Harris v. Housing Auth. of Balt. City

⁶²³ LEAHY, J. In 2012, Natonia Ratchford 1 sued the Housing Authority of Baltimore City (“Appellee” or “HABC”) on behalf of William Harris, her minor son, for injuries due to lead-based paint exposure that occurred years earlier, between 2003 and 2007. HABC was the owner of a row house where William lived or visited during this period. 2 The September 2012 complaint, filed in the Circuit Court for Baltimore City, contained allegations of negligence and violations of the Maryland Consumer Protection Act against HABC. Following discovery and a stay of proceedings, 3 HABC filed a motion for summary judgment based on Appellants’ failure to comply with the Local Government Tort Claims Act’s (“LGTCA”) notice requirement, as well as Appellants’ failure to demonstrate good cause for a waiver of the notice requirement. Appellants responded, inter alia, with an affidavit from Ms. Ratchford stating that in 2004 she had given HABC oral notice of her intention to sue HABC for William’s injury due to lead exposure.

The court granted HABC’s motion. From this judgment, Appellants filed a timely appeal posing the following questions, which we have rephrased and reordered: 1. Is there an absolute requirement that substantial compliance under the LGTCA include written notice, so that oral notice of a claim made by the mother of a lead poisoned minor to the designated representative of HABC necessarily fails as substantial compliance? 2. Did the Circuit Court err by determining whether Appellants demonstrated good cause for waiver of the ⁶²⁴ notice requirements under the LGTCA rather than submitting the issue to a jury? 3.

Did the trial court err as a matter of law by misinterpreting and misapplying the test for good cause under the LGTCA? 4. Did the trial court err as a matter of law by not excluding hearsay testimony which the HABC submitted in support of its Motion for Summary Judgment? We affirm the judgment of the circuit court. Without deciding whether oral notice could ever substantially comply with the LGTCA notice requirement, we hold that Ms. Ratchford’s 2004 oral notice failed to fulfill the purpose of the requirement — which is to apprise the local government unit of its potential liability in time for it to conduct its own investigation “while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and [the local government’s] responsibility in connection with it.” Ellis v. Housing Authority of Baltimore City, 436 Md. 331, 343 , 82 A.3d 161 (2013) (citation and internal quotation marks omitted).

We further hold that the circuit court did not abuse its discretion by failing to find good cause for a waiver of the notice requirement, nor did the circuit court usurp the role of the jury in making this determination itself. Finally, even if the hearsay issue were relevant to the circuit court’s grant of summary judgment, which it was not, the circuit court did not improperly consider hearsay in its grant of summary judgment. BACKGROUND William Harris was born on January 11, 2003. The complaint in the underlying action alleges that, from 2003 to 2010, he lived at or frequented the row house located at 2238 Guilford Avenue (“the Property”), and that his mother, Natonia Ratchford, was a tenant, resident, or invitee of the Property. 4 The HABC’s precise role — whether it be as property ⁶²⁵ owner, landlord, landlord’s agent, or property manager — in regard to the Property is not pleaded in the underlying complaint, but an affidavit submitted by HABC avers that HABC “owned the property when [Appellants] claim [] to have lived and/or visited there.” Although the Property was built before 1978, 5 the record does not contain evidence of lead-based paint hazards within the Property.

An April 7, 1994 report prepared for the Property by Micron, Inc., an environmental assessor, revealed no lead-based paint hazards. A Maryland Department of the Environment inspection report dated March 29, 1994, states that the Property passed the relevant certification criteria. The Property then received a full risk reduction inspection and passed the certification criteria in 2001. The Property passed further inspections in 2004, 2006, and 2009.

William’s blood tested positive for lead several times between December 30, 2003, and June 14, 2007. The highest ⁶²⁶ level readings were 19 micrograms per deciliter on July 16, 2004, and 11 micrograms per deciliter on October 18, 2004. 6 Ms. Ratchford executed an affidavit in the underlying case on January 20, 2014, describing certain events that occurred in 2004. She averred that, in 2004, the Property’s bedrooms, living room, and dining room had “chipping, peeling and flaking paint,” and she observed William putting paint chips in his mouth. In her affidavit, Ms. Ratchford further stated: 6.

