Rich v. Dennison Plumbing & Heating et al

Filing 48

MEMORANDUM OPINION. Signed by Judge Stephanie A. Gallagher on 1/7/2025. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WHITNEY RICH, on behalf of C.W.,

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Plaintiff,
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v.
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DENNISON PLUMBING & HEATING, et al., *
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Defendant.
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Case No. 1:23-cv-00705-SAG

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MEMORANDUM OPINION
This case involves serious burn injuries sustained by a young infant in a whirlpool bathtub
in a rental property in Frederick, Maryland. Pending before this Court are two motions for
summary judgment: one filed by Defendant Marilyn L. Hess (nee Dennison) Individually and as
Trustee of the Marilyn L. Dennison Trust of 2001 U.A.D. and the Herbert M. Dennison Trust of
2001 U.A.D. (collectively “the Landlord Defendants”) and one filed by Defendant Dennison
Plumbing & Heating (“the Plumbing Defendant”). ECF 38, 39. This Court has reviewed the
motions and Plaintiff’s oppositions, ECF 42, 43, along with the related exhibits. This Court also
entertained argument at a motions hearing on December 2, 2024. Plaintiff subsequently filed a
motion for leave to file a supplemental brief, ECF 46, which Defendants opposed, ECF 47. After
full consideration, for the reasons set forth below, Plaintiff’s motion to file a supplemental brief,
ECF 46, will be GRANTED. 1 The Plumbing Defendant’s motion, ECF 39, will also be GRANTED
and the Landlord Defendants’ motion, ECF 38, will be GRANTED as to Counts I and II and
DENIED as to Count IV.

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This Court has considered the arguments made in Plaintiff’s supplemental brief, ECF 46-2, but
deems them unpersuasive for the reasons described herein.
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I.

FACTUAL BACKGROUND
This case arises out of an incident in March of 2008, in which a very young infant, C.W.,

was placed on her back in an empty whirlpool bathtub by her mother, Plaintiff. One of the infant’s
young siblings (who were ages 4 and 2 at the time) turned on the hot water in the tub while Plaintiff
briefly exited the room. The water caused the infant to suffer second- and third-degree burns and
require extensive medical care, continuing to the present day. Plaintiff alleges that the Landlord
Defendants and Plumbing Defendant are liable for C.W.’s injuries because the excessively hot
water temperature in the rental property resulted in the burns. ECF 3.
Defendants acknowledge that there are factual disputes relating to the underlying incident,
including whether Plaintiff ever informed Defendant Hess that she noticed an issue with
excessively hot water in the rental property. Defendants’ motions for summary judgment, however,
are premised on excluding the testimony of the only expert witness Plaintiff has designated: Jason
S. Kiddy, Ph.D. This Court will begin, therefore, with summarizing Dr. Kiddy’s qualifications,
report, and deposition testimony.
Dr. Kiddy earned degrees in physics, mechanical engineering, and aerospace engineering.
ECF 42-13. He has worked in engineering since 1996, holds several patents, and belongs to
professional associations including the American Society of Mechanical Engineers, the National
Association of Fire Investigators, and the National Fire Protection Association. Id. He has an
extensive number of technical publications, though none of those on his CV appear to be plumbingrelated. Id. at 5. 2 His CV lists twenty-one “areas of expertise,” ranging from “hunting equipment”
to “premise liability” to “manufacturing processes.” Id. at 2.

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For all pincites, this Court uses the ECF page numbers in the header at the top of the page
rather than the page numbers in the footer at the bottom of the page or the page numbering in
deposition transcripts.
2

