Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

Maryland's Top Court Dismisses Lead Paint Cases Because Government Not Provided with Notice of Lawsuits

Downtown Baltimore.jpgSometimes pretrial requirements can make or break a case. In medical malpractice cases, cases can be thrown out of court if a certificate of merit and report is not filed even before the case goes to court. Other types of cases can have similar, substantial pre-trial requirements. When suing a local government, the government must first be given notice of the lawsuit. In two cases decided by Maryland's top court dealing with claims over the alleged effect of lead-based paint upon minors, the court threw out the cases because Baltimore's housing authority wasn't given proper notice.

Under the Local Government Tort Claims Act (LGTCA), an action for damages cannot be brought against a local government unless notice of the claim is given within 180 days after the injury. The notice has to be in writing and must state the time, place and cause of the injury. The notice has to be given to the corporate authorities of the defendant local government.

The court's rulings stemmed from two families who lived and visited relatives in houses managed by the city. The families claimed that at least one of their children was affected by exposure to lead paint. The families had filed lawsuits in the Circuit Court for Baltimore City against the Housing Authority for Baltimore City for negligence and violations of the Maryland Consumer Protection Act arising out of their alleged exposure to lead paint in properties that HABC owned and operated.

In Ellis v. Housing Authority of Baltimore City and Johnson v. Housing Authority of Baltimore City, the court said the plaintiffs did not substantially comply with the notice requirement of the LGCTA where the defendants received notice of the elevated blood-lead levels alone or oral advisement of the condition of the property along with request for repairs and threat to bring action for repairs.

In Ellis' case, the court said there was no indication that Ellis' mother had complained about exposure to lead paint in any of the houses managed by the city in which the Ellis family had lived. As a result, there was no notice. Ellis' blood-lead level was tested when she was three. Her mother was told via a letter that Ellis might be at risk and should get her blood tested every three to four months. There was no indication that Ellis' mother complained about exposure to lead paint, the court said.

In Johnson's case, the court said that Johnson's mother's allegations that she had complained about peeling paint and exposure to lead-based paint were not enough to provide notice under the LGCTA. While residing for a time in a house operated by HABC, Johnson's mother also said that for six years, Johnson visited her grandmother at a home operated by HABC. Johnson's mother said she had complained about peeling paint and that Johnson might have been exposed to lead when she put paint chips in her mouth. In 2000, Johnson's mother was told that her daughter suffered from elevated blood-lead levels.

But, sometimes the notice requirement can be put aside if a plaintiff can provide a good reason -- show good cause -- for the failure to comply. Ellis and Johnson argued that they showed good cause for failure to comply with the notice requirement because they were minors at the time of their injuries and also because HABC was required to inspect properties for deteriorated lead paint and had to be aware of the lead paint lawsuits. The court disagreed.

The court also said that the LGTCA notice requirement does not violate Article 19 of Maryland Declaration of Rights when applied to minor plaintiffs - children -- as lead paint lawsuits stem from governmental and not proprietary activity.

Baltimore, Maryland-based Belsky, Weinberg & Horowitz has been fighting for the victims of medical malpractice and negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.

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