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Trespassers Can’t Recover Damages For Their Injuries, Unless…

June 16, 2014 By Gerald W. Ueckermann, Jr.

One of the fundamental principles of Maryland premises liability law is that a property owner owes no affirmative duty to protect those trespassing on their property from injury.  Rather, premises liability law requires only that property owners not willfully or wantonly injure trespassers.  Another principle of Maryland tort law, however, is that a negligence claim can be based upon a duty imposed by a statute or regulation under certain circumstances.  The Maryland Court of Appeals recently issued an opinion in Blackburn Limited Partnership v. Paul (decided April 28, 2014), in which it clarified the relationship between these two principles.

Blackburn Limited Partnership involved a three-year-old child who suffered severe brain injuries after he nearly drowned in a swimming pool at an apartment complex.

The child’s mother filed suit against the apartment complex’s owner and others, contending that a fence and gate surrounding the pool failed to comply with applicable Maryland regulations.  After the trial court granted the defendants’ motion for summary judgment, the Court of Special Appeals reversed the decision.  The Maryland Court of Appeals then reviewed the case.

The Court of Appeals agreed that because the child was a trespasser when he entered the pool area, the defendants could not be held liable under a premises liability cause of action.  Nevertheless, the court found that liability could potentially be imposed against the apartment complex’s owner if the fence and gate barrier did not comply with Maryland regulations set forth in COMAR.

In reaching its decision, the court applied what it has dubbed the “Statute or Ordinance Rule.”  This rule allows a defendant to be found liable where: (a) there is the violation of a statute, ordinance or regulation designed to protect a specific class of persons which includes the plaintiff; and (b) that violation proximately caused the injury complained of.

The court emphasized that the application of the Statute or Ordinance Rule will primarily be limited by the requirement that the statute, ordinance or regulation in question be designed to protect a specific class of persons that includes the plaintiff.  The rule does not apply if the law in question is intended to benefit the public.

The COMAR pool barrier regulations involved in Blackburn Limited Partnership stated that the purpose of the regulations was to “protect and promote the public health and safety of individuals at public spas and pools in Maryland.”  However, the regulations also incorporated a Model Barrier Code adopted by the National Spa and Pool Institute.  Because the Model Barrier Code stated that it was intended to protect children under the age of five, the Court of Appeals found that COMAR did identify a specific class who were intended to be protected by the regulations – young children – and that the injured plaintiff did belong to that class.

At first blush, since the stated purpose of the COMAR regulations was to protect public health and safety, it would appear that the regulation was intended to protect the public and, therefore, the Statute or Ordinance Rule would be inapplicable.  The Court of Appeals, however, looked beyond the purpose stated in the regulations and considered the purpose of a model code adopted by an industry group that had been incorporated into COMAR by reference.  Since regulations such as those found in COMAR frequently incorporate codes and standards adopted by non-governmental agencies, the analysis utilized by the court in Blackburn Limited Partnership will provide plaintiffs with additional sources to support contentions that liability can be imposed pursuant to the Statute or Ordinance Rule.  Moreover, since the Statute or Ordinance Rule is not limited to cases involving trespassers, or even to premises liability cases, the Blackburn Limited Partnership decision has the potential to affect a wide range of tort actions.