WATTS, J.
This appeal concerns the Circuit Court for Montgomery County's grant of summary judgment in favor of appellees, Blackburn Limited Partnership d/b/a Country Place Apartments ("Blackburn"), Berkshire Property Advisors, LLC ("Berkshire"), and Community Pool Service, Inc. ("CPS"), against appellant, Alicia Daley Paul, individually and as parent and guardian of Christopher Clinton Paul ("Christopher"), in a cause of action for negligence and recovery of medical expenses related to the near drowning of then three-year-old Christopher in a swimming pool at Country Place Apartments. Appellant noted an appeal raising four issues, which we consolidate and rephrase as follows:
For the reasons set forth below, we answer question I.C in the affirmative. At oral argument, during rebuttal, appellant's counsel stipulated that, if this Court determined the existence of a regulatory duty, appellant would not proceed under common law theories of liability at trial. In light of our decision as to question I.C, we do not address questions I.A or I.B, concerning
Blackburn owns an apartment complex in Burtonsville, Maryland called Country Place Apartments ("Country Place"), which has an outdoor swimming pool ("the pool") and a playground as community amenities. Country Place is a large apartment community, containing over 300 units. Berkshire generally manages Country Place, and CPS manages the pool at Country Place.
The pool and pool deck are surrounded by a metal fence approximately six feet high. The pool and fence were constructed in 1978, and, at the time of the incident, the fence had not undergone any replacements or renovations since its original construction. Two vertical gates controlled access to the pool area. When the pool was open, pool staff would remove the padlock and chain that locked the gates together, and the gates would swing in toward the pool, closest to the deep end of the pool. When the pool was closed, pool staff would affix the padlock and chain to the upper half of the gate. There was no lock on the bottom portion of the gate. Berkshire, the property management company, was responsible for maintaining and repairing the fence.
On March 23, 2010, CPS entered into a written "Swimming Pool Management Agreement" (hereinafter "the pool agreement") with Blackburn, for operation and maintenance of the pool from May 29, 2010, to September 6, 2010, for $19,900.
Pursuant to the terms of the pool agreement, CPS was responsible for the daily maintenance and operation of the pool, limited to maintaining proper filter operation, water quality, and health department records, and cleaning the pool and pool area. CPS also agreed to conduct "a minimum of three (3) Pool Inspections per week by its supervisory personnel[,]" that "w[ould] cover all phases of pool operation."
Pursuant to the pool agreement, Blackburn was responsible for completing the following tasks by April 15, 2010:
Country Place's "Pool Rules and Regulations 2010," provided, in pertinent part, as follows:
(Emphasis in original). The Pool Rules and Regulations stated that the pool did not open until noon on the days it was open.
In June 2010, Christopher, born March 1, 2007, resided at Apartment 22, a second floor apartment at Country Place, with his parents, appellant and Junior Christopher Paul ("Junior"), and his ten-year-old half-brother, Andre. In the "Apartment Lease Contract," dated and signed by appellant on May 19, 2009, appellant agreed to use the pool "with care in accordance with apartment rules and posted signs" and to "comply with any written apartment rules and community policies[.]" Blackburn, in turn, agreed to "keep common areas reasonably clean," "substantially comply with applicable federal, state, and local laws regarding safety, sanitation, and fair housing[,]" and "make all reasonable repairs, subject to [the tenant's] obligation to pay for damages for which [the tenant is] liable." In a "Montgomery County, Maryland-Addendum," Blackburn agreed to "deliver the leased premises and all common areas in a clean, safe, habitable and sanitary condition, free of rodents and vermin, and in complete compliance with all applicable laws." In the addendum, Blackburn acknowledged its "responsibility for maintaining the premises in accordance with all applicable laws."
On June 11, 2010, appellant, Junior, Andre, and Christopher received pool passes for Summer 2010. On June 12, 2010, Junior took Andre and Christopher to the pool during operating hours. On the morning of the following day, Sunday, June 13, 2010, when he woke up, Christopher asked appellant if he could go to the pool, and she told him the pool was not open. Christopher continued to ask appellant if he could go to the pool, and appellant told him that the pool was closed, that they could not go to the pool, and that they would go to the pool in the afternoon.
After not finding Christopher in front of or behind the building, appellant and Andre eventually searched near the pool, which was closed, and appellant observed Christopher's shirt and shoes on the ground inside the closed pool area. As appellant realized Christopher was in the pool area, Tiffany Miles, the pool manager, and Vitalie Plamiodeala, a lifeguard, arrived in a vehicle to open the pool for the day. Appellant yelled for Miles and Plamiodeala to open the gate because she believed her son was inside the pool area. At that point, Plamiodeala unlocked the padlock with a key and removed the chain on the gate. Appellant ran into the pool area and discovered Christopher unresponsive and submerged in the water in the five foot section of the pool closest to the gate.
