Kennedy Krieger Inst., Inc. v. Partlow

Kennedy Krieger Institute, Inc. v. Ashley Partlow, No. 82, September Term, 2017
NEGLIGENCE – DUTY OF CARE – FACTORS GUIDING CONSIDERATION OF
DETERMINING WHETHER DUTY EXISTS UNDER COMMON LAW –
SPECIAL RELATIONSHIP – CLASS OF POTENTIAL PLAINTIFFS – Court of
Appeals held that duty of care exists in limited circumstances where: (1) medical research
institute knows of presence of child, who is not participant in research study concerning
lead-based paint abatement of property, who resides at property that is subject to research
study during participant child’s enrollment in study; (2) medical research institute has
signed consent agreement with parent or guardian for participant child’s enrollment in
research study and both participant and non-participant children reside at property subject
to study; (3) medical research institute knows or should know of presence or suspected
presence of lead in property; (4) medical research institute determined level of lead-based
paint abatement for property; and (5) non-participant child who resided at property during
research study was allegedly injured by being exposed to lead at property. Court of
Appeals held that, under circumstances of case, medical research institute owed plaintiff
duty of care under common law.
Court of Appeals determined that holding is based on consideration of seven classic factors
that Court has set forth for guidance in determining whether duty exists under common
law—namely, foreseeability of harm to plaintiff, degree of certainty that plaintiff suffered
injury, closeness of connection between defendant’s conduct and injury suffered, moral
blame attached to defendant’s conduct, policy of preventing future harm, extent of burden
to defendant and consequences to community of imposing duty, and availability, cost, and
prevalence of insurance for risk involved. Factors weighed strongly in favor of imposing
duty on medical research institute. Court of Appeals determined that imposing such duty
did not create indeterminate class of potential plaintiffs.
Additionally, Court of Appeals held that, reviewing record in light most favorable to
plaintiff, and construing against medical research institute any reasonable inferences that
may be drawn from facts, there was sufficient evidence that medical research institute had
special relationship with non-participant child plaintiff to submit issue to trier of fact, i.e.,
jury.
Circuit Court for Baltimore City
Case No. 24-C-09-008243
Argued: May 8, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 82
September Term, 2017
______________________________________
KENNEDY KRIEGER INSTITUTE, INC.
v.
ASHLEY PARTLOW
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Opinion by Watts, J.
Barbera, C.J., McDonald and Getty, JJ., dissent.
______________________________________
Filed: August 13, 2018
2018-08-13
12:04-04:00
This case concerns the important question of whether a duty of care extends from a
medical research institute to a child, who was not a participant in a research study that
sought to investigate the effectiveness of lead-based paint abatement measures,1 but who
the medical research institute knew resided in a property subject to the research study along
with a family member participating in the study, and who was allegedly injured by
exposure to lead. If the answer to this question is “yes,” then a child who was not a
participant in the research study but who the medical research institute knew resided in the
property with a participant of the research study, would have an opportunity for recourse
in the event of an alleged injury, as the medical research institute would owe that child a
duty of care. To prevail, such a person would, of course, still need to establish the other
three elements of negligence, i.e., a breach of the duty of care, “a legally cognizable causal
relationship between the breach of duty and the harm suffered, and damages.” Kiriakos v.
Phillips, 448 Md. 440, 456, 139 A.3d 1006, 1016 (2016) (cleaned up). If the answer to the
1
In Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 36 & n.2, 782 A.2d 807, 811
& n.2 (2001), we characterized this study as “a nontherapeutic research program” and
explained the difference between therapeutic research and nontherapeutic research as
follows:
At least to the extent that commercial profit motives are not
implicated, therapeutic research’s purpose is to directly help or aid a patient
who is suffering from a health condition the objectives of the research are
designed to address—hopefully by the alleviation, or potential alleviation, of
the health condition.
Nontherapeutic research generally utilizes subjects who are not
known to have the condition the objectives of the research are designed to
address, and/or is not designed to directly benefit the subjects utilized in the
research, but, rather, is designed to achieve beneficial results for the public
at large (or, under some circumstances, for profit).
question is “no,” then a child who was not enrolled in the research study but who was
allegedly injured would not have the ability to pursue a claim for negligence against the
medical research institute, despite any purported injury. Thus, we must determine whether
a duty of care exists under the circumstances.
Before we answer this significant question, we briefly set the stage. From 1993 to
1999, Kennedy Krieger Institute, Inc. (“KKI”), Petitioner, conducted a “Lead-Based Paint
Abatement and Repair and Maintenance Study” (“the R&M Study”) to investigate the
effectiveness of various levels of repair and maintenance interventions, i.e., lead-based
paint abatement methods, in reducing exposure to lead in houses and reducing children’s
blood-lead levels. Shortly after the R&M Study concluded, in Grimes v. Kennedy Krieger
Inst., Inc., 366 Md. 29, 48-56, 63, 782 A.2d 807, 819-24, 828 (2001), this Court discussed
the R&M Study at length, and held that a trial court erred in granting KKI’s motions for
summary judgment in two cases in which the plaintiffs were child participants in the R&M
Study by consent agreements. We explained:
Such research programs[, e.g., the R&M Study,] normally create special
relationships and/or can be of a contractual nature, that create duties. The
breaches of such duties may ultimately result in viable negligence actions.
Because, at the very least, there are viable and genuine disputes of material
fact concerning whether a special relationship, or other relationships arising
out of agreements, giving rise to duties existed between KKI and both sets of
[plaintiff]s, we hold that the [trial c]ourt erred in granting KKI’s motions for
summary judgment in both cases . . . . Accordingly, we vacate the rulings of
the [trial court] and remand the[] cases to that court for further proceedings[.]
Id. at 48, 782 A.2d at 819. Stated otherwise, in Grimes, id. at 48, 782 A.2d at 819, this
Court concluded that a duty of care may exist between KKI and a participant in the R&M
Study. In Grimes, id. at 113, 782 A.2d at 858, this Court concluded “that, under certain
-2-
circumstances, [consent] agreements can, as a matter of law, constitute ‘special
relationships’ giving rise to duties, out of the breach of which negligence actions may
arise[,]” and “that, normally, such special relationships are created between researchers and
the human subjects used by the researchers.”
In this case, Ashley Partlow (“Ashley”), Respondent, filed in the Circuit Court for
Baltimore City (“the circuit court”) a complaint against KKI alleging negligence and
violations of the Baltimore City Housing Code and the Maryland Consumer Protection
Act. Unlike the plaintiffs in Grimes, however, Ashley was not a participant in the R&M
Study, which only included children aged six months to four years. In May 1994, when
Ashley’s mother, Jacqueline Martin, completed an eligibility questionnaire for the R&M
Study, Ashley was five years old, and was ineligible to be a participant. In May 1994,
Ashley’s younger sister, Anquenette Partlow (“Anquenette”), who was two years old,
became a participant in the R&M Study through a consent form signed by Martin.
Although Ashley was not a participant in the R&M Study, she lived in the subject property
with her family, including Anquenette, during her younger sister’s participation in the
R&M Study.
In response to Ashley’s complaint, KKI filed various motions for summary
judgment, including one concerning the claim for negligence, arguing that it did not owe a
legal duty to Ashley because Ashley was not a participant of the R&M Study and it did not
own, lease, or operate the subject property. Following a hearing, the circuit court issued
an order granting the motions for summary judgment. In a memorandum opinion, the
circuit court concluded that KKI did not owe Ashley a duty of care, and that the researcher-
-3-
subject duty that this Court recognized in Grimes did not extend to Ashley. The circuit
court also ruled that KKI did not owe Ashley a duty of care under the Baltimore City
Housing Code, and that Ashley had failed to allege facts sufficient to support a claim for
violation of the Maryland Consumer Protection Act.
Ashley appealed. In an unreported opinion, the majority of a panel of the Court of
Special Appeals reversed the circuit court’s grant of summary judgment in KKI’s favor as
to Ashley’s negligence claim, concluding that a “special relationship created by the R &
M Study encompassed her as well as her sister.” Ashley Partlow v. Kennedy Krieger Inst.,
et al., Nos. 44 and 530, Sept. Term, 2015, 2017 WL 4772626, *1 (Md. Ct. Spec. App. Oct.
23, 2017). The Court of Special Appeals held that KKI owed Ashley a duty of care under
the common law, stating “that KKI owed to Ashley the same duty of care it owed to R &
M Study participants who lived in the same dwelling pursuant to the same lease
agreement.” Id. at *7, *9. The Court of Special Appeals held, however, that the circuit
court properly granted summary judgment as to the claims for violations of the Baltimore
City Housing Code and the Maryland Consumer Protection Act. See id. at *9, *10. The
Honorable Stuart R. Berger dissented as to the holding that KKI owed Ashley a duty of
care under the common law, and concurred with the majority’s holdings that the circuit
court properly granted summary judgment on the claims for violations of the Baltimore
City Housing Code and the Maryland Consumer Protection Act. See id. at *10 (Berger, J.,
concurring and dissenting).
KKI filed a petition for a writ of certiorari, raising one issue: “Whether the [Court
of Special Appeals], relying on Grimes, erred in imposing a duty on [KKI] to an individual
-4-
who was not enrolled in the research study at issue[.]” This Court granted the petition. See
Kennedy Krieger Inst. v. Partlow, 457 Md. 398, 178 A.3d 1242 (2018).
In Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 415, 879 A.2d 1088, 1092-
93 (2005), we explained duty of care and the determination of whether a duty exists as
follows:
Duty is an obligation, to which the law will give recognition and
effect, to conform to a particular standard of conduct toward another. There
is no set formula for the determination of whether a duty exists. We have
applied a foreseeability of harm test, which is based upon the recognition that
duty must be limited to avoid liability for unreasonably remote
consequences. We also have looked at the relationship of the parties.
At its core, the determination of whether a duty exists represents a
policy question of whether the plaintiff is entitled to protection from the
defendant.
(Cleaned up). And, in Kiriakos, 448 Md. at 486, 139 A.3d at 1033-34, we set forth “the
classic factors we use to decide questions of duty under the common law”:
the foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered the injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the availability,
cost[,] and prevalence of insurance for the risk involved.
(Cleaned up); see also Doe, 388 Md. at 416, 879 A.2d at 1093 (This Court set forth the
same factors, characterizing them as a “non-exhaustive list for balancing the policy
considerations inherent in the determination of whether a duty exists[.]”).
Against this backdrop, we hold that a duty of care exists in the limited circumstances
where: (1) a medical research institute knows of the presence of a child, who is not a
-5-
participant in a research study concerning lead-based paint abatement of a property, who
resides at a property that is subject to the research study during a participant child’s
enrollment in the study; (2) the medical research institute has signed a consent agreement
with a parent or guardian for a participant child’s enrollment in the research study and both
the participant and non-participant children reside at a property subject to the study; (3) the
medical research institute knows or should know of the presence or suspected presence of
lead in the property; (4) the medical research institute determined the level of lead-based
paint abatement for the property; and (5) the non-participant child who resided at the
property during the research study was allegedly injured by being exposed to lead at the
property. Put plainly, under the circumstances of this case, KKI owed Ashley a duty of
care under the common law. Our holding is based on the balance of the factors set forth in
Kiriakos for determining the existence of a duty under the common law, as consideration
of those factors weighs heavily in favor of imposing a duty on KKI to Ashley, and imposing
a duty of care on KKI does not create an indeterminate class of potential plaintiffs exposing
KKI to unending liability. Additionally, irrespective of the establishment of a duty under
traditional tort analysis, the circuit court erred in granting summary judgment in KKI’s
favor because there was sufficient evidence of a special relationship between KKI and
Ashley to submit the issue to the trier of fact.
BACKGROUND
The R&M Study
From 1993 to 1999, KKI, a research organization associated with The Johns
Hopkins Hospital, Johns Hopkins University, Johns Hopkins University School of
-6-
Medicine, and Johns Hopkins University School of Public Health (together, “Johns
Hopkins”), conducted the R&M Study to investigate the use of lead-based paint abatement
measures in reducing exposure to lead in houses. In Grimes, 366 Md. at 36-37, 782 A.2d
at 811-12, we provided the following overview of the R&M Study:
[KKI] created a nontherapeutic research program whereby it required certain
classes of ho[us]es to have only partial lead paint abatement modifications
performed, and in at least some instances, . . . arranged for the landlords to
receive public funding by way of grants or loans to aid in the modifications.
[KKI] then encouraged, and in at least one [instance], required, the landlords
to rent the premises to families with young children. In the event young
children already resided in one of the study houses, it was contemplated that
a child would remain in the premises, and the child was encouraged to
remain, in order for his or her blood to be periodically analyzed. In other
words, the continuing presence of the children that were the subjects of the
study was required in order for the study to be complete. . . .
The purpose of the research was to determine how effective varying
degrees of lead paint abatement procedures were. Success was to be
determined by periodically, over a two-year period of time, measuring the
extent to which lead dust remained in, or returned to, the premises after the
varying levels of abatement modifications, and . . . by measuring the extent
to which the theretofore healthy children’s blood became contaminated with
lead, and comparing that contamination with levels of lead dust in the houses
over the same periods of time.
