In a unanimous decision, the Court of Appeals of Maryland recently held in Blackburn Ltd. Partnership v. Paul,[1] that all Maryland public pools have a duty to comply with Maryland’s swimming pool barrier safety regulations.[2] The Court recognized that the pool barrier safety regulations were designed for the protection of young children from accidental drowning and near-drowning by limiting or delaying their access to swimming pools, spas and hot tubs.
Therefore, under the Statute or Ordinance Rule, a public pool owner may be liable for such an injury to a child irrespective of his or her legal status on the property when the incident occurs.
The tragic events that led to this decision occurred on June 13, 2010. On that day, three-year-old Christopher Paul lived with his parents, Alicia Paul, Junior Christopher Paul, and his ten-year-old half-brother, Andre, at Country Place Apartments in Burtonsville, Maryland. Andre and Christopher went outside to play and twice returned to the apartment and then returned outside again, each time for only a few minutes. During their third trip outside, Christopher threw a toy down the hill next to the playground and Andre went to retrieve it. When Andre walked back up the hill, he could not find Christopher so he alerted his mother. Knowing that he had been to the pool with his father the day before, Andre and Mrs. Paul immediately began looking for Christopher, including at the pool area, which was supposed to be closed and locked at that time. When she arrived at the pool gate, she saw Christopher’s shoes and shirt on the pool deck just inside the gate. A lifeguard arrived at the pool at that moment and retrieved Christopher from the pool, who was not breathing and had no pulse. Rescue efforts began, paramedics arrived, and they too continued rescue efforts on the unresponsive Christopher. As a result of this near-drowning, Christopher sustained a severe anoxic brain injury. He now has multiple, complex medical conditions, which require continuous care.
Although the gate was supposed to be locked, it had a loose opening of at least 18 inches. At closing, a padlock and chain would be affixed to the upper half of the gate. However, the chain would only loosely fit around the upper half of the gate, and the lower half of the gate would be unlocked There was a lot of play in the gate and that the bottom portion bowed out significantly. As a result, while the pool was supposed to be closed, the gate doors could easily be pushed in either direction to create a large opening – approximately 18 inches wide. There were also multiple 6-inch gaps in the fence, which Christopher also could have fit through. Christopher’s head was measured by a physician to be 5.1 inches wide and he stood at just over three-feet tall.
Christopher’s shirt and shoes were found on the pool deck just inside the only pool gate, and there was no evidence of any forced or other methods of entry except through the large openings in the fence and gate. Christopher would have easily been able to pass through the 18-inch gap in the “closed” gate. Investigation concluded that Christopher had entered the pool through the large opening in the lower portion of the gate.
The defendants in the case argued that: 1) they had no duty to Christopher because he was a trespasser at the pool; 2) pool safety regulations do not create a duty to one who is a trespasser; and 3) they were not required to retrofit or change their barriers because the pool safety regulations in COMAR do not apply to them as their pool was constructed in 1978 – before the newer pool safety regulations were enacted.[3]
The Court of Appeals, in affirming the decision of the Court of Special Appeals,[4] held that the common law trespass analysis is wholly inapplicable in this instance. Rather, “another strand of law is relevant” under the “Statute or Ordinance Rule.” Under that rule, to prove a negligence case, a plaintiff need only show: “(a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of.”[5] Although the pool owners argued that this rule is limited to lead paint cases, the Court clarified that “the Statute or Ordinance Rule has never been confined to the context of lead paint cases . . . has broad applicability, and need not be cabined by common-law rules that are unique to the premises liability context.”[6]
The Court recognized that COMAR has specific gate and barrier requirements, including that, except when open, an opening in the barrier may “not allow passage of a sphere 4 inches in diameter”[7]—a measurement based specifically on general understandings of the size of heads and chests of small young children—as the regulation was “intended to prevent a young child from passing through an opening.” The Court rejected the property owners’ argument that this requirement did not apply to them based on a plain language reading of the regulations, common sense, the purpose of the regulatory scheme as a whole (pool safety), and a separate provision requiring that if a pool “has a condition that jeopardizes the health or safety of the public,” it must be corrected to meet the pool regulations.
