ADKINS, J.
In this lead paint case, we revisit the standard for determining "harmless error" in a civil case involving a faulty jury instruction. The Petitioner, Janay Barksdale, sued the owners of her childhood home (the "Owners"), alleging injuries from lead paint on the premises. At trial, the Owners questioned Barksdale's grandmother whether she had ever notified them of flaking and peeling paint in Barksdale's home. The Owners then requested a jury instruction indicating that a person's failure to report flaking paint to the landlord is evidence of negligence. The trial court gave the instruction, even though the grandmother's negligence was not attributable to Barksdale, and Barksdale herself was too young to have any duty to report. The jury issued a verdict in favor of the Owners.
On appeal, the Court of Special Appeals upheld the jury verdict. It held that the jury instruction was erroneous, but also harmless. Barksdale sought review from this Court on a number of issues. We granted certiorari to review the following questions, all involving the issue of "harmless error" from an erroneous jury instruction:
We shall hold that the inclusion of the erroneous jury instruction was not harmless error, and reverse the judgment of the Court of Special Appeals.
Janay Barksdale lived with her grandmother at 2440 West Baltimore Street (the "Property") for eleven years, from her birth in 1988 until her grandmother moved in 1999. Later, as a teenager, Barksdale was diagnosed with "mild mental retardation," with a low IQ score and impaired senses. These impairments have limited her ability to read, her verbal language abilities, and her mathematical reasoning. Barksdale attended school through the sixth grade, later working briefly at a fast food restaurant. She has expressed an interest in becoming a medical assistant, security guard, or computer technician. According to expert testimony, however, it would be extremely difficult for Barksdale to "obtain and maintain competitive employment" due to these impairments.
Seeking redress for these injuries, Barksdale initiated the current suit, naming the Owners as defendants.
Yet, Barksdale was able to present only limited evidence of lead paint in the Property. After she and her grandmother moved out of the house, the Property sat vacant, until being purchased and "gut rehab[bed]" by a new owner in 2005. This owner replaced all interior walls and old window frames, and did not test for lead paint. Thus, there was no scientific record of the paint that existed during Barksdale's residency. Instead, Barksdale commissioned a test of the property on August 8, 2008, which revealed lead-based paint at one location—the staircase newel post. Barksdale relied on this test, her observations of chipping and flaking paint, and her elevated blood lead levels to claim that the source of her exposure to lead was the Property.
The Owners contested this allegation on a number of levels. They introduced evidence of Barksdale's mother's behavior during pregnancy, which included drinking and smoking. They also called an expert witness who testified that Barksdale's impairments were likely caused by something other than lead paint poisoning. They argued that Barksdale's lead levels were close to the average lead level in children during the 1970's.
Furthermore, over the objection of Barksdale, the Owners implicitly introduced the issue of whether Barksdale's grandmother was somehow at fault. Although the Owners did not explicitly argue that Barksdale's grandmother was contributorily negligent or a superseding cause, the Owners questioned Barksdale's grandmother as to whether she had ever reported the chipping and flaking paint to them. She admitted that she had not done so. At the close of the trial, the Owners requested the jury instruction at issue in this appeal, relating to a tenant's obligation, under Baltimore City Housing Code Article 13, Section 902, to report certain conditions to the landlord. The trial court included the instruction in the middle of its longer instruction regarding the Baltimore City Housing code, stating as follows:
(Emphasis added).
On appeal, the Court of Special Appeals held that the facts of this case did not justify the instruction:
Barksdale v. Wilkowsky, 192 Md.App. 366, 384-85, 994 A.2d 996, 1007 (2010).
Recognizing the second step of an error analysis, the intermediate appellate court examined whether the error was harmless, by considering whether "the error was likely to have affected the verdict below":
Barksdale, 192 Md.App. at 385-86, 994 A.2d at 1007 (citations omitted) (emphasis added). The Court of Special Appeals thus affirmed the jury verdict despite the erroneous instruction.
The ultimate issue before this Court, presented as three different sub-issues, is whether the inclusion of the erroneous jury instruction in this case requires reversal of the jury verdict. "It has long been the policy in this State that this
We will examine, in turn, the two issues which often comprise the harmless error analysis: (1) whether the complaining party is entitled to any presumption of prejudice, and (2) how a party can satisfy its burden of showing prejudice. We will then apply these standards to the facts in this case.
The question of whether a complaining party is entitled to a presumption of prejudice is an important, and often dispositive, question. The test that courts have employed varies by the context of the case— civil or criminal—and by the type of error alleged. As the Second Federal Circuit has described, courts analyzing prejudice have looked to the degree to which the conduct of the trial has violated basic concepts of fair play. See Kyle v. United States, 297 F.2d 507, 514 (2nd Cir.1961). The Kyle court explained:
See Kyle v. United States, 297 F.2d 507, 514 (2nd Cir.1961).
