Young v. Libby
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision:	1999 ME 139
Docket: 	Cum-99-47
Argued:	September 9, 1999
Decided:	October 1, 1999


Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, ALEXANDER, and CALKINS, JJ.

JOSEPH YOUNG et al.

v.

LOIS LIBBY, Personal Representative of the 
Estate of James D. Irwin et al.

CALKINS, J.

	[¶1]  Joseph and Catherine Young appeal from a denial of their motion
for judgment as a matter of law or for a new trial by the Superior Court,
(Cumberland County, Cole J.).  On appeal, they contend that no reasonable
jury could have found for the defendant, Lois Libby, and that the court
committed error when it refused their proposed jury instruction.  They
further claim that the court erred by allowing the testimony of Libby's
expert witness and by excluding other evidence.  We affirm the judgment.
	[¶2]  Joseph and Catherine Young initially brought this action on behalf
of themselves and their minor child, Laure, against James Irwin.{1}  Irwin
died soon after the suit was brought, and Libby, his widow, was substituted
as a party in her capacity as the personal representative of his estate. 
Subsequently, the trial court allowed the Youngs to add Libby as a defendant
in her individual capacity.  Although the complaint filed by the Youngs
contained various counts, the only claim remaining for trial was the
negligence claim on behalf of Laure.  That claim alleges that Irwin and Libby
knew or should have known about the existence of lead paint in the house
they rented to the Youngs; that they failed to disclose the existence of lead
paint; and that the failure to disclose caused injury to Laure.
	[¶3]  In September 1993 the Youngs and their family, including Laure
then nine months old, moved into a house in Portland owned by Irwin and
Libby.  The house was rented to the Youngs by Irwin and Libby through a
rent subsidy program, managed by the Portland Housing Authority (PHA).
Because of the rent subsidy program the house had to pass an inspection by
PHA.  The inspection included a review of the condition of every room.  The
house was inspected on September 15, 1993, when the previous tenant
moved out, and it did not pass inspection partly because of chipped and
peeling paint in the rooms.  Joseph Young and Irwin agreed that Young
would make the necessary repairs.  There was conflicting evidence as to
whether the Youngs moved into the house before September 24, 1993, the
date on which PHA certified that the house passed inspection and the date
on which the lease was signed by the Youngs.   According to the PHA
inspector all of the chipped and peeling paint had been repaired by the time
of the September 24 inspection.
	[¶4]  In October 1993 Laure had a routine medical examination by her
pediatrician, and a blood sample was drawn.  The lead level in Laure's blood
was 14 micrograms per deciliter of blood which is slightly above the
acceptable level of 10 micrograms per deciliter.  Laure had another blood
test in May 1994, and the lead level had risen to 21.  At that time the
pediatrician's office notified the Youngs and the Department of Health.   The
Director of the Portland Lead Poisoning Prevention Center did tests at the
house and determined the existence of lead, but the evidence is conflicting
as to the significance of the tests.  The Youngs moved Laure to the home of
an aunt for a brief period but moved her to another relative's home when the
presence of lead was detected at the aunt's home.  Periodic medical tests
continued to be done on Laure, and her lead level rose to a high of 42
micrograms per deciliter of blood in August 1994.
	[¶5]  Much of the evidence at trial concerning the cause of Laure's
elevated lead level in her blood and the effect of that lead level was
conflicting and contradicted.  Evidence was presented from which the jury
could have found that the existence of lead paint in a house does not make
that house a potential hazard for lead poisoning if the lead paint is covered
by two coats of nonlead paint, unless the nonlead paint is peeling.  There
was testimony that there were at least two coats of nonlead paint on all
surfaces in the house rented to the Youngs.  Evidence was presented that
there was no peeling or chipping paint and the paint was in satisfactory
condition during the time Laure lived in the house.  There was evidence
from which the jury could have inferred that Irwin and Libby knew about the
potential of lead paint poisoning in the house and evidence from which the
jury could have reached the opposite conclusion.  Likewise, there was
evidence that Laure was asymptomatic with little or no likelihood of long
term effects from the elevated lead levels, and evidence that she suffered
from a learning disability and moderate mental disability with a prognosis of
suffering long term effects.
	[¶6]  On the special verdict form submitted to the jury it found that
Irwin and Libby had not failed to disclose a hidden defect of which they had
knowledge or should have known.  Because of this finding the jury did not
reach the next question on the verdict form which was whether the failure
to disclose proximately caused injury to Laure.

