STATUTORY IMMUNITY FOR PROPERTY OWNERS IN LEAD PAINT CASES HELD UNCONSTITUTIONAL
October 31st, 2011
In Zi'Tashia Jackson, et al, v. The Dackman Company, et al., No. 131, Sept. Term 2008 (Oct. 24, 2011), the Court of Appeals declared that the provisions in the Reduction of Lead Risk in Housing Act (Md. Code Ann. Environment sec. 6-801, et seq.) which grant the owners of certain rental properties, under specified conditions, immunity from personal injury suits based upon a child's or pregnant woman's ingestion of lead were invalid and unconstitutionality under Article 19 of the Maryland Declaration of Rights.
Ms. Jackson, through her mother, filed a lawsuit in the Circuit Court for Baltimore City for negligence and violations of Maryland's Consumer Protection Act claiming that she suffered severe and permanent brain injuries allegedly resulting from her ingestion of lead-based paint at property owned by the defendants. Ms. Jackson was born January 12, 1997 and moved into the defendant's property when she was one year old. Between 1997 and 2000 Ms. Jackson had elevated blood lead levels of 21 ug/dl, 16, ug/dl, 15 ug/dl and 9ug/dl. Her blood lead levels never reached the 25 ug/dl which is the level set forth in sec. 6-828(b) applicable to those years.
Defendant property owners moved for summary judgment on the grounds that they had complied with the Act and were therefore immune from a suit for personal injury under the Act. Plaintiffs opposed the motion on the grounds that the Defendants did not comply with the Act, and even if they did, that various provisions of the Act were unconstitutional under various theories. Ultimately, the Court agreed that the Defendants had complied with the Act and granted summary judgment in Defendants favor.
The Reduction of Lead Risk in Housing Act was enacted in 1994 "to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing." The Court addressed the Act in its entirety but primarily focused on compensation and immunity provisions of the Act and their application.
The Court focused on the Act's alternative remedy to a personal injury suit of a "qualified offer" which is an offer of money by an owner, the owner's agent, or an insurer of the owner, made to a person at risk or to a parent or legal guardian of a person at risk who is a minor (secs. 6-831 through 6-834). A "person at risk" is defined as "a child or a pregnant woman who resides or regularly spends at least 24 hours per week in an affected property" (sec. 6-801(p)). A "qualified offer" is designed to cover some expenses which are incurred on behalf of an affected person at risk. Nevertheless, the maximum amount payable under a qualified offer is only $17,000, and most of this is payable to the providers of medical or other services and not to the person at risk. Under sec. 6-835, the "acceptance of a qualified offer by a person at risk, or by a parent or legal guardian" of a person at risk, "releases all potential liability of the offeror, the offeror's insured or principal." If the qualified offer is rejected, under sec. 6-836 "an owner of an affected property is not liable, for alleged injury or loss caused by ingestion of lead by a person at risk in the affected property." The statutory language dictates that the immunity provisions are intended to be very broad and grant immunity to an owner from personal injury suits if that owner has complied with the Act.
In declaring the immunity provisions to be invalid, the Court relied on Article 19 of the Maryland Declaration of Rights. Article 19 generally protects two rights: (1) a right to a remedy for an jury to one's person or property; (2) a right of access to the courts. Another tenet of Article 19 is that it generally prohibits unreasonable restrictions upon traditional remedies or access to the courts but allows the Legislature to enact reasonable restrictions. Under Article 19 the Court weighed whether the abolition of the common law remedy and substitution of a statutory remedy was reasonable.
The Court opined that immunity granted to defendants under the Act is not a traditional or well-established immunity from personal injury actions and that the substituted remedy under the Act for a permanently brain damaged child, i.e. the maximum of $17,000, is "totally inadequate and unreasonable." The Court noted that the only remedy provided by the Act, in substitution for a personal injury action, is a qualified offer by the property owners which is accepted by a "person at risk, or a parent or legal guardian or a minor who is a person at risk." However, where no qualified offer is made, the plaintiffs have no remedy under the statute.
Since the Act is applied broadly, stating that immunity is "applied to all potential bases of liability for alleged injury of loss to a person caused by the ingestion of lead by a person at risk in an affected property," the Court found that the maximum amount of compensation under a qualified offer is "minuscule" where a child is found to be permanently brain damaged from ingesting lead paint caused by the landlord's negligence. Consequently, the Court found that the remedy which the Act substitutes for a traditional personal injury action results in either no compensation or drastically inadequate compensation.
The Court opined that when no adequate remedy is substituted for the grant of immunity, the statute leaves a negligently injured child without a remedy. Accordingly, the Court held that it cannot "countenance a result that would leave the only innocent victim . . . uncompensated for his or her injuries" and therefore the immunity provisions in the Act or invalid.
