ADKINS, J.
In this lead paint case we examine the nature and purpose of the "good cause" exception to the written notice requirement of the Local Government Tort Claims Act ("LGTCA"). Md.Code (1987, 2013 Repl. Vol.), § 5-304 of the Courts and Judicial Proceedings Article ("CJP"). We do so in the course of reviewing a trial court's rulings that allowed the case to proceed to trial, over Appellant's objection, because the court found substantial compliance and good cause for the Appellee's failure to provide written notice of her intent to sue within 180 days of her injury.
Although the Appellee is Amafica Woodland ("Woodland"), the relevant facts pertain almost exclusively to her mother and grandmother. Woodland's maternal grandmother, Dale Williams ("Williams") moved into 127 Albemarle Street ("the Residence") in February 1987 as the tenant of record along with her daughter, Appellee's mother, Tanderlara Monterio ("Monterio"). Appellee lived there from her birth in 1995 until she, along with her mother and grandmother, vacated the Residence in November of 1997. Appellant, the Housing Authority of Baltimore City ("HABC"), owned and managed the Residence from its construction in 1957 to its demolition in 2001.
Woodland's blood-lead levels were tested twice during her tenancy at the Residence. On September 30, 1997, she demonstrated a blood-lead level of 13 micrograms per deciliter (μg/dL), and on October 8, 1997 she demonstrated a blood-lead level of 11 μg/dL. Following the second test, Monterio visited the management office of the Residence and met with the property manager, Robin Mack
Almost twelve years later, in April 2009, Woodland sued HABC in the Circuit Court for Baltimore City, claiming injury from her exposure to lead paint at the Residence, and asserting, alternatively, compliance with the notice requirements of the Local Government Tort Claims Act ("LGTCA"),
The jury found in favor of Woodland, and after HABC's successful motion to reduce the verdict in accordance with the relevant caps on non-economic damages, the judgment came to $690,000. HABC noted a timely appeal to the Court of Special Appeals, and we granted certiorari on our own initiative before resolution by that Court.
Appellant presents the following questions on appeal:
For the reasons explained below, we conclude that the motions judge did not err in denying HABC's motion for summary judgment. Although the trial court did err in finding that Woodland had substantially complied with the LGTCA's notice requirements, its alternate finding that Woodland had good cause for failing to comply made this error moot. The trial court erred in considering material not in evidence as part of its ruling that Woodland met the good cause exception for non-compliance with the LGTCA notice requirement. Yet this error was harmless, as fully explained infra. Finally, we see no error in the two evidentiary issues Appellant raises.
Appellant argues that the motions court erred in denying its pretrial motion for summary judgment. In HABC's view, because Woodland argued substantial compliance, rather than good cause, in its written response to HABC's motion, the pretrial court's consideration of good cause was improper. We first observe that although Woodland discussed substantial compliance rather than good cause in her written response, at the hearing on HABC's motion, her counsel clearly said: "I appreciate the Court focusing on the good cause acts [sic] aspect." Counsel also pointed out that "it was their understanding that they were moved because of the lead in the house[,]" which highlights a group of facts that support good cause.
Appellant draws our attention to the following statement from the bench, made in ruling on the pretrial motion:
As we held in Metropolitan Mortgage Fund, Inc. v. Basiliko, 288 Md. 25, 29, 415 A.2d 582,
Interpreting a good cause determination to be a pure question of law, Appellant asks that we depart from our usual deferential abuse of discretion standard for reviewing a denial of summary judgment as a matter of law. We see no reason to depart from the holding and rationale of Basiliko. There, we were emphatic about our reluctance to overturn a denial of summary judgment in this context:
Basiliko, 288 Md. at 28-29, 415 A.2d at 584 (footnote and citations omitted). We decline to hold that the judge erred in denying summary judgment.
The LGTCA provides, in pertinent part:
CJP § 5-304.
