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Lead-paint lawsuit against housing authority dismissed

The courthouse doors are closed to an alleged victim of childhood lead-paint poisoning who failed to notify the Housing Authority of Baltimore City within 180 days after being diagnosed with an elevated blood lead level, a Maryland appeals court has held.

In its 3-0 decision, the Court of Special Appeals upheld Baltimore City Circuit Judge Evelyn O. Cannon’s dismissal of Kevin Antoine Mitchell’s $2 million claim that his exposure to lead paint while living in an HABC property caused brain damage. Mitchell did not notify the agency until nearly 19 years after the diagnosis, well beyond the 180-day requirement under the Local Government Tort Claims Act, the intermediate appellate court said.

Mitchell’s attorney said he is “absolutely appealing” the decision to Maryland’s top court.

State lawmakers never intended for LGTCA’s notice requirement to apply to HABC when it acts as a landlord rather than as a governmental agency, Peter G. Byrnes Jr. said in previewing his forthcoming petition asking the Court of Appeals to hear the case.

Byrnes called it unfair for victims of lead-paint poisoning and for their families to be held to the notice requirement because their landlord was a city agency rather than a private company.

“This is an issue that desperately needs clarification” by the Court of Appeals, said Byrnes, of Bennett & Albright PA in Baltimore. “It’s an insult to the citizens of Baltimore for the housing authority to place upon its renters a greater level of vigilance than it took upon itself in order to understand the dangers that certain properties presented.”

But HABC’s attorney said the agency, when serving as a landlord, does not stop being part of city government and is entitled to LGTCA’s notice requirement. HABC, unlike a private landlord, does not operate properties to make money, added J. Marks Moore III.

“That issue has been addressed by the courts and they have found that the housing authority is acting in a governmental capacity as a landlord and not in a proprietary capacity,” said Moore, of J. Marks Moore III LLC in Baltimore.

“They do not operate subsidized housing to make a profit,” he added. “They operate it because that’s their mission. Their mission is to provide affordable housing to those who cannot find it in the marketplace.”

Byrnes, in pressing Mitchell’s appeal, had argued that the notice requirement does not apply to lead-poisoning cases. Byrnes had cited the Court of Appeals 2009 ruling in Brooks v. HABC that the agency did not have governmental immunity from being sued when it serves as a landlord.

The Court of Special Appeals agreed that Brooks permitted HABC to be sued. However, the ruling did not eliminate the notice requirement, the court said.

The appellate panel also rejected Byrnes’ argument that, even if notice was required, Mitchell had “good cause” not to provide it because his mother was unaware of the requirement and he was unable to comprehend it because of his diminished intelligence.

The court said “good cause” did not exist because of the “extreme” time lapse between Mitchell being first diagnosed with elevated lead levels in 1989 and the filing of his lawsuit in 2008. Permitting the lawsuit to proceed at this late juncture would be unfair to the agency, the court added.

“[T]he HABC made what a reasonable judge … could have believed was a strong showing of prejudice, as it no longer had any documents or witnesses, and the mere passage of 19 years would be sufficient to dim even the brightest memory,” Judge Deborah S. Eyler wrote for the court.

Mitchell lived at 10011 Valley St. in Baltimore with his mother and grandmother from his birth on Aug. 18, 1987, until about age 3. During that time, he was exposed to chipping, peeling and flaking lead-based paint, according to the lawsuit.

On April 13, 1989, his blood lead level was first recorded as elevated.

Mitchell sued HABC, claiming negligence and Maryland Consumer Protection Act violations, on April 3, 2008, nearly 19 years after the initial diagnosis.

The HABC moved for summary judgment on Sept. 8, 2009, based on Mitchell’s failure to meet the notice requirement.

The agency stated that, due to the lack of required notice and the long passage of time, it no longer had a tenant folder for Mitchell’s family or any records related to the Valley Street property from the tenancy. In addition, HABC personnel from 1987 to 1990 have since left the agency.

Cannon granted the summary judgment motion on Oct. 26, 2009, prompting Mitchell to seek review by the Court of Special Appeals.

Eyler was joined in her opinion by Court of Special Appeals Chief Judge Peter B. Krauser and retired Judge James P. Salmon, who was sitting by special assignment.

What the court held

Case:

Mitchell v. Housing Authority of Baltimore City, CSA No. 2293, Sept. Term 2009. Reported. Opinion by Eyler, D., J. Filed May 25, 2011.

Issue:

Did the judge err in dismissing a lead-paint poisoning case against HABC, as a landlord, where plaintiff did not meet the notice requirement under the Local Government Tort Claims Act?

Holding:

No; Even as a landlord, HABC is entitled to notice within 180 days of diagnosis under the LGTCA.

Counsel:

Peter G. Byrnes Jr. for appellant; J. Marks Moore III for appellee.

RecordFax # 11-0525-00 (39  pages).