In his expert report, Dr. Kiddy reached the following eight opinions “to a reasonable degree
of scientific and engineering certainty:”
1. The industry has settled on 120°F as the desired hot water temperature since at
least 1993, 15 years prior to [C.W.’s] incident.
2. Although an ASSE 1016 compliant valve, which is required on all shower
installations, would have been adequate and would have protected [C.W.] from
her burns, it was not specifically required by the governing codes.
3. Based on the overall configuration of the subject plumbing system, specifically
that the mixing of the hot and cold water occurs within the sidewall of the
bathtub, a TAFR valve installed on the hot water supply prior to the bathtub
would have been the most practical approach to limiting the bathtub
temperature.
4. The plumbing codes in effect at the time of the original construction in 1995
clearly recognize the hazard of hot water temperatures in excess of 120°F.
5. The plumbing codes in effect at the time of the accident and all subsequent
codes require water temperature limiting devices with a maximum allowable
water temperature of 120°F for bathtubs without showers and whirlpool tubs.
6. The defendants should have recognized the hazard created by the uncontrolled
hot water temperature leading to the subject bathtub. The defendants had the
capability and know-how to install a temperature limiting valve to bring the
bathtub up to plumbing code and to provide a safe environment for their tenants.
Despite having the knowledge and skills to remedy the hazard, the defendants
chose not to do so thereby ultimately resulting in [C.W.’s] injuries. This failure
constitutes a breach of the standard of care in which the defendants owed
[Plaintiff] and her children.
7. If no other means exist to provide scald protection, lowering the temperature of
the hot water is an option, especially in the short term while other codecompliant measures are put in place. However, the water heater temperature
control should never be considered as a permanent solution.
8. If the water temperature was controlled and limited to 120°F, [Plaintiff] would
have had approximately eight minutes to discover that the water had been
turned on and to prevent [C.W.’s] injuries.
ECF 42-10 at 10-11. The report indicates that Dr. Kiddy relied upon two pre-construction versions
of the BOCA National Plumbing Code (from 1990 and 1993) and then two post-incident versions
of the ICC International Plumbing Code (from 2009 and 2018). Id. at 5-6. The report acknowledges
that neither of the pre-construction codes “specifically address bathtubs or whirlpool bathtubs. Nor
do they address TAFR or temperature limiting valves.” Id. at 8. The report relies upon a study of
thermal injury by A.R. Moritz and F.C. Henriques to provide a table purporting to indicate the
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amount of time it would take for second degree burns with exposure to water at various
temperatures. Id. at 9-10. The report acknowledges that the table does not address the time it would
take for an infant to sustain various burning injuries. See id. at 9 (“likely even lower for an infant
with thinner skin”). Dr. Kiddy’s report also referenced a test performed by “the Frederick police
department” which “obtained results of 132 +/- 3°F (129°F to 135°F).” Id. at 9. 3
At his deposition, Dr. Kiddy explained that he has had a couple of professional cases
involving hot water heaters, one involving a “sooting event” where the exhaust from the heater
was dirty and one dealing with the installation of a hot water heater and the resulting impact on
plumbing in the area. ECF 38-7 at 6-7. He explained that he has not had any involvement with
temperature control of whirlpool tubs, and that this was the first case where he evaluated the
temperature control of whirlpool tubs or hot water heaters. Id. at 7. He testified that the
“temperature measurement that was made by the county…was useful in my analysis.” Id. at 12.
He also explained that his task was to identify whether the plumbing “and whether the defendants
were negligent in allowing the plumbing to be in the condition that it was in” contributed to C.W.’s
injuries. Id.
II.

MOTION TO EXCLUDE EXPERT TESTIMONY
A. Legal Standards
Federal Rule of Evidence 702 governs the admissibility of expert witness testimony. A