(Footnote omitted).2
2
In Grimes, id. at 120, 782 A.2d at 862, as to whether the R&M study was, indeed,
“nontherapeutic[,]” in response to a motion for reconsideration, we clarified:
In the Opinion, we said at one point that a parent “cannot consent to the
participation of a child . . . in nontherapeutic research or studies in which
there is any risk of injury or damage to the health of the subject.” As we
think is clear from Section VI of the Opinion, by “any risk,” we meant any
articulable risk beyond the minimal kind of risk that is inherent in any
endeavor. The context of statement was a non-therapeutic study that
promises no medical benefit to the child whatever, so that any balance
(Continued...)
-7-
The R&M Study was approved by the Johns Hopkins University Joint Committee
on Clinical Investigation, an Institutional Review Board. See id. at 38-39, 782 A.2d at 813.
Mark R. Farfel, Sc.D., who was the director of KKI’s Lead Abatement Research
Department throughout the R&M Study, testified at a deposition in one of the cases
consolidated in Grimes that the R&M Study was specifically “designed to do less” than
“full lead paint abatement” in older houses in Baltimore “in order to find out if more
practical approaches had advantages” and that loan amounts for repairs were limited. The
purpose of the R&M Study was to specifically determine the “short and long-term efficacy
of full lead-paint abatement and more practical and lower cost Repair and Maintenance []
interventions for reducing levels of lead in residential house dust which in turn should
reduce lead in children’s blood.” According to Dr. Farfel, KKI conducted the R&M Study
to determine the impact of completing lead-based paint abatement work that was less than
either complete lead-based paint removal or “enclosure, isolation[.]”
The R&M Study divided participating properties into five test groups, each group
consisting of twenty-five houses. See Grimes, 366 Md. at 50, 782 A.2d at 820. Of those
five test groups, Groups 1, 2, and 3 “consisted of houses with a considerable amount of
lead dust present therein and each group received assigned amounts of maintenance and
between risk and benefit is necessarily negative. As we indicated, the
determination of whether the study in question offered some benefit, and
therefore could be regarded as therapeutic in nature, or involved more than
that minimal risk is open for further factual development on remand.
(Internal quotation marks and ellipsis in original). In light of this clarification, we use the
phrase “nontherapeutic” research study only in recounting what this Court stated in Grimes.
-8-
repair.” Id. at 50-51, 782 A.2d at 820 (footnote omitted). Group 4 consisted of houses
that, at one time, had lead-based paint present, but that had received a supposedly complete
abatement of lead dust. See id. at 51, 782 A.2d at 820. And, Group 5 consisted of modern
houses that had never had lead dust present. See id. at 51, 782 A.2d at 820. The goal of
the R&M Study “was to analyze the effectiveness of different degrees of partial lead paint
abatement in reducing levels of lead dust present in” the houses in the different groups,
and, ultimately, “to find a less than complete level of abatement that would be relatively
safe, but economical, so that Baltimore landlords with lower socio-economical rental units
would not abandon the units.” Id. at 51, 782 A.2d at 820-21.
Groups 1, 2, and 3 were the experimental groups of the R&M Study, and properties
in Groups 1, 2, and 3 received different levels of repair and maintenance, with properties
in Group 1 receiving a minimal level of repair and maintenance with costs capped at
$1,650, properties in Group 2 receiving a greater level of repair and maintenance with costs
capped at $3,500, and properties in Group 3 receiving an even greater level of repair and
maintenance with costs capped between $6,000 and $7,000. See id. at 52-53, 782 A.2d at
821-22. In Grimes, id. at 53, 782 A2d at 822, we explained the differences of repair and
maintenance among Groups 1, 2, and 3:
Repair & Maintenance Level I interventions were capped by [the
Department of Housing and Community Development (“DHCD”)] at $1,650
and included wet-scraping of peeling and flaking lead-based paint and paint
of unknown composition on all interior surfaces, including walls, trim, and
doors; repainting of treated surfaces; installation of window well caps;
repainting of all exterior window trim, repainting of all interior window sills;
vacuuming of all horizontal surfaces and window components with a high
efficiency particulate (HEPA) vacuum; and wet cleaning all horizontal
surfaces. Level II interventions were capped by DHCD at $3,500 and
-9-
included all the elements of Level I intervention plus two key additional
elements: use of sealants and paints to make floors smoother and more easily
cleanable, and in-place window and door treatments to reduce abrasion of
lead-painted surfaces. Level III interventions were capped by DHCD at
$6,000-$7,000 and added window replacement and encapsulation of exterior
door trim with aluminum, and the use of coverings on some floors and stairs
to make them smooth and more easily climbable.
(Footnote omitted).
With respect to properties in Groups 1, 2, and 3, measurements of children’s blood-
lead levels, lead dust, lead in the soil, and lead in the drinking water were to be taken at
certain points in time:
Measurements of lead in the blood of the children and vacuum dust
samples from the houses were to be obtained at the following times: pre-
intervention, immediately post intervention, and one, three, six, twelve,
eighteen, and twenty-four months post intervention. Measurements of lead
in the exterior soil were to be obtained at pre-intervention, immediately post
intervention, and twelve and twenty-four months post intervention.
Measurements of lead in drinking water were to be obtained at pre-
intervention, and twelve and twenty-four months post intervention.
Additionally, the parents of the child subjects of the study were to fill out a
questionnaire at enrollment and at six-month intervals.
Grimes, id. at 53-54, 782 A.2d at 822.
The key requirement for properties that were to be a part of Groups 1, 2, and 3 was
the presence, or suspected presence, of lead in the property. Testifying at deposition, Dr.
Farfel described the requirements that applied to the occupants of properties enrolled in the
R&M Study:
For the family participant side, we were looking for families that
obviously were willing to cooperate with the study by signing informed
consent statements. We were looking for families that had at least one child
under the age of 48 months and older than five months at the start of the
study. These children were not to be mentally retarded or severely
handicapped in any way that would limit their physical movement. . . . We
- 10 -
asked the families if they had any immediate plans to move. If they did, then
they weren’t eligible because we were interested in following the family over
a period of years.
Put simply, the key requirement with respect to occupants of the properties was the
presence of young children in a certain age group who would occupy the properties for a
period of years.
To entice property owners to permit their properties to be used in the R&M Study,
“and in return for limiting their tenants to families with young children, KKI assisted the
landlords in applying for and receiving grants or loans of money to be used to perform the
levels of abatement required by KKI for each class of ho[us]e.” Id. at 52, 782 A.2d at 821.
KKI visited properties to obtain consent from the parents to measure the blood-lead levels
of the young children. KKI did so by having parents sign a “Clinical Investigation Consent
Form.” The Clinical Investigation Consent Form signed by Ashley’s mother for Ashley’s
sister’s enrollment in the R&M Study provided boilerplate language setting forth the
“purpose” of the R&M Study and its “benefits”:
PURPOSE OF STUDY:
As you may know, lead poisoning in children is a problem in Baltimore City
and other communities across the country. Lead in paint, house dust and
outside soil are major sources of lead exposure for children. Children can
also be exposed to lead in drinking water and other sources. We understand
that your house is going to have special repairs done in order to reduce
exposure to lead in paint and dust. On a random basis, ho[us]es will receive
one of two levels of repair. We are interested in finding out how well the
two levels of repair work. The repairs are not intended, or expected, to
completely remove exposure to lead.
We are now doing a study to learn about how well different practices work
for reducing exposure to lead in paint and dust. We are asking you and over
one hundred other families to allow us to test for lead in and around your
- 11 -
ho[us]es up to 8 times over the next two years provided that your house
qualifies for the full two years of study. Final eligibility will be determined
after the initial testing of your ho[us]e. We are also doing free blood lead
testing of children aged 6 months to 7 years, up to 8 times over the next two
years. We would also like you to respond to a short questionnaire every 6
months. This study is intended to monitor the effects of the repairs and is not
intended to replace the regular medical care your family obtains.
***
BENEFITS:
To compensate you for your time answering questions and allowing us to
sketch your ho[us]e we will mail you a check in the amount of $5.00. In the
future we would mail you a check in the amount of $15 each time the full
questionnaire is completed. The dust, soil, water, and blood samples would
be testified for lead at [KKI] at no charge to you. We would provide you
with specific blood-lead results. We would contact you to discuss a summary
of house test results and steps that you could take to reduce any risks of
exposure.
As we summarized in Grimes, id. at 55-56, 782 A.2d at 823-24, the basic parameters
of the R&M Study were as follows:
KKI conducted a study of five test groups of twenty-five houses each. The
first three groups consisted of houses known to have lead present. The
amount of repair and maintenance conducted increased from Group 1 to
Group 2 to Group 3. The fourth group consisted of houses, which had at one
time lead present but had since allegedly received a complete abatement of
lead dust. The fifth group consisted of modern houses, which had never had
the presence of lead dust. The twenty-five ho[us]es in each of the first three
testing levels were then to be compared to the two control groups: the twenty-
five ho[us]es in Group 4 that had previously been abated and the 25 modern
ho[us]es in Group 5. The research study was specifically designed to do less
than full lead dust abatement in some of the categories of houses in order to
study the potential effectiveness, if any, of lesser levels of repair and
maintenance.
. . . [I]t would benefit the accuracy of the test, and thus KKI, the compensated
researcher, if children remained in the houses over the period of the study
even after the presence of lead dust in the houses became evident.
- 12 -
(Footnote omitted).
This Case
The Property
From 1982 to 1992, Lawrence Polakoff owned a house located at 1906 East Federal
Street in Baltimore City (“the Property”). In 1992, Polakoff transferred ownership of the
Property to CFOD-2 Limited Partnership, a limited partnership that had an entity known
as Chase Management, Inc. as its general partner. Polakoff is the president of Chase
Management, which took care of the day-to-day operations and management of the
Property. According to Polakoff, he was solicited by KKI, and volunteered the Property
to be a part of the R&M Study.
In December 1993, KKI hired an outside contractor to test the Property for the
presence of lead-based paint and lead dust. The Property tested positive for the presence
of lead-based paint throughout the house, at a multitude of locations. The Property also
tested positive for the presence of lead dust throughout the house. According to Dr. Farfel,
both the testing for lead-based paint and lead dust qualified the Property for the R&M
Study, and the Property was deemed structurally sound. Once it qualified for the R&M
Study, the Property was randomly assigned to Level II intervention, i.e., Group 2. As such,
the cost of repairs was capped at $3,500. In a letter dated April 12, 1994, a company named
Environmental Restorations, Inc. sent Polakoff a “Lead Paint Abatement/Construction
Proposal” proposing repairs totaling $3,500 that were “designed to remove or encapsulate
certain lead[-]based painted surfaces within the [P]roperty.” Polakoff gave approval for
the repairs in that amount to be done, and the repairs were completed sometime shortly
- 13 -
thereafter.
Ashley
On December 10, 1988, Ashley was born. From birth until 1994, Ashley resided
with her mother, Martin, at various properties. At some point in 1994, Martin and her
friend, Catina Higgins, learned that the Property was available to rent. According to
Martin, when the women asked about renting the Property, they were advised that, as part
of the rental application, they would need to provide their children’s blood-lead level test
results. According to Martin, after she asked why blood-lead level test results were needed,
the management office responded that it was required because the Property was “lead-free”
and that either $7,000 or $17,000 worth of repairs had been done on the Property.
On May 13, 1994, Martin and Higgins signed a lease, renting the Property. The
lease stated that the following individuals would reside at the Property: Higgins, Martin,
Myron Higgins (identified as a “child”),3 Ashley (identified as a “child”), and Anquenette
(identified as a “child”). Shortly after the lease was signed, all five individuals—the two
women and three children—moved into the Property. At that time, Ashley was five years
old and Anquenette was two years old.
According to Martin, shortly after moving into the Property, she met with a KKI
representative, completed a questionnaire, and agreed to send Ashley and Anquenette to
KKI to have their blood drawn. The questionnaire was completed on May 24, 1994. The
Higgins’s son, Myron, was one of the plaintiffs in Grimes, 366 Md. at 47, 61-65,
3
782 A.2d at 818, 827-31, and his allegations in that case were based on his residency at the
Property during the same time that Ashley resided at the Property.
- 14 -
questionnaire was designed to be used by a KKI representative to determine whether a
household would or would not be eligible for participation in the R&M Study. The
questionnaire that Martin completed appears to have been filled in by a KKI representative;
Martin’s signature is not on the questionnaire, but the KKI representative’s initials are.
According to the questionnaire, Martin indicated that one child between the ages of six
months and four years lived in the Property, and she provided Anquenette’s information,
including her date of birth. Significantly, as part of the questionnaire, the KKI
representative asked Martin to identify the name, age, sex, and race of each occupant of
the Property. According to the questionnaire, Martin identified herself, Higgins, Ashley,
Myron, and Anquenette, and indicated the respective ages of the individuals, including that
Ashley was five years old.4 On May 24, 1994, the same day that Martin answered questions
for the eligibility questionnaire, Martin enrolled Anquenette in the R&M Study by signing
a Clinical Investigation Consent Form.
At a deposition, as part of this case, Martin testified about the circumstances
surrounding leasing the Property and blood-lead level testing of her children:
[MARTIN:] I asked if we didn’t -- if the doctors didn’t -- if they didn’t get
the lead levels, what would be -- would we still be able to rent the house.
They said no.
4
The questionnaire contained the following question: “How many people live in this
household?” The number “05” is written into the two boxes provided next to the question.
The questionnaire next stated: “For each person, please tell me that person’s first name,
age, sex and race. Please start with the oldest member of the household and work down to
the youngest.” The questionnaire provided numbered lines and boxes next to each line for
the representative to record the name, sex, age, and race of each identified occupant.
