Lead paint suit reinstated on appeal

Daily Record, The (Baltimore), Apr 12, 2002 by Peter Geier

Circumstantial evidence that a child developed lead poisoning while residing in a certain place is sufficient for a lead paint negligence lawsuit to survive summary judgment, the Court of Special Appeals has held. The intermediate appellate court held that property management company L & R Properties Inc.

should not have been granted summary judgment in a lead-paint negligence action because there is enough circumstantial evidence in the record of the presence of lead-based paint. Saul E. Kerpelman, the veteran lead- paint litigator whose firm asked the court to report the opinion it first issued in February, said the holding in Dow v. L&R Properties was important. "It's the first reported opinion to have that issue as the holding of the case," Kerpelman said. "In the past, I've had a lot of children lose cases despite really strong circumstantial evidence. "Now Dow stands for the proposition that you don't have to have a lead test, that you can prove there's lead in a house by circumstantial evidence," Kerpelman added. However, the Court of Special Appeals declined to address a subsidiary question of whether there's a "legal presumption based on the statutory schemes that there's lead paint in houses built before 1950," Kerpelman added. Antoinette Dow's mother, Annette McRae, filed suit alleging that Dow, born in December 1986, sustained lead poisoning while residing with her from February 1987 until November 1991 at 1237 Myrtle Ave. Judge Marvin H. Smith, retired and specially assigned to the panel, noted that the salient evidence in the instant case is McRae's affidavit, which states that "Dow spent virtually all of the relevant time at 1237 Myrtle Ave. and could not have been exposed to lead anyplace else." The trial court originally granted L&R summary judgment on the ground that there was no direct evidence of lead paint, then agreed to rehear that motion. At the second hearing, a different judge denied L&R's motion for summary judgment, on the strength of McRea's affidavit. However, the second judge granted L&R's motion for reconsideration, and ruled for the defense after the third hearing on the grounds that the property had never been tested for lead paint. The court of Special Appeals reversed. L& R's counsel presented no brief to or appearance before the three-judge appellate panel.