qualified expert may give testimony if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
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The police report appears at ECF 42-4. In relevant part, it describes that on October 10, 2008,
Frederick County Officer Gilbert Curtis Lege “contacted [Plaintiff] at her residence. She advised
that yes the gas was turned back on in the residence . . . I checked the temperature of the hot water.
I got a reading of 132 degrees plus or minus three degrees.” Id. at 6.
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(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. In essence, the trial court must ensure the proposed expert testimony “both rests
on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 597 (1993). In Daubert, the Supreme Court provides five non-exhaustive factors a
court may weigh in making this assessment: (1) “whether a theory or technique . . . can be (and
has been) tested,” (2) “whether the theory or technique has been subjected to peer review and
publication,” (3) “the known or potential rate of error,” (4) “the existence and maintenance of
standards controlling the technique’s operation,” and (5) whether the technique or theory has
gained “general acceptance.” Daubert, 509 U.S. at 592-94; Pugh v. Louisville Ladder, Inc., 361 F.
App’x 448, 452 (4th Cir. 2010). However, ultimately, the inquiry is “a flexible one” and relevant
factors can vary with the needs of each case. Daubert, 509 U.S. at 594.
For the proffered evidence to be sufficiently reliable it “must be derived using scientific or
other valid methods” and not based on mere “belief or speculation.” Casey v. Geek Squad
Subsidiary Best Buy Stores, L.P., 823 F. Supp. 2d 334, 340 (D. Md. 2011) (quoting Oglesby v.
Gen. Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999)). The court’s analysis focuses on experts’
methods, not their conclusions, but an expert opinion that relies on “assumptions which are
speculative and are not supported by the record,” is inadmissible. Tyger Const. Co. Inc. v.
Pensacola Const. Co., 29 F.3d 137, 142 (4th Cir. 1994); see also Gen. Elec. Co. v. Joiner, 522
U.S. 136, 146 (1997) (“[N]othing in either Daubert or the Federal Rules of Evidence requires a
district court to admit opinion evidence that is connected to existing data only by the ipse dixit of
the expert. A court may conclude that there is simply too great an analytical gap between the data
and the opinion proffered.”). For the proffered opinion to be relevant, it “must be ‘sufficiently tied

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to the facts of the case that it will aid the jury in resolving a factual dispute.’” Casey, 823 F. Supp.
2d at 341 (quoting Daubert, 509 U.S. at 591). Expert testimony “is presumed to be helpful unless
it concerns matters within the everyday knowledge and experience of a lay juror.” Anderson v.
Home Depot U.S.A., Inc., Civ. No. GJH-14-2615, 2017 WL 2189508, at *4 (D. Md. May 16, 2017)
(quoting Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993)).
The proponent of the expert testimony bears the burden of establishing its admissibility, or
“coming forward with evidence from which the trial court could determine that the evidence is
admissible under Daubert.” Id. at *3 (quoting Main St. Am. Grp. v. Sears, Roebuck, & Co., Civ.
No. JFM-08-3292, 2010 WL 956178, at *3 (D. Md. Mar. 11, 2010)); see also Casey, 823 F. Supp.
2d at 340; Daubert, 509 U.S. at 592 n.10 (explaining admissibility must be established by a
“preponderance of proof”).
In determining the admissibility of expert testimony, the court considers two “guiding, and
sometimes competing, principles.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.
1999). On the one hand, Rule 702 was “intended to liberalize the introduction of relevant expert
evidence,” and the court need not ensure the expert’s proposed testimony is “irrefutable or
certainly correct.” Id. (explaining that admissible expert testimony can still be vigorously tested
before the jury by “cross-examination, presentation of contrary evidence, and careful instruction
on the burden of proof” (quoting Daubert, 509 U.S. at 596)). On the other hand, “due to the
difficulty of evaluating their testimony, expert witnesses have the potential to ‘be both powerful
and quite misleading.’” Id. (quoting Daubert, 509 U.S. at 595). The court must determine whether
the disputed expert testimony “has a greater potential to mislead than to enlighten.” Id. If so, the
testimony should be excluded. Id.; see also Casey, 823 F. Supp. 2d at 341 (noting such testimony
would be barred by Federal Rule of Evidence 403).

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B. Analysis
Three distinct issues have been raised with respect to Dr. Kiddy’s testimony. First,
Defendants contend that Dr. Kiddy improperly relied on the unreliable water temperature reading
from the police report to support his opinion that the water temperature at the time of the incident
exceeded 120 degrees. ECF 38-1 at 4-5. Second, Defendants contend that Dr. Kiddy admitted that
he has no evidence of a code violation at the residence, and that his testimony regarding
purportedly applicable “standards” is inherently unreliable because the standards he cites do not
apply to whirlpool tubs. Id. at 6-7. Third, as they argued at the motions hearing, Defendants
contend that Dr. Kiddy lacks the requisite knowledge, skill, and experience to provide testimony
establishing the duties owed by plumbers to tenants at residential premises. Id. at 6 n.1. This Court
will address each argument in turn.
First, with respect to the water temperature reading, the police report, ECF 42-4, as an outof-court statement, is hearsay and the author is unavailable to testify. Plaintiff contends, in her
supplemental filing, that the police report is admissible under the exception set forth in Federal
Rule of Evidence 803(8) for public records. ECF 46-2 at 2-3. Rule 803(8) provides for the
admission of:
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities
(ii) a matter observed while under a legal duty to report, but not including,
in a criminal case, a matter observed by law enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.
Even assuming that the provisions of Rule 803(8) (A) are met, Defendants have shown that the
circumstances indicate “a lack of trustworthiness.” Defendants correctly observe that the report