I called the housing manager at my rental office numerous times and complained about the chipping, peeling and flaking paint. In approximately 2004, after I got one of William’s lead tests that showed he had lead in his blood, I was so furious that I went to the rental office and I showed them the results of the lead test. I was so angry that I told the HABC I was going to sue them for poisoning my child. 7. In response to my threat to sue, the HABC had someone come in to do a lead test.

The HABC also had maintenance people come to the house and paint over the chipping, peeling, and flaking paint. I relied on the HABC in believing that this was the only thing they could do in response to my complaints and threat to sue, and that painting over the deteriorated paint would stop William from having lead in his blood. 8. However, the paint kept chipping, peeling, and flaking onto the floor and windowsills. To address the ongoing problem, the HABC had maintenance people come every year to paint over the chipping, peeling, and flaking paint. ⁶²⁷ I relied on the HABC in believing that this regular upkeep would prevent William from having lead in his blood.

(Emphasis supplied). Nevertheless, Appellants waited until September 6, 2012, to file suit against HABC in the Circuit Court for Baltimore City, alleging negligence and violations of the Maryland Consumer Protection Act. 7 On January 9, 2015, HABC filed a motion for summary judgment, arguing that Appellants had failed to comply with the LGTCA requirement that one who intends to sue a local government entity must provide notice within 180 days of the tort’s occurrence. HABC also contended that Appellants had not demonstrated good cause for waiver of the requirement and that HABC had suffered prejudice as a result of Appellants’ failure to comply with the LGTCA. HABC filed with its motion an affidavit by William M. Peach, III, Director of Housing Management Administration, who had been employed by HABC since 1987.

The affidavit stated that, before 2011, HABC’s record retention policy was to destroy records after three years and that HABC no longer had complete records for the Property for the time that William was a resident or visitor of the Property. Mr. Peach’s affidavit further averred to his attempts to contact people employed by HABC from 2003-10 in order to find information concerning Appellants’ claims: 6. Some of the HABC managers involved in the operation and/or maintenance of the property when the Plaintiff claim[s] to have resided at and/or visited there are no longer employed by the HABC. In cases where I have been able to find current employees of HABC who were in any managerial capacity during the time-frame referenced in ⁶²⁸ Plaintiffs complaint they have been uniformly unable to recall anything about the condition of specific property during the time frames referenced in Plaintiffs Complaints.

(Emphasis supplied). Mr. Peach affirmed that a search through HABC’s records did not reveal any notice of any injury to William due to lead exposure at the Property until the filing of the lawsuit in 2012: 7. I have caused a search of all of the HABC’s files and records for any complaints, letters, notices or related documentation made by the Plaintiff or anyone in the Plaintiffs family prior to service of suit in this case regarding a claim for damages because of Plaintiffs alleged injurious exposure to lead-based paint at the property during the time the Plaintiff claims to have lived or visited there and I have found none. The first documentary evidence found regarding Plaintiffs claims for damages as a result of alleged injurious exposure to lead-based paint at the property was this lawsuit upon it on September 14th 2012.

The affidavit then stated that because of the untimely notice, HABC was prejudiced because it was not able to perform a physical investigation of the Property during the time of William’s alleged injuries: 8. Because of Plaintiffs untimely notice, the HABC was deprived of any opportunity to respond to an appropriate statutory notice and conduct a full, litigation-focused, physical investigation of any alleged “defective paint” condition at the property during the time that Plaintiff claims to have resided at and/or visited there and was deprived of any opportunity to document the alleged defective condition with photographs, or to take depositions for preservation of evidence. Appellants filed a response in opposition to summary judgment on January 27, 2015, arguing that: (1) Appellants needed additional time to procure expert testimony as to evidence of when facts existed to support each element of Appellants’ negligence claim; (2) Appellants substantially complied with ⁶²⁹ the LGTCA’s notice requirements; (3) there was good cause to waive the LGTCA’s notice requirement; and (4) HABC failed to affirmatively demonstrate prejudice that would preclude waiver of the LGTCA’s notice requirement. Appellants attached the affidavit of Ms. Ratchford, quoted at length supra, to its response.

