Negligence
Lead-Based Paint - Reason To Know Facts: Appellants, Stacie Brown (Brown) and Robert Forrest (Forrest) filed suit in the Circuit Court for Baltimore City, seek- ing compensation on behalf of their two minor children, Brittany and LaTisha Forrest, for injuries sustained as a result of exposure to lead paint in 1992 and 1993. Brown and Forest claimed that their children were exposed to lead paint both at premises they rented from P & L Real Estate and Leslie Poff (P & L and Poff) beginning in July, 1991, and at pre- mises rented by their relatives, the Elliotts, from Ruth and Frank Murphy (the Murphys), where the Forrest children al- legedly visited three to four times per week from March, 1992 to June, 1993. The parents sued P&L and Poff for (1) violat- ing §13-309 of the Consumer Protection Act (“CPA”), Md. Code (1975, 1990 Repl. Vol.) Title 13 of the Commercial Law Article, and (2) negligence. The Murphys were sued for negligence. At trial, Forrest and Brown sought to introduce the deposition of Mr. Elliott, who had been deposed for a lawsuit filed by the Elliotts on behalf of their children for lead paint injuries incurred at the same two properties, but who had since passed away. This deposition was noted by coun- sel for the Murphys and attended by counsel for P & L Real Estate; however, the deposition was taken prior to the fil- ing of the instant case. The court refused to admit the deposition. With respect to the claim against
P & L and Poff, both Poff and Forrest testified at trial that the apartment was rented in an “as is” condition, and that an agreement was made between Poff and Forrest that Poff would supply paint to Forrest and reduce the monthly rent in exchange for Forrest painting the apart- ment. Forrest testified that he only painted certain walls of the apartment. Both Forrest and Brown testified there was flaking, chipping, or peeling paint in the apartment at the inception of the lease of which they were aware, but further stated that they were unaware of the potential hazards of lead poisoning. Poff testified that he was unaware of any deteriorated paint at the inception of the lease; how- ever, he stated that he did have knowledge that lead-based paint is a health risk and poses a potential problem in older hous- ing. There was testimony that Poff and his maintenance man showed the apart- ment to Forrest before renting the apartment to Forrest and Brown. With respect to the negligence claim against the Murphys, Ms. Elliott testified that she had complained to the Murphys
Winter 2001 Trial Reporter 43
on multiple occasions about peeling and chipping paint. Ms. Murphy testified that either she or her leasing agent would have been present in the apartment prior to the inception of the lease to show it to the Elliotts, but denied ever being notified about peeling and chipping paint. The trial court instructed the jury that if it found evidence of an agreement be- tween Forrest and Poff with respect to painting the apartment, then P&L and Poff could not be found liable for a viola- tion of the CPA. With respect to the negligence claims, the trial court rejected appellant’s counsel’s request for a jury in- struction on the “reason to know” standard, as applicable to the presence of deteriorated paint. On appeal, Forrest and Brown challenged these jury instructions and the court’s refusal to admit Mr. Elliott’s deposition.
Held: Reversed and remanded. The Court of Special Appeals concluded that exclusion of the deposition was error, in part. The portion of the deposition relat- ing to defects in the premises rented by the Elliotts and notice of those defects to
the Murphys was not merely cumulative and should not have been excluded. The Court further held that it was not error to exclude the portion of the deposition that was offered as evidence that appel- lants visited the premises rented by the Elliotts. The court reasoned that visita- tion by the appellants was not an issue in the case in which the deposition was taken, and was not an issue at all because appellant’s complaint had not been filed at that time. Additionally, the Court held that the
trial court’s instructions with regard to the CPA issue were in error. The Court con- cluded that the jury should have been instructed with regard to the elements of a cause of action under the CPA even though the appellants had knowledge of deteriorated paint on the premises because there was evidence that the landlord had greater knowledge than the tenant, failed to disclose it, and the tenant was deceived by the non-disclosure. The Court rea- soned that the question of whether Poff ’s failure to disclose his actual knowledge of
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