Berg v. Byrd12/4/1998
REPORTED
Appellees, Allen Byrd, Jr., by his mother, Carolyn Byrd, and Carolyn Byrd, individually, filed suit in the Circuit Court for Baltimore City against Max Berg, t/a National Realty Company, et al., appellants, claiming damages as a result of the minor plaintiff's exposure to lead paint. Appellants were owners and/or managers of the premises in which the minor plaintiff resided. The case proceeded to trial on theories of negligence and violation of the Consumer Protection Act (CPA), Md. Code Ann., Com. Law (CL), Title 13 (1975, 1990 Repl. Vol.). The damages claimed were non-economic in nature. The jury returned a verdict of $1,000,000 on the negligence count and $500,000 on the CPA count. Pursuant to Md. Code Ann., Cts. & Jud. Proc. (CJ), 11-108 (1974, 1997 Supp.), commonly known as the "cap statute," appellants moved to reduce the verdict. The trial court reduced the verdict on the negligence count to $350,000, pursuant to the statute, but declined to reduce the verdict on the CPA count. The court entered judgment in favor of appellees in the amount of $500,000, with the express statement that the total judgment should not exceed $500,000, to avoid duplication of recovery. Appellants filed a motion for new trial and, after it was denied, appealed to this Court. On appeal, we are asked to consider the novel question of when a personal injury claim brought under 13-408(a) of the CPA arises for purposes of applying the cap statute.
Facts
The minor plaintiff, Allen Byrd, Jr., was born on December 1, 1983. Allen first was evaluated for blood lead levels on July 29, 1987. At that time, his blood lead level was 41 micrograms per deciliter (mc/dl), a level in excess of the 25 mc/dl considered safe in 1987 and the 10 mc/dl considered safe at the time of trial. Appellees' expert, Howard Klein, M.D., opined that such a level meant that Allen had been exposed to lead paint weeks to months prior to July 29, 1987. Dr. Klein further opined that, as a result of such exposure, Allen suffered permanent neurological damage, manifesting in a loss of five to ten IQ points and a language disability.
At the time of the first blood lead level test on July 29, 1987, Allen was residing at 820 North Monroe Street, the premises owned and/or managed by appellants, and had been residing there since March 1, 1986. A lease for that premises had been executed in February, 1986.
Discussion
Appellants present a single issue: whether the trial court erred in refusing to reduce the verdict on the CPA count to $350,000. The answer to that issue depends on when the cause of action arose for purposes of CJ 11-108 because, by its express terms, CJ 11-108 applies only to actions that arise on or after July 1, 1986, the effective date of the statute.
Based on certain imprecise aspects of Dr. Klein's testimony and the inability to extend reasonable inferences to what the doctor did state, appellants argued below that they were entitled to a finding that appellees' claims arose after July 1, 1986, and, thus, the verdicts should be reduced in accordance with CJ 11-108. Appellees argued, with respect to both the negligence and CPA claims, that the evidence supported a finding that the minor plaintiff was exposed to lead paint from the inception of his occupancy of the leased premises on March 1, 1986, and that such exposure caused him injury from the very beginning. With respect to the CPA claim, appellees additionally argued that that claim arose at the time appellants made misrepresentations or omissions upon the signing of the lease in February, 1986, presumably with or without injury. The trial court made a finding of fact that the negligence cause of a
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