Griffin v. Jontiff

JASMINE GRIFFIN v. MARK JONTIFF, et al.

No. 0725

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

April 25, 2016

UNREPORTED

Wright, Graeff, Eyler, James R. (Retired, Specially Assigned), JJ.

Opinion by Eyler, James R., J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

On July 5, 2012, Jasmine Griffin, appellant,¹ filed a complaint in the Circuit Court for Baltimore City against six defendants, including Mark Jontiff, appellee, alleging that she sustained personal injuries as a result of exposure to lead-based paint while residing in or frequenting various real properties. Relevant to this appeal, appellant alleged that appellee owned and/or controlled property known as 357 Fonthill Avenue, Baltimore City ("the Fonthill property") at the time appellant resided there with her mother. Appellant further alleged that the Fonthill property contained chipping and flaking lead-based paint to which she was exposed. Appellant pled theories of negligence and violation of the Consumer Protection Act, § 13-301 of the Commercial Law Article (CL), Maryland Code. Following discovery, appellee filed a motion for summary judgment, which the court granted. After the court entered a final judgment as to all parties, appellant noted this appeal, presenting one issue for our review:

Whether the trial court erred when it granted appellee's motion for summary judgment[?]

For the reasons that follow, we affirm the judgment.

BACKGROUND

Appellee's motion and appellant's opposition to the motion were supported by exhibits, most notably the deposition of appellant's mother and the deposition of appellant's expert witness. The exhibits reveal the following.

Appellant was born on July 21, 1991. Following her birth, she resided at 600 Lyndhurst Street in Baltimore ("the Lyndhurst property") with her mother, Chiquita Meeks, formerly known as Chiquita Griffin ("Chiquita"), and other family members, including her grandmother, Pearline Meeks ("Pearline"). Chiquita testified that there was "chipping paint off the wall" in the Lyndhurst property. Appellant underwent two blood lead level tests while residing at the Lyndhurst property. A May 14, 1992 test indicated a blood lead level of 17 micrograms per deciliter, and an August 11, 1992 test indicated a blood lead level of 23 micrograms per deciliter, both of which are elevated levels.

On November 1, 1992, Pearline moved from the Lyndhurst property to the Fonthill property, where she resided until October 1994. In 1993 and 1994, Chiquita and appellant lived off and on with Pearline at that property. They did not live there full time because of a strained relationship between Chiquita and Pearline. Chiquita testified that she did not notice any chipping or flaking paint at the property the first year she was there. In the second year, however, she noticed chipping and flaking paint in various areas of the residence, including the front bedroom - where she and appellant slept - and the living room.

When Chiquita and appellant were not residing at the Fonthill property, they stayed with appellant's father, Antoine Rushing, formerly known as Antoine Griffin ("Antoine"), at 1405 Bank Street in Baltimore ("the Bank property"). Chiquita stated that in 1993, she and appellant were at the Bank property for "a couple months." Even when Chiquita and Pearline were getting along, Chiquita and appellant visited Antoine at the Bank property.Chiquita recalled chipping paint at the Bank property in the living room and in the third floor bedroom where she stayed with appellant. She testified that after moving from the Bank property, Antoine and his family resided at 532 North Streeper Street in Baltimore ("the Streeper property"), but she did not recall the dates. Chiquita could not remember if there was any chipping paint at the Streeper property.

In August 1994, Chiquita and appellant moved out of the Fonthill property and resided at 29 Bledsoe Circle in Baltimore. Appellant continued to spend time at the Fonthill property with Pearline, until October 1994, when Pearline moved out.

Appellant continued to have elevated blood lead levels throughout this period. She had a blood lead level of 22 on November 10, 1992; 16 in February 1993; 16 in October 1993; and 17 in August 1994.

There were two lead paint violation notices relating to 313 and 321 Fonthill Avenue, dated January 1978 and February 1980, respectively.

On July 5, 2012, appellant filed a complaint against Allysons World, Inc., Robin Neil Snyder, Jerry Johnson, Quinita Johnson, Malcolm J. Barrow, and appellee, alleging that they permitted peeling and flaking lead-based paint at the Lyndhurst, Fonthill, and Bank properties. The thrust of appellee's motion for summary judgment was that appellant could not establish that the Fonthill property was a source of lead exposure. Following a hearing, by order dated May 13, 2015, the court granted appellee's motion. After appellant resolvedher claims against the owners of the Bank property and dismissed the remaining parties, she noted this appeal, challenging the grant of summary judgment in favor of appellee.

