Lewin Realty v. Brooks, 254

Citation138 Md. App. 244,771 A.2d 446
Decision Date26 April 2001
Docket NumberNo. 254,254
PartiesLEWIN REALTY III, INC., v. Sean BROOKS, Jr., A Minor, etc. et al.
CourtCourt of Special Appeals of Maryland

Frank F. Daily (Cynthia D. Spirt, on the brief), Hunt Valley, for appellant.

Harvey S. Wasserman (Saul E. Kerpelman & Associates, P.A., on the brief), Baltimore, for appellees.

Argued before HOLLANDER, DEBORAH S. EYLER, and LEONARD L. RUBEN (Ret'd, Specially Assigned), JJ. DEBORAH S. EYLER, Judge.

In this lead paint premises liability case, a jury in the Circuit Court for Baltimore City returned a verdict in favor of Sean Brooks, Jr., a minor, by his mother Sharon Parker, appellees, and against Lewin Realty III, Inc. ("Lewin"), appellant. It awarded damages totaling $750,000. Lewin noted an appeal from the judgment, and presents the following first question for review, which we have rephrased:

I. Did the trial court err in admitting into evidence lead paint violation notices pertaining to other properties?

We answer "yes" to this question. Because we conclude that the error was prejudicial, we shall reverse the judgment and remand the case to the circuit court for further proceedings. We will address two other questions raised by Lewin for the guidance of the court on remand. They are:

II. Did the trial court err in allowing the appellees' vocational rehabilitation witness to testify as an expert?

III. Did the trial court err in denying appellant's motion for summary judgment on the issue of "reason to know" of the presence of deteriorated lead paint on the premises?1
FACTS AND PROCEEDINGS

In August 1988, Shirley Parker rented a house at 1202 North Patterson Park Avenue, in Baltimore City. Fresh paint was applied to the interior of the house at the beginning of the tenancy.

Sharon Parker, Shirley Parker's daughter, moved into the North Patterson Park Avenue house ("the House") soon after her mother rented it.2 On December 6, 1989, Sharon gave birth to Sean, the minor appellee, who lived there too.

Sometime in February or March 1991, when Sean was slightly more than a year old, Lewin purchased the House at auction. Lewin is owned by four stockholders, one of whom is Marvin Sober. The company has no employees. Mr. Sober is in charge of managing the company and conducting its day to day business. Before Lewin purchased the House, Mr. Sober went on a "walk through" inspection of it. Sharon was present when the "walk through" took place, and accompanied Mr. Sober as he inspected the House. Sharon testified that at the time of the "walk through," there was peeling, chipping, and flaking paint present in numerous areas of the interior of the House, including in Sean's bedroom.

After Lewin purchased the House, it entered into a new lease with Shirley. It did not re-paint the interior of the House at that time.

In February 1992, Sean was diagnosed with an elevated blood lead level. Four months later, in May 1992, a nurse from the Baltimore City Health Department ("BCHD") came to the House and spoke to Sharon about Sean's elevated blood lead level. Sharon testified that she first learned about Sean's condition at that time. That same month, the BCHD issued a lead paint violation notice for the property to Lewin. The House was inspected and found to contain 56 areas of peeling, chipping, and flaking lead paint.

Marvin Sober testified about his background and experience in the residential property leasing business. He stated that he started in that line of work in Baltimore City, in 1976. By the time relevant to this case, he was working for Lewin, and owned approximately 100 properties in the neighborhood of the House. Mr. Sober explained that he was the person to whom complaints concerning Lewin's properties were to be made, and who addressed them.

Mr. Sober testified that, as long ago as 1982, he was aware of the health dangers associated with lead paint exposure. By 1983 or 1984, he knew that lead paint exposure was dangerous to young children. In addition, before 1991, he knew that peeling, chipping, or flaking paint, whether on walls or woodwork, is the primary source of lead poisoning for young children and that the Baltimore City Code prohibits maintaining a residential property in such condition. Mr. Sober stated that the House was at least 50 years old. He admitted that at the time relevant to this case, he knew that in Baltimore City older houses generally were more likely than newer houses to contain lead paint.

