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Blackburn Ltd. P'ship v. Paul

Court of Appeals of Maryland

April 28, 2014


Argued February 7, 2014

As Amended April 28, 2014.

Page 465

Certiorari to the Court of Special Appeals (Circuit Court for Montgomery County. Case No. 346737-V) Louise Scrivener JUDGE.


ARGUED BY Margaret Fonshell Ward (Ward & Herzog, LLC of Baltimore, MD) on brief FOR PETITIONERS.

ARGUED BY Timothy F. Maloney (Veronica Byam Nannis, Levi S. Zaslow, Joseph, Greenwald & Laake, P.A. of Greenbelt, MD; Peter C. Grenier, Andre M. Gregorian, Bode & Grenier, LLP of Washington, DC) on brief FOR RESPONDENT.

ARGUED BEFORE: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, and Eldridge, John C., (Retired, Specially Assigned), JJ.


Page 466

[438 Md. 103] Adkins, J.

This case involves the intersection of two distinct principles in our tort jurisprudence. On one hand, Maryland law recognizes that property owners owe no affirmative duty of care to trespassers. On the other hand, settled Maryland precedent acknowledges that, in some instances, the duty of care in a negligence action may arise from statute or regulation. Our task is to examine this intersection, and clarify the relationship between these two facially divergent principles.


Around 9 a.m. on June 13, 2010, three-year-old Christopher Paul and his ten-year-old brother, Andre, went to play outside their parents' apartment home at Country Place Apartments (" Country Place" ) in Burtonsville, Maryland. The two boys returned to the apartment three times before going back outside to continue playing. A few minutes after the boys went outside for the third time, Andre came to the apartment and asked the boys' mother, Alicia Paul (" Respondent" ), where Christopher was. Respondent and Andre went outside to look for Christopher, with Respondent looking between cars in the parking lot while Andre looked behind the apartment building. Respondent and Andre then began walking on the sidewalk toward the apartment complex's pool, all the while shouting Christopher's name and continuing to look between the cars in the parking lot.

Eventually Respondent decided to move toward the pool. Upon nearing the pool, Respondent saw Christopher's t-shirt and slippers just inside the pool's gate. Respondent attempted to push the gate open, but could not do so. At that time, the pool's lifeguards arrived, and Respondent asked them to open the gate. After one of the lifeguards unchained the gate, Respondent ran to the pool and saw that Christopher was submerged in the water. One of the lifeguards jumped into the pool and pulled Christopher out of the water. The lifeguards began CPR while Respondent spoke to a 911 operator. Police officers responded to the scene, relieving one of the lifeguards who was performing chest compressions while the other lifeguard continued to perform rescue breaths. These efforts continued until paramedics arrived and transported Christopher to the pediatric emergency room at Howard County General Hospital.

As a result of this near drowning, Christopher sustained a severe anoxic brain injury. He now has multiple, complex medical conditions. Christopher is dependent on others for mobility and feeding, is largely unresponsive, and has neither volitional movements nor functional vision. These conditions [438 Md. 105] require continuous care. Doctors do not expect Christopher's various medical conditions to improve in the future.

On December 17, 2010, Respondent filed a complaint against Second Blackburn Limited Partnership (" Second Blackburn" ),[1] Berkshire Property Advisors, L.L.C. (" Berkshire" ),[2] and Community Pool Service, Inc. (" CPS" )[3] (collectively,

Page 467

" Petitioners" ) in the Circuit Court for Baltimore City.[4] The complaint alleged negligence and negligence per se, and sought compensatory damages for medical expenses in the amount of $15,000,000, plus costs and interest. Respondent's negligence action alleged that Petitioners breached " a duty to maintain the Country Place pool in a reasonably safe condition for all residents of Country Place Apartments, and particularly children of all ages, including Christopher." Respondent's negligence per se action alleged that Petitioners breached statutory and regulatory duties by failing to comply with pool regulations set forth in the Code of Maryland Regulations (" COMAR" ) et seq .,[5] Montgomery County Code § 51-1 et seq., and Code of Montgomery County Regulations (" COMCOR" ) 51.00.01 et seq .

