Brown v. Dermer

BELL, Chief Judge. This is a negligence action, instituted in the Circuit Court for Baltimore City on behalf of two children, alleging lead-based paint poisoning. The issue presented to this Court is the propriety of the trial court’s grant of summary judgment in favor of the respondents, Frank and Harold Dermer, trading as HF & S Partnership (hereinafter “the Dermers” or “the respondents”). More particularly, we must determine whether allegations concerning a landlord’s knowledge that leased premises contain flaking, loose or peeling paint, a violation of the Baltimore City Housing Code (“housing code”), are sufficient to survive summary judgment, where the landlord denies all general knowledge of the hazards of lead-based paint and poisoning or of its presence in the leased premises.

The Court of Special Appeals affirmed the trial court’s grant of summary judgment. Brown v. Dermer, 120 Md.App. 339, 345 , 707 A.2d 407, 411 (1998). We disagree and, therefore, shall reverse. I. The minor petitioners, Clayton and Crystal Brown, twins, born in January 1984, periodically 1 resided in a house, located at 4112 Hayward Avenue in Baltimore City and owned by the respondents.

The house is a two story structure built in the early 1920’s and purchased by the respondents in 1981. The petitioners’ father, Christopher Brown, an existing tenant at the time of the purchase, then leased the house from the respondents. ³⁵⁰ The respondent, Frank Dermer is in business with his father, the respondent Harold Dermer. The respondents, under the name HF & S Partnership, purchased their first rental property in Baltimore City in 1968. Periodically thereafter, they invested in houses that needed restoration.

The respondents also did electrical, plumbing, heating, carpentry and home improvement work for various landlords in Baltimore City. In 1985, the petitioners were diagnosed with elevated blood-lead levels and lead poisoning. After receiving notice of the children’s condition and conducting an investigation to ascertain the source of the lead poisoning, the Baltimore City Health Department (BCHD) issued a violation notice to the respondents, listing thirty (30) violations, including twelve emergency violations, regarding the presence of deteriorated lead paint at 4112 Hayward Avenue. The notice required the respondents to make certain corrections and repairs, within one week, or by January 23, 1986.

The respondents did not complete the necessary repairs and corrections until April 10, 1986, more than two months later than ordered. The Petitioners, by their mother and next friend, Janet Brown, thereafter filed suit against the respondents in the Circuit Court for Baltimore City seeking damages for lead paint poisoning, alleging their negligence. 2 Janet Brown’s answers to interrogatories indicated that she informed the respondents of chipping, peeling and flaking paint in the house during 1983, one month before she became pregnant with the twins, but that respondents failed to correct the condition. The respondents denied that they were notified of chipping, flaking and peeling paint. At his deposition, the respondent Frank Dermer admitted that, at the time of the ³⁵¹ alleged lead poisoning, he was aware that Baltimore City laws and ordinances required rental properties be kept in habitable condition, that both Baltimore City ordinances and Maryland statutes banned the use of lead-based paint, and that the Baltimore City Code required the interior surfaces of rental buildings to be kept free of loose, flaking or peeling paint.

In addition, he admitted that, at around the same time, he was receiving the Evening Sun newspaper, in addition to watching television and listening to radio news reports. Frank Dermer also testified at deposition that he periodically visited 4112 Hayward Avenue to do maintenance and conduct inspections. He recalled being inside 4112 Hayward Avenue approximately four to five months before the violation notice of January of 1986 was issued, but stated that he was unaware of any loose, flaking, or peeling paint anywhere in the premises. The respondents moved for summary judgment, 3 arguing that, prior to the BCHD notice, they (1) had no knowledge of the hazard of lead-based paint, (2) were unaware that flaking and chipping paint in older houses could pose a danger to children, (3) had never before received a lead paint violation notice or had a lead paint suit filed against them, and (4) were unaware that the premises at 4112 Hayward Avenue contained lead paint in a deteriorated condition.

The petitioners filed an opposition to the motion, contending that there was sufficient evidence from which the respondents’ knowledge of the hazardous lead-based paint condition existing on the premises could be inferred. They also asserted that the Dermers could not, and should not be permitted to “close their eyes” to the issue of lead paint. The trial court granted the respondents’ summary judgment motion. It determined that there was no evidence from which a jury could infer that the respondents had knowledge of the ³⁵² presence of lead-based paint on the premises before they were served with notice of the BCHD notice.