HABC filed a reply on February 18, 2015. On February 25, 2015, the circuit court heard oral argument on the motion for summary judgment. HABC argued that there was no strict compliance or substantial compliance with the LGTCA’s notice requirement and that an affidavit, by itself, could not equate to substantial compliance. HABC further contended that there was no good cause for waiver of the notice requirement and that HABC would be prejudiced because of the fact that too much time had now passed for HABC to be able to defend the case effectively.

Appellants responded, saying that Ms. Ratchford’s oral notice, as set out in the January 20, 2014 affidavit, substantially complied with the LGTCA’s notice requirement. Even if it did not, Appellants argued, inter alia, that there was also good cause for waiving the notice requirement because there was an elevated blood-lead level and “timely notice of [] chipping, [] peeling, and flaking paint.” Appellants further argued that good cause existed because Appellants relied on the fact that HABC had sent a person to check the Property for lead and painted the Property several times. The court reserved on the ultimate question of summary judgment so that it could deliver a written decision. In an order entered March 11, 2015, the circuit court granted HABC’s motion for summary judgment.

The court explained, in its memorandum accompanying the order, that it was more likely that Ms. Ratchford’s threat of suit was intended to prod HABC into repairing the Property, rather than an actual threat of legal action, but that, for purposes of summary judgment, the court had to accept as true her statement that she actually intended to file suit against HABC. The court found that Appellants “cannot satisfy the ⁶³⁰ LGTCA notice requirement on the basis of Ms. Ratchford’s testimony that she gave notice of an intention to sue orally only.” The court similarly found that Appellants had not demonstrated “good cause” to waive the notice requirement. The court observed the similarity of the facts of this case to those in Housing Authority of Baltimore City v. Woodland, 438 Md. 415 , 92 A.3d 379 (2014), in which the Court of Appeals affirmed a circuit court’s finding of good cause under the LGTCA. The court, however, distinguished Woodland by noting that, in that case, HABC moved the tenants after they threatened to sue, in distinction to the instant case in which Appellants were not moved to another location.

The court then cited Woodland for the proposition that a circuit court has wide discretion to determine the presence of good cause. The court stated that a gap of “approximately ten years” between the threat of a lawsuit and the eventual filing of suit did not demonstrate good cause that would excuse non-compliance with the statutory notice requirement. Appellants timely noted the instant appeal on March 16, 2015. DISCUSSION I. Oral Notice and Substantial Compliance Under the LGTCA Appellants contend that Natonia Ratchford’s oral notice, as sworn to in her affidavit, substantially complied with the LGTCA’s notice requirement.

Appellants rely on Ellis v. Housing Authority of Baltimore City, 436 Md. 331 , 82 A.3d 161 (2013), reconsideration denied (2014), claiming that it supports the proposition that oral notice may be sufficient to substantially comply with the LGTCA’s notice requirement. Accordingly, Appellants maintain that the trial court erred in not finding that Ms. Ratchford’s oral notice satisfied the test outlined in Ellis for substantial compliance. ⁶³¹ In riposte, HABC argues that the narrow holdings in Ellis did not embrace a determination that oral notice alone could constitute substantial compliance with the notice requirement. HABC presses that no Maryland appellate court has held that oral notice alone is sufficient to substantially comply with the requisites of the LGTCA. Those cases in which substantial compliance has been found have always involved a writing constituting notice within the statutory notice period.

HABC maintains that the purpose of the notice requirement is to protect local governments from meretricious claims and that this purpose is eviscerated if oral notice is allowed to constitute substantial compliance with the notice requirement. We review the trial court’s determination as to whether the Appellants substantially complied with the LGTCA’s notice requirement as a matter of law. Woodland, 438 Md. at 428 , 92 A.3d 379 (citation omitted). In 2004, the LGTCA provided, in pertinent part: (a) Notice required. — Except as provided in subsection (c) of this section, action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days of the injury.

