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Defendants’ Motion for Summary Judgment Properly Granted Where Plaintiff Failed to Produce Sufficient Circumstantial Evidence of Lead at Subject Property

West v. Rochkind
No. 0041 (Maryland Court of Special Appeals, May 30, 2013)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

In this lead paint case, the Circuit Court for Baltimore City granted summary judgment in favor of Defendants, NBS, Inc., and Stanley Rochkind (hereinafter, collectively “Defendants”), who owned and operated a residential property, 1814 Lorman Street, from May 4, 1990, through June of 2001. The Plaintiff alleged that he sustained injury from having ingested lead paint while living with his grandparents at 1814 Lorman Street from his birth in 1989 through February 10, 1992. The case was necessarily based on circumstantial evidence because no lead paint tests were ever conducted on 1814 Lorman Street and the property had since been razed. Discovery revealed that Plaintiff either resided or spent substantial amounts of time at a variety of different residences during the first six (6) years of his life – 1814 Lorman Street, plus an additional three (3) other properties. The trial court ruled that Plaintiff had not made out a prima facie case of negligence against the Defendants. The trial court reasoned that, given Plaintiff’s uncertain residential history and the lack of any direct evidence that 1814 Lorman Street ever contained lead paint, Plaintiff could not point to 1814 Lorman Street as the source of his lead poisoning. The Court of Special Appeals agreed and affirmed the judgment of the circuit court.

In the appeal, the Court of Special Appeals looked to its prior decision in Dow v. L & R Properties, Inc., 144 Md. App. 67 (2002), on the issue of whether the Plaintiff had produced sufficient circumstantial evidence to create a genuine dispute of material fact as to whether the subject property contained lead, and thus, to defeat a Defendant’s Motion for Summary Judgment, even without direct proof of lead in the form of tests conducted at the property. The Court emphasized that under Dow, a lead paint plaintiff may establish a prima facie case of negligence based solely on circumstantial evidence. In this case, however, where there was no direct evidence that 1814 Lorman Street even contained lead paint, Plaintiff may only rely on that critical fact, as a necessary part of his circumstantial evidence, if he can show by the process of elimination that 1814 Lorman Street was the only possible cause for the critical effect of lead poisoning. The existence of lead paint at 1814 Lorman Street can only be inferred from the Plaintiff’s condition if lead paint at Lorman Street is shown to have been the only possible explanation for the Plaintiff’s condition. Put another way, even in the absence of direct proof, the presence of lead paint at a particular site can be inferred by the process of elimination, but only if there is: 1) the effect of lead poisoning in the plaintiff and 2) the fact that the site in question was the exclusive possible source of the plaintiff's lead paint exposure. Such was not the case here.

In this case, at best, the Plaintiff could show that he may have been exposed to lead at any or all of the three (3) or four (4) residences where he spent substantial time as a child. By definition, that does not trigger the process of elimination, and he thereby failed to establish the threshold premise that lead was even present in the paint at Lorman Street. Under those circumstances, whether he spent a significant amount of time or only a negligible amount of time or no time at all at Lorman Street was immaterial, because he failed to establish the necessary premise on which the ultimate conclusion of probable causation logically depended. Therefore, the trial court properly granted Defendant’s Motion for Summary Judgment.