ANNAPOLIS – A precedent-setting ruling by Maryland’s Court of Special Appeals Thursday could have far-reaching effects for families suing apartment managers when their children eat lead-based paint.
Under the appellate court’s ruling in the case of Antoinette Dow vs. L&R Properties, plaintiffs suing property managers could make their lead-paint case to the court using only circumstantial evidence. The court ruled that the case, which had initially been dismissed, be returned to Baltimore Circuit Court.
“Circumstantial evidence may support a negligence determination if it `amount(s) to a reasonable likelihood or probability rather than a possibility,'” the appellate court wrote.
Since most homes that are 50 years old or older have lead paint, that is evidence enough, the appellate court decided.
The appellate court’s decision could change the tide in many such lead- poisoning cases, said Saul E. Kerpelman, an attorney representing Dow.
Before this ruling, plaintiffs in these kinds of cases had to have paint tested for lead to win, said Kerpelman, who only takes lead-poisoning cases.
“I don’t necessarily need an inspection to prove the case (anymore),” he said. “All you need is circumstantial evidence to get to the jury to prove that there’s lead in the house.”
About half of his cases have been dismissed because inspections were not made, he said.
“A lot of times when you’re dealing with slum properties, it’s hard to get an inspection done,” Kerpelman said. That’s because many children who live in those kinds of houses are constantly moving, which hinders the health department’s ability to conduct inspections, he said.
The ruling will result in more houses being treated for lead, said Baltimore Health Commissioner Peter Beilenson.
“This allows us to get more violations issued,” he said.
In addition to increased enforcement, the ruling should cause more landlords and apartment managers to act on their own to clean up lead problems, he said.
“Landlords are going to say (to themselves), `All they’re going to need is this, now?'” he said.
According to court documents, Antoinette Dow, now age 14, and her mother, Annette McRae, lived from 1987 to 1991 in an apartment managed by L&R Properties where paint was chipping and flaking off the walls.
L&R, whose owner Lee Shpritz represented himself in this case, could not be reached for comment.
Dow and McRae filed a Baltimore Circuit Court suit against L&R after Dow allegedly ate the paint chips, which they contended contained lead. The records said that Dow, in October 1988, became “seriously, painfully and permanently injured, ill and (infirm) in head, body and limbs” after ingesting the chips.
L&R, however, moved for summary judgement on the grounds that the plaintiffs did not have an expert testify that the paint had lead.
Also, the plaintiffs never conducted any testing for lead-based paint, L&R contended.
After both parties filed a series of motions, the trial court ruled in L&R’s favor. The ruling was based on its assertion that “the property was not, and has never been tested for lead-based paint. There has never been, at least based on the record before this (Circuit) Court, a violation notice addressing the issue of lead-based paint on the property,” the Circuit Court wrote in its opinion.
The appellate court saw it differently.
In its ruling, the court wrote that the circumstantial evidence presented was sufficient and was all that was needed to prove that Dow was harmed by the paint.
“It’s a case of first impression,” Kerpelman said. “(This) will stand as a precedent for future cases.”