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Jury Instruction Ruled Prejudicial Error in Lead Paint Case

Barksdale v. Wilkowsky
No. 66 (Md. App. 2011)

by Lindsey M. Brunk, Summer Associate
Semmes, Bowen & Semmes (

In a lead paint personal injury action by a former tenant against a landlord, the Court of Appeals held that an erroneous jury instruction about the duties of a tenant to maintain an apartment was not a harmless error, and it warranted a new trial. During the original trial, the landlord of the property questioned the tenant’s grandmother about whether or not she had ever reported chipping paint to the landlord, and she admitted that she had not. At the end of the trial, the landlord then requested an instruction about the obligation of a tenant to maintain their unit. Included in this jury instruction was a portion of Baltimore City Code, stating that the occupants of dwellings in Baltimore City must keep their units in a clean and sanitary condition.

The Court of Special Appeals held that this “clean and sanitary” instruction was given in error, as any obligation of the tenant’s grandmother to keep the unit clean was not properly before the jury. By law, the negligent acts of a guardian cannot be imputed to a minor child. Furthermore, there was no argument that the tenant’s grandmother was a superseding cause of the tenant’s injuries. However, the Court of Special Appeals held that the error was harmless because the jury was also instructed that a minor cannot be held responsible for the negligence of her guardian and that it was the owners’ responsibility to make sure that paint was not chipping.

The tenant again appealed to the Court of Appeals, which declined to give the tenant a presumption of prejudice, explaining that it was her burden to prove prejudice in a civil suit. The tenant did not only need to show that prejudice was possible; she needed to demonstrate that it was probable. When the prejudice is not readily apparent, then the magnitude and context of the error must be considered. Jury instructions which are misleading or distracting may be declared prejudicial. In meeting her burden to demonstrate prejudice, a plaintiff must show the nature of the jury instruction and its relation to the case. The Court quoted four (4) factors that should be used in determining whether a jury instruction is misleading enough to be prejudicial: “(1) the degree of conflict in the evidence on critical issues; (2) whether respondent’s argument to the jury may have contributed to the instruction’s misleading effect; (3) whether the jury requested a rereading of the erroneous instruction…and (4) the effect of other instructions in remedying the error.” See Nat’l Med. Transp. Network v. Deloitte & Touche, 72 Cal Rptr. 2d 720, 731 (Cal. Ct. App. 1998).

The Court explained that neither contributory negligence nor a superseding cause of negligence was at issue in the case. Despite the fact that the tenant’s grandmother’s potential negligence was not at issue, the jury instruction nevertheless deflected liability to the grandmother. This “touched the heart of the case,” and it may have had a serious effect on the jury’s deliberations. Therefore, the tenant had met her burden of showing prejudice, so the case was remanded to the Court of Special Appeals with instructions to vacate the judgment of the Circuit Court for Baltimore City and remand to the Circuit Court for a new trial.