Barksdale v. Wilkowsky

ADKINS, J. In this lead paint case, we revisit the standard for determining “harmless error” in a civil case involving a faulty jury instruction. The Petitioner, Janay Barksdale, sued the owners of her childhood home (the “Owners”), alleging injuries from lead paint on the premises. At trial, the Owners questioned Barksdale’s grandmother whether she had ever notified them of flaking and peeling paint in Barksdale’s home. The Owners then requested a jury instruction indicating that a person’s failure to report flaking paint to the landlord is evidence of negligence.

The trial court gave the instruction, even though the grandmother’s negligence was not attributable to Barksdale, and Barksdale herself was too young to ⁶⁵² have any duty to report. The jury issued a verdict in favor of the Owners. On appeal, the Court of Special Appeals upheld the jury verdict. It held that the jury instruction was erroneous, but also harmless.

Barksdale sought review from this Court on a number of issues. We granted certiorari to review the following questions, all involving the issue of “harmless error” from an erroneous jury instruction: 1) Whether the Court of Special Appeals correctly interpreted [and applied 1 ] the harmless error standard for a substantive jury instruction as enunciated by the Court of Appeals? 2) Whether the Court of Special Appeals’ interpretation of the harmless error standard for a substantive jury instruction is incorrect for a statutorily protected class such as lead poisoned children? 3) Whether the Court of Special Appeals’ interpretation and application of the harmless error standard for a substantive jury instruction is constitutional? We shall hold that the inclusion of the erroneous jury instruction was not harmless error, and reverse the judgment of the Court of Special Appeals. FACTS AND LEGAL PROCEEDINGS Janay Barksdale lived with her grandmother at 2440 West Baltimore Street (the “Property”) for eleven years, from her birth in 1988 until her grandmother moved in 1999.

Later, as a teenager, Barksdale was diagnosed with “mild mental retardation,” with a low IQ score and impaired senses. These impairments have limited her ability to read, her verbal language abilities, and her mathematical reasoning. Barks-dale attended school through the sixth grade, later working ⁶⁵³ briefly at a fast food restaurant. She has expressed an interest in becoming a medical assistant, security guard, or computer technician.

According to expert testimony, however, it would be extremely difficult for Barksdale to “obtain and maintain competitive employment” due to these impairments. Seeking redress for these injuries, Barksdale initiated the current suit, naming the Owners as defendants. 2 Barksdale alleged that, during her residence in the Property, she was exposed to chipping and peeling lead paint that caused her permanent mental injury. She alleged that the Owners never inspected the property or notified their tenants of the potential dangers of lead-based paint. Barksdale introduced medical records demonstrating that she had elevated blood levels as a child, and expert testimony linking those blood levels to her current impairments.

Yet, Barksdale was able to present only limited evidence of lead paint in the Property. After she and her grandmother moved out of the house, the Property sat vacant, until being purchased and “gut rehab[bed]” by a new owner in 2005. This owner replaced all interior walls and old window frames, and did not test for lead paint. Thus, there was no scientific record of the paint that existed during Barksdale’s residency.

Instead, Barksdale commissioned a test of the property on August 8, 2008, which revealed lead-based paint at one location—the staircase newel post. Barksdale relied on this test, her observations of chipping and flaking paint, and her elevated blood lead levels to claim that the source of her exposure to lead was the Property. The Owners contested this allegation on a number of levels. They introduced evidence of Barksdale’s mother’s behavior during pregnancy, which included drinking and smoking.

They also called an expert witness who testified that Barks-dale’s impairments were likely caused by something other ⁶⁵⁴ than lead paint poisoning. They argued that Barksdale’s lead levels were close to the average lead level in children during the 1970’s. 3 They introduced an expert -witness who testified that Barksdale could find employment, and who reported that Barksdale herself stated that she left her previous job to take care of her children, and that she “didn’t see herself as working” in her adult life. Furthermore, over the objection of Barksdale, the Owners implicitly introduced the issue of whether Barksdale’s grandmother was somehow at fault. Although the Owners did not explicitly argue that Barksdale’s grandmother was contributorily negligent or a superseding cause, the Owners questioned Barksdale’s grandmother as to whether she had ever reported the chipping and flaking paint to them.