Paramedics arrived on the scene and continued rescue efforts as Christopher was still unresponsive. Paramedics administered epinephrine to restart Christopher's heart and transported him emergently to Howard County General Hospital, where he was partially stabilized, before being transported by helicopter to Children's National Medical Center in Washington, D.C. Christopher suffered a severe anoxic brain injury as a result of the near drowning. As a result, Christopher is now nonverbal, visually impaired, lacks purposeful movement of his extremities, requires a gastric feeding tube, and is dependent on constant care from others for activities of daily living.
Detective Paula Hamill conducted an investigation of the near drowning, taking notes on the condition of the pool, fence, and gate. According to Detective Hamill, "there was a lot of play in the gate, so that it allowed for a large area from the midpoint down in either direction, whether [she] was pulling it forward or towards [her] or pushing it away from [her], and [she] was able to completely put [her] leg from the waist down into that [] opening, how the gate bowed out." Detective Hamill reported that it did not take the "force of an adult" to open the gate. Detective Hamill observed that metal "crossbars" on the fence were missing in some areas and that, in those areas, she could grab the two bars and "pull them open." Detective Hamill observed a pair of shoes and a T-shirt
At a deposition taken on August 10, 2011, Benjamin Alexander Beerman, Berkshire's property manager, testified that he inspected the fence surrounding the pool within a day of the incident and measured six inch spacing between the vertical posts of the fence.
At a deposition taken on September 29, 2011, Miles testified that, either on the day of the near drowning or the day after, she completed an "Owner's Inspection Report" recommending that the fencing around the pool be repaired so that there were no "breaks" or gaps in the fencing. Miles testified that, at some point after the near drowning, she learned that the pool barrier had been "painted and repaired."
In a "Professional Report" prepared on July 26, 2011, Dr. William N. Rowley, Ph. D., P.E., of Rowley International Inc., an aquatic design, engineering, and consulting firm, concluded that Country Place has "one of the most inadequate swimming pool barrier systems [he had] seen in over 40 years of professional swimming pool design practice." Dr. Rowley visited the Country Place pool on July 15, 2011, and, at that time, "a sphere of 4 inches could be passed through EVERY opening in the fence that [he] tested near the gate[.]" Dr. Rowley observed that, at the time of the near drowning, "each of the 1 ½" posts in the ... fence had a 5 ½" gap on either side, through which ... Christopher [] could have easily passed[.] Christopher['s] head width was only 5-1/8"." Dr. Rowley further observed that, at the time of the near drowning, "one of the ¾" vertical bars in the fence was not riveted at its midpoint and was sufficiently movable to allow a 7" gap through which [] Christopher [] could have easily passed[.]"
On December 17, 2010, appellant filed a complaint naming appellees as defendants,
As to negligence, appellant alleged that Christopher, as a resident, was an invitee at Country Place, and that appellees owed a duty of care to maintain the pool in a reasonably safe condition for all residents. Appellant alleged that appellees "knew or should have known that the lack of closed and/or properly secured fence gates made the pool readily accessible to children outside of operating hours while no lifeguards or other staff members were present, thereby creating a dangerous condition to persons unable to comprehend it."
On May 12, 2011, Blackburn and Berkshire filed an answer to the complaint, generally denying liability. On May 16, 2011, CPS filed an answer to the complaint, generally denying liability.
On November 30, 2011, CPS and Berkshire and Blackburn filed motions for summary judgment as to the claims asserted by appellant, arguing that they owed no duty to Christopher because he was a trespasser. CPS argued that the only duty owed to a trespasser is to "refrain from willfully or wantonly injuring or entrapping that person[,]" and that no evidence demonstrated CPS acted in a willful or wanton manner causing Christopher injury.
Blackburn and Berkshire contended that, although Christopher was an invitee while on the playground, he became a trespasser at the pool as he "penetrated the pool barrier" when the pool was closed and locked. Like CPS, Blackburn and Berkshire asserted that the only duty they owed to Christopher, a trespasser, was to
As to alleged statutory and regulatory violations, in the motion for summary judgment, Blackburn and Berkshire contended that the current applicable statutes and regulations "were not enacted when th[e] pool fence was constructed and no statute or regulation require[d Blackburn and Berkshire] to bring the pool barrier into compliance with the more recent regulations." Blackburn and Berkshire argued that, aside from any alleged statutory and regulatory violations, the violations did not create a duty to Christopher because he was a trespasser.
