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In Zi'Tashia Jackson, et al, v. The Dackman Company, et al., No. 131, Sept. Term 2008 (Oct. 24, 2011), the Court of Appeals declared that the provisions in the Reduction of Lead Risk in Housing Act (Md. Code Ann. Environment sec. 6-801, et seq.) which grant the owners of certain rental properties, under specified conditions, immunity from personal injury suits based upon a child's or pregnant woman's ingestion of lead were invalid and unconstitutionality under Article 19 of the Maryland Declaration of Rights.

Ms. Jackson, through her mother, filed a lawsuit in the Circuit Court for Baltimore City for negligence and violations of Maryland's Consumer Protection Act claiming that she suffered severe and permanent brain injuries allegedly resulting from her ingestion of lead-based paint at property owned by the defendants. Ms. Jackson was born January 12, 1997 and moved into the defendant's property when she was one year old. Between 1997 and 2000 Ms. Jackson had elevated blood lead levels of 21 ug/dl, 16, ug/dl, 15 ug/dl and 9ug/dl. Her blood lead levels never reached the 25 ug/dl which is the level set forth in sec. 6-828(b) applicable to those years.

Defendant property owners moved for summary judgment on the grounds that they had complied with the Act and were therefore immune from a suit for personal injury under the Act. Plaintiffs opposed the motion on the grounds that the Defendants did not comply with the Act, and even if they did, that various provisions of the Act were unconstitutional under various theories. Ultimately, the Court agreed that the Defendants had complied with the Act and granted summary judgment in Defendants favor.

The Reduction of Lead Risk in Housing Act was enacted in 1994 "to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing." The Court addressed the Act in its entirety but primarily focused on compensation and immunity provisions of the Act and their application.

The Court focused on the Act's alternative remedy to a personal injury suit of a "qualified offer" which is an offer of money by an owner, the owner's agent, or an insurer of the owner, made to a person at risk or to a parent or legal guardian of a person at risk who is a minor (secs. 6-831 through 6-834). A "person at risk" is defined as "a child or a pregnant woman who resides or regularly spends at least 24 hours per week in an affected property" (sec. 6-801(p)). A "qualified offer" is designed to cover some expenses which are incurred on behalf of an affected person at risk. Nevertheless, the maximum amount payable under a qualified offer is only $17,000, and most of this is payable to the providers of medical or other services and not to the person at risk. Under sec. 6-835, the "acceptance of a qualified offer by a person at risk, or by a parent or legal guardian" of a person at risk, "releases all potential liability of the offeror, the offeror's insured or principal." If the qualified offer is rejected, under sec. 6-836 "an owner of an affected property is not liable, for alleged injury or loss caused by ingestion of lead by a person at risk in the affected property." The statutory language dictates that the immunity provisions are intended to be very broad and grant immunity to an owner from personal injury suits if that owner has complied with the Act.

In declaring the immunity provisions to be invalid, the Court relied on Article 19 of the Maryland Declaration of Rights. Article 19 generally protects two rights: (1) a right to a remedy for an jury to one's person or property; (2) a right of access to the courts. Another tenet of Article 19 is that it generally prohibits unreasonable restrictions upon traditional remedies or access to the courts but allows the Legislature to enact reasonable restrictions. Under Article 19 the Court weighed whether the abolition of the common law remedy and substitution of a statutory remedy was reasonable.

The Court opined that immunity granted to defendants under the Act is not a traditional or well-established immunity from personal injury actions and that the substituted remedy under the Act for a permanently brain damaged child, i.e. the maximum of $17,000, is "totally inadequate and unreasonable." The Court noted that the only remedy provided by the Act, in substitution for a personal injury action, is a qualified offer by the property owners which is accepted by a "person at risk, or a parent or legal guardian or a minor who is a person at risk." However, where no qualified offer is made, the plaintiffs have no remedy under the statute.

Since the Act is applied broadly, stating that immunity is "applied to all potential bases of liability for alleged injury of loss to a person caused by the ingestion of lead by a person at risk in an affected property," the Court found that the maximum amount of compensation under a qualified offer is "minuscule" where a child is found to be permanently brain damaged from ingesting lead paint caused by the landlord's negligence. Consequently, the Court found that the remedy which the Act substitutes for a traditional personal injury action results in either no compensation or drastically inadequate compensation.

The Court opined that when no adequate remedy is substituted for the grant of immunity, the statute leaves a negligently injured child without a remedy. Accordingly, the Court held that it cannot "countenance a result that would leave the only innocent victim . . . uncompensated for his or her injuries" and therefore the immunity provisions in the Act or invalid.

Even though the immunity provisions were held to be invalid, the Court found that these provisions were severable from the remainder of the Act. The remaining portions of the Act had a valid purpose and are capable of being executed in accordance with the legislative intent which is to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing.

Posted by Robert D. Anderson, Esq. on 10/31/2011 at 05:39 PM
Lead Paint PoisoningMarylandPermalink

Maryland Act construed to include loss of overtime pay in loss of “wage earning capacity”
In Montgomery County v. Deibler, ___ A.2d. ___ (Md. Oct. 27, 2011), the Maryland Court of Appeals considered the issue whether the term "wage earning capacity" in L.E. sec. 9-615(a)(1) includes the capacity to earn overtime compensation so that the Commission may include such compensation in the determination of whether an employee's wage earning capacity is "less" while temporarily, partially disabled. After a thorough exercise of legislative interpretation, the Court held that overtime pay is included in "wage earning capacity."

