Green v. N.B.S., Inc.

SALMON, J. Although there are two other matters presented, the most important issue raised in this appeal is whether the Maryland statute, which sets a cap on recovery for non-economic damages, applies to all actions for wrongful death and personal injury or only to causes of action for wrongful death and personal injury based on conduct that constituted a tort at ⁶⁴² common law. We shall hold that the statutory cap as set forth in Md.Code. (2006 RepLVol.), Cts. & Jud. Proc.

Art., sections 11-108 and 11-109 applies to all actions for personal injury and wrongful death, including actions based on statutory or constitutional violations. I. Kelly Green (“Kelly”), a minor, by her mother and next friend, Celestine Green, (“Ms.Green”) appeals a decision that was later reflected in an order to apply Maryland’s statutory cap on non-economic damages to a jury verdict entered against Stanley Rochkind, N.B.S., Inc., Charles Runkles and Dear Management, Inc. (collectively “appellees”). The verdict was entered in a lawsuit Ms. Green filed against appellees for injuries Kelly suffered due to her exposure to lead-based paint while living at 1547 Montpelier Street in Baltimore, Maryland. Appellees’ conduct in failing to maintain the property resulted in their being found liable for common law negligence as well as for violations of Maryland’s Consumer Protection Act (“CPA”).

See Md.Code., (1975, 2005 RepLVol.), §§ 13-101 et seq. of the Commercial Law Article. Over Ms. Green’s objection, the verdict was reduced from $2,300,000 to $515,000.

II

Ms. Green gave birth to Kelly on January 16, 1995. Ms. Green had been living at 1547 Montpelier Street for approximately eight months prior to Kelly’s birth. When Ms. Green moved into the house there was chipping paint around the window frames in the bedrooms as well as around several doorways within the home. Paint would fall to the floor whenever Ms. Green lifted the windows or closed the doors.

Kelly was diagnosed with having an elevated lead level in November 1995, when she was ten months old. After appellees were informed of Kelly’s condition, appellees’ agents failed to scrape off all the lead based paint and instead painted over some of it. Due to the condition of the house and Kelly’s ⁶⁴³ diagnosis, Ms. Green and Kelly moved to another location in November 1997. Ms. Green, as Kelly’s next friend, brought suit against the appellees in the summer of 2002.

The complaint alleged that appellees were negligent in their ownership and/or management of 1547 Montpelier Street and, due to their negligence, Kelly was exposed to chipping, flaking and peeling lead-based paint. The complaint also alleged that appellees violated the CPA because, by marketing, and otherwise making available to the public for lease ... [they] impliedly represented that the [Montpelier home] was in compliance with the [Baltimore] Housing Code and other Public Local Laws of Baltimore City and statutes of the state of Maryland and of the United States and thus was fit for human habitation and contained no flaking, loose or peeling paint or plaster, or lead based paint accessible to children. According to the complaint, appellees “knew the dwelling was not fit for human habitation and contained flaking, loose or peeling paint or plaster or lead-based paint accessible to children.” A jury trial commenced on March 19, 2007. Dr. John F. Rosen was called as an expert witness by appellant.

He established that the Center for Disease Control (“CDC”) considers a child with blood levels of 10 or more micrograms per deciliter (“mg/dl”) of lead to be lead poisoned. In Dr. Rosen’s opinion, however, a child may lose IQ points even if that child has a blood lead level of less than 7.5 mg/dl. Kelly’s blood was tested seven times for the presence of lead. Those tests yielded the following results: Date Lead Level 11/15/1995 9 mg/dl 01/10/1996 8 mg/dl 09/26/1996 20 mg/dl 12/02/1996 15 mg/dl 12/1996 12 mg/dl 01/01/1997 8 mg/dl 09/13/1997 8 mg/dl ⁶⁴⁴ Based upon Kelly’s blood level values and upon peer review literature, Dr. Rosen opined that her exposure to lead caused Kelly to lose 10 IQ points. 1 At the close of the entire case, the court granted judgment in favor of Kelly’s mother and against the appellees as to liability based on common law negligence and violation of the CPA.

