Bartholomee v. Casey

HOLLANDER, Judge. In this lead paint case, appellants, Wayne Bartholomee and the personal representative of the estate of Vivian Grossman, appeal from a judgment entered in the Circuit Court for Baltimore City in favor of appellees, Tina Casey, a minor, and Michelle Robinson McDaniel, her mother and next friend. Appellees claim that Casey suffered lead poisoning from her exposure to lead-based paint at one or more residences, and that appellants, who were owners/landlords of these residences, were negligent in failing to abate the hazard. 1 After a five day trial, the jury determined that appellants were negligent and awarded damages in the amount of $225,000. On appeal, Bartholomee and Grossman contend that the trial court erred in several respects regarding evidentiary matters and pretrial procedure, and in its denial of their motions for judgment notwithstanding the verdict. 2 In light of Richwind Joint Venture 4 v. Brunson, 335 Md. 661 , 645 A.2d 1147 (1994) and Scroggins v. Dahne, 335 Md. 688 , 645 A.2d 1160 (1994), we shall reverse as to Bartholomee, and reverse and remand as to Grossman. ³⁹ Factual Background In order to apply properly the legal principles that govern this case, we shall review, in the light most favorable to McDaniel and Casey, the evidence adduced at trial.

Franklin v. Gupta, 81 Md.App. 345, 354 , 567 A.2d 524 (1990). Additional facts pertinent to the legal issues will be addressed as necessary in our discussion of the law. Casey was born on June 24, 1980. At that time, McDaniel had been living with Barney Casey, Tina’s father, for several months at Barney Casey’s apartment.

The residence, located at 726 North Carrollton Street in Baltimore City (the “Carroll-ton Property”), was a one-bedroom apartment on the second floor of a rowhouse that had been divided into several apartments. During Casey’s first months of life, the adjacent building, 724 North Carrollton Street, was undergoing demolition and construction. Casey spent almost all her time inside the Carrollton Property, except when McDaniel took Casey to play in a park across the street, which McDaniel did as often as three times a week. In June, 1980, Bartholomee purchased the Carrollton Property.

Prior to the purchase, Bartholomee inspected the entire building with the seller; Bartholomee felt that the paint, while not fresh, did not need a new coat. He was, however, aware that Baltimore City ordinances required rental dwellings to be free of flaking, chipping, and peeling paint. McDaniel never met Bartholomee, as Barney Casey handled all matters requiring the attention of the landlord, including complaints. Barney Casey did not testify at trial.

McDaniel believed, however, that Barney Casey had complained to the landlord about the condition of the paint, although she was not present when he made his complaints. 3 Bartholomee testified that he never knew that anyone other than Barney Casey was ⁴⁰ living in the apartment. He also claimed that no one ever complained to him of flaking, chipping, or peeling paint. Bartholomee testified that he did not know whether the paint in the Carrollton Property contained lead, and he was not aware, at the relevant time, of the dangers of lead-based paint. The appellees did not present evidence that the paint in the Carrollton Property had been tested for lead content.

It is undisputed that Bartholomee never received notice from the City that the Carrollton Property contained lead paint. Between the time Bartholomee purchased the Carrollton Property and the time McDaniel and Casey moved out, Bartholomee never entered their apartment. Nor did Bartholomee or anyone else inspect the apartment or repair any chipping paint. Bartholomee ultimately sold the Carrollton Property in November, 1991.

Some time around Casey’s first birthday (ie., June 26, 1981), McDaniel and Casey moved into a house rented by Melvin and Gloria Wilson, Casey’s maternal grandmother and step-grandfather, located at 1951 West Fayette Street in Baltimore City (the “Fayette Property”). 4 Grossman owned the Fayette Property from before 1980 until December 12, 1981. The Wilsons rented the house in 1980—well before McDaniel and Casey moved in—and they continued to rent until they purchased it in 1987. Before renting, the Wilsons visited the premises and met Grossman there. As Grossman showed the house to the Wilsons, the Wilsons noted that it needed painting; the walls had chips, marks, and scratches.

Accordingly, Grossman of ⁴¹ fered the Wilsons a reduction of the first month’s rent if they would paint the apartment, and the Wilsons agreed. Prior to moving in, the Wilsons’ friends helped them paint the interior of the entire house. When they were finished, the Wilsons did not see any flaking, chipping, or peeling paint anywhere in the house. Grossman never returned to inspect the quality of the Wilson’s painting.