She admitted that she had not done so. At the close of the trial, the Owners requested the jury instruction at issue in this appeal, relating to a tenant’s obligation, under Baltimore City Housing Code Article 13, Section 902, to report certain conditions to the landlord. The trial court included the instruction in the middle of its longer instruction regarding the Baltimore City Housing code, stating as follows: The violation of a statute which is a cause of [Barksdale’s] injuries or damages is evidence of negligence. The Baltimore City Housing Code states as follows; Section 103; purpose.

The purpose of this code is to prevent all conditions in and about dwellings which are now or which may in the future become so unsafe, dangerous, unhygienic or insanitary as to constitute a menace to the health and safety of the people. Section 702; good repair and safe conditions. Every building and all parts thereof used or occupied as a dwelling shall be kept in good repair in safe condition. Section 703; ⁶⁵⁵ standards for good repair and safe condition.

Good repair and safe condition shall include, but is not limited to the following standards; interior walls and floors shall be maintained free of loose materials. Section 706; painting. All interior loose or peeling wall covering or paint shall be removed and the exposed surface shall be placed in a smooth and sanitary condition. Section 1001; prohibited occupancies.

No owner shall lease or permit the subletting to another for occupancy and vacant or vacated dwelling or dwelling unit which does not comply with the provision of this code. Section 902A; every occupant of a dwelling or a dwelling unit shall keep in a clean and sanitary condition that part of the dwelling unit and the premises thereof which he occupies and controls. A clean and sanitary condition! ] shall include, but is not limited to the following standards; walls and windows. The Baltimore City Code of public local laws provides as follows ... in any written or oral lease or agreement for rental of a dwelling intended for human habitation, the landlord shall be deemed to covenant and warrant that a dwelling is fit for human habitation.

The Baltimore City Housing Code places a continuous duty on the landlord to maintain the property and keep it free of chipping, peeling and flaking paint at all times. It is not a violation of the law for lead paint to be present in a property. You are instructed that as a matter of law there is no evidence that the house where [Barksdale] lived was painted with lead-based paint by the Defendants. (Emphasis added).

On appeal, the Court of Special Appeals held that the facts of this case did not justify the instruction: Here, the requested instruction regarding the occupant’s duties to maintain the Property in a clean and sanitary condition, the obligation pursuant to § 902A, was not relevant to the issues before the jury, i.e., whether the landlord was negligent or engaged in deceptive trade practices in ⁶⁵⁶ renting the Property. Whether Ms. Barksdale’s grandmother kept the Property clean had no bearing on the jury’s assessment of those issues. In Bartholomee v. Casey, 103 Md.App. 34, 66 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995), a lead paint case, this Court stated that it “would have been error for the trial court to instruct the jury to find in favor of [the defendants] based on the parents’ actions.” The Court explained that “[t]he law in Maryland is clear that the negligent acts of a parent cannot be imputed to the minor child, and that negligent acts of the parent that merely contribute to the injury do not necessarily rise to the level of superseding causation.” Id. n. 16 (citing Caroline v. Reicher, 269 Md. 125 , 304 A.2d 831 (1973)). There was no argument here that the grandmother’s actions or inactions were a superseding cause of Ms. Barks-dale’s injuries.

Accordingly, the instruction regarding § 902 was irrelevant under the facts of this case, and the court erred in instructing the jury on § 902 of the Housing Code. Barksdale v. Wilkowsky, 192 Md.App. 366, 384-85 , 994 A.2d 996, 1007 (2010). 4 Recognizing the second step of an error analysis, the intermediate appellate court examined whether the error was harmless, by considering whether “the error was likely to have affected the verdict below”: Ms. Barksdale has not met her burden of showing prejudice. The court’s instructions made clear that the relevant issue for the jury was the conduct of appellees, not anything done by the occupants. The court instructed that a “minor cannot be held responsible for the negligence of the minor’s parent, guardian or custodian.” It also instructed that it was [the Owners] who had the duty to “maintain the proper ⁶⁵⁷ ty and keep it free of chipping, peeling and flaking paint at all times.” Thus, the jury clearly was advised that appellees had a duty to keep the Property free of chipping paint and that Ms. Barksdale could not be held responsible for any negligence on the part of her grandmother.