STANDARD OF REVIEW

"The standard of review applied in reviewing a grant of a motion for summary judgment is well-established in Maryland. 'Summary judgment is appropriate where there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law.'" Injured Workers' Ins. Fund v. Orient Express Delivery Serv., Inc., 190 Md. App. 438, 450 (2010) (quoting Hill v. Cross Country Settlements, LLC, 402 Md. 281, 294 (2007)). See also Rule 2-501(f). We review the circuit court decision for legal correctness, and our review is de novo. Collins v. Li, 176 Md. App. 502, 590 (2007), aff'd sub nom. Pittway Corp. v. Collins, 409 Md. 218 (2009).

Moreover, "[a]ny factual dispute is resolved in favor of the non-moving party." Dashiell v. Meeks, 396 Md. 149, 163 (2006). Accordingly, we first determine if there is a dispute of material fact, which is a fact that "'will alter the outcome of the case, depending on how the fact-finder resolves the dispute.'" Injured Workers, 190 Md. App. at 451 (quoting Berringer v. Steele, 133 Md. App. 442, 471 (2000)). If there are no disputes of material fact, then we consider whether the moving party is entitled to judgment as a matter of law. Id. at 450-51.

DISCUSSION

Appellant contends that the court erred in granting summary judgment because she had presented sufficient circumstantial evidence of the presence of lead paint at the Fonthill property. Specifically, appellant argues that a fact finder could reasonably infer that the Fonthill property contained lead-based paint because, after moving from the Lyndhurst property, her blood lead levels did not decline at the expected rate, absent further exposure to lead.

Both parties rely heavily on the testimony of appellant's medical expert, Dr. Howard Klein. Appellant relies on his opinion that exposure to lead in the Fonthill property was a substantial contributing factor to appellant's blood lead levels. Appellee argues that there was no factual predicate for Dr. Klein's opinion. According to appellee, Dr. Klein failed to rule out other properties as a source of lead exposure and, in fact, testified that the Bank property was "an extra factor" that "more likely than not" contributed to appellant's blood lead levels in the period from 1993-1994. Accordingly, appellee argues that appellant failed to establish that the Fonthill property was a probable contributing source of lead exposure.

This Court has noted that a plaintiff, in a suit alleging exposure to lead-based paint, must show: "'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 the duty.'" Barr v. Rochkind, 225 Md. App. 336, 345 (2015) (quoting Taylor v. Fishkind, 207 Md. App. 121,148 (2012)). To prove the causation element of negligence in a lead paint case, the plaintiff must introduce evidence to show "(1) that the property contained lead-based paint, and (2) that the lead-based paint at the subject property was a substantial contributor to the [plaintiff's] exposure to lead." Hamilton v. Kirson, 439 Md. 501, 530 (2014)).

A plaintiff may prove causation through circumstantial evidence, as well as direct evidence or a mixture of the two. Id. at 527. Establishing causation in a lead paint case through circumstantial evidence requires the plaintiff to build a series of inferences:

"The theory of causation presented in this case can be conceived of as a series of links: (1) the link between the defendant's property and the plaintiff's exposure to lead; (2) the link between specific exposure to lead and the elevated blood lead levels, and (3) the link between those blood lead levels and the injuries allegedly suffered by the plaintiff. To be a substantial factor in causing [the plaintiff's] alleged injuries, [the property] must have been a source of [the plaintiff's] exposure to lead, that exposure must have contributed to the elevated blood lead levels, and the associated increase in blood lead levels must have been substantial enough to contribute to her injuries."

Id. at 529 (emphasis omitted) (quoting Ross v. Housing Auth. of Balt. City., 430 Md. 648, 668 (2013)). Circumstantial evidence is sufficient "'so long as it creates a reasonable likelihood or probability rather than a possibility supporting a rational inference of causation, and is not wholly speculative.'" Id. (emphasis added) (quoting West v. Rochkind, 212 Md. App. 164, 170-71 (2013)).

In Dow v. L & R Properties, Inc., 144 Md. App. 67 (2002), this...