Ashley’s information is listed on the third line, after Higgins’s and Martin’s, and Ashley is
identified as female, five years old, and “Black/Afr-Am (Non-Hispanic)” according to the
code provided in the box for race.
- 15 -
[JOHNS HOPKINS’S COUNSEL:] Okay. And who said that?
[MARTIN:] The representative at the rental office.
[JOHNS HOPKINS’S COUNSEL:] Okay. That was when they asked --
when they said we need to get your children’s lead levels?
[MARTIN:] Yes.
[JOHNS HOPKINS’S COUNSEL:] And you said if I don’t get them, can I
rent and --
[MARTIN:] If they didn’t receive the kids’ lead levels, we wouldn’t be able
to move in.
Martin also testified that someone in the management office told her that the
Property was “lead-free” before she moved in, but that Polakoff told her that the basement
had lead-based paint in it. Martin testified that she believed that KKI was testing Ashley
and Anquenette to ensure that their blood-lead levels were safe, and denied knowing that
the family was participating in the R&M Study:
[W]hen [KKI] came to the house, they -- when they asked me did I want my
kids to go to [KKI] to get their lead levels taken, which I thought would be a
good gesture, a good thing to make sure my kids didn’t -- did not have lead,
that’s how I took it. I didn’t know -- she never mentioned to me by word of
mouth that it was a study. . . . So I -- I’m feeling as a parent that, okay, I live
in a lead-free house. Now, here is [KKI] telling me, okay, we’re going to
monitor your kids to -- we’re going -- we’re taking them to [KKI]. We’re
drawing their blood. We’re getting their lead levels to show you they have
safe lead levels. That was my end take on it. I wasn’t told that it was – they
were – they were being part of a study[.]
In a letter dated June 24, 1994, one month after Anquenette was enrolled in the
R&M Study, KKI notified Martin and Higgins that dust in the Property had been tested for
lead on May 17, 1994, that the chart included in the letter indicated the areas where dust
- 16 -
was collected, and that an asterisk was placed “next to areas where the amount of lead was
higher than might be found in a completely renovated house.” The letter also advised:
“Remember there is no rule for how much lead is allowed in the dust from a house like
yours.” In the letter, KKI stated that dust had been collected from various locations
throughout the first and second floors of the Property; no asterisk appeared next to any of
the locations, thereby indicating that the amount of lead in the dust was not “higher than
[what] might be found in a completely renovated house.”
On September 14, 1994, KKI sent Martin and Higgins an identical letter, except that
the letter had an asterisk indicating that the dust collected from “Floor” in “Rooms without
windows” on the first floor of the Property contained an “amount of lead [that] was higher
than might be found in a completely renovated house.” On February 7, 1995, KKI sent
another letter, this one indicating that the amount of lead collected in the dust from the
“Floor” in “Rooms with windows” on the second floor of the Property “was higher than
might be found in a completely renovated house.” In all three letters, KKI stated that any
areas marked with an asterisk should be given “special attention when [] cleaning the
house.”
During her tenancy at the Property, KKI maintained records on Ashley, including
blood-lead level test results and a “Lead Poisoning Questionnaire” completed by a KKI
representative on November 9, 1994, that detailed Ashley’s residential history, hand-to-
mouth activity, diet, “behavior and symptoms[,]” social history, and past medical history.
(Cleaned up). As the circuit court noted, Ashley was treated at KKI, but not because she
was a participant of the R&M Study. At a motions hearing, Ashley acknowledged that she
- 17 -
was seen at KKI because she was referred there through the Baltimore City Health
Department. Nonetheless, the Lead Poisoning Questionnaire informed of Ashley’s
residence at the Property, and a blood-lead level report dated November 9, 1994 included
the handwritten notation “In R&M House” on the upper-right portion of the page,
indicating that KKI was aware that Ashley resided in a property subject to the R&M Study.
Martin, Ashley, Anquenette, Higgins, and Myron resided at the Property from May
1994 until some point in February 1995. According to Chase Management’s records, on
or about February 16, 1995, the two women and their three children moved out of the
Property.
Circuit Court Proceedings
On December 9, 2009, Ashley filed in the circuit court a complaint against KKI and
others,5 alleging, in relevant part, negligence, lack of informed consent, common law fraud
and intentional misrepresentation, additional grounds for punitive damages, violation of
the Baltimore City Housing Code, and violation of the Maryland Consumer Protection Act.
According to Ashley, KKI was responsible for her exposure to lead at the Property based
on Anquenette’s enrollment in the R&M Study. Ashley alleged that KKI “controll[ed] the
decisions about the scope of the repairs[,] the manner and means of repairs[,] and the level
of interventions to be performed” at the Property.
After the filing of the complaint and answers by defendants, KKI filed various
motions for summary judgment, including a motion for summary judgment as to
5
In addition to KKI, Ashley named seventeen other defendants, including Johns
Hopkins. Ashley ultimately dismissed her claims against of the defendants except KKI.
- 18 -
negligence. In the motion, KKI argued that it did not owe a duty to Ashley because: (1)
Ashley was not a participant of the R&M Study; and (2) KKI did not own, lease, or operate
the Property, and was not involved with Ashley’s residence there. In an accompanying
memorandum of law, KKI asserted that it had no duty to Ashley arising from a researcher-
subject relationship because Ashley was not enrolled in the R&M Study. KKI also
maintained that Ashley’s negligence claim failed because there was no evidence that she
suffered any injury resulting from exposure to lead at the Property. Ashley filed an
opposition to the motion for summary judgment as to negligence, contending that her lack
of participation in the R&M Study was of no consequence as to whether KKI owed her a
duty of care. Ashley argued that KKI owed her a duty of care for several reasons, including
that KKI knew that she was residing at the Property and that she was going to be exposed
to lead there.
On February 13, 2015, the circuit court conducted a hearing on the various motions,
including KKI’s motion for summary judgment as to negligence. At the conclusion of the
hearing, the circuit court took the matter under advisement. On February 19, 2015, the
circuit court issued an order granting KKI’s motions for summary judgment, including the
motion for summary judgment as to negligence.
On March 24, 2015, the circuit court issued a memorandum opinion explaining the
reasons for the order. The circuit court concluded that KKI owed Ashley no duty of care,
and, that “[t]he researcher-subject duty recognized in Grimes [] does not extend to []
Ashley[,]” and that KKI, therefore, was entitled to judgment as a matter of law as to the
counts for negligence, lack of informed consent, common law fraud/intentional
- 19 -
misrepresentation, and additional grounds for punitive damages. The circuit court
analogized this case to two cases in which this Court had “declined to extend tort duties to
plainly foreseeable victims of alleged negligence[,]” specifically, Dehn v. Edgecombe, 384
Md. 606, 865 A.2d 603 (2005), and Doe, 388 Md. 407, 879 A.2d 1088. In Dehn, 384 Md.
at 610-11, 865 A.2d at 605-06, a medical malpractice case, this Court held that a wife did
not have an independent cause of action against her husband’s primary care physician for
alleged medical malpractice where, following the husband’s vasectomy, the wife became
pregnant. In Doe, 388 Md. at 409, 412, 419-20, 879 A.2d at 1089, 1090-91, 1095, a
certified question of law from the United States Court of Appeals for the Fourth Circuit,
this Court held that an employer did not owe a duty to an employee’s spouse where, after
the employee became infected with HIV-2 while handling the virus at work, the couple had
unprotected intercourse, and the wife also became infected with HIV-2.
The circuit court recognized that, unlike this case, where Ashley’s alleged exposure
to lead “at the same time as her sister Anquenette[,]” both Dehn and Doe “involved
sequential events[,]” in which the alleged injury to the plaintiffs occurred subsequently, as
a result of contact with their husbands. Nonetheless, according to the circuit court, in both
Dehn and Doe, the essential factor was the relationship giving rise to the duty and the fact
that neither plaintiff had a direct relationship with either defendant who was alleged to have
owed a duty. The circuit court found Dehn and Doe controlling, and ruled that the
researcher-subject duty recognized in Grimes did not apply in this case. The circuit court
ruled that KKI did not owe Ashley a duty of care under the Baltimore City Housing Code,
concluding that the Baltimore City Housing Code imposed duties only on owners and
- 20 -
operators of residential properties, as those terms were defined in the code, and that KKI
was neither an owner nor operator of the Property for purposes of the code. The circuit
court also ruled that Ashley had failed to allege facts sufficient to support the claim for
violation of the Maryland Consumer Protection Act.
Appellate Proceedings
Ashley appealed. On October 23, 2017, in an unreported opinion, the majority of a
panel of the Court of Special Appeals reversed the circuit court’s grant of summary
judgment as to negligence, concluding that “the special relationship created by the R & M
Study encompassed her as well as her sister[,]” but affirmed the circuit court’s grant of
summary judgment as to the Baltimore City Housing Code and the Maryland Consumer
Protection Act claims. Partlow, 2017 WL 4772626, at *1, *9-10. Relying on Grimes, the
Court of Special Appeals held that KKI owed Ashley a duty of care under the common
law, and “that KKI owed to Ashley the same duty of care it owed to R & M Study
participants who lived in the same dwelling pursuant to the same lease agreement.” Id. at
*7, *9. The Court of Special Appeals explained:
Ashley argues [] that the same circumstances that gave rise to the special
relationship in Grimes include her as well. And we agree that under the
circumstances they do, because the terms of the R & M Study determined the
condition of the ho[us]e for all who lived there during the period of the
operative lease, whether they participated directly in the R & M Study or not.
It is not Ashley’s mere status as a sibling that brings her within the Grimes
duty—it is the fact that the terms of the Study, as they bound her mother and
sister and landlord, drove the presence of lead in her environment and
exposed her to the same lead to which it exposed Anqu[e]nette.
Partlow, 2017 WL 4772626, at *8.
The Court of Special Appeals acknowledged that Ashley was not a participant in
- 21 -
the R&M Study, but concluded that being a participant was not dispositive as to the issue
of whether a duty of care existed, explaining:
[W]e find it incongruous, and ultimately untenable, to say that, on the one
hand, KKI owed a duty of care to Ashley’s sister because it controlled the
environment in which she was exposed to lead but, on the other hand, that it
owed no duty to another child who lived in the same dwelling pursuant to the
same lease and who was exposed to the same lead environment defined—
and this is the key—by the terms of the same Study. Put another way, the
structure and terms of the Study brought Ashley within the Study
environment (defined and bounded by the lease agreement her mother
entered with the participating landlord) and exposed her to the same hazards
on the same terms as her Study-participant sister. Were it not for the R & M
Study, the duty to maintain a safe and habitable environment for tenants
would lie solely with the landlord. In this setting, though, and as Grimes
recognized, the intervention of research motivations and protocols influenced
the environment in which Anqu[e]nette and Ashley lived, and that may have
resulted in toxic exposure to lead.
Partlow, 2017 WL 4772626, at *9 (emphasis omitted). The Court of Special Appeals
distinguished Dehn and Doe, stating that, in those cases, the wives’ “secondary exposure
fell outside the special relationship between the alleged tortfeasor and their husbands,”
whereas, in this case, “Ashley allege[d] that she was exposed to lead directly, through the
same modality as her Study-participant sister, in the same environment that the Study
controlled.” Partlow, 2017 WL 4772626, at *9. Judge Berger concurred and dissented.
See id. at *10 (Berger, J., concurring and dissenting).
Thereafter, KKI filed a petition for a writ of certiorari, which this Court granted on
February 5, 2018. See Partlow, 457 Md. 398, 178 A.3d 1242.
DISCUSSION
The Parties’ Contentions
KKI contends that that the Court of Special Appeals erroneously relied on Grimes
- 22 -
in holding that it owed a duty of care to Ashley. KKI argues that it did not have a “direct
relationship” with Ashley, who was not enrolled in the R&M Study, and that,
notwithstanding the foreseeability of the harm alleged, a duty must be premised on the
existence of a “direct relationship” between a plaintiff and a defendant. KKI asserts that
Grimes is distinguishable from this case because Ashley did not participate in the R&M
Study, KKI never obtained informed consent from Martin for Ashley to participate, and
KKI alleged that it did not monitor Ashley, gather information about her, or treat her for
lead exposure or injuries. KKI maintains that the Court of Special Appeals impermissibly
expanded Grimes to create a duty between KKI and any individual who lived in a property
with an R&M Study participant, creating an indeterminate class of potential plaintiffs to
whom a duty would extend. According to KKI, it was inconsistent for the Court of Special
Appeals to hold that KKI owed Ashley a duty under the common law while at the same
time not finding a duty arising under the Baltimore City Housing Code.6
Ashley responds that that the circumstances of this case demonstrate that a duty of
care is warranted because KKI knew that the Property contained lead and knew that
Ashley—then a child—was residing in the Property and that she would be exposed to lead
in the same manner and under the same conditions as her sister. Ashley asserts that there
is no logical basis on which to distinguish between her and her sister for purposes of
determining whether KKI owed a duty. Ashley maintains that, in determining whether a
duty of care exists in personal injury cases, Maryland courts focus on the foreseeability of
6
Johns Hopkins and the Maryland Hospital Association, Incorporated filed amicus
briefs in support of KKI.
- 23 -
the harm, not on the existence of a “direct relationship” between the plaintiff and defendant.