Moreover, there was no suggestion during closing argument that [the Owners] were relieved in any way of their statutory obligations to keep the premises free of chipped or flaking paint or that [the grandmother] was contributorily negligent for failing to clean up any chipped paint. Thus, although the court erred in giving the instruction, it was harmless error that does not require a new trial. Barksdale, 192 Md.App. at 385-86 , 994 A.2d at 1007 (citations omitted) (emphasis added). The Court of Special Appeals thus affirmed the jury verdict despite the erroneous instruction.

DISCUSSION The ultimate issue before this Court, presented as three different sub-issues, is whether the inclusion of the erroneous jury instruction in this case requires reversal of the jury verdict. “It has long been the policy in this State that this Court will not reverse a lower court judgment if the error is harmless.” Flores v. Bell, 398 Md. 27, 33 , 919 A.2d 716, 719 (2007). See also Greenbriar v. Brooks, 387 Md. 683, 740 , 878 A.2d 528, 563 (2005); Crane v. Dunn, 382 Md. 83, 91 , 854 A.2d 1180, 1185 (2004). 5 The harmless error rule “embod[ies] the principle that courts should exercise judgment in preference ⁶⁵⁸ to the automatic reversal for ‘error’ and ignore errors that do not affect the essential fairness of the trial.” Williams v. State, 394 Md. 98, 120 , 904 A.2d 534, 547 (2006) (Raker, J., dissenting) (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553 , 104 S.Ct. 845, 848-49 , 78 L.Ed.2d 663 (1984)). We will examine, in turn, the two issues which often comprise the harmless error analysis: (1) whether the complaining party is entitled to any presumption of prejudice, and (2) how a party can satisfy its burden of showing prejudice. We will then apply these standards to the facts in this case.

I. “Harmless Error” Analysis and Presumptions of Prejudice The question of whether a complaining party is entitled to a presumption of prejudice is an important, and often dispositive, question. The test that courts have employed varies by the context of the case—civil or criminal—and by the type of error alleged. As the Second Federal Circuit has described, courts analyzing prejudice have looked to the degree to which the conduct of the trial has violated basic concepts of fair play. See Kyle v. United States, 297 F.2d 507, 514 (2nd Cir.1961).

The Kyle court explained: The reason why the showing of prejudice required to bring down the balance in favor of a new trial will vary from case to case is that the pans contain weights and counterweights other than the interest in a perfect trial. Sometimes only a small showing of prejudice, or none, is demanded because that interest is reinforced by the necessity that ‘The administration of justice must not only be above reproach, it must also [be] beyond the suspicion of reproach,’ and by the teaching of experience that mere admonitions are insufficient to prevent repetition of abuse. In other cases, where the conduct of the trial has been less censurable, or not censurable at all, a greater showing of prejudice is demanded, because the interest in obtaining an ideal trial, ■with the trier of the facts considering all admissible evi ⁶⁵⁹ dence that has ever become available, and nothing else, is not thus supplemented and may be outweighed by the interest in avoiding a retrial unlikely to have a different outcome!.] See Kyle v. United States, 297 F.2d 507, 514 (2nd Cir.1961). 6 In civil cases, Maryland courts have varied the tests based on the relative gravity of the error. For the more egregious civil errors, Maryland employs a presumption of prejudice.

See Murrell v. Mayor & City Council of Baltimore, 376 Md. 170, 197 , 829 A.2d 548, 564 (2003) (prejudice presumed where written agency decision was issued by someone other than hearing officer, in violation of city procedural statute); Wyatt v. Johnson, 103 Md.App. 250 , 653 A.2d 496 (1995) (prejudice presumed when the court refused to provide jury with a verdict sheet itemizing damages in a personal injury case); King v. State Roads Comm’n, 284 Md. 368 , 396 A.2d 267 (1979) (when trial court erroneously struck five extra jurors to obtain panel of 12 after both parties exercised peremptory challenges, prejudice would be presumed, provided that, on remand, the record reflected that appellant objected to trial court’s procedure). 7 But see St. Luke Evangelical Lutheran Church v. Smith, 318 Md. 337 , 568 A.2d 35 (1990) (When trial court gave defendant extra four strikes, but also increased ⁶⁶⁰ plaintiffs strikes by four, no prejudice presumed because the parties were left in effectively the same position as before court’s action). We have previously justified this presumption of prejudice in the civil context on the need to provide for hearty review of trial errors. See Hams v. Harris, 310 Md. 310, 319-20 , 529 A.2d 356, 360-61 (1987). In Harris , we considered the erroneous disqualification of one of the party’s attorneys.

