Blackburn Ltd. Partnership v. Paul

ADKINS, J. This case involves the intersection of two distinct principles in our tort jurisprudence. On one hand, Maryland law recognizes that property owners owe no affirmative duty of care to trespassers. On the other hand, settled Maryland precedent acknowledges that, in some instances, the duty of care in a negligence action may arise from statute or regulation. Our task is to examine this intersection, and clarify the relationship between these two facially divergent principles. ¹⁰⁴ FACTS AND LEGAL PROCEEDINGS Around 9 a.m. on June 13, 2010, three-year-old Christopher Paul and his ten-year-old brother, Andre, went to play outside their parents’ apartment home at Country Place Apartments (“Country Place”) in Burtonsville, Maryland.

The two boys returned to the apartment three times before going back outside to continue playing. A few minutes after the boys went outside for the third time, Andre came to the apartment and asked the boys’ mother, Alicia Paul (“Respondent”), where Christopher was. Respondent and Andre went outside to look for Christopher, with Respondent looking between cars in the parking lot while Andre looked behind the apartment building. Respondent and Andre then began walking on the sidewalk toward the apartment complex’s pool, all the while shouting Christopher’s name and continuing to look between the cars in the parking lot.

Eventually Respondent decided to move toward the pool. Upon nearing the pool, Respondent saw Christopher’s t-shirt and slippers just inside the pool’s gate. Respondent attempted to push the gate open, but could not do so. At that time, the pool’s lifeguards arrived, and Respondent asked them to open the gate.

After one of the lifeguards unchained the gate, Respondent ran to the pool and saw that Christopher was submerged in the water. One of the lifeguards jumped into the pool and pulled Christopher out of the water. The lifeguards began CPR while Respondent spoke to a 911 operator. Police officers responded to the scene, relieving one of the lifeguards who was performing chest compressions while the other lifeguard continued to perform rescue breaths.

These efforts continued until paramedics arrived and transported Christopher to the pediatric emergency room at Howard County General Hospital. As a result of this near drowning, Christopher sustained a severe anoxic brain injury. He now has multiple, complex medical conditions. Christopher is dependent on others for mobility and feeding, is largely unresponsive, and has neither volitional movements nor functional vision.

These conditions ¹⁰⁵ require continuous care. Doctors do not expect Christopher’s various medical conditions to improve in the future. On December 17, 2010, Respondent filed a complaint against Second Blackburn Limited Partnership (“Second Blackburn”), 1 Berkshire Property Advisors, L.L.C. (“Berkshire”), 2 and Community Pool Service, Inc. (“CPS”) 3 (collectively, “Petitioners”) in the Circuit Court for Baltimore City. 4 The complaint alleged negligence and negligence per se, and sought compensatory damages for medical expenses in the amount of $15,000,000, plus costs and interest.

Respondent’s negligence action alleged that Petitioners breached “a duty to maintain the Country Place pool in a reasonably safe condition for all residents of Country Place Apartments, and particularly children of all ages, including Christopher.” Respondent’s negligence per se action alleged that Petitioners breached statutory and regulatory duties by failing to comply with pool regulations set forth in the Code of Maryland Regulations (“COMAR”) 10.17.01.01 et seq., 5 Montgomery County Code § 5 1-1 et seq., and Code of Montgomery County Regulations (“COMCOR”) 51.00.01 et seq. Blackburn and Berkshire filed a motion for summary judgment with respect to all of Respondent’s claims, arguing that because Christopher was a trespasser, they only owed a duty ¹⁰⁶ to refrain from willfully or wantonly injuring Christopher. Blackburn and Berkshire further stated that the alleged violations of state and county codes could not create a duty to Christopher because he was a trespasser, and argued that Christopher’s unsupervised play was the intervening, superseding cause of his injuries. CPS also filed a motion for summary judgment, arguing that as Blackburn’s agent, it could not have owed Christopher a duty greater than the duty that Blackburn owed to him.