The petitioners noted an appeal to the Court of Special Appeals. Relying on Richwind Joint Venture 4 v. Brunson, 335 Md. 661 , 645 A.2d 1147 (1994) and Section 358 of the Restatement (Second) of Torts, the Court of Special Appeals affirmed the judgment of the trial court. The intermediate appellate court held that “a plaintiff must present admissible evidence to permit a jury to infer that a landlord knew or had reason to know (1) that there was deteriorated paint on the premises, and (2) that the deteriorated paint contained lead.” Brown v. Dermer, 120 Md.App. at 345 , 707 A.2d at 411 . The Court of Special Appeals was satisfied that the record contained “sufficient evidence from which a jury could infer that lead paint existed on the premises in 1984-85 — when [the petitioner’s] exposure to lead occurred,” id. at 346 , 707 A.2d at 410 , and, “sufficient evidence from which a jury could infer that deteriorated paint existed on the premises in 1984-85 and that [the respondents] had knowledge or reason to know of that condition prior to January, 1986.” Id.

The court concluded, however, that “there is no ... evidence to show that [the respondents] knew or had reason to know that the deteriorated paint contained lead.” Id. The court also rejected the petitioners’ alternative claim, that the failure of the respondents to abate the hazardous condition within a reasonable time after they received the BCHD notice exposed the petitioners to lead-based paint for an additional period and, thereby, caused the petitioners to suffer injuries. The court reasoned that there was insufficient evidence in the record to support this allegation. Id. at 349 , 707 A.2d at 412 .

Specifically, the court concluded that the evidence on which the petitioners relied, did not support the claim factually. Id. 4 ³⁵³ We granted certiorari in this case, Brown v. Dermer, 350 Md. 279 , 711 A.2d 871 (1998), to determine whether the trial court correctly granted summary judgment, and to clarify the knowledge requirement in lead paint poisoning negligence actions based upon a violation of the housing code. Because we conclude that summary judgment should not have been granted, we reverse the judgment of the Court of Special Appeals and remand this case to the circuit court for further proceedings, consistent with this opinion. II The petitioners contend that the trial court’s grant oí summary judgment was legally incorrect.

Citing Richwind, supra, and § 358 of the Restatement (Second) of Torts, they argue that, where an injury is proximately related to a violation of the housing code — which, they point out, defines any flaking, loose or peeling paint as an unsafe condition, see Baltimore City Code (1983 Repl.Vol.), Art. 13 §§ 702 and 703 — the plaintiff, in order to survive summary judgment, need only present evidence that the defendant had notice of the noncomplying condition and a reasonable opportunity to correct it. See Richwind, 335 Md. at 674 , 645 A.2d at 1153 . As they see it, because sufficient evidence was present to allow a jury to conclude that the respondent had notice of flaking, loose or peeling paint on the premises, and that the condition was the proximate cause of their injury, the trial court should not have granted summary judgment in favor of the respondents. Alternatively, the petitioners argue that, even if knowledge of chipping, peeling and flaking paint is not enough, if the law requires the landlord to know or have a reason to know of the presence of lead-based paint before liability can attach, every landlord is presumed to know of the dangers of lead-based paint in older houses.

In this case, they ³⁵⁴ contend, the issue of the landlord’s “reason to know” of the dangers of lead-based paint in older houses and of the reasonableness of a landlord’s purported lack of knowledge is for a jury to decide after considering of all of the evidence. To hold otherwise, they argue, would invite landlord perjury. As expected, the respondents maintain that the trial court correctly granted summary judgment in its favor. They, too, rely on Richwind, supra, and § 358 of the Restatement (Second) of Torts.

Before liability can attach, the respondents argue, a landlord must have notice of a defective condition and a reasonable opportunity to correct it. See Richwind, 335 Md. at 674 , 645 A.2d at 1153 . As they see it, in order to overcome a motion for summary judgment in a lead paint poisoning action, a plaintiff must demonstrate that the defendant knew or had “reason to know” of the presence of lead-based paint in the premises and the risks that it presented. They assert that knowledge of flaking or chipping paint is not necessarily knowledge of an unsafe condition because nothing in the housing code informs owners that deteriorated lead-based paint could pose a health threat to young children.