Ashley contends that, in personal injury cases, a “direct relationship” is not required for a
duty to exist. Ashley argues that, instead, courts examine a set of factors, including, among
other things, the foreseeability of harm to a plaintiff, as well as the degree of certainty that
the plaintiff suffered the injury.
Ashley asserts that, even if a relationship between a plaintiff and defendant is
required to establish a duty of care, she and KKI had such a relationship. Ashley maintains
that duties created by the special relationship between KKI and her sister should be
extended where KKI knew that she was being exposed to the same hazard and knew the
exposure extended to a minor child who was vulnerable to the toxin at issue. Ashley argues
that recognizing the existence of a duty in this case does not create an indeterminate class
of potential plaintiffs because only a limited number of individuals are in the same position
as she is—namely, children who KKI knew would be exposed to the exact same danger as
the R&M Study participants. Ashley asserts that Dehn, Doe, and Gourdine v. Crews, 405
Md. 722, 955 A.2d 769 (2008), are distinguishable because those cases involved sequential,
attenuated events where the injured person was not directly exposed to a negligent act.
Standard of Review
In Chateau Foghorn LP v. Hosford, 455 Md. 462, 482, 168 A.3d 824, 835 (2017),
we explained that we review without deference a trial court’s grant of summary judgment
and set forth the following applicable standard of review:
A court may grant summary judgment in favor of the moving party if the
motion and response show that there is no genuine dispute as to any material
fact and that the party in whose favor judgment is entered is entitled to
- 24 -
judgment as a matter of law.
The question of whether a trial court’s grant of summary
judgment was proper is a question of law subject to de novo
review on appeal. In reviewing a grant of summary judgment
under Maryland Rule 2-501, we independently review the
record to determine whether the parties properly generated a
dispute of material fact, and, if not, whether the moving party
is entitled to judgment as a matter of law. We review the record
in the light most favorable to the nonmoving party and construe
any reasonable inferences that may be drawn from the facts
against the moving party.
(Cleaned up). And, in Doe, 388 Md. at 414, 879 A.2d at 1092, this Court stated that “[t]he
existence of a legal duty is a question of law, to be decided by the court.” (Citations
omitted).
Law
Negligence and Duty of Care
To state a claim of negligence in Maryland, a plaintiff must establish the following
four elements: “a duty owed to him [or her] (or to a class of which he [or she] is a part), a
breach of that duty, a legally cognizable causal relationship between the breach of the duty
and the harm suffered, and damages.” Kiriakos, 448 Md. at 456, 139 A.3d at 1016 (cleaned
up). Because “[t]here can be no negligence where there is no duty that is due[,]” an analysis
as to negligence usually begins “with the question of whether a legally cognizable duty
exi[s]ts.” Doe, 388 Md. at 414, 879 A.2d at 1092 (cleaned up).
We have described “duty” for purposes of negligence as “an obligation, to which
the law will give recognition and effect, to conform to a particular standard of conduct
toward another.” Dehn, 384 Md. at 619, 865 A.2d at 611 (cleaned up). As we have
- 25 -
recognized, “the determination of whether a duty exists represents a policy question of
whether the plaintiff is entitled to protection from the defendant.” Doe, 388 Md. at 415,
879 A.2d at 1093 (citation omitted). In Kiriakos, 448 Md. at 486, 139 A.3d at 1033-34,
we set forth “the classic factors we use to decide questions of duty under the common law”:
the foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered the injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the extent of the
burden to the defendant and consequences to the community of imposing a
duty to exercise care with resulting liability for breach, and the availability,
cost[,] and prevalence of insurance for the risk involved.
(Cleaned up).
Importantly, “[i]n cases involving personal injury, the principal determinant of duty
becomes foreseeability.” Doe, 388 Md. at 416, 879 A.2d at 1093 (cleaned up). In Jacques
v. First Nat’l Bank of Md., 307 Md. 527, 534-35, 515 A.2d 756, 759-60 (1986), we
explained:
In determining whether a tort duty should be recognized in a particular
context, two major considerations are: the nature of the harm likely to result
from a failure to exercise due care, and the relationship that exists between
the parties. Where the failure to exercise due care creates a risk of economic
loss only, courts have generally required an intimate nexus between the
parties as a condition to the imposition of tort liability. This intimate nexus
is satisfied by contractual privity or its equivalent. By contrast, where the
risk created is one of personal injury, no such direct relationship need be
shown, and the principal determinant becomes foreseeability.
(Cleaned up). Nevertheless, “[a]lthough foreseeability is perhaps [the] most important
among the[] factors, it alone does not justify the imposition of a duty.” Kiriakos, 448 Md.
at 486, 139 A.3d at 1034 (cleaned up).
- 26 -
Grimes
In Grimes, 366 Md. at 47-48, 56, 63, 782 A.2d at 818-19, 824, 828, we held that
trial courts erred in granting KKI’s motions for summary judgment in two cases in which
the plaintiffs were children who had been enrolled in the R&M Study through consent
agreements and who allegedly developed elevated blood-lead levels while participating in
the study. We explained:
Such research programs[, e.g., the R&M Study,] normally create special
relationships and/or can be of a contractual nature, that create duties. The
breaches of such duties may ultimately result in viable negligence actions.
Because, at the very least, there are viable and genuine disputes of material
fact concerning whether a special relationship, or other relationships arising
out of agreements, giving rise to duties existed between KKI and both sets of
[plaintiff]s, we hold that the [trial c]ourt erred in granting KKI’s motions for
summary judgment in both cases . . . . Accordingly, we vacate the rulings of
the [trial court] and remand the[] cases to that court for further proceedings[.]
Id. at 48, 782 A.2d at 819. In Grimes, id. at 113, 782 A.2d at 858, this Court concluded
“that, under certain circumstances, [consent] agreements can, as a matter of law, constitute
‘special relationships’ giving rise to duties, out of the breach of which negligence actions
may arise.”
In Grimes, id. at 38, 782 A.2d at 812-13, we were critical of the R&M Study,
explaining that “it was anticipated that the children, who were the human subjects in the
program, would, or at least might, accumulate lead in their blood from the dust, thus
helping the researchers to determine the extent to which the various partial abatement
methods worked.” We observed that “[t]here was no complete and clear explanation in the
consent agreements signed by the parents of the children that the research to be conducted
was designed, at least in significant part, to measure the success of the abatement
- 27 -
procedures by measuring the extent to which the children’s blood was being
contaminated.” Id. at 38, 782 A.2d at 813. We expressed the view that
[o]therwise healthy children . . . should not be enticed into living, or
remaining in, potentially lead-tainted housing and intentionally subjected to
a research program, which contemplates the probability, or even the
possibility, of lead poisoning or even the accumulation of lower levels of lead
in blood, in order for the extent of the contamination of the children’s blood
to be used by scientific researchers to assess the success of lead paint or lead
dust abatement measures.
Id. at 41, 782 A.2d at 814 (footnote omitted).
In Grimes, id. at 41-42, 782 A.2d at 815, we stated that, notwithstanding the issues
presented in the cases, “the very inappropriateness of the research itself [could not] be
overlooked[,]” and that the R&M Study “should never have been presented in a
nontherapeutic context in the first instance” because “[n]othing about the research was
designed for treatment of the subject children.” We stated that it was “clear . . . that the
scientific and medical communities cannot be permitted to assume sole authority to
determine ultimately what is right and appropriate in respect to research projects involving
young children free of the limitations and consequences of the application of Maryland
law.” Id. at 45, 782 A.2d at 817.
After reviewing the R&M Study unfavorably, we discussed the details of the cases
before us. See id. at 47-71, 782 A.2d at 818-33. At the outset, we held that, “at the very
least, . . . under the particular circumstances testified to by the parties, there are genuine
disputes of material fact concerning whether a special relationship existed between KKI
and [the plaintiffs, and] the granting of the summary judgment motions was clearly
inappropriate.” Id. at 74, 782 A.2d at 834. We noted that the plaintiffs alleged that KKI
- 28 -
owed them a duty of care, “as subjects in the research study, based on the nature of the
agreements between them and also based on the nature of the relationship between the
parties.” Id. at 84, 782 A.2d at 841. This Court explained that the relationship between
KKI and the plaintiffs “was that of [a] medical researcher and research study subject[s,]”
and that “evidence in the record suggest[ed] that such a relationship involving a duty or
duties would ordinarily exist, and certainly could exist, based on the facts and
circumstances of each of the[] individual cases.” Id. at 87, 782 A.2d at 842. And, we
specifically held “that special relationships, out of which duties arise, the breach of which
can constitute negligence, can result from the relationships between researcher and
research subjects.” Id. at 94, 782 A.2d at 846.
Ultimately, in Grimes, id. at 113-14, 782 A.2d at 858, we concluded that the trial
courts in the two cases erred in granting summary judgment in KKI’s favor:
We hold that informed consent agreements in nontherapeutic research
projects, under certain circumstances[,] can constitute contracts; and that,
under certain circumstances, such research agreements can, as a matter of
law, constitute “special relationships” giving rise to duties, out of the breach
of which negligence actions may arise. We also hold that, normally, such
special relationships are created between researchers and the human subjects
used by the researchers. Additionally, we hold that governmental regulations
can create duties on the part of researchers towards human subjects out of
which “special relationships” can arise. . . .
The determination as to whether a “special relationship” actually
exists is to be done on a case by case basis. The determination as to whether
a special relationship exists, if properly pled, lies with the trier of fact. We
hold that there was ample evidence in the cases at bar to support a fact
finder’s determination of the existence of duties arising out of contract, or
out of a special relationship, or out of regulations and codes, or out of all of
them, in each of the cases.
(Cleaned up).
- 29 -
In so holding, we emphasized the foreseeability of the harm alleged, stating:
[T]he risks associated with exposing children to lead-based paint were not
only foreseeable, but were well known by KKI, and, in fact, it had to have
been reasonably foreseeable by KKI that the children’s blood might be
contaminated by lead because the extent of contamination of the blood of the
children would, in significant part, be used to measure the effectiveness of
the various abatement methods.
Id. at 98, 782 A.2d at 849. Although “we acknowledge[d] that foreseeability does not
necessarily create a duty, we recognize[d] that potential harm to the children participants
of th[e R&M S]tudy was both foreseeable and potentially extreme.” Id. at 103, 782 A.2d
at 852. We reiterated our concern that one of the measurements of success of the R&M
Study was “to be determined by the extent to which the blood of the children absorbs, and
is contaminated by, a substance that the researcher knows can, in sufficient amounts,
whether solely from the research environment or cumulative from all sources, cause serious
and long term adverse health effects.” Id. at 105, 782 A.2d at 853.
Later, this Court denied a motion for reconsideration, providing the following
explanation:
Although we discussed the various issues and arguments in considerable
detail, the only conclusion that we reached as a matter of law was that, on the
record currently before us, summary judgment was improperly granted—that
sufficient evidence was presented in both cases which, if taken in a light most
favorable to the plaintiffs and believed by a jury, would suffice to justify
verdicts in favor of the plaintiffs. Thus, the cases were remanded for further
proceedings in the [trial c]ourt. Every issue bearing on liability or damages
remains open for further factual development, and any relevant evidence not
otherwise precluded under our rules of evidence is admissible.
Much of the argument in support of and in opposition to the motion
for reconsideration centered on the question of what limitations should
govern a parent’s authority to provide informed consent for the participation
of his or her minor child in a medical study. In the Opinion, we said at one
- 30 -
point that a parent “cannot consent to the participation of a child . . . in
nontherapeutic research or studies in which there is any risk of injury or
damage to the health of the subject.” As we think is clear from Section VI
of the Opinion, by “any risk,” we meant any articulable risk beyond the
minimal kind of risk that is inherent in any endeavor. The context of the
statement was a non-therapeutic study that promises no medical benefit to
the child whatever, so that any balance between risk and benefit is necessarily
negative. As we indicated, the determination of whether the study in
question offered some benefit, and therefore could be regarded as therapeutic
in nature, or involved more than that minimal risk is open for further factual
development on remand.
Id. at 119-20, 782 A.2d at 861-62.7
Other Case Law
In Dehn, 384 Md. at 610, 865 A.2d at 605, a medical malpractice case, this Court
held that a wife did not have an independent cause of action against her husband’s doctor,
who allegedly acted negligently while treating her husband. The doctor referred the
husband to a surgeon, who performed a vasectomy. See id. at 611, 865 A.2d at 606. The
husband later engaged in unprotected intercourse with his wife, who became pregnant. See
id. at 612, 865 A.2d at 606. At issue in the case were the conversations that the husband
and the doctor had in the time between the vasectomy and the wife becoming pregnant.
See id. at 612-14, 865 A.2d at 606-08. At trial, at the close of the husband’s and wife’s
case, the trial court granted the doctor’s motion for judgment with respect to the wife’s
7
Recently, in White v. Kennedy Krieger Inst., Inc., 221 Md. App. 601, 625, 110
A.3d 724, 738, cert. denied, 443 Md. 237, 116 A.3d 476 (2015), the Court of Special
Appeals noted that, in Grimes, “the Court did not set forth absolute and determinate
standards regarding the creation of a special relationship or the duty owed by a researcher
to the subject.” (Citation omitted). The Court of Special Appeals concluded that Grimes
stands for the proposition “that a duty may arise in such circumstances where the researcher
has a superior knowledge of the risks of the study.” White, 221 Md. App. at 630, 110 A.3d
at 741 (emphasis in original).