I.  RULE 50 MOTION

	[¶7]  The Youngs argue that the court erred by not granting their
motion for judgment as a matter of law, or in the alternative, for a new trial.  
"Pursuant to M.R. Civ. P. 50(b), a party seeking judgment as a matter of law
after trial has the burden of establishing that the adverse jury verdict was
'clearly and manifestly wrong.'"  Maine Energy Recovery Co. v. United Steel
Structures, Inc., 1999 ME 31, ¶ 5, 724 A.2d 1248, 1250 (quoting
Townsend v. Chute Chem. Co., 1997 ME 46, ¶ 8, 691 A.2d 199, 202).  
	[¶8]  From the evidence presented to it, the jury was warranted in
finding that there was no hidden defect because the lack of peeling paint
and the two coats of nonlead paint sufficiently remedied any potential
problem posed by underlying lead paint.  In the alternative, the evidence
was sufficient to permit the jury to find that Irwin and Libby had no
knowledge of potential exposure to lead paint because of the two coats of
nonlead paint and the favorable inspection reports by the PHA inspectors. 
The Youngs have failed to demonstrate that the jury verdict was clearly and
manifestly wrong.{2}

II.  JURY INSTRUCTIONS

	[¶9]  The Youngs claim that the court erred in refusing to give their
proposed instruction to the jury.  The Youngs requested an instruction that a
landlord is required to make premises free from latent defects or hidden
conditions of which the landlord knew or should have known if the danger
posed to a child residing at the premises was foreseeable.  Instead of the
Youngs' proposed instruction, the trial court gave the following (in part):

	In this case, the Plaintiffs have claimed that . . . the
Defendants were negligent by failing to disclose a hidden defect.

	In order to return [a verdict] for such claim the Plaintiff
must show that the Defendant acted negligently.  And that such
negligence proximately caused the Plaintiff's injuries.

		. . . .

	They're further required to prove the Defendant knew or
should have known of the hidden defect and failed to disclose its
existence. . . .

	Landlords are not required to guarantee absolute safety of
their premises.  [Their] duty is to use ordinary, reasonable care
to insure that the premises are reasonably safeguarded against all
reasonably, foreseeable dangers in light of the total[ity] of the
circumstances.

	[¶10]  The Youngs' theory, as demonstrated by their proposed
instruction, is that a warning of a hidden defect to a young child is
meaningless and, therefore, the duty owed by the landlord, when the defect
is one that may harm a young child, is a duty to make the premises safe from
the defect.{3}  Parties are not entitled to a jury instruction which does not
correctly state the law.  See Michaud v. Steckino, 390 A.2d 524, 533-534
(Me. 1978) (holding that trial court did not err in refusing to give proposed
instruction that was legally incorrect).
	[¶11]  The instruction given by the court correctly states the law in
Maine that "a landlord is not liable to a tenant for personal injuries caused
by a defective condition in premises under the tenant's exclusive control"
unless one of the exceptions to that rule is applicable.  Nichols v. Marsden,
483 A.2d 341, 343 (Me. 1984).  The exception upon which the Youngs base
their original claim is that a landlord is liable when the landlord "fails to
disclose the existence of a latent defect which he knows or should have
known existed but which is not known to the tenant nor discoverable by him
in the exercise of reasonable care."  Id.
	[¶12]  We are not persuaded that the change in the common law as
requested by the Youngs is warranted.  The Youngs have not called to our
attention any jurisdiction in which a court has held that a landlord's duty is
to make the premises safe from lead paint or any other hidden defect when
the victim is too young for a warning to be effective.  Nor have the Youngs
provided an articulate basis for the necessity of such a change.  Furthermore,
the Maine Legislature has acted in this area by creating a statutory cause of
action for lead paint poisoning.  See 22 M.R.S.A. §§ 1314-A-1327 (1992 and
Supp. 1998).  Section 1324-A makes the owner of a dwelling liable for
damages as a result of lead paint poisoning when the owner has received
notice from the Department of Human Services and has not "removed,
replaced or securely and permanently covered" the lead-based substances
within 30 days.{4}  22 M.R.S.A. § 1321(3) (Supp. 1998).  The action of the
Legislature in providing for limited liability of landlords in lead paint
poisoning cases, the lack of supporting authority from other jurisdictions,
and the Youngs' failure to demonstrate the necessity for making a significant
change in the law are sufficient grounds for our reluctance to do so.  We
conclude that the Youngs were not entitled to their requested instruction,
and we further conclude that the instruction given by the court correctly
stated the law.