Blackburn and Berkshire filed a motion for summary judgment with respect to all of Respondent's claims, arguing that because Christopher was a trespasser, they only owed a duty [438 Md. 106] to refrain from willfully or wantonly injuring Christopher. Blackburn and Berkshire further stated that the alleged violations of state and county codes could not create a duty to Christopher because he was a trespasser, and argued that Christopher's unsupervised play was the intervening, superseding cause of his injuries. CPS also filed a motion for summary judgment, arguing that as Blackburn's agent, it could not have owed Christopher a duty greater than the duty that Blackburn owed to him.

After a hearing, the Circuit Court issued an order granting Petitioners' motions for summary judgment. The Circuit Court held that Christopher's status changed from invitee to trespasser when he entered the pool area, and as a result, the only common-law duty owed " was to avoid willful and wanton misconduct or entrapment." The Circuit Court found no evidence to support a breach of that duty. Concerning the alleged statutory duty, the court first held that " a potential violation of a statutory regulation is relevant only if the Court found that the Defendants owed [a] duty beyond that of a trespasser." The court also held that the alleged statutory violations did not set forth a prima facie case of negligence because the regulations at issue only became effective on February 10, 1997 and did not require the Country Place pool, built in 1978, to comply with the new requirements. Finally, the court stated that a prima facie case of negligence required finding that the violation of a regulation was a proximate cause of the injury, but " [w]ithout a scintilla of evidence demonstrating exactly how Christopher circumvented the fence, the Court cannot consider a possible violation as prima facie evidence of negligence."

Respondent appealed to the Court of Special Appeals. The intermediate appellate court reversed the Circuit Court, holding that Petitioners were required to comply with the 1997 COMAR regulations and the 1997 Montgomery County statutory provisions concerning pool barriers. See Paul v. Blackburn Ltd. P'ship, 211 Md.App. 52, 105-06, 63 A.3d 1107');"> 63 A.3d 1107, 1139 (2013). The court adopted those regulations as the standard of care, concluding that " the statutes and regulations [438 Md. 107] were designed to create a cause of action in tort

Page 468

for the protection of the swimming public." Paul, 211 Md.App. at 106-08, 63 A.3d at 1139-40. The court firmly rejected the notion that a defendant must owe a common-law duty to a plaintiff before violation of a statute can be used as evidence of negligence. Paul, 211 Md.App. at 109, 63 A.3d at 1141. Finally, the intermediate appellate court held that the trial court erred in " finding there was not a 'scintilla of evidence demonstrating exactly how Christopher circumvented the fence,' and in granting summary judgment on the issue of causation." Paul, 211 Md.App. at 112, 63 A.3d at 1142.

Petitioners appealed to this Court, and we granted certiorari to answer the following questions:

1. Has the opinion of the Court of Special Appeals abrogated more than eighty years of law holding that property owners owe no duty to trespassers onto their property?
2. Did the Court of Special Appeals improperly conclude that evidence of violation of regulations created a duty from a property owner to a trespasser?
3. Has the Court of Special Appeals improperly applied COMAR regulations enacted more than twenty years after a swimming pool was constructed, contrary to the legislative history and the specific language of the regulations?

For the reasons described below, we affirm the judgment of the Court of Special Appeals.


" A trial court may grant summary judgment if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ross v. Housing Auth. of Baltimore City, 430 Md. 648, 666-67, 63 A.3d 1, 12 (2013) (citing Md. Rule 2-501(f)). When reviewing a grant of summary judgment, we 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." Myers v. Kayhoe, 391 Md. 188, 203, 892 A.2d 520, 529 (2006) (citation omitted). This Court considers " the [438 Md. 108] record in the light most favorable to the nonmoving party and construe[s] any reasonable inferences that may be drawn from the facts against the moving party." Id. (citations omitted). A plaintiff's claim must be supported by more than a " scintilla of evidence[,]" as " there must be evidence upon which [a] jury could reasonably find for the plaintiff." Beatty v. Trailmaster Products, Inc., 330 Md. 726, 738-39, 625 A.2d 1005, 1011 (1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)).