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provides no information about the equipment used, the calibration of the equipment, the
methodology used to take the temperature (including where the sample was taken or the length of
time the water ran before measuring), or the number of samples taken. ECF 38-1 at 13-14. And
Officer Lege’s temperature reading was taken almost seven months after the incident, following a
period of time in which the gas at the property had been turned off. This Court concludes that those
facts demonstrate a “lack of trustworthiness” sufficient to exclude the police report from
admissibility under the hearsay exception in Rule 803(8).
Moreover, while expert witnesses are allowed to rely on hearsay evidence under Rule 703,
the evidence must be of a type that would be reasonably relied upon by experts in the field. The
temperature reading here would not meet that requirement, for all the reasons described above. It
is simply too farfetched to believe that a temperature reading taken seven months after the incident
using unknown methodology and instrumentation represents an accurate assessment of the water
temperature in the whirlpool tub back in March, 2008. Any portion of Dr. Kiddy’s testimony
relying on that inadmissible temperature reading is itself inadmissible. 4
Second, this Court agrees that Dr. Kiddy’s opinions regarding applicable codes and
standards are not methodologically sound. He opines that, “The industry has settled on 120°F as
the desired hot water temperature since at least 1993, 15 years prior to [C.W.’s] incident,” and that
“[t]he plumbing codes in effect at the time of the original construction in 1995 clearly recognize
the hazard of hot water temperatures in excess of 120°F.” ECF 42-10 at 7. Those statements are
not supported by the code provisions he cites. Setting aside the legitimate issue of whether the
codes Dr. Kiddy cites were even applicable in Frederick County, Maryland at the time of the unit’s

This Court notes that none of Dr. Kiddy’s eight opinions directly reference the officer’s
temperature reading, although his opinions clearly assume that the water temperature exceeded
120°F at the time of the incident. See ECF 42-10 at 10-11.
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construction, the BOCA provisions he cites refer to showers, not bathtubs or whirlpool tubs. See
id. at 5. While Dr. Kiddy certainly cites to later codes that extended 120°F requirements to tubs
and whirlpools, see id. at 6, he has no evidence that those codes imposed any legal requirement on
Defendants. There is no evidence that Defendants made repairs or improvements to the whirlpool
tub or the unit’s plumbing system since the original construction in 1995. Dr. Kiddy’s assessments
about what the industry “settled on” or what the plumbing codes “recognized” are not tied to any
scientific method, industry standard, or factual premise. See id. at 7, 10. Such ipse dixit reasoning
cannot be the basis for an admissible expert opinion. See Kumho Tire Co. v. Carmichael, 526 U.S.
137, 157 (1999) (“[N]othing in either Daubert or the Federal Rules of Evidence requires a district
court to admit opinion evidence that is connected to existing data only by the ipse dixit of the
expert.” (quoting General Electric v. Joiner, 522 U.S. 136, 146 (1997)).
Finally, Dr. Kiddy’s CV reflects that he has the knowledge, skill, and experience to serve
as an expert witness in certain areas relating to mechanical engineering, aerospace engineering,
and physics. See Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 799 (4th Cir. 1989) (“[O]nly
experts qualified by ‘knowledge, skill, experience, training, or education’ may submit an opinion.”
(quoting Fed. R. Evid. 702)). However, his CV claims twenty-one “areas of expertise,” ECF 4213. Merely listing general topics as “areas of expertise” does not automatically qualify a person to
serve as an expert. That warning is particularly apt when claimed “areas of expertise” are as broad
as “Codes and Standards” or “Warnings and Instructions.” Id. Here, while Dr. Kiddy claims
generally to have an area of expertise in “Plumbing/Gas Equipment,” closer examination reflects
that he has not worked as a plumber or obtained training as a plumber. See id. He lacks specific
knowledge, skill, experience, training, or education in residential plumbing and the duties owed
by plumbers and landlords that would be relevant in this case. Moreover, the “codes and standards”

