Maryland common law traditionally has held that an owner of property owes only a very limited duty to a trespasser on that property. There are statutes or regulations that the State or Counties have enacted that may regulate owner’s use of property, particularly for safety reasons. How these principles interact was explored by Maryland’s highest court this week in a case called Blackburn Limited Partnership v. Paul.
The Court’s opinion indicates that a three year old was playing outside with his older brother at an apartment complex in Burtonsville where they lived with their parents. After the three year old could not be located, his mother went to the pool at the complex, asked the lifeguards to unchain the gate, and then tragically found the child in the pool. He was able to be saved, but was allegedly left with severe brain damage. The parents then sued the owner of the premises and pool operator for negligence, including alleged violations of State and County ordinances regarding fencing or enclosures around swimming pools.
The trial judge granted judgment to the defendants before trial, holding that they owed no duty to a three year old who trespassed into the pool area. Under traditional Maryland tort law, the only duty owed to a trespasser on property is not to willfully injure or entrap the trespasser. The intermediate appellate Court reversed, holding that the regulations on fencing created the duty. The Court of Appeals agreed, and held that the plaintiffs were entitled to go to trial to attempt to prove their case.
The Court ruled that prior cases holding no duty to trespassers in drowning cases did not involve a “statute or ordinance designed to protect a specific class of persons.” Plaintiffs can rely upon such a law to establish a duty, if they have sufficient evidence to show a violation of a law designed to protect a specific class of persons that includes the plaintiff, and that violation of the law was a legal cause of the injury. Because the statutes in question required fencing or barrier completely around a swimming pool, including that a gate cannot allow “passage of a sphere 4 inches in diameter,” the rules were clearly designed to prevent small children from gaining unsupervised access to the pool.
The Court rejected arguments that these statutes should not be applicable to a pool built before they were enacted, since the specific regulations were clearly designed to address conditions that may affect health or safety. The plaintiffs will now have their opportunity to try to prove that this injury was caused by violation of these regulations.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.