- 31 -
claims. See id. at 615, 865 A.2d at 608. The husband and wife appealed, and the Court of
Special Appeals affirmed. See id. at 615, 865 A.2d at 608.
In this Court, as to whether a duty of care existed between the wife and the doctor,
we began with “the general rule that recovery for malpractice against a physician is allowed
only where there is a relationship between the doctor and a patient[,]” and that such a
“relationship is a consensual one, and when no prior relationship exists, the physician must
take some action to treat the person before the physician-patient relationship can be
established.” Id. at 620, 865 A.2d at 611. Applying this principle, we concluded that the
doctor owed no duty to the wife, as the wife and doctor had no physician-patient
relationship, and, indeed, the two had never met or spoken to one another until trial. See
id. at 622, 865 A.2d at 612. We observed that the Court of Special Appeals noted the
following: the doctor was the husband’s primary healthcare provider, not the wife’s; the
husband, not the wife, was in the healthcare program that involved the doctor; and, on the
three post-vasectomy occasions when the doctor was allegedly negligent, the husband was
not visiting the doctor to discuss post-operative care related to the vasectomy, but was
visiting the doctor, without the wife, for unrelated medical reasons. See id. at 622, 865
A.2d at 612-13.
As to other arguments in favor of imposing a duty, we stated that the “mere
foreseeability of harm or injury is insufficient to create a legally cognizable special
relationship giving rise to a legal duty to prevent harm.” Id. at 624, 865 A.2d at 614. We
observed that “it is only in a limited number of cases where a special relationship sufficient
to impose a duty of care will be found in the absence of traditional tort duty[,]” and
- 32 -
ultimately determined that Dehn was not such a case. Id. at 625, 865 A.2d at 614 (citations
omitted). We rejected the contention that there was a special relationship based on the
foreseeability of injury to the wife in a medical malpractice case. See id. at 625-26, 865
A.2d at 614. We expressed concern that imposing a common law duty on the doctor to the
wife based on the circumstance that she was the husband’s wife “could expand traditional
tort concepts beyond manageable bounds” and that such a “rationale for extending the duty
would apply to all potential sexual partners and expand the universe of potential plaintiffs.”
Id. at 627, 865 A.2d at 615.
In Doe, 388 Md. at 409-10, 879 A.2d at 1089, in response to certified questions of
law from the United States Court of Appeals for the Fourth Circuit, this Court held that an
employer, a commercial manufacturer of two strains of HIV (HIV-1 and HIV-2), did not
owe a duty to its employees’ spouses to exercise reasonable care either in conducting
testing, including testing for both strains of HIV, or in informing its employees of the nature
of the test results. John Doe, who was married, worked for the employer as a laboratory
technician at a viral production facility, and for six years, he was exposed to high
concentrations of HIV-1 and HIV-2 while working. See id. at 410, 879 A.2d at 1089-90.
Starting around 1985, every six months the employer began testing its employees,
including John Doe, who were exposed to HIV in the workplace. See id. at 410-11, 879
A.2d at 1090. As of 1989, a person who was infected with HIV-2 could test positive on
the “Elisa test,” but negative on the “Western blot test,” which was considered a false
positive for HIV-1. Id. at 411, 879 A.2d at 1090. John Doe tested negative until 1989,
when he received a false positive on the Elisa test; upon retesting, the result was negative,
- 33 -
and subsequent testing results were also negative. See id. at 411, 879 A.2d at 1090. The
employer did not advise John Doe or his wife about the implications of a false positive
Elisa test—specifically, that the false positive could indicate that John Doe was infected
with HIV-2. See id. at 411, 879 A.2d at 1090.
In 2000, John Doe tested positive for HIV-2 and was diagnosed with AIDS. See id.
at 412, 879 A.2d at 1090. John Doe told his wife, who discovered that she was also infected
with HIV-2. See id. at 412, 879 A.2d at 1091. The wife filed a tort action in Maryland
state court, which was removed to the United States District Court for the District of
Maryland. See id. at 412-13, 879 A.2d at 1091. The employer filed a motion to dismiss,
which the District Court granted; the wife appealed to the Fourth Circuit, which certified
questions of law to this Court. See id. at 413, 879 A.2d at 1091.
As to the issue of whether, under Maryland law, the employer owed John Doe’s
wife a duty of care, we agreed with the wife that it was foreseeable under the circumstances
that she could contract HIV-2, explaining:
Assuming the accuracy of the allegations within the complaint, [the
employer] manufactured HIV-2. As a laboratory technician for [the
employer], Mr. Doe was exposed to high concentrations of HIV-2. It was
foreseeable that Mr. Doe could contract HIV-2. As HIV-2 can be transmitted
through sexual relations, it should have been foreseeable to [the employer]
that Mr. Doe’s wife could contract the virus.
Id. at 416-17, 879 A.2d at 1093. We stated, however, “that foreseeability alone is not
sufficient to establish duty.” Id. at 417, 879 A.2d at 1093 (cleaned up). We explained that
there was no Maryland case holding that an employer owes a duty to an employee’s spouse,
and we noted that, in Dehn, we had declined to hold that a doctor owed a duty to a patient’s
- 34 -
spouse. See Doe, 388 Md. at 417, 879 A.2d at 1094. In Doe, id. at 419-20, 879 A.2d at
1095, we found Dehn instructive and similarly held that the employer owed no duty to an
employee’s spouse, stating:
[The employer] had the responsibility, according to Ms. Doe, to inform Mr.
Doe of the meaning of the laboratory test results for his health and the
implications of the results for his future conduct. In this context, an employer
could owe a duty to a third party only in extraordinary circumstances. Such
extraordinary circumstances do not exist in this case. Ms. Doe had no
relationship with [the employer]. There is no assertion in the complaint that
she was ever an employee of [the employer], that she had ever been tested
for HIV or any other disease by [the employer], or that she had ever had any
contact with [the employer].
We expressed concern that the wife’s proposed duty of care “would create an
expansive new duty to an indeterminate class of people[,]” i.e., any potential future sexual
partner of the husband. Doe, 388 Md. at 420-21, 879 A.2d at 1095-96. We explained that
the problem with recognizing a duty that “encompass[es] an indeterminate class of people
is that a person ordinarily cannot foresee liability to a boundless category of people.” Id.
at 421, 879 A.2d at 1096 (citation omitted).
We rejected the wife’s arguments that other factors—moral blame and public
policy—weighed in favor of holding that the employer owed her a duty of care. See id. at
422-23, 879 A.2d at 1096-97. As to moral blame, we reasoned that, although the
employer’s alleged failure to inform John Doe that a false positive could indicate that he
was actually infected with HIV-2 could support a finding of negligence as to John Doe, it
did “not support moral blameworthiness or a duty of care to Ms. Doe.” Id. at 422, 879
A.2d at 1097. As to public policy, we agreed with the wife that it is a “valid and important
public policy” “to avoid the spread of a highly communicable lethal human disease and to
- 35 -
require the people or entities that are in a position to stop the spread of a disease to do so.”
Id. at 422, 879 A.2d at 1097. Nevertheless, we concluded that there was “no indication . .
. that the policy” applied in Doe, explaining that the case was not one “in which an actor,
such as a doctor, knew or should have known that an unsuspecting person had or was likely
to have a disease and failed to advise that person or a third party to avoid transmission of
the contagion.” Id. at 422-23, 879 A.2d at 1097 (citations omitted).
In Gourdine, 405 Md. at 726-77, 955 A.2d at 772-73, a products liability case, this
Court held that a drug manufacturer did not owe a duty of care to a third party where an
individual who had been taking drugs manufactured by the company suffered an adverse
reaction and struck a vehicle driven by the third party, resulting in the third party’s death.
In that case, Ellen Crews, a diabetic, took a combination of insulin medications
manufactured by Eli Lilly and Company. See id. at 726, 955 A.2d at 772. While driving,
Crews hit a vehicle that was driven by Isaac Gourdine, which resulted in Gourdine
sustaining a mortal head wound. See id. at 728, 955 A.2d at 773. Gourdine’s widow, on
behalf of herself, his estate, and their children, sued Lilly and others, alleging that Lilly
owed a duty to Gourdine. See id. at 728-29, 955 A.2d at 773-74. Lilly moved for summary
judgment, arguing that it did not owe a duty to warn Gourdine. See id. at 730, 955 A.2d at
774. Gourdine’s widow responded that Lilly owed Gourdine a duty to warn Crews about
the risks of the combination of insulin drugs because it was foreseeable to Lilly that Crews,
“allegedly suffering an adverse reaction to the medications, would cause injury and death
to third persons while she was operating a motor vehicle[.]” Id. at 731, 955 A.2d at 775.
The trial court granted Lilly’s motion for summary judgment, ruling that it did not owe a
- 36 -
duty to Gourdine. See id. at 731, 955 A.2d at 775. Gourdine’s widow appealed, and the
Court of Special Appeals affirmed. See id. at 733, 955 A.2d at 776.
In evaluating the case, this Court discussed whether a duty existed under the
common law, and stated that “[d]uty requires a close or direct effect of the tortfeasor’s
conduct on the injured party.” Id. at 746, 955 A.2d at 784. We explained:
As a practical matter, legal responsibility must be limited to those
causes which are so closely connected with the result and of such significance
that the law is justified in imposing liability. Some boundary must be set to
liability for the consequences of any act, upon the basis of some social idea
of justice or policy.
This limitation is to some extent associated with the nature and degree
of the connection in fact between the defendant’s acts and the events of which
the plaintiff complains. Often to greater extent, however, the legal limitation
on the scope of liability is associated with policy[—]with our more or less
inadequately expressed ideas of what justice demands.
Id. at 747, 955 A.2d at 784 (cleaned up). Applying those principles, we observed that
“there was no direct connection between Lilly’s warnings, or the alleged lack thereof, and
[] Gourdine’s injury[,]” and that there was no contact whatsoever between Lilly and
Gourdine. Id. at 750, 955 A.2d at 786. We concluded that imposing a duty between Lilly
and Gourdine “would expand traditional tort concepts beyond manageable bounds[]
because such duty could apply to all individuals who could have been affected by [] Crews
after her ingestion of the drugs[,]” resulting in Lilly essentially owing “a duty to the world,
an indeterminate class of people, for which we have resisted the establishment of duties of
care.” Id. at 750, 955 A.2d at 786 (cleaned up). We rejected Gourdine’s widow’s other
arguments and determined that, “although there may be circumstances where foreseeability
alone may give rise to liability to a third party because of policy reasons, this is not the
- 37 -
case[,]” and, as such, “Lilly did not owe a duty to [] Gourdine.” Id. at 754, 955 A.2d at
789.
In contrast to Dehn, Doe, and Gourdine, in Kiriakos, 448 Md. at 455, 139 A.3d at
1015, after balancing the traditional factors used to determine the existence of a duty, this
Court held that a duty existed under the common law. Specifically, in Kiriakos, id. at 455,
139 A.3d at 1015, we held “that there exists a limited form of social host liability sounding
in negligence—based on [a] strong public policy reflected in [a statute], but that it only
exists when the adults in question act knowingly and willfully, as required by the statute.”
In separate cases, underage individuals became intoxicated at residences of adults; one of
the underage individuals then rode in the bed of a pickup truck that crashed and was killed,
and the other underage individual drove a vehicle and hit a pedestrian, who received life-
threatening injuries. See id. at 450-53, 139 A.3d at 1012-14. In both cases, the underage
individuals’ “consumption of alcohol was done with the knowledge and consent of the
adult property owner” in violation of a criminal statute. Id. at 450, 139 A.3d at 1012.
We concluded that the pedestrian could “maintain a limited social host cause of
action against [the adult property owner] through common law tort principles, like
negligent entrustment, based on the strong public policy evident in” the statute at issue. Id.
at 486, 139 A.3d at 1033. We observed that “[o]ur decision [was] consonant with the
classic factors we use to decide questions of duty under the common law[.]” Id. at 486,
139 A.3d at 1033. We addressed each of the seven factors, beginning with foreseeability
of the harm. See id. at 486-87, 139 A.3d at 1034. With respect to the foreseeability of the
harm, we noted that it was alleged, among other things, that the adult who served the
- 38 -
alcohol had two conversations with the underage individual concerning the extent of his
drinking, and knew that the underage individual, who had driven to the adult’s house, was
likely to drive after drinking. See id. at 487, 139 A.3d at 1034. We concluded that, “[b]ased
on these allegations, and the universally understood risk of harm that underage drunk
driving poses to the traveling public, [the pedestrian]’s injuries were foreseeable.” Id. at
487, 139 A.3d at 1034.
We also concluded that the factor of the degree of certainty that the plaintiff suffered
the injury weighed in favor of imposing a duty, noting that the underage individual pled
guilty to causing life-threatening injuries to the pedestrian because he drove under the
influence, and testified at a deposition that his actions caused the injuries. See id. at 488,
139 A.3d at 1034. Similarly, we determined that the closeness of the connection between
the defendant’s conduct and the injury suffered weighed in favor of civil liability. See id.
at 488, 139 A.3d at 1034-35. We explained that the “long-standing rule that the law (apart
from statute) recognizes no relation of proximate cause between a sale of liquor and a tort
committed by a buyer who has drunk the liquor” did not extend to the circumstance of an
underage individual consuming alcohol on an adult’s property with the adult’s complicity,
and instead concluded that there was “a sufficient connection between” the adult’s conduct
and the harm to the pedestrian that we would “not foreclose liability.” Id. at 488, 139 A.3d
at 1035. We also emphasized that the nature of the risk was relevant because, “where the
risk is death or personal injury, a close connection between [the adult] and [the pedestrian]
is not required.” Id. at 488, 139 A.3d at 1035.
