Brief Analysis of the Case
On October 24, 2011, in the case of Jackson v. Dackman Co. et al. (Md. App., 2011), the Court of Appeals of Maryland held that the immunity provisions of the Reduction of Lead Risk in Housing Act (“the Act"), which provide compliant landlords with qualified immunity from tort liability under specified circumstances, violate Article 19 of the Maryland Declaration of Rights (“Article 19”).
Article 19 generally protects two related rights: (1) a right to a remedy for an injury to one’s person or property and (2) a right of access to the courts. The Court interpreted Article 19 to prohibit unreasonable restrictions on traditional remedies or access to the courts.
The Court concluded that the substituted remedy under the Act for a child permanently brain damaged due to the child’s ingestion of lead-based paint in the rental property was totally inadequate and unreasonable to ameliorate the harm done. The Court also held that the unconstitutional provisions of the Act could be severed from the remainder of the Act leaving all other provisions unchanged.
Relevant Terms of the Reduction of Lead Risk in Housing Act
The Act defines the term “owner” to mean a person, firm, corporation, guardian, conservator, receiver trustee, executor or legal representative who, alone or jointly or severally with others, owns, holds, or controls the whole or any part of the freehold or leasehold interest to any property, with or without actual possession. The Act specifies that the term “owner” includes any vendee in possession of the property and any authorized agent of the “owner,” including, a property manager or leasing agent. An “affected property” means a property constructed before 1950 that contains at least one rental dwelling unit or any residential rental property for which the owner elects to comply with the Act. The term includes an individual dwelling unit within a multi-family rental dwelling. The Act defines a “person at risk” to mean a child or a pregnant woman who resides or regularly spends at least 24 hours per week in an affected property.
Impact of the Court’s Decision
The impact of the Court’s decision is that owners, authorized agents of owners and property managers are at an increased risk for liability resulting from an alleged injury or loss caused by the ingestion of lead by a person at risk. In other words, an affected person may sue an owner for an injury or loss and recover an amount exceeding $17,000 which was the maximum amount payable under the Act and is no longer applicable.
The Maryland Department of the Environment (“MDE”) issued a notice stating that the Lead Poisoning Prevention Program was not impacted by the ruling. Therefore, all laws requiring property owners to register pre-1950 properties and obtain lead inspection certificates remain in effect. The MDE intends to continue the regulatory program.
Property owners should continue to comply with all of the requirements of the Act. Property owners who "opt-in" to the program can continue to do so. As with pre-1950 properties, qualified immunity from tort liability no longer exists. Continuance of registration and performance of the risk reduction activities at each change in occupancy may assist in the demonstration of due care on the part of the property owner. Owners, authorized agents and property managers dealing with affected properties are urged to consult with their attorney to determine the appropriate course of action.