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By Michael Frisch

The Maryland Appellate Court

The appellant, Candace McCarthy (“McCarthy”), sued the appellee, Board of Commissioners for Frederick County, Maryland (the “County”), for negligence and private nuisance. McCarthy, who worked for the Office of the Public Defender (the “OPD”), claimed that she suffered respiratory injuries due to exposure to black mold while working in the John Hanson House.  This building is part of the Frederick County Courthouse Complex, where the OPD leased office space from the County.

After conducting discovery, the County moved to dismiss or, in the alternative, for summary judgment on both claims. The court granted summary judgment on the negligence claim because it was barred by governmental immunity. It also granted summary judgment on the private nuisance claim on the merits. On appeal, McCarthy presents two questions, which we have rephrased:

1. Did the circuit court err in granting summary judgment as to the negligence claim on the basis that the County enjoys governmental immunity?

2. Did the circuit court err in granting summary judgment as to the private nuisance claim?

For the following reasons, we answer both questions in the negative and affirm the judgment of the circuit court.

The claim

The Frederick County Courthouse Complex, located at 100 West Patrick Street in Frederick, Maryland, consists of two buildings: (1) the courthouse proper, where court proceedings occur and where certain State and County agencies are located; and (2) the John Hanson House, where the OPD leased office space from the County during the relevant period.

In August 2017, McCarthy began working at the OPD. She worked in the John Hanson House, where she claimed to smell a constant, damp, and mildewy odor from the building and its air vents that made her ill. In 2018, she complained about the problem and learned that mold was present in the building’s basement. She asserted that her exposure to the mold resulted in her developing an autoimmune disease. Thereafter, McCarthy sued the County for negligence and private nuisance.