Maryland Bar Bulletin
Publications : Bar Bulletin : April 2005

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For Baltimore City Landlords in Lead Paint-Exposure Cases, Life's Not Getting Any Easier
By Mauricio E. Barreiro

In 2003, it became absolutely clear that the Maryland Court of Appeals was in no mood to help Baltimore City landlords defend lead paint exposure cases. In issuing Brooks v. Lewin Realty III, a case that fully reversed the 1994 Richwind decision (which required landlords to have “notice” of flaking and peeling lead-based paint before liability could attach), the Honorable Robert M. Bell, Chief Judge of the Maryland Court of Appeals, spelled out the standard by which landlords were to be judged civilly in lead paint-exposure cases: whether [the landlord] was to be held liable for any injury to a child, based on lead-paint poisoning, depended upon the jury’s evaluation of the reasonableness of the [landlord’s] actions under all of the circumstances. Moreover, notice to the landlord of flaking, peeling lead paint was no longer needed, as the plaintiffs merely had to prove that the landlord knew or should have known that there was any flaking or peeling paint (in violation of a City statute) at the property in order to establish the landlord’s liability.

The damage to landlords continued in 2005 with the Court of Appeals’ issuance of Polakoff, et al. v. Turner, yet another case condemning landlords to being insurers of their tenants. In Polakoff, the Court of Appeals found that a landlord’s violation of the Baltimore City Housing Code (by failing to remedy alleged lead paint-exposure sites) constituted prima facie evidence of negligence. The Court reaffirmed Brooks and confirmed that a plaintiff would only have to prove that he or she was in the class of persons protected by City Housing Code violated by the landlord and that the violation proximately caused the plaintiff’s injury. Although the Court stated that it was not imposing a strict liability regime upon landlords, in actuality it thrust a de facto strict liability scenario upon Baltimore City landlords by virtue of its plaintiff-friendly holding. Adding more pain to the landlords’ plight, the Polakoff ruling was made applicable to all cases pending at the time, as well as to those cases where “the affirmative duty to inspect” issue was preserved for appeal.

All told, in the span of nine years, the common law principle that a landlord has no duty to inspect his rental properties once turned over to the tenants has been turned on its head, with landlords now being obligated to make “regular” inspections (cameras in hand), if only to protect themselves against unwarranted claims of renting defective properties.

In these challenging times for landlords, the lead paint-exposure minefield continues to broaden. No landlord-friendly decisions have come out of the Court of Special Appeals on any lead paint-exposure issues, and the Court of Appeals has taken very certain measures not to help landlords with its statutory interpretations and the overruling of the 1994 Richwind decision.

So what can a landlord do? From a defensive perspective, knowledge of the broad liability standard used in lead paint-exposure cases is important as landlords need to know what to expect from the courts. “Protect yourself at all times” is an important boxing adage that is entirely applicable to the present landlord liability landscape. Absent misidentification of the property or the plaintiff’s inability to generate or prove high lead levels during the minor tenant’s residency, any lead paint-exposure case should be considered a liability challenge. Complete discovery of the plaintiff’s background and residential history is extremely necessary, if only to mitigate the damages portion of the case.

Questions that careful landlords should ask themselves include:

Was the property regularly inspected for flaking paint by the landlord or its agents prior to rental and during the tenancy?

Was the property tested for lead?

Were property repairs documented and accepted by the tenant?

Was the paint at the property kept in pristine condition, with telltale photos available from the time of rental through the entire tenancy?

Were property evaluations done periodically and documented?

If I had children, would I let them live at this property?

The landlord who answers no to any of these questions certainly faces an uphill battle in defending his or her property and conduct. “Hands-off” landlords are a thing of the past, as the law now requires complete attention to detail. Landlords can no longer hide their proverbial head in the sand, as every landlord must be proactive in their property management and defense. With the standard of liability for a landlord being so low (i.e., was there flaking paint at the property, and was the landlord acting reasonably under all of the circumstances), landlords can only blame themselves if they do not take a proactive role in building their defenses – more so if they expect to own and manage their rental properties in the future.

Mauricio E. Barreiro is a Towson-based attorney who has spent many years successfully defending and trying lead paint-exposure cases for insured and uninsured landlords and management companies in Baltimore City and Washington, D.C.
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Publications : Bar Bulletin: April, 2005

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