Wednesday, February 12, 2014

Court of Appeals Ruling Revives Lead-Paint Lawsuit

         In Hector Butler Jr. v. S&S Partnership et al., CA No 1., the Court of Appeals addressed whether the lower court erred when it excluded lead tests conducted at Hector Butler Jr.’s former home without first providing his former landlord with notice.  As a result of the lower court excluding these lead tests that purportedly showed high lead levels, summary judgment was granted in favor of the former landlords as to negligence and a separate claim under Maryland’s Consumer Protection Act.

In its opinion, the Court of Appeals stated that the scheduling order for lead tests in Baltimore requires notice be given to “defendants who still own the property.”  Thus, the Court concluded “that the scheduling order, as written in the present case, applied to tests of properties still owned by a named defendant, and that only the defendant with ownership of the property has a right to attend the testing.”  Thus, a landlord who no longer owns the property is not entitled to advanced notice of lead paint testing.  In light of the Court of Appeals ruling, Butler’s lead-poisoning claim against his former landlords is restored since his former landlords no longer own the properties tested, and, as such, had no right to notification pursuant to the scheduling order. 

The Court of Appeals, however, held that granting summary judgment to Butler’s former landlords with respect to his claim under the Consumer Protection Act was not in error.  To succeed in a claim under Maryland’s Consumer Protection Act requires establishing that the landlord actively concealed or failed to disclose the presence of peeling or flaking paint at the inception of the lease.  At trial, Butler’s own mother testified that there was no evidence of chipping or peeling paint when she entered into the lease, and, further, at that time Butler was an infant.  As such, Butler did not establish a reasonable basis under which a determination could be made that the chipping or peeling was present at the inception of the lease, thus, the Court of Appeals affirmed the lower courts grant of summary judgment regarding Butler’s claim under Maryland’s Consumer Protection Act.  

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