On December 16, 2011, appellant filed a consolidated opposition to the motions for summary judgment and a statement of material facts in dispute. In the opposition, appellant contended that summary judgment was inappropriate because:
As to Christopher's status, appellant contended that Christopher, as a tenant, was an invitee to whom appellees owed a duty of care. As to a regulatory duty, appellant argued that appellees were required to comply with statutory and regulatory provisions governing pool barriers, including a requirement that the barrier not allow passage of a sphere four inches in diameter.
On January 3, 2012, CPS filed a reply in support of its motion for summary judgment against appellant. CPS argued that negligence based on an alleged statutory violation requires that the injured person, at the time of the injury, have "the right to be on the property of the defendant[,]" i.e. not be a trespasser. (Citation and internal quotation marks omitted). CPS maintained that it had "no liability under the statutes and regulations because it had no responsibility for the pool barrier."
On January 3, 2012, Blackburn and Berkshire filed a reply in support of their motion for summary judgment as to the claims asserted by appellant. Blackburn and Berkshire argued that they were not required to comply with COMAR provisions regulating spacing between vertical fence rails because the pool and fence were constructed in 1978 and the regulations allegedly violated were enacted in 1997.
On January 19, 2012, the circuit court held a hearing on the motions for summary judgment. During the hearing, as to the alleged regulatory violation, counsel for Blackburn and Berkshire argued, in part, as follows:
At the conclusion of the hearing, the circuit court took the motions under advisement, and acknowledged that other issues, including the motion to sever, remained pending.
On January 26, 2012, the circuit court issued an Order granting appellees' motions for summary judgment, finding CPS's motion for summary judgment as to indemnity moot, and finding Blackburn's and Berkshire's motion to sever cross claims moot. On the same day, the circuit court issued a Memorandum Opinion, finding that Christopher was a trespasser to whom appellees owed only a duty to "abstain from willful or wanton misconduct or entrapment." The circuit court found that "[t]here was no evidence ... that [appellees'] actions rose to the level of willful and wanton misconduct[,]" and that, therefore, appellees "did not breach a duty." As to statutory code violations, the circuit court ruled as follows:
(Some internal citations omitted) (some alterations and omissions in original).
On March 21, 2012, appellant filed a supplemental notice of appeal, appealing "all appealable issues."
We review a trial court's grant of a motion for summary judgment de novo. Town of Oxford v. Koste, 204 Md.App. 578, 585, 42 A.3d 637 cert. granted, 427 Md. 606, 50 A.3d 606 (2012). Maryland Rule 2-501 governs summary judgment and authorizes summary judgment where "there is no genuine dispute as to any material fact" and "the party is entitled to judgment as a matter of law." In reviewing a grant of summary judgment under Rule 2-501, an appellate court will "independently review the record to 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." Reiter v. Pneumo Abex, LLC, 417 Md. 57, 67, 8 A.3d 725 (2010) (citation omitted). "In order for there to be disputed facts sufficient for us to hold that granting summary judgment ... was
Appellant contends that the circuit court erred in granting summary judgment and in finding COMAR 10.17.01.21 not applicable to the pool. Appellant argues that both state and county regulations "impose explicit gate and barrier restrictions to promote safety and prevent unauthorized entry into pool areas." Appellant asserts that appellees failed to comply with COMAR as the pool barrier permitted passage of an object larger than a four inch sphere. Appellant maintains that under the Montgomery County Health Department, "the pool barrier was required to be in compliance with COMAR and COMCOR." Appellant points out that the grandfathering provision contained in COMAR — COMAR 10.17.01.03A — exempted only seven specific areas from compliance, and those areas did not include gates and barriers. Appellant contends that although COMAR 10.17.01.03E sets forth certain regulations from which previously-approved pools are not exempted from compliance, a reading of the regulation does not lead to the conclusion that previously-approved pools need not comply with COMAR 10.17.01.21. By way of example, appellant asserts that, under the circuit court's reasoning, other provisions not specifically mentioned in COMAR 10.17.01.03A or E, would not apply, including provisions that pre-1997 pools could be inspected by the Secretary of Health and Mental Hygiene.
Appellant contends that COMAR and COMCOR created statutory duties to Christopher. Appellant argues that whether Christopher was a trespasser at the time of the incident is not relevant to a determination of whether appellees were required to comply with the statutory and regulatory provisions at issue in the case. Appellant asserts that the violation of a statutory duty is presumptive evidence of negligence. According to appellant, where a plaintiff presents evidence of a statutory violation that proximately caused injury, evidence of the violation is sufficient to submit the case to the jury for a determination of the defendant's negligence.
