In a victory for the plaintiff, the Maryland Court of Special Appeals reversed the lower court’s order of summary judgment against her, allowing her lead paint claim to proceed. In Smith v. Rowhouses, 117 A.3d 622, 624 (Md. App. 2015), the plaintiff brought a negligence action against the defendant, alleging that she had ingested lead-based paint as a child when she lived inside a property managed by the defendant in the early 1990s. The building had been completely razed before the filing of the plaintiff’s lawsuit, and there was no way to test it for lead-based paint.
To establish a claim for negligence, the plaintiff must prove the elements of duty, breach, causation, and damages. To prove the element of causation in a lead paint case, the plaintiff must demonstrate that the property contained lead-based paint and that the lead-based paint substantially contributed to the plaintiff’s exposure to lead. Although it is widely known that lead-based paint was typically used in houses built before the 1950s, in Maryland, the age of the property alone may not be used as a factual basis for an expert to conclude the presence of lead-based paint in the interior of the property.
In Smith, historical records showed that the now-demolished building had been originally built in the early 1900s. The court found that the plaintiff’s expert, who had relied solely on the age of the building to determine that the property contained lead-based paint, provided an opinion that rested on an inadequate factual foundation. Therefore, the expert’s testimony was not admissible for purposes of proving causation.
Nevertheless, the Court of Special Appeals acknowledged that under Dow and Kirson, circumstantial evidence, along with the age of the building, may be used to support a reasonable inference that a building was the reasonably probable source of lead. In Smith, the court noted the existence of the following circumstantial evidence of the plaintiff’s lead-paint exposure: chipping and peeling paint inside the property, the plaintiff’s ingestion of paint chips, the age of the property, the plaintiff’s elevated blood-lead levels during and after living in the property, the fact that the majority of the plaintiff’s time was spent in the property, and the fact that other properties in which the plaintiff lived or spent time did not have deteriorating paint. The court ultimately held that such evidence was sufficient for the plaintiff’s negligence claim to survive a summary judgment motion by the defendant.
Negligence claims involving lead paint can be nuanced and complex, especially when the physical evidence no longer exists. The personal injury attorneys at Foran & Foran, P.A. possess the skills and resources required to pursue compensation for their clients after an accident. Our firm provides competent, experienced legal representation to Maryland residents involved in accidents such as premises liability claims, car crashes, medical malpractice, and others. To discuss your claim with our experienced attorneys, contact us at (301) 441-2022 or online.
More Blog Posts:
Maryland Court of Special Appeals Addresses Discovery Issue in Lead Paint Suit, Maryland Personal Injury Blog, published July 31, 2015
Maryland Court of Special Appeals Affirms Summary Judgment in Slip and Fall Case, Maryland Personal Injury Blog, published July 15, 2015