After a hearing, the Circuit Court issued an order granting Petitioners’ motions for summary judgment. The Circuit Court held that Christopher’s status changed from invitee to trespasser when he entered the pool area, and as a result, the only common-law duty owed “was to avoid willful and wanton misconduct or entrapment.” The Circuit Court found no evidence to support a breach of that duty. Concerning the alleged statutory duty, the court first held that “a potential violation of a statutory regulation is relevant only if the Court found that the Defendants owed [a] duty beyond that of a trespasser.” The court also held that the alleged statutory violations did not set forth a prima facie case of negligence because the regulations at issue only became effective on February 10,1997 and did not require the Country Place pool, built in 1978, to comply with the new requirements. Finally, the court stated that a prima facie case of negligence required finding that the violation of a regulation was a proximate cause of the injury, but “[wjithout a scintilla of evidence demonstrating exactly how Christopher circumvented the fence, the Court cannot consider a possible violation as prima facie evidence of negligence.” Respondent appealed to the Court of Special Appeals.

The intermediate appellate court reversed the Circuit Court, holding that Petitioners were required to comply with the 1997 COMAR regulations and the 1997 Montgomery County statutory, provisions concerning pool barriers. See Paul v. Blackburn Ltd. P’ship, 211 Md.App. 52, 105-06 , 63 A.3d 1107, 1138-39 (2013). The court adopted those regulations as the standard of care, concluding that “the statutes and regulations ¹⁰⁷ were designed to create a cause of action in tort for the protection of the swimming public.” Paul, 211 Md.App. at 106-08 , 63 A.3d at 1139-40 . The court firmly rejected the notion that a defendant must owe a common-law duty to a plaintiff before violation of a statute can be used as evidence of negligence.

Paul, 211 Md.App. at 109 , 63 A.3d at 1141 . Finally, the intermediate appellate court held that the trial court erred in “finding there was not a ‘scintilla of evidence demonstrating exactly how Christopher circumvented the fence,’ and in granting summary judgment on the issue of causation.” Paul, 211 Md.App. at 112 , 63 A.3d at 1142 . Petitioners appealed to this Court, and we granted certiorari to answer the following questions: 1. Has the opinion of the Court of Special Appeals abrogated more than eighty years of law holding that property owners owe no duty to trespassers onto their property? 2.

Did the Court of Special Appeals improperly conclude that evidence of violation of regulations created a duty from a property owner to a trespasser? 3. Has the Court of Special Appeals improperly applied COMAR regulations enacted more than twenty years after a swimming pool was constructed, contrary to the legislative history and the specific language of the regulations? For the reasons described below, we affirm the judgment of the Court of Special Appeals. DISCUSSION “A trial court may grant summary judgment if there is no genuine dispute as to any 5 material fact and the moving party is entitled to judgment as a matter of law.” Ross v. Housing Auth. of Baltimore City, 430 Md. 648, 666-67 , 63 A.3d 1, 12 (2013) (citing Md. Rule 2 — 501(f)).

When reviewing a grant of summary judgment, we determine “whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.” Myers v. Kayhoe, 391 Md. 188, 203 , 892 A.2d 520, 529 (2006) (citation omitted). This Court considers “the ¹⁰⁸ record in the light most favorable to the nonmoving party and construe[s] any reasonable inferences that may be drawn from the facts against the moving party.” Id. (citations omitted). A plaintiffs claim must be supported by more than a “scintilla of evidence^]” as “there must be evidence upon which [a] jury could reasonably find for the plaintiff.” Beatty v. Trailmaster Products, Inc., 330 Md. 726, 738-39 , 625 A.2d 1005, 1011 (1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512 , 91 L.Ed.2d 202 (1986)).

If the trial court decision turns on a question of law, not a dispute of fact, we review the trial court’s decision for legal correctness without deference. See Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598 , 80 A.3d 269, 277 (2013). Petitioners present three arguments that the Court of Special Appeals erred in reversing the Circuit Court. The first argument is based on Maryland law that has consistently and unambiguously held that property owners do not owe an affirmative duty to trespassers.

