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Ellis v. Housing Authority of Baltimore City

Court of Appeals of Maryland

November 26, 2013

Brittany ELLIS
v.
HOUSING AUTHORITY OF BALTIMORE CITY. Tyairra Johnson
v.
Housing Authority of Baltimore City.

Reconsideration Denied Jan. 23, 2014.

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Saul E. Kerpelman (Suzanne C. Shapiro, Saul E. Kerpelman & Associates, P.A., Baltimore, MD), on brief, for appellant in No. 16, Sept. Term, 2013.

Suzanne C. Shapiro (Saul E. Kerpelman & Associates, P.A., Baltimore, MD), on brief, for appellant in No. 17, Sept. Term, 2013.

Frank J. Mastro and J. Marks Moore, III (Semmes Bowen & Semmes, P.C., Baltimore, MD), on brief, for appellee.

Barbara Wachter Needle, James T. Massey, Reno & Cavanaugh, PLLC, Washington, DC, brief of Amici Curiae, the Maryland Association of Housing and Redevelopment Agencies and Member Housing Authorities, on behalf of appellee Housing Authority of Baltimore City.

Argued before: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.

WATTS, J.

[436 Md. 337] This opinion consolidates two cases in which Brittany Ellis (" Ellis" ) and Tyairra Johnson (" Johnson" ) (together, " Appellants" ), separately sued the Housing Authority for Baltimore City (" HABC" ), Appellee, in the Circuit Court for Baltimore City (" the circuit court" ) for negligence and violations of the Maryland Consumer Protection Act arising out of Appellants' alleged exposure to lead paint in properties that HABC owned and operated.

We must decide: (I) whether the circuit court erred in concluding that Appellants did not substantially comply with the notice requirement of the Local Government Tort Claims Act (" the LGTCA" ), Md.Code Ann., Cts. & Jud. Proc. Art. (1987, 2013 Repl.Vol.) (" CJP" ) ยง 5-301 et seq.; (II) whether the circuit court abused its discretion in concluding that Appellants did not show good cause for their failure to comply with the LGTCA notice requirement; and (III) whether, as applied to a minor plaintiff in a lead paint action against HABC, the LGTCA notice requirement violates Article 19 of the Maryland Declaration of Rights.

For the reasons below, we hold that: (I) the circuit court properly concluded that Appellants did not substantially comply with the LGTCA notice requirement; (II) the circuit court did not abuse its discretion in concluding that Appellants did not show good cause for their failure to comply with the LGTCA notice requirement; and (III) as applied to a minor plaintiff in a lead paint action against HABC, the LGTCA notice requirement does not violate Article 19 of the Maryland Declaration of Rights.

[436 Md. 338]BACKGROUND

A. Ellis v. HABC

On January 10, 1989, Ellis was born. She first resided with her mother at 1004 North Washington Street. In 1989, Ellis and her mother moved to 2708 Giles Road. On September 10, 1990, Ellis and her mother moved to 26 South Exeter Street. All three properties were owned and operated by HABC.

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On April 3, 1992, the University of Maryland Pediatric Ambulatory Center (" the University" ) tested Ellis's blood-lead level and reported 14 micrograms per deciliter (< < mu> > g/dL). In a letter to Ellis's mother dated June 9, 1992, the University stated: " Your child recently was tested for lead. His/her lead level is not dangerously high. However, the results show that he/she may be at risk for high lead in the future. He/she should have her lead retested every 3-4 months." (Emphasis in original).

On June 19, 1992, the University tested Ellis's blood-lead level and reported 12 < < mu> > g/dL. A University form signed by Dr. J. Rubin states that Ellis was seen on June 19, 1992, " for repeat lead testing (blood lead test was 14 on 4/3/92) [.]" (Emphasis in original). An HABC form entitled " Summary of Interviews" pertaining to Ellis's mother states that on June 24, 1992, HABC received a " form letter from [the University], from Dr. Rubin ... regarding [Ellis]'s test result. Dr. Rubin stated [Ellis]'s level of 14 was an indication there was some exposure to lead, however, the level was not cause for treatment, only frequent testing." On April 27, 1993, Ellis and her mother moved to 725 George Street, which HABC owned and operated.

