The March 26, 2014 opinion of Maryland’s highest appellate court, the Court of Appeals of Maryland (“Appeals Court”), upheld a Maryland jury’s verdict in favor of the plaintiff in a lead paint case despite the plaintiff’s failure to comply with the notice requirements regarding her lead paint claim.
In Maryland, a tort claim against a local government entity cannot proceed unless the claimant complies with the notice requirements stated in Maryland’s Local Government Tort Claims Act (“LGTCA”), Annotated Code of Maryland, Courts and Judicial Proceedings Article (“CJP”), Section 5-304. In the present case, it was uncontested that the plaintiff had failed to do so.
Nonetheless, the trial court found that the plaintiff had substantially complied with the LGTCA, which the Appeals Court determined to be in error. However, the Appeals Court found that there was good cause for the plaintiff’s failure to provide written notice of her intent to sue within 180 days of her injury, as required by the LGTCA.
The Underlying Facts
The plaintiff was born in 1995 and resided until November 1997 in a residence owned and managed by the Housing Authority of Baltimore City (“HABC”). During the time that the plaintiff lived in the residence, she was tested twice for her blood-lead levels: on September 30, 1997, she had a blood-lead level of 13 micrograms per deciliter (μg/dL) and on October 8, 1997, she had a blood-lead level of 11 μg/dL.
After the second blood-lead test, the plaintiff’s mother went to the property management office and met with the property manager for the residence to discuss the plaintiff’s recent blood-lead level tests. The property manager had the plaintiff’s mother complete a lead questionnaire, gave her copies of a lead information booklet, and noted the interview in the management records.
The property manager then sent a message to HABC’s Central Office, requesting a modified risk reduction and lead dust test for the residence, which was completed on October 16, 1997. The test report indicated chipped stucco on the windowsills in the kitchen and living room, and chipped paint on all three bedroom windowsills and hallway doorframes. The report recommended that HABC relocate the tenants. In November 1997, HABC moved the plaintiff and her family to a different HABC property.
In April 2009 (almost twelve years later), the plaintiff sued HABC, claiming injury from her exposure to lead paint at the former residence. The plaintiff alleged compliance with the notice requirements of the LGTCA and, in the alternative, good cause for failure to comply or substantially comply with the notice requirements.
“Substantial compliance” is satisfied where the plaintiff makes some effort to provide the requisite notice; the plaintiff does in fact give some kind of notice; the notice provides requisite and timely notice of facts and circumstances giving rise to the claim; and, 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. However, a threat to sue HABC if it did not fix chipping paint does not satisfy substantial compliance.
In the present case, there was no explicit or implicit threat of legal action, either written or oral — the plaintiff’s mother simply did not make any statement within the statutorily specified time about an intention to sue HABC. However, even if a plaintiff does not strictly or substantially comply with the LGTCA notice provision, the lawsuit may still proceed if there is found to be good cause for noncompliance.
“Good cause” is determined by the trial court deciding whether the claimant prosecuted her claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. Unless the trial judge abused his discretion in making that determination, the appellate court will not disturb the lower court’s determination of good cause, or lack of good cause.
The Appeals Court held that it was not unreasonable for the trial judge to conclude that the plaintiff’s mother acted with a reasonable degree of diligence under the circumstances: she notified the landlord in person that the plaintiff had two elevated blood-lead level tests and pursued actions consistent with achieving some redress of her concerns; her actions allowed HABC to investigate its possible liability at a time when it 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 its responsibility in connection with it. Furthermore, HABC promptly inspected the residence and immediately thereafter moved the plaintiff and her family to a different residence. The Appeals Court held that these circumstances could reasonably have justified, in the trial judge’s mind, the conclusion that the plaintiff’s family reasonably relied on HABC’s prompt and curative action in not giving additional notice.
Housing Authority of Baltimore City v. Amafica K. Woodland, Case No. 18, September Term, 2013.
Click here to read the opinion.
If you or a loved one may have been injured or suffered other harm as a result of lead paint in Baltimore, elsewhere in Maryland, or in another U.S. state, you should promptly seek the legal advice of a lead paint attorney who may investigate your lead paint claim for you and represent you in a lead paint case, if appropriate.
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