The Maryland Court of Special Appeals recently made a splash in what plaintiffs’ attorneys are calling an important victory for child safety. In a case where 3 year old Christopher Clinton Paul suffered severe brain damage after nearly drowning in an apartment complex’s pool, the court has ruled that the toddler’s mother can sue the owners of the apartment complex and company overseeing the pool for not maintaining the fence around the pool. The incident occurred in June 2010, when the toddler allegedly got through the fence, which had holes and gaps large enough for a toddler to easily pass through. The incident left the toddler unable to speak or control his limbs and dependent on a feeding tube.
The decision reverses Montgomery County Circuit Court Judge Louise Scrivener’s ruling that the child was a trespasser because the pool was not yet open for the day, and that because it could not be determined how the child entered the pool area, the apartment complex could not be held liable. The Court of Special Appeals found that state and county safety regulations create a duty to the child. The court also found that the child’s mode of entry could be shown through circumstantial evidence. The court, also, rejected the apartment complex’s argument that because the pool and surrounding fence were constructed before 1978 when the current provisions were in place, that they were grandfathered in with prior ones.
The Court, in the opinion written by Judge Shirley M. Watts, ruled that the grandfathering provisions were limited and (similar to lead paint cases in Baltimore City) did not apply to a pool with a condition “that jeopardizes the health or safety of the public.” The apartment complex, therefore, had a duty “to comply with the regulations and code provisions relevant to public swimming pools, in general, and pool barriers, in particular.” The court was convinced that the regulations “were designed to create a cause of action in tort for the protection of the swimming pools.”
The attorneys for the apartment complex declined to comment on the courts ruling. The attorneys for Paul, however, called the court’s decision “an important victory for pool safety.” Other members of the plaintiff’s bar (not involved in the case) have also praised the court’s decision, seeing it as a way to hold landlords responsible for their negligence. They specifically pointed out the significance of the state and county regulations being applied against a landlord for the first time in an area other than Baltimore City lead paint cases.