When McDaniel and Casey moved into the Fayette Property, McDaniel noticed flaking paint around the kitchen sink and ■windows, falling plaster on the stairway leading up to the second floor, and peeling paint on the exterior of the house. During the first months at the Wilsons’ home, Casey did not go to day care or sleep in another home. When she could, she played outside the front of the house. The first sign of lead poisoning occurred in April, 1981.

A finger-stick test, performed at the Provident Druid Children and Youth Center (“Provident”), indicated that Casey had a lead level of 34 micrograms per deciliter of whole blood (“|xg/dl”). At the time, a level of 30 |Ag/dl was considered the upper limit of normal. As finger-stick tests were often inaccurate, 5 no one took immediate action. On August 7, 1981, when a more accurate venous sample indicated a lead level of 44 ixg/dl, Provident reported Casey’s elevated blood levels to the Baltimore City Health Department.

However, when the Health Department sent a health inspector to the Fayette Property on August 24 and 27, 1991, Ms. Wilson refused to let the inspector enter the home. On September 3, 1981, Casey received another finger-stick ⁴² test, which indicated a lead level of 38 fig/dl. 6 On September 15, 1981, after the Health Department threatened to have Casey removed from the home, the Wilsons allowed a health inspector to inspect the Fayette Property. On September 23, 1981, the Health Department sent Grossman notice that the Fayette Property contained lead. Specifically, the notice stated that lead was present in the paint on various surfaces, both inside and outside the house.

Of the 28 places listed, the notice indicated that only the paint on the front exterior of the house was flaking. The notice ordered Grossman to abate the lead hazard. By October 15, 1981, Grossman had removed all the paint up to the four-foot level by burning and scraping the paint, as she had been directed to do by the Health Department. Grossman never repainted the house.

On October 28, 1981, the Health Department reinspected the property and noted that all affected areas were then in compliance with Health Department directives. Additionally, in December, 1981, a venous blood test showed Casey’s lead level at 30 (xg/dl. On December 16, 1981, Grossman sold the Fayette Property. Later, on May 17, 1982, the Health Department visually inspected the Fayette Property, and did not discover any new hazards.

Nevertheless, six venous blood tests taken between July 6, 1982 and January 19, 1983 indicated that Casey had lead levels between 39 (jug/dl and 48 |xg/dl. On August 8, 1982, Provident referred Casey to the Kennedy Institute (“Kennedy”) 7 for further testing and treatment. Finally, in January, 1983, McDaniel and Casey moved out of the Fayette Property and into their own apartment at 2207 Booth Street. Casey continued to receive treatment for lead poisoning at Kennedy through June 6, 1989. ⁴³ Procedural History On February 14, 1989, Casey and McDaniel filed suit in the Circuit Court for Baltimore City against Bartholomee, Gross-man, and the owners/landlords of 2207 Booth Street.

After protracted discovery, the case was set for trial on April 6, 1993. On March 5, 1993, Grossman filed a motion for summary judgment, 8 to which Casey and McDaniel responded on March 19,1993. Grossman, in turn, filed a reply on March 24, 1993. On April 2, 1993, four years after the complaint had been filed and four days before the trial was to begin, Casey and McDaniel filed a “Supplemental Answer to Defendant’s Motion for Summary Judgment,” which included affidavits by Melvin and Gloria Wilson.

In the affidavits, the Wilsons averred that, when they moved into the Fayette Property in 1980, Grossman knew that the exterior and portions of the interior had peeling paint, that Grossman had been notified of lead paint in the premises in September, 1981, and that the flaking and chipping paint persisted in the house even after Grossman’s attempted abatement. On April 5, 1993, at the hearing on Grossman’s motion for summary judgment, Grossman orally moved to strike the affidavits as conclusory, untimely, and in direct contradiction to the witnesses’ earlier deposition testimony and to plaintiffs’ answers to Grossman’s interrogatories. Grossman also made a motion in limine to exclude any testimony as to the exterior of the Fayette Property. Grossman requested either the total exclusion of the testimony as to the exterior of the property or a postponement of the trial in order for Grossman to conduct additional discovery.

