Maryland Court of Special Appeals Clarifies Plaintiff’s Burden in Proving Negligence Case for Personal Injuries From Exposure to Lead Based Paint with Circumstantial Evidence

The standard for establishing a prima facie case of negligence in a lead paint lawsuit is well established.  The plaintiff has the burden of proving “1) that the defendant was under a duty to protect the plaintiff from injury, 2) that the defendant breached that duty, 3) that the plaintiff suffered actual injury or loss, and 4) that the loss or injury proximately resulted from the defendant’s breach of that duty.”  Taylor v. Fishkind, 207 Md. App. 121, 148 (2012) (quoting Rosenblatt v. Exxon Co., U.S.A., 355 Md. 58, 76 (1994)).  However, in a case where the plaintiff attempts to prove negligence against a landlord by circumstantial evidence only, the plaintiff must rule out the existence of other reasonably probable sources of lead exposure in order to prevail.  

In Patricia Barr, et al. v. Stanley Rochkind, No. 1152, Sept. Term 2014 (Md. Ct. Sp. App., Sept. 29, 2015), the plaintiff alleged that she suffered lead poisoning while living in a residence owned by the defendant.  The plaintiff conceded that she would not be able to produce direct evidence that there was lead paint in the defendant’s premises.  Nevertheless, she contended that the existence of lead-based paint could be reasonably inferred from circumstantial evidence.  Specifically, she contended that the fact that she registered a blood-lead level of 12 md/dL in 1999 and 8 mg/dL in 2000 while living at the 90-year-old property was circumstantial evidence that it likely contained deteriorated lead-based paint.  

The Court held that a plaintiff who relies on circumstantial evidence to establish a prima facie negligence case has a burden of production to present evidence ruling out any reasonable probability that her elevated blood lead levels were caused by other potential sources of lead exposure.  Moreover, according to the Court, the defendant has no obligation to identify other likely sources of lead in order to trigger the plaintiff’s obligation.  The Court’s ruling was based on its ruling in Dow v. L&R Properties, 144 Md. App. 67 (2002) where the plaintiff was able to avoid entry of summary judgment with such evidence.  In Dow, the mother provided an affidavit attesting to the fact that the plaintiff did not spend time anywhere else and was never exposed to other sources of lead.  The Court held in Dow that such evidence, coupled with the circumstantial evidence regarding potential lead-based paint in a home built prior to 1950, was sufficient to defeat the landlord’s motion for summary judgment.  In Barr, even though the plaintiff submitted affidavits offering circumstantial evidence supporting an inference that there was lead paint present at the property, the Court found that there was a gap in the circumstantial evidence.  Without that missing link, the fact-finder could not rationally conclude that the plaintiff’s blood lead level went up because she lived in the subject property without ruling out other known sources that could reasonably account for the increase.

The takeaway from Barr is that a plaintiff seeking to prove a negligence case for lead-based paint exposure based only upon circumstantial evidence has an affirmative duty to rule out potential alternative causes of exposure to lead.  In a case in which the plaintiff seeks to rely on the child’s elevated blood level as circumstantial evidence of the existence of lead, other possible sources of exposure must be ruled out.  Therefore, in addition to establishing the traditional elements of negligence, the plaintiff also has this additional burden of production in order to establish a prima facie case.  If the plaintiff is unable to establish that additional order of proof, the defendant should be entitled to summary judgment.