The only issues submitted to the jury were (1) whether Kelly suffered any injury due to appellees’ wrongful conduct and, (2) if so, the amount of non-economic damages she suffered. After the court, sua sponte, reduced the $2,800,000 verdict to $515,000, appellant filed a Motion for Reconsideration and/or Motion to Alter or Amend Judgment arguing that the statutory cap was not applicable to the CPA claim and, alternatively, even if the cap was applicable to all claims, the appropriate cap should have been $530,000. Both motions were denied.

III

Appellant argues that the damages cap only applies to common law tort actions. This is important, appellant maintains, because an action brought by a plaintiff seeking damages for personal injury as a result of a violation of the CPA is not a common law tort action. ⁶⁴⁵ Section 11-108 of the Cts. & Jud. Proc. Art., provides, insofar as here pertinent: (a) (1) In this section the following words have the meanings indicated.

(2)(i) “Noneconomic damages” means: 1. In an action for personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury; and 2. In an action for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education, or other noneconomic damages authorized under Title 3, Subtitle 9 of this article. (b) (1) In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed $350,000.

(2) (i) Except as provided in paragraph (3)(ii) of this subsection, in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000. (ii) The limitation on noneconomic damages provided under subparagraph (i) of this paragraph shall increase by $15,000 on October 1 of each year beginning on October 1, 1995. The increased amount shall apply to causes of action arising between October 1 of that year and September 30 of the following year, inclusive. (3) (i) The limitation established under paragraph (2) of this subsection shall apply in a personal injury action to each direct victim of tortious conduct and all persons who claim injury by or through that victim.

(ii) In a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation estab ⁶⁴⁶ lished under paragraph (2) of this subsection, regardless of the number of claimants or beneficiaries who share in the award. (Emphasis added.) In support of her argument appellant stresses that section 11-10 8(b)(3)(i) uses the term “victim of tortious conduct.” She also emphasizes that a claim under the CPA is statutorily-created. This, of course, is true. Appellant then argues: As can be seen from the plain language of Section 3(i), in order for the Cap to apply two conditions precedent must be satisfied: First, there must be a “personal injury action” and second, there must be a victim of “tortious ” conduct.

Appellant does not dispute that this case is a “personal injury action.” However, not all personal injury actions are based on a defendant’s “tortious” conduct. Sometimes, as in this case, personal injury actions are based upon statutory causes of action. Because a cause of action based on the CPA is a statutory cause of action and not a tort, the Cap does not apply and the trial court erred when it reduced the jury’s award. (Emphasis supplied in original.) Section 11-108 does not define the words “tortious conduct” and there are no reported cases from either this Court or the Court of Appeals where the interpretation of those words, as used in the cap statute, were already at issue. 2 We shall, therefore, begin by examining the dictionary definition of the words in controversy.

See Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 447 , 697 A.2d 455 (1997) (“Although dictionary definitions do not provide dispositive resolutions of the meaning of statutory terms, dictionaries do provide a useful starting point for determining ⁶⁴⁷ what statutory terms mean, at least in the abstract, by suggesting what the legislature could have meant by using particular terms.”) (internal citations and quotation marks omitted). “Tortious” is defined as “[constituting a tort; wrongful.” Blacks Law Dictionary 1497 (7th ed.1999). A “tort” is defined as “[a] civil wrong for which a remedy may be obtained, usually in the form of damages; a breach of a duty that the law imposes on everyone in the same relation to one another as those involved in a given transaction.” Id. at 1496, 697 A.2d 455 . Therefore, the term “tort” as defined by Blacks encompasses all “civil wrongs,” not just wrongs that were recognized as a civil wrong at common law. In Lee v. Cline, 384 Md. 245 , 863 A.2d 297 (2004), the Court was called upon to decide whether “the Maryland Tort Claims Act grants qualified immunity to state personnel for tortious ads or omissions, within the scope of the state employees’ public duties, when those acts or omissions involve violations of state constitutional rights....” Id. at 255 , 863 A.2d 297 .