They argue further that, because the petitioners failed to rebut the Dermer’s testimony that the Dermers did not know and, indeed, had no reason to know, of the presence and hazards of lead-based paint in the subject premises and in general, the trial court properly granted summary judgment, and the Court of Special Appeals properly affirmed that judgment. Ill Summary judgment is appropriate only where “there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Maryland Rule 2-501(e). . This Court discussed the summary judgment procedure in Hartford Ins. Co. v. Manor Inn, 335 Md. 135 , 642 A.2d 219 (1994), explaining: “The purpose of the summary judgment procedure is to decide whether there is an issue of fact sufficiently material to be tried, not to try the case or to resolve factual disputes. ³⁵⁵ Gross v. Sussex, Inc., 332 Md. 247, 255 , 630 A.2d 1156, 1160 (1993).

See Foy v. Prudential Insurance Company of America et al., 316 Md. 418, 422 , 559 A.2d 371, 373 (1989); Coffey v. Derby Steel Company, 291 Md. 241, 247 , 434 A.2d 564, 568 (1981). Thus, the review of the grant of summary judgment involves the determination whether a dispute of material fact exists, Gross, 332 Md. at 255 , 630 A.2d at 1160 ; Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005, 1011 (1993), and “whether the trial court was legally correct.” Heat & Power Corporation v. Air Products & Chemicals, Inc., 320 Md. 584, 591 , 578 A.2d 1202, 1206 (1990) (citations omitted). Pursuant to Maryland Rule 2-501(e), therefore, when the motion and response show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, the trial court shall enter summary judgment for the moving party forthwith. Gross, 332 Md. at 255 , 630 A.2d at 1160 .

The determination whether a genuine dispute of material fact exists and, if not, what the ruling' of law should be, requires the reviewing court to resolve all inferences to be drawn from the pleadings, admissions, and affidavits, etc. against the moving party. Id. at 256 , 630 A.2d at 1160 . ‘In other words, all inferences must be drawn against the moving party when determining whether a factual dispute exists, even when the underlying facts are undisputed.’ ” Id. Id. at 145, 642 A.2d at 224 . Summary judgment generally is inappropriate when matters — such as knowledge, intent or motive — that ordinarily are reserved for resolution by the fact-finder are essential elements of the plaintiffs case or of the defense.

See Di Grazia v. County Executive for Mont. Co., 288 Md. 437, 445 , 418 A.2d 1191, 1196 (1980); Clea v. Mayor & City Council of Baltimore, 312 Md. 662, 677 , 541 A.2d 1303, 1310 (1988). As was explained in Federal Sav. & Loan Ins. Corp. v. Williams, 599 F.Supp. 1184 (D.Md.1984), summary judgment is generally not appropriate for issues concerning knowledge, motive, or intent because “the facts concerning the defendant’s knowledge and conduct, and the circumstances in which they exist ³⁵⁶ ed, as well as any determinations of how they relate to the legal standard ... are best left for resolution by the trier of fact at trial.” Id. at 1213 .

See e.g. Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1345 (7th Cir.1977)(“Sumnaary judgment motions are particularly inappropriate vehicles by which to judge subjective considerations such as motive, intent, or knowledge.”). See also, Staren v. American National Bank and Trust Company of Chicago, 529 F.2d 1257, 1261-62 (7th Cir.1976); Conrad v. Delta Air Lines, Inc., 494 F.2d 914, 918 (7th Cir.1974); Schoenbaum v. Firstbrook, 405 F.2d 215, 218 (2d Cir.1968), cert. denied, Manley v. Schoenbaum, 395 U.S. 906 , 89 S.Ct. 1747 , 23 L.Ed.2d 219 (1969). Negligence is “any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm.” Holler v. Lowery, 175 Md. 149, 157 , 200 A. 353, 357 (1938), quoting Restatement of Torts A.L.I. § 282.

See William L. Prosser, Handbook of The Law of Torts § 43, at 250 (4th ed.1971). It does not exist apart from the facts and circumstances upon which it is predicated, Baltimore, C. & A.R. Co. v. Turner, 152 Md. 216, 228 , 136 A. 609, 614 (1927); Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 450 , 146 A. 282, 283 , (1929); Schell v. United Rys. & Elec. Co., 144 Md. 527, 531 , 125 A. 158, 159 (1924), necessarily involves the breach of some duty owed by a defendant to the plaintiff, Philadelphia, W. & B.R. Co. v. Kerr, 25 Md. 521, 530 (1866), and is inconsistent with the exercise of ordinary care. Paramount Development Corp. v. Hunter, 249 Md. 188, 193 , 238 A.2d 869, 871 (1968); Brown v. Ellis, 236 Md. 487, 497 , 204 A.2d 526, 530-31 , (1964).

