LETTER

December, 2003 Special Issue
Change in Landlord Liability

In order to keep you abreast of the recent developments in the law, we are reporting the substance of several current decisions of major import in the jurisdictions of Maryland, the District of Columbia, and Virginia

This material is being provided for your general information only, and is not a substitute for obtaining legal advice. The information provided is not given as legal advice nor in the course of an attorney-client relationship. You should always consult an attorney for advice about the specific circumstances of your case.

Recent Developments in the Law

Jeffrey R. Schmieler, Esquire
Saunders & Schmieler, P.C.
8737 Colesville Road
Suite L-200
Silver Spring, Maryland 20910
(301) 588-7717
www.sslawfirm.com

© Saunders & Schmieler, P.C. 2003

Major Change in Landlord Tenant Law--Landlords Now Required to Inspect Premises for Lead Paint

Brooks v. Lewin Realty, 2003 WL 22671581 (2003).

In a November 13th decision, the Maryland Court of Appeals overruled decade-old precedent in finding that plaintiffs no longer have the burden of proving that a landlord had notice of the potentially harmful presence of lead paint in residential properties. The majority decision in Brooks v. Lewin Realty held that a landlord has a continued duty to keep a dwelling free of flaking, loose or peeling paint at all times and that the failure to inspect residential properties for such conditions is a violation of the Baltimore City Code, which is evidence of negligence. If such negligence proximately causes an injury and the injured plaintiff is in a class of people intended to be protected by the Code, the landlord may be held liable.

In August 1988, Shirley Parker rented a house at 1202 North Patterson Park Avenue, in Baltimore City. Fresh paint was applied to the interior of the house at the beginning of the tenancy. Sharon Parker, Shirley Parker's daughter, moved into the North Patterson Park Avenue house soon after her mother rented it. On December 6, 1989, Sharon gave birth to Sean, the minor appellee, who lived there too. Sometime in February or March 1991, when Sean was slightly more than a year old, Lewin Realty purchased the house at auction. One of Lewin's owners, Marvin Sober, was in charge of managing the company and conducting its day to day business. Before Lewin purchased the house, Mr. Sober went on a walk through inspection of it. Sharon was present when the walk through took place, and accompanied Mr. Sober as he inspected the house. Sharon testified that at the time of the walk through, there was peeling, chipping, and flaking paint present in numerous areas of the interior of the house, including in Sean's bedroom.

After Lewin purchased the house, it entered into a new lease with Shirley but did not re paint the interior at that time. In February 1992, Sean was diagnosed with an elevated blood lead level. Four months later, in May 1992, a nurse from the Baltimore City Health Department came to the house and spoke to Sharon about Sean's elevated blood lead level. Sharon testified that she first learned about Sean's condition at that time. That same month, the BCHD issued a lead paint violation notice for the property to Lewin. The house was inspected and found to contain 56 areas of peeling, chipping, and flaking lead paint.

Sharon Parker filed a lawsuit against Lewin Realty on behalf of her son. The Circuit Court for Baltimore City dismissed several counts, but addressed the issue of negligence at trial. Before the trial, the defendants moved in limine to have five documents excluded from evidence that were titled "Emergency Violation Notice and Order to Remove Lead Nuisance." Since the documents pertained to other properties, Lewin argued that they were irrelevant and inadmissible as "other bad acts." The court denied the Motion and the jury ruled in favor of Parker, awarding damages totaling $750,000. On appeal to the intermediate court, The Court of Special Appeals ruled that admitting the notices pertaining to the unrelated properties into evidence was prejudicial error and remanded the case for a new trial.

After granting certiorari, the Court of Appeals instructed the parties to file briefs addressing the applicability of the case of Richwind v. Brunson, 335 Md. 661, 645 A.2d 1147 (1994), to the present facts. Specifically, Richwind held that in cases of landlord liability, the plaintiff has the burden of pleading and proving that the landlord knew or had reason to know of the defective condition being complained about. Richwind also found that a landlord has no duty to periodically inspect the premises during the leased period for dangerous conditions to determine if repairs are necessary.

The petioners argued that Lewin's violation of the Baltimore City Housing Code was, in itself, evidence of negligence. Therefore, under ordinary tort principles, the petitioners argued that if such negligence is the proximate cause of an injury, it will give rise to a cause of action for damages DESPITE a lack of notice or knowledge on the part of the landlord. Furthermore, the statutory scheme of the Baltimore City Code was designed to protect tenants against lead paint poisoning. Since the landlord's duty was prescribed by the statute, the violation of that statute is evidence of the landlord's negligence. Therefore, the plaintiff must demonstrate two elements in order to make out a prima facie case.

The plaintiff must show: 1) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and 2) that the violation proximately caused the injury complained of. When the plaintiff makes such a showing, there is sufficient evidence to warrant the court's submitting the case to a jury on the question of the plaintiff's negligence. A defendant's knowledge that he or she violated the statue is not part of the plaintiff's burden of proof. Rather, it is the violation of the statute alone which is evidence of negligence. The Court of Appeals agreed with this analysis.

Under the present facts, the petitioners demonstrated that under the plain meaning of the Baltimore City Code, the Mayor and City Council mandated a continuing duty for the landlord to keep a rental dwelling free of flaking, loose or peeling paint at all times while the dwelling is in use by a tenant in order to remain in compliance with the code. Therefore, the landlord must take whatever measures are necessary during the pendancy of the lease to ensure that the requirements are met.

The Brooks holding overrules the Richwind decision mentioned above and creates a new duty for landlords to continuously inspect their properties to ensure that they comply with not only the sections of the Baltimore City Housing Code dealing with lead paint, but any section designed to protect tenants as a class. A tenant filing a tort claim against a landlord no longer has the burden of demonstrating that a landlord was on notice of a particular hazard. Rather, they must only show that a landlord violated some portion of the housing code and that the negligence in so doing was the proximate cause of any injury complained of. Failure to continuously inspect rental properties may open a landlord to new liabilities if a dangerous condition goes unnoticed and uncorrected.