If the trial court decision turns on a question of law, not a dispute of fact, we review the trial court's decision for legal correctness without deference. See Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598, 80 A.3d 269, 277 (2013).

Petitioners present three arguments that the Court of Special Appeals erred in reversing the Circuit Court. The first argument is based on Maryland law that has consistently and unambiguously held that property owners do not owe an affirmative duty to trespassers. This argument unfolds as follows: (1) in premises liability cases, legal duties are contingent on a person's " status" on the premises; (2) there was no dispute of material fact that Christopher was a trespasser at the pool; and (3) given Christopher's status as a trespasser, Petitioners had no duty to protect Christopher from injury caused by his trespass into the pool.

Petitioners' second argument is that the regulations regarding fencing and barriers

Page 469

did not alter the limited common-law duty that Petitioners owed to Christopher as a trespasser. Asserting broadly that regulatory violations cannot create a duty where none exists under common law, Petitioners specifically contend that under Maryland law, regulations regarding fencing around pools or bodies of water will not create a duty from a property owner to a trespasser. Petitioners allege that in order to create a legal duty, a statute must expressly state that it is doing so--something the regulations at issue here fail to do. Indeed, Petitioners state that only one case, Allen v. Dackman, 413 Md. 132, 991 A.2d 1216 (2010), has held that a [438 Md. 109] statute expressly created a duty from a landowner to a trespasser. Thus, Petitioners contend that the long-standing common-law rule limiting a property owner's duty to a trespasser has only been abrogated in the narrow context of lead paint.

Finally, Petitioners argue that even if the relevant COMAR regulations were construed to create a legal duty to trespassers, the plain language, legislative history, and implementation of those regulations by the Montgomery County Health Department evince that pre-existing pools, like that at Country Place, were not required to retrofit or change barriers to comply with the barrier provisions enshrined in COMAR

Respondent urges us to affirm the judgment of the Court of Special Appeals. She contends that our inquiry cannot end with an examination of Petitioners' duty to Christopher under the common-law duty of property owners to trespassers. Rather, she asks us to focus on the statutory duty that Petitioners owed to Christopher. Respondent advances that under Maryland law, the applicable test for her negligence claim is whether Petitioners violated a statute, ordinance, or regulation that was designed to protect a specific class of persons, which includes Christopher, and whether that statutory violation proximately caused Christopher's injuries.

According to Respondent, duties arising from statutory violations have been recognized in Maryland for almost a century, and are not confined to cases involving lead paint. Respondent further alleges that a review of the language, legislative history, and purposes of the relevant COMAR and County regulations compels the conclusion that Christopher is within the class of persons that these pool safety regulations were designed to protect. Respondent rejects Petitioners' claim that they are exempt from Maryland's pool safety barrier regulation, thus rejecting their invocation of COMAR's grandfathering provisions. Respondent claims that the inapplicability of the grandfathering provisions is further bolstered by the compliance schedule set forth in COMAR, [438 Md. 110] as well as COMAR, which precludes grandfathering that " jeopardizes the health or safety of the public."

Respondent concludes by arguing that Petitioners' construction of the regulations would have dangerous implications for Maryland public pools, and that Petitioners waived any argument that the Montgomery County Codes and The Building Officials & Code Administrators Basic Building Code of 1970 (" BOCA" ) do not create a duty to Christopher. Respondent alleges that Petitioners have no viable argument that their violation of the statute--a breach of their statutorily-derived duty of care to Christopher--was not the proximate cause of Christopher's injuries. Finally, Respondent characterizes the cases cited by Petitioners as inapplicable and outdated.

Duty To Trespassers And Statutory Duty

We now turn to the first question. Petitioners argue that ...

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