Dyer v. Criegler

JAMES R. EYLER, Judge. The primary question before us is whether a real estate agent or broker who lists and promotes residential property for rental is an “owner” within the meaning of legislation passed in 1994 addressing the problem of deteriorated lead paint in older rental housing. See Md.Code, Env., §§ 6-801— 6-852 (1996, 2000 Supp.) [hereinafter Lead Paint Act or the Act]. We answer that question in the negative.

We also hold that the Consumer Protection Act, Md.Code, Com. Law, §§ 13-101 — 13-501 (1997, 2000 Supp.), does not apply to real estate agents or brokers. Factual Background On September 12, 2000, appellant Sheree Dyer, as mother and next friend of her minor daughter, Erielle Wallace, filed suit against Marilyn Gibson, Eva Criegler, and appellee Otis Warren Real Estate Services in the Circuit Court for Baltimore City. Appellant contended that Erielle Wallace suffered from lead paint poisoning and sought damages based on (1) negligence and (2) violation of the Consumer Protection Act.

Appellant alleged that Erielle Wallace was exposed to lead paint in a house located at 3408 Springdale Avenue that was rented to Ms. Dyer’s parents, Henry and Rosalee Goodall. The house was owned by Ms. Gibson and Ms. Criegler. Ms. ¹¹³ Dyer and Erielle Wallace lived in the house with the Goodalls for approximately one year, beginning in December 1997. Appellee served as the “rental agent” in connection with the lease between Ms. Gibson and Ms. Criegler as landlords and the Goodalls as tenants.

On November 6, 2000, appellant voluntarily dismissed her claims, without prejudice, against Ms. Gibson, and on February 13, 2001, she voluntarily dismissed her claims, without prejudice, against Ms. Criegler. Appellee filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, arguing that it owed no duty to Erielle Wallace. In response, appellant argued that appellee’s duty existed by virtue of two statutes, the Lead Paint Act and the Consumer Protection Act. At the hearing on the motion, appellant’s counsel indicated that appellee acted strictly as a real estate agent or broker involved in promoting and listing the property for rental and had no on-going relationship with the property owners with respect to control over, or management of, the property.

The circuit court granted appellee’s motion to dismiss and ruled as a matter of law that neither the Lead Paint Act nor the Consumer Protection Act placed a duty on real estate agents or brokers, whose sole involvement was to promote and facilitate the rental of housing, to protect tenants from lead paint exposure. On February 13, 2001, appellant noted an appeal to this Court. We shall affirm the circuit court’s ruling. Question Presented Did the Circuit court err in granting appellant’s motion to dismiss and holding that the Lead Paint Act and the Consumer Protection Act were inapplicable to real estate agents or brokers effecting the rental of residential property?

Standard of Review Our review of the Circuit court’s grant of a motion to dismiss for failure to state a claim is limited to whether the Circuit court was legally correct. See Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 71 , 716 A.2d 258 (1998). All well-pleaded facts in the complaint, as well as ¹¹⁴ all inferences that can be drawn therefrom, are presumed to be true, and dismissal is appropriate only if a legally sufficient claim is not present. See Green v. H & R Block, Inc., 355 Md. 488, 501 , 735 A.2d 1039 (1999); Bobo v. State, 346 Md. 706, 708-09 , 697 A.2d 1371 (1997).

Discussion A. Lead Paint Act In order to establish a negligence claim, the plaintiff must demonstrate: ‘(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached the 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.’ Sadler v. The Loomis Co., 139 Md.App. 374, 396 , 776 A.2d 25 (2001) (citations omitted). Whether a defendant owes a plaintiff a legally cognizable duty is a threshold question to be decided by the trial court as a matter of law. See id.; Bobo, 346 Md. at 714 , 697 A.2d 1371 . The facts alleged in appellant’s complaint, presumed to be true for purposes of appellee’s motion to dismiss, are that (1) while appellant and Erielle Wallace were living at 3408 Springdale Avenue, “quantities of peeling lead-based paint, loose lead-based paint chips, and lead-based paint powder were exposed on the interior and exterior surfaces of the house,” (2) appellee knew about the existence of the lead-based paint, (3) appellee “failed to correct the conditions that resulted in the exposure of Erielle Wallace to lead-based paint,” (4) Erielle Wallace ingested lead-based paint, and (5) Erielle Wallace suffered from lead poisoning, resulting in brain damage and other behavioral and developmental injuries.

