Polakoff v. Turner

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In the Circu it Court for B altimore C ity Civil No. 14-C-01-5025 IN THE COURT OF APPEALS OF MARYLAND No. 20 September Term, 2004 ______________________________________ LAWRENCE POLAKOFF, ET AL. v. JASMINE TURNER ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. Raker and Wilner, JJ., Dissent ______________________________________ Filed: March 11, 2005 On October 30, 2002, a jury in Baltimore City found Lawrence Polakoff ( Polakoff ) and Chase Management ( Chase ) negligent in the lead-paint poisoning of Jasmine Turner ( Jasmine ), a minor who resided in a home owned by Polakoff and managed by Chase. The jury awarded Jasmine $500,000 that was later reduced by the Circuit Co urt for Baltim ore City to $35 0,000, purs uant to the c ap on no n-econo mic damages. Both parties appealed to the Court of Special Appeals.1 While the matter was pending in the Court of Special Appeals, we decided Brooks v. Lewin Realty III, Inc., 378 Md . 70, 835 A .2d 616 (2 003), in w hich we h eld that in order to make out a prima fac ie case in a negligence action, all that a plaintiff must show is: (a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the p laintiff, and (b) that the violation proxima tely caused the injury complained of. Brooks, 378 M d. at 79, 8 35 A.2 d at 621 . Brooks overruled Richwind Joint Venture 4 v. Brunson, 335 Md. 661, 645 A.2d 1147 (1994), which held that a landlord is not liable for a defective condition on the property unless the landlord knows or has re ason to know of the c onditio n and h ad a rea sonab le oppo rtunity to co rrect it. Richwind, 335 M d. at 673 , 645 A .2d at 11 53 (inte rnal citati ons om itted). Polakoff and Chase argued to the Court of Special Appeals, as they do here, that 1 Five different groups, including the Mayor and City Council of Baltimore City, the Housing Authority for Baltimore City, the Greater Baltimore Property Owners Association, the Maryland Multi-Housing Association, and the National Association of Industrial and Office Properties, filed amici curiae briefs in the C ourt of Sp ecial Appeals in support of Polakoff and Chase. The Public Justice Center, the Coalition to End Childhood Lead Poisoning, and Advocates for Children a nd You th filed an amicus curiae brief in support of Jasmine. Only the latter group filed an amicus brief in this Co urt. Brooks should apply prospectively only. They claim that they relied on the notice standard enunciated in Richwind regarding le ad paint an d that it wou ld be unfa ir to hold them to the new notice standard of Brooks. The intermediate appellate court applied the general rule that a new holding applies to all pending cases and concluded that the Brooks decisio n and th e notice require ment e nuncia ted there in applie d to the p resent c ase. Polakoff v. Turner, 155 M d. App . 60, 69- 70, 841 A.2d 4 06, 412 (2004 ). By petition for writ of certiorari to this Court, Polakoff and Chase challenge the ruling of the Court of Special A ppeals asse rting that Brooks shou ld ap ply prospe ctive ly, that the intermediate appellate court erred in applying Brooks to the case at bar, that Brooks was wrongly decided, and that the trial court erred in denying their motion for judgment notwithstanding the verdict because there was insufficient evidence to prove that they had reason to know of the flaking, loose, or peeling paint. We granted certiorari on M ay 14, 20 04. Polakoff v. Turner, 381 Md. 324 , 849 A.2d 473 (2004). We reaffirm our holding in Brooks and hold that the standard for establishing a prima fac ie case based on a violation of the Baltimore City Housing Code ( Code ) as enunciated therein applies to all cases not final at the time Brooks was filed. I. In March of 1985, Lelia Whittington ( Lelia ) and her daughter, Crystal Whittingto n ( Crystal ), m oved into a residential ren tal property locate d at 17 N orth Bentalou Street. 17 N orth Benta lou is a row house loc ated in Ba ltimore City. It wa s built -2- prior to 1950 and was later determined to contain lead-based paint. While residing at the property, Crystal gave birth to Jasmine on April 3, 1990. The women lived in the home for nine years u ntil Augu st of 1994 when P olakoff a sked them to move o ut. Polakoff was the owner of 17 North Bentalou from 1975 until June 30, 1992, when he transferred the prope rty to C.F.A.S. Limited Partnership( C FAS ). 2 While un der his ownership, Polakoff hired a property manager to handle day-to-day management and maintenance. After the sale to CFAS on June 30, 1992, Chase Management ( Chase ) took over the day-to-da y operatio n of man agin g the prop erty. 3 Lelia and Crystal testified that prior to moving into the Bentalou property they conducted a walk-through to inspect it. Both women testified that the windowsills, and baseboards had been freshly painted before they moved. The paint on the windowsills, however, was bumpy from having been applied on top of old chipping paint. Crystal testified that the majority of the walls had wallpaper on them but those that were painted had been freshly painted and we re smoo th. The w omen testif ied that durin g their tenanc y they notice d that the paint aro und the windo ws ha d begu n to chip and fla ke. Crystal testified that she noticed chipping and flaking paint about 1½ years into the tenancy, wh ile Lelia testified that she notic ed the chip ping abo ut two to thre e years into the tenancy. Crystal also testified that around the same period of time, 1½ years into the 2 3 Polakof f is a limited pa rtner in CF AS and he serves a s its president. Polakoff is the president of Chase Management, Inc. -3- tenancy, the wallpaper began to peel away from some of the walls, revealing painted walls with disintegrating plaster beh ind the wallpaper. Prior to Jasmine s birth, a workman painted the two windowsills in the living room. The paint was applied again over top of the chipping and flaking paint