Alternatively, appellant contends that the 1970s statutes and regulations are applicable, and those statutes and regulations "create a duty to maintain an appropriate pool barrier." Appellant argues that the circumstances in this case demonstrate that appellees failed to comply with the 1970s statutes and regulations. Appellant asserts that the sole difference between the 1970s and 1990s statutes and regulations is that the 1997 regulation "simply put a hard number on the long-standing requirement that a pool be `inaccessible to small children' as required by the older codes."
Aside from any statutory and regulatory duty owed, appellant contends that appellees owed Christopher, as a lawful tenant, a contractual duty to "maintain the pool barrier." Appellant asserts that appellees breached their contractual duties by, inter alia, failing to prevent unauthorized entry into the pool area and to adequately secure the gate to the pool. Appellant maintains that, because "Christopher was a tenant, the contractual duties existed regardless of his conduct and of common law landowner/trespasser
As to causation, appellant contends that the circuit court erred in finding a lack of proximate causation because there was no direct evidence demonstrating the manner in which Christopher gained access to the pool area. Appellant argues that there was circumstantial evidence supporting an inference that Christopher gained access to the pool by squeezing through the gap in the loose gate. Appellant asserts that even "meager" circumstantial evidence of negligence is sufficient for the survival of summary judgment.
Appellees respond that "regulations enacted twenty years after the swimming pool and barrier were constructed d[o] not apply to the pool and do not create a duty owed by appellees that did not otherwise exist." Appellees contend that no statute or regulation required them to bring the pool barrier into compliance with the 1997 COMAR regulation. Appellees argue that COMAR 10.17.01.21, concerning pool barriers, is not included in the enumerated provisions with which an existing pool is required to comply. According to appellees, "[t]he applicable codes in 1978 [when the pool was built] were possibly the BOCA Codes of 1970 and 1975 and the Montgomery County Codes of 1971 and 1972," none of which "have any requirements concerning the permissible space between vertical rails of a fence surrounding a pool."
Appellees contend that violation of a statute as evidence of negligence applies only where a defendant owes a common law duty to the plaintiff. Appellees argue that they owed no duty to Christopher, a trespasser, and that the statutes and regulations did not create a duty to Christopher. Appellees assert that "the existence of [a] statute cannot alone create [a] duty[.]" Appellees maintain that "the `evidence of negligence' effect of a violation of statute or regulation may be used only by one who is entitled to assert it[,]" i.e. not a trespasser.
As to proximate cause, appellees contend that "[a]bsent even a scintilla of evidence that [Christopher] breached the enclosure through a part of it that violated a regulation, no such theoretical violation can be used as evidence of negligence."
The Laws of Montgomery County, 1971, Chapter 105, governing swimming pools in Montgomery County, became effective on March 10, 1971. Chapter 105-1(c) defines a public swimming pool as "[a]ny swimming pool, except a private swimming pool, which is intended to be used collectively by numbers of persons for swimming, diving, wading or recreational bathing." The Laws of Montgomery County, 1971, Chapter 105-2(a) provides that "[a]ll physical standards required by this Chapter shall apply to all public swimming pools constructed after the effective date[.]" Chapter 105-12, governing swimming pool gates and doors, stated:
(Emphasis added).
The Laws of Montgomery County, 1971, Executive Regulation No. 3-71, effective March 10, 1971, entitled "Manual on Public Swimming Pool Construction," states that "[a]ny swimming pool built in accordance with detailed requirements contained in this manual shall be deemed to have met the requirements for Physical Standards of Chapter 105, ... entitled `Swimming Pools.'" Executive Regulation No. 3-71 Section III(B) provides, in pertinent part:
(Emphasis added).
Section 51-1 of the Mont. Co.Code of 1972 defines a public swimming pool as "[a]ny swimming pool, except a private swimming pool, which is intended to be used collectively by numbers of persons for swimming, diving, wading or recreational bathing." Mont. Co.Code of 1972 § 51-3(a) provides that "[a]ll physical standards required by this chapter shall apply to all public swimming pools constructed after the effective date of this chapter[,]" which was March 10, 1971. Section 51-16 of the Mont. Co.Code of 1972, governing swimming pool gates and doors, provides:
(Emphasis added).
The Building Officials & Code Administrators ("BOCA") Basic Building Code of
Section 429.83 of the 1970 BOCA Basic Building Code, entitled "Swimming Pool Safety Devices," provides:
(Emphasis added).
The BOCA Basic Building Code of 1975 Section 428.2 similarly classifies pools as follows:
Section 428.8.3, entitled swimming pool safety devices, provides:
(Emphasis added).