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he cites in his report do not suggest use of a reliable methodology to reach his conclusions about
industry standards. See Fed. R. Evid. 702(c)-(d); see also JFJ Toys, Inc. v. Sears Holdings Corp.,
237 F. Supp. 3d 311, 322 (D. Md. 2017) (“Expert testimony rooted in subjective belief or
unsupported speculation does not suffice.” (quoting Zuckerman v. Wal–Mart Stores E., L.P., 611
F. App’x 138, 138 (4th Cir. 2015))). As a result of his lack of credentials in the relevant subject
matter and the lack of adequate foundation for his opinion testimony, Dr. Kiddy’s opinions must
be excluded. 5
III.

MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment “shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Defendants, as the moving party, bear the burden of showing that there is no genuine dispute of
material facts. See Casey v. Geek Squad, 823 F. Supp.2d 334, 348 (D. Md. 2011). If Defendants
establish that there is no evidence to support Plaintiff’s case, the burden then shifts to Plaintiff to

The majority of Dr. Kiddy’s eight opinions are not relevant to establishing duty, breach, or
causation. Opinions 1 and 4, as described above, lack a basis in the codes and standards Dr. Kiddy
cites. See ECF 42-10 at 10. Opinions 2, 3, and 7 are simply irrelevant as they discuss potential
mechanisms for lowering water temperature without providing any basis for a duty owed by
Defendants to do so. See id. Opinion 5 is irrelevant also because it discusses codes that were not
in effect at the time of construction in this case. Id. Opinion 6 talks about the “knowledge,” “skills,”
“capability” and “know-how” possessed by Defendants as licensed plumbers, but then
inexplicably conflates the technical ability to take certain actions with a duty to do so. Id. And
Opinion 8, about the length of time it would take water at 120 degrees to burn C.W., is well outside
Dr. Kiddy’s expertise, even assuming the twenty-one “areas of expertise” he cites. See id. at 11.
In fact, he concedes elsewhere in his opinion that it could take less time to burn an infant with
thinner skin. Id. at 9.
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proffer specific facts to show a genuine issue exists for trial. Id. Plaintiff must provide enough
admissible evidence to “carry the burden of proof at trial.” Id. at 349 (quoting Mitchell v. Data
Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993)). The mere existence of a scintilla of evidence
in support of Plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for Plaintiff. Id. at 348 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251 (1986). Moreover, a genuine issue of material fact cannot rest on “mere speculation, or
building one inference upon another.” Casey, 823 F. Supp. 2d at 349.
Additionally, summary judgment shall be warranted if the non-moving party fails to
provide evidence that establishes an essential element of the case. Plaintiff “must produce
competent evidence on each element of his or her claim.” Miskin v. Baxter Healthcare Corp., 107
F. Supp. 2d 669, 671 (D. Md. 1999). If Plaintiff fails to do so, “there can be no genuine issue as to
any material fact,” because the failure to prove an essential element of the case “necessarily renders
all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Casey,
823 F. Supp. 2d at 348-349. In ruling on a motion for summary judgment, a court must view all of
the facts, including reasonable inferences to be drawn from them, “in the light most favorable to
the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
B. Analysis
Plaintiff’s Complaint has three counts remaining: negligence, premises liability, and breach
of lease. The negligence claim is asserted against both the Landlord Defendants and the Plumbing
Defendant, while the other two claims are asserted against the Landlord Defendants only. ECF 3
at 5-11, 14-17. This Court notes that the Landlord Defendants’ argument for summary judgment,
essentially, is that without expert testimony from Dr. Kiddy, Plaintiff cannot prove the standard of

