Caroline v. Reicher

Digges, J., delivered the opinion of the Court. According to the Maternal and Child Health Service of the U. S. Department of Health, Education, and Welfare, “Lead poisoning in children, resulting mostly from ingestion of chips of lead-containing paint from walls and woodwork in old, dilapidated housing, remains a unique public health problem.” 1 Each year this spreading epidemic causes “the deaths of many children and mental retardation or other neurological handicap in many other children.” 2 This appeal presents one such case. Here, the'appellants, Dawn Caroline and her mother, who were tenants in an apartment owned and operated by appellee, Reicher Enterprises, Inc., have attempted to hold their landlord and its corporate officers, Edward and Sidney Reicher, liable for the tragic injuries Dawn suffered as a result of ingesting paint chips containing lead. In June 1968, Brenda Caroline, Dawn’s mother, rented for $75 per month an apartment located at 3000 W. North ¹²⁷ Avenue, Baltimore City, Maryland, from Reicher Enterprises, Inc., one of the appellees.

Shortly thereafter, Miss Caroline moved into the apartment with her three daughters — Dawn, then one year old, her older sister Kimberly and younger sister Crystal. The family continued to reside at that address until September 1969. At the trial in this case, Miss Caroline testified that prior to renting the apartment she made an inspection tour of the dwelling and found the place to be in poor condition — in need of painting and wallpapering. She stated that throughout the dwelling the paint was “chipped and cracking and peeling.” Nevertheless, she says she decided to rent it because Mr. Edward Reicher promised to paint and fix up the apartment after she moved into it.

Some time during the fifteen months the Carolines occupied this apartment, Dawn became listless, lost her appetite and began to cry for long periods of time. In the summer of 1969, when these symptoms persisted, Miss Caroline had her daughter examined at University Hospital; but, because her ailments were attributed to jealousy of her younger sister, she was sent home without any treatment. A short time later, Dawn suffered convulsions and was hospitalized. At this time the seriousness of her illness was unmistakable and was diagnosed as lead poisoning.

As a result of this poisoning the young child suffered permanent blindness, retardation, and other neurological handicaps. Due to these injuries, appellants filed this suit in the Court of Common Pleas of Baltimore City against the corporate owner of the apartment property, Reicher Enterprises, Inc. and its corporate officers, Edward and Sidney Reicher. At the instance of the appellees, the case was later removed to the Circuit Court for Montgomery County for a jury trial. The declaration alleges that Dawn and her mother moved “into the apartment as their place of residence; that both before and after the time the infant Plaintiff and her said mother moved into and began to reside in the apartment, the said Defendants individually and/or severally had either caused or allowed the ¹²⁸ continued existence of its interior and exterior walls and woodwork and the first floor exterior side door and frame to be painted with paint containing lead pigment thereby rendering the apartment unsafe and dangerous and unfit for human habitation, especially for a child of tender years, and, during the time the infant Plaintiff resided in the apartment owned by the Defendants, she ingested and consumed paint containing lead and lead pigment thereby causing the infant Plaintiff to suffer [her] injuries, illnesses, and infirmities.” At the close of the plaintiffs’ case, Judge H. Ralph Miller directed verdicts in favor of the two individual defendants, Edward and Sidney Reicher; but denied a similar request as to the corporate defendant.

At the close of all the evidence, Judge Miller submitted the case to the jury on the issue of the corporate defendant’s liability. The jury returned a verdict in favor of the defendant corporation and after denying a motion for judgment n.o.v. or in the alternative a new trial, Judge Miller ordered the entry of a final judgment for the defendants. This appeal was then timely noted. Appellees are apparently satisfied with all aspects of the trial as they did not cross appeal; however, appellants raise four contentions in hope of obtaining a reversal.

First, they posit that the trial judge erred in one of his instructions to the jury when he stated that the landlord was not liable if his negligence was merely “passive and potential” while the “moving and effective cause of the injury” was the superseding negligence of the mother. Second, appellants suggest that Judge Miller erred when he refused to reinstruct the jury after its forelady asked a question about relevant sections of the Baltimore City Code and one about the law of negligence as it related to the condition of paint on the exterior of the building. Third, appellants contend that the trial judge prejudiced their case when he suggested that the jury consider damages only after determining liability and when he stated that this case required more medical testimony than the normal case to connect Dawn’s illness with the landlord’s negligent act. And, finally, ¹²⁹ appellants submit that the trial court was in error when it directed a verdict in favor of one of the corporate officers.