III.  EVIDENTIARY RULINGS

	[¶13]  The Youngs also contend that the trial court erred in admitting
the testimony of Dr. Blume, Libby's expert.  After a lengthy voir dire of
Dr. Blume, a medical doctor, out of the presence of the jury, the court found
that he was qualified to testify about lead levels in the blood and the effect of
elevated lead levels.  Dr. Blume testified before the jury that in his opinion
Laure's lead level would not significantly impact her development and that
any impact would be small and unobservable.  The Youngs contend that
Dr. Blume's testimony was not scientifically reliable and was not admissible
pursuant to M.R. Evid. 702.  The Youngs ignore the fact that Dr. Blume's
opinion concerned causation, a question that the jury did not reach because
it found no negligence on the part of Irwin and Libby.  Therefore, even if the
trial court abused its discretion in admitting Dr. Blume's opinion on the
effect of Laure's lead levels, an issue we do not decide, the error had no
effect on the outcome of the trial and no prejudicial effect on the Youngs. 
See M.R. Civ. P. 61.  
	[¶14]  The Youngs also object to Dr. Blume's testimony that lead is
found in many sources, not just paint.  Without objection, the same evidence
was admitted through one of the Youngs' experts.  Thus, an error, if any, in
admitting Dr. Blume's testimony about alternative sources of lead was
harmless.  See M.R. Civ. P. 61; see also Henriksen v. Cameron, 622 A.2d
1135, 1144 (Me. 1993) (holding that trial court's admission of hearsay
document was harmless error because it was cumulative).
	[¶15]  The Youngs' final contention on appeal is wholly without merit. 
They argue that the trial court excluded records and reports of PHA showing
violations of housing standards.  In fact, all but one of the offered documents
was admitted into evidence.  The Youngs have failed to demonstrate that the
exclusion of that one document affected their substantial rights in light of
the fact that the information contained in the document was testified to by
the inspector who prepared the document.  See M.R. Civ. P. 61.
	The entry is:
			Judgment affirmed.
Attorneys for plaintiffs:

Brita J. Forssberg, Esq., (orally)
John R. Coon, Esq.
Wright & Coon, P.A.
P O Box 7526
Portland, ME 04112

Attorneys for defendants:

Martha C. Gaythwaite, Esq., (orally)
Michelle Allott, Esq.
Friedman Babcock & Gaythwaite
P O Box 4726
Portland, ME 04112-4726

FOOTNOTES******************************** {1} . The Portland Housing Authority was also named a defendant, but its motion for summary judgment was granted. {2} . The Youngs have also failed to demonstrate they were entitled to a new trial. Unless the record contains no credible evidence to support the jury verdict, the denial of a motion for a new trial must stand. See Gammon v. Verrill, 651 A.2d 831, 833 (Me. 1994) (upholding denial of new trial motion because evidence did not compel a contrary finding by the jury). {3} . The trial began on September 8 and concluded on September 15, 1998. Prior to trial the Youngs filed proposed jury instructions which included a negligence instruction very similar to the instruction actually given at trial. It was not until September 14, 1998, that the Youngs requested the instruction which they now contend should have been given. {4} . The Youngs agree that they have no cause of action under this statute.