In addressing whether that error was harmless, we relied on a presumption of prejudice due to the practical impossibility of proving prejudice: If it is established on appeal that the disqualification was in error, we shall presume that the disqualified attorney’s former client has been prejudiced and the burden will be on the party advantaged by the erroneous disqualification to prove that the disqualification did not influence the outcome of the litigation. As we see it, the presumption of prejudice, by relieving the complaining party of the burden of establishing prejudice, renders a disqualification order subject to effective postjudgment review. Id. Other than these limited circumstances, the burden to show error in civil cases is on the appealing party to show that an error caused prejudice.

See Flores, 398 Md. at 33 , 919 A.2d at 719 ; Greenbriar, 387 Md. at 740 , 878 A.2d at 563 ; Crane, 382 Md. at 91 , 854 A.2d at 1185 ; Beahm v. Shortall, 279 Md. 321, 330 , 368 A.2d 1005, 1011 (1977); Klingensmith, Inc. v. Snell Landscape Contractor, Inc., 265 Md. 654, 662 , 291 A.2d 56, 60 (1972); M.A. Realty Co. v. State Roads Comm’n, 247 Md. 522, 527 , 233 A.2d 793, 797 (1967); State Roads Comm’n v. Kuenne, 240 Md. 232, 235 , 213 A.2d 567, 568 (1965). Although most of the harmless error analyses in civil law cases involve erroneous exclusion or admission of evidence, it is also clear that a party complaining of an erroneous jury instruction in a civil case must show prejudice. See Fry v. Carter, 375 Md. 341, 355 , 825 A.2d 1042, 1050 (2003) (“A ⁶⁶¹ judgment [regarding jury instructions] will not be reversed unless the complaining party can show both error and prejudice.”); Bowser v. Resh, 170 Md.App. 614, 648 , 907 A.2d 910, 930 (2006) (in civil case involving “inadvertent” error in jury instructions, “the appellant must show not only error but prejudicial error” to succeed on appeal). Here, Barksdale has suggested, in novel arguments, that she should be entitled to a presumption of prejudice.

First, Barksdale argues that a presumption should be afforded to “a statutorily protected class such as lead poisoned children[.]” Second, she contends that a defective jury instruction jeopardizes the constitutional guarantees of relief for injury, trial by jury, and due process, and therefore warrants a presumption of prejudice. We have never recognized a presumption of prejudice from error based on the personal characteristics of the complaining party, and Barksdale has provided no meaningful support for her arguments for such a presumption. 8 We decline to undermine decades of case law supporting our harmless error analysis in order to create a special rule in this case.

II

Satisfying the Burden of Showing Prejudice Our determination that the complainant has the burden to prove prejudice does not resolve this dispute. Our inquiry ⁶⁶² then becomes: what is sufficient to show prejudice in a civil jury instruction error? The harmless error test is one for which Maryland courts, like many other jurisdictions, have declined to establish “precise standards.” See Flores, 398 Md. at 33 , 919 A.2d at 720 ; Beahm, 279 Md. at 331 , 368 A.2d at 1011 (“Precise standards for the degree of prejudice required for reversal, have not been, and perhaps cannot be, established.”). Instead, we have determined prejudice based on the facts of each individual case.

See id.; State Deposit Ins. Fund Corp. v. Billman, 321 Md. 3, 17 , 580 A.2d 1044, 1051 (1990) (“In determining whether [the error] prejudicially affected the outcome of a civil case, the appellate court balances the probability of prejudice from the face of the extraneous matter with the circumstances of the particular case[.]”). Although a certain amount of generality is needed to retain flexibility in application of the rule, we will examine how Maryland courts, and other courts, have made determinations on prejudice, in order to flesh out the analytical framework. We have described the required showing of prejudice in multiple ways, alternatively stating that the complainant must show that prejudice was “likely” or “substantial.” Crane, 382 Md. at 91 , 854 A.2d at 1185 (using likely and substantial interchangeably); Beahm, 279 Md. at 331 , 368 A.2d at 1011 (substantial); Fry, 375 Md. at 356 , 825 A.2d at 1050 (substantial).

