Rogers v. Home Equity USA, Inc.
160 A.3d 1207
| Md. | 2017Background
- Terrence Rogers (b.1994) lived at 3738 Towanda Ave (Towanda) Oct 1996–Mar/Apr 1997; earlier/resident at other homes including 6149 Chinquapin Pkwy (Chinquapin).
- Multiple blood-lead tests (1995–1997) show elevated levels, including 21 µg/dL (Jan 8, 1997) and 20–21 µg/dL (Mar 26, 1997) while at Towanda; levels fell after moving out.
- Towanda: built 1920; Baltimore Health Dept. interior lead testing in 1976 found lead-based paint on numerous interior surfaces; some flaking paint allegedly corrected per 1976 notes; later permits show repairs but no full gut abatement.
- 1997 Health Dept. and Kennedy Krieger records describe Towanda as dilapidated with flaking paint; witness testimony reports children mouthing windowsills and chipping paint on porch.
- Plaintiff sued Home Equity USA for negligence (Housing Code/Statute-or-Ordinance theory) and consumer claims; trial court granted summary judgment to defendant on source and source-causation; Court of Special Appeals affirmed on source-causation; Maryland Court of Appeals reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Towanda a reasonably probable source of Rogers’ lead exposure (source)? | Rogers: 1976 interior positive tests, 1997 dilapidation notes, witness testimony, lack of full abatement, exterior/porch lead findings — these facts permit a reasonable inference Towanda still had interior lead in 1996–97. | Home Equity: No direct evidence of interior lead while Rogers lived there; post-1976 repairs could have abated interior lead; plaintiff must rule out other sources. | Reversed: Sufficient circumstantial evidence (not just age) to treat Towanda as a reasonably probable source. |
| Did Towanda reasonably probably cause Rogers’ elevated blood-lead levels (source causation)? | Rogers: elevated tests while resident, decline after moving out, expert and clinician testimony on blood-lead kinetics, observed mouthing, and expert opinion that Towanda was a substantial contributor. | Home Equity: Gap in testing before Jan 1997 means Jan result could reflect prior Chinquapin exposure; cannot show Towanda contributed more probably than Chinquapin. | Reversed: Evidence permits a jury to find Towanda was a reasonably probable contributor to the elevated levels. |
| Applicable causation standard at summary judgment in lead-paint cases | Rogers: need only show a "reasonable probability" (less than preponderance but more than possibility) that the property was a source. | Home Equity: plaintiff must show the property was the more likely source (preponderance) or eliminate other probable sources (Dow approach). | Court: Adopts "reasonable probability" standard (as in Rowhouses/Kirson line) for lead cases at summary judgment; plaintiff need not rule out all other sources if circumstantial evidence reasonably "rules in" the property. |
| Role of circumstantial evidence and expert testimony | Rogers: experts may rely on historical tests, health-dept. observations, and circumstantial indicators to opine Towanda was a source. | Home Equity: Experts cannot rely on age alone; exterior testing or remote historical tests are insufficient without ruling out other sources. | Court: Experts may rely on robust circumstantial record (here: 1976 interior tests + 1997 observations + lack of full abatement), but age alone is insufficient. |
Key Cases Cited
- Hamilton v. Kirson, 439 Md. 501 (2014) (circumstantial proof may under some facts "rule in" a property as a probable source without excluding other sources; age alone insufficient)
- Rowhouses, Inc. v. Smith, 446 Md. 611 (2016) (defines "reasonable probability" as a level between mere possibility and preponderance for lead-paint causation at summary judgment)
- Ross v. Housing Authority of Baltimore City, 430 Md. 648 (2013) (framework of three causation links: source, source-causation, medical causation)
- Peterson v. Underwood, 258 Md. 9 (1970) (general tort principle: plaintiff must show more probable than not when multiple equally likely causes exist)
- Dow v. L & R Properties, Inc., 144 Md. App. 67 (2002) (Dow approach: circumstantial evidence can defeat summary judgment by excluding other reasonably probable sources)
- Bartholomee v. Casey, 103 Md. App. 34 (1994) (application of substantial-factor test in lead-paint cases)
- Brooks v. Lewin Realty III, Inc., 378 Md. 70 (2003) (Statute-or-Ordinance Rule: Housing Code violations can establish negligence elements when designed to protect the plaintiff class)