(b) Manner of giving notice. — (1) ... the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county commissioner, county council, or corporate authorities of a defendant local government, or: (i) In Baltimore City, to the City Solicitor____ (3) The notice shall be in writing and shall state the time, place, and cause of the injury. Maryland Code (1973, 2002 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), 8 § 5-304. (Emphasis added). ⁶³² Therefore, to strictly comply with the LGTCA as it existed in 2004, a plaintiff suing a local government entity had to provide written notice of the claim, in person or by certified mail, within 180 days of the injury. 9 A plaintiff who has failed to strictly comply with the LGTCA’s notice requirement — as Appellants have done in the present case — may still demonstrate substantial compliance by fulfilling the four-part test laid out in Ellis : (1) the plaintiff makes “some effort to provide the requisite notice”; (2) the plaintiff does “in fact” give some kind of notice; (3) the notice “provides ... requisite and timely notice of facts and circumstances giving rise to the claim”; and (4) the notice fulfills the LGTCA notice requirement’s purpose, which is “to apprise [the] local government of its possible liability at a time when [the local government] could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and [the local government’s] responsibility in connection with it.” Ellis, 436 Md. at 342-43 , 82 A.3d 161 (brackets in Ellis) (quoting Faulk v. Ewing, 371 Md. 284, 298-99 , 808 A.2d 1262 (2002)).

In Ellis , the Court of Appeals consolidated two cases in which Brittany Ellis and Tyairra Johnson separately sued HABC for negligence and violations of the Maryland Consumer Protection Act arising out of their alleged exposure to lead-based paint. 436 Md. at 337 , 82 A.3d 161 . In Johnson’s case, her mother submitted an affidavit stating that, in 1993, she saw her child put chipping paint in her mouth and “immediately complained to a housing manager of [HABC] about chipping paint.” Id. at 340 , 82 A.3d 161 (internal quotations omitted). ⁶³³ She asked the housing manager to fix the paint issue and “threatened to sue [HABC] if [HABC] did not fix the violations causing injuries to [Johnson].” Id. (brackets in original; internal quotations omitted). Seven years later, in 2000, Johnson’s mother received a blood-lead level test result for Johnson stating that she had elevated blood-lead levels, and, in 2011, Johnson sued HABC.

Id. The Court held that Johnson did not substantially comply with the LGTCA’s notice requirement for two reasons. Id. at 345 , 82 A.3d 161 . First, the Court explained that “Johnson’s mother threatened HABC if it did not fix the chipping paint----” Id.

(emphasis in original). There was no substantial compliance because the threat was conditional; “[a] plaintiff does not substantially comply with the LGTCA notice requirement where the plaintiff demands that a local government fix a defect, but neither explicitly nor implicitly indicates that the plaintiff intends to sue the local government regarding an injury resulting from the defect.” Id. (citing Halloran v. Montgomery Cnty. Dep’t of Pub.

Works, 185 Md.App. 171, 187 , 968 A.2d 1104 (2009)). Second, the Court determined that because Johnson’s mother did not learn of the elevated blood-lead level, constituting the injury, until six or seven years after the alleged oral notice, it was not possible that her oral notice constituted substantial compliance with the LGTCA’s notice requirement because the injury had not arisen until after the threat. Id. at 346, 82 A.3d 161 . In Ellis’s case, the University of Maryland sent Ellis’s mother a letter in June 1992 stating that Ellis’s blood-lead test revealed 14 micrograms of lead per deciliter.

Id. at 338 , 82 A.3d 161 . At the same time, HABC also received a University of Maryland form letter containing Ellis’s blood-lead level results, but the record was not entirely clear as to how HABC received these test results. Id. at 338, 345 , 82 A.3d 161 . In 2010, 18 years after the first blood-lead level test, Ellis sued HABC.

Id. at 338 , 82 A.3d 161 . The Court observed that there was no indication in the record of any complaint from the Ellis family to HABC concerning lead-based paint hazards. Id. at 344 , 82 A.3d 161 . The Court stated that its ⁶³⁴ “conclusion [wa]s unchanged by the circumstance that HABC received the results of Ellis’s first blood-lead level test.” Id.