Appellee does not contest that she failed to strictly comply with the LGTCA. Yet, even if a plaintiff does not strictly comply, the suit may go forward if the plaintiff substantially complied with the notice requirement. Ellis v. Housing Auth. of Baltimore City, 436 Md. 331, 342-43, 82 A.3d 161, 167 (2013). Here, the trial court found substantial compliance "based
We review a trial court's determination of whether a plaintiff substantially complied with the LGTCA's notice requirement as a matter of law. See Ellis, 436 Md. at 342, 82 A.3d at 167 (citation omitted).
As we recently explained, a plaintiff satisfies substantial compliance where:
Ellis, 436 Md. at 342-43, 82 A.3d at 167 (quoting Faulk v. Ewing, 371 Md. 284, 298-99, 808 A.2d 1262, 1272-73 (2002) (ellipsis in original)). In Ellis we held that a threat to sue HABC if it did not fix chipping paint did not satisfy substantial compliance. 436 Md. at 345, 82 A.3d at 169. Because such a complaint "neither explicitly nor implicitly indicate[s] ... inten[t] to sue HABC regarding any injury[,]" it did not put the government agency on adequate notice. Id.
We have previously approved of findings of substantial compliance when the plaintiff sent written notice of a claim to a government agency detailing the time, place, and cause of the injury, though failing to follow a technical requirement. See Jackson v. Bd. of Cnty. Comm'rs of Anne Arundel Cnty., 233 Md. 164, 167-68, 195 A.2d 693, 695 (1963) (holding that sending written notice via unrestricted regular mail substantially complied with the predecessor statute to the LGTCA). Additionally, we held that when a plaintiff sent a letter detailing an injury and an expectation of some type of compensation, substantial compliance is met even though the letter was sent to the defendant's insurer instead of the statutorily required person. See Faulk, 371 Md. at 307-08, 808 A.2d at 1277-78. Finally, we recently reiterated that, in the context of a lead paint case, a verbal complaint of chipping paint coupled with a threat to sue if the situation were not remedied did not satisfy substantial compliance on its own. See Ellis, 436 Md. at 345, 82 A.3d at 169.
Here, there was no explicit or implicit threat of legal action, either written or oral. Woodland's mother simply did not make any statement within the statutorily specified time about an intention to sue HABC. This fails the second condition we set forth in Ellis. Thus, we agree with HABC that the trial court erred in concluding that Woodland had substantially complied with the LGTCA.
The LGTCA provides a plaintiff one last route to the courthouse. Even if a plaintiff does not strictly or substantially comply with the LGTCA notice provision,
Appellant argues first that there was no evidence upon which the trial court could have found good cause to excuse the failure of Woodland's mother and grandmother to provide written notice within 180 days. HABC contends that merely providing notice to HABC of an injury does not itself constitute notice of intent to sue, and thus does not excuse compliance. It advances that if Woodland's mother was able to give notice of the injury to HABC, she was also able to give notice of her intent to pursue a tort claim. Pressing the point, HABC stresses that allowing mere notice of an injury to suffice as good cause would constitute a new and judge-made exception to the LGTCA not contemplated by the Legislature.
HABC next argues that the court abused its discretion by relying on an exhibit not in evidence as part of its good cause analysis. The evidence in question, ironically, was a packet of documents HABC had earlier offered for admission, which contained a "Protect Your Family from Lead in Your Home" document and a "Notice of Tenants' Rights" ("the HABC Packet").
Woodland rejoins that the trial court clearly and carefully weighed the appropriate good cause factors announced in Rios v. Montgomery County, 386 Md. 104, 872 A.2d 1 (2005) and Heron v. Strader, 361 Md. 258, 761 A.2d 56 (2000).