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care required to establish either a duty of care or a breach of such duty. ECF 38-1 at 15. Defendants’
motions do not, however, make any particularized argument for dismissal of Plaintiff’s breach of
lease claim. No expert testimony or other standard of care evidence is required for such a claim.
“To prevail in an action for breach of contract, a plaintiff must prove that the defendant owed the
plaintiff a contractual obligation and that the defendant breached that obligation.” Taylor v.
NationsBank, N.A., 776 A.2d 645, 651 (Md. 2001); Noel v. PACCAR Fin. Corp., 568 F. Supp. 3d
558, 569 (D. Md. 2021). Under Maryland law, the elements of a claim for breach of contract are
“contractual obligation, breach, and damages.” Parkway 1046, LLC v. U.S. Home Corp., 961 F.3d
301, 307 (4th Cir. 2020) (quoting Kumar v. Dhanda, 17 A.3d 744, 749 (Md. Ct. Spec. App. 2011).
This Court is unpersuaded, then, that the legal standards for all three of Plaintiff’s claims are
sufficiently similar to justify summary judgment on Plaintiff’s breach of lease claim solely based
on the arguments raised in the Landlord Defendants’ motion. That motion therefore will be denied
as to Count IV and addressed as to Counts I and II below. 6
1. Negligence Claim against the Plumbing Defendants
Under well-established Maryland negligence jurisprudence, a properly pleaded claim of
negligence includes four elements. Specifically, a plaintiff must show 1) that defendant owed a
duty to protect the plaintiff from injury, (2) that defendant breached that duty, (3) that defendant’s
breach of the duty proximately caused the loss or injury suffered by the plaintiff, and (4) that the
plaintiff suffered actual loss or injury. See Troxel v. Iguana Cantina, LLC, 29 A.3d 1038, 1049

While this Court need not address this issue given the Landlord Defendants’ failure to make
particularized arguments for summary judgment on the breach of lease claim, it notes that the
parties will need to grapple with whether personal injury damages are recoverable as consequential
damages in a contract-based claim. Plaintiff’s complaint does not seem to seek recovery for more
traditional measures of damages sustained in a breach of lease, such as return of rent. See ECF 3
at 14-17.
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(Md. Ct. Spec. App. 2011). Here, without the testimony of Dr Kiddy, Plaintiff offers no expert
testimony to establish the standard of care owed by a plumber. In Schultz v. Bank of America, N.A.,
990 A.2d 1078, 1086 (Md. 2010), the Maryland Supreme Court explained, “Where the plaintiff
alleges negligence by a professional, expert testimony is generally necessary to establish the
requisite standard of care owed by the professional.” Id. (citing Rodriguez v. Clarke, 926 A.2d
736, 755 (Md. 2007)).
Plaintiff argues that she can employ the testimony of Defendant Hess and her son, who are
licensed plumbers, to establish the standard of care. But the testimony Plaintiff desires to elicit is
barred by Federal Rule of Evidence 701, which provides:
If a witness is not testifying as an expert, testimony in the form of an opinion is
limited to one that is:
(a) Rationally based on the witness’s perception;
(b) Helpful to clearly understanding the witness’s testimony or to determining
a fact in issue; and
(c) Not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.
Fed. R. Evid. 701. Here, Plaintiff and her son have not been designated as experts. Neither testified
as to the standard of care plumbers would owe, either as to the installation of a hot water system
or whirlpool tub in 1995 or to the subsequent maintenance of such a system. To the extent that the
son answered a hypothetical question posed to him during deposition about a duty owed by a
plumber informed of a safety issue by a residential tenant, his answer to that hypothetical would
constitute impermissible opinion testimony under Rule 701.
Finally, Plaintiff asserts that she does not need expert testimony to establish the relevant
standard of care in this circumstance. ECF 42 at 11-14. She relies on Rebert v. Brook Furniture
Rental, Inc., No. 8:20-CV-00067-GLS, 2021 WL 4339130 at *12 (D. Md. Sept. 23, 2021), to argue
that no expert testimony is required “where the alleged negligence falls within the ken of the