This argument unfolds as follows: (1) in premises liability cases, legal duties are contingent on a person’s “status” on the premises; (2) there was no dispute of material fact that Christopher was a trespasser at the pool; and (3) given Christopher’s status as a trespasser, Petitioners had no duty to protect Christopher from injury caused by his trespass into the pool. Petitioners’ second argument is that the regulations regarding fencing and barriers did not alter the limited common-law duty that Petitioners owed to Christopher as a trespasser. Asserting broadly that regulatory violations cannot create a duty where none exists under common law, Petitioners specifically contend that under Maryland law, regulations regarding fencing around pools or bodies of water will not create a duty from a property owner to a trespasser. Petitioners allege that in order to create a legal duty, a statute must expressly state that it is doing so — something the regulations at issue here fail to do.

Indeed, Petitioners state that only one case, Allen v. Dackman, 413 Md. 132 , 991 A.2d 1216 (2010), has held that a ¹⁰⁹ statute expressly created a duty from a landowner to a trespasser. Thus, Petitioners contend that the long-standing common-law rule limiting a property owner’s duty to a trespasser has only been abrogated in the narrow context of lead paint. Finally, Petitioners argue that even if the relevant COMAR regulations were construed to create a legal duty to trespassers, the plain language, legislative history, and implementation of those regulations by the Montgomery County Health Department evince that pre-existing pools, like that at Country Place, were not required to retrofit or change barriers to comply with the barrier provisions enshrined in COMAR 10.17.01.21. Respondent urges us to affirm the judgment of the Court of Special Appeals.

She contends that our inquiry cannot end with an examination of Petitioners’ duty to Christopher under the common-law duty of property owners to trespassers. Rather, she asks us to focus on the statutory duty that Petitioners owed to Christopher. Respondent advances that under Maryland law, the applicable test for her negligence claim is whether Petitioners violated a statute, ordinance, or regulation that was designed to protect a specific class of persons, which includes Christopher, and whether that statutory violation proximately caused Christopher’s injuries. According to Respondent, duties arising from statutory violations have been recognized in Maryland for almost a century, and are not confined to cases involving lead paint.

Respondent further alleges that a review of the language, legislative history, and purposes of the relevant COMAR and County regulations compels the conclusion that Christopher is within the class of persons that these pool safety regulations were designed to protect. Respondent rejects Petitioners’ claim that they are exempt from Maryland’s pool safety barrier regulation, thus rejecting their invocation of COMAR’s grandfathering provisions. Respondent claims that the inapplicability of the grandfathering provisions is further bolstered by the compliance schedule set forth in COMAR 10.17.01.54, ¹¹⁰ as well as COMAR 10.17.01.03D, which precludes grandfathering that “jeopardizes the health or safety of the public.” Respondent concludes by arguing that Petitioners’ construction of the regulations would have dangerous implications for Maryland public pools, and that Petitioners waived any argument that the Montgomery County Codes and The Building Officials & Code Administrators Basic Building Code of 1970 (“BOCA”) do not create a duty to Christopher. Respondent alleges that Petitioners have no viable argument that their violation of the statute — a breach of their statutorily-derived duty of care to Christopher — was not the proximate cause of Christopher’s injuries.

Finally, Respondent characterizes the cases cited by Petitioners as inapplicable and outdated. Duty To Trespassers And Statutory Duty We now turn to the first question. Petitioners argue that any putative duty of care derived from statute cannot trump the limited, common-law duty that property owners owe to trespassers. The starting point of this argument is unobjectionable, for in a variety of cases, we have indeed affirmed a property owner’s right to exclude others from, and to control the use of, their property.