To address these arguments, we start with the pertinent statute. The Legislature granted courts the authority to "entertain" a lead paint suit even without notice, upon a showing of "good cause." CJP § 5-304(d) ("[U]pon motion and for good cause shown the court may entertain the suit even though the required notice was not given."). The trial court, exercising its discretion, found that Woodland had good cause for failing to comply fully with the notice requirement of the LGTCA. In order to determine whether the court abused its discretion, we must first examine the reasoning the court employed in finding good cause. In announcing this finding, the trial court explained:
It is not our task on appellate review to decide "good cause" afresh, but rather, to decide whether the trial court abused its discretion in its good cause determination. See Rios, 386 Md. at 121, 872 A.2d at 10 ("The question of whether good cause for a waiver of a condition precedent exists is clearly within the discretion of the trial court." (citing Heron, 361 Md. at 270, 761 A.2d at 62)); see also Prince George's Cnty. v. Longtin, 419 Md. 450, 467, 19 A.3d 859, 869 (2011) (observing that a "good cause" determination is a matter of trial court discretion). An abuse of discretion in a ruling may be found "`where no reasonable person would share the view taken by the trial judge.'" Consol. Waste Indus., Inc. v. Standard Equip. Co., 421 Md. 210, 219, 26 A.3d 352, 357 (2011) (quoting Brown v. Daniel Realty Co., 409 Md. 565, 601, 976 A.2d 300, 321 (2009)).
We are persuaded that it was not unreasonable for the trial judge to conclude that Woodland's mother and grandmother acted with a reasonable degree of diligence under the circumstances. They notified the landlord in person that Amafica had two elevated blood-lead level tests and pursued actions consistent with achieving some redress of their concerns. Their actions allowed HABC to investigate its "possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, `sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.'" Moore, 371 Md. at 167-68, 807 A.2d at 640 (quoting Williams v. Maynard, 359 Md. 379, 389-90, 754 A.2d 379, 385 (2000)).
The events transpiring after the report of Amafica's elevated blood-lead level could reasonably have induced the mother and grandmother to believe that they had done enough, in terms of notice. As we have said, not only did HABC promptly order an expert inspection of the property, but immediately thereafter, it moved Woodland and her family to a different residence. These circumstances could reasonably have justified, in the trial judge's mind, the conclusion that the Woodland family reasonably relied on HABC's prompt and curative action in not giving additional notice.
We have previously held that reasonable reliance by a claimant on interactions with a local government or its agents can be a factor in supporting a claim of "good cause" within the meaning of § 5-304. See Moore, 371 Md. at 180, 807 A.2d at 648 ("`When acts and conduct of the defendant or his agents have established that the purposes of the statute have been satisfied, these acts and conduct could constitute a waiver of notice or create an estoppel.'" (quoting Delaware Cnty. v. Powell, 272 Ind. 82, 393 N.E.2d 190, 192 (1979))).
We are more persuaded by Appellant's argument that the trial court erred when it considered the HABC Packet as part of its good cause analysis, even though it was not in evidence. As we described earlier, when HABC offered the Packet to prove compliance with the Lead Act, the court excluded it on grounds it would confuse the jury.
HABC argues that the appropriate remedy for this error is a new trial. We do not agree, because the court's consideration of the HABC Packet was harmless error. It relied on the HABC Packet only as an alternative basis for its good cause finding. The record reveals that the court focused on three factors. These were: (1) Woodland's mother's interaction with HABC after being notified of her daughter's elevated blood-lead level; (2) HABC's actions in response to being informed of Woodland's elevated blood-lead level; and (3) the content of the HABC Packet provided to Woodland's family.
(Emphasis added). We construe this portion of the trial court's opinion as saying that Monterio's conduct was both reasonable under the circumstances and sufficient to allow HABC to conduct an investigation in preparation for possible litigation. Thus, applying the Heron standard, the trial court found that the first two factors, enumerated above, were
In sum, the purpose of the waiver of notice requirement provision is "to allow the court to achieve `substantial justice under varying circumstances[.']" Moore, 371 Md. at 183, 807 A.2d at 649 (quoting Madore, 34 Md.App. at 344, 367 A.2d at 57). We are further mindful of the breadth of trial court discretion in this arena. Rios, 386 Md. at 121, 872 A.2d at 10-11 ("`[A]n abuse of discretion should only be found in the extraordinary, exceptional, or most egregious case.'" (quoting In Re Adoption/Guardianship No. 3598, 347 Md. 295, 312-13, 701 A.2d 110, 118-19 (1997))). It is not manifestly unreasonable, given these facts, to conclude that Woodland's mother and grandmother acted with the diligence of a reasonable person and reasonably relied on the responsive action by the HABC for the thought that they had given sufficient notice. HABC was given sufficient notice to allow it to fully investigate the presence of lead in the Residence and conduct any relevant interviews while the information was still fresh in everyone's mind. Accordingly, we hold that there was no abuse of discretion in the trial court's good cause determination.