The primary question of law before the Circuit court, and hence before us on appeal, was whether appellee, serving only as a rental agent, had a duty to prevent Erielle Wallace’s exposure to lead-based paint. ¹¹⁵ Appellant claims that the Lead Paint Act places a statutory duty of care upon real estate agents and brokers involved in renting properties, 1 and that a violation of the Act results in a presumption of negligence. Under the Lead Paint Act, rental properties built before 1950 must be registered with the State Department of the Environment. See Md.Code, Env., § 6-811. The purpose of the Act was “to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing.” Md.Code, Env., § 6-802.

Consistent with that purpose, the Act requires property “owners” to take specific precautionary measures, including maintenance and repair, to reduce the risk of tenant exposure to lead-based paint. In exchange for compliance, the Act provides limited liability to “owners” if a tenant suffers from lead poisoning and commences a lawsuit. See Md.Code, Env., §§ 6-815 — 6-836. Appellant relies on the definition of “owner” in Env. § 6-801 to support the contention that a real estate agent or broker is bound by the terms of the Act.

For purposes of the Act, the term “owner” has a broader meaning than when used in the traditional sense, as outlined in section 6-801(o): (1) “Owner” means a person, firm, corporation, guardian, conservator, receiver, trustee, executor, or legal representative who, alone or jointly or severally with others, owns, ¹¹⁶ holds, or controls the whole or any part of the freehold or leasehold interest to any property, with or without actual possession. (2) “Owner” includes: (i) Any vendee in possession of the property; and (ii) Any authorized agent of the owner, including a property manager or leasing agent. (3) “Owner” does not include: (i) A trustee or a beneficiary under a deed of trust or a mortgagee; or (ii) The owner of a reversionary interest under a ground rent lease. Appellant asserts that because “leasing agent” is expressly included in the definition of an “owner” and because appellee acted as a “leasing agent” in procuring the lease for the property at 3408 Springdale Avenue, the Act governs appellee and establishes a statutory duty of care.

Appellee, on the other hand, maintains that the entire definition must be read as a whole, meaning that only a “leasing agent” who “owns, holds, or controls” the property is covered by the Act. The circuit court determined that “it would be really unreasonable to try to incorporate brokers into that [section 6-801(o)’s] definition [of “owner”] when the broker’s responsibility ceases at the time that he fulfills his contractual obligation; that being, connecting a tenant to the landlord.” In order to evaluate whether the circuit court was legally correct in holding that a real estate agent or broker, under the circumstances presented, is not an “owner” under the Lead Paint Act, we must interpret the statute. The primary goal of statutory construction “ ‘is to ascertain and effectuate the intention of [the] Legislature.’ ” Board of License Commissioners v. Toye, 354 Md. 116, 122 , 729 A.2d 407 (1999)(quoting Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423 (1995)). The language of the statute is the starting point when ascertaining legislative intent.

See Marriott Employees Federal Credit Union v. Motor Vehicle Administration, 346 Md. 437, 444-45 , 697 A.2d 455 (1997). If the text of the ¹¹⁷ statute is free from ambiguity, courts normally will not go beyond that language in an attempt to discover legislative intent. See Toye, 354 Md. at 122 , 729 A.2d 407 . When a statute contains an ambiguity, a court may look to the statutory scheme as a whole, as well as the purposes behind enactment.

See Marriott, 346 Md. at 445 , 697 A.2d 455 . We begin by examining the definition of “owner” in the Act itself. An “owner” includes a “leasing agent” but only one who “owns, holds, or controls the whole or any