Because there was no notice from Ellis indicating an intention to file suit, the Court held that there was no substantial compliance. Id. The Court of Appeals rejected both appellants’ contentions that HABC had notice of their injuries simply because HABC was legally required to inspect properties for deteriorated lead paint and should have been aware that older dwellings frequently contain lead paint. Id. at 347 , 82 A.3d 161 .

The Court held that “[a] plaintiff does not substantially comply with the LGTCA notice requirement where the plaintiff does not ‘in fact’ give some kind of notice.” Id. at 347 , 82 A.3d 161 (quoting Faulk, 371 Md. at 299 , 808 A.2d 1262 ). Returning to the case on appeal, Ms. Ratchford’s affidavit does say that she told the HABC in 2004 that she was going to sue them for poisoning her child. Thus, Ms. Ratchford does not run afoul of two of the problems Johnson faced in Ellis . The affidavit frames her notice in unequivocal terms and is not conditional on the dwelling being repaired.

Further, she had notice of the injury before making the threat because she had the result from one of William’s blood tests. If we take Ms. Ratchford’s affidavit as true, as we must, we observe that Appellants satisfy the first two of the four requirements presented in Ellis, id. at 342-43, 82 A.3d 161 — she did make an effort to provide notice, and she did in fact give some kind of notice. The issue, therefore, is whether Ms. Ratchford’s oral notice substantially complied with the remaining requirements articulated in Ellis . We agree with the circuit court, and conclude that the oral notice described in Ms. Ratchford’s affidavit did not fulfill the purpose of the LGTCA notice requirement, which is to apprise the local government unit of potential liability in time for the local government to conduct its investigation.

See id. at 343 , 82 A.3d 161 (quoting Faulk, 371 Md. at 298-99 , 808 A.2d 1262 ). The oral notice was insufficient to permit the local government to conduct an investigation that ⁶³⁵ would allow it “ ‘to ascertain the character and extent of the injury and [the local government’s] responsibility in connection with it.’” Id. (quoting Faulk, 371 Md. at 298-99 , 808 A.2d 1262 ). As the circuit court noted in its memorandum opinion: This case illustrates the problem.

A plaintiff or a relative of a plaintiff, long after passage of the notice period, might assert by affidavit or in testimony that he or she gave notice orally. The alleged recipient of the notice may have little reason to remember the alleged conversation; indeed, as here, the alleged recipient may not even be identified specifically. A plaintiff should not be able to satisfy what is otherwise a strict statutory requirement on this basis alone. Appellants aver that, in 2004, Ms. Ratchford informed unknown HABC employees in the rental office that she was going to sue HABC.

However, she gave no written notice to any employee or agent of HABC, and Appellants did not file suit until September 6, 2012 — eight years later. As Mr. Peach’s affidavit notes, HABC had no way, in 2012, to find the alleged recipient of Ms. Ratchford’s oral notice. Moreover, Ms. Ratchford’s professed oral notice to unidentified HABC rental office employees with unknown authority failed to apprise HABC of its potential liability at a time and in a manner that would have allowed HABC to mount an investigation to determine its own liability, see Ellis, 436 Md. at 342-43 , 82 A.3d 161 (quoting Faulk, 371 Md. at 298-99 , 808 A.2d 1262 ), especially when Appellants did not bring suit until eight years after the alleged oral notice. We conclude that Ms. Ratchford’s oral notice lacking such details could not satisfy the purpose of the statute to “ ‘protect the municipalities and counties of the State from meretricious claimants and exaggerated claims.’” See Moore v. Norouzi, 371 Md. 154, 167 , 807 A.2d 632 (2002) (quoting Williams v. Maynard, 359 Md. 379, 389-90 , 754 A.2d 379 (2000)).

For the foregoing reasons, we hold that Ms. Ratchford’s oral notice in 2004 to an unnamed employee in HABC’s rental office did not substantially comply with the LGTCA’s notice requirement. ⁶³⁶ II. Good Cause for Waiver Appellants next argue that the jury, not the judge, is the body responsible