We have previously justified this presumption of prejudice in the civil context on the need to provide for hearty review of trial errors. See Harris v. Harris, 310 Md. 310, 319-20, 529 A.2d 356, 360-61 (1987). In Harris, we considered the erroneous disqualification of one of the party's attorneys. In addressing whether that error was harmless, we relied on a presumption of prejudice due to the practical impossibility of proving prejudice:
Id.
Other than these limited circumstances, the burden to show error in civil cases is on the appealing party to show that an error caused prejudice. See Flores, 398 Md. at 33, 919 A.2d at 719; Greenbriar, 387 Md. at 740, 878 A.2d at 563; Crane, 382 Md. at 91, 854 A.2d at 1185; Beahm v. Shortall, 279 Md. 321, 330, 368 A.2d 1005, 1011 (1977); Klingensmith, Inc. v. Snell Landscape Contractor, Inc., 265 Md. 654, 662, 291 A.2d 56, 60 (1972); M.A. Realty Co. v. State Roads Comm'n, 247 Md. 522, 527, 233 A.2d 793, 797 (1967); State Roads Comm'n v. Kuenne, 240 Md. 232, 235, 213 A.2d 567, 568 (1965).
Although most of the harmless error analyses in civil law cases involve erroneous
Here, Barksdale has suggested, in novel arguments, that she should be entitled to a presumption of prejudice. First, Barksdale argues that a presumption should be afforded to "a statutorily protected class such as lead poisoned children[.]" Second, she contends that a defective jury instruction jeopardizes the constitutional guarantees of relief for injury, trial by jury, and due process, and therefore warrants a presumption of prejudice.
We have never recognized a presumption of prejudice from error based on the personal characteristics of the complaining party, and Barksdale has provided no meaningful support for her arguments for such a presumption.
Our determination that the complainant has the burden to prove prejudice does not resolve this dispute. Our inquiry then becomes: what is sufficient to show prejudice in a civil jury instruction error? The harmless error test is one for which Maryland courts, like many other jurisdictions, have declined to establish "precise standards." See Flores, 398 Md. at 33, 919 A.2d at 720; Beahm, 279 Md. at 331, 368 A.2d at 1011 ("Precise standards for the degree of prejudice required for reversal, have not been, and perhaps cannot be, established."). Instead, we have determined prejudice based on the facts of each individual case. See id.; State Deposit Ins. Fund Corp. v. Billman, 321 Md. 3, 17, 580 A.2d 1044, 1051 (1990) ("In determining whether [the error] prejudicially affected the outcome of a civil case, the appellate court balances the probability of prejudice from the face of the extraneous matter with the circumstances of the particular case[.]"). Although a certain amount of generality is needed to retain flexibility in application of the rule, we will examine how Maryland courts, and other courts, have made determinations on prejudice, in order to flesh out the analytical framework.
We have described the required showing of prejudice in multiple ways, alternatively
In some cases, the harmlessness of the error is readily apparent. For example, an error in evidence is harmless if identical evidence is properly admitted. See, e.g., Beahm, 279 Md. at 332, 368 A.2d at 1012 (erroneous admission, as substantive evidence, of non-treating physician's testimony was harmless error because same testimony was properly admitted from treating physician); Hollingsworth & Vose Co. v. Connor, 136 Md.App. 91, 134-35, 764 A.2d 318, 341-42 (2000) (error of admitting one expert's testimony was harmless because another expert's testimony, which was properly admitted, was substantially similar). Moreover, erroneous instructions can be harmless if the Court takes appropriate steps to cure that error. See, e.g., Kruszewski v. Holz, 265 Md. 434, 290 A.2d 534 (1972) (erroneous jury instruction was not prejudicial because trial judge gave clarifying instruction which was not objected to by either party).
Other cases have required a more flexible inquiry, involving factors that sometimes resemble the factors that justify a presumption in other contexts. In Safeway Stores v. Watson, 317 Md. 178, 183-84, 562 A.2d 1242, 1245 (1989), for example, we considered whether the wrongful sequestration of a civil corporate defendant's designated representative under former Md. Rule 2-513
Id. at 184, 562 A.2d at 1245-46. Examination of Safeway Stores and other cases suggests that there is a fine line between presuming prejudice due to the magnitude and importance of the error, and declaring that the burden has been met due to the materiality of the error and its relation to the issues in the case.
