Murphy v. Ellison

SKYLAR MURPHY, et al. v. LOUIS F. ELLISON

No. 0822

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

August 23, 2016

UNREPORTED

Berger, Arthur, Friedman, JJ.

Opinion by Arthur, J.

Dissenting Opinion by Friedman, 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.

Skylar and Adrianna Murphy filed suit in the Circuit Court for Baltimore City, alleging that they suffered injuries from exposure to lead-based paint at an apartment where they resided during the early 1990s. The court granted summary judgment in favor of one of the defendants, Louis F. Ellison, on the ground that the Murphys had failed to produce evidence of any lead-based paint hazards at the property. The Murphys dismissed the remaining defendants and noted an appeal.

We conclude that the Murphys produced sufficient evidence of chipping, peeling, or deteriorated lead-based paint at the property at the relevant time to survive a motion for summary judgment. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Early Childhood Lead Exposure of Skylar and Adrianna Murphy

Skylar Murphy was born in June 1991. When Skylar was an infant, his mother, Adrienne Nelson, frequently took him on visits to family members, including visits to her uncle's apartment on the first floor of 2731 Parkwood Avenue. Viewed in the light most favorable to the Murphys, the facts suggest that by March 1992 Ms. Nelson had moved into the Parkwood apartment with Skylar and Skylar's older brothers.¹

At that time, the Parkwood property was owned by L.F.E. No. 1, Inc., one of several Maryland corporations created and wholly owned by Louis F. Ellison.

Before moving into the Parkwood apartment, Ms. Nelson asked the property manager, Malcolm Snyderman, to fix flaking and peeling paint throughout the apartment. In response to Ms. Nelson's request, Snyderman applied a fresh coat of paint in many areas in the interior of the apartment. Even after she moved in, however, Ms. Nelson continued to observe flaking and peeling paint on the walls, floors, windows, and doorways throughout the apartment. Snyderman responded to several more of her requests by adding more paint to the affected areas.

While she was living at the Parkwood apartment, Ms. Nelson began to notice unusual and aggressive behavior from Skylar and his two older brothers. She took her children to the hospital, where doctors tested their blood-lead levels. Skylar's first test, taken in March 1992, when he was nine-months-old and living at Parkwood, showed that he had an blood-lead level of 5μg of lead per deciliter of blood. Later tests showed that his blood-lead level had increased to 6μg per deciliter by July 1992, to 11μg per deciliter by February 1993, and to 15μg per deciliter by July 1993, shortly after his second birthday.

Skylar's younger sister, Adrianna Murphy, was born in December 1993. Tests showed that Adrianna had a blood-lead level of 7μg per deciliter in April 1994, which increased to 9μg per deciliter by June 1994.

Skylar and Adrianna continued to reside with their mother at the Parkwood apartment until 1995. During that period, Ms. Nelson regularly took her children to daycare and to visit family members at other residences.

B. The Murphys' Negligence Action and Early Discovery

On May 31, 2012, after both Skylar and Adrianna had reached adulthood, they filed a complaint in the Circuit Court for Baltimore City. The complaint named three defendants: Louis F. Ellison, Malcolm Snyderman, and L.F.E. No. 1, Inc. The Murphys alleged that those defendants owned, operated, and maintained the property at 2731 Parkwood Avenue from 1991 through 1995.

According to the Murphys, the defendants had violated the Baltimore City Housing Code by failing to keep the property free of any flaking, loose, or peeling lead-based paint; that Skylar and Adrianna Murphy, as young children, had ingested lead-based paint and paint dust in areas of the dwelling that were accessible to them; and that their exposure to lead resulted in ongoing impairments, including permanent brain injuries.

During discovery, the Murphys retained Arc Environmental, a lead inspection company, to survey the Parkwood premises for lead-based paint. An Arc technician tested the interior and exterior of the property in January 2013. According to the Arc report, most surfaces tested negative for the presence of lead, but lead-based paint was detected above the Maryland standard on the following components: the "basement window casing" and "upper door casi[n]g" on the property's "front exterior"; the "wall surface" on the "right exterior"; and the "wall surface[,] door threshold and header" on the "rear exterior." The report classified the paint on each of those surfaces as in "poor" condition, meaning that "[m]ore than 10% of the surface [wa]s peeling, chalking, flaking, blistering, or otherwise separated from the substrate."