On January 7, 2010 (approximately eighteen years after Ellis's first blood-lead level test occurred), in the circuit court, Ellis sued HABC [1] for negligence and violations of the Maryland [436 Md. 339] Consumer Protection Act arising out of Ellis's alleged exposure to lead paint at 1004 North Washington Street, 2708 Giles Road, 26 South Exeter Street, and 725 George Street.[2]

During discovery, HABC produced a " tenant folder" pertaining to Ellis's mother's tenancy at 26 South Exeter Street and 725 George Street, containing the form entitled " Summary of Interviews." Nothing in the " tenant folder," however, indicates that Ellis's mother complained of or expressed concern about the presence of lead paint in any of the premises occupied by Ellis.

On March 13, 2012, HABC moved for summary judgment, contending that Ellis failed to strictly or substantially comply with the LGTCA notice requirement. HABC also argued that Ellis did not show good cause for her failure to comply with the LGTCA notice requirement. In an affidavit that was attached to the motion for summary judgment, William M. Peach III, Director of the Housing Management Administration at HABC, averred that he was " not aware of any written complaints, letters, notices or related documentation received from [ ] Ellis or anyone in her family prior to January 20, 2010 regarding her intention to bring a claim against [ ] HABC for alleged exposure to lead-based paint at the subject properties."

On April 23, 2012, the circuit court conducted a hearing and granted the motion for summary judgment, concluding that Ellis did not: (1) substantially comply with the LGTCA notice requirement; or (2) show good cause for her failure to comply with the LGTCA notice requirement. Ellis noted a timely appeal. On February 22, 2013, while the appeal was pending in the Court of Special Appeals, this Court granted certiorari on its initiative. See

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Ellis v. Hous. Auth. of Balt. City, 430 Md. 344, 61 A.3d 18 (2013).

[436 Md. 340]B. Johnson v. HABC

On July 1, 1990, Johnson was born. Johnson first resided with her mother at 1620 Booker Court, which HABC owned and operated. In an affidavit dated March 13, 2012, Johnson's mother averred that, " from 1990 through 1996[,]" " every day for several hours at a time[,]" Johnson visited her grandmother at 601 North Brice Street, which HABC owned and operated. In her affidavit,[3] Johnson's mother averred that, when Johnson

was approximately three[-]years[-]old[, Johnson's mother] noticed chipping paint at 1620 Booker Court.... [Johnson's mother] saw [Johnson] put paint in [her] mouth[ ]. [Johnson's mother] immediately complained to a housing manager of [HABC] about the chipping paint.... [Johnson's mother] told the [h]ousing [m]anager that [she] was concerned that the chipping paint ... contained lead and that [Johnson] had been exposed to lead when [she] put the paint in [her] mouth[ ]. [Johnson's mother] asked the [h]ousing [m]anager to come fix the deteriorated paint.... [Johnson's mother] threatened to sue [HABC] if [HABC] did not fix the violations causing injuries to [Johnson].

* * *

No one from any health clinic informed [Johnson's mother] that [ ] Johnson had any lead in her blood until she was seen at the Kennedy Krieger Institute ... in 2000.

* * *

In 2000[,] Kennedy Krieger Institute informed [Johnson's mother] that [ ] Johnson had suffered from elevated blood[-]lead levels[.]

On June 24, 2011, in the circuit court, Johnson sued HABC for negligence and violations of the Maryland Consumer Protection Act arising out of Johnson's alleged exposure to lead paint at 1620 Booker Court and 601 North Brice Street. [4]

[436 Md. 341] On March 1, 2012, HABC moved for summary judgment, contending that Johnson failed to substantially comply with the LGTCA notice requirement. HABC also argued that Johnson did not show good cause for her failure to comply with the LGTCA notice requirement.

On April 23, 2012, the circuit court conducted a hearing and granted the motion for summary judgment, concluding that Johnson did not: (1) substantially comply with the LGTCA notice requirement; or (2) show good cause for her failure to comply with the LGTCA notice requirement. Johnson noted a timely appeal. On March 5, 2013, while the appeal was pending in the Court of Special Appeals, this Court granted certiorari on its own initiative. See Johnson v. Hous. Auth. of Balt. City, 430 Md. 644, 62 A.3d 730 (2013).

DISCUSSION

I.

Appellants contend that the circuit court erred in concluding that they did not substantially comply with the LGTCA notice requirement. Specifically, Appellants argue that HABC had timely and presumed

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notice of their injuries because HABC was: (1) legally required to inspect properties for deteriorated lead paint; and (2) generally aware of the frequency of lead paint actions. Ellis asserts that HABC had actual notice of her claim because HABC received the results of her first blood-lead level test via Dr. Rubin's letter. Johnson maintains that HABC had notice of her claim because her mother orally complained timely to ...


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