With respect to moral blame, we explained that the “standard is not evidence of
- 39 -
intent to cause harm[,]” but rather “the reaction of persons in general to the circumstances.”
Id. at 489, 139 A.3d at 1035 (cleaned up). We pointed out that the General Assembly had
specifically enacted a statute to hold adults responsible for underage drinking that occurs
on their property, and determined “that the general public would consider [the adult]’s
conduct blameworthy” because the adult “allegedly not only permitted but facilitated [the
underage individual]’s drinking on his property to the point of intoxication[.]” Id. at 489,
139 A.3d at 1035. We also determined that the factor of the policy of preventing future
harm weighed in favor of imposing a duty, explaining:
The General Assembly’s decision to punish adults who furnish alcohol to
underage persons or otherwise tolerate it, occurred in the wake of a report to
combat drunk driving, and statistics attesting to the pervasive dangers of
drunk driving. It is transparent that this legislative action and the impetus for
it provide a strong incentive to prevent the occurrence of the harm that befell
a victim like [the pedestrian].
Id. at 490, 139 A.3d at 1036.
We concluded that the factor of the extent of the burden on the defendant and
consequences to the community of imposing a duty weighed in favor of imposing liability.
See id. at 490-91, 139 A.3d at 1036-37. Specifically, we stated that “[t]he consequences
of underage drinking are great—such that the burden on [the adult] of denying youths
access to alcohol hardly warrants discussion[,]” and that, by statute, the adult could not
allow a person whom he knew to be underage to drink on his property. Id. at 491, 139
A.3d at 1036 (footnote omitted). We noted that the burden on the adult was not a heavy
one, and, indeed, the adult “could have easily conformed his conduct to the law by
refraining from furnishing alcohol to” the underage individual. Id. at 491, 139 A.3d at
- 40 -
1036-37. We declined to address the seventh factor—availability, cost, and prevalence of
insurance for the risk involved—because the record did not contain evidence of the
availability of homeowner’s or renter’s insurance for injuries that resulted from serving
alcohol to underage people. See id. at 492, 139 A.3d at 1037. Given that six of the seven
factors weighed in favor of imposing a duty, in Kiriakos, id. at 492, 139 A.3d at 1037, we
concluded that the “seven-pronged test support[ed] our conclusion that a cognizable duty
was adequately alleged.”
Similarly, in May v. Air & Liquid Sys. Corp., 446 Md. 1, 5, 129 A.3d 984, 986
(2015), this Court considered “whether a manufacturer can be liable for failing to warn
about the risk of harm from exposure to asbestos-containing replacement parts that it
neither manufactured nor placed into the stream of commerce, but which were integral to
the operation of its product.” In determining whether a duty to warn, i.e., a duty of care,
existed, we analyzed the same seven factors as in Kiriakos, and concluded that a duty to
warn existed under certain limited circumstances, explaining:
As we have said, in negligence cases involving personal injury, the
principal determinant of duty is foreseeability. Doe [], 388 Md. [at] 416, 879
A.2d [at] 1093 []; Jacques [], 307 Md. [at] 534-35, 515 A.2d [at] 759-60 [].
The foreseeability of harm to workers servicing pumps with asbestos gaskets
and packing is especially strong where a manufacturer knows or should know
that these components are necessary to the proper functioning of its product
and must be replaced periodically. Evaluating the other factors, we consider
that four factors favor imposing a duty, one is neutral, and only one slightly
tips against imposing a duty. When these factors are considered along with
the predominant foreseeability factor, finding a duty becomes the clear
choice. Thus, we conclude that the duty to warn in this context exists in the
limited circumstances when (1) a manufacturer’s product contains asbestos
components, and no safer material is available; (2) asbestos is a critical part
of the pump sold by the manufacturer; (3) periodic maintenance involving
handling asbestos gaskets and packing is required; and (4) the manufacturer
- 41 -
knows or should know of the risks from exposure to asbestos.
May, 446 Md. at 10-11, 18-19, 129 A.3d at 989, 994.
Analysis
Here, we hold that a duty of care exists in the limited circumstances where: (1) a
medical research institute knows of the presence of a child, who is not a participant in a
research study concerning lead-based paint abatement of a property, who resides at a
property that is subject to the research study during a participant child’s enrollment in the
study; (2) the medical research institute has signed a consent agreement with a parent or
guardian for a participant child’s enrollment in the research study and both the participant
and non-participant children reside at a property subject to the study; (3) the medical
research institute knows or should know of the presence or suspected presence of lead in
the property; (4) the medical research institute determined the level of lead-based paint
abatement for the property;8 and (5) the non-participant child who resided at the property
8
At oral argument, a question arose as to whether a landlord/owner of a property
subject to the R&M Study had the ability to make lead-based paint abatement repairs
different from the level of repair set by the study. KKI’s counsel asserted that landlords
could make independent decisions about lead-based paint abatement and that some used
their own funds to make their own repairs. KKI’s counsel claimed that these properties
stayed in the study and that “[s]ome landlords did their own repairs. Some landlords did
more. Some landlords did nothing.” When asked by the Court about the practical
implications on the R&M Study of landlords being able to act independently with respect
to lead-based paint abatement, i.e., whether that would have affected the data/results of the
study, KKI’s counsel asserted that no one would have stopped a landlord from completing
repairs above that required by the study. When asked whether the record in this case
contained any examples of situations in which a landlord made repairs independent of the
R&M Study, KKI’s counsel stated that he did not believe that matter was at issue in the
case. And, when asked a similar question again, KKI’s counsel simply stated that the case
was decided on summary judgment and that “that was not an issue on summary judgment.”
(Continued...)
- 42 -
during the research study was allegedly injured by being exposed to lead at the property.
The bottom line is that we hold that, under the circumstances alleged in this case,
considering the record in a light most favorable to the non-moving party, on the question
of duty, it was error to grant summary judgment in favor of KKI on grounds that KKI owed
no duty of care to Ashley under the common law.9
Traditional Tort Law Analysis
Our holding follows traditional tort law principles that apply to the determination of
whether a duty exists under the common law, which we address in detail below. See
Kiriakos, 448 Md. at 486, 139 A.3d at 1033-34 (This Court set forth the seven “classic
factors” used to determine whether a duty exists under the common law.); see also May,
Put simply, KKI’s counsel was unable to identify anything in the record
demonstrating that the owner in this case or landlords in general performed lead-based
paint abatement above the level set by the R&M Study. As a practical matter, logic would
dictate that, if a landlord/owner completed repairs above that set by the R&M Study, then
that property would no longer qualify to be a part of the group to which it was designated—
Group 1, 2, or 3—because more funds would have been expended than set for the group to
which the property was assigned. This necessarily would have affected or undermined the
research of the R&M Study. In any event, here, the record is devoid of any suggestion that
CFOD-2 or Polakoff performed lead-based paint abatement efforts at the Property in excess
of the $3,500 of repairs set for Group 2 properties. That the agreement between KKI and
a landlord/owner may not have specifically prohibited the landlord/owner from performing
additional abatement repairs is of no moment. In this case, the record demonstrates that
KKI determined the level of lead-based paint abatement for the Property and that the fourth
factor for the existence of a duty of care is satisfied.
9
Our holding is limited to the circumstances of this case and, specifically, to the
circumstance that the record demonstrates that KKI knew that Ashley resided in the
Property with a participant of the R&M Study. In other words, we leave for another day
the question of whether KKI would owe a duty to an individual who KKI should have
known resided in a property subject to the R&M Study with a participant of the study. We
need not wade into the waters of defining the parameters of a “should have known”
standard because our holding applies to individuals, such as Ashley, who KKI knew
resided in a property with a participant of the R&M Study.
- 43 -
446 Md. at 10-11, 129 A.3d at 989 (same). Moreover, although our analysis could end
there, we are also convinced that, aside from there being a duty of care alleged, based on
the factors set forth by this Court in Kiriakos, the grant of summary judgment in KKI’s
favor was improper because there was sufficient evidence for the case to be submitted to
the trier of fact for a determination as to whether a special relationship between KKI and
Ashley existed. Cf. Grimes, 366 Md. at 113-14, 782 A.2d at 858.
We first examine whether there need be a “direct relationship,” as KKI contends, or
a special relationship between KKI and Ashley for a duty of care to exist. There are “two
major considerations” when “determining whether a tort duty should be recognized in a
particular context”—(1) “the nature of the harm likely to result from a failure to exercise
due care, and [(2)] the relationship that exists between the parties.” Jacques, 307 Md. at
534, 515 A.2d at 759. Significantly, “where the risk created is one of personal injury,” as
opposed to economic loss only, a “direct relationship need [not] be shown, and the principal
determinant becomes foreseeability.” Id. at 534-35, 515 A.2d at 759-60 (citations omitted).
Stated otherwise, in cases where personal injury is alleged, as in this case, the focus is less
on whether a direct or special relationship existed between the plaintiff and defendant, and
more on the foreseeability of the harm to the plaintiff.
Although a special relationship certainly may be the basis for a duty of care, duty
can be established in other ways. Utilizing the traditional test for determination of a duty
of care and considering the seven classic factors that this Court has time and time again
used in determining the existence of a duty under the common law—namely, the
foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered
- 44 -
injury, the closeness of the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct, the policy of preventing
future harm, the extent of the burden to the defendant and the consequences to the
community of imposing a duty, and the availability, cost, and prevalence of insurance for
the risk involved, see Kiriakos, 448 Md. at 486, 139 A.3d at 1033-34—leads to the
conclusion that Ashley has set forth sufficient allegations to conclude that a cognizable
duty of care arose in this case.
We begin by examining the foreseeability of harm to Ashley, and conclude that,
taking the facts as alleged by Ashley, the harm to her was highly foreseeable. What we
said in Grimes, 366 Md. at 98, 782 A.2d at 849, concerning the foreseeability of harm to
children as a result of the R&M Study being well known to KKI applies with equal force
to the circumstances of this case:
[T]he risks associated with exposing children to lead-based paint were not
only foreseeable, but were well known by KKI, and, in fact, it had to have
been reasonably foreseeable by KKI that the children’s blood might be
contaminated by lead because the extent of contamination of the blood of the
children would, in significant part, be used to measure the effectiveness of
the various abatement methods.
Indeed, in Grimes, id. at 103, 782 A.2d at 852, we “recognize[d] that potential harm to the
children participants of [the R&M S]tudy was both foreseeable and potentially extreme.”
Ashley, who was a five-year-old child when she began residing in the Property,
faced the same potential harm at the same exact time, in the same manner, and under the
same conditions as Anquenette, her two-year-old participant-sister. It is entirely reasonable
to conclude, given that KKI knew that Ashley was residing in the Property, that the harm
- 45 -
to Ashley, like any harm to her participant-sister, was “foreseeable and potentially
extreme.” Id. at 103, 782 A.2d at 852. KKI could have anticipated that both participant
children and non-participant children living in Group 2 properties could accumulate lead
in their blood as a result of the R&M Study, and be injured. Based on the record in this
case, Ashley’s alleged injuries were eminently foreseeable. The factor of foreseeability of
harm weighs strongly in favor of imposing a duty on KKI.
With respect to the degree of certainty that Ashley suffered the injury, Ashley
alleged that she was exposed to lead at the Property as a result of the R&M Study, thereby
causing her permanent injury. Indeed, in the complaint, Ashley alleged that lead poisoning
caused her severe and permanent brain damage, as well as physical pain and mental
anguish, and that her IQ has been significantly diminished. Specifically, in response to
defense motions, Ashley submitted a neuropsychological evaluation, which indicated that
her full-scale IQ is 65. And, allegedly, while residing at the Property, Ashley had elevated
blood-lead levels. In exhibits attached to a motion for partial summary judgment, Ashley
included records reflecting the following. Within four months after moving into the
Property, Ashley’s blood-lead level was reported as 21 micrograms per deciliter (µg/dL).
Later, while still residing at the Property, Ashley’s blood-lead level was reported as “19,
19.”10 On or about February 16, 1995, Ashley allegedly moved out of the Property; on
February 17, 1995, Ashley’s blood was collected, and on February 20, 1995, Ashley’s
10
It appears that the blood-lead level result of “19, 19” reported by KKI could be
read to mean 19 µg/dL.
(Continued...)
- 46 -
blood-lead level was reported as 13 µg/dL. Then, in a follow-up visit a few days later,
Ashley’s blood-lead level was reported as 16 µg/dL.11 The certainty factor is enhanced by
our recognition in earlier cases that lead-based paint often causes brain injury to children.
See, e.g., Sugarman v. Liles, ___ Md. ___, ___ A.3d ___, 2018 WL 3642143 (Md. July 31,
2018); Levitas v. Christian, 454 Md. 233, 164 A.3d 228 (2017). Based on the information
that Ashley has produced in support of her claim, the factor concerning the degree of
certainty that she has suffered injury plainly weighs in favor of establishing a duty.12
11
Before moving into the Property, Ashley had reported blood-lead levels of 18
µg/dL and 21 µg/dL.
