Fairness for lead-paint victims

Landlords are again trying to evade responsibility for children poisoned in their buildings

March 06, 2013|By Saul E. Kerpelman

In October 2011, the Court of Appeals, Maryland's highest court, struck down provisions of the Reduction of Lead Risk in Housing Act that gave landlords immunity from being sued in some circumstances when children were poisoned by lead based paint in their properties. The court left intact the safety provisions of the act that require landlords statewide to meet certain minimum safety standards with respect to lead based-paint hazards.

The court said that the immunity provisions were unconstitutional because they denied brain-damaged children their day in court and denied them a remedy for their injuries. Now, the landlords are back in force in the legislature this session, seeking again to take away children's rights.

House Bill 754 would reinstate, with minor changes, the immunity system struck down by the court. A child would still be forced to take a legislatively mandated settlement or get nothing and be barred from suing the landlord, and the maximum amount the child may receive would be $100,000.

This would impose the lowest damage cap in the United States. No other state imposes a damage cap lower than $250,000, and many have caps in the millions. Many have no damage cap.

The law limits damages from pain and suffering to a mere $2,500 per year spent in a bad house (ignoring the lifetime of anguish and struggle resulting from permanent brain injury), and allows economic damages of $11,727 for each 1 point of IQ loss resulting from the child's brain damage, up to the maximum.

While every other injured plaintiff in Maryland enjoys a damage cap of $700,000 for pain and suffering and no cap on economic losses — such as lost earning capacity or medical expenses — a lead-poisoned child would receive, at most, a total of $100,000 for all damages.

The landlords are also pushing House Bill 923, which would again only apply to lead-poisoned children and would require a child to file a "qualified expert certificate" before being allowed to use the court system to investigate their case.

Part of the right of access to the courts includes an injured child's right to request the use of the courts' powers to inspect properties, take witness statements, subpoena records and otherwise gather evidence. HB 923 would require a child to immediately produce an expert witness to support the case but would deny the child the constitutionally guaranteed means to prove the case to the expert in the first place. A child who could not prove his or her case without the court's assistance would simply have the case thrown out.

What is the need for these bills, other than letting politically powerful landlords off the hook for having poisoned children — children who are themselves virtually powerless politically?

Landlords say they cannot get insurance. Yet a Maryland Insurance Administration work group this past fall reported that only "small" landlords are going uninsured; medium and large operation landlords generally are insured, and there is an available market for insurance. The work group reported that small landlords are uninsured not because insurance is unavailable but because these landlords feel insurance is too expensive or they are "unable" to pay for it.

Landlords also say that unless they are granted immunity for their wrongdoing, they will abandon the market and there will be less affordable housing.

Are we really so eager to keep properties on the market when their owners are not willing to make sure that those properties are safe for children to live in as the law requires? Landlords have been threatening to abandon the affordable housing market since at least the 1960s, when they were opposing the passage of Baltimore City's Housing Code. And perhaps we would be well rid of a landlord who will only promise to obey the law under an offer of immunity. Why do they need immunity if they plan on obeying the law and making the house safe?

Both HB 754 and HB 923 are disgraceful attempts to unjustly limit the rights of innocent children who have suffered permanent brain damage. Landlords who are unwilling or unable to make their properties safe for children should not be renting out those properties. If they do, and a child is injured, the landlord should be made to pay, just as any wrongdoer must under Maryland law. And the injured child should have the same rights as every other citizen of the state — even if they are poor and live in the inner city.

Saul E. Kerpelman, an attorney in Baltimore, has advocated for lead-poisoned children for over 30 years. He was a member of the Maryland Insurance Administration Workgroup on Lead Liability Protection. His email is saul_kerpelman@yahoo.com.

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