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HEADNOTE: Janay Barksdale v. Leon Wilkowsky, et al., No. 66, September Term, 2010. CIVIL PROCEDURE--JURY INSTRUCTIONS--HARMLESS ERROR--In a lawsuit by a tenant against her former landlord for negligence resulting in injuries from lead paint poisoning, the trial court gave an instruction regarding the joint responsibilities of landlords and tenants in keeping the property in good condition. This inclusion of this instruction was error, because neither the plaintiff's contributory negligence nor negligence of her family members were at issue in the case. This error was prejudicial, because it introduced into the jury deliberations the idea that the plaintiff, or her family, could have also been to blame for the injuries. This argument was not only irrelevant to the case, but prohibited by law and policy. When the defendant introduces an impermissible argument through jury instructions, it is not "harmless" merely because it was introduced indirectly, or because it was contradicted by other, correct, jury instructions. The inclusion of the argument may have permitted the jury to speculate or precluded a finding of liability where it was otherwise appropriate.

Circuit Court for Baltimore City Case No. 24-C-06-010732

IN THE COURT OF APPEALS OF MARYLAND No. 66 September Term, 2010

JANAY BARKSDALE v. LEON WILKOWSKY, et al.

Bell, C.J., Harrell Battaglia Greene Murphy Adkins Barbera, JJ.

Opinion by Adkins, J. Battaglia, J., joins in the judgment only.

Filed:

May 23, 2011

In this lead paint case, we revisit the standard for determining "harmless error" in a civil case involving a faulty jury instruction. The Petitioner, Janay Barksdale, sued the owners of her childhood home (the "Owners"), alleging injuries from lead paint on the premises. At trial, the Owners questioned Barksdale's grandmother whether she had ever notified them of flaking and peeling paint in Barksdale's home. The Owners then requested a jury instruction indicating that a person's failure to report flaking paint to the landlord is evidence of negligence. The trial court gave the instruction, even though the grandmother's negligence was not attributable to Barksdale, and Barksdale herself was too young to have any duty to report. The jury issued a verdict in favor of the Owners. On appeal, the Court of Special Appeals upheld the jury verdict. It held that the jury instruction was erroneous, but also harmless. Barksdale sought review from this Court on a number of issues. We granted certiorari to review the following questions, all involving the issue of "harmless error" from an erroneous jury instruction: 1) Whether the Court of Special Appeals correctly interpreted [and applied1] the harmless error standard for a substantive jury instruction as enunciated by the Court of Appeals? 2) Whether the Court of Special Appeals' interpretation of the harmless error standard for a substantive jury instruction is incorrect for a statutorily protected class such as lead poisoned children? 3)
1

Whether the Court of Special Appeals' interpretation and

In the petition for writ of certiorari, Barksdale presented two separate issues regarding (1) the Court of Special Appeals's interpretation of the standard and (2) the Court of Special Appeals's application of that standard. We have combined them here for the sake of brevity.

application of the harmless error standard for a substantive jury instruction is constitutional? We shall hold that the inclusion of the erroneous jury instruction was not harmless error, and reverse the judgment of the Court of Special Appeals. FACTS AND LEGAL PROCEEDINGS Janay Barksdale lived with her grandmother at 2440 West Baltimore Street (the "Property") for eleven years, from her birth in 1988 until her grandmother moved in 1999. Later, as a teenager, Barksdale was diagnosed with "mild mental retardation," with a low IQ score and impaired senses. These impairments have limited her ability to read, her verbal language abilities, and her mathematical reasoning. Barksdale attended school through the sixth grade, later working briefly at a fast food restaurant. She has expressed an interest in becoming a medical assistant, security guard, or computer technician. According to expert testimony, however, it would be extremely difficult for Barksdale to "obtain and maintain competitive employment" due to these impairments. Seeking redress for these injuries, Barksdale initiated the current suit, naming the Owners as defendants.2 Barksdale alleged that, during her residence in the Property, she was exposed to chipping and peeling lead paint that caused her permanent mental injury. She alleged that the Owners never inspected the property or notified their tenants of the potential dangers of lead-based paint. Barksdale introduced medical records demonstrating that she

The property was owned by G&S Real Estate, whose two partners, Stewart Sachs and Ronald Greenwald, were also named as defendants. The original complaint included Leon Wilkowsky as a defendant, but he was dismissed from the case prior to trial. 2

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had elevated blood levels as a child, and expert testimony linking those blood levels to her current impairments. Yet, Barksdale was able to present only limited evidence of lead paint in the Property. After she and her grandmother moved out of the house, the Property sat vacant, until being purchased and "gut rehab[bed]" by a new owner in 2005. This owner replaced all interior walls and old window frames, and did not test for lead paint. Thus, there was no scientific record of the paint that existed during Barksdale's residency. Instead, Barksdale

commissioned a test of the property on August 8, 2008, which revealed lead-based paint at one location

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