See Weems v. Cnty. Comm’rs of Calvert Cnty., 397 Md. 606, 619 , 919 A.2d 77, 85 (2007) (“The Supreme Court has remained consistent in asserting that included amongst a property owner’s ‘bundle of rights’ is the right to exclude others.”); Landay v. Cohn, 220 Md. 24, 28 , 150 A.2d 739, 741 (1959) (“[A landlord’s] responsibility for the reasonably safe condition of premises retained under his control is limited to the confines of his invitation to use them, express or implied. It does not extend to the use of such premises for an unintended purpose.”); Levine v. Miller, 218 Md. 74, 79 , 145 A.2d 418, 421 (1958) (“One may be an invitee or business visitor as to one portion of the premises, or for a limited time, and be a licensee or trespasser as to another portion of the same premises or, without changing location, undergo the same change in status by the lapse of time.”). These precepts form the basis of our common-law rule concerning the limited duty of property owners to trespassers.

See Levine, 218 Md. at 79 , 145 A.2d at 421 (“The Maryland law ¹¹¹ is firmly established that the owner of land owes no duty to a trespasser or licensee, even one of tender years, except to abstain from wilful [sic] or wanton misconduct and entrapment.”). But another strand of law is relevant here. Our examination of this strand begins with Brooks v. Lewin Realty III, Inc., 378 Md. 70, 79 , 835 A.2d 616, 621 (2003). Brooks concerned a tenant’s tort action against a landlord based upon a child’s consumption of lead-based paint in leased premises that were in violation of the Baltimore City Housing Code. 378 Md. at 72 , 835 A.2d at 617 .

There, we recognized that a different common-law rule — that landlords have no duty to repair or inspect premises before or during a lease term — was trumped by Maryland’s rule concerning applicable statutory schemes: [U]nder the common law and in the absence of a statute, a landlord ordinarily has no duty to keep rental premises in repair, or to inspect the rental premises either at the inception of the lease or during the lease term. There are, however, exceptions to this general rule. Moreover, where there is an applicable statutory scheme designed to protect a class of persons which includes the plaintiff, another well-settled Maryland common law rule has long been applied by this Court in negligence actions. That rule states that the defendant’s duty ordinarily “is prescribed by the statute” or ordinance and that violation of the statute or ordinance is itself evidence of negligence.

Brooks, 378 Md. at 78 , 835 A.2d at 620 -21 (quoting Brown v. Dermer, 357 Md. 344, 358-59, 744 A.2d 47, 55 (2000)). The Brooks Court observed that this rule was first announced in Flaccomio v. Eysink, 129 Md. 367, 380 , 100 A. 510, 515 (1916), nearly one hundred years before the dispute here. 378 Md. at 78 , 835 A.2d at 621 . To give flesh to this longstanding rule (“the Statute or Ordinance Rule”), 6 the Brooks Court went on to describe both its requirements and effect: ¹¹² Under this principle, in order to make out a prima facie case in a negligence action, all that a plaintiff must show is: (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. “Proximate cause is established by determining whether the plaintiff is within the class of persons sought to be protected, and the harm suffered is of a kind which the drafters intended the statute to prevent. * * * It is the existence of this cause and effect relationship that makes the violation of a statute prima facie evidence of negligence.” Brooks, 378 Md. at 79 , 835 A.2d at 621 (quoting Brown, 357 Md. at 359 , 744 A.2d at 55 ). A subsequent case in the Brooks line, Allen, 413 Md. 132 , 991 A.2d 1216 (2010), clarified the reach of the Statute or Ordinance Rule. 7 In Allen , this Court considered an argument that lead paint statutes in the Baltimore City Housing Code “imposed no duty on owners of property in regard to individuals who have no legal right to possess the property.” 413 Md. at 156 , 991 A.2d at 1230 .