COMAR 10.17.01.00 et seq. became effective on February 10, 1997. COMAR 10.17.01.01, concerning public swimming pools and spas, provides that the "purpose of this chapter is to enact regulations that protect and promote the public health and safety of individuals at public ... pools in Maryland. Public pools include limited public-use pools, recreational pools, and
COMAR 10.17.01.13, entitled "Standards for Recreational and Semipublic Pools," provides as follows:
COMAR 10.17.01.05B(3) defines a "barrier" as "a fence or wall or a combination of a fence and wall that completely surrounds and obstructs access to the pool or spa." COMAR 10.17.01.21, concerning barriers, provides, in relevant part, as follows:
(Emphasis added).
Mont. Co.Code § 51-1(j) defines a public swimming pool as "[a] swimming pool, except a private swimming pool, which is intended to be used collectively by numbers
Swimming pool enclosures are covered under Mont. Co.Code § 51-15, which provides, in pertinent part, that public swimming pools must be permanently enclosed, as follows: "A public pool must be enclosed as required by the manual of public swimming pool construction." Mont. Co. Code § 51-15(b)(2).
(Emphasis added).
On April 25, 1995, the American National Standards Institute (the "ANSI") and National Spa & Pool Institute (the "NSPI") approved new American National standards for residential inground swimming pools. In Appendix E, entitled Model Barrier Code for Residential Swimming Pools, Spas and Hot Tubs, the ANSI and NSPI set forth the following "Preamble to NSPI Model Child Protection/Barrier Code":
The Scope of the Model Barrier Code was stated as follows: "These requirements establish layers of protection for young children against the potential for drowning and near drowning in residential swimming pools, spas and hot tubs by limiting or delaying their access to swimming pools, spas, and hot tubs." The Purpose of the Model Barrier Code stated:
In light of the scope and purpose of the Model Barrier Code, the ANSI and NSPI adopted the following requirements:
On July 7, 1995, the Maryland Register published a Notice of Proposed Action proposing adoption of new regulations to be contained at COMAR 10.17.01. Proposed Action on Regulations, 22:14 Md. Reg. 1067 (July 7, 1995). In the Statement of Purpose, the Notice of Proposed Action stated:
Id. As to the summary of the economic impact of the new regulations, the Notice of Proposed Action explained:
Id. In a section titled "Assumptions" under the Estimate of Economic Impact, the impact on owners of public pools and spas is described as follows:
Id. at 1068. In the Assumptions, the Secretary of Health and Mental Hygiene further observed that "[t]he public may have significant, nonquantifiable savings as a result of decreased illness and injury at public pools and spas." Id.
It was proposed that COMAR 10.17.01.21A(3) require a pool barrier to comply with the requirement that "[e]xcept when the entrance gate is open, an opening in the barrier and in the gate does not allow passage of a sphere 4 inches in diameter[.]"
Final Action on Regulations, 24:3 Md. Reg. 187 (January 31, 1997).
COMAR 10. 17.01 et seq. was thus adopted and became effective on February 10, 1997. COMAR 10.17.01.01, outlining the purpose and scope of the chapter, provides:
COMAR 10.17.01.21A(3), regulating pool barriers, was adopted as proposed, adopting the four inch requirement for pool barriers.
COMAR 10.17.01.54, entitled "Compliance Schedules," provides, in pertinent part, that "[t]he owner of a public pool ... that has a structure, equipment, or appurtenance that is not in compliance with this chapter as determined by the Secretary may submit to the Secretary for approval a compliance schedule for meeting the requirements of this chapter." COMAR 10.17.01.54A. COMAR 10.17.01.54C provides that the Secretary may approve a compliance schedule if certain requirements are met, including the requirement that "[o]peration of the pool ... during the time allowed to bring the pool ... into compliance does not adversely affect the health and safety of the public."
Section 285 of Restatement, Second of Torts, entitled "How Standard of Conduct Is Determined," provides:
Section 286 of the Restatement, Second of Torts, entitled "When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted," expands upon § 285 and provides:
Conversely, Section 288 of the Restatement, Second of Torts, entitled "When Standard of Conduct Defined by Legislation or Regulation Will Not Be Adopted," states as follows:
Comment a to Section 288 observes: "This Section, which is a corollary to § 286, states the conditions under which the courts will not adopt the legislative or administrative standard of conduct as that of a reasonable man for purposes of a negligence action. Section 286 states the conditions under which the courts will normally adopt the standard, although,... they are under no compulsion to do so." Section 288B(2) explains that "[t]he unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct."
(Citations omitted) (some alterations and omissions in original).