without removing the old paint. According to testimony, the paint continued to chip. Other than the one time the windowsills were painted, no other painting or repairs to the chipping and flak ing p aint w ere m ade d uring the nine -year tena ncy. T here was testim ony, however, that other repairs were made to the house, including work on the windows themselves. In early 1993, when Jasmine was almost three years old, a routine physical revealed that she had elevated levels of lead in her blood.4 Doctors placed Jasmine on a special diet an d gave he r iron to treat the poisoning . Crystal was als o instructed to remove anything from the home that could contribute to Jasmine s lead levels, e.g., lead contain ing dus t. Polakoff testified that at the time of the trial he had been in the real estate business for appro ximately thirty (30) years. H e testified that a t the time he le ased the pre mises to the Whitting tons, he w as aware of the follo wing: that m ost housing in Baltimo re City 4 Jasmin e s bloo d lead le vel wa s 22 ug /dl. A child is considered to have elevated blood lead lev els at 10 ug/dl. Ug/dl is an abbreviation for m icrograms per deciliter. It indicates that the c hild has 22 mic rogram s of lead per eve ry deciliter o f blood . See Jones v. Mid-Atla ntic Funding, 362 M d. 661, 6 68 n.12, 766 A.2d 617, 621 n.12 (citing Preventing Lead Poisonin g in Young Children, A Statement by the Center for Disease Control (1991)). -4- built before 1950 would probably contain some sort of lead-based paint; that deteriorating lead paint can be a potential danger to young children; that it was a violation of the Baltimore City Housin g Code for a prop erty to have pe eling, chippin g, or flaking paint; and that the Code re quires flaking and ch ipping paint to be mad e smooth befo re repainting the surface. He also testified that he did not inspect 17 North Bentalou to see if it was fit for habitation before the Whittingtons moved in because I have a painter working for me who had p robably 30 years experience painting Baltimore City houses, mostly row houses. He knew the process. He was experienced. He had a level of expertise an d he knew how to p repare a ho me for pa inting and th at s what h e did on all the houses he painted for me including 17 North Bentalou Street. Polakoff further testified that he did not inform Ms. Whittington of the dangers of lead paint prior to her moving in; however, he did inform her of the procedure for reporting needed repair work. II. A. Brooks v. Lewin Realty III, Inc. At the core of Polakoff and Chases s argument is the question of notice and whether we correctly decided Brooks. If we reaffirm Brooks, which w e do, then th e only remaining question is whether it applies to the case at bar. We therefore begin with a review of the Brooks opinion. In Brooks we stat ed that, under t he com mon la w and in the ab sence o f a statu te, a landlord or dinarily has no d uty to keep ren tal premises in -5- repair, or to inspect the rental premises either at the inception of the lease or during the lea se term. There are, how ever, exceptions to this general rule. Moreover, where there is an applicable statutory scheme designed to protect a class of persons which includes the plaintiff, another well-settled Maryland common law rule has long been applied by this Court in negligence actions. That rule states that the defendant s duty ordinarily is prescribed by the statute or ordinance and that the violation of the statute or ordinance is itself evidence of negligence. Brooks, 378 Md. at 78, 835 A.2d at 620. We then cited an extensive list of cases that apply the statute or ordin ance rule. See Brooks, 378 Md. at 78-9, 835 A.2d at 621 for cases cited therein. We explained: Under this principle, in order to make out a prima fac ie case in a negligence action, all that a plaintiff must show is: (a) the violation of a statute or ord inance de signed to p rotect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of. Proximate cause is established by determining whether the plaintiff is within the class of persons sought to be protected, and the harm suffered is of a kind which the drafters intended the statute to prevent. It is the existence of this cause and effect relationship that makes the violation of a statute prima fac ie eviden ce of n egligen ce.[ 5 ] Where th ere is eviden ce that the vio lation of the s tatute 5 The standard for establishing a prima fac ie case of ne gligence in a statutory-based negligence action is different from the general standard for establishing a prima fac ie case of negligence in cases that are not governed by a statute. See Rose nblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994) (listing the elemen ts for a negligence suit as (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defe ndant s breach of the duty ). -6- proximately caused the plaintiff s injury, evidence of such violation is suf ficient evide nce to wa rrant the cou rt in submitting the case to the jury on the question of the [defend ant s] neglige nce. The trie r of fact m ust then eva luate whether the actions tak en by the def endant w ere reason able under all the circumstances. **** Nevertheless, once it is established tha t there was a statutory violation, the tort defendant s knowledge that he or she violated the statute is not part of the tort plaintiff s burden of proof. It is the violation of the statute or ordinance alone which is evidence of negligence. Brooks, 378 Md. at 79-8 0, 835 A.2d at 62 1-22 (internal citations omitted). Having determined the applicable rule, we turned to the Code itself. We began by noting that the Code contains a comprehensive statutory scheme aimed at establish[ing] minimum standards governing the condition, use, operation, occupancy, and maintenance of dwellings . . . in order to mak e dwellings safe, sanitary, and fit for hum an habitation. Brooks, 378 Md. at 81, 83 5 A.2d at 622 (qu oting Baltimore City Cod e (2000 Repl.V