By Timothy B. Wheeler, The Baltimore Sun
9:15 PM EDT, October 24, 2011
Maryland's highest court struck down Monday a key provision of state law that shielded owners of older rental housing from civil lawsuits — and potentially costly payments to victims — if they took precautions to protect children in their units from lead-paint poisoning.
In a 7-0 ruling, the Court of Appeals declared that the 1994 lead-poisoning law violated the state's Constitution by denying a day in court to victims of the once-widespread environmental health scourge. In doing so, the court struck down what was considered a historic legislative compromise.
The court retained the law's regulatory provisions, which require landlords to register and reduce the poisonous lead hazards in all rental units built before 1950, when lead-based paint was widely used in Baltimore and the rest of the state. But the appellate judges dismissed as "drastically inadequate" the law's $17,000 cap on payments to victims of lead poisoning from landlords who comply with the law.
Attorneys for lead-poisoned children hailed the ruling, saying it opened the door for their clients to sue for damages. They point out that lasting learning and behavioral problems can be caused by ingesting minute amounts of toxic lead.
"It's really momentous," said Brian S. Brown, a lawyer in the Baltimore firm of Saul Kerpelman & Associates, which sued in 2002 on behalf of Zi'Tashia Jackson and her mother. "It's gives kids the right to receive compensation for being brain damaged for life."
But others said they feared the decision could ultimately hurt low-income families across the state by prompting landlords to stop renting out older, less costly units to avoid further liability.
"This law has preserved affordable housing in our city," said Benedict Frederick III, president of the Property Owners Association of Greater Baltimore, who estimated there are 100,000 rental units in the city alone, most of them containing lead paint. He called the 1994 law "ground-breaking" in that it broke a political logjam between landlords and children's advocates over government action to reduce lead poisoning.
Lead poisoning once hit thousands of Maryland children a year, the vast majority in Baltimore City. It has declined by 98 percent since the law was passed, with 531 youngsters statewide testing last year for elevated levels of lead in their blood. The law, along with increased testing of children for lead poisoning, has been widely credited for the dramatic decline.
Children's advocates and state officials note that those provisions of the law meant to protect youngsters remain in effect.
Owners of rental units built before 1950 must register with the Maryland Department of the Environment and reduce hazards by replacing lead-painted windows, doors and other surfaces, or by covering over toxic paint and rigorously cleaning the units to remove lead dust an infant or toddler might pick up while crawling or playing on the floor.
About 73,000 rental units have been registered, all but 5,000 of them built before 1950, according to Jay Apperson, spokesman for the environment department. Lead paint was banned inside Baltimore homes in 1950 but wasn't outlawed elsewhere until 1978. Owners of rental housing built between those dates were not required to participate, but also were shielded from lawsuits if they voluntarily registered and followed the prescribed remediations.
In the case decided by the appeals court, Zi'Tashia Jackson and her mother, Tameka Jackson, sued the Dackman Co. and related owners of two rental properties in the city where the family had lived in the late 1990s. Zi'Tashia was found to have elevated levels of lead in her blood when she was 1 year old; the level declined over the next year but remained elevated.
The Baltimore City Circuit Court dismissed the Jacksons' suit, ruling that the landlord was immune from liability because he had complied with the law. A landlord would be shielded from suit under the law if he made a "qualified offer" to compensate any poisoned tenant up to $7,500 for medical expenses and up to $9,500 for relocation closts. Judgments in cases not covered by the law have reached into the millions of dollars.
Brown appealed, arguing the law denied his clients' their rights under state and federal constitutions to seek damages in court. He said Zi'Tashia, now 14, has learning disabilities and lowered IQ because of her exposure.
Donald G. Gifford, a University of Maryland law professor who headed the state commission that drafted the legislation, said he thought the court had made the right decision in the Jacksons' case, but erred in making a broader ruling overturning liability limits for any landlord.
The case had exposed a glitch in the law, he said, where children with lead poisoning below certain arbitrary levels were not eligible for compensation. State law has specified a level at which children were covered by the law, but research has shown there is practically no safe threshold for lead in a child's blood.
"This was the one glaring hole in the statute that sooner or later was going to cause problems," Gifford said. "It's just too bad that they're throwing the baby out with the bath water."
Getting the law passed in 1994 was "exceedingly difficult," Gifford said, and required compromises with property owners. Immunity from lawsuits was the tradeoff needed to get landlords to participate in reducing lead-paint risks and not abandon their properties.
Lawyers weren't sure how many new lawsuits the ruling might trigger. About 140 limited payments have been made under the law, according to the state environment department, and those victims might now be eligible to seek damages in court. Brown said his firm alone has roughly 10 other cases that were dismissed on grounds similar to this one, which might now move forward because of the appellate ruling.
Gifford predicted that landlords would appeal to lawmakers to protect them from massive liability. Frederick, president of the property owners' association, said landlords have been unable to obtain lead-paint liability insurance for years.
But Saul E. Kerpelman, whose law firm specializes in representing lead-poisoning victims, said the ruling should stand. Eliminating landlords' immunity should give the law "extra teeth," he argued, adding he believes the only effective way to eliminate lead poisoning as a health threat is to have it completely removed from housing, no matter how old.
Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, wasn't ready to endorse new liability protection for landlords, either. While the 1994 law has had "tremendous impact," she said, it could be argued that the state lead-risk reduction requirements are now so firmly established that landlords no longer need broad protection from lawsuits.
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