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Childs v. Purll

September 8, 2005


Appeal from the Superior Court of the District of Columbia (CA-1546-00) (Hon. Cheryl M. Long, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge.

Argued March 8, 2005

Before WASHINGTON, Chief Judge,*fn1 and TERRY and GLICKMAN, Associate Judges.

This is an appeal from an award of summary judgment to the defendants in an action for damages on account of lead poisoning. We reverse the judgment in part and remand for further proceedings.


Between December 1991 and October 1995, appellants Marcella Childs and her two minor children, Tiffany Childs and Robbie Davis, resided as tenants in an apartment at 1411 Ridge Place in Southeast Washington, D.C. The property was owned by appellees Samuel and Kathy Purll and managed by appellee Willoughby Real Estate Company ("Willoughby"). Appellants' lease agreements identified Willoughby as the landlord and lessor and listed each member of the Childs family by name as an occupant of the premises. It was stated in the leases that Tiffany and Robbie were one and three years old, respectively, at the start of the tenancy in 1991. In August 1993, midway through the tenancy, tests revealed that the two children had elevated levels of lead in their blood -- in other words, they had lead poisoning.

Attributing her children's lead poisoning to their exposure to lead-based paint at 1411 Ridge Place, Marcella Childs filed suit against the Purlls, Willoughby, and the management company's three principals*fn2 in February 2000. Her voluminous complaint*fn3 charged each defendant with negligence in failing to eradicate a lead paint hazard that persisted on the walls and other surfaces throughout the premises, failing to prevent the paint from chipping, peeling and flaking, and failing to warn her of the resulting dangers -- "thereby rendering the dwelling unsafe and dangerous, and unfit for human habitation, especially for children of tender years." The complaint further asserted that, for leasing the dwelling in a grossly defective and unreasonably dangerous condition, the defendants were strictly liable without regard to negligence. In addition, the complaint alleged that the defendants had violated the Consumer Protection Procedures Act*fn4 by misrepresenting that appellants' apartment complied with the District of Columbia Housing Regulations despite the fact that it contained "flaking, loose or peeling paint or plaster, or lead-based paint accessible to children."

As a consequence of the defendants' actions, Ms. Childs alleged, her children had ingested lead-based paint and paint dust and, as a result, had suffered permanent brain damage and other serious injuries for which they were entitled to compensation. Ms. Childs also sought compensation for herself for the anguish she had suffered watching her children undergo painful drug tests and therapy, the expenses she had incurred for their medical care, and the loss of her children's services. Along with compensatory damages, the complaint requested punitive damages and, under the Consumer Protection Procedures Act, treble damages and reasonable attorneys' fees.

Following a lengthy period of discovery, the defendants moved for summary judgment on multiple grounds. Appellants failed to file a timely opposition to the motions. Four weeks after the filing deadline had passed, appellants' counsel moved for an additional fifteen days to submit an opposition. Although the trial court granted the request, appellants then filed nothing by the extended deadline. After three more weeks in which appellants were not heard from, the court issued an opinion and order on the morning of November 7, 2003, granting the motions for summary judgment on their merits.*fn5 The court ruled that appellants' negligence causes of action failed for lack of evidence that the defendants had notice of any lead paint hazard in appellants' dwelling, that District of Columbia law does not impose strict liability on a landlord or its agents for leasing property in a hazardous condition, and that appellants' Consumer Protection Procedures Act claims are precluded because the Act is not applicable to landlord-tenant relations and does not authorize the award of damages for personal injuries of a tortious nature. The court further ruled that the individual Willoughby defendants could not be held personally liable to appellants, inasmuch as "their actions were no more than those of an employee of the corporation" and the evidence did not justify "piercing the corporate veil." Finally, the court ruled that there was no evidence of willful, reckless or malicious conduct such as would be necessary to support appellants' claims for punitive damages, and that District of Columbia law does not recognize a parent's cause of action for loss of services of a minor child.

On the same day the trial court issued its decision, appellants moved to late file their opposition to summary judgment, asserting without explanation that they had not met the extended filing deadline due to "inadvertence, excusable neglect and/or circumstances beyond Plaintiffs' control." The following week, appellants filed a supplemental motion asking the court to reconsider its order of summary judgment pursuant to Superior Court Civil Rules 59 and 60 (b). Appellants' counsel averred that he had been prevented from filing a timely opposition by "circumstances beyond his control," though he did not explain what those circumstances were.

The trial court treated the motion for reconsideration together with appellants' belated opposition to summary judgment as a request for relief under Rule 60 (b)(1)*fn6 -- even though, the court stated, "plaintiffs' counsel has done little to explain why the opposition was filed two months after it was originally due and almost one month after the extension deadline expired" -- and denied the request on January 30, 2004. Adhering to its initial rulings, the court found that appellants still had demonstrated no genuine issues of material fact that would enable them to overcome the defendants' motions for summary judgment.*fn7


In this court, appellants contend that the trial court erred in rejecting their negligence and Consumer Protection Procedures Act claims and their effort to hold Willoughby's owner and officers personally liable. Appellants do not challenge the trial court's other rulings on summary judgment.

"In reviewing a trial court's grant of summary judgment, we make an independent review of the record and employ the same standards as does the trial court in initially considering the motion." Croce v. Hall, 657 A.2d 307, 309-10 (D.C. 1995). We therefore must determine whether the party awarded summary judgment demonstrated that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. We view the record ...

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