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Court of Appeals revives lead-paint lawsuit

Alleged victims of lead-paint poisoning in Baltimore need not notify their former landlords before conducting lead-paint tests unless the landlords still own or control the property, Maryland’s top court held Tuesday.

The Court of Appeals said the judge presiding over Hector Butler Jr.’s lead-poisoning claim wrongfully excluded test results that purportedly showed high lead levels at two of his childhood homes, because his landlords had not been given notice in advance of the tests.

Judicial scheduling orders for lead tests in Baltimore expressly require that notice be given to “defendants who still own the property,” the high court said.

“As such, a scheduling order cannot give rights to defendants who do not own or control the properties in question,” Judge Clayton Greene Jr. wrote for the Court of Appeals. “Therefore, we hold that the scheduling order, as written in the present case, applied to tests of properties still owned by a named defendant, and that only the defendant with ownership of the property has a right to attend the testing, consistent with the terms of the scheduling order.”

Butler’s attorney, Brian S. Brown, said Tuesday’s decision affirms the broad understanding among lawyers — for plaintiffs and defendants — that only current property owners need be notified before a lead test is conducted so that they can make the premises available. Brown said the system is fair because the former owners are likewise under no obligation to tell the plaintiff when they conduct a test.

“Forcing us to tell them when we are investigating interferes with the investigative process,” said Brown, of Saul E. Kerpelman & Associates P.A. in Baltimore. “They don’t tell me when they go out and have the neighborhood tested, nor should they have to.”

Neither Frank F. Daily nor William C. Parler Jr., the former owners’ attorneys, returned telephone messages seeking comment Tuesday.

Daily is with the Law Offices of Frank F. Daily in Hunt Valley, and Parler is with Parler & Wobber LLP in Towson.

The high court’s decision restores Butler’s claim of negligence against his former landlords.

Baltimore City Circuit Judge Pamela White had excluded the lead tests and, as a result, granted summary judgment for the landlords as to negligence and a separate claim under Maryland’s Consumer Protection Act.

Split win

The Court of Appeals affirmed White’s ruling on the consumer-protection claim because Butler had failed to show that the landlords actively concealed or failed to disclose loose, peeling or flaking paint at the inception of the lease, as required under the act.

“The undisputed facts are that [Butler’s] mother testified that there was no evidence of chipping or peeling paint at the inception of either lease and that [Butler], who made the allegations of improperly prepared surfaces in his answer to interrogatories, was an infant at the time of the tenancy,” Greene wrote. “Accordingly, there is no reasonable basis for a trier of fact to conclude that chipping or peeling paint existed at the inception of the lease.”

Judge Glenn T. Harrell Jr. concurred in the high court’s judgment but said the defendants had a right to be notified of and have an opportunity to attend the lead test. Their lack of access to the test could put the defendants at a distinct disadvantage at trial, he added.

“The handicap of not being able to verify with the defendants’ (or their consultants’ or experts’) own eyes how and where the lead testing was conducted by [plaintiff’s] expert places them, to a large degree, at the mercy of whatever the witness chooses to say, whether true, false, or merely overly generous in its slant toward what may be in plaintiff’s best interests,” Harrell wrote.

Butler filed suit against nine defendants on Oct. 9, 2007, for injuries he allegedly suffered from ingesting lead-based paint while an infant and toddler about 20 years ago at the two residences, on Linden and Bryant avenues. The defendants owned or managed the properties when Butler lived in them, according to the complaint.

Butler retained ARC Environmental Inc. to conduct tests in advance of trial. The landlords, who were not notified of the tests, argued that the lack of notice meant the results should be inadmissible. White agreed, granting summary judgment for the defendants.

Butler settled with one of the defendants, Barbara Benjamin, for an undisclosed amount while White’s rulings were before the Court of Special Appeals.

That court upheld White’s rulings in a published opinion on Aug. 31, 2012, prompting Butler to seek review by the Court of Appeals. The court accepted the case and heard argument on Sept. 4, the first day of its current term.

The remaining defendants are Stanley Rochkind; Rhoda Rochkind; Dear Management and Construction Co. Inc.; S&S Partnership; Charles Runkles; N.B.S. Inc.; Lee Shpritz; and S&S General Partnership.

WHAT THE COURT HELD

Case:

Hector Butler Jr. v. S&S Partnership et. al, CA No. 1, Sept. Term 2013. Reported. Opinion by Greene, J. Concurrence by Harrell, J. Argued Sept. 4, 2013. Filed Nov. 26, 2013.

Issue:

Did the trial judge err in ruling the plaintiff was required to notify the defendants prior to conducting a lead test?

Holding:

Yes; the plaintiff was under no obligation to notify anyone except the current owner of the property.

Counsel:

Brian S. Brown for petitioner; Frank F. Daily and William C. Parler Jr. for respondents.

RecordFax #13-1126-20 (42 pages).