In order to establish a cause of action for negligence, the plaintiffs must prove the following elements: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty. Richwind, 335 Md. at 670 , 645 A.2d at 1151 (citations omitted). See Manor Inn, 335 Md. ³⁵⁷ at 147-48, 642 A.2d at 225 ; Southland Corp. v. Griffith, 332 Md. 704, 712-13 , 633 A.2d 84, 88 (1993). Judge Cole, writing for the Court in Ashburn v. Anne Arundel County, 306 Md. 617, 627 , 510 A.2d 1078, 1083 (1986), analyzed the first element: “ ‘Duty’ in negligence has been defined as ‘an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.’....

There is no set formula for this determination. As Dean Prosser noted, ‘duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.’ ... In broad terms, these policies include: ‘convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, [and] the moral blame attached to the wrongdoer....’” (quoting W. Page Keaton, Prosser and Keaton on The Law of Torts, § 53, at 164 (5th ed.1984)). See Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76-77 , 642 A.2d 180, 189-90 (1994); Erie Ins.

Co. v. Chops, 322 Md. 79, 84 , 585 A.2d 232 (1991); Jacques v. First Nat. Bank of Maryland, 307 Md. 527, 532 , 515 A.2d 756, 758-59 (1986). We also have observed: “[T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed.

In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury.... As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.” ³⁵⁸ West Va. Central & P. R. Co. v. Fuller, 96 Md. 652, 666 , 54 A. 669, 671 (1903). We have recognized, however, that the concept of duty as owing to all persons the exercise of reasonable care to protect them from harm has to be limited if liability for unreasonably remote consequences are to be avoided.

Henley v. Prince George’s County, 305 Md. 320, 333 , 503 A.2d 1333, 1340 (1986). One of the mechanisms utilized for that purpose is, and has been, application of the variable, foreseeability, which “involves a prospective consideration of the facts existing at the time of the negligent conduct,” Henley, 305 Md. at 336 , 503 A.2d at 1341 , to the determination of whether a duty exists. Ashburn, 306 Md. at 627 , 510 A.2d at 1083 ; Henley, 305 Md. at 333-34 , 503 A.2d at 1340 . A duty may be, and often, is prescribed by statute.

See e.g Schweitzer v. Brewer, 280 Md. 430, 440-41 , 374 A.2d 347, 353 (1977). Where that is the case, the courts will defer to the legislative determination: “The general rule regarding the standard of conduct applied under our decisions to measure ... negligence does not supersede a prescription of conduct by the legislature. As we have indicated, what governs is the legislature’s intention ... not necessarily what a ‘reasonably prudent’ person would do under such circumstances. We said in Md. Medical Service v. Carver, 238 Md. 466, 478 , 209 A.2d 582, 588 (1965): “If the legislative intent is expressed in clear and unambiguous language, this will be carried into effect by this Court even if this Court might be of the opinion that the policy of the legislation is unwise, or even harsh or unjust, if no constitutional guarantees are impaired by the legislation.” Id. at 439-40, 374 A.2d at 353 .

It is well-settled that the violation of a statute may furnish evidence of negligence. Richwind, 335 Md. at 670-71 , 645 A.2d at 1151-52 ; Manor Inn, 335 Md. at 155 , 642 A.2d at 229 ; Atlantic Mutual v. Kenney, 323 Md. 116, 124 , 591 A.2d 507, 510 (1991); Aravanis v. Eisenberg, 237 Md. 242, 259-60 , ³⁵⁹ 206 A.2d 148, 158 (1965). But the mere violation of a statute will not sustain an action for damages unless the violation is the proximate cause of the injury. Proximate cause is established by determining whether the plaintiff is within the class of persons sought to be protected, and the harm suffered is of a kind which the drafters intended the statute to prevent.

Manor Inn, 885 Md. at 156, 642 A.2d at 229 ; Peterson v. Underwood, 258 Md. 9, 15 , 264 A.2d 851, 854 (1970); Owens v. Simon, 245 Md. 404, 409 , 226 A.2d 548, 551 (1967). It is the existence of this cause and effect relationship that makes the violation of a statute prima facie evidence of negligence. Liberto v. Holfeldt, 221 Md. 62, 65 , 155 A.2d 698, 700 (1959). The parties in the case sub judice direct our attention to the Baltimore City Housing Code which prescribes duties with regard to the lease of housing for human habitation.