ol.), Art. 13, § 103(a)(2)). It imposes numerous duties and obligations upon landlords who rent residential property. Brooks, 378 Md. at 81, 835 A.2d at 622. Section 702 of the Code imposes a duty on property owners to keep a dwelling in good repair and safe condition. Section 702(a) provides that [e]very building and all parts thereof used or occupied as a dwelling shall, while in use or at any time when the lack of maintenance affects neighboring property, be kept in good repair, in safe condition, and fit for human habitation. Section 703(b)(3) provides that good repair and safe condition includes a -7- requirement that [a]ll walls, ceilings, woodwork, doors, and windows shall be kept clean and free of any flaking, loose, or peeling paint and paper. The Code places the duty on the owner or operator of the property to keep it in compliance with all provisions of the Code. § 310(a)(1). It further provides the owner with access to the property during a tenancy for the purpose o f making such inspection and such re pairs or alterations as are necess ary to eff ect com pliance with th e provi sions o f this C ode . . . . § 909. Based on the language of the Code, we concluded that the landlord s duty to keep the property in compliance is con tinuous. The landlord m ust take whatever m easures are necessary during the pendency of the lease to ensure the dwelling s continued compliance with the Code. Brooks, 378 Md. at 84, 835 A.2d at 624. Consequently, because the Code prescribes the property owner s duty to keep the property continuously free of any flaking, loo se, or peeling paint, the failu re to keep th e property in su ch a cond ition is itself eviden ce of n egligen ce. Brooks does not hold that a landlord will be held strictly liable for violations of the Code; rath er it reaffirme d the long-s tanding co mmon law rule tha t a violation of a statute or ordinance is evidence of negligence. As we repeatedly stated in Brooks, proof of a statutory violation, plaintiff s membership in the class of people designed to be protected by the statute, and causation, amount to prima fac ie evidence of negligence, not negligence per se. See Brooks, 378 Md. at 78-81, 84-5, 85 n.5, 89, 835 A.2d at 620-25, 625 n.5, 62 7; see also, Absolon v. Dollahite , 376 Md. 547, 831 A.2d 6 (2003) (stating that -8- it is a long esta blished gen eral rule in M aryland that the v iolation of a s tatutory duty is only evidence of negligence, but does not establish negligence per se (internal citations omitted)); 6 Bentley v. Carrol, 355 Md. 312, 325, 734 A.2d 697, 704-05 (1999) ( Not long ago we reaffirm ed that [t]his Court has con sistently held that the violation of a statutory duty may furnish evidence of negligence. The po sitive evidentiary value of the statutory violation, ho wever, is su bject to the co ndition that th e person a lleging the n egligence is within the class of persons sought to be protected, and the harm suffered is of a kind 6 Absolon involved a personal injury suit brought by a pedestrian who was injured when she was struck by a car in the crosswalk but while the crosswalk signal indicated a flashing red hand. The defendant argued that the pedestrian s alleged violation of a statute which required the pedestrian to remain on a safety island when the red hand cro sswalk signal was displayed established contributory negligence as a matter of law and that he was entitled to sum mary jud gmen t. Absolon, 367 Md. at 550 , 831 A.2d at 8. Th e trial court granted the mo tion. Absolon, 367 Md. at 551, 831 A.2d at 8. We reversed, holding that the trial court erred in finding that the statute established an absolute du ty and amou nted to neglige nce as a matter o f law. Absolon, 367 Md. at 553, 831 A.2d at 9-10. We reasoned: Section 21-203(e) [of the Transportation Article] argu ably establishes a duty for pedestrians to remain on or proceed to the nearest safety island. Su e Ann A bsolon w as standing in the median strip, which may or may not fall w ithin the statutory definition of a safety island. When she stepped off the median, she may have been in violation of her statutory duty of care. If so, the evidence of the viola tion should be subm itted to the jury, along with any other evidence tending to show contributory negligence or the lack thereof. A violation of the statute alone is not sufficient to establish an absolute duty so as to satisfy the requirement of Maryland Rule 2-501(e) for a grant of summa ry judgment, that the party in whose favor judgment is entere d is entitle d to jud gmen t as a ma tter of law . Absolon, 367 Md. at 557 , 831 A.2d at 11-12 (internal citations omitted). -9- which the statute was intended, in general, to prevent. ) (quoting County Comm issioners v. Bell Atlantic-Maryland, 346 Md. 160 , 179, 695 A.2d 1 71, 181 (1997)). 7 Contrary to the view e xpressed in Polakof f and Ch ase s brief, ev idence of negligenc e does no t ipso facto equate to liability. Before a landlord can be found liable, the trier of fact must determine whether the defendant acted reasonably given the circumstances. As we stated in Brooks, our holding in the instant case does not impose a strict liability regime upon landlords. Whether [the landlord] is held liable for any injury to a child, based on lead- 7 Bentley involved a medical malpractice suit alleging ne gligence o n the part of family healthcare practitioners w ho treated a sexually abus ed child, nam ed Bentle y, but failed to report the abuse. B entley contend ed that a statute then in eff ect, § 35A of the Child Abuse Act, Md. Code (1957, 1976 Repl.Vol., 1978 Cum.Sup.) Article 27, § 35A (relevant language recodified in Md. Code (1984) § 5-903 of the Family Law Article by Ch. 296 § 2 and currently found in Md. Code (2002) § 5-704 of the Family Law A rticle), imposed a statutory duty upon doctors to report the possibility of child abuse in certain circumstances, that the defendant doctors violated that duty in their treatment of her, and that