Maryland’s top court has revived a lawsuit by the family of a Burtonsville toddler who suffered severe brain damage after nearly drowning in their apartment complex’s swimming pool, unanimously rejecting the landlord’s argument that it owed no duty to the “trespassing” child because the pool area had not opened for the day.

The Court of Appeals, in sending the case back for trial, noted that Christopher Paul was a 3-year-old child when he allegedly entered the pool area through a gap in the fence in June 2010.

The landlord, Country Place Apartments, denied allegations of negligence; however, it also argued that state and Montgomery County regulations on pool fences did not create any duty to Christopher because they do not expressly protect trespassers.

“The fundamental danger of a pool is posed by its water,” Judge Sally D. Adkins wrote for the court. “And it hardly needs saying that, without a fence that bars entry by a three-year-old child, the pool, located in the midst of 300 residential apartments, poses a risk which jeopardizes the health or safety of such a child, who might accidentally access the pool unsupervised. The quality and compliance of the fence is simply crucial to safety.”

Timothy F. Maloney, the family’s appellate attorney, hailed Monday’s decision.

The fencing regulation is “designed to protect unwary trespassers under the age of 5,” Maloney said. “This is a regulation targeted to protect children who have no reason to know better.”

Margaret Fonshell Ward, the landlord’s attorney, stated in an email sent from her phone that she was in court and unavailable to comment on the decision. Ward is with Ward & Herzog in Towson.

Montgomery County Circuit Judge Louise G. Scrivener had granted summary judgment for Community Place Apartments on July 17, 2012, finding that the landlord owed no legal duty to the trespassing child.

The intermediate Court of Special Appeals revived the lawsuit on March 25, 2013, holding that the state and county regulations imposed a duty on the landlord “for the protection of the swimming public.” Community Place Apartments then sought review by the Court of Appeals, which heard argument in the case on Feb. 7.

The case also tested the scope of state and county regulations, enacted in 1997, that require pool fences to have entrances that would “not allow passage of a sphere four inches in diameter.” The regulations meet the American National Standards Institute’s Model Barrier Code for swimming pools, which was designed to prevent entry by children up to 5 years old, the high court said.

No grandfather clause

Country Place Apartments argued that the 1997 regulations should not apply to the apartment complex’s pool, as it was built in 1978. But the court rejected that argument, saying the regulations contained no “grandfather” exclusion.

“Were we to hold otherwise, the targeted safety objectives of the Model Barrier Code, incorporated by reference into [the Code of Maryland Regulations], would be completely ignored,” Adkins wrote. “Moreover, the primary concern of the Model Barrier Code, which is to prevent the drowning and near drowning of young children, would be of no concern to all the owners of recreational pools that, through mere historical accident, were built before COMAR’s adoption. This result would be illogical, and we reject it.”

The decision is a victory for protective regulation over judge-made rules, said Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt.

“The common law concepts such as trespass do not apply where the duty is purely regulatory in character,” he added.

According to the lawsuit, Christopher and his 10-year-old half-brother Andre were playing outside on June 13, 2010. Christopher threw a ball down a hill and Andre gave chase.

When Andre returned, Christopher was gone. Andre rushed to get Alicia Paul, the boys’ mother, who searched the parking lot and then went to the pool gate.

She saw Christopher’s shoes and shirt on the pool deck just inside the gate just as lifeguard Vitalie Planadeala was arriving for duty.

He opened the gate, and the mother ran in and found Christopher submerged in the pool, according to the lawsuit filed April 25, 2011.

The lifeguard pulled the boy out and rescue efforts began.

The family alleges the six-foot high fence around the pool had several holes and gaps through which a toddler could easily fit.

Country Place Apartments denies the allegations.

ADKINS

WHAT THE COURT HELD

Case:

Blackburn L.P. d/b/a Country Place Apartments v. Paul, CoA No. 55, Sept. Term 2013. Reported. Opinion by Adkins, J. Argued Feb. 7, 2014. Filed April 28, 2014.

Issue:

Did the Court of Special Appeals improperly conclude that state and county pool-fence regulations created a duty from a landlord to a 3-year-old tenant who trespassed by entering the pool area before it opened for the day?

Holding:

No; affirmed. The landlord owed a regulatory duty to the toddler with regard to the fence around the pool.

Counsel:

Margaret Fonshell Ward for petitioner; Timothy F. Maloney for respondent.

RecordFax #14-0428-20 (33 pages).