environment ("MDE") records indicating 36^th Street is registered with its lead paint prevention program;⁴ (4) Ms. Thames's affidavit, which described flaking, chipping, and peeling paint in the Property; and (5) the Arc Report. In contrast, during his deposition, Dr. Rogers testified that he couldn't say that, each taken individually, the rear exterior basement door and window casing, front exterior door's casing and threshold, and front porch's post and header contributed substantially to Mr. Johnson's injuries. But at trial, Dr. Rogers testified again that "the aggregate dust production from these several sources ... and what was tracked in the house [ ] more likely than not contributed to [Mr. Johnson's] elevated lead levels" and subsequent injuries. Mr. Barnett also testified that the deteriorating paint conditions of the lead-based paint at the Property contributed to Mr. Johnson's elevated lead levels.

The Landlords moved in limine to preclude Mr. Johnson from presenting evidence or eliciting testimony about parts of the Property not identified in the Report, and to preclude Dr. Rogers from opining that the basement window casing alone was a "substantial factor" in causing Mr. Johnson's injuries. The court granted both motions. After a six-day trial, the jury found the Landlords liable and awarded damages totaling $1,628,000. After the circuit court denied the Landlords' motion for JNOV and reduced the non-economic damages portion of the award, the Landlords appealed. We will supply additional facts as appropriate below.

II. DISCUSSION

The Landlords raise four issues in their brief⁵ that we have consolidated into two. First , they challenge the trial court's denial of their motions for judgment and JNOV because, they contend, Mr. Johnson failed to establish the lead-based paint found at 36^th Street contributed substantially to his injuries. Second , they challenge the court's decision not to adopt their proposed jury instructions or special verdict sheet, which would have instructed the jury to find specifically, as an element of their duty, that they had notice of a defective condition as defined in the Baltimore City Housing Code (the "Housing Code").

A. The Evidence Supported The Circuit Court's Denial Of The Landlords' Motions for Judgment.

The Landlords contend first that the circuit court erred by denying their motions for judgment and JNOV, or in the alternative, their motion for a new trial. They claim that Mr. Johnson failed to satisfy his burden of proving that the condition of the paint at the Property was a "substantial factor" of his alleged injuries. We review the trial court's denial of a motion for judgment or JNOV for legal error, viewing the evidence in the light most favorable to the non-moving party. Scapa Dryer Fabrics, Inc. v. Saville , 418 Md. 496, 503, 16 A.3d 159 (2011). We will affirm the lower court's denial of the motion if there is any evidence, no matter how slight, legally sufficient to generate a jury question. Washington Metro. Area Transit Auth. v. Reading , 109 Md. App. 89, 94, 674 A.2d 44 (1996). And we review a trial court's denial of a motion for new trial for abuse of discretion. Miller v. State , 380 Md. 1, 92, 843 A.2d 803 (2004).

The battle lines in this case have been drawn around the extent to which Mr. Johnson was required to prove that the lead from specific places within the Property contributed substantially to his injuries. The Landlords focus on individual sites, and argue that evidence and testimony placing chipped paint and paint dust at the house fail to place those hazards in the specific parts of the property Mr. Johnson inhabited when the family lived there. In denying the Landlords' dispositive motions, the circuit court viewed his burden and the evidence more holistically:

With respect to the issue as to failure to establish that the interior and exterior were substantial contributing factors to Mr. Johnson's elevated blood lead level and injuries, I'm going to deny the motion on that basis.

I do think that—I appreciate, in all candor, I think that [Landlords' counsel] did an excellent job on cross-examination—but I think that Dr. Rogers said that the home as a whole was a substantial contributing factor to the injuries that Mr. Johnson seeks to recover for here in this trial.

And the aggregate effect of the deteriorating conditions was a substantial contributing factor according to the expert testimony generally put on by [Mr. Johnson].

* * *

I have to focus on this issue of the basement window casing versus the sill. I think this puts too fine a point on an issue on the distinction which was based at least primarily at the front end on a layperson's use of the terminology, Ms. Thames' description of what she witnessed, her son engaging, and the condition of the window as a general matter in the basement.

I think the inference is reasonable that the chipping, flaking, peeling paint was on the interior of the basement window casing versus just the sill, if I've got that correct. And I think it's splitting hairs to a degree that is unreasonable as far as what a jury is entitled to consider in the light, at this juncture, most favorable to [Mr. Johnson].

The general legal principles are not in dispute. To prove causation in a lead paint case, a plaintiff must prove that the defendant's negligence was a substantial factor in causing the plaintiff's injury. See, e.g. , Bartholomee v. Casey , 103 Md. App. 34, 56, 651 A.2d 908 (1994). The question...