To establish a successful negligence claim, the plaintiff must present evidence in support of her case. The plaintiff may even have to argue her claim before trial, in an opposition to a motion for summary judgment, as in Davis v. Realty (Md. Ct. Spec. App. May 25, 2016). In Davis, the plaintiff filed suit against several defendants, alleging that she suffered lead paint poisoning while residing in the defendants’ properties as a child. The defendant-owners of one such property filed a motion for summary judgment, arguing that the plaintiff failed to provide any evidence of flaking, chipping, or peeling paint while she lived there. The trial court granted the motion, and the plaintiff appealed.
In Davis, the defendants supported their motion for summary judgment with the deposition of the plaintiff’s mother. In that deposition, the plaintiff’s mother was never asked, nor did she volunteer, any testimony as to the flaking, chipping, or peeling paint in the house at issue. When asked generally about the condition of the house, she stated that the walls had been freshly painted. In response to the defendants’ motion, the plaintiff attached an affidavit of her mother. The plaintiff’s mother stated in her affidavit that although the house at issue was freshly painted, the paint was very lumpy on the walls, and there was chipping, peeling, and flaking paint on the doors, doorframes, baseboards, steps, banister, and handrails.
The defendants moved to strike the affidavit pursuant to Rule 2-501(e), which requires the court to strike any part of an affidavit to the extent that it contradicts any prior sworn statements of the witness. The plaintiff argued that the testimony was not contradictory, since her mother had lived in Baltimore City all of her life and regarded chipping, peeling, and loose paint as a normal thing to see in the kind of house she could afford to rent. Furthermore, she had not been specifically asked about flaking, chipping, or peeling paint.
On appeal, the court explained that the issue is one of a “sham affidavit.” Such an affidavit directly contradicts prior sworn testimony, without any plausible explanation for the contradiction, usually in an attempt to defeat a motion for summary judgment that otherwise may have merit. The question for the court in deciding whether the affidavit falls under Rule 2-501(e) is whether the later statement materially contradicts the earlier one. In making the fact-specific determination, the court must look carefully at the two statements to see if there truly is an irreconcilable material conflict, to the point that both statements cannot be right. The judge’s view regarding the credibility of either statement is not considered.
Ultimately, the appeals court held that the lower court erred in striking the mother’s affidavit, finding there was no irreconcilable material conflict. The court reasoned that she was never specifically asked whether there was chipping, flaking, or peeling paint and that her general assertions about the property were not contradictory. As a result, the court reversed the summary judgment order.
Lead paint cases involve unique considerations that may be further explained by a qualified personal injury lawyer. At Foran & Foran, P.A., our Maryland attorneys have the knowledge and experience to answer your questions and help you pursue compensation against negligent defendants. We can represent people in all types of injury cases, including car and motorcycle accidents, premises liability actions, medical malpractice claims, and more. To schedule a consultation, call Foran & Foran at (301) 441-2022 or contact us online.
More Blog Posts:
Maryland Court Allows Plaintiff to Proceed in Lead Paint Lawsuit Against Property Owner, Maryland Personal Injury Blog, published August 20, 2016
Maryland Court Evaluates Circumstantial Evidence in Lead Paint Case, Maryland Personal Injury Blog, published June 12, 2016