When prejudice is not readily apparent, a reviewing court must focus on the context and magnitude of the error. Maryland Rule 5-606 strictly limits a court's ability to inquire, post-verdict, into "the sworn juror's mental processes in connection with the verdict."
Fry v. Carter, 375 Md. 341, 825 A.2d 1042 (2003), demonstrates this point. In Fry, a highway construction worker was killed when a trucker, carrying roof trusses which protruded off the side of his vehicle, struck the construction worker on his head when driving by the construction site. The deceased workers' family brought suit against the truck driver for negligence. After the close of evidence, the judge gave an "unavoidable accident" instruction to the jury, over the objection of the plaintiff, stating as follows:
Id. at 346-47, 825 A.2d at 1045. The jury returned a verdict in favor of the defendant, and the case reached this court on the allegedly erroneous jury instruction.
On appeal, we analyzed a number of cases involving "unavoidable accident" instructions, we held that there was significant evidence of negligence in that case, and that "[g]iven evidence that the accident was not unavoidable, the trial court erred in instructing the jury on unavoidable accident." Id. at 355, 825 A.2d at 1050. The Fry Court then considered whether the error required reversal of the jury verdict, analyzing the injection of the "unavoidable accident" concept in the context of the case and concluding:
Id. at 356, 825 A.2d at 1050.
Our decision in Fry did not set forth a specific standard, nor did it create an automatic presumption of prejudice. Instead, Fry declares prejudicial those jury instructions which are "misleading" and "distracting," and "permit[] the jury to speculate as to [improper issues which may be dispositive]." Fry, 375 Md. at 356, 825 A.2d at 1050. More generally, Fry holds that a complainant must satisfy her burden regarding prejudice by showing the nature of the erroneous jury instruction and its relation to the issues in the case. A reviewing court can then weigh the materiality of the error and the potential that it poisoned the jury deliberations.
In some cases, when it is practically impossible for the court to separate the erroneous instruction from the issues in the case, the mere uncertainty as to prejudice may be grounds for holding an error is reversible. See Flores, 398 Md. at 35, 919 A.2d at 721 (describing the holding in
Reviewing the approaches of other federal and state courts, we see a similar focus on how the instruction interacted with the evidence in reviewing whether erroneous jury instructions were prejudicial. In Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224, 214 N.W.2d 672 (1974), a suit for damages brought by injured passengers in a taxi cab, the trial court used jury instructions containing a mix of the "reasonable care" standard, which was wrong, and the correct, higher standard of care required under Minnesota law for common carriers.
Id. at 677. See also LNC Invs. v. First Fid. Bank, N.A., 173 F.3d 454, 463 (2nd Cir.1999) (finding prejudice when the error was "integral to the standard of liability because it precluded a finding of causation[,] [and created] an erroneous impression regarding the standard of liability[.]"); Hathaway v. Coughlin, 99 F.3d 550, 554 (2nd Cir.1996) (in medical malpractice claim, erroneous instruction that finding of malpractice precluded finding of "deliberate indifference" was not harmless because it "[went] to the very heart of the plaintiff's claim, and effectively preclude[d] a finding of liability where one may be warranted."); Hendricks v. Coughlin, 942 F.2d 109, 113-14 (2nd Cir.1991) (failure to instruct jury that defendants could be liable if they recklessly disregarded plaintiff's rights was not harmless error because it went directly to plaintiff's claim).
Id. at 731.
We summarize the above discussion as follows: a party challenging an erroneous jury instruction in a civil case must demonstrate to the court why the error was prejudicial. An erroneous instruction may be prejudicial if it is misleading or distracting for the jury, and permits the jury members to speculate about inapplicable legal principles. See Fry, 375 Md. at 355, 825 A.2d at 1050. An error may also be prejudicial if the error, by itself, could have precluded a finding of liability where one was warranted. See LNC Invs., 173 F.3d 454. We have also recommended a non-exclusive, four-factor list for the reviewing court to consider. See Nat'l Medical Transp. Network, 72 Cal.Rptr.2d at 731. Moreover, in certain cases, the mere inability of a reviewing court to rule out prejudice, given the facts of the case, may be enough to declare an error reversible. See Traynor, supra at 64. The reviewing court, in considering these issues, should engage in a comprehensive review of the record, and base its determination on the nature of the instruction and its relation to the issues in the case.