Mr. Sober acknowledged conducting the "walk through" of the House for Lewin, before Lewin purchased it at auction. He was not asked on direct or cross-examination whether he saw peeling, chipping, or flaking paint during the "walk through." Mr. Sober further testified that after Lewin purchased the House, he was inside it on various occasions, from March 1991 to May 1992. Again, he did not address in his testimony, either on direct or crossexamination, what he did or did not see on those visits. Mr. Sober did say, however, that during that period, and until he received the lead paint violation notice, Shirley Parker did not make any complaints to him about the condition of the paint in the House.

A housing inspector for Baltimore City was called as a witness by the appellees. He stated on direct examination that upon inspection, the House was found to have numerous areas of peeling, chipping, and flaking lead paint. On cross-examination, the witness explained that lead paint inspections are done with devices that detect the presence of lead in intact paint. For that reason, a lead paint notice that says that lead paint has been found to exist in a property does not necessarily mean that the paint inside the property is peeling, chipping, or flaking. The inspection could have detected intact lead paint.

Additional facts will be included in our discussion of the issues.

DISCUSSION
I

Before trial, Lewin moved in limine to keep out of evidence five documents entitled, "Emergency Violation Notice and Order to Remove Lead Nuisance." These violation notices, which were issued at various dates in the 1980's, pertain to properties other than the one at issue in this case.3 The violation notices were issued by the Baltimore City Health Department to Mr. Sober and to the companies with which he then was associated. Each violation notice states:

It has been determined from elevated blood lead4 and an investigation by the Baltimore City Health Department that a child who frequents the above dwelling has an abnormal blood lead level. An inspection of this dwelling shows it contains lead-based paint. Such condition has been deemed by the Commissioner of Health to be hazardous to life and health and a public health nuisance.

In its motion in limine, Lewin argued that the violation notices were not relevant, were inadmissible "other bad acts" evidence, and were prejudicial. In argument before the trial court, Lewin acknowledged that the violation notices would be specially relevant to the issue of its knowledge (through Mr. Sober) of the health hazards of lead paint, if that issue were contested. Lewin proffered that Mr. Sober would testify that, at the relevant time, he in fact had such knowledge. It argued that because the issue of knowledge of the danger of lead paint was not contested, and the violation notices were not otherwise specially relevant, the court was required to exclude them. Counsel for the appellees replied that Mr. Sober had not conceded knowledge of the danger of lead paint in his deposition testimony.

The court denied the motion, but indicated that Lewin could renew its objection to the violation notices during trial. The court advised counsel for the appellees not to mention the notices in his opening statement.

As we have explained, when Mr. Sober testified, he admitted that several years before he conducted the "walk through" of the House, he had actual knowledge of the health hazards to children of lead paint. Mr. Sober was not asked any questions about the five violation notices for the other properties. Indeed, those notices were not mentioned during the testimony of any witness at trial.

At the close of the appellees' case, their counsel offered the five violation notices into evidence. Lewin objected and argued that the evidence was not relevant and, if relevant, was highly prejudicial. The appellees' counsel conceded that the issue of Lewin's knowledge (through Mr. Sober) of the hazards of lead paint at the pertinent time was not in dispute. He argued, however, that the notices were relevant to the issue of whether Lewin knew or had reason to know of the presence of deteriorating paint in the House when the minor appellee was living there. The court allowed the notices to come into evidence.

In closing argument, counsel for the appellees said to the jury, referring to Mr. Sober:

What does the evidence show? And not only did he have that academic or educational understanding of what lead could do and what was required, he had firsthand knowledge and firsthand experience of having children in his homes before this one exposed to and poisoned by lead. All of that knowledge he had, all of that experience he had is what you need to consider and evaluate in determining what conduct was required of Mr. Sober under the circumstances of this case.

In this Court, Lewin contends that the trial court erred in admitting the five violation notices into evidence. It argues that the admissibility of the notices was governed by Md. Rule 5-404(b); that the trial court failed to analyze the violations under that rule; that the notices were not specially relevant to a contested issue in the case, and instead were offered and used as propensity evidence; and that, even if the admissibility of the notices properly was controlled by Md. Rule 5-403, not Md. Rule 5-404(b), the trial court nevertheless abused its discretion in concluding that the probative value of the notices outweighed their...

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