At issue was the interpretation of Md.Code (2004 Repl.Vol.), State Government Article, section 12-105 [part of the Maryland Tort Claims Act], which in material part reads: § 12-105. Immunity. State personnel shall have the immunity from liability described under § 5-522(b) of the Courts and Judicial Proceedings Article. Section 5-522(b) of the Courts and Judicial Proceedings Article states: (b) State personnel, as defined in 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious ad or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver.

(Emphasis added.) In Lee , the Court interpreted the term “tortious act or omission” to include causes of action to recover for constitu ⁶⁴⁸ tional torts. 384 Md. at 266 , 863 A.2d 297 . This is important for our purposes because a constitutional tort is obviously not a “common law” tort. The Lee Court said: While this Court has not, until today, directly decided whether intentional torts and constitutional torts are covered by the Maryland Tort Claims Act, thereby granting state personnel qualified immunity for such torts, our prior opinions do support such coverage. See Larsen v. Chinwuba, 377 Md. 92, 99, 107-109 , 832 A.2d 193 (2003) (A tort action against the Insurance Commissioner setting forth causes of action for defamation, invasion of privacy, abuse of process, and violation of rights guaranteed by the Maryland Declaration of Rights, and this Court held that the Commissioner was entitled to immunity under the Maryland Tort Claims Act, although the issue before the Court concerned scope of employment rather than the basic coverage of the statute); Okwa v. Harper, 360 Md. 161 , 757 A.2d 118 (2000) (A tort action against state governmental officials based upon allegations of various common law intentional torts, violations of the federal constitution, and violations of the state constitution, and the issues included (1) the sufficiency of the evidence to show malice, thereby defeating Maryland Tort Claims Act immunity, (2) liability under 42 U.S.C. § 1983 , and (3) the inapplicability of the public official immunity doctrine to state constitutional torts; the Court held, inter alia, that there was sufficient evidence of malice to defeat Maryland Tort Claims Act immunity, although no other issue was raised regarding the coverage of the Act); DiPino v. Davis, 354 Md. 18, 49-56 , 729 A.2d 354 (1999) (Holding that there was coverage under the Local Government Tort Claims Act for certain intentional and constitutional torts); Ashton v. Brown, 339 Md. 70, 107-108, 123-124 , 660 A.2d 447 (1995) (same)....

Id. at 257-58 , 863 A2d 297 (emphasis added). Although perhaps not dispositive of the issue here presented, the interpretation of the term “tortious injury” by the Lee Court at least suggests that the term “tortious conduct” ⁶⁴⁹ includes more than conduct that constituted a tort at common law. In support of her argument that “[a] cause of action based on a statutory right is not a tort”, appellant cites to two out-of-state cases, viz.: Facchina v. Mut. Benefits Corp., 735 So.2d 499 (Fla.Dist.Ct.App.1999) and Treanor v. Metro.

Transp. Auth., 414 F.Supp.2d 297, 303-05 (S.D.N.Y.2005). In Facchina , the District Court of Appeals of Florida held that a statute that created a claim for unauthorized publication of a person’s likeness was “based not on tort or contract law but on a statutory right”; therefore, the economic loss rule, which is a judicial limitation on common law remedies in tort and contract, did not apply. 735 So.2d at 502 . In reaching this conclusion, however, the Court noted that the text of the statute evidenced the legislature’s intent not to apply judicial limits on common law remedies (i.e., the economic loss rule) to the new statutory cause of action.