their violation of the statute amou nted to e videnc e of m alpractic e. Bentley, 355 M d. at 318 , 735 A .2d at 70 1. We held that, the trial court was obligated in the instant case to instruct the jury in some manner as to the legal propositions that (1) Maryland statutory law, during the relevant period, required every physician who treated a child and believed or had reason to believe that the child had been abused was required to make a report as to the existence of such suspected abuse to the local department of social services or to the appropriate law enforcement agen cy, which would then investigate and intervene to the extent n ecessary to redress prior abuse and preve nt future occurrences and (2) the violation of such a statute by a physician constitutes evidence of negligence. Bentley, 355 Md. at 328, 735 A.2d at 706. -10- paint poisoning, will depend on the jury s evaluation of the reasonableness of the [landlord s] actions under all the circumstances. Brooks, 378 Md. at 84-5, 835 A.2d 624. Thus, liability will depend on the fact-finder s determination regarding whether the landlor d acted reason ably und er all the c ircums tances. Brooks, 378 Md. at 85 n.5, 835 A.2d at 624 n.5. The issue of what qualifies as reasonable will, as it does in all negligence cases, depend on the facts and circumstances of the case. As we noted in Brooks, the factfinder s determination of reasonableness is the essence of a negligence action. Brooks, 378 M d. at 85 n.5, 83 5 A.2d a t 625 n.5 ( n egligence is a failure to do what the re asonable [perso n] wo uld do under t he sam e or sim ilar circu mstanc es (inte rnal citati on om itted)). [I]t will be the duty of the trier of fact to determine whether the steps taken by the landlord to ensure continued compliance with the Code, i.e. the frequency and thoroughness of inspections, and the maintenance of the interior surfaces of the dwelling, were reasonable under all the circumstances. The test is what a reasonable and prudent landlord would have done under the same circumstances. Brooks, 378 Md. at 86, 835 A.2d a t 625. See also, Juarez v. Wavecrest Management Team LTD, 672 N.E.2d 135, 141 (N.Y. 1996) (interpreting a New York City Code similar to the Baltimore City Code and conc luding that [w]here , howev er, a landlord establishes th at it exercised d ue care, it will not be h eld liable. To avoid liability, a land lord must p rove that, ev en though it violated [the local lead-paint statute], it was acting re asonably under the circum stances. ). -11- Liability will dep end on the reasonab leness of th e landlord s efforts to rem ain in compliance with the statute; therefore, it is incumbent upon the landlord to take such reasonable steps as may be necessary. One surefire way of avoiding lead-paint poisoning liability is to remove lead paint from the rental property. We recognize, however, that the current law does not require this action. Less extreme options may include: notifying the tenant in w riting and ora lly of the possible presence o f lead pain t in the prope rty and its potential dan ger; asking the tenant to n otify the landlord or property m anager im mediately if flaking, loose, or peeling paint occurs; and inspecting the property at the inception and at regular intervals throughout the tenancy to ensure that there is no flaking, loose, or peeling pa int. This list is by no m eans exh austive nor is it a guarante e that a jury will find the landlord s actions reaso nable. Our point is simply to show that there are reason able w ays of atte mpting to satisfy o ne s du ty pursua nt to the C ode. See also, Md. Code (1996 Repl. Vol.), §6-801 et seq. of the Environment Article (entitled Reduction of Lead Risk in H ousing ). 8 We expressly recognized in Brooks that our holding was in conflict with parts of our opinion in Richwind, 335 M d. 661, 6 45 A.2 d 1147 . Brooks, 378 Md. at 86, 835 A.2d 8 In 1994, the General Assembly enacted the Reduction of Lead R isk in Hous ing, Md. Code (1996 Repl. Vol.), §6-801 et seq. of the Environment Article, which impacts a landlord s liability in lead paint cases. The stated purpose of subtitle 8 is to reduce the incidence of childhood lead poisoning, while maintaining the stock of affordable rental housin g. § 6-802. It contains mea ns of limiting landlord lead pain t liab ility, provided the landlor d com plies w ith certain preven tive me asures. See §§ 6-8 15 thro ugh 6- 819. -12- at 625. Richwind held that a landlord is not liable for a defective condition on the property unless the landlord knows or has reason to know of the condition and had a reasonable opportunity to correct it. Richwind, 335 M d. at 673 , 645 A .2d at 11 53. Richwind argued to the Court that, despite the numerous statutory enactments that impact upon the relationship between the landlord and tenant, the statute does not supercede the common law requirement that a landlord s liability for negligence depends upon notice of a particular defect and a reasonable opportunity to correct it. Richwind, 335 Md. at 670, 645 A.2d at 1151. We recognized that certain statutory enactments may alter the common law. We concluded, however, that based on §§ 301 through 303, the Code and the common law notice requirement were consistent with each other and therefore the Code did not do aw ay with th e notice require ment. Richwind, 335 Md. at 672-674, 645 A.2d at 1152- 53. In Brooks, we specifically disapproved of this reasoning. Brooks, 378 Md. at 87, 835 A.2d at 626. We noted that [t]he flaw in the Richwind opinion s a nalysis is its extens ion of § § 301 a nd 303 's notice r equirem ent to oc cupan ts. 9 Id. We concluded that 9 Sections 301 through 30 3 govern the procedure for pursuing violations of the Code by the Depa rtment of H ousing an d Com munity Dev elopmen t. They do not purport to address any notice req uirements f or tenants. Se ction 301 p rovides in re levant part tha t, [w]henever the Commissioner of Ho using and Comm unity Development