12
The record demonstrates the following pattern with respect to Ashley’s blood-lead
levels: before moving into the Property, her levels were 18 µg/dL and 21 µg/dL; while
residing in the Property, her levels were 21 µg/dL and 19 µg/dL; and, after moving out of
the Property, her levels were 13 µg/dL and 16 µg/dL. To be sure, this indicates that at one
point Ashley’s blood-lead level decreased slightly—from 21 µg/dL to 19 µg/dL—while
she resided in the Property, and decreased further shortly after she moved out of the
Property. That Ashley’s blood-lead level decreased slightly while residing in the Property,
however, does not necessarily demonstrate that she was not injured by lead at the Property.
Indeed, Ashley’s blood-lead levels remained elevated both during and after she resided in
the Property. See Grimes, 366 Md. at 59 & n.23, 782 A.2d at 825 & n.23 (This Court
indicated that, as of 1993 and 1994, the Centers for Disease Control classified blood-lead
levels of 15-19 µg/dL as “Class IIB (Moderately elevated)” and levels of 20-44 µg/dL as
“Class III (Highly elevated)[.]”).
In Rogers v. Home Equity USA, Inc., 453 Md. 251, 276-77, 160 A.3d 1207, 1222
(2017), a recent opinion from this Court authored by the Honorable Sally D. Adkins, we
rejected the contention that a plaintiff alleging negligence in a lead-based paint case has to
show a reasonable probability that an elevated blood-lead level represented an increase in
the plaintiff’s blood-lead level at a particular property, explaining:
To reach a jury, [the plaintiff] must only show that it is reasonably
probable that [the subject property] contributed to his elevated lead levels—
he does not have to demonstrate that his lead level increased when he moved
in. . . . The fact that a lead-exposed child might have lived or spent time in
more than one lead-based-painted property should not foreclose that child as
a matter of law from pursuing any one of those potential sources—as long as
(Continued...)
- 47 -
The next factor is the closeness of the connection between the defendant’s conduct
and the injury suffered. This factor has been described as
a proximate cause element in that consideration is given to whether, across
the universe of cases of the type presented, there would ordinarily be so little
connection between breach of the duty contended for, and the allegedly
resulting harm, that a court would simply foreclose liability by holding that
there is no duty.
Kiriakos, 448 Md. at 488, 139 A.3d at 1034-35 (cleaned up). The allegation in this case is
that Ashley was directly injured by the R&M Study in the same manner as her sister, who
was a participant in the study. Recognizing that circumstance and that KKI determined the
level of repairs made to the Property to abate the presence of lead—i.e., specifically
limiting the funds used for abatement in Group 2 houses to $3,500—and that KKI would
have been aware of Ashley’s elevated blood-lead levels, we conclude that the connection
he is able to rule in the subject property[.] Although [the plaintiff] cannot
prove that his blood lead levels increased when he moved to [the subject
property], they remained elevated without decrease while he lived there. [A
doctor] testified that once [the plaintiff] was no longer exposed to lead, his
blood lead levels would decrease after about 30 to 45 days. From this, a jury
could reasonably infer that if [the subject property] was not a contributing
source, [the plaintiff’s] March 1997 lead level would have been lower. . . .
Viewing th[e] evidence in the light most favorable to [the plaintiff], a jury
could reasonably infer that his blood lead level declined in April 1997
because had left the source of his exposure, which was [the subject property].
(Cleaned up). In other words, a plaintiff alleging negligence in a lead-based paint case is
not required to demonstrate that his or her blood-lead level increased when he or she moved
into the subject property to establish that property as a reasonably probable cause of his or
her elevated blood-lead levels. Thus, in ultimately establishing negligence, it is an issue
for the trier of fact to determine whether Ashley’s elevated blood-lead levels at the Property
demonstrate that she was injured at the Property. We simply conclude that, based on the
information that Ashley provided in support of her claim, the factor concerning the degree
of certainty that she has suffered injury plainly weighs in favor of establishing a duty.
- 48 -
between KKI’s conduct and the alleged harm to Ashley weighs in favor of imposition of a
duty.
With respect to the moral blame attached to a defendant’s conduct, as we explained
in Kiriakos, id. at 489, 139 A.3d at 1035, the “standard is not evidence of intent to cause
harm[,]” but rather “the reaction of persons in general to the circumstances.” (Cleaned up).
The moral blame with respect to the R&M Study and its effect on young children is
obvious, and was thoroughly addressed by this Court in Grimes. In Grimes, 366 Md. at
38, 782 A.2d at 812-13, we stated that “it was anticipated that the children, who were the
human subjects in the program, would, or at least might, accumulate lead in their blood
from the dust, thus helping the researchers to determine the extent to which the various
partial abatement methods worked.” We explained that, with respect to the R&M Study,
“children, especially young children, living in lower economic circumstances, . . . are []
vulnerable[.]” Id. at 45, 782 A.2d at 817. Even though the program may have been well
intended in the sense that its ultimate goal was to find practical methods to abate the ill
effects of lead-based paint, those conducting the program were required to consider the
obvious consequences of their actions, and we attribute moral blame for their failure to do
so.
The moral blame of KKI’s conduct attendant to children who were participants in
the R&M Study was readily apparent to this Court in Grimes. We conclude that KKI’s
conduct is equally blameworthy with respect to children like Ashley, who KKI knew
resided in a property subject to the R&M Study with a participant of the study. Indeed,
KKI’s conduct is just as blameworthy with respect to Ashley when compared to
- 49 -
Anquenette because KKI’s conduct with respect to Ashley reeks of indifference to the
circumstance that she was exposed to lead in a house that was subject to the study and for
which KKI prescribed limited funds for lead-based paint abatement. Because the R&M
Study necessarily would have impacted not only participant children, but also non-
participant children residing in properties subject to the study, exposing both sets of
children equally to lead, KKI’s conduct was just as blameworthy with respect to non-
participant children as it was with respect to children participating in the study. The factor
of moral blameworthiness weighs in favor of establishing a duty.
As to the policy of preventing future harm, in Kiriakos, 448 Md. at 490, 139 A.3d
at 1036, we explained:
The prophylactic factor of preventing future harm has been quite important
in the field of torts. The courts are concerned not only with the compensation
of the victim, but with admonition of the wrongdoer. When the decisions of
the courts become known, and defendants realize that they may be held
liable, there is of course a strong incentive to prevent the occurrence of the
harm. Not infrequently[,] one reason for imposing liability is the deliberate
purpose of providing that incentive.
(Cleaned up). It is important to prevent medical researchers from using young children in
research experiments like the R&M Study, and then disavowing responsibility for children
who are not a part of the study but equally exposed to its hazards. There is a strong
incentive to prevent the harm that may occur to such children, and to incentivize medical
researchers to fully advise parents of the risks attendant to such studies on all children, not
just children who participate in the study. This is a case in which KKI knew that a non-
participant child, Ashley, was or was likely to be exposed to lead as a result of its conduct
in connection to the study. Cf. Doe, 388 Md. at 423, 879 A.2d at 1097 (“[T]his is not a
- 50 -
case in which an actor, such as a doctor, knew or should have known that an unsuspecting
person had or was likely to have a disease and failed to advise that person or a third party
to avoid transmission of the contagion.” (Citations omitted)). The prevention of such
future harm is imperative. Consideration of this policy heavily favors imposing a duty.
Concerning the extent of the burden on KKI and consequences to the community of
imposing a duty, we conclude that the risk of harm to children who are exposed to lead-
based paint outweighs the extent of any burden to KKI of imposing a duty. The
consequences of subjecting children to lead and the attendant long-term effects of lead
poisoning on developing brains are potentially great, such that the burden of tort liability
is outweighed by the benefit of protecting children who were exposed to lead during the
R&M Study. This factor strongly favors imposition of a duty of care.
Insofar as the availability, cost, and prevalence of insurance for the risk involved is
concerned, on brief, neither party provided information about the availability or cost of
insurance. And, at oral argument, Ashley’s counsel stated that there was “no evidence []
either way” concerning insurance. In the absence of such information, we decline to
address the seventh factor.
Reviewing six of the seven factors, we conclude that the seven-pronged test for
balancing the policy considerations necessary to determine whether a duty of care exists
under the common law weighs heavily in favor of recognizing such a duty, and, indeed,
establishes that KKI owes Ashley a duty of care. In short, in a personal injury case, a duty
of care may arise without the existence of a direct or special relationship between a plaintiff
and defendant, and such a duty has arisen under a traditional tort law analysis in this case.
- 51 -
Special Relationship
Although our analysis could conclude at this point, we are also convinced that,
viewing the record in the light most favorable to Ashley, and construing any reasonable
inferences that may be drawn from the facts against KKI, there was sufficient evidence that
KKI had a special relationship with Ashley and her family to submit the issue to the trier
of fact, i.e., a jury. In other words, the grant of summary judgment in KKI’s favor was also
improper for this reason. The record reflects that KKI knew that Ashley, then a young
child, resided in the Property, which was subject to the R&M Study. KKI knew that the
Property contained lead, and that Ashley would be exposed to lead in the same manner and
under the same conditions as her participant-sister.
Under the circumstances alleged, the Property qualified for the R&M Study, and
was assigned to Group 2; and KKI limited funds for repairs to the Property to $3,500. KKI
allegedly sent letters to Martin notifying her of the testing of dust in the Property for lead,
the first of which gave the impression that the Property did not contain any lead dust. Two
later letters showed that certain locations from which dust was collected contained an
“amount of lead [that] was higher than might be found in a completely renovated house.”
The two later letters suggest that, after the Group 2 abatement procedure, KKI knew that
the Property continued to contain lead.
Moreover, Martin testified at a deposition that, while living at the Property, she
agreed to send both Ashley and Anquenette to KKI to have their blood drawn. Despite the
circumstance that Ashley was not a participant in the R&M Study, KKI maintained records
on Ashley, including blood-lead level test results. For example, a Lead Poisoning
- 52 -
Questionnaire completed by a KKI interviewer on November 9, 1994, detailed information
about Ashley, such as her residential history, hand-to-mouth activity, diet, behavior and
symptoms, social history, and past medical history. To be sure, Ashley was treated at KKI
because she had been referred to KKI by the Baltimore City Health Department and not as
part of the R&M Study. Nevertheless, KKI was aware of Ashley’s presence, her exposure
to lead at the Property, and her elevated blood-lead levels while living there.
Considering the above, Ashley has sufficiently alleged that a relationship existed
between KKI and Ashley and her family. Among other things, as alleged, KKI had a direct
relationship with Ashley’s family based on the signed consent form enrolling Anquenette
in the R&M Study, and KKI conducted testing of Ashley’s blood-lead levels while
knowing that she resided at a property subject to the study. KKI determined the level of
lead-based paint abatement at the Property through the R&M Study, and KKI knew that
the Property contained lead even after abatement. KKI undisputedly knew that Ashley
resided at the Property and could be harmed.13 All of these alleged circumstances support
the finding of a special relationship between KKI and Ashley.
In Grimes, 366 Md. at 113, 782 A.2d at 858, we stated that “[t]he determination as
to whether a ‘special relationship’ actually exists is to be done on a case by case basis.”
(Citation omitted). We explained that consent agreements to enroll children in the R&M
Study may, “under certain circumstances, . . . constitute ‘special relationships’ giving rise
13
We note that KKI does not dispute that it knew that Ashley resided at the Property.
Indeed, at oral argument, KKI’s counsel stated that KKI “was aware that” Ashley was
living in the Property and that KKI “knew that she was in the house.”
- 53 -
to duties, out of the breach of which negligence actions may arise.” Id. at 113, 782 A.2d
at 858. And, we held “that there was ample evidence in the cases . . . to support a fact
finder’s determination of the existence of duties arising out of contract, or out of a special
relationship, or out of regulations and codes, or out of all of them, in each of the cases.”
Id. at 114, 782 A.2d at 858. As such, even if a special relationship were required for the
imposition of a tort duty in a personal injury case—which it is not—viewing the record in
the light most favorable to Ashley, and construing against KKI any reasonable inferences
that may be drawn from the facts, leads to the conclusion that there was sufficient evidence
to submit the matter to a jury for a determination as to the existence of a special
relationship. Because there was sufficient evidence for the case to be submitted to the trier
of fact for a determination as to whether a special relationship existed between KKI and
Ashley giving rise to a duty of care, in addition to erring by not recognizing the existence
of a duty under traditional law analysis, the circuit court erred in granting summary
judgment in KKI’s favor without permitting the issue of a special relationship to be
considered by the jury.
We acknowledge that there is a key factual distinction between Grimes and this case
because the plaintiffs in Grimes were participants in the R&M Study, while it is undisputed
that Ashley was not. In Grimes, id. at 113, 782 A.2d at 858, this Court held “that, under
certain circumstances, [consent] agreements can, as a matter of law, constitute ‘special
relationships’ giving rise to duties, out of the breach of which negligence actions may
arise[,]” and “that, normally, such special relationships are created between researchers and
the human subjects used by the researchers.” In other words, in Grimes, this Court did not
- 54 -
establish all-encompassing standards concerning the creation of a special relationship, or
the duty arising out of a researcher-subject relationship in research studies. Indeed, in
Grimes, 366 Md. at 119, 782 A.2d at 861, on reconsideration, we clarified that the only
legal conclusion that we reached was that, based on the record, the trial courts had
improperly granted summary judgment in KKI’s favor because there was sufficient
evidence that, “if taken in a light most favorable to the plaintiffs and believed by a jury,
would suffice to justify verdicts in favor of the plaintiffs.” Despite the distinction between
Grimes and this case, we reach a similar result here—that Ashley produced sufficient
evidence from which a trier of fact could conclude that a special relationship existed
between her and KKI, giving rise to a duty of care.
