For Baltimore City Landlords in Lead
Paint-Exposure Cases, Life's Not Getting Any Easier
By Mauricio E. Barreiro
In 2003, it became absolutely clear that the Maryland Court
of Appeals was in no mood to help Baltimore City landlords defend lead paint
exposure cases. In issuing Brooks v. Lewin Realty III, a case that fully
reversed the 1994 Richwind decision (which required landlords to have “notice”
of flaking and peeling lead-based paint before liability could attach), the
Honorable Robert M. Bell, Chief Judge of the Maryland Court of Appeals, spelled
out the standard by which landlords were to be judged civilly in lead paint-exposure
cases: whether [the landlord] was to be held liable for any injury to a child,
based on lead-paint poisoning, depended upon the jury’s evaluation of
the reasonableness of the [landlord’s] actions under all of the circumstances.
Moreover, notice to the landlord of flaking, peeling lead paint was no longer
needed, as the plaintiffs merely had to prove that the landlord knew or should
have known that there was any flaking or peeling paint (in violation
of a City statute) at the property in order to establish the landlord’s
The damage to landlords continued in 2005 with the Court
of Appeals’ issuance of Polakoff, et al. v. Turner, yet another
case condemning landlords to being insurers of their tenants. In Polakoff,
the Court of Appeals found that a landlord’s violation of the Baltimore
City Housing Code (by failing to remedy alleged lead paint-exposure sites)
constituted prima facie evidence of negligence. The Court reaffirmed Brooks
and confirmed that a plaintiff would only have to prove that he or she was
in the class of persons protected by City Housing Code violated by the landlord
and that the violation proximately caused the plaintiff’s injury. Although
the Court stated that it was not imposing a strict liability regime upon landlords,
in actuality it thrust a de facto strict liability scenario upon Baltimore
City landlords by virtue of its plaintiff-friendly holding. Adding more pain
to the landlords’ plight, the Polakoff ruling was made applicable
to all cases pending at the time, as well as to those cases where “the
affirmative duty to inspect” issue was preserved for appeal.
All told, in the span of nine years, the common law principle
that a landlord has no duty to inspect his rental properties once turned over
to the tenants has been turned on its head, with landlords now being obligated
to make “regular”
inspections (cameras in hand), if only to protect themselves against unwarranted
claims of renting defective properties.
In these challenging times for landlords, the lead paint-exposure
minefield continues to broaden. No landlord-friendly decisions have come out
of the Court of Special Appeals on any lead paint-exposure issues, and the
Court of Appeals has taken very certain measures not to help landlords with
its statutory interpretations and the overruling of the 1994 Richwind decision.
So what can a landlord do? From a defensive perspective,
knowledge of the broad liability standard used in lead paint-exposure cases
is important as landlords need to know what to expect from the courts. “Protect
yourself at all times” is an important boxing adage that is entirely
applicable to the present landlord liability landscape. Absent misidentification
of the property or the plaintiff’s inability to generate or prove high
lead levels during the minor tenant’s residency, any lead paint-exposure
case should be considered a liability challenge. Complete discovery of the
plaintiff’s background and residential history is extremely necessary,
if only to mitigate the damages portion of the case.
Questions that careful landlords should ask themselves include:
Was the property regularly inspected for flaking paint
by the landlord or its agents prior to rental and during the tenancy?
Was the property tested for lead?
Were property repairs documented and accepted by the
Was the paint at the property kept in pristine condition,
with telltale photos available from the time of rental through the entire
Were property evaluations done periodically and documented?
If I had children, would I let them live at this property?
The landlord who answers no to any of these questions certainly
faces an uphill battle in defending his or her property and conduct. “Hands-off” landlords
are a thing of the past, as the law now requires complete attention to detail.
Landlords can no longer hide their proverbial head in the sand, as every landlord
must be proactive in their property management and defense. With the standard
of liability for a landlord being so low (i.e., was there flaking paint
at the property, and was the landlord acting reasonably under all of the circumstances),
landlords can only blame themselves if they do not take a proactive role in
building their defenses – more so if they expect to own and manage their
rental properties in the future.
Mauricio E. Barreiro is a Towson-based attorney who has spent many years successfully
defending and trying lead paint-exposure cases for insured and uninsured landlords
and management companies in Baltimore City and Washington, D.C.