The property owners in that case argued that because a court had determined that plaintiffs “were wrongfully in possession of the property [...]” in question, no duty applied. Id. This Court rejected that argument, first observing that common-law limitations on the duty ¹¹³ owed to trespassers were “inapplicable” in a case “based on the Housing Code, not the common law.” Allen, 413 Md. at 157 , 991 A.2d at 1231 (emphasis added). After examining the purposes and language of the Housing Code, this Court determined that the Allen plaintiffs were within the class to be protected by the statute.

Allen, 413 Md. at 157-58 , 991 A.2d at 1231 . Thus, the tort action in that case survived summary judgment, despite the plaintiffs’ status as trespassers under the common law. See Allen, 413 Md. at 160 , 991 A.2d at 1233 . Petitioners nevertheless persist that “regulations regarding fencing around pools or bodies of water will not create a duty from the premises owner to a trespasser.” They primarily rely on Osterman v. Peters, 260 Md. 313 , 272 A.2d 21 (1971), in which this Court considered the case of a four-and-a-half-year-old boy who drowned while trying to retrieve a ball from a pool at his neighbor’s vacant house.

Basing its holding on this Court’s decision in State v. Longeley, 161 Md. 563 , 158 A. 6 (1932), the Osterman Court held that because the boy was a trespasser, the boy’s father could not bring a negligence action based on the defendant’s violation of a fencing ordinance. Osterman, 260 Md. at 317 , 272 A.2d at 23 . In State v. Longeley, this Court declined to hold quarry owners liable for the drowning of a trespassing twelve-year-old. 161 Md. at 570 , 158 A. at 8 . The Court examined the defendant’s violation of an ordinance requiring that abandoned quarries be enclosed by a fence with certain characteristics.

Longeley, 161 Md. at 566 , 158 A. at 7 . In holding that the quarry owners owed no statutory duty to the child, the Longeley Court set forth a two-part test: “(1) [tjhat the violation of the ordinance was the proximate cause of the injury. (2) That the person injured, at the time of the injury, had the right to be on the property of defendant and was not a trespasser.” Longeley, 161 Md. at 569 , 158 A. at 8 . The Court declared that: The ordinance in this case was passed for the benefit of the public.

Any violation of it subjects the owner of a quarry to a fine. But, before an individual can hold [a ¹¹⁴ property owner] liable for an injury alleged to have resulted from [a statutory violation], there must be shown a right on the part of the plaintiff, a duty on the part of the defendant with respect to that right, and a breach of that duty by the defendant whereby the plaintiff has suffered injury. A trespasser can acquire no such right except in case of willful injury. The mere violation of a statute would not give it.

The effect of such violation is only to raise a presumption of negligence in favor of one entitled to assert it. Longeley, 161 Md. at 569-70 , 158 A. at 8 (citations omitted; emphasis added); see also Murphy v. Baltimore Gas and Elec. Co., 290 Md. 186, 194-95 , 428 A.2d 459, 464 (1981) (applying Longeley and Osterman in a similar abandoned quarry case), overruled on other grounds by Baltimore Gas and Elec. Co. v. Flippo, 348 Md. 680 , 705 A.2d 1144 (1998).

As our discussion of Longeley, Osterman, and Murphy highlights, none of these cases involved a statute or ordinance designed to protect a specific class of persons. 8 Whereas those cases dealt with ordinances “passed for the benefit of the public,” the statute at issue here, as we shall explain, aims to protect a more targeted class of persons. That is why those courts did not engage in a careful application of the Statute or Ordinance Rule, and why we must do so here. It is also why those courts relied on the plaintiffs status as trespasser to deny relief. As we stated in Allen , the Statute or Ordinance Rule places no significance on the legal status of plaintiffs on the premises.

What matters is that they are members of the class to be protected by the statute. Petitioners attempt to characterize Allen as “a rare instance of the court finding that a statute created a specific duty from one group of persons to another.” They argue that “this Court held in Allen that the long-standing law that a premises ¹¹⁵ owner owes no duty to a trespasser had been abrogated solely in the narrow confínes of the Baltimore City Housing Code lead paint statutes, which expressly created a duty to abate lead paint between premises owners and all occupants, whatever their status.” We find no reason in law or logic to so cabin our holding in Allen . There, the common-law rule that a landowner owes a limited duty to trespassers was trumped by the Statute or Ordinance Rule. See supra.

