To every action there is always an equal and opposite reaction.
- Sir Isaac Newton’s Third Law of Motion
In October, the Maryland Court of Appeals issued a very disappointing ruling in the lead paint case of Jackson v. Dackman Co., which nullified a long-standing Maryland statute that granted qualified immunity from lead paint liability to $17,500.00 for rental property owners who took legislatively mandated steps to ensure that their properties were lead free. The Court’s decision was clearly inspired by the opinion that the compensation amount in the immunity provision was too low, but it failed to give any regard for the fact that the immunity only applied to owners who had substantial measures to ensure that their properties were lead free, and that owners who had not acted reasonably to eliminate lead paint from their properties were entitled to no immunity. The action taken by the Court in deciding the Dackman case set off a firestorm of debate, and it was only a matter of time before property owners, legislators, and other interested entities reacted to the decision with new ideas to protect property owners who complied with lead paint abatement laws.
Per today’s Baltimore Business Journal, one Maryland Legislator has reacted with a new legislative proposal. Delegate Maggie McIntosh of Baltimore City has proposed that a lead paint insurance fund be established by annually assessing rental property owners between $50.00 and $500.00 per property. In turn, the property owners would receive up to $200,000.00 in liability coverage by the fund in order to compensate victims of lead paint poisoning. Del.McIntosh’s proposal is not premised upon helping derelict property owners from avoiding liability. Rather, she recognizes that the Court’s Dackman decision removes the incentive to property owners to comply with lead abatement laws or, even worse, cease maintaining their properties all together and abandoning them, which would in turn cause a shortfall in affordable housing to low income families. It is envisioned that the Fund would still require property owners to comply with abatement procedures in order to receive coverage from the fund which, like the prior immunity provision, ensures that only responsible property owners receive protection. If passed, it is expected that the fund would take effect in July of 2013.
It is difficult to come up with a reasonable solution to the conundrum left by the Court of Appeals’ abolishment of the statutory immunity provision that would still provide similar protection to responsible property owners while not being cost adverse. Del. McIntosh’s proposal shows promise and, if nothing else, represents a solid first step in trying to mitigate the damage done by the Dackman decision.