We turn now to apply the above analysis and determine whether the error in this case was prejudicial or harmless. The trial court's error was the inclusion, in its jury instructions, of Section 902A of the Baltimore City Code, stated as follows:
At trial, the Owners requested Section 902A, describing it as "the provision[] of the code that talk[s] about tenant obligations as well." The Owners' counsel justified his request as such:
The Owner's counsel concluded that "it's only fair in the interest of completeness that all potentially applicable sections of the Housing Code be read." Barksdale's counsel disagreed, stating that the Owners were "trying to throw in a contributory negligence argument even though my client can't be contrib[utorily negligent]."
On review of this record, the Owners' request for the Section 902A instruction seems to be an outgrowth of their frustration with Maryland's regulatory scheme. It is undisputed that the issues in this case include neither contributory negligence by Barksdale nor a superseding cause of negligence by Barksdale's grandmother. Maryland law has determined that the responsibility of a landlord to protect children from lead paint poisoning is an important one, and thus does not allow the landlord to escape liability by blaming the child or her family. See, e.g., Caroline v. Reicher, 269 Md. 125, 304 A.2d 831 (1973) (parent's negligence in failing to prevent child from eating paint chips cannot be a superseding cause to landlord's negligence). In a case like this one, the correct jury instructions, as the Owners' counsel argued at trial, may fail to explore the tenant's failure to clean up chipping paint. In that sense, fairly or unfairly, Maryland has weighted the scale.
The Owners' request for a Section 902A instruction, however, is an impermissible counterweight. Although not explicitly a "superseding cause" or "contributory negligence" argument, it may have served the same purpose and had the same impermissible effect, i.e., to deflect liability to a third party. As the Owners' argument in favor of the instruction demonstrates, the reason for including the Section 902A instruction was to raise the following question with the jury: "if you saw chipping and flaking paint existing in the house[,] why didn't you clean it up?" The Section 902A instruction, sought by and argued for by the Owners, served no other purpose than to raise this impermissible insinuation.
The Section 902A instruction, therefore, touched on the heart of the case—determining who was responsible for Barksdale's injury—and may have had an insidious impact on the jury's thinking. Jury deliberations, which often address the technical application of law to established facts, are ultimately about apportioning blame, a process which involves the reactions, opinions, emotions, intuition, and reasoning of the jury members. In this process, jury instructions serve the vital purpose of enabling the jurors to sift and sort these varying and conflicting forces, and channel them into a deliberative pathway that leads to a verdict permitted by law. As we described above, the jury was prohibited by law from blaming Barksdale or her grandmother for contributory or superseding negligence, but inclusion of the Section 902A instruction may well have enticed them down that road. At the very least, we are unable to determine if the
The Owners argue instead that, even if the jury were to have found that Barksdale or her grandmother violated Section 902A, the jury instructions as a whole "did not direct or even suggest to the jury that any such finding was attributable to [Barksdale]" or that "the obligations of the landlord were relieved in any way by any action or inaction by [Barksdale's] grandmother with respect to keeping the premises clean, or that [Barksdale's] claim otherwise failed against the [Owners] due to her grandmother's actions or inactions." To be sure, the jury instructions contained other, appropriate, instructions, which, if understood correctly, could have negated any potentially preclusive implications of the Section 902A instruction.
We are not persuaded, however, by the theory of the Owners, who, having sought and argued in favor of such an instruction, now claim that their disputed instruction, once given, was meaningless and necessarily disregarded by the jury. We do not view the potential for prejudice as impermissible speculation or conjecture, as the Owners contend, nor will we assume that the jury followed the correct and contradictory instructions. With an error touching the heart of the litigation, we cannot be sure that the erroneous instructions were "cured" by the correct instructions when both were presented to the jury as equals.
Nor is "tangible evidence" required to show prejudice in this context, as the Owners assert. As we explained, there is no "tangible" proof of prejudice because we cannot read the minds of the jurors. This lack of knowledge was caused not by the failure of Barksdale to present evidence or make an argument regarding prejudice, but by the reality that the Court cannot determine whether the jury actually relied on the impermissible jury instruction. We conclude, therefore, that, Barksdale has carried her burden of showing prejudice.
BATTAGLIA, J., joins in the judgment only.
Kentucky Farm Bureau Mut. Ins. Co. v. Cook, 590 S.W.2d 875, 877 (Ky.1979) (footnote omitted).
In a civil tort case, application of any rule of civil procedure potentially leads to the denial of compensation. Thus, under Barksdale's theory, in which any denial of compensation disproportionately impacts a woman, a female tort plaintiff would be entitled to an entirely different set of rules than a male plaintiff. This result is clearly unsustainable under the very constitutional provisions invoked by Barksdale.
Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir.2007). See also Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1459 (9th Cir.1983) ("Just as the verdict in a civil case need only be more probably than not true, so an error in a civil trial need only be more probably than not harmless.").