Ms. Nelson gave deposition testimony in March 2013 about her children's medical history, their residential history, and the condition of the Parkwood residence. She recalled seeing loose and deteriorated paint on the walls, floors, windows, and doorways throughout the apartment in areas that were accessible to her children.

Ms. Nelson identified several other locations that she and the children had regularly or occasionally visited between 1991 and 1995, but she was asked no questions about the condition of those "visitation" properties. Among the other properties, she stated that she had lived with her grandmother at 2624 Woodbrook Avenue at the time of Skylar's birth in June 1991. After moving to the Parkwood property, she and her children would visit her grandmother at the Woodbrook property, and the family would "sit out front during the summer[] and spring days" on "[a]ny day it was nice."

C. Ellison's Motion for Summary Judgment and the Murphys' Response

One of the defendants, Louis Ellison, moved for summary judgment on December 5, 2013. As the primary ground for his motion, Ellison argued that he could not be held personally liable for the alleged injuries suffered at the Parkwood property. Ellison asserted that in November 1991, four months before Skylar's first blood test, he had assigned ownership of the property to a company bearing his initials "L.F.E." He stated that Snyderman took over the day-to-day management of the property at that time.

As a separate ground for his motion, Ellison argued that the Murphys could not establish that their injuries resulted from lead exposure at the Parkwood property. Ellison relied on the report from Arc Environmental, which had detected lead-based paint on several "exterior" components. He pointed out that Ms. Nelson did not recall problemswith the paint on the outside of the building. He argued that the Murphys could not show that any paint hazards inside the dwelling also contained lead. Ellison further argued that the Murphys could not show that the Parkwood property was the source of their lead exposure through circumstantial evidence because there were "many possible alternative sources of exposure" and "numerous other properties" that "may have caused their documented blood lead levels[.]"

Shortly after Ellison filed his summary judgment motion, the Murphys deposed two experts who rendered opinions about the source of their lead exposure. Mr. R. Shannon Cavaliere, a certified lead-risk assessor for Arc Environmental, opined that door and window components inside the apartment, which Ms. Nelson had described as sources of chipping paint when she had lived there, had been covered with the same types of lead paint that inspectors found on other parts of the structure in 2013. Dr. Alma Robinson-Josey, a pediatrician, concluded that the Parkwood property was a substantial contributing source of the elevated blood-lead levels that Skylar and Adrianna experienced while they resided there. According to Dr. Robinson-Josey, Ms. Nelson had reported that each of the other properties that the children visited regularly were in good condition and that the children had not been exposed to known lead sources other than paint. Dr. Robinson-Josey concluded that the source of "substantial exposure" for the children would have been "the Parkwood property," but that it was "impossible" to "completely" rule out exposure at the property on Woodbrook Avenue.

The Murphys' response to the summary judgment motion relied on the Arc report, Ms. Nelson's deposition testimony, and excerpts from the depositions of the two experts.They contended that this evidence was sufficient in the aggregate to show that they had been exposed to lead-based paint hazards at the Parkwood residence.

On the issue of Ellison's individual liability, the Murphys produced excerpts from the transcript of a 2011 deposition from a separate case.² During that deposition, Ellison had testified that his involvement with the properties owned by the "L.F.E." companies had continued for several years after 1991. The Murphys argued that Ellison's statements generated a genuine factual dispute about the extent of his ownership and control of the Parkwood property.

D. The Summary Judgment Hearing and Ruling

The parties argued their respective positions at a hearing before the circuit court on February 10, 2014. Ellison had not submitted a written reply, and so the hearing represented the first and only occasion on which he addressed the additional materials attached to the Murphys' response to his summary judgment motion.

On the issue of ownership and control of the Parkwood property, Ellison submitted an errata sheet for the 2011 deposition, in which he had changed some of his answers about his role with the "L.F.E." companies in the early 1990s. Notwithstanding that submission, the court concluded that there were genuine disputes regarding the degree of...