Id. As will be demonstrated infra, nothing in the text of the cap statute or in its legislative history suggests that the cap statute was intended to apply only to common law torts. Appellant is correct when she states in her brief that Treanor , which was a case interpreting New York law, held that appellant’s discrimination claim was not a tort and was therefore not subject to a one-year statute of limitations applicable to causes of action against the Long Island Railroad “founded on tort.” 3 The Treanor Court concluded, citing ⁶⁵⁰ several decisions by New York state courts, that the statute at issue (along with a similar one covering suits against the New York City Transit Authority) “were designed for traditional tort actions” and thus were not intended to cover a statutory tort. Id. at 301-02 .

Courts in other states have interpreted the phrase “tort” far more broadly than did Treanor , at least in the context of applying various long-arm statutes. Maryland’s long-arm statute is found in Maryland Code (2006 RepLVol.) of the Courts and Judicial Proceedings Article, section 6-103. Subsections (b)(3) and (4) of section 6-103 use the term “tortious injury.” The phrase is used in the following context: (b) A court may exercise personal jurisdiction over a person who directly or by an agent: * * * (3) Causes tortious injury in the State by act or omission in the State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, service, or manufactured products used or consumed in the State. Although no reported appellate court decision in Maryland has construed the term “tortious injury” in the context of our long-arm statute, the court in Craig v. Gen.

Fin. Corp. of Illinois, 504 F.Supp. 1033, 1037 (D.Md.1980), did construe that phrase. The Craig Court held that the fact that a cause of action is statutory is irrelevant to the issue of whether the ⁶⁵¹ defendant committed a tortious act in Maryland resulting in injury in Maryland for purposes of construing Courts & Judicial Proceedings Article, section 6-103(b). See also Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829 , 856-57 (11th Cir.1990) (finding violation of state and federal copyright and communications laws to be sufficient to trigger jurisdiction under Florida’s long-arm statute, which required a “tortious act” within the state); Williams Elec.

Co., Inc. v. Honeywell, Inc., 854 F.2d 389 , 394 (11th Cir.1988) (violation of state and federal antitrust laws constitutes “tortious behavior” under Florida’s long-arm statute); Barclay v. Hughes, 462 F.Supp.2d 314, 317 (D.Conn.2006) (Title 42, Section 1983 civil rights violation constitutes a tort for purposes of Connecticut’s long-arm statute); Teleco Oilfield Servs., Inc. v. Skandia Ins. Co., 656 F.Supp. 753, 758 (D.Conn.1987) (“alleged violations of the Connecticut Unfair Insurance Practices Act ... and the Connecticut Unfair Trade Practices Act” constituted “tortious conduct” for purposes of Connecticut’s long arm statute); Overby v. Johnson, 418 F.Supp. 471, 472-73 (E.D.Mich.1976) (construing phrase “action in tort” as used in Michigan long-arm statute as including an action for violation of rights protected by Title 42, Section 1983 civil rights action); Albert Levine Assocs. v. Bertoni & Cotti, 314 F.Supp. 169, 171 (S.D.N.Y.1970) (Clayton Act violation, although “purely statutory,” constitutes a “tortious act” for purposes of New York’s long-arm statute); Bucchere v. Brinker Int’l, Inc., 49 Conn.Supp. 441 , 891 A.2d 1008 , 1015 (2005) (“Conduct is ‘tortious’ for the purpose of jurisdiction when it violates a state statute.”); Black v. Rasile, 113 Mich.App. 601 , 318 N.W.2d 475, 476 (1980) (phrase “action for tort” in state long-arm statute “should be construed as including statutory causes of action because a tort is a breach of a noncontractual legal duty, the source of which may be statutory as well as common law.”). In addition to long-arm statute cases, there are numerous other cases from other jurisdictions standing for the proposition that the fact that a cause of action arises out of a statute does not mean that a tort has not been committed. See, e.g., ⁶⁵² Elvig v. Calvin Presbyterian Church, 897 F.3d 790, 793 (9th Cir.2005) (Title YII of the Civil Rights Act of 1964 creates statutory torts); Schobert v. Illinois Dep’t of Transp., 304 F.3d 725, 731 (7th Cir.2002) (same); Fenton v. HiSAN, Inc., 174 F.3d 827, 829-30 (6th Cir.1999) (same); see also Home Builders Ass’n of Greater St. Louis v. L & L Exhibition Mgmt., Inc., 226 F.3d 944, 947 (8th Cir.2000) (the Lanham Act “has been broadly construed by the federal courts as making certain types of unfair competition federal statutory torts”) (quotation omitted); Bangor Punta Operations, Inc. v. Universal Marine Co., 543 F.2d 1107, 1109 (5th Cir.1976) (same).