determines that there has been a violation of any provision of th is Co de or of a ny rule or regulation adopted pursuant hereto, he shall give notice of such alleged violation to (contin ued...) -13- [t]he Housing Code provisions relied on in the Richwind opinion do not alter the requirements set forth by this Court for a plaintiff to make out a prima fac ie case based on [statutory] negligence. The Housing Code does not make the landlord s notice of a defective condition a factor with regard to the landlord s duty to the tenant. Brooks, 378 Md. at 88-89, 835 A.2d at 627.10 We remain committed to the analysis in Brooks. The law in this State regarding the breach of a statutory duty remains the same today as it has for over ninety years. To make out a prima fac ie case in a n eglig ence actio n based o n the brea ch of a statuto ry duty, 9 (...continued) the person or persons responsible therefor as hereinafter provided. Section 301(b) then details the form and content of the required notice. 10 Much of Polakoff and Chase s b rief is dedica ted to statutory co nstruction arg uments as to why our interpretation of the Housing Code in Brooks is incorrect. A t the core of their argument are two rules of statutory construction w hich state that legislative bodies are aware of the interpre tations that this C ourt has pla ced upon its enactments, (Blevins v. Baltimore County , 352 Md. 620, 642, 724 A.2d 22, 33 (1999)), and that when a legislative body reenacts a statute without altering its language following an opinion of this Court interpreting the statute, we p resume th e legislative body acquiesced in our interpretation. Stack v. Marney, 252 Md. 43, 49, 248 A.2d 880, 884 (1969). Although it is true that we may interpret silence as acquiescence, we fin d action more c ompe lling. Following our opinion in Brooks, City Council Bill 04-1276, entitled Building, Fire and Related Codes Landlord s Tort Liability was introduced as an addition to the Code. It stated [t]his code is not intended to alter the common law principle of tort liability that a landlord may be found liable for personal injury to a tenant caused by a defective condition on the leased premises only if the landlord had knowledge or reason to know of the condition a nd a reaso nable opportun ity to correct it. The bill was a direct result of our holding in Brooks. Its trip through the legislative process, ho wever, w as short lived as it did not m ake it out of the Judiciary Com mittee. -14- a plaintiff m ust show (a) the viola tion of a statu te or ordinan ce designe d to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of. Brooks, 378 M d. at 79, 8 35 A.2 d at 621 . Proximate cause is established by determining whether the plaintiff is within the class of persons sought to be protected, and the harm suffered is of a kind w hich the drafters intended the statute to prevent. Id. We conclude, as we did in Brooks, that the Code places a continuous duty on landlords to maintain their properties in good repair and safe condition, including keeping th e premises free of flak ing, loose, or p eeling pain t. If a landlord of prope rty located in Baltimore City fails to maintain the premises in a safe condition and someone whom the Code was designed to protect, i.e., a resident child, is injured as a result of the landlord s failure to maintain the premises, the plaintiff will have successfully established a prima fac ie case of ne gligence. It w ill then be incu mbent up on the find er of fact to determ ine wh ether the landlor d s actio ns we re reaso nable u nder all o f the circ umstan ces. Pursuant to the established principles of Maryland tort law cited in Brooks, if Jasmine could estab lish a violation of the Co de which proximate ly caused her in juries, she w ould be entitled to have the negligence count of her complaint submitted to the trier of fact for a determination of whether Polakoff and Chase acted reasonably under all of the circum stances . As previo usly discussed , the Code requires that o ccupied d wellings co ntinuously -15- be kept in good repair and safe condition, which includes keeping windows free of flaking, loose, or peeling paint. §§ 702(a) and 703(b)(3). Jasmine produced testimony that flaking, loose, or peeling paint existed as early as 1½ years into the tenancy and that the paint on the windowsills was bumpy from the inception of the tenancy as a result of new pa int being ap plied on top of old chip ping paint. T here was testimony that p rior to Jasmine s birth, a workman repainted the windowsills in the living room but, again, the new paint was applied on top of the old chipping paint. There was also testimony that Jasmin e spent much of her ti me at th e bum py win dows ills lookin g out th e wind ow. Based on this testimony, Jasmine met her burden of production regarding the presence of flaking, loose, or peeling paint in violation of the Code. She established proximate cause by presenting evidence that she is a member of the class of people sought to be protected by the Code, and that her injury, lead-paint poisoning, is the type of injury the drafters of the Code sought to prevent. These two things taken together, a violation of the Code and proximate cause, establish a prima fac ie case of negligence. Consequently, Jasmine was entitled to have her case presented to the trier of fact for a determination of whether Polako ff and Chase acted re asonab ly given th e circum stances . With regard to the issue of reasonableness, the jury heard testimony that Polakoff was aware o f the following at the ince ption of the lease: that most ho using in Baltimore City built before 1950 would probably contain some sort of lead-based paint; that deteriorating lead paint can be a potential danger to young children; that it was a violation -16- of the Code for a property to have peeling, chipping, or flaking paint; and that the Code require s that fla king an d chipp ing pain t to be m ade sm ooth be fore rep ainting