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Plaintiffs’ Failure to Comply with LGTCA Thwarts Lead Paint Personal Injury Lawsuits
Ellis v. Housing Authority of Baltimore City,
This opinion consolidated two (2) cases in which Plaintiff Ellis and Plaintiff Johnson separately sued Defendant Housing Authority for Baltimore City (“HABC”) in the Circuit Court for Baltimore City for negligence and violations of the Maryland Consumer Protection Act (“CPA”) arising out of Plaintiffs’ alleged exposure to lead paint in properties that HABC owned and operated. In both cases, HABC moved for summary judgment on the grounds that Plaintiffs failed to comply with the Local Government Tort Claims Act (“LGTCA”). The trial court agreed and granted summary judgment in favor of HABC.
The Court of Appeals of Maryland held that: 1) the circuit court properly concluded that Plaintiffs did not substantially comply with the LGTCA notice requirement; 2) the circuit court did not abuse its discretion in concluding that Plaintiffs did not show good cause for their failure to comply with the LGTCA notice requirement; and 3) 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.
The LGTCA requires written notice of a claim for damages within 180 days after an injury. Even if a plaintiff does not strictly comply with the LGTCA notice requirement, a plaintiff may substantially comply with the LGTCA notice requirement where, among other things, the plaintiff “in fact” gives some kind of notice that fulfills the LGTCA’s purpose to apprise the local government of its possible liability at a time when the local government could conduct its own investigation. Here, neither Plaintiff actually or substantially complied with the LGTCA notice requirement.
While HABC received the results of a test indicating that Plaintiff Ellis had elevated blood lead levels, the record was unclear as to how HABC received the test results, and there was nothing about the test results themselves or the manner of receipt which indicated that Plaintiff Ellis intended to sue HABC—thus there was no substantial compliance. With respect to Plaintiff Johnson, while Plaintiff Johnson’s mother allegedly orally complained to an HABC housing manager about chipping paint and threatened to sue HABC if it did not fix the chipping paint, this also failed to satisfy the substantial compliance standard and did not apprise HABC of potential liability for any injury to Johnson. The alleged complaint would only have put HABC on notice of a landlord-tenant action, not a lead paint personal injury action. Furthermore, at the time of the alleged complaint by Johnson’s mother, Johnson’s mother had no knowledge of any alleged injury to her daughter since she did not become aware of her daughter’s alleged elevated blood lead level until years later.
The Court further rejected Plaintiffs’ contention that HABC had notice of their injuries because HABC was legally required to inspect properties for deteriorated lead paint and generally was aware of the frequency of lead paint actions involving older rental dwellings in Baltimore City—the standard requires plaintiffs to “in fact” give some kind of notice to comply with the LGTCA.
The Court also determined that the trial court did not abuse its discretion by determining that Plaintiffs did not show good cause for their failure to comply with the LGTCA notice requirement. The Court recognized that a plaintiff does not per se show good cause for the failure to comply with the LGTCA notice requirement where the plaintiff is a minor at the time of the injury. In addition, both Plaintiffs’ mothers knew of their elevated blood lead levels for years before taking any action regarding potential claims against HABC. Neither Plaintiff prosecuted their claim with the degree of diligence that an ordinary prudent person would have exercised under the same or similar circumstances.
Finally, the Court held that, 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, as the lead paint action arises out of a governmental–as opposed to proprietary–activity (i.e., HABC’s operation of public housing). The Court made clear that HABC’s operation of public housing is a governmental activity.
Overall, the Court of Appeals affirmed the judgment of the circuit court in all respects. Plaintiffs’ filed a motion for reconsideration which is still pending as of the date of this article.
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