Appellant also relies on United States v. Streidel, 329 Md. 533 , 620 A.2d 905 (1993), in support of her position. In Streidel , the Court of Appeals was asked by the United States Court of Appeals for the Fourth Circuit to answer the following question: Whether the Maryland solatium cap of $350,000 is applicable to each claimant of solatium, or is it a comprehensive overall solatium maximum applicable only once, no matter how many claimants there are. Id. at 535 , 620 A.2d 905 . The Streidel Court held that it was unnecessary to decide the certified question, because Maryland’s cap statute did not apply to wrongful death actions.

Id. at 552 , 620 A.2d 905 . This holding overruled Potomac Electric Power Co. v. Smith, 79 Md.App. 591 , 558 A.2d 768 (1989). Appellant asserts that the Streidel Court “refused to apply the [statutory] [c]ap to the statutory cause of action of wrongful death because, among other reasons, such causes of actions are not traditional tort actions for personal injury.” The Streidel Court said: The language of the cap statute refers only to damages awarded in an action for “personal injury,” § ll-108(b). The term “personal injury” or “injury” normally connotes a physical injury to a victim.

The death of a victim as a result of a “personal injury” or “injury” is, of course, the ultimate injury to that victim. The damages recoverable by the ⁶⁵³ victim’s estate in a survival action, for a “personal injury” resulting in death, are, however, distinct from the damages recoverable by the family of that victim under the Wrongful Death Act, § 3-901 et seq. of the Courts and Judicial Proceedings Article. The damages which the victim’s family are entitled to recover under the Wrongful Death Act are for the value, pecuniary or otherwise, of the life of the deceased to the persons entitled to recover. This recovery for “death” under the wrongful death act does not compensate for the “personal injury” to the direct victim of the tortious conduct.

Thus, ordinarily, unless the context indicates otherwise, damages for an “injury” or a “personal injury” or a “bodily injury” do not include those damages recoverable in a wrongful death action. 329 Md. at 539-40 , 620 A.2d 905 (footnotes omitted). The Streidel Court never used the phrase “traditional tort action for personal injury” in its analysis and nothing said in Streidel supports appellant’s position that one of the reasons that the cap statute was deemed inapplicable to a wrongful death action was because such actions were not “traditional tort aetion[s].” The crux of the Streidel decision was that wrongful death statute cases were not governed by the cap statute because such suits did not assert a claim for personal injury. Id. at 539-44 , 620 A.2d 905 . In Streidel the Court quoted, in full, the cap statute as it existed in 1993.

See id. at 537-39 , 620 A.2d 905 . At the time Streidel was decided, the language of the cap statute clearly indicated that the statute applied to all personal injury actions in Maryland where non-economic damages were prayed. See Kent Village Assocs. Joint Venture v. Smith, 104 Md.App. 507 , 657 A.2d 330 (1995), a case in which the trial court applied the cap statute (before it was amended in 1994) to a cause of action alleging negligence and a violation of the Federal Consumer Product Safety Act.

In Kent Village, Chief Judge Wilner, speaking for this Court, said: We do not regard the statutory “cap” on non-economic damages — $350,000 in this case, later increased by the ⁶⁵⁴ General Assembly to $500,000 — to so impede the Federal right as to frustrate the