Rowhouses, Inc. v. Smith
133 A.3d 1054
| Md. | 2016Background
- Myishia Smith lived at 1622 E. Oliver St. (Oliver Street Property) from ~late 1991/early 1992 to Spring 1993; during that time Smith (an infant/toddler) was observed with hand-to-mouth behavior and the mother observed chipping/peeling paint and dust in the Oliver Street residence.
- Smith had elevated blood-lead levels first recorded on Sept. 25, 1992 (11 µg/dL) while residing at Oliver Street, later tests in 1993-1995 remained elevated.
- Oliver Street was owned/managed by Rowhouses, Inc.; the building had been demolished before litigation so no direct testing of interior lead paint was possible.
- Smith produced circumstantial evidence: mother’s deposition/affidavit describing deteriorated paint and dust at Oliver Street, lack of deteriorated paint at other residences/visitation site (Monroe St., Ashland Ave.), nearby historic rowhouses with prior lead violations, and municipal lead-violation records for neighboring houses.
- Rowhouses moved for summary judgment arguing Smith lacked admissible expert-backed proof that Oliver Street contained lead-based paint and that other reasonably probable sources were not eliminated; the trial court granted summary judgment.
- The Court of Special Appeals reversed as to negligence; the Maryland Court of Appeals affirmed that reversal and held summary judgment was improper because sufficient circumstantial evidence supported that Oliver Street was a reasonable probable source of Smith’s lead exposure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether circumstantial evidence (no direct testing) can establish the subject property contained lead-based paint and was the source of plaintiff’s lead exposure | Smith argued her mother’s testimony about chipping/peeling paint, child’s hand-to-mouth behavior, timing of elevated blood-lead level, limited time spent elsewhere, and neighborhood lead violations suffice to show a reasonable probability the Oliver St. property was the source | Rowhouses argued age/presence assumptions and mother’s testimony are speculative; without direct testing or admissible expert opinion tying exposure to Oliver St., causation is not shown and other properties weren’t ruled out | Court held circumstantial evidence (including lay testimony and neighborhood records) can, at summary judgment, suffice to rule in the subject property as a reasonable probable source and to rule out other reasonably probable sources; summary judgment was erroneous |
| What quantum of proof is required at summary judgment to show a property is a "reasonable probable" source of lead exposure | Smith: need only show a reasonable probability (less than more-likely-than-not but more than a mere possibility) through admissible circumstantial evidence | Rowhouses: plaintiff must exclude other reasonably probable sources or produce expert proof linking the property to exposure | Court defined "reasonable probability" as a fair likelihood (higher than mere possibility, lower than >50%) and held that circumstantial evidence can meet that standard; under a Dow-type theory plaintiff must rule out other reasonably probable sources, which may be done by circumstantial evidence |
| Whether a plaintiff must produce expert testimony to rule in/out properties as reasonably probable sources at summary judgment | Smith: expert helpful but not required; circumstantial lay testimony (e.g., parent’s affidavit/deposition) may suffice | Rowhouses: expert needed to provide factual basis; lay, self-serving testimony insufficient to eliminate other sources | Court held expert testimony is not categorically required at summary judgment; lay circumstantial evidence that, if believed, rules out other reasonably probable sources is admissible and can defeat summary judgment |
| Proper role of summary judgment where credibility and factual inferences are disputed in lead-paint causation cases | Smith: credibility and weight of circumstantial evidence are jury questions; summary judgment inappropriate | Rowhouses: thin circumstantial record justified summary judgment because inferences were speculative | Court held credibility and weight are for the jury; where admissible circumstantial evidence creates a reasonable probability, summary judgment is improper and the case must proceed to trial |
Key Cases Cited
- Peterson v. Underwood, 258 Md. 9, 264 A.2d 851 (Md. 1970) (circumstantial evidence may establish causation if it creates a reasonable likelihood rather than mere possibility)
- Dow v. L & R Props., Inc., 144 Md. App. 67, 796 A.2d 139 (Md. Ct. Spec. App. 2002) (circumstantial evidence supported inference that a single residence with chipping paint was the exclusive source of child’s lead poisoning)
- West v. Rochkind, 212 Md. App. 164, 66 A.3d 1145 (Md. Ct. Spec. App. 2013) (when multiple residences are plausible sources, plaintiff must show exclusivity or otherwise produce sufficient evidence to establish probability)
- Taylor v. Fishkind, 207 Md. App. 121, 51 A.3d 743 (Md. Ct. Spec. App. 2012) (age alone and equivocal expert opinion insufficient; plaintiff failed to rule out alternate sources)
- Ross v. Housing Auth. of Balt. City, 430 Md. 648, 63 A.3d 1 (Md. 2013) (expert exclusion does not preclude plaintiff from proving the property–exposure link circumstantially; remand to assess whether circumstantial proof sufficed)
- Hamilton v. Dackman, 439 Md. 501, 96 A.3d 714 (Md. 2014) (clarified that a Dow theory is one way to prove causation; defined "reasonable probability" standard and held plaintiff must either exclude other reasonably probable sources under a Dow theory or present alternative circumstantial proof sufficient to create a reasonable probability)