Court of Appeals Finds Duty Applies Despite Common Law Rule

School is out.  The days are long.  Steamed crabs are in season and the AC is on high.   It can only mean one thing:  summer is upon us! Along with in-season strawberries, frosty ice-cream cones and the smacking sound of flip-flops filling the air, pool season is officially here. 

With pools being readied for maximum swimmer capacity, extra caution must be taken to ensure safety and protection from liability. 

The Court of Appeals of Maryland recently addressed this topic in Blackburn L.P., et al v. Paul, No. 55, slip op. at __ (Md. April 29, 2014).  In this case, three year-old Christopher Paul suffered permanent injuries after a near-drowning that occurred when he found his way to the closed pool at his parents’ apartment complex.  Following the incident, Christopher’s parents filed suit against the apartment complex. The apartment complex moved to dismiss the suit, arguing that Christopher was a trespasser who entered the gated and locked pool area uninvited and is therefore not entitled to recover in a negligence action.  While the ultimate issues of fact in this case remain unexplored, the case presented an opportunity for the Court to clarify the duties a property owner has when common law and statutory regulations come together and to remind us that when a statute or regulation is enacted for the purpose of guarding a specific class, that specific class will be entitled to the enhanced level of protection. 

Before statutes or regulations come into play, common law provides that the duty owed by a property owner to a visitor depends upon the legal status the visitor holds at the time of the injury.  In Maryland, there are generally four categories of status for visitors ranging from Invitee – with the highest duty of care owed -- to Trespasser, with the lowest protections.  The rationale behind the limited duty owed to a trespasser is that a trespasser is an individual who is intentionally on the owner’s property without the owner’s consent.  The common law recognizes that an owner generally owes no duty of care to the person who “sneaks” onto property, while someone who is invited to visit should be afforded more protections from any negligence on the part of the property owner.     

In Blackburn, the Court considered whether the enactment of COMAR 10.17.01.21 and Montgomery County provisions setting forth regulations concerning barrier requirements around pools elevated the status of visitor Christopher from an uninvited trespasser to someone with more protection. In engaging in this analysis, the Court applied the Statute or Ordinance Rule to regulations and local ordinances. Generally, Maryland Courts have held that statutes enacted to protect the general public do not apply to those who do not otherwise have a right to be on property; namely, trespassers.  For example, a statute enacted to protect the public, such as one that requires a fence to prevent “any person” from entering, will not result in enhanced protections for someone who has trespassed on property.   

However, in this case, the regulations, while not assigning a legal status to visitors, provided direction as to what types of fences need to be installed around pools and incorporated by reference, the American National Standard for Residential Inground Swimming Pools.  The main objective stated in the American National Standard is specifically to protect children under the age of five. 

Under the Statute or Ordinance Rule discussed at length by the Court in this case, if there is a violation of a statute or ordinance that is designed to protect a specific class of people and violation of that ordinance or statute caused an injury, then a prima facie case of negligence has been presented.  This situation is distinguishable from statutes that protect the general public because there, to give rise to liability, the injured person must have had the right to be on the property; that is they must not have been a trespasser.  Under the Court’s analysis and application of the rule, a trespasser, if a protected class individual, is afforded a duty of care by the property owner by virtue of his inclusion in the protected class.

In Blackburn, it is agreed that, outside of the statute, Christopher was a trespasser.  However, the Court determined that the public interest in protecting a particular class (here specifically children under five) is so important that they will elevate the status of Christopher and children like him in order to provide property owner’s incentive to comply with the rule and keep children safe. The Court’s decision essentially morphed the Plaintiff from a trespasser into a protected class that is owed more duties and protection.

For the pool owners out there, the Court’s ruling in Blackburn means that you need to be aware of the types of duties that exist under common law versus those created by legislation in order to be protected from potential negligence action. On its face, it may appear that someone trespassed on your home; however, a more specified statute enacted by the Legislature may elevate the level of protection afforded to the trespasser, exposing you and your family to liability.  If you or your insured have any questions about compliance with applicable statues or ordinances to keep you and your property safe, or are facing litigation arising from a similar situation, please do not hesitate to consult us.  We are happy to help.  From everyone at RSRM, keep cool and have a safe summer.  


Contributed by Lauren Seldomridge