Moreover, the Court found persuasive that COMAR adopts Appendix E of the Model Barrier Code for Residential Swimming Pools, Spas, and Hot Tubs. The Model Barrier Code is clear that the purpose of the barrier requirements is to protect young children from accidental drowning and near-drowning. Therefore, “in the event of a lapse in adult supervision, and particularly for the protection of children in the most at-risk age group, less than five (5) years of age, who cannot yet appreciate or be instructed as to the risk of drowning, supplemental layers of protection are established. They limit or delay child access to” a pool.[8] The Court therefore concluded that all Maryland public pools are required to comply with the gate and barrier requirements set forth in COMAR.
Finally, returning to the Statute or Ordinance Rule, the Court found that it is applicable here. The pool barrier safety regulations were designed for the protection of a particular class of persons such as Christopher – namely, children under the age of five. Additionally, for part (a) of the Rule, a violation of the statute or ordinance, there was sufficient “evidence concerning the state of the fence at the time of the incident [which] could prove that Petitioners’ enclosure failed to meet the requirements of COMAR 10.17.01.21A(3).” For part (b) of the Rule, causation, the Court had little trouble detailing the numerous factors displaying circumstantial evidence sufficient to show that the pool barrier was not sufficient and that Christopher entered the pool by slipping through the defective gate. In sum, the Court concluded that, irrespective of Christopher’s legal status at the pool, a reasonable trier of fact could find that the property owners violated their duty to have an adequate barrier and that such violation was the cause of Christopher’s injuries.[9]
This case is extremely important in establishing safety standards for those in and around public pools in the State of Maryland. No longer will older public pools be permitted to argue that they are not required to protect the public, particularly children in and around pools, from the well-documented dangers of deficient pools and barriers. Additionally, this case is significant in that it firmly rejects limiting the Statute or Ordinance Rule to only lead paint cases. If a plaintiff can show the defendant violated a statute or ordinance designed to protect that class of persons, and that violation was a proximate cause of the injury, he or she will be permitted to assert a claim for negligence.
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Levi S. Zaslow is an attorney in the civil litigation department at Joseph, Greenwald & Laake, P.A. He, along with Timothy F. Maloney, Veronica B. Nannis, Peter C. Grenier, and Andre M. Gregorian, briefed Blackburn Ltd. Partnership v. Paul in the Court of Appeals and Court of Special Appeals. The opinion of the Court of Appeals is available here, and the opinion of the Court of Special Appeals is available here. Mr. Zaslow is licensed to practice in Maryland and the District of Columbia. He handles cases at each Maryland court level, from the Court of Appeals of Maryland to the Maryland district courts, in addition to agency-related matters. He also routinely practices in federal court in Maryland and the District of Columbia representing both plaintiffs and defendants.
[1] No. 55, Sept. Term, 2013, __ Md. __, __ A.3d __, 2014 WL 1672388 (Md. Apr. 28, 2014). The opinion of the Court of Appeals is available here.
[2] This includes “recreational pools,” which are pools at “[a]n apartment complex, housing subdivision, or mobile home park with more than ten units.” COMAR 10.17.01.01; 10.17.01.05B(19)(f)(v).
[3] Paul, slip op. at 6-7, 2014 WL 1672388, at *3-4.
[4] Paul v. Blackburn Ltd. P’ship, 211 Md.App. 52, 63 A.3d 1107 (2013). The opinion of the Court of Special Appeals in available here.
[5] Paul, slip op. at 10-11, 2014 WL 1672388, at *4-5.
[6] Paul, slip op. at 15-16, 2014 WL 1672388, at *7.
[7] COMAR 10.17.01.21A
[8] Paul, slip op. at 18-26, 2014 WL 1672388, at *8-12.
[9] Paul, slip op. at 27-31, 2014 WL 1672388, at *12-14.
