Court of Appeals removes statutory hurdle in lead paint cases

In a victory for lead-poisoning victims, Maryland’s top court Monday struck down as unconstitutional a statutory provision that immunized landlords of older properties from liability if they met state registration requirements and offered $17,000 payments for the medical expenses of children at risk of lead poisoning.

The Court of Appeals, in its unanimous decision, called the immunity grant and $17,000 offer “totally inadequate and unreasonable” to compensate children severely harmed by lead paint.

“For a child who is found to be permanently brain damaged from ingesting lead paint, proximately caused by the landlord’s negligence, the maximum amount of compensation under [the] offer is minuscule,” retired Judge John C. Eldridge wrote for the court. “It is almost no compensation.”

The court said the immunity provision of the 1994 Reduction of Lead Risk in Housing Act violated Article 19 of the Maryland Declaration of Rights, which grants people the rights of access to the courts and to a remedy for their injuries.

The court’s decision removed a statutory hurdle to a $5 million lawsuit Zi’Tashia Jackson’s family brought against their former landlord, The Dackman Co.

The family alleged the company’s failure to keep two Baltimore residences free of lead paint caused the girl, now 14, to suffer brain damage. The Baltimore City Circuit Court and the intermediate Court of Special Appeals upheld the law’s constitutionality.

Saul E. Kerpelman, whose law firm represents the Jacksons, hailed the high court’s decision as reaffirming a basic legal principle.

“Someone that does wrong should have to pay for the damage that they do,” said the name partner at Saul E. Kerpelman & Associates in Baltimore. “That’s a 1,000-year-old rule of our system.”

The statute’s immunity provision required owners of properties built before 1950 to register them annually with the Maryland Department of the Environment and perform lead-reduction treatments, including the removal of flaking paint. The provision also required the landlords to make a “qualified offer” of up to $17,000 toward the medical costs or relocation of a child at risk of lead-paint exposure.

The provision was a key part of a compromise reached with landlords to ensure passage of the law aimed at keeping rental properties free of lead paint.

While it provided landlords with the financial benefit of immunity, the statute also imposed on them the costs of notice, remediation and inspections.

The court, in striking down the immunity provision, left intact the other requirements — a result Kerpelman called “the best of both worlds” for tenants.

But Donald Gifford, who chaired the state commission that helped draft the compromise legislation, said the court went too far.

The court’s decision “shows a lack of sensitivity to the legislative judgment and the commission’s judgment and to the protracted, difficult negotiations that went into this compromise,” said Gifford, who led the Lead Paint Poisoning Commission from 1992 to 1995.

The court could have ruled the provision unconstitutional as applied to Zi’Tashia’s claim, but not unconstitutional in all cases, added Gifford, a professor at the University of Maryland Francis King Carey School of Law.

Katherine Kelly Howard, a landlord attorney, voiced regret at the loss of a provision reached through compromise and aimed at helping landlords keep down their costs as well as the rents they charge.

“It is unfortunate that the part of the statute that was intended to balance the [landlord’s] expense and give what we used to call the carrot to the legislative stick has been excised from the statute,” said Howard, general counsel at Regional Management Inc. in Baltimore.

Howard said she and fellow landlord attorneys will be evaluating what effect, if any, the court’s decision will have on the advice they give their clients. But she predicted much of her advice will remain the same.

“Landlords need to do what they’ve always done as good landlords,” she said.

The Dackman Co.’s attorney, Thomas J. Whiteford, did not return telephone messages seeking comment. He is with Whiteford Taylor & Preston LLP in Baltimore.

The decision came nearly 2½ years after it was argued on May 5, 2009.

The time span is in keeping with an Aug. 15 report in The Daily Record that found many Court of Appeals cases remain pending more than two years after they are argued.

The report noted Eldridge, a retired judge who hears cases by special assignment, takes the longest of the judges to issue his decisions post-argument.

Eldridge declined to comment on why the unanimous decision in Dackman took more than two years to write, saying Chief Judge Robert M. Bell is the “spokesman for the court.”

Eldridge did take umbrage with The Daily Record’s noting of the time between arguments and decision at the high court, saying “this has been your campaign.”

Bell, through court spokesperson Terri Bolling, declined to comment on the time between argument and decision.

What the court held

Case:

Jackson et al. v. The Dackman Co., CA No. 131 Sept. Term 2008. Reported. Opinion by Eldridge, J. (retired, sitting by special assignment). Argued May 5, 2009. Filed Oct. 24, 2011.

Issue:

Is the immunity of landlords from liability under the conditions listed in the Reduction of Lead Risk in Housing Act constitutional?

Holding:

No: the immunity provision of the statute violates Article 19 of the Maryland Constitution, which grants people the right of court access and of remedy for injury.

Counsel:

Brian S. Brown for petitioners; Thomas J. Whiteford and James R. Benjamin Jr. for respondent.

RecordFax # 11-1024-20 (29 pages).