Here, the same rationale applies. 9 Moreover, the Statute or Ordinance Rule has never been confined to the context of lead paint cases. This Court has identified the Statute or Ordinance Rule as the right rule to apply in a variety of settings. See Wietzke v. Chesapeake Conference Ass’n, 421 Md. 355, 395 , 26 A.3d 931, 955 (2011) (holding that a jury could apply the Statute or Ordinance Rule to regulations concerning sediment control regulations); Gourdmine v. Crews, 405 Md. 722, 758 , 955 A.2d 769, 791 (2008) (holding that protections contained in product branding statutes targeted too broad a class to satisfy the Statute or Ordinance Rule); Remsburg v. Montgomery, 376 Md. 568, 587 , 831 A.2d 18, 29 (2003) (holding that the Statute or Ordinance Rule was not satisfied by hunting regulations that were not intended to prevent the injury at issue); Moore v. Myers, 161 Md.App. 349, 365-66 , 868 A.2d 954, 964 (2005) (holding that the Statute or Ordinance Rule was satisfied by the violation of an animal control statute). This variety indicates that the Statute or Ordinance Rule has broad applicability, 10 and need not be cabined by common-law rules that are unique to the premises liability context. ¹¹⁶ Importantly, part (a) of the Statute or Ordinance Rule already sets a meaningful limitation on a court’s ability to apply it.

See, e.g., Wietzke, 421 Md. at 388 , 26 A.3d at 951 (“[W]e have always required the statute or ordinance allegedly violated to ‘set forth mandatory acts’ that are ‘clearly for the protection of a particular class of persons’ and not merely for ‘the public as a whole.’ ” (quoting Remsburg, 376 Md. at 584 , 831 A.2d at 27 (2003) (italics in original))); 11 see also Muthukumarana v. Montgomery Cnty., 370 Md. 447, 499-500 , 805 A.2d 372, 403 (2002) (holding that a statute designed to protect “the safety and well-being of the citizens of Maryland” referenced too broad a protected class to satisfy the Statute or Ordinance Rule (quoting Md.Code (1957,1997 Repl. Vol.), Art. 41, § 18 — 101(a))). Despite the relative clarity of the Statute or Ordinance Rule, Petitioners also argue that the creation of a legal duty must be expressly stated in a statute for the Statute or Ordinance Rule to apply. Petitioners rely on our recent decision in Warr v. JMGM Group, LLC, 433 Md. 170, 70 A.3d 347 (2013).

In Warr , this Court rejected several arguments to impose dram shop liability, including an assertion “that the tavern owners owed a duty to refuse to serve an intoxicated patron[] because there is a criminal statute prohibiting the sale of alcohol to visibly intoxicated persons.” Warr, 433 Md. at 195 , 70 A.3d at 362 . This Court observed that it “ha[d] not extrapolated civil liability from criminal statutes regulating the sale of alcohol, unlike some of our sister states.” Warr, 433 Md. at 197 , 70 A.3d at 363 . The Court then stated the Statute or Ordinance Rule — that in order to premise civil liability on a violation of a statute, a party need 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 ¹¹⁷ of.’ ” Warr, 433 Md. at 198 , 70 A.3d at 364 (quoting Brooks, 378 Md. at 79 , 835 A.2d at 621 ). This Court rejected the application of the Statute or Ordinance Rule, finding that the statute in question was enacted “ ‘for the protection, health, welfare and safety of the people of this State[,]’” not a particular class.

Warr, 433 Md. at 198 , 70 A.3d at 364 (quoting Md.Code (1957, 2011 Repl. Vol.), Article 2B, Section l-101(a)(3)). Thus, Warr only reinforced part (a) of