Lack of Indeterminate Class of Potential Plaintiffs
We reject KKI’s contention that recognizing a duty in this case creates an
indeterminate class of potential plaintiffs and would expose medical research institutions
to unending liability. Our primary holding is that KKI owes a duty of care to Ashley and
children like her, who were not participants in the R&M Study, but who KKI knew resided
with a participant of the study in a property subject to the study. This creates a finite and
identifiable group of potential plaintiffs to whom KKI owes a duty of care, and is most
likely to encompass siblings or other relatives of participants of the R&M Study who were
either too young (under six months old) or too old (over four years old) to be enrolled as
participants themselves. In other words, there exists an identifiable, limited class of
potential plaintiffs, and recognizing that KKI owes Ashley a duty of care does not subject
KKI to unlimited liability. And, at the risk of stating the obvious, just because we hold that
- 55 -
KKI owes Ashley a duty of care, this does not mean that KKI is necessarily liable for
negligence. Indeed, to prevail, Ashley and similarly situated children will nonetheless be
required to establish the three other elements of negligence—breach of the duty of care,
causation, and damages.
Inapplicability of Dehn, Doe, and Gourdine
This case is readily distinguishable in several key respects from Dehn, Doe, and
Gourdine—cases in which this Court declined to recognize a duty of care. In all three of
those cases, the injured person and the defendant had no relationship, or even any contact,
whatsoever. In Dehn, 384 Md. at 622, 865 A.2d at 612, we explained that, not only did the
wife and her husband’s doctor not have a physician-patient relationship, but also, the two
had never met or spoken to one another until trial. Similarly, in Doe, 388 Md. at 420, 879
A.2d at 1095, we explained that the employee’s wife “had no relationship with” the
employer, and that there was “no assertion in the complaint that she was ever an employee
of [the employer], that she had ever been tested for HIV or any other disease by [the
employer], or that she had ever had any contact with [the employer].” And, in Gourdine,
405 Md. at 750, 955 A.2d at 786, we observed that “there was no direct connection between
Lilly’s warnings, or the alleged lack thereof, and [] Gourdine’s injury[,]” and pointed out
that, indeed, there was no contact whatsoever between Lilly and Gourdine. By contrast,
here, KKI and Ashley had direct contact with one another. Indeed, KKI had a relationship
with Ashley’s entire family (herself, Martin, and Anquenette) by virtue of Anquenette’s
enrollment in the R&M Study, the family’s residence at the Property, which was subject to
the R&M Study, and KKI’s testing of Ashley’s blood-lead levels. In short, there was a
- 56 -
relational link and direct contact between KKI and Ashley that was wholly absent between
the injured individuals and defendants in Dehn, Doe, and Gourdine.
Moreover, Dehn, Doe, and Gourdine involved sequential attenuated events where
the injured individuals, in addition to having no relationship with the defendant, were not
directly exposed to a negligent act. For example, in Dehn, 384 Md. at 611-12, 865 A.2d at
606, the alleged negligent act happened to the husband, and the wife was later injured by
becoming pregnant. Likewise, in Doe, 388 Md. at 411-12, 879 A.2d at 1090-91, the alleged
negligent act occurred with respect to the husband-employee, and his wife was later injured
by engaging in unprotected intercourse with the husband and contracting HIV-2. And, in
Gourdine, 405 Md. at 726, 955 A.2d at 772, the alleged negligent act—failure to warn—
occurred vis-à-vis Crews, the user of the product, and not Gourdine, the injured individual.
By contrast, here, there were no sequential or attenuated events where an injured
individual was indirectly exposed to, or affected by, a defendant’s alleged negligent act.
Rather, any negligence flowing from the R&M Study occurred to Ashley at the same time
and location, under the same conditions, and in the same manner as to Anquenette. This is
not a situation in which KKI’s alleged negligent act occurred only or first with respect to
Anquenette, and then Ashley was injured later. Also, in Dehn, 384 Md. at 627, 865 A.2d
at 615, Doe, 388 Md. at 420, 879 A.2d at 1095, and Gourdine, 405 Md. at 750, 955 A.2d
at 786, this Court concluded that imposing a duty would create an indeterminate class of
potential plaintiffs. Such is not the case here. Dehn, Doe, and Gourdine are plainly
- 57 -
distinguishable in key respects from this case, and are not controlling.14
Conclusion
Under the circumstances of this case, based on the seven classic factors utilized by
courts for determining whether a duty of care exists, KKI owed Ashley a duty of care under
the common law. Thus, the circuit court erred in granting summary judgment in KKI’s
favor. Additionally, because there was sufficient evidence of a special relationship
between Ashley and KKI for the issue to be submitted to a jury, the grant of summary
judgment was improper on this ground as well. For these reasons, we affirm the judgment
of the Court of Special Appeals.15
JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED. PETITIONER TO PAY
COSTS.
14
We are unpersuaded by KKI’s contention that it was inconsistent for the Court of
Special Appeals to determine that a duty existed under the common law, while
acknowledging that the evidence supported a finding that KKI did not exercise “charge,
care or control” over the Property for purposes of liability under the Baltimore City
Housing Code. The Court of Special Appeals concluded that no duty of care arose under
the Baltimore City Housing Code because KKI did not satisfy the definitions of “owner,”
“operator,” or “agent” under the Baltimore City Housing Code. See Partlow, 2017 WL
4772626, at *9-10. In sum, the Court of Special Appeals did not determine that there was
a lack of control of the Property by KKI, only that KKI did not satisfy the definitions of
“owner,” “operator,” or “agent.”
15
At oral argument, KKI’s counsel contended that the Code of Federal Regulations
specified “to whom a duty is owed in terms of advising clinical research participants of the
risks and benefits of the study[,]” and that imposing a duty to a non-participant of a research
study would conflict with those regulations. KKI has not briefed the matter nor brought
the Court’s attention to any specific regulations that it contends would conflict with
imposition of a duty of care. At oral argument, Ashley’s counsel noted that, in its amicus
brief, Johns Hopkins cited 45 C.F.R. § 46.102(f), a regulation in Part 46, which sets forth
the Department of Health and Human Services’s policy for protection of human research
subjects. Ashley’s counsel argued that there would be no conflict with the federal
regulations should a duty be imposed on KKI. Given that the issue has not been briefed
by the parties, we will not address the matter.
- 58 -
Circuit Court for Baltimore City
Case No. 24-C-09-008243
Argued: May 8, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 82
September Term, 2017
KENNEDY KRIEGER INSTITUTE, INC.
v.
ASHLEY PARTLOW
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
Dissenting Opinion by Getty, J., which Barbera,
C.J. and McDonald, J. join.
Filed: August 13, 2018
Respectfully, I dissent. I disagree both with the Court’s holding that KKI owed a
duty of care to Ashley under traditional common law tort principles and with the Majority’s
conclusion that there was sufficient evidence of a special relationship between KKI and
Ashley, creating another ground on which a jury could find a duty existed. Instead, I would
affirm the trial court’s decision in granting summary judgment in favor of KKI and adopt
the sound reasoning of Judge Berger in his concurring and dissenting opinion in the Court
of Special Appeals.
In reaching both of this Court’s conclusions, the Majority relies heavily on a
previous case: Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29 (2001). In the original
Grimes opinion, this Court held that “special relationships, out of which duties arise, the
breach of which can constitute negligence, can result from the relationships between
researcher and research subjects.” Id. at 94. Therefore, this Court found that a duty arises
by way of a special relationship when a research institute, such as KKI, enters into an
agreement with a participating research subject, such as Ashley’s sister. Our opinion in
Grimes did not, however, analyze whether a special relationship existed between a research
institute and non-participants. Overall, the Grimes Court concluded:
The determination as to whether a “special relationship” actually exists is to
be done on a case by case basis. The determination as to whether a special
relationship exists, if properly pled, lies with the trier of fact. We hold that
there was ample evidence in the cases at bar to support a fact finder’s
determination of the existence of duties arising out of . . . a special
relationship[.]”
Id. at 113–14 (citations omitted).
As the Majority correctly recognizes, KKI filed a motion for reconsideration in
Grimes. In addition to the research institute, numerous amici1 filed briefs supporting KKI’s
motion for reconsideration. This Court ultimately denied the motion for reconsideration,
but clarified that “the only conclusion that we reached as a matter of law was that, on the
record currently before us, summary judgment was improperly granted[.]” Id. at 119.
The legal community expressed the view that Grimes left research institutions
questioning whether higher standards of care applied to studies conducted in Maryland.
Legal scholars also raised concerns that this Court’s opinion in Grimes improperly
characterized the goals of KKI’s research. See White v. Kennedy Krieger Inst., Inc., 221
Md. App. 601, 621–22 n. 8 (2015); see also David R. Buchanan & Franklin G.
Miller, Justice and Fairness in the Kennedy Krieger Institute Lead Paint Study: the Ethics
of Public Health Research on Less Expensive, Less Effective Intervention, 96 Am. J. Pub.
Health 781, 785 (May 2006); Jack Schwartz, The Kennedy Krieger Case: Judicial Anger
and the Research Enterprise, 6 J. Health Care L. & Pol’y 148 (2002); Loretta M.
Kopelman, Pediatric Research Regulations Under Legal Scrutiny: Grimes Narrows Their
Interpretation, J. Law, Med. & Ethics 38, 41 (2002).
Like Judge Berger, I do not believe that Grimes provides this Court with legal
support to hold that researchers have a duty to a child who was not a participant in the
research study. I am equally concerned that the Majority’s holding today has the potential
1
Amici included the Association of American Medical Colleges, the University of
Maryland Medial System, Johns Hopkins University, and the Association of American
Universities. Grimes, 366 Md. at 119, recons. denied (Oct. 11, 2001).
2
to create a duty to “indeterminate classes of people.” Partlow v. Kennedy Krieger Inst.,
No. 44, 2017 WL 4772626, at *13 (Md. Ct. Spec. App. Oct. 23, 2017) (Berger, J.,
concurring and dissenting). The Majority contends that the class of people to whom KKI
will owe a duty of care is “a finite and identifiable group of potential plaintiffs . . . likely to
encompass siblings or other relatives of participants of the R&M Study who were either
too young (under six months old) or too old (over four years old) to be enrolled as
participants themselves.” Maj. Slip Op. at 54 (emphasis added). In my view, the Majority
does not fully appreciate that today’s decision “expand[s] the universe of potential
plaintiffs.” Dehn v. Edgecombe, 384 Md. 606, 627 (2005). Indeed, this Court’s opinion
now exposes KKI to a large number of negligence actions brought by siblings and relatives
with whom the researchers did not enter into an agreement, did not monitor “in the same
manner as they monitored study participants[,]” and did not purport to provide care.
Partlow, No. 44, 2017 WL 4772626, at *14 (Berger, J., concurring and dissenting).
Moreover, the Majority does not consider the possibility that individuals outside of
siblings and relatives who live with participants in research study will employ this Court’s
holding to assert a similarly extended duty of care. For example, a boyfriend or girlfriend
who lived full-time in the subject property could argue that this Court’s reasoning should
apply in his or her circumstance, resulting in KKI owing a duty to individuals unrelated to
study participants. Another potential plaintiff could be the children of boyfriends,
girlfriends, or other residents of a transient nature, who resided in the subject property part-
time but did not participate in the research study. Such an unrelated child could also argue
that a duty of care should be extended to those circumstances. As is exposed by these
3
hypotheticals, this Court has intentionally limited a duty of care to “manageable bounds”
to prevent boundless liability based on the same action. Dehn, 384 Md. at 627. In other
words, I fear the Court’s extension of our limited holding in Grimes, 366 Md. at 94, to a
duty of care owed to non-participant children will eventually be extended to another class
of potential plaintiffs, leading to further unforeseen liability for researchers. Thus, I would
hold that a duty of care to a non-participant child “is not one which Maryland law is
prepared to recognize[.]” Dehn, 384 Md. at 627.
I am also concerned by the fact that the Majority expanded the holding of the Court
of Special Appeals below. Specifically, the Court of Special Appeals majority opinion by
The Honorable Douglas R. M. Nazarian held only that there was a special relationship
between KKI and Ashley, requiring the same duty of care to Ashley that KKI owed to
study participants. Partlow, No. 44, 2017 WL 4772626, at *8–9. This Court today holds:
(1) KKI owed a duty of care to Ashley under traditional common law tort principles; and
(2) that there is sufficient evidence to find a special relationship between KKI and Ashley,
creating a duty of care. The two holdings by this Court provide potential plaintiffs with
two alternatives from which to plead duty of care. As a result of the Majority’s expanded
holding, non-participant individuals can now file a complaint for negligence against KKI
alleging that the research institute owed a duty of care under traditional common law tort
principles and that there was a special relationship, providing an alternative ground from
which a court can find a duty of care. Therefore, I am even more troubled by the possibility
that an indeterminate class of potential plaintiffs now has two options from which to allege
duty of care on the part of research institutions.
4
For these reasons, I respectfully dissent. Chief Judge Barbera and Judge McDonald
have authorized me to state that they join this dissenting opinion.
5