The judge granted the motion to strike, denied the motion in limine, and deferred ruling on the motion for summary judgment. The case proceeded to trial the next day before another judge. Before impaneling a jury, Grossman renewed the motion in limine, again requesting either exclusion of the ⁴⁴ testimony as to the exterior or a postponement. The judge reconsidered his colleague’s earlier decision to strike the affidavits, and he reviewed the contents of the affidavits.

He then denied Grossman’s motion for summary judgment, motion in limine, and request for postponement. During the trial, Grossman repeatedly, but unsuccessfully, objected to testimony regarding the exterior of the Fayette Property, and at one time even renewed the motion in limine. In appellees’ case in chief, Casey and McDaniel called five witnesses: Casey; McDaniel; Melvin Wilson; Dr. Barry A. Hurwitz, an expert in the field of clinical psychology; 9 and Dr. J. Julian Chisolm, an expert in the field of pediatrics and childhood lead poisoning. 10 The court allowed Casey and McDaniel to introduce certain Kennedy records, over the objections of Grossman and Bartholomee, who had argued that the records contained hearsay outside of the business records exception. On the third day of trial, Melvin Wilson began to testify regarding the condition of the interior of the Fayette Property following Grossman’s abatement.

Grossman objected, contending that, like the evidence concerning the exterior of the house, the testimony about abatement methods and post-abatement hazards directly contradicted plaintiffs’ discovery responses, and should be excluded. The trial court overruled this objection, and admitted the evidence. Dr. Chisolm later supplemented Mr. Wilson’s testimony, discussing the hazards of abatement methods and the causal link between the post-abatement hazards and Casey’s lead poisoning. ⁴⁵ At the close of plaintiffs’ case, and again upon the close of all the evidence, defendants moved for judgment; the court denied all motions. The court then proceeded to instruct the jury.

All parties noted numerous exceptions as to instructions given and not given. After the jury returned its verdict, each defendant moved for JNOV. The court denied the motions as to Grossman and Bartholomee. Issues Presented On appeal, Bartholomee and Grossman each present several procedural, evidentiary, and substantive issues.

Because these issues interconnect and overlap, we have distilled and rephrased the issues as follows: 1. Did the trial court abuse its discretion as to Grossman by admitting evidence that did not conform to plaintiffs’ discovery responses? 2. Did Casey and McDaniel present sufficient evidence of appellants’ negligence, including evidence of breach of duty and proximate cause? 3. Did appellees present sufficient notice to appellants of a defective condition in the premises? 4.

Were the opinions of Dr. Hurwitz and Dr. Chisolm admissible as presented? 5. Did the court err in admitting the Kennedy records? 6. Did the court err in its instructions to the jury? As to Grossman, we are of the view that the trial court abused its discretion by admitting evidence that did not conform to appellees’ discovery responses.

We further hold that, in light of Richwind and its progeny, the trial court erred in failing to grant Bartholomee’s motion for judgment or JNOV. Moreover, as to both appellants, based on Richwind, the court erred in its instructions as to the law. For the reasons discussed below, we shall reverse as to Bartholomee and, as to Grossman, we shall reverse and remand for a new trial. ⁴⁶ Discussion I. Discovery Issues We begin our analysis with a discussion of Grossman’s discovery disputes. Preliminarily, we note that the discovery issues are pertinent only to Grossman; our ultimate decision with respect to Bartholomee, as discussed infra, does not depend on the resolution of the discovery contentions.

During discovery, Casey and McDaniel submitted the following answers to interrogatories propounded by Grossman: 3. If you contend that any efforts by Defendant at the premises to scrape off and remove materials or substances containing lead or lead pigment were ineffective or incomplete, or failed to removed [sic] entirely lead or lead-based pigment, describe the facts upon which you rely in support of that contention. Answer: Satisfactory as far as I am concerned. Tina was in school while the Defendant abated the premises. 6.

If you contend that any abatement notice from the Baltimore City Health Department (to the effect that a housing violation had been corrected and abated or that an alleged condition containing lead-based paint was removed to the satisfaction of the Health Department) was erroneous or inaccurate, or that the alleged condition was not in fact corrected, state the facts upon which you base any such contention. Answer: No such contention. 22. State those facts supporting the allegations of paragraphs 3, 4, 5, 6, 7, 9, and 10 of the Complaint [negligence count against Grossman]. Answer: The Defendant allowed loose, flaking lead based paint to remain in the dwelling in violation of the Housing Code Sections 702, 703, 706. 24.

