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Court of Appeals orders new lead-paint trial

The judge presiding over a lead-paint poisoning trial should not have told the jury that the tenant had a duty to keep the property “in a clean and sanitary condition,” Maryland’s highest court held Monday.

The Court of Appeals ordered a new trial on Janay Barksdale’s claims that she suffered brain damage from cracking lead-based paint in the home her grandmother rented from G&S Real Estate.

Maryland law makes clear that landlords must provide rental homes free of cracking lead-based paint, the top court said. The trial judge’s instruction indicated that tenants had a similar duty under Baltimore City Code Section 902A.

The Court of Appeals said the instruction raised the “impermissible insinuation” that a tenant could be at fault for not having cleaned up chipping or flaking paint. Barksdale’s grandmother, the primary tenant, had testified at trial that she had done nothing to remove the paint.

“Maryland law has determined that the responsibility of a landlord to protect children from lead-paint poisoning is an important one, and thus does not allow the landlord to escape liability by blaming the child or her family,” Judge Sally D. Adkins wrote for the court. “In a case like this one, the correct jury instructions … may fail to explore the tenant’s failure to clean up chipping paint. In that sense, fairly or unfairly, Maryland has weighted the scale.”

The jury found G&S Real Estate not liable for Barksdale’s childhood lead poisoning, and Barksdale appealed. The intermediate Court of Special Appeals had upheld the verdict, saying Cox’s improper reference to the code section — which is trumped by state law — was “harmless error” outweighed by his clear instruction that the ultimate obligation rests with the landlord.

The top court, though, said the error could well have misled or distracted the jury.

Law professor Donald Gifford, who was not involved in this case, said the court’s decision puts the onus on landlords to ensure their properties are free of lead-paint hazards.

“It’s a combination of the landlord’s obligation combined with the idea that we’re not going to allow negligence from the parent, or grandmother in this case, to be imputed to the child,” said Gifford, who teaches torts at the University of Maryland Francis King Carey School of Law. “The Court of Appeals is sending a clear message that landlords are going to be held liable in cases of childhood lead poisoning.”

Uncertain ‘cure’

Barksdale, whose IQ has been measured at 55, lived at 2440 W. Baltimore St. from birth in 1988 until age 11. The West Baltimore property was owned by Ronald Greenwald’s and Stewart Sachs’ G&S Real Estate during those years.

Barksdale, then 20, and her grandmother, Emma Oliver, testified at the January 2009 trial that there was chipping paint at the rowhouse. Oliver testified the landlord never inspected the property but admitted she never reported the paint issue or requested it be fixed.

David F. Albright Jr., Barksdale’s attorney, appealed the verdict to the Court of Special Appeals, which upheld Cox’s jury instruction in a reported opinion last May.

“The court’s instruction made clear that the relevant issue for the jury was the conduct of appellees, not anything done by the occupants,” the intermediate court said.

But the Court of Appeals disagreed. Baltimore City Circuit Judge Sylvester B. Cox had created confusion with his reference to Section 902A, which seemed to pin blame on the grandmother, the court said.

“An erroneous instruction may be prejudicial if it is misleading or distracting for the jury and permits the jury members to speculate about inapplicable legal principles,” Adkins wrote. “With an error touching the heart of the litigation, we cannot be sure that the erroneous instructions were ‘cured’ by the correct instructions when both were presented to the jury as equals.”

Albright called the decision a repudiation of the “it’s the tenant’s fault” defense in lead-paint cases.

“The message from the Court of Appeals is that the defendant cannot request any instruction that indicates the tenant was in any way responsible for the injury,” said Albright, of Bennett & Albright PA in Baltimore.

The landlords’ attorney, Frank F. Daily, said he “never argued in any way, shape or form” that the grandmother was to blame for Barksdale’s alleged lead-paint poisoning. The judge’s reference to the housing-code provision was appropriate as the code was an element of the case, Daily added.

He said the high court’s decision will not have “a significant effect on how lead paint cases are tried” because defense attorneys in this type of litigation seldom place the blame on tenants.

“I don’t think contributory negligence is typically an issue in these cases,” said Daily, of The Law Offices of Frank F. Daily PA in Hunt Valley. “We did not intend to make it an issue in this case.”

Judge Lynne A. Battaglia was the only member of the Court of Appeals who did not join Adkins’ opinion. Battaglia did join the judgment in favor of Barksdale being granted a new trial, without comment.

WHAT THE COURT HELD

Case:

Janay Barksdale v. Leon Wilkowsky et al., CA No. 66, Sept. Term 2010. Reported. Opinion by Adkins, J.; Battaglia, J., concurred in the judgment. Filed May 23, 2011.

Issue:

Did the judge err by giving jury instructions that included the tenant’s upkeep obligation, which is irrelevant in lead-paint cases?

Holding:

Yes; the erroneous reference to a tenant’s obligation touched the heart of the litigation, and could have misled or distracted the jury from the correct legal principle.

Counsel:

David F. Albright Jr. for petitioner; Frank F. Daily for respondent.

RecordFax # 11-0523-20