Captain Deibler was a firefighter employed by Montgomery County. Due to work-related knee injuries, he was placed on light duty with some reduction of regular hours. However, the County increased his hourly wage and maintained all of his cost of living adjustments and benefits, so that he earned the same amount of base pay as before his injuries. However, Captain Deibler lost the ability to work 11-15 hours per week of overtime. The inability to work overtime cost him over $700 per week.

After a hearing, the Commission ordered that Captain Deibler receive temporary partial disability for the periods when he worked light duty after his injuries. The County petitioned for review by the Circuit Court for Montgomery County, which affirmed. The County then appealed to the Court of Special Appeals, however, the Court of Appeals issued a writ of certiorari before argument.

On appeal, the County argued that the ability to earn overtime is separate from the ability to work. The County argued that overtime is the product of the employer's need, not a reflection of the employee's ability to perform the tasks of a job. The County concluded that Captain Deibler's ability to work did not decrease when his overtime compensation decreased; instead, his ability to perform work to earn his pre-disability base pay remained constant.

The Court disagreed, reasoning that the statutory phrase "wage earning capacity" is concerned with whether a disabled employee has lost any part of the employee's pre-disability to earn a wage. The Court concluded that overtime pay is included in the definition of "wage."

The Court pointed out that this should not result in a windfall for the employee, since the statutory calculation of average weekly wage takes into account the time worked over the 14 weeks prior to injury.

Accordingly, the Court held that "wage", as that term is used in the phrase "wage earning capacity in L.E. sec. 9-615(a), includes compensation paid for overtime hours worked prior to temporary partial disability.

This decision is significant since police and professional firefighters in Montgomery County, and probably throughout Maryland, typically earn substantial amounts of overtime pay, as has been discussed in the local papers. However, this decision will be very significant for any other category of workers whose earnings include substantial overtime pay, such as for example nurses.

Posted by David B. Stratton on 10/31/2011 at 03:54 PM
MarylandWorkers CompensationPermalink

Twombly Motion Resolves Civil Rights Claim Arising From Suspicion of Shoplifting

Shoplifting can cause retailers to incur costs far greater than simply the value of the items stolen. Even when the store and its employees act in the utmost good faith, someone accused of shoplifting can turn around and sue the store. These suits sometimes include claims of racial discrimination. Until recently, it was difficult to get these suits dismissed. As a result, retailers could become embroiled in litigation involving an intrusive discovery process and significant defense costs that could last years and unfairly tarnish their reputation. Fortunately, two recent Supreme Court cases have made it much easier to have such cases dismissed with a relatively small amount of time, energy, and cost.

Jordan Coyne & Savits, L.L.P. recently defended a national clothing retailer sued in the U.S. District Court for the District of Maryland by a person who was ejected on suspicion of shoplifting. According to the plaintiff's complaint, he opened his shopping bag near some jeans on display to ascertain whether they matched the shoes in his bag. A store clerk notified the Mall's security guards that the plaintiff was a "suspicious person" who was "likely stealing." The security guards confronted the plaintiff and escorted him from the Mall. He brought a civil rights claim under 42 U.S.C. sec. 1981 against the retailer, the owner of the Mall, and the security guards, asserting that the incident was motivated by racial discrimination, seeking attorney's fees and damages for intentional infliction of emotional distress and invasion of privacy.

Jordan Coyne answered with a Rule 12 motion to dismiss the Complaint for failure to state a claim for relief. Relying on the Supreme Court's recent decisions in Twombly and Iqbal, we argued that the case should be dismissed because the plaintiff had not pled any facts tending to show that the acts were motivated by any intent to discriminate against plaintiff.

The Court agreed and dismissed the case without prejudice. Applying Twombly, the Court ruled that the Complaint did not allege facts sufficient to "state a claim to relief that is plausible on its face." The Court noted that "plaintiff has not alleged facts showing a causal link between his race and his removal, or that any of the defendants intended to discriminate against him because of his race." While the Complaint alleged that the "removal from the Mall was made solely for the reason that the plaintiff was an African-American and was made with malicious and discriminatory intent," this was deemed to be a "mere conclusory statement of the kind that Iqbal rejected." If anything, the plaintiff's factual allegations showed that the merchant's actions were the result of a legitimate belief that the plaintiff was shoplifting. The Court concluded that Plaintiff had "utterly failed to buttress his conclusory allegations with any facts that would support an inference of racial animus" on the part of any of the defendants.

Plaintiff never bothered filing an amended complaint. Consequently, the motion to dismiss resolved the case in months, not years. Moreover, the client did not have to participate in the time-consuming and intrusive discovery process or pay even a token amount in settlement. Perhaps most importantly, the client was able to protect its good reputation by having the Court recognize that, even if the plaintiff's factual allegations were assumed to be true, the removal of the plaintiff from the store was not motivated by racial animus, but rather, was "prompted by the belief that plaintiff's actions were consistent with attempted shoplifting."

Of course, all matters are decided on their own particular facts or merits, and, because each case is different and litigation is inherently unpredictable, the past record is no assurance of reaching a favorable result in any future case. For further information or to discuss the defense of a similar matter, call Steve Schwinn, Esq., at 703-246-0900.

Posted by D. Stephenson Schwinn on 10/31/2011 at 02:42 PM
Federal Civil ProcedureJordan Coyne LLP newsMarylandPermalink

Partner John O. Easton, Esq., selected for the 2012 Edition of The Best Lawyers in America
Congratulations to Partner John O. Easton, Esq., for his selection as in the 2012 Edition of Baltimore and Washington's Best Lawyers, in the area of Professional Malpractice Law (Defendants).

This list is excerpted from the 2012 edition of The Best Lawyers in America. Lawyers are chosen for inclusion based solely on a vote of their peers.

Posted by David B. Stratton on 10/31/2011 at 01:02 PM
Jordan Coyne LLP newsPermalink