Describe the facts supporting paragraph 5(f) of the Complaint [failure to inspect, test, or eradicate lead paint]. ⁴⁷ Answer: The Defendant allowed loose, flaking lead based paint to remain in the dwelling in violation of the Housing Code Sections 702, 703, 706. 29. State those facts upon which you base any other allegations contained in the Complaint against this Defendant. Answer: None. (Emphasis added).

Casey and McDaniel never filed any supplemental answers to these interrogatories. Further, their deposition testimony was wholly consistent with the answers to interrogatories. As we previously noted, four days before trial—the proverbial 11th hour in a case that had been pending for over four years—Casey and McDaniel filed affidavits that averred, for the first time, that when the Wilsons moved into the Fayette Property, Grossman knew that the exterior had peeling paint, that Grossman had been notified of lead paint in the premises in September, 1981, and that the flaking and chipping paint persisted in the house even after Grossman’s attempted abatement. Grossman moved, in limine, for a postponement or, alternatively, for a determination barring evidence as to the exterior of the house.

The trial court denied both requests, and permitted the introduction of evidence regarding the exterior paint condition. During Melvin Wilson’s direct examination, he began to testify as to the condition of the interior of the Fayette Property following Grossman’s attempted abatement. Gross-man objected on the grounds that, like the evidence concerning the exterior of the house, testimony about improper abatement methods and post-abatement hazards directly contradicted plaintiffs’ discovery responses, and should be excluded. The trial court overruled this objection, and admitted the evidence.

Later, the court permitted Dr. Chisolm to testify about abatement methods and post-abatement hazards. As a result, the jury heard considerable evidence concerning the dust created by lead-paint abatement methods available in 1981, the condition of the Fayette Property after abatement, ⁴⁸ and a possible causal link between Casey’s lead poisoning and her prolonged exposure to paint dust at the Fayette Property after abatement. In addition, in final summation, counsel for appellees argued that Grossman’s negligence included insufficient abatement, as the evidence showed that the lead hazards continued to exist after abatement. Maryland law is well settled that a trial court has broad discretion to fashion a remedy based on a party’s failure to abide by the rules of discovery.

Taliaferro v. State, 295 Md. 376, 398 , 456 A.2d 29 (1983). A trial court clearly has the power to exclude evidence willfully withheld by one party in violation of properly filed discovery requests. Md.Rule 2-433(a); Hon. Joseph F. Murphy, Jr., Maryland Evidence Handbook § 504(C), at 235 (2d ed. 1993); Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary, Rule 2-422, at 302 (2d ed. 1992) (hereinafter, “Niemeyer & Schuett”).

See also, Starfish Condo. Ass’n v. Yorkridge Serv. Corp., 295 Md. 693 , 458 A.2d 805 (1983) (the exclusion of any testimony by an expert witness whose name had not been disclosed prior to trial despite clear interrogatories requesting such names is appropriate unless the court makes some other adjustment in fairness to the objecting party). When a party’s failure to supply information properly requested in an interrogatory becomes apparent early in the case, any injury to the opponent can be easily remedied by an order compelling disclosure.

See Md.Rule 2-432(b). On the eve of trial, however, “the injury inherent in failure to make discovery is unfair surprise. It would seem that the only effective cure for this disease is preclusion of the material withheld.” John A. Lynch, Jr. & Richard W. Bourne, Modem Maryland Civil Procedure, § 7.8(c), at 597 (1993) (hereinafter, “Lynch & Bourne”); see also, State Roads Comm’n v. 370 Ltd. Partnership, 325 Md. 96, 106-111 , 599 A.2d 449 (1991) (by not disclosing the name of an expert who has been carefully instructed not to form an opinion until trial, the party offering the expert unfairly surprised the defendant and expert’s testimony should have been excluded); Niemeyer & Schuett, su ⁴⁹ pra, at 302 (“Answers to interrogatories are useful to preclude use of information not disclosed in them.”). The issue here is whether the court’s failure to exclude evidence regarding the exterior of the house, the abatement methods, and/or post-abatement hazards constituted an abuse of discretion and prejudiced Grossman’s defense.