In Brooks v. Lewin Realty III, Inc., 378 Md. 70, 72, 835 A.2d 616 (2003), a lead paint case, the Court of Appeals narrowly held that, "in the context of a tort action against a Baltimore City landlord, based upon a child's consumption of lead-based paint which was present in the form of flaking, loose, or peeling paint in the leased premises, in violation of the Housing Code, the plaintiff does not have to show that the landlord had notice of the violation to establish a prima facie case." The Court of Appeals observed, as an initial matter, that, "under 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." Id. at 78, 835 A.2d 616. An exception to that general rule, however, is where circumstances permit the violation of a statute to serve as evidence of negligence — namely, "where there is an applicable statutory scheme designed to protect a class of persons which includes the plaintiff," such that the defendant's duty is prescribed by the statute.
In Brooks, id. at 81, 835 A.2d 616, the Court of Appeals examined the relevant provisions of the Baltimore City Housing Code, which generally "impose[d] numerous duties and obligations upon landlords who rent residential property to tenants." One violation of the Housing Code included maintaining a residence containing flaking, loose, or peeling paint. Id. at 89, 835 A.2d 616. Based on the Court's review of the applicable statutes and statutory scheme, the Court determinated that the Housing Code did not make a "landlord's notice of a defective condition a factor with regard to the landlord's duty to the tenant." Id.
In Joseph, 173 Md.App. at 321-22, 327, 918 A.2d 1230, a slip-and-fall case, with Judge Charles E. Moylan, Jr. speaking for the Court, we discussed the evidentiary principle of a violation of a statute or regulation serving as evidence of negligence generally, stating:
(Citations omitted) (emphasis in original).
Upon quoting Section 285 of the Restatement, Second of Torts, we explained that courts may accept a statutory rule of conduct, stating:
Id. at 328, 918 A.2d 1230 (citation and emphasis omitted). We quoted Sections 286 and 288 of the Restatement, Second of Torts, stating that statutes or ordinances must clear a high bar before a court will hold that its violation is evidence of negligence. Id. at 329-30, 918 A.2d 1230. We commented generally that "courts usually refused to adopt statutory standards that were not aimed at protecting groups that included the plaintiff and those not aimed at protecting against harms of the kind suffered by the plaintiff." Id. at 331, 918 A.2d 1230 (citation and emphasis omitted).
In Joseph, id. at 309-10, 918 A.2d 1230, the plaintiff, an invitee at an apartment building where his father resided, slipped and fell on an oily substance on a stairwell landing. At issue in the case was whether the plaintiff, to sustain a cause of action in negligence against the defendants, was required to "prove not only that a dangerous condition existed but also that the [defendants] `had actual or constructive knowledge of the dangerous condition and that the knowledge was gained in sufficient time to give [them] the opportunity to remove it or to warn the invitee.'" Id. at 315, 918 A.2d 1230 (citations omitted).
As to the violation of the provision of the Montgomery County Code — which simply stated in "boiler-plate" language that a landlord must keep all areas of a building "in a clean, sanitary, and safe condition" — we observed that the provision was contained within a larger chapter of the Code, Chapter 29, governing landlord-tenant relations. Id. at 332, 918 A.2d 1230. One of the express purposes of Chapter 29 was to make "the contractual relationships between landlord and tenant more arm's length and amicable by removing as many areas of doubt or ambiguity as possible and by providing a specially designed tribunal to reconcile any differences between them." Id. at 332-33, 918 A.2d 1230. As such, the purpose of Chapter 29 of the Montgomery County Code was to improve relations between landlords and tenants. Id. at 333, 918 A.2d 1230. The chapter purported to "regulate[] and determine[] the legal rights, remedies and obligations of the parties and beneficiaries of any rental agreement concerning any rental dwelling unit located in the County." Id. at 334, 918 A.2d 1230 (emphasis omitted). We observed that many of the provisions of the chapter concerned "contractual obligations under the lease, not the establishment of tort liability." Id. Accordingly, based upon our review of the statutory scheme and provision at issue, we concluded that "[i]t could not be more clear that Chapter 29 generally, and [the statute at issue] specifically, of the Montgomery County Code did not create a civil action tort for the benefit of invitees in slip-and-fall cases." Id. at 335, 918 A.2d 1230.
As to the argument that Brooks abolished the element of notice in slip-and-fall cases, we observed that the Montgomery County Council, in enacting the chapter concerning landlord-tenant relations, in no way demonstrated an intent to abolish the element of notice in slip-and-fall cases. Joseph, 173 Md.App. at 338, 918 A.2d 1230. We distinguished Brooks as a unique case involving "exclusively with heightened landlord responsibility in Baltimore City for injuries to children caused by loose and flaking lead paint." Joseph, 173 Md.App. at 341, 918 A.2d 1230. We concluded that the Court of Appeals's decision in Brooks "left no doubt that that case was a lead paint case and nothing but a lead paint case," thus making its abolishment of the notice requirement under very narrow circumstances inapplicable to traditional slip-and-fall cases such as the one at issue. Joseph, 173 Md.App. at 344, 918 A.2d 1230.
