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Maryland Intermediate Appellate Court Holds that Lead Paint Plaintiff Failed to Make a Prima Facie Case of Negligence against Owners of Allegedly Dangerous Premises

Butler v. S&S Partnership
Court of Special Appeals of Maryland, No. 214 (August 31, 2012)

by Wayne Heavener, Law Clerk
Semmes, Bowen & Semmes (

In Butler v. S&S Partnership, Judge James R. Eyler of the Maryland Court of Special Appeals affirmed a decision by the Circuit Court for Baltimore City finding that a lead paint plaintiff, Hector Butler, Jr., failed to establish a prima facie case of negligence against several defendants, including the owners of the allegedly dangerous properties. In reaching its conclusion the Court of Special Appeals found that holding a deed in trust did not constitute ownership of a property under the Baltimore City Housing Code. Also, the Court found that the circuit court appropriately excluded Butlerís lead paint reports and an expertís testimony because Butler failed to comply with the courtís scheduling order. Therefore, the Court affirmed the circuit courtís ruling on several motions for summary judgment against Butler.

Hector Butler, Jr., was born on October 11, 1986, and lived with his mother, Yvonne Crosby, at two different locations consecutively from August 1987 to August 1991: a third floor apartment at Linden Avenue and a second-floor apartment at Bryant Avenue. From August 1987 to May 1988, Crosby and Butler lived in the Linden Avenue apartment. During that time, Crosbyís Linden Avenue apartment was owned by S&S General Partnership (S&S G.P.) for about one month, and later by Barbara Benjamin. From May 1988 to August 1991, Crosby and Butler lived in the Bryant Avenue apartment, which was owned by S&S Partnership (S&S) during the entire period of their tenancy.

On October 9, 2007, Butler, by his mother, Crosby, brought suit against several parties resulting from lead paint exposure while living at the Linden Avenue and Bryant Avenue apartments, along with various Consumer Protection Act claims. Among those sued were S&S G.P., Benjamin, and S&S. Additionally, Crosby sued Lee Shpritz, who was a general partner in S&S G.P., and Stanley and Rhoda Rochkind, who were partners in S&S. Crosby also filed suit against N.B.S., Inc. (N.B.S.), which while related to S&S, at no time owned the Bryant Avenue property; rather, N.B.S. had obtained a two million dollar loan secured by an indemnity deed of trust on the property.

With her complaint, Crosby filed a ďRequest for Entry Upon Land,Ē in order to test the Linden Avenue and Bryant Avenue properties for lead paint. The trial court issued a scheduling order, which included a provision permitting Crosby to perform tests at the defendantsí premises, so long as the test were conducted within 60 days of a written request sent to the defendants. The defendants were permitted to attend. Sixteen days before the close of discovery, Crosby hired Arc Environmental Inc. (Arc) to test the exteriors of the properties without providing the defendants notice. Arc provided a report setting forth results on both properties. Also as part of discovery, Butler disclosed 18 experts who he intended to call to substantiate his claims, including Howard Klein, M.D. Butler named Dr. Klein as an expert in pediatric lead poisoning. Despite naming Dr. Klein as an expert in the case, Butler did not fully disclose Dr. Kleinís affidavit or the nature of his testimony until two months before trial.

Upon the completion of discovery, the defendants filed a myriad of motions. Among these motions was a Motion for Summary Judgment filed by N.B.S., the amended version of which included an affidavit by Stanley Rochkind attesting that N.B.S. at no time owned the Bryant Avenue location. Rejecting Butlerís argument that N.B.S.ís loan secured by a deed of trust on the Bryant Avenue property established ownership, the circuit court granted N.B.S.ís Motion for Summary Judgment.

The Rochkinds, S&S, and N.B.S. moved to strike the Arc report relating to the Bryant Avenue property. The defendants argued that Butler failed to comply with the scheduling order in failing to submit a written request to the defendants, thereby depriving them of notice and a change to present at testing. The circuit court agreed, and granted the Motion to Strike.

The circuit court also granted a Motion for Summary Judgment filed by Shpritz and S&S G.P., which argued that there was no evidence of lead paint during the one-month exposure time S&S G.P. owned the Linden Avenue property. The defendants pointed to a 2009 lead-paint test that found no evidence of lead paint on the exterior of the building. Similarly, the circuit court granted a Motion for Partial Summary Judgment filed by N.B.S. and S&S concerning Consumer Protection Act violations levied by Butler.

All the defendants moved to exclude the expert testimony of Dr. Klein as unsupported by the evidence. Ultimately, the circuit court raised the issue of timeliness sua sponte, pointing out that Butler had waited until the ďeve of trialĒ to fully disclose Dr. Kleinís testimony. As such, the defendants did not have an opportunity to gather experts of their own to directly rebut Dr. Kleinís testimony. Therefore, the circuit court excluded Dr. Kleinís testimony, which was Butlerís only evidence concerning causation. Upon the circuit courtís entering of final judgment, Butler appealed to the Court of Special Appeals, challenging each of the aforementioned rulings.

The Court of Special Appeals affirmed the circuit courtís decisions as to the defendantsí motions in their entirety. The Court first addressed N.B.S.ís Motion for Summary Judgment. The Court affirmed the circuit courtís grant of summary judgment, because N.B.S.ís loan secured by deed of trust on the property did not transfer ownership to N.B.S. Nor did Butler present any evidence demonstrating that N.B.S. managed the day-to-day affairs of the Bryant Avenue apartment. The Court also addressed Butlerís argument that he should have at least been given an opportunity to depose Rochkind, given the submission of his affidavit. The Court found that the circuit court had discretion in granting further discovery, and its failure to do so in this case did not constitute an abuse of that discretion.

The Court then addressed the motion by the Rochkins, S&S, and N.B.S. to exclude the Arc report. The Court again affirmed the circuit courtís decision, and agreed with the defendants that they were deprived of their opportunity to be present for the test due to Butlerís failure to send written notices. The Court pointed out that the scheduling order was clear in its directions, and permitted the defendants an opportunity to be present for the testing. Therefore, the Court agreed with the circuit court that exclusion was an appropriate remedy.

The Court likewise affirmed the circuit courtís decision granting the Motion for Summary Judgment filed by Shpritz and S&S G.P. The Court agreed that Butler failed to produce evidence that the third floor interior of the Linden Avenue apartment contained lead paint during the brief period the property was owned by S&S G.P. The Court also affirmed the grant of partial summary judgment regarding Butlerís Consumer Protection Act claims against N.B.S. and S&S. The Court reasoned that the undisputed facts demonstrated that there was no peeling or flaking of paint at the Bryant Avenue location; there was simply no admissible evidence to support a Consumer Protection Act claim in this action.

The Court then affirmed the circuit courtís decision excluding Dr. Kleinís testimony. The Court observed that, in large part, Butler raised on appeal the propriety of the circuit courtís actions taken sua sponte. The Court held that it was within the circuit courtís power in managing its docket to exclude Dr. Kleinís opinions. The Court found that any remaining issues taken up by Butler on appeal necessarily failed because the circuit court neither abused its discretion in excluding the Arc reports or Dr. Kleinís affidavit. In absence of evidence to make a prima facie case of negligence, the court affirmed the circuit courtís motion for summary judgment.