Ellis v. Housing Authority

BATTAGLIA, J.,

concurring, in which ADKINS, J., joins.

I concur with the majority’s opinion in Brittany Ellis v. Housing Authority of Baltimore City that Brittany Ellis (Brittany) failed to prove substantial compliance with the notice requirements of the Local Government Tort Claims Acts (LGTCA) and also failed to prove good cause for not complying with the notice requirements, but I write separately to state that if reliance had been proven on a notice provided by the Housing Authority of Baltimore City (the Notice), which was attached as an exhibit to Brittany’s Opposition to the Housing Authority of Baltimore City’s (HABC) motion for summary judgment, I may have come to a different conclusion.

The Notice was what Brittany’s Opposition referenced as “HABC[’s] form warning of dangers of lead” signed by Carrie Ellis (Ms. Ellis), Brittany’s mother, on April 27, 1993,1 which *360directs a parent to inform the Housing Authority in the event of chipping, flaking, or peeling paint:

You should notify the Housing Authority and/or the landlord immediately if the unit in which you live has flaking, chipping or peeling paint, water leaks from faulty plumbing or defective roofs. You should cooperate with the Housing Authority and/or landlord’s efforts to repair any deficiencies and keep your unit in good shape. Don’t attempt any abatement work yourself. Scraping or sanding can create dust which could result in a greater risk of exposure. The use of heat or paint removers could create a vapor or fume which may cause poisoning if inhaled over a long period of time.
Whenever possible, the removal of lead-based paint should take place when there are no children and pregnant women on the premises.
Since your child can acquire lead paint from sources other than your home, you should continue to watch out for symptoms of lead poisoning.
YOUR ATTENTION TO POTENTIAL PROBLEMS CAN MINIMIZE EXPOSURE RISK
Remember that you as a parent play a major role in the prevention of lead poisoning. Your actions and awareness about the lead problem can make a big difference.

(emphasis in original). In the Circuit Court or this Court, Brittany did not allege that Ms. Ellis detrimentally relied on the Notice by only informing, through Brittany’s doctor, the HABC of a potential lead issue, rather than complying with the notice requirements of the LGTCA, and therefore, I agree with the majority’s assessment that Brittany did not substantially comply with the notice requirements of Section 5-304 of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2006 Repl.Vol., 2008 Supp.).

*361In raising this issue, I am concerned that the Housing Authority provided direction to tenants to respond in a specific manner to chipping, flaking, and peeling paint, omitting any reference to the requirements of the LGTCA. While our jurisprudence has not previously addressed the issue of whether a claimant can substantially comply with the notice requirements of the LGTCA when the local government provides written direction to the claimant to act in a manner different from those requirements, many of our sister courts have opined that the local government is estopped from asserting improper notice of claim as a defense under their respective Tort Claims Acts under similar circumstances. Cf., e.g., City of Montgomery v. Weldon, 280 Ala. 463, 195 So.2d 110, 111 (1967) (opining that the city of Montgomery was estopped from asserting improper notice of claim as a defense pursuant to former Title 37, Section 504, Alabama Code 19402 when a city official assured the plaintiff that he had “done all necessary to perfect and complete the claim” and the claimant relied on the official’s statement in not further pursuing the claim); Dambro v. Union County Park Comm’n, 130 N.J.Super. 450, 327 A.2d 466, 471 (1974) (concluding that a municipal corporation, Watchung, was estopped from asserting improper notice of claim as a defense under the notice provisions of the New Jersey Tort Claims Act, Section 59:8 of the New Jersey Statutes Annotated [1972],3 when the plaintiff relied on a *362statement by Watchung’s tax assessor that improperly informed the plaintiff which entity was to be served).

Good cause to waive the notice requirements also may have existed. To determine good cause, we consider “whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.” Rios v. Montgomery Cnty., 386 Md. 104, 141, 872 A.2d 1, 22 (2005) (citation and quotations omitted). We have previously opined that good cause exists when a government agent makes representations that a claimant reasonably relies on in not complying with the notice requirements and the local government is otherwise appraised with “sufficient information to permit it to make an investigation in due time sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.” See Moore v. Norouzi, 371 Md. 154, 179-80, 807 A.2d 632, 647 (2002), quoting Grubbs v. Prince George’s County, 267 Md. 318, 321, 297 A.2d 754, 756 (1972) (opining that good cause existed to excuse two claimants’ failure to comply with the notice requirements when the claimants notified the county’s independent contractor of their claims, which held itself out as the “claims administrator” and communicated with the parties regarding their claims). Similar to Moore, an ordinarily prudent person, relying on the representation made in the Notice provided by the HABC that a tenant should “inform the Housing Authority” of lead paint issues could reasonably determine that the only measure necessary to protect her *363rights after observing a potential lead hazard in her home is to so inform the HABC.

The absence of proof of reliance, however, leads me to concur in the opinion in Brittany’s case.

Judge ADKINS has authorized me to state that she joins this concurring opinion.

. Only one page of the Notice was attached as an exhibit in Brittany's Opposition filed in the Circuit Court because, according to Brittany’s *360brief filed in this Court, this was the only page found in the tenant file kept by the HABC on Ms. Ellis.

. Former Section 504, Alabama Code (1940) provided:

No recovery shall be had against any city or town, on a claim for personal injury received, unless a sworn statement be filed with the clerk, by the party injured, or his personal representative, in case of his death, stating substantially the manner in which the injury was received, and the day and time, and the place where the accident occurred, and the damages claimed.

This provision is currently codified at Section 11-47-192, Alabama Code (2013).

. Specifically, the county alleged non-compliance with Section 59:8-4 of the New Jersey Statutes Annotated (1972), which provided:

A claim shall be presented by the claimant or by a person acting on his behalf and shall include:
a. The name and post office address of the claimant;
*362b. The post-office address to which the person presenting the claim desires notices to be sent;
c. The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted;
d. A general description of the injury, damage or loss incurred so far as it may be known at the time of presentation of the claim;
e. The name or names of the public entity, employee or employees causing the injury, damage or loss, if known; and
f. The amount claimed as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.