t he surf ace. Polakoff testified that he did not inspect the premises at the inception of the lease but instead relied on the exp erience of a pa inter w ith who m he h ad wo rked fo r many yea rs. He further testified that at no time during the nine-year tenancy did he or anyone working for him inspect the interior of the house to ensure its compliance with the Code. Polakoff instead relied on tenants to notify him of needed maintenance. He further testified that he did not inform Ms. Whittington of the dangers of lead paint prior to her moving into the property. Based on this information, a jury could reasonably conclude that, despite being aware of the da nger and likely presence of lea d paint in the house, as w ell as the Code s requireme nt that the ho use be ke pt free of f laking, chipp ing, or peelin g paint, Pola koff did not inspect the inside of the reside nce at any point during the nine -year tenancy. The jury could reasonably conclude that Polakoff did not act as a reasonable landlord would have acted, g iven the circum stances . III. Application of Brooks The final issue before the Court is whether the holding of Brooks applies to the present cas e. Polakof f and Ch ase argue th at Brooks should apply to Brooks and to cases arising from facts that po stdate our d ecision but n ot to all others w hich arise on facts -17- predating the opinion.11 Although they do not use the term, what they seek is selective prospe ctivity. The U.S. Supreme Court identifies three types of application categories, retroac tive, pur ely prosp ective, a nd mo dified o r selectiv e prosp ectivity. James B. Beam Distilling Co mpany v. Georg ia, 501 U.S. 529, 535-37, 111 S.Ct. 2439, 2443-44, 115 L.Ed.2d 481, 488-89 (1991) (plurality opinion). Retroactive application applies to the parties before the court and to all others by and against whom claims may be pressed, consistent with res judicata and procedural barriers such as statute of limitations. Beam, 501 U.S. at 535, 111S.Ct. at 2443, 115 L.Ed.2d at 488. The Supreme Court noted that retroactivity is overwhelmingly the norm, and is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law. Id. (Internal citations omitted.) Pure prospectivity is the method of overruling, under which a new rule is applied neither to the parties in the law-making decision no r to those oth ers against o r by whom it might be ap plied to con duct or eve nts occurring before that decision. The case is decided under the old law but becomes a vehicle for announcing the new, effective with respect to all conduct occurring after the 11 Polakoff and Chase cite the Court of Special Appe als case , Stover v. Stover, 60 Md. App. 470, 483 A.2d 783 (1984) in support of their propo sition that ev en whe n a chang e in law is given prospective application, th at change will still apply to the case where the new rule was first decided. The Court of Special Appeals in Stover explained this application by noting that [i]f the litiga nt who su ccessfully con tests a standin g rule of law is denied relief because the new rule applies purely prospectively, there would be little motivation to attack settled rules of law. Stover, 60 Md. App. at 476, 483 A.2d at 786. -18- date of that decision. Beam, 501 U.S. at 536, 111S.Ct. at 2443, 115 L.Ed.2d at 488 (internal citations omitted). Mo difie d or s elective p rosp ectiv ity is th e me thod by wh ich a cou rt ma y apply a new rule in the case in which it is pr onounc ed, then retu rn to the old o ne with res pect to all others arising on facts predating the pronouncement. Beam, 501 U.S. at 537, 111S.Ct. at 2444, 115 L.Ed.2d at 489. It is distinguishable from pure prospectivity in that the new pronouncement applies to the case in which it is made and not solely to cases arising after the pronouncement. This is the form of application sought by Polakoff and Chase in the current m atter. With rega rd to selective prospectiv ity, the Suprem e Court ha s noted that this method . . . en joyed its tempo rary ascendan cy in the crimina l law during a period in which the Court formulated new rules, prophylactic or otherwise, to insure protection of the rights of the accused. Id. (Internal citations omitted.) The Sup reme Court, how ever, has aba ndone d the us e of sele ctive pro spectiv ity. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (overruling Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) on the grounds that the integrity of judicial review requires that [the Court] apply [the new] rule to all similar cases pending on direct review a nd selectiv e application of new rules violates th e principle o f treating sim ilarly situated [pa rties] the same ); Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 94-95, 113 S.C t. 2510, 251 6-517, 12 5 L.Ed.2d 74, 85 (19 93); Beam, 501 U.S . 529, 111 S .Ct. -19- 2439, 115 L.Ed.2d 481.12 Our own cases have essentially followed the teaching of Linkletter v. Walker in deciding whether a new interpretation of a Maryland constitutional provision, statute, or rule, should receive retrospective effect. American Trucking Association, Inc. v. Goldstein , 312 Md. 583, 591, 541 A.2d 955, 959 (1988) (citing Hicks v. Sta te, 285 Md. 310, 336 -38, 403 A .2d 356, 37 0-71 (197 9); see also, Owen s-Illinois, Inc. v. Ze nobia, 325 Md. 420, 471, 601 A.2d 633, 658 (1991) ( When a prior case in this Court is overruled on the groun d that it was e rroneously de cided, the qu estion wh ether our ho lding is retrospective or only prospective is governed by the principles set forth in such opinions 12 In Harper, the Supreme Court adopted the opinion of the ma jority of Justices in Beam and stated that the rule in civil cases is: When this Court ap plies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be g iven full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or p ostdate our anno unceme nt of the rule . This rule extends Griffith s ban against selective application of new rules. Mindful of the basic norms of