Even though the immunity provisions were held to be invalid, the Court found that these provisions were severable from the remainder of the Act. The remaining portions of the Act had a valid purpose and are capable of being executed in accordance with the legislative intent which is to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing.
Ms. Jackson, through her mother, filed a lawsuit in the Circuit Court for Baltimore City for negligence and violations of Maryland's Consumer Protection Act claiming that she suffered severe and permanent brain injuries allegedly resulting from her ingestion of lead-based paint at property owned by the defendants. Ms. Jackson was born January 12, 1997 and moved into the defendant's property when she was one year old. Between 1997 and 2000 Ms. Jackson had elevated blood lead levels of 21 ug/dl, 16, ug/dl, 15 ug/dl and 9ug/dl. Her blood lead levels never reached the 25 ug/dl which is the level set forth in sec. 6-828(b) applicable to those years.
Defendant property owners moved for summary judgment on the grounds that they had complied with the Act and were therefore immune from a suit for personal injury under the Act. Plaintiffs opposed the motion on the grounds that the Defendants did not comply with the Act, and even if they did, that various provisions of the Act were unconstitutional under various theories. Ultimately, the Court agreed that the Defendants had complied with the Act and granted summary judgment in Defendants favor.
The Reduction of Lead Risk in Housing Act was enacted in 1994 "to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing." The Court addressed the Act in its entirety but primarily focused on compensation and immunity provisions of the Act and their application.
The Court focused on the Act's alternative remedy to a personal injury suit of a "qualified offer" which is an offer of money by an owner, the owner's agent, or an insurer of the owner, made to a person at risk or to a parent or legal guardian of a person at risk who is a minor (secs. 6-831 through 6-834). A "person at risk" is defined as "a child or a pregnant woman who resides or regularly spends at least 24 hours per week in an affected property" (sec. 6-801(p)). A "qualified offer" is designed to cover some expenses which are incurred on behalf of an affected person at risk. Nevertheless, the maximum amount payable under a qualified offer is only $17,000, and most of this is payable to the providers of medical or other services and not to the person at risk. Under sec. 6-835, the "acceptance of a qualified offer by a person at risk, or by a parent or legal guardian" of a person at risk, "releases all potential liability of the offeror, the offeror's insured or principal." If the qualified offer is rejected, under sec. 6-836 "an owner of an affected property is not liable, for alleged injury or loss caused by ingestion of lead by a person at risk in the affected property." The statutory language dictates that the immunity provisions are intended to be very broad and grant immunity to an owner from personal injury suits if that owner has complied with the Act.
In declaring the immunity provisions to be invalid, the Court relied on Article 19 of the Maryland Declaration of Rights. Article 19 generally protects two rights: (1) a right to a remedy for an jury to one's person or property; (2) a right of access to the courts. Another tenet of Article 19 is that it generally prohibits unreasonable restrictions upon traditional remedies or access to the courts but allows the Legislature to enact reasonable restrictions. Under Article 19 the Court weighed whether the abolition of the common law remedy and substitution of a statutory remedy was reasonable.
The Court opined that immunity granted to defendants under the Act is not a traditional or well-established immunity from personal injury actions and that the substituted remedy under the Act for a permanently brain damaged child, i.e. the maximum of $17,000, is "totally inadequate and unreasonable." The Court noted that the only remedy provided by the Act, in substitution for a personal injury action, is a qualified offer by the property owners which is accepted by a "person at risk, or a parent or legal guardian or a minor who is a person at risk." However, where no qualified offer is made, the plaintiffs have no remedy under the statute.
Since the Act is applied broadly, stating that immunity is "applied to all potential bases of liability for alleged injury of loss to a person caused by the ingestion of lead by a person at risk in an affected property," the Court found that the maximum amount of compensation under a qualified offer is "minuscule" where a child is found to be permanently brain damaged from ingesting lead paint caused by the landlord's negligence. Consequently, the Court found that the remedy which the Act substitutes for a traditional personal injury action results in either no compensation or drastically inadequate compensation.
The Court opined that when no adequate remedy is substituted for the grant of immunity, the statute leaves a negligently injured child without a remedy. Accordingly, the Court held that it cannot "countenance a result that would leave the only innocent victim . . . uncompensated for his or her injuries" and therefore the immunity provisions in the Act or invalid.
Even though the immunity provisions were held to be invalid, the Court found that these provisions were severable from the remainder of the Act. The remaining portions of the Act had a valid purpose and are capable of being executed in accordance with the legislative intent which is to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing.