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average juror.” See ECF 42 at 12. The Rebert Court cites Schultz, in which the Maryland Supreme
Court acknowledges that expert testimony is not required where “the alleged negligence is so
obvious that the trier of fact could easily recognize that such actions would violate the applicable
standard of care.” 990 A.2d at 1087. As examples, the Schultz Court cited “cases where a dentist
extracts the wrong tooth, a doctor amputates the wrong arm or leaves a sponge in a patient’s body,
or an attorney fails to inform his client that he has terminated his representation of the client.” Id.
This case does not present anything close to the degree of obvious negligence required to
vitiate the standard requirement of expert testimony. The factfinder in this case will require an
understanding of the scope of a plumber’s duty to investigate a complaint of excessively hot water
made by a residential tenant. That scope is not something within the understanding of a common
layperson. It is not, therefore, akin to understanding that a doctor violates his duty of care when he
removes the wrong tooth or leg. Expert testimony would be required to establish the requisite
standard of care owed by a plumbing professional. Without such admissible testimony, the
Plumbing Defendant’s motion for summary judgment, ECF 39, must be granted.
2. Claims against Landlord Defendants
“Premises liability is based on common-law principles of negligence, so a plaintiff must
establish the four elements required in any negligence action.” Macias v. Summit Mgmt., Inc., 220
A.3d 363, 375 (Md. 2019) (citing Troxel v. Iguana Cantina, LLC, 29 A.3d 1038, 1048 (Md. Ct.
Spec. App. 2011)). Thus, both the negligence and premises liability claims against the Landlord
Defendants are governed by the familiar “duty-breach-causation-damages” standard described
above.
The duty that is owed by a property owner is determined by the injured person’s legal status
at the time of the incident. See Troxel, 29 A.3d at 1049-50. Here, it is clear that the parties had a

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landlord/tenant relationship. The general rule is that a landlord is not liable for injuries caused by
defects or dangerous conditions in a leased premises because the landlord “has parted with control”
upon executing the lease. Marshall v. Price, 162 Md. 687, 689 (Ct. App. 1932) (“The law is well
settled that, when the owner has parted with his control, the tenant has the burden of the proper
keeping of the premises, in the absence of an agreement to the contrary . . .”). There is an exception
when a landlord knows of a hidden dangerous condition and the tenant does not, but that is
inapplicable here because Plaintiff expressly asserts that she discovered the excessively hot water
before the incident occurred and informed her landlord. ECF 42 at 2. There is also an exception to
the rule of non-liability where the landlord has agreed to make certain repairs or improvements or
has negligently repaired the premises, but here there is no evidence of either. Plaintiff merely avers
that she advised Defendant Hess of what she believed to be excessively hot water on one or two
occasions, and Defendant Hess took no action in response. Id.
While Plaintiff seems to argue here that the Landlord Defendants’ coincidental training as
plumbers alters the duty they owed to her as their tenant, Plaintiff cites no case law substantiating
an enhanced duty. Plaintiff offers no expert testimony from a property manager or experienced
landlord to establish why the Landlord Defendants would owe her a duty in these circumstances.
Landlords are not general insurers of their tenants’ safety, and there are necessary items in homes
(such as stovetops and electrical sockets) that can pose an inherent danger when used without
adequate care. Ultimately, in the absence of evidence to establish an exception to the general rule
that a landlord is not liable to a tenant for a known dangerous condition, Plaintiff has not
established a duty owed or a breach of duty. Summary judgment must be granted in favor of the
Landlord Defendants as to Counts I and II.

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IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Leave to File Supplemental Brief,

ECF 46, will be GRANTED. The Plumbing Defendant’s Motion for Summary Judgment, ECF 39,
is GRANTED and judgment will be entered in favor of Defendant Dennison Plumbing & Heating
against Plaintiff. The Landlord Defendants’ Motion for Summary Judgment, ECF 38, will be
GRANTED as to Counts I and II and DENIED as to Count IV. A separate order is filed herewith.
Dated: January 7, 2025

/s/
Stephanie A. Gallagher
United States District Judge

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