constitutional adjudication that animate d our view of retroactivity in the criminal context, we now prohibit the erection of selective temporal barriers to the application of federal law in noncriminal cases. In both civil and criminal cases, we can scarce ly permit the substantive law [to] sh ift and spring according to the particular equities of [individual parties ] claims of actual reliance on an old rule and of harm from retroactive application of a new rule. Harper, 509 U.S. at 97, 113 S .Ct. at 2517, 125 L.Ed .2d at 86 (internal citations omitted). -20- such as American Trucking . . . Linkletter v. Walker . . . . ).13 The general rule in these cases is that even when a prospective application applies because of the Linkletter factors, a new interpretation of a constitutional provision, statute, or rule has included the case before us and all other pending cases where the relevant question has been preserved for appellate review. American Trucking, 312 Md. at 592, 541 A.2d at 959 (citing Potts v. State , 300 Md. 567 , 576-83, 479 A .2d 1335, 1340-4 3 (1984); McClain v. State, 288 M d. 456, 470 , 419 A.2d 368, 374 (1980); State v. Hicks, 285 Md. 310, 338, 403 A.2d 35 6, 371 (1979)). 14 It appears that what we have referred to as prospective application in American Trucking, to wit, application of a new interpretation of a statute to the case before us and all other cases pending where the issue has been preserved for appellate review, the Supreme Court classifies as retroactive application.15 For purposes of clarity, we 13 Pursuant to Linkletter, prospective application rested on the purpose of the new rule, the reliance placed upon the previous view of the law, and the effect on the administration of justice of a retrospective application of the new rule. Harper, 508 U.S. at 94, 113 S.Ct. at 2517, 125 L.Ed.2d at 84 (citing Linkletter, 381 U.S. at 636, 85 S.Ct. at 1741, 14 L.Ed .2d at 608). 14 In the case where this Court announces a change in the common law, however, we continue to apply se lective p rospec tivity as def ined by th e Supr eme C ourt. See American Trucking, 312 Md. at 592 n.7, 541 A.2d at 959 n.7, (distinguishing cases involving new interpretations of statutes from cases that change the common law and noting that changes in common law [o]rdinarily, except as to the parties before the court, such decisions are fully prospectiv e ); Boblitz v. Boblitz, 296 Md. 24 2, 275, 462 A.2d 506, 522 (1983 ). 15 The Court of Special Appeals aptly noted in its opinion in the present case that our cases have not always been consistent regarding what is meant by the terms retroactive and (contin ued...) -21- hereby adopt the Supreme Court s classification of retroactive for application of new interpretations of constitutional provisions, statutes or rules that include the case before us and all othe r pending cases wh ere the releva nt question h as been p reserved f or appellate review. R egardless o f how th e application is classified, ho wever, bo th the fede ral rule and the general rule in Maryland is that a new interpretation of a statute applies to the case before the court and to all cases pending where the issue has been preserved for appella te review . See Mc Clain v. Sta te, 288 Md. 456, 463-64, 419 A.2d 369, 372 (1980) (applying the exclusionary rule of Johnson v. State retroactively). Both rules are consistent with the view that the law can scarcely permit the substantive law to shift and spring according to the particular equities of individual parties claims of actual reliance on an old rule and of harm from retroactive application of a new rule. Harper, 509 U.S. at 97, 113 S.Ct. at 2517 , 125 L.Ed.2d at 86 (internal citations omitted). As disc ussed, supra, in Brooks we held th at our prior inte rpretation of the Code in Richwind was erroneous. 16 In doing so we applied the well-settled Maryland common 15 (...continued) prospective, as they are not always u sed in th e same sense. Polakoff, 155 Md. App. at 66, 841 A.2d at 410. The court noted that the term prospective is sometimes used in the same manner as retroactive, i.e., to indicate that the new holding applies to the case which produced the new holding and to all pending cases in which the issue has been preserved for appellate review. Id. 16 Contra ry to the po sition tak en by the dissent, Brooks did not involve a change in the com mon law . Judge Eld ridge, writing for the Co urt, explained that the Co urt in Richwind misrea d the H ousing Code in reach ing its de cision. Brook s, however, involved this Co urt s sub sequen t correc tion of th at misin terpreta tion. Al though , in the ca se at bar , (contin ued...) -22- law rule that when there is an applicable statute designed to protect a certain class of people , the def endan t s duty ord inarily is pre scribed by the statu te. Brooks represented a different interpretation of a statute and the question of its application is governed by the standard discussed in American Trucking. Consequently, our decision in Brooks applies retroac tively, and include s the cas e at bar. Moreover, ou r per curiam decision in Gentry v . Ebersole , 378 Md. 612, 837 A.2d 924 (200 3), makes it c lear that Brooks applies retroac tively. Gentry involved a lead paint case in which the defendant property owner was granted summary judgment on the issue of notice. The Court of Special Appeals affirmed the Circuit Court and the plaintiff petitioned this Court for certiorari while Brooks was pending. Following the publication of our Brooks opinion, we issued the per curiam opinion which mandated that the case be remanded for further proceedings consistent with Brooks. We further note that in the present case, the jury was instructed that it had to find that Polakoff and Chase had reason to know of the existence of flaking, loose, or peeling paint in order to find defendants liable. Presumably, because the jury found in favor of Jasmine, they concluded that Polakoff and Chase did have knowledge. Even