See Mitchell v. Montgomery Co., 88 Md.App. 542 , 550-54, 596 A.2d 93 (1991) (despite plaintiffs claim that witness was testifying as to fact, witness was really offering an opinion as an unqualified expert; moreover, defendant’s case was prejudiced by the plaintiffs failure to identify the witness as an expert in discovery, and admission of the witness’ testimony constituted reversible abuse of discretion). Such an inquiry is necessarily fact-specific. Turning to the evidence as to the exterior of the house, we see no error. “A party seeking discovery may not expect his opponent to construe discovery requests as broadly as possible, in essence, to volunteer information beyond the request, on pain of preclusion of evidence at trial as a discovery sanction.” Lynch & Bourne, supra, at 597 (citing Cromwell v. Ripley, 11 Md.App. 173 , 273 A.2d 218 (1971)). The evidence as to the condition of the exterior paint may have constituted evidence pertinent to a theory of liability with regard to the interior paint, because it might support a finding that Gross-man knew or had reason to know of a condition inside the house.

But given the fact that the Health Department notice unmistakably stated that the paint on the exterior of the house contained lead and was flaking, Grossman could hardly claim to have been surprised by plaintiffs’ desire to place that evidence before the jury. It is also unlikely that a delay for additional discovery would serve any useful purpose, as the witnesses and documents already collected would, in all likelihood, be the same as those needed to address the condition of the exterior of the house. Finally, even if Grossman did suffer some unfair surprise, Grossman has not demonstrated that she has been so prejudiced as to support a finding that the trial court abused its discretion. ⁵⁰ In contrast, we believe the trial court abused its discretion by admitting evidence concerning the abatement methods and post-abatement conditions. In discovery, Casey and McDaniel made two significant, affirmative statements as to an entire potential theory of liability: Grossman’s abatement was “sufficient,” and nothing was inaccurate in the Health Department’s assessment that the Fayette Property complied with all requirements after abatement.

Such language can only be construed as being tantamount to a concession that the abatement procedure was legally adequate and that, at least after the abatement, Grossman had fulfilled any duty to Casey. If so, then evidence of the abatement procedure, hazards subsequent to the abatement, and injuries resulting from those hazards, were not probative of the negligence issue. Further, to have admitted such evidence was certainly prejudicial; we cannot say that the jury was not influenced by evidence that the hazards persisted even after abatement or that the abatement was done incorrectly. Presentation of such evidence, which flatly contradicted plaintiffs’ answers to interrogatories, constituted the kind of unfair surprise that careful adherence to the discovery process was intended to avoid.

This Court is mindful of the harshness of excluding significant portions of potentially relevant testimony based on discovery failures, of penalizing a minor child due to the acts of an attorney or parent, of the pressures upon busy trial counsel, and of the virtual impossibility of postponing the case during the middle of trial. But we are equally mindful of the prejudice that may follow an opponent’s failure to supplement answers to interrogatories. Under appropriate circumstances, it is the opponent who must suffer the consequences of a discovery violation. Where, as here, a party’s claim or defense is substantially prejudiced by an opponent’s failure to provide, in a timely manner, information in discovery, the trial court’s failure to fashion at least some remedy to alleviate the resulting injury constitutes an abuse of discretion.

In the middle of the trial, a postponement would have been impractical; the court should have barred introduction of such critical evidence because it was not timely disclosed in discovery. Our ⁵¹ determination, however, does not necessarily preclude admission of the evidence at any retrial, for Grossman could no longer claim surprise or prejudice.

II

Sufficiency Of The Evidence As previously noted, the trial court denied the motions for judgment and for JNOV. Bartholomee and Grossman challenge this decision on the grounds that appellees failed to meet their prima facie burden of proof with respect to two elements of the negligence claim: (1) notice to the landlord and (2) causation in fact. Grossman further contends that her entitlement to judgment or JNOV would have been even stronger if the evidence that did not conform to plaintiffs’ discovery responses had been excluded. 11 Preliminarily, we observe that a party is entitled to a directed verdict or JNOV when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party’s claim or defense. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 248-49 , 272 A.2d 1 (1971); Smith v. Bernfeld, 226 Md. 400, 405 , 174 A.2d 53 (1961).

