Casey v. Grossman

THIEME, Judge. This is appellant’s second appeal in a case involving lead paint exposure. In her prior appeal this Court remanded the case to the Circuit Court for Baltimore City for a new trial. Appellant suggests that the issues of this appeal, which have been reworded and renumbered, are I. Did the circuit court err in granting summary judgment in favor of appellee?

II

Did the circuit court err in denying appellant’s motion for reconsideration, holding that the record lacked legally sufficient evidence to permit a fact finder to conclude that the landlord’s negligent act was a substantial factor in causing lead paint injury to the minor? We answer “yes” to both questions. Facts The appellant, Tina Casey, was born on June 24, 1980. In August 1981, she and her mother, Michelle Robinson, moved to 1951 West Fayette Street in Baltimore.

The subject property was leased by Gloria and Melvin Wilson, appellant’s maternal grandmother and step-grandfather. The property owner was appellee, Vivian Grossman, who had owned the property from before 1980 until December 12,1981. Appellant was first diagnosed with elevated blood lead levels in April 1981, prior to her residency at appellee’s property. As a result of that diagnosis, appellant was tested at various ⁷⁵⁵ times including once per month during August and September 1981.

Her blood lead levels were 44 and 38 micrograms per deciliter of whole blood (mu g/dl), respectively. At the time, a level of 30 mu g/dl was considered the upper limit of normal. On September 17, 1981, appellee was advised by a health department inspector that a lead hazard existed on her property. On September 23, 1981, the Baltimore City Health Department issued a lead paint violation notice to the appellee.

Appellee was given until October 15, 1981, to abate the hazard. The Health Department reinspected the property and noted that all affected areas were in compliance on October 28, 1981. In December 1981, a venous blood test showed appellant’s lead level at 30 mu g/dl. Appellee sold the Fayette property on December 16,1981.

Appellant, by her mother, filed suit on February 14, 1989, against appellee, as well as various other defendants, based on negligence. Appellant alleged that she was exposed to lead-based paint and contracted lead poisoning while a tenant at appellee’s property. A jury returned a verdict in favor of Tina Casey. Two of the defendants, including Grossman, appealed to this court, which reversed and remanded the case as to Grossman.

Bartholomee v. Casey, 103 Md.App. 34 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995). The reversal was based on Casey’s failure to establish that the conduct of Grossman was a substantial factor in causing a lead paint injury to her. The case was remanded to permit Casey to produce evidence that the conduct of Grossman was a substantial factor in causing harm. Upon remand, appellant again deposed J. Julian Chisolm, M.D. Based on his deposition, appellee moved for summary judgment on the ground that appellant Casey had again failed to prove causation.

The circuit court agreed and granted summary judgment in favor of appellee on December 26, 1996. On January 24,1997, appellant filed a motion to reconsider the summary judgment in favor of appellee. By memorandum opinion, on July, 25, 1997, the motion to reconsider was denied. On October 16, 1997, appellant filed this appeal. ⁷⁵⁶ Discussion Before we consider the appeal from the granting of summary judgment, we will first review the dates and procedural posture of this case for clarity. 12/26/96: Summary judgment granted in favor of appellee. 1 1/24/97: Appellant filed a Motion to Reconsider Summary Judgment. 7/25/97: Appellant’s Motion to Reconsider denied, under Rule 2-535. 10/3/97: A notice of Voluntary Dismissal was filed as to all remaining defendants. 2 10/16/97: Appellant filed this timely appeal.

A final and appealable order was entered on October 3, 1996, when the case as to the remaining defendants was disposed of. Since the appeal was subsequently filed on October 16, 1997, it was filed well within the thirty days allowed. I. As to the issue of summary judgment in favor of appellee, Md. Rule 2-501(e) states that summary judgment is appropriate “if the motion and response show that 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.” A trial court determines whether any factual issues exist, and must resolve all inferences against the moving party. Inner Harbor v. Myers, 321 Md. 363, 368 , 582 A.2d 1244 (1990).

A jury issue exists if there is “any evidence, however slight, legally sufficient as tending to prove negligence, the weight and value of such evidence being left to the jury. Meager evidence of negligence is sufficient to carry the ⁷⁵⁷ case to the jury.” Richwind v. Brunson, 96 Md.App. 330, 350 , 625 A.2d 326 (1993), aff'd in part, rev’d in part, 335 Md. 661 , 645 A.2d 1147 (1994) (emphasis in original). To begin our analysis of the case, we review what occurred at the hearing for summary judgment and the briefs and evidence submitted by the parties. During the hearing before the motions hearing judge, appellee argued that the record in the case before the trial court that day was essentially the same as that in the prior case of Bartholomee v. Casey.

The only exception was evidence contained in a deposition of Dr. Chisolm. Appellee then explained that “the Court of Special Appeals is clearly the law of the case,” and then attempted to paraphrase what this Court stated in Bartholomee v. Casey. Appellee told the trial court that what this Court said was that the defendant/appellee could only be liable for a discrete period of time between September 17, 1981, 3 and October 15, 1981 (i.e. notice and abatement). Appellee’s description of the evidence before the trial court, as well as appellee’s interpretation of what this Court stated in its prior opinion, although not accurate, was presumably relied upon by the trial court in its ruling in favor of appellee.