assuming Brooks did not app ly to the present c ase, there is no prejudice to Polakof f and Ch ase in 16 (...continued) we address the parties contentions with regard to the retrospective application of the Brooks decision, ou r application o f the com mon law rule that violatio n of a statute is evidence of negligence does not necessarily give rise to a retroactive versus a prospective analysis. T he real q uestion is whic h law is applica ble on d irect app ellate rev iew. -23- that the Circuit Court required Jasmine to prove more than was necessary to establish liability, to wit, notice of the defect. In Maryland we g ive great deference to a jury s determination of a disputed fact, consequently the trial court properly denied Polakoff and Chase s motio n for ju dgme nt notw ithstand ing the v erdict. See Houston v. Safeway Stores Inc., 346 Md. 503 , 521, 697 A.2d 8 51, 859 ( As w ith respect to a judgment n.o.v. . . . [i]f there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then the trial court would be invading the province of the jury by declaring a directed verdict. (Internal citation omitted.)). Here, there wa s test imony tha t repairs w ere m ade t o the insid e of t he house during th e ten ancy, including work on the windows alleged to have been the source of the paint which poisoned Jasmine. From this testimony, a rational jury could conclude that Polakoff, throug h his ag ent, sho uld hav e been on noti ce of th e chipp ing pain t on the w indow sills. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONERS. -24- In the Circu it Court for B altimore C ity Civil No. 14-C-01-5025 IN THE COURT OF APPEALS OF MARYLAND No. 20 September Term, 2004 ______________________________________ LAW REN CE P OLA KOF F, ET AL. v. JASMINE TURNER ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Dissen ting Op inion b y Raker, J ., which Wilner, J., joins. ______________________________________ Filed: March 11, 2005 Raker, J., dissenting, in which Wilner, J., joins: The question in th is case is wheth er the holding in Brooks v. Lewin Realty III, Inc., 378 Md. 70 , 835 A.2d 616 (200 3), applies to th is case. I wo uld hold that it does not and that Brooks applies p rosp ectiv ely on ly. See, e.g., Bob litz v. Boblitz, 296 Md. 242, 275, 462 A.2d 506, 522 (198 3) (abroga ting the intersp ousal imm unity rule in Maryland as to cases sounding in negligence, applying the abrogation to the instant case and prospectively to all such causes of action accruing after the date of the filing of the opinion in th at case) . Acco rdingly, I would reverse the judgement of the Court of Special Appeals. Writing for the Court on the issue of the prospective effect of a decisio n of this C ourt, in Julian v. Christopher, 320 Md. 1, 575 A.2d 735 (1990), Judge Chasanow wrote: In appropriate cases, courts may in the interest of justice give their decisions only prospective effect. Contracts are drafted based on what the law is; to upset such transactions even for the purpose of improv ing the law could be gro ssly unfair. Overruling prospectively is particularly appropriate when we are dealing with decisions involving contract law. The courts must protect an individual s right to rely on existing law when contracting. Ordinarily decisions w hich chan ge the com mon law apply pros pect ively, as well as to the litigants before the c ourt. Williams v. State, 292 Md. 201, 217, 438 A.2d 1301, 1309 (1981). What is meant by prospectively ma y depend on the fairness of applying the decision to cases or events occurring after the eff ective d ate of th e decisio n. See, e.g., Boblitz v. Boblitz, 296 Md. 242, 275, 462 A.2d 506, 522 (1983) (abrogating interspousal immunity in negligence cases decision applicable to the case before the court and causes of action accruing or discovered after the d ate of the decision); Kelley v. R.G. Industries, Inc., 304 Md. 124, 162, 497 A .2d 1143, 1162 (1985) (imposing strict liability on manufacturer of Saturday Night Specials decision applicable to the case before the court as well as retail sales after the date of the mandate). It is reasonable to assume that landlords may have relied on the Klawans interpretation when entering into leases with silent consent clauses. This reliance should be protected. Contracts should be interpreted based on the law as it existed when they were entered into. Therefore, whether the Klawans case or the instant case governs the interpretation of a silent consent clause depends on whether the lease being interpreted was ex ecuted before or after the ma ndate in this case . Id. at 10-1 1, 575 A .2d at 73 9-40. Landlords in the City of B altimore had a right to rely on th e comm on law in th is State and the law as set out in Richwind. The landlords in the City had no reason to anticipate that they had an affirmative duty to inspect properties for peeling or flaking paint after the inception of the tenancy. Out of fairness to the landlords in th e City, Brooks should be applied prospectively only. To declare that plaintiffs need not show notice and to apply the rule retroactively is unjust and unfair. I adhere to m y view expr essed in m y dissent in Brooks that the case w as wrong fully decided. I reiterate: . . . that absent notice, actual or constructive, the landlord has no duty, even under the Housing Code, to inspect the demised premises during the tena ncy. The tenant is in a superior position to detect chipping or peeling paint and should therefore notify the landlord of the hazard. Nor doe s the landlord have a du ty to continuou sly inspect premises under the tenant's control to see if there is chipping o r peeling pa int; that duty to inspect arises at the inception of the tenancy. This is so under the common law, and un der the C ity Code. 378 Md. at 97, 835 A.2d at 632. -2- I respectfully dissent. Judge Wilner ha s authorized me to state th at he joins in th is dissenting opinion. -3-

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