In Allen v. Dackman, 413 Md. 132, 137, 991 A.2d 1216 (2010), another lead paint case, the Court of Appeals held that the defendant owed a duty to the plaintiffs under the Baltimore City Housing Code, even if the plaintiffs were trespassers with no legal right to possess the property and the defendant never intended to lease the property. In Allen, id. at 138-39, 991 A.2d 1216, the plaintiffs resided at the property with their grandmother pursuant to the grandmother's lease. The owner of the property failed to pay property taxes. Id. at 139, 991 A.2d 1216. Hard Assets, a limited liability company of which the defendant was one of two members, purchased the property at tax foreclosure. Id. Hard Assets did not intend to lease the property and had no knowledge that the plaintiffs, or their grandmother, were residing
In Allen, id. at 156, 991 A.2d 1216, among other issues discussed, the Court of Appeals discussed the defendant's duty to the plaintiffs, persons "who ha[d] no legal right to possess the property." Although the defendant argued that the Housing Code was not intended to protect individuals with no legal right to possess the premises, the Court of Appeals determined that "the common law rule that a landowner owes a limited duty to those who trespass on his or her property[,]" was "inapplicable to the present case because the duty here is based on the Housing Code, not the common law." Id. at 157, 991 A.2d 1216 (citation omitted). The Court of Appeals concluded, upon review of the Housing Code, that the Code was intended to protect "occupants of dwellings[,]" defined as persons who "actually use[] or ha[ve] possession of the premises." Id. at 156-57, 991 A.2d 1216. As to the violation of a statute as evidence of negligence, the Court of Appeals stated:
Id. at 157-58, 991 A.2d 1216 (citations and footnotes omitted) (second omission in original).
In Allen, 413 Md. at 158 n. 18, 991 A.2d 1216, in a footnote, the Court of Appeals discussed a case decided by the Supreme Court of North Carolina, Bell v. Page, 271 N.C. 396, 156 S.E.2d 711 (1967),
(Citations omitted). To the Court of Appeals's concise and accurate summary of
(Citation omitted).
Returning to the case at hand, as an initial matter, we conclude that appellees' argument — that for there to be a statutory or regulatory duty, there must first be a common law duty — is without merit. In Allen, 413 Md. at 157, 991 A.2d 1216, a Baltimore City lead paint case, the Court of Appeals rejected the defendant's common law trespasser rule argument, stating that the rule was "inapplicable to the present case because the duty [was] based on the Housing Code, not the common law." Similarly, in Bell, 156 S.E.2d at 714-15, a case involving a child trespasser who drowned in a swimming pool where the defendant had failed to erect a fence around his pool in violation of a local ordinance, the Supreme Court of North Carolina observed that although, under the common law, the defendant would owe only a limited duty to the child trespasser, the defendant would be held to the higher duty established by the ordinance because "[t]he primary purpose and intent of [the] ordinance ... was to provide protection for children without reference to whether they were legally entitled to use the pool."
Before proceeding, we state that this Court's holding does not address, in any manner, the duty of a homeowner with a private swimming pool, as defined by the relevant statutes and regulations. Rather, the opinion concerns only the duties owed by owners of public swimming pools.
Under either the 1970s statutes and regulations or the 1990s statutes and regulations, appellees were required to comply with certain requirements concerning the pool barrier. Under the 1970s statutes and regulations, appellees were required to maintain "in good condition" a
Similarly, under the 1990s statutes and regulations, appellees were required to enclose a public swimming pool with a "barrier designed so as to minimize the possibility of unauthorized or unwary persons entering the pool area." Mont. Co.Code § 51-15(b)(2); COMCOR 51.00.01.03(B). In addition, pursuant to COMAR 10.17.01.21A(3), appellees were required to surround the pool with a barrier such that, "[e]xcept when the entrance gate is open, an opening in the barrier and in the gate does not allow passage of a sphere 4 inches in diameter[.]" Thus, the statutes and regulations from the 1970s and 1990s demonstrate that appellees, and all other owners of public swimming pools, were required to meet certain minimum standards as to the construction and maintenance of an adequate pool barrier.
As to which set of statutes and regulations applied to the pool at the time of the near drowning on June 13, 2010, the circuit court incorrectly determined that COMAR 10.17.01.21, and, specifically, the requirement that openings in the pool barrier and gate "not allow passage of a sphere 4 inches in diameter[,]" did not apply to the pool at Country Place. In its Memorandum Opinion, as to the applicability of COMAR 10.17.01.21, the circuit court stated:
Simply put, the circuit court misread the intent and applicability of COMAR 10.17.01.03.