Appellant also raises two evidentiary issues. In the first, Appellant maintains that the trial court erred when it excluded testimony intended to demonstrate that HABC's conduct was reasonable under the circumstances because it complied with the Lead Act after being informed of Woodland's elevated blood-lead level. Appellant repeatedly attempted to offer testimony that it had Connor perform a modified risk reduction as part of its adherence to the Lead Act rather than because the property contained lead paint. In excluding this evidence, the trial court explained that compliance with the Lead Act was irrelevant to the question of negligence, and that such information would confuse the issues to the jury. Additionally, the court stated that the Lead Act had been held unconstitutional.
Appellant offered into evidence sample versions of the documents in the HABC Packet, specifically the "Protect Your Family From Lead in Your Home" and "Notice of Tenants Rights." The following colloquy occurred when Woodland objected to HABC's questions to Mack about her having provided Woodland's mother with these documents:
Thus, the trial court excluded testimony indicating that HABC's undertaking of a modified risk reduction after having been made aware of Woodland's elevated blood-lead level was done in order to comply with the Lead Act.
Claiming error, Appellant contends that because lead paint cases are analyzed under the negligence standard, it was essential to HABC's defense that it be allowed to demonstrate that it acted reasonably under the circumstances. It maintains that its compliance with the Lead Act, both before and after being notified of Woodland's elevated blood-lead level, speaks to the reasonableness of its conduct. Thus, it avers, the court's exclusion of this evidence deprived HABC of the opportunity to demonstrate to the jury that its conduct was reasonable under the circumstances. Appellant also argues that allowing the jury to hear the term "modified risk reduction," without explanation, created the impression that there was indeed lead paint in the property, without any direct evidence presented on this issue.
It is settled law that lead paint cases are subject to the negligence standard in Maryland. See Brooks v. Lewin Realty III, Inc., 378 Md. 70, 85 n. 5, 835 A.2d 616, 624 n. 5 (2003). A prima facie case of negligence is established by showing a violation of a statute designed to protect a class of persons that includes the plaintiff and an injury caused by the violation. Id. Then, "the fact-finder must determine
Nonetheless, Appellant's argument is unavailing. The excluded evidence pertained to HABC's conduct after having been notified that Woodland had an elevated blood-lead level.
The court allowed Appellant to ask Mack questions about specific notifications she had given Woodland's mother, as well as to describe the various inspections, maintenance actions, and tenant interactions that were listed in Woodland's family's tenant file. The court also allowed Appellant's expert to state that, in his opinion, there were no reports or records of lead-based paint hazards at the Residence. The Court, however, drew the line at testimony characterizing HABC's steps as having been done in compliance with the Lead Act. It excluded this evidence because the issue at trial was negligence, the proffered evidence pertained to post-injury conduct, and the court considered that mention of compliance with the Lead Act might confuse the issue before the jury.
Appellant's supposed compliance with the statute does not provide the safe harbor it seeks, because it does not speak to whether HABC was negligent in allowing Woodland to be exposed to lead paint in the first place. The specific statutory compliance proffered by HABC did not address any affirmative actions undertaken to detect and remove lead paint from the Residence. For these reasons, we hold that there was no error in the trial court's decision to exclude this evidence as irrelevant.
Appellant's second evidentiary argument concerns the trial judge admitting putative hearsay evidence at the trial. The alleged hearsay is the handwritten phrase "lead paint" found on forms entitled "Notice of Intent To Vacate" ("Notice") and "Application For Transfer of Residence" ("Application"). The Notice enumerated six potential reasons for moving, and on the form, someone had written "Lead Paint" next to the option stating "Other (explain in detail)." The Application has the words "lead paint" written in a box entitled "Tenant Reason for Request." Both documents were dated November 3, 1997 and signed by Woodland's grandmother. The Application also was signed by two HABC employees.
