tion of the apartment revealed that lead paint was present in several areas through- out the apartment. Suite was filed in the Circuit Court for
Baltimore City against the petitioner. Although the complaint contained five counts, only two of them, those alleging negligence and violation of the Consumer Protection Act, survived the pre-trial prac- tice.
Those counts proceeded to trial
before a jury. At the end of the case, the trial court gave the following instruction as to the Consumer Protection Act: “Plaintiff has made a claim under the Maryland Consumer Protection Act.
In
order to recover damages under this act, the Plaintiff must prove more likely than not the following: One, that a the begin- ning of the lease of Apartment 310, there was chipping and flaking lead-based paint; and two that Mr. Benik was aware of the chipping and flaking lead-based paint, and also aware that its condition may con- stitute an unreasonable risk of harm to the tenants. And three, that despite the above, the Defendant, Mr. Benik failed to disclose the hazardous condition to Linda Hatcher at the beginning of the lease. And Four, that Brandon Hatcher was injured as a direct, proximate result of the alleged hazardous condition that existed at the time of the lease; that is chip- ping or flaking lead based paint. If any of the above elements are missing, the claim hereunder should be decided in favor of the defendant.” (emphasis added)
The respondent excepted to this in- struction, asking the court to give his proposed instruction instead.
The
respondent’s proposed instruction did not require the jury to find scienter on the part of the petitioner, that the petitioner be aware that the chipping and flaking paint was lead-based paint or that the con- dition was an unreasonable risk to the respondent. The jury returned a verdict in favor of the petitioner on all counts. The respon- dent noted an appeal to the Court of Special Appeals. In an unpublished opin- ion, that court affirmed the trial courts evidentiary rulings, but reversed its judg- ment with respect to the Consumer Protection Act (“CPA”), holding that the jury did not need to find scienter. The Court of Appeals granted the petitioner’s Writ of Certiorari.
Held: Affirmed. In Baltimore City its is unlawful to lease a dwelling with flaking, loose or peeling paint and no premises are to be leased for human habitation, except those that are fit for human habitation, i.e. those that are kept in good repair and safe condition as defined in the Baltimore City Housing Code (“City Code”). See, Baltimore City Code (1983 Repl. Vol.), Art. 13 §§ 702, 703 and 706. Section 706 prohibits the use of lead-based paint for interior painting in a dwelling unit; however, neither it nor §§ 702 or 703 lim- its the prohibition of flaking, loose or
peeling paint to lead-based paint. To be a violation, all that must be shown is that there was flaking, loose or peeling paint, without any further showing as to the content of the paint. Moreover, none of the provisions of the City Code premises violation on the landlord’s knowledge of the hazards of lead-based paint.
See
Brown v. Dermer, 357 Md. 344, 361, 744 A.2d 47, 56-57 (2000). Sections 702, 703 and 706 of the City
Code prescribe the standard for the lease of premises for human habitability and § 9-14.1 deems every lease of premises for that purpose to contain a warrant of their fitness for that purpose. In his pre-lease communications with the respondent’s mother, the petitioner did not disclose that there was chipping and flaking paint, as the respondent’s evidence showed, and may have, impliedly or expressly, repre- sented the opposite.
The petitioner’s
statement or omission must be viewed in light of the City Code and Public Local Law requirements, whether or not the petitioner was aware of them. As the owner of the premises and the
landlord, on whom the law imposes spe- cific duties and obligations in connection with the lease of the premises, including implying a representation as to the pre- mises’ condition at the time of the lease, the law imputes the requisite knowledge to the petitioner. The landlord need not
(Continued on page 46)
Fall 2000
Trial Reporter
45
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