We have been consistent, though, in stating that the “focus of our inquiry is on the probability, not the possibility, of prejudice.” Flores, 398 Md. at 33 , 919 A.2d at 720 ; Harford Sands, Inc. v. Groft, 320 Md. 136, 148 , 577 A.2d 7, 12-13 (1990) (same); Hance v. State Roads Comm’n, 221 Md. 164, 176 , 156 A.2d 644, 651 (1959) (“substantial prejudice [must] be shown”). Thus, the general rule is that a complainant who has proved error must show more than that prejudice was possible; she must show instead that it was probable. 9 ⁶⁶³ In some cases, the harmlessness of the error is readily apparent. For example, an error in evidence is harmless if identical evidence is properly admitted. See, e.g., Beahm, 279 Md. at 332 , 368 A.2d at 1012 (erroneous admission, as substantive evidence, of non-treating physician’s testimony was harmless error because same testimony was properly admitted from treating physician); Hollingsworth & Vose Co. v. Connor, 136 Md.App. 91, 134-35 , 764 A.2d 318, 341-42 (2000) (error of admitting one expert’s testimony was harmless because another expert’s testimony, which was properly admitted, was substantially similar).

Moreover, erroneous instructions can be harmless if the Court takes appropriate steps to cure that error. See, e.g., Kruszewski v. Holz, 265 Md. 434 , 290 A.2d 534 (1972) (erroneous jury instruction was not prejudicial because trial judge gave clarifying instruction which was not objected to by either party). Other cases have required a more flexible inquiry, involving factors that sometimes resemble the factors that justify a presumption in other contexts. In Safeway Stores v. Watson, 317 Md. 178, 183-84 , 562 A.2d 1242, 1245 (1989), for example, we considered whether the wrongful sequestration of a civil corporate defendant’s designated representative under former Md. Rule 2-513 10 was a harmless error.

We analyzed multi ⁶⁶⁴ pie extrinsic factors, including the rights of the disadvantaged party, and the purpose that having a representative at trial serves. In a dual holding, we applied a presumption of prejudice and held that the appellant had demonstrated prejudice: We conclude that it is appropriate to presume prejudice from the wrongful exclusion of a party, or its representative, from a trial. Experienced trial attorneys and judges understand the importance of “humanizing” a corporate defendant in a jury trial. Moreover, a party is entitled to be present to have a firsthand view of the proceedings for purposes of evaluating the constantly changing prospects or exigencies for settlement, and to participate in tactical decisions that must be made, sometimes quickly, in the course of a trial.

Finally, the attorney for Safeway was deprived of the presence at his side of the principal investigator in the case. Whether we consider these facts as mounting up to the necessary proof of prejudice by Safeway, or simply consider them in determining that a presumption of prejudice is appropriate in this case, the result is the same. The claimant has not overcome the proof or presumption, and the result must be a new trial. Id. at 184 , 562 A.2d at 1245-46 .

Examination of Safeway Stores and other cases suggests that there is a fine line between presuming prejudice due to the magnitude and importance of the error, and declaring that the burden has been met due to the materiality of the error and its relation to the issues in the case. 11 ⁶⁶⁵ When prejudice is not readily apparent, a reviewing court must focus on the context and magnitude of the error. Maryland Rule 5-606 strictly limits a court’s ability to inquire, post-verdict, into “the sworn juror’s mental processes in connection with the verdict.” 12 Thus, a court cannot “unbake” the jury verdict and examine the impact of any one ingredient. 13 In the criminal context, this difficulty has led Maryland to adopt a presumption of prejudice for errors, which may be rebutted by the State. 14 Although, in the civil context, this ⁶⁶⁶ same difficulty does not give rise to a universal presumption of prejudice, it does shape the applicable harmless error test. Fry v. Carter, 375 Md. 341 , 825 A.2d 1042 (2003), demonstrates this point. In Fry , a highway construction worker was killed when a trucker, carrying roof trusses which protruded off the side of his vehicle, struck the construction worker on his head when driving by the construction site.

The deceased workers’ family brought suit against the truck driver for negligence. After the close of evidence, the judge gave an “unavoidable accident” instruction to the jury, over the objection of the plaintiff, stating as follows: An unavoidable accident is an inevitable occurrence which is not to be foreseen or prevented by vigilance, care, and attention and not occasioned by or contributed to in any manner by an act or omission of the party claiming the accident was unavoidable. And in this case, the defendant claims that the accident was unavoidable. Id. at 346-47 , 825 A.2d at 1045 .

The jury returned a verdict in favor of the defendant, and the case reached this court on the