The documents were offered by Woodland to show that HABC had notice of Woodland's lead paint claim. HABC objected on grounds that the words "lead paint" were hearsay. Woodland responded that these documents fell within the business record exception to hearsay, as they were maintained by the HABC in the regular course of business. The trial court agreed. HABC quarrels with that ruling, insisting that without evidence as to the identity and provenance of the scrivener,
The business record hearsay exception states:
Md. Rule 5-803(b)(6). HABC argues that clause (B), the personal knowledge requirement, was violated because no one could identify who wrote the words "lead paint" as the reason for transfer, and Monterio testified the handwriting was not her mother's. We are not persuaded that the trial court erred.
The purpose of the business record exception "is to carve out an exception to the personal knowledge requirement in order to allow greater admissibility of business records." Hall v. Univ. of Maryland Med. Sys. Corp., 398 Md. 67, 88, 919 A.2d 1177, 1189 (2007). The rationale underlying this exception is "based on the premise that because the records are reliable enough for the running of a business... they are reliable enough to be admissible at trial. This is true regardless of whether the person who actually did the recording has personal knowledge of the information recorded." Hall, 398 Md. at 89, 919 A.2d at 1190 (italics in original).
Appellant cites no case standing for the proposition that an undisputed business record, especially one maintained by the party opposing its admission, signed and dated by people with the unquestioned authority to make such records, should have an entry excluded from consideration simply because no one can identify the writer of the words. The attorney for HABC conceded: "I don't dispute that this is a regularly kept record by the Housing Authority." At trial there was no dispute as to the validity or authenticity of the document, or of the signatures of the HABC employees.
Absent some evidence that the words "lead paint" were entered fraudulently or are otherwise untrustworthy, identifying the person who wrote the term into these HABC documents is not essential to using the business record exception for admission of these documents. "[W]here a record qualifies as a business record, there is a presumption of trustworthiness, and the objecting party, especially in a civil case, bears a heavy burden in order to exclude an otherwise admissible business record as untrustworthy." Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 116, 604 A.2d 47, 51 (1992). We see no error.
For the reasons stated above, we hold that the Circuit Court erred in finding substantial compliance and in considering the non-admitted HABC Packet as part of its determination that there was good cause for Woodland's family to fail to give timely written notice of its claim. Yet there was sufficient evidence to support a good cause determination without considering the HABC Packet, and with the valid good cause determination, the court's substantial compliance ruling was moot. Finally, neither of the evidentiary issues raised by Appellant demonstrates error on the part of the trial court.
McDONALD and WATTS, JJ., concur and dissent.
WATTS, J., Concurring and Dissenting, which McDONALD, J., joins
Respectfully, I concur, in part, and dissent, in part.
I agree that the circuit court erred in concluding that Woodland substantially complied with the notice requirement of the Local Government Tort Claims Act ("LGTCA"), Md.Code Ann., Cts. & Jud. Proc. Art. (1987, 2013 Repl. Vol.) § 5-301 et seq.