See, Baltimore City Code (1983 RepLVol.), Art. 13 §§ 701 to 708. The purpose of the housing code is to: “establish and maintain basic requirements, standards and conditions essential for the protection of the health, safety, morals and general welfare of the public ... in the City of Baltimore; to establish minimum standards governing the condition, use, operation, occupancy and maintenance of dwellings ... in order to make the dwelling safe, sanitary and fit for human habitation” See Art. 13 § 103. In accordance with this purpose, the City Council, in clear and express terms, see Art. 13 § 702, § 703, § 706, has required landlords to ensure that leased dwellings are fit for human habitation, that is, are safe and sanitary to occupy. Section § 702 provides: “Every building and all parts thereof used or occupied as a dwelling shall, while in use ... be kept in good repair, in safe condition, and fit for human habitation.... ” Pursuant to § 703, defining the standards for good repair and safe condition, interior “walls, ceilings, woodwork, doors and windows shall be kept clean and free of any flaking, loose or peeling paint and paper.” § 703(2)(c) (emphasis added).

Sec ³⁶⁰ tion 706 addresses interior wall covering and paint. It provides: “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. No paint shall be used for interior painting of any dwelling, dwelling unit, or rooming unit unless the paint is free from any lead pigment.” Moreover, the housing code prohibits an owner from “leasing] or permitt[ing] the subletting to another for occupancy any vacant or vacated dwelling or dwelling unit which does not comply with [its] provisions-” § 1001. Further, § 9-14.1 provides: “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 housing code also provides for notice to those who violate its provisions and for the correction of any defective conditions caused thereby.

Article 13 § 301 provides: “Whenever the Commissioner of Housing and Community Development determines that there has been a violation of any provision of this Code or of any rule or regulation adopted pursuant hereto, he shall give notice of such alleged violation to the person or persons responsible therefor as hereinafter provided.” Section 303 requires the Commissioner to “order the necessary corrections by notice and service” as therein provided. In Richwind, this Court reviewed the requirements of §§ 702, 703 and 706. We concluded that: “[t]he implied warranty of habitability established by §§ 702 and 703 necessarily includes flaking, loose or peeling lead-based paint within the scope of hazardous conditions that render the premises unfit for human habitation. Thus, a landlord leasing property in Baltimore City is under a statutory obligation to correct such a hazardous condition even in the absence of a contractual duty to do so.” ³⁶¹ 335 Md. at 671, 645 A.2d at 1151 .

(emphasis added). The Court then recognized, quoting, with approval Restatement (Second) of Property, Landlord and Tenant § 17.6, 5 that violation of the city code provisions just referenced may be the basis for a negligence action. We opined: “a private cause of action in a landlord/tenant context can arise from a violation of any statutory duty or implied warranty created by the Baltimore City Code. If [the defendant] violated one of the city code provisions, that violation could provide the basis for a negligence action against it and its agent.... ” Id, at 672, 645 A.2d at 1152 .

From the foregoing, it is clear that it is unlawful to lease a dwelling with flaking, loose or peeling paint and that no premises are to be leased for human habitation, except those that are fit for human habitation, ie. those that are kept in good repair and safe condition as defined in the Baltimore City Code. To be sure, § 706 prohibits the use of lead-based paint for interior painting in a dwelling unit; however, neither it nor §§ 702 or 703 limits the prohibition of flaking, loose or peeling paint to lead-based paint. To be a violation, all that must be shown is that there was flaking, loose or peeling paint, without any further showing as to the content of the paint. Moreover, none of the provisions of the Housing Code premises violation on the landlord’s knowledge of the hazards of lead-based paint.

The plaintiff, however, still bears the burden of pleading and proving that the landlord had notice of a defective condition on the premises. Thus, to survive summary ³⁶² judgment, a plaintiff alleging lead paint poisoning caused by a landlord’s negligence in failing to correct a defective condition in a leased dwelling must first meet the “reason to know” test. Under this test, a plaintiff must present evidence that establishes that the landlord knew or had reason to know of a condition on the premises posing an unreasonable risk of physical harm to persons in the premises. See Restatement § 358(l)(b) (“knows or has reason to know of the condition ”) (emphasis added).

The fact that a defendant is a landlord or engages in a certain trade is not enough to meet the reason to know standard. Some evidence that, by virtue of those facts, the defendant has knowledge sufficient to support an inference of knowledge of the condition is required. Id. at 677, 645 A.2d at 1154-55 . It follows that, in order to present the question of the respondents’ negligence to the jury in a lead poisoning negligence action based upon a violation of the statutory duties in §§ 702 and 703, as is the case sub judice, all that a plaintiff must show in order to satisfy the reason to know element is that