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Grant of Summary Judgment in Favor of Defense Overturned in Pool Drowning Case

Paul v. Blackburn Limited Partnership d/b/a Country Place Apartments, et al.
No. 2727 (Court of Special Appeals of Maryland, March 25, 2013)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

This appeal concerns the Circuit Court for Montgomery County’s grant of summary judgment in favor of Defendants, Blackburn Limited Partnership d/b/a Country Place Apartments (“Blackburn”), Berkshire Property Advisors, LLC (“Berkshire”), and Community Pool Service, Inc. (“CPS”), against Plaintiff, Alicia Daley Paul, individually and as parent and guardian of Christopher Clinton Paul (“the minor Plaintiff”), in a cause of action for negligence and recovery of medical expenses related to the near drowning of the, then three-year-old, minor Plaintiff in a swimming pool at Country Place Apartments, a 300 unit apartment complex where his family resided.

On June 11, 2010, the minor Plaintiff was found unresponsive in the apartment complex pool. He suffered a severe anoxic brain injury as a result of the near drowning. The pool was closed at the time. Although padlocked, circumstantial evidence indicated that the minor Plaintiff entered the pool area through a gap in the fence gate.

Plaintiff filed a Complaint alleging, inter alia, negligence per se. Plaintiff alleged that Defendants failed to comply with Code of Maryland Regulations (“COMAR”) et seq., Montgomery County Code (“Mont. Co. Code”) § 51-1 et seq., and Code of Montgomery County Regulations (“COMCOR”) 51.00.01 et seq.; that the minor Plaintiff was a member of the class of persons to be protected by COMAR, the Montgomery County Code, and COMCOR; that his injuries were of the type the regulations and statutes were intended to protect against; and, that Defendants were aware or had reason to know of the “dangerous conditions” at the pool.

Defendants filed a Motion for Summary Judgment, contending that the current applicable statutes and regulations were not enacted when the pool fence was constructed and no statute or regulation required Defendants to bring the pool barrier into compliance with the more recent

Regulations; as such, they were “grandfathered” in and exempted from compliance. Defendants also argued that the violations did not create a duty to the minor Plaintiff because he was a trespasser. The trial court granted Defendants’ Motion for Summary Judgment, agreeing that the minor Plaintiff was a trespasser, and that the apartment complex pool was “grandfathered” in, and thus, exempted from compliance with the later-enacted state and county regulatory provisions.

As an initial matter, the Court of Special Appeals held that where a Plaintiff pursues a negligence action alleging a violation of a statutory or regulatory duty, the Plaintiff is not required to demonstrate the existence of a common law duty. Therefore, the fact that the minor Plaintiff was a trespasser was not dispositive.

The intermediate appellate court also held that the trial court misread the intent and applicability of the COMAR regulations. While COMAR had certain “grandfathering” provisions, providing limited exemptions for previously approved pools, the exempting subsections did not apply if a condition existed that posed a threat to the health or safety of an individual or the public. The Court also noted that the trial court failed to consider Montgomery County statutory and regulatory provisions concerning pool barriers, which were also applicable to the apartment complex pool. Defendants were required, by statute and regulation, to comply with the regulations and code provisions relevant to public swimming pools, in general, and pool barriers, in particular. The Court next held that the applicable standard of care was that set forth in the statutes and regulations, and that the violation of the statutes and regulations was evidence of negligence. Finally, the Court held that although there was no direct proof as to how the minor Plaintiff circumvented the fence, that proximate cause could be proven by circumstantial evidence. To the Court, the circumstantial evidence was such that it could survive summary judgment on the issue of causation and lead to the reasonable inference that the minor Plaintiff gained access to the pool area by squeezing through the gap in the fence gate.

Consequently, the case was reversed and remanded.