On review, this Court must assume the truth of all credible evidence and all inferences of fact reasonably deducible from it tending to sustain the decision of the trial court in favor of the nonmoving parties. If the record discloses any legally relevant and competent evidence, however slight, from which the jury rationally could have found as it did, we must affirm the denial of the appellants’ motions. Franklin v. Gupta, 81 Md.App. 345, 354 , 567 A.2d 524 (1990). If, however, the evidence as a whole does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s conclusion with reasonable certainty, then the denial of appellants’ motions for judgment or JNOV was error.

Montgomery Ward & Co. v. McFarland, 21 Md.App. 501, 513-14 , 319 A.2d 824 (1974). ⁵² Our analysis of the evidence presented must be considered in light of Richwind Joint Venture 4 v. Brunson, 335 Md. 661 , 645 A.2d 1147 (1994) and Scroggins v. Dahne, 335 Md. 688 , 645 A.2d 1160 (1994). We recognize that these cases were decided after the trial and after all appellate briefs had been filed in the instant case. A critical issue here concerns the notice that Bartholomee and Grossman were entitled to receive before they could be held liable for any failure to remove hazards from lead-based paint. Casey and McDaniel essentially raise two theories of liability: First, they contend that a violation of Baltimore City Code, Art. 13, §§ 701-08 (1983) constitutes sufficient evidence of negligence to create a jury question; second, they argue that the evidence supports the conclusion that both landlords either actually knew that paint was peeling or should have known of it in the exercise of reasonable care.

Richwind refutes the first theory as to the legal effect of a violation of the City Code. There, as here, the minor child and her mother claimed that the City ordinances limited the common law rules of notice; a violation of the applicable ordinances would be sufficient to impose liability, even if the landlord lacked actual knowledge or any reason to know of the violation. Relying on Hayes v. Hambruch, 841 F.Supp. 706 (D.Md.1994), and after examining the Code sections and the Restatement (2d) Torts, the Court held that the City ordinances do not alter the common law rules 12 of notice. Richwind, 335 Md. at 674-76 , 645 A.2d 1147 ; see also, Bradshaw v. Prince George’s Co., 284 Md. 294, 302 , 396 A.2d 255 (1979) (“It ⁵³ is presumed that the legislative body did not intend to make any alteration of the common law other than what is plainly stated.”).

At common law, before a landlord could be held liable for latent hazards, the landlord must have had actual knowledge or reason to know of the hazard, and must have had an adequate opportunity to repair the condition. Richwind, 335 Md. at 673-74 , 645 A.2d 1147 (citing eases). Richwind , as amplified by Hayes and Scroggins , also addresses appellees’ second theory pertaining to the issue of knowledge of a dangerous condition. The sum of these cases appears to be that in order for a landlord to have reason to know of the hazard, the landlord must be aware both that a condition is hazardous and that the condition exists on the premises.

In Richwind , based on its particular facts, the Court concluded that the landlords’ level of knowledge was sufficient to constitute reason to know of a dangerous condition. There, one of the landlords was an attorney who had managed properties in Baltimore City for some sixteen years, knew that homes built before 1957 often contained lead-based paint, knew that chipping, flaking, or peeling lead-based paint posed a danger to children who ingested that paint, knew that the plaintiffs’ house had been built before 1957, and knew—from a series of written complaints—that the paint in plaintiffs’ house was peeling. The Court rejected the landlords’ argument that, absent actual knowledge or reason to know that the specific peeling paint in question contained lead, he had no legal notice of the lead hazard. Id., at 679 , 645 A.2d 1147 .

The Court reasoned as follows: We agree that knowledge of the fact that older homes often contain lead-based paint, without the knowledge that the paint in a particular older home is actually peeling or flaking, may be insufficient by itself to hold a landlord liable. Based on the evidence presented, however, the jury in the instant case could have found that [the landlords] received actual notice of peeling paint on the premises and also, because of [the landlords’] knowledge about older homes ⁵⁴ often containing lead-based paint, knew or had reason to know that the peeling paint in this house was lead-based. Upon obtaining that knowledge, the landlords knew the risk peeling lead-based paint represented to the tenant’s children. Id., at 670-71 , 645 A.2d 1147 (citations omitted).