As to appellee’s statement regarding the record, pursuant to Rule 2-311(c), appellant attached the trial testimony of Michelle Robinson (appellant’s mother) to the Response -to Defendant’s Motion for Summary Judgment, marking it Exhibit #1. Ms. Robinson testified at trial that, even after the abatement in October 1981, there was chipping paint on the floor, vestibule area, and window sills. This testimony was found by this Court to have been prejudicial in the prior appeal, because it contradicted appellant’s answers to interrogatories, no supplemental answers to interrogatories were filed, and the affidavits that averred that chipping paint persisted after abatement were filed four days before trial. Thus, we found that Ms. Robinson’s testimony constituted an ⁷⁵⁸ unfair surprise to appellee and that the trial court erred by allowing the evidence in that case.

We also stated: Our determination, however, does not necessarily preclude admission of the evidence at any retrial, for Grossman could no longer claim surprise or prejudice. Bartholomee v. Casey, 103 Md.App. at 50-51 , 651 A.2d 908 . When appellant attached the testimony of Michelle Robinson to her Response, she re-offered the evidence in this case. Therefore, there was more than just the deposition of Dr. Chisolm before the trial court, and the testimony should have been considered in deciding the issue of summary judgment.

As to whether this Court limited the time frame to September 17 through October 15, 1981, we find no such language in our opinion. When we mentioned dates in our discussion on the evidence of causation at the prior trial, we stated: Dr. Chisolm never opined as to the impact on Casey of exposure to lead paint between September 23, 1981 and December 16, 1981 (ie., from notice to sale). Accordingly, without expert testimony that exposure during this window, by itself, was a substantial causation factor of Casey’s lead poisoning, the jury had to speculate as to the impact of exposure during that period .... Id. at 59 , 651 A.2d 908 (emphasis in original).

In our discussion on notice and abatement, we stated that, because Grossman knew of the hazard following her notification by the City, a jury could, in theory, find that Grossman did not abate quickly enough. Further, with sufficient expert testimony, the jury could determine that Casey’s exposure to lead during the one month period (between September 23, 1981 and October 15, 1981) constituted a substantial factor in Casey’s lead poisoning. Of course, to establish causation, Dr. Chisolm would have to testify as to the impact of the limited exposure during the one month window. Nonetheless, we cannot now say, as a matter of law, that Grossman ⁷⁵⁹ responded quickly enough to preclude a finding of negligence.

Accordingly, the case as to Grossman must be remanded for a new trial. Id. at 60 , 651 A.2d 908 . There is simply no language in our former opinion that would limit appellant in presenting evidence of causation to the time frame suggested by appellee. The explicit language was that the case was “remanded for a new trial.” Id.

Moreover, as already discussed above, this Court stated that evidence of a lead hazard post-abatement (i.e. after October 15, 1981), while not admissible in the first trial, would not necessarily be precluded at retrial. Obviously, then, we were not limiting appellant to the October 15th date. The time frame is critical in this case because of Dr. Chisolm’s deposition testimony regarding causation. The latter portion of the deposition reads as follows: [APPELLANT’S COUNSEL]: ... [Appellee’s counsel] has asked you questions about September of ’81 to October of ’81.

If you expand that period from September of ’81 to the middle of December of 1981 ..., do you have an opinion within a reasonable degree of medical probability that she was being continuously exposed during that entire time frame? [Dr. Chisolm]: Oh, yes. [APPELLANT’S COUNSEL]: And the fact that that is a longer period than we previously discussed, is there any additional significance to that? [Dr. Chisolm]: Yes. [APPELLANT’S COUNSEL]: And what is the significance? [Dr. Chisolm]: Well, it is going to be a greater fraction. And it is occurring between, what is that about 15, 18 months of age. Bad months. At this point, counsel for appellant had finished his questions.

Apparently relying on the limited time-frame theory, counsel for appellee then questioned Dr. Chisolm. ⁷⁶⁰ [APPELLEE’S COUNSEL]: And, Doctor, wouldn’t it also be a substantial factor that if between the time of abatement on or about October 15,1981 and December 1981 that would also be a substantially contributing factor, isn’t that correct? [Dr. Chisolm]: Yes. The testimony by Ms. Robinson, attached as Exhibit # 1 to appellant’s Response to Defendant’s Motion for Summary Judgment, was the factual basis for Dr. Chisolm’s testimony on causation and appellant’s exposure to lead after October 15, 1981. The trial court had before it both the evidence of chipping lead paint and Dr. Chisolm’s testimony that this was a “substantially contributing factor” in causing appellant’s lead paint poisoning. This is obviously some evidence of causation, and, therefore, a genuine dispute as to material facts did exit.

The trial court thus erred in granting summary