The Majority states that there were three factors the circuit court found in determining that good cause existed to waive compliance with the LGTCA notice requirement:
Majority Op. at 437-38, 92 A.3d at 392 (footnote omitted). As the Majority readily concedes, as to the third factor, the circuit court erred in considering the HABC Packet as part of its good cause analysis because the packet was not in evidence. See Majority Op. at 436-38, 92 A.3d at 392. Nevertheless, the Majority
The record unambiguously demonstrates that Woodland did not argue or present evidence establishing reliance on "HABC's actions in response to being informed of Woodland's elevated blood-lead level[.]" It is accurate as the Majority writes that, at the motion for summary judgment hearing, counsel for Woodland stated that, according to Woodland and Monterio, "it was their understanding that they were moved because of the lead in the house." Counsel for Woodland made this argument, however, before a pretrial motion hearing judge, who was not the judge who presided over the trial and who was not responsible for issuing the ruling as to good cause. Put simply, this vague and ambiguous statement in no way constitutes an argument as to reliance and was not made to the trial judge who issued the ruling we now review. Later, at trial, before the judge whose opinion is the subject of this Court's opinion, Woodland did not allege or produce any evidence of reliance on any action or statement by HABC nor did Woodland produce evidence that the reason she failed to comply with the LGTCA notice requirement was due to the actions by HABC. Despite there being no evidence of detrimental reliance alleged or produced, in finding good cause, the trial judge nonetheless stated: "This Court does believe that the actions that were taken were taken timely and in response as such and that if it were not such it was upon the detrimental reliance of that from [HABC] which obstructed the natural compliance as required." This was clearly an abuse of discretion as such reliance was neither raised nor established. Yet, the Majority gives credence to the circuit court's erroneous ruling by now holding that it was not unreasonable to conclude that Woodland's mother and grandmother "reasonably relied on the responsive action by the HABC for the thought that they had given sufficient notice." Majority Op. at 439, 92 A.3d at 393.
The quandary remains that Woodland never alleged or argued that she relied on HABC having relocated her family, or, indeed, that she relied on HABC having completed a visual inspection as a reason for not complying with the LGTCA.
Alternatively, the Majority asserts that the circuit court found that the first two
When considered individually, the two factors relied upon by the Majority-Woodland's mother's interaction with HABC after being notified of Woodland's elevated blood-lead level and HABC's actions after being informed of Woodland's elevated blood-lead level — are not sufficient to demonstrate good cause for Woodland's failure to provide notice. Stripped to the basics, we are confronted with the following — Woodland's mother orally notified HABC of Woodland's elevated blood-lead level and HABC conducted a modified risk reduction, i.e., a visual inspection, and moved the family. No further action was taken on Woodland's behalf for almost twelve years, until after Woodland's mother saw a televised advertisement, at which point the complaint was filed. That Woodland's mother notified HABC of an elevated blood-lead level and HABC moved the family after a visual inspection simply does not provide good cause for Woodland's mother's failure to prosecute Woodland's claim with the diligence of an ordinarily prudent person. See Heron v. Strader, 361 Md. 258, 271, 761 A.2d 56, 63 (2000).
As early as September 30, 1997, Woodland's mother knew that Woodland's blood-lead level was 13 μg/dL. Yet, the record is devoid of any action by Woodland's mother to notify HABC, or anyone else, orally or in writing, other than providing Woodland's elevated blood-lead level, that Woodland intended to pursue a lead paint claim against HABC, or any effort by Woodland's mother to actually pursue a claim on Woodland's behalf, until the filing of the complaint nearly twelve years after the blood-lead level test results. A trial court abuses its discretion in concluding that a plaintiff showed good cause for the plaintiff's failure to comply with the LGTCA notice requirement where: (1) the plaintiff takes barely any action to prosecute the plaintiff's potential claim; and (2) the plaintiff does not sufficiently explain the plaintiff's failure to comply with the LGTCA notice requirement. See Wilbon v. Hunsicker, 172 Md.App. 181, 208-09, 211, 913 A.2d 678, 695, 696 (2006), cert. denied, 398 Md. 316, 920 A.2d 1060 (2007).
Giving oral notice of an elevated blood-lead level does not constitute "prosecut[ing
Here, in undertaking a modified risk reduction and moving the family, HABC made no misleading representations to Woodland; and the modified risk reduction had absolutely no bearing or effect on whether Woodland's mother or grandmother prosecuted a claim on Woodland's behalf with the degree of diligence of an ordinarily prudent person. As explained above, Woodland has not contended or substantiated a claim that HABC misled her mother or grandmother, or that they relied to her detriment upon any representation, misleading or otherwise, made by HABC. Thus, the circumstances of a modified risk reduction, i.e., a visual inspection, being conducted and the family being moved do not establish good cause for Woodland's failure to comply with the LGTCA notice requirement.
For all of the reasons set forth above, I would hold that the circuit court abused its discretion in finding good cause and reverse the judgment of the circuit court.
Judge McDONALD has authorized me to state that he joins in this opinion.