Under the view we take of this appeal, it is only necessary to discuss appellants’ first and last contentions. Appellants initially contend that Judge Miller erred when, in the course of his instructions to the jury, he stated that: “It is the law of this State, going into another matter, that negligence on the part of a parent or custodian of an infant shall not be imputed to the infant to bar him or her from her claim for damages from the mere fact of such parenthood or custodianship; however, the Court instructs the jury, that if you find the injury might not have happened to the infant plaintiff, but for an antecedent act of the defendant, the defendant is not liable if his negligence was merely passive and potential, when the negligence of another, such as the mother, is the moving and effective cause of the injury.” And, appellants say that the trial judge compounded this error when, following an objection, he expanded the instruction as follows: “I told you a little bit about the fact that it is the law in this State that any negligence on the part of the parent cannot be imputed to the infant, just from the fact that that is the parent; and then I went on to say that the Court instructs you that if you find that the injury might not have happened to the infant Plaintiff, but for an antecedent act of the Defendant, the Defendant is not liable if its negligence was merely passive and potential, when the negligence of another, such as the mother, is the moving and effective cause. Now, what that means in essence is that if the Defendant is clearly negligent, and the mother was somewhat negligent, too, of course, you could not bar the child’s recovery. You could only bar the child’s recovery if the ¹³⁰ mother’s negligence was the principal thing that brought about this injury.

Now, that would be true even though the Defendant had committed some violation, if you found that that was not the real cause, that it was really the mother’s, that is the only way you could bar the recovery of this Plaintiff, of the infant, that, of course, taking into consideration all the Court’s instructions, previously given you. Now, of course, an infant child of this age can not be guilty of negligence herself. You are not to consider that at all.” The basis of the appellants’ objection was that there was not sufficient evidence in the case to warrant an instruction that the negligence of the mother could be considered as a superseding cause so as to relieve the landlord of liability. Appellants argue that, while the instruction correctly states under Maryland Code (1957, 1969 Repl.

Vol), Art. 75, § 2, that the negligence of the parent cannot be imputed to the child, nevertheless, it erroneously permits this when it allows the jury to consider the question of the mother’s superseding negligence. That Code section, which prohibits the imputation of a parent’s negligence to a child, changed the law of this State. Prior to its enactment in 1956, the rule in Maryland was that: “If the child be so young as not to be able to take care of itself, then parental neglect, resulting in injury, may be imputed to the child.” Graham v. Western Md. Dairy, 198 Md. 210 , 81 A. 2d 457 (1951). While we do not think that Art. 75, § 2 relieves a parent of a child of tender years from all supervision over such child, we do think that, if that section is to have any meaning, it is only in the somewhat extraordinary situation where the parent’s negligence is such as to constitute an independent and superseding cause of the child’s injuries, that the dormant negligent act of another is discharged.

Katz v. Holsinger, 264 Md. 307 , 286 A. 2d 115 (1972); Farley v. Yerman, 231 Md. 444 , 190 A. 2d 773 (1963); Barnes v. Housing Authority, 231 Md. 147 , 189 A. 2d 100 (1963). ¹³¹ Under the evidence here, as a matter of law, we do not think that the actions of the mother were such as to be a superseding negligent cause. And, we will not permit this attempted end run around the provisions of Art. 75, § 2 to succeed. We recognize that a determination of whether the intervening act of a third person is a superseding cause which discharges the original actor from liability may be a question for the trier of fact. But, when the evidence presented and the logical inferences deducible therefrom admit of but one conclusion, the question becomes one of law.

Katz v. Holsinger, supra; Farley v. Yerman, supra. It is true that the facts of a case may place it in the middleground where the issue of the existence of superseding negligence is properly left for the trier of fact; but, some cases are such that they gravitate so close to one or the other of the two poles that resolution of the issue becomes one of law. In Katz and Farley , cases factually analogous to the one here and presenting identical legal problems, we considered this issue. As we think what we said there is applicable here and those cases are dispositive of this one, we will discuss them at some length.

In Farley , a four year old child of a tenant sustained serious injuries when she was burned by flames from a gas log located on the premises rented from the landlord-defendant. This Court reversed the judgment in favor of the defendant directed by the trial court, and remanded the case for a new trial. The evidence there showed that the furnace in the apartment was defective and did not furnish sufficient heat. There was a gas log which projected about 6 inches into the living room from a shallow fireplace.

The landlord told the plaintiffs to use the log when needed to supplement the furnace and showed them how to use it. On various occasions the landlord was advised of the danger this posed, as the plaintiffs had four small children; and, while he promised to buy a screen for the fireplace, he did not. The plaintiffs could not afford to buy one themselves. One cold December day the log was lit and the mother and her daughter were looking out the window.

Suddenly, the 4 year old turned and ran across the room in ¹³² front of the log. The flames whipped out and ignited the child’s dress. In Farley, supra at 448-50 , Judge Hammond stated for the Court that: “The landlord argues that.. . his failure to provide the screen was not a proximate cause of the accident. He urges that his negligence, if there was any, was merely passive and potential, while the