To begin, we conclude that the pool at Country Place is a recreational pool, as that term is defined in COMAR 10.17.01.05B(19)(f)(v), as it is a pool provided by, or used by, an apartment complex consisting of more than ten units. In turn, pursuant to COMAR 10.17.01.05B(18)(b)(ii), a recreational pool is a public pool for purposes of the chapter. COMAR 10.17.01.03, a "grandfathering" provision, provides limited exemptions for previously approved pools, i.e. owners of previously approved pools are exempt from bringing the pools into compliance with certain specific regulations. COMAR 10.17.01.03A(1) specifically exempts previously approved pools and spas from compliance
COMAR 10.17.01.03B and C concern maintenance and repairs to previously approved pools. COMAR 10.17.01.03B permits previously approved pools to be maintained in their original condition, and to be repaired to their original condition without complying with the requirements of the chapter (with two exceptions), provided that: (1) the repairs cost less than 25% of the replacement value of the pool, (2) the materials or components used in the repair are the same or equivalent to the materials and components originally approved, and (3) repairing the pool to its original condition "[d]oes not create a danger or allow a danger to continue that threatens the health and safety of an individual using the pool[.]"
A review of the exemptions provided for in COMAR 10.17.01.03A and the mandatory regulations set forth in COMAR 10.17.01.03E reveals that the two provisions concern national standards promulgated for pools and spas, and whether or not compliance with the national standards is required for previously approved pools and spas under the COMAR chapter governing public swimming pools and spas. See supra notes 19 and 20 for a listing of the regulations referenced in COMAR 10.17.01.03A and E. Both subsections are silent as to a previously approved pool's compliance with COMAR 10.17.01.21, governing pool barriers. Read together, the subsections of COMAR 10.17.01.03, as a whole, provide that the limited exemptions set forth in COMAR 10.17.01.03A do not apply if a condition exists that poses a threat to the health or safety of an individual or the public.
For the reasons explained above, we conclude that, pursuant to COMAR 10.17.01.03, previously approved pools are required to comply with COMAR 10.17.01.21 and COMAR regulations not specifically exempted by subsection A, in circumstances where a condition exists that poses a danger that threatens the health and safety of pool users. In concluding otherwise, the circuit court failed entirely to consider subsection A and that previously approved recreational or public swimming pools were not exempted from complying with (1) COMAR 10.17.01.21, (2) the whole of COMAR 10.17.01.03B — which does not allow for maintenance and repair
Our reading of COMAR 10.17.01.03 and our conclusion that previously approved pools are not exempted from compliance with COMAR 10.17.01.21 is bolstered by the legislative history of the regulations as well as the purpose and scope of the Chapter. The Model Barrier Code for Residential Swimming Pools, Spas and Hot Tubs, adopted and incorporated by reference into the COMAR chapter governing swimming pools, see COMAR 10.17.01.04D, demonstrates the great concern that pools be surrounded by an adequate barrier so as to prevent young children from accidental drownings and near drownings. In the purpose statement of the Model Barrier Code, the objective of the Code is listed as establishing requirements to deter access by children to pools, especially children under five years of age, who are not able to appreciate the dangers posed by pools. As part of maintaining an adequate pool barrier, the Model Barrier Code requires that a sphere greater than four inches not be permitted to pass through openings in the barrier. In the Notice of Proposed Action proposing adoption of the new COMAR regulations, the Notice specifically states: "The purpose of this action is to enact regulations that protect and promote the health and safety of individuals at public and semipublic swimming pools and spas[.]" Proposed Action on Regulations, 22:14 Md. Reg. 1067 (July 7, 1995). The new regulations included a proposed regulation adopting the four inch sphere requirement set forth in the Model Barrier Code. Id. at 1074.
In the Notice of Proposed Action, the economic impact of the new regulations was discussed in some detail. Id. at 1067-68. Although the Notice stated that the economic impact on existing public pools "should be minimal due to the grandfathering" of those preexisting pools, the Notice specifically recognized that some owners will face "increased cost[s]" to "meet updated standards," and that, as a result of the new regulations, "[t]he public should have greater protection of health and safety, resulting in reduced illness and injury." Id. at 1067. The Assumptions contained within the Notice stated that "[a]ny potential economic impact may be spread out through the use of a compliance schedule[,]" i.e. an owner of a preexisting pool could take some time to comply with the new regulations and spread out the costs associated with compliance over time. Id. at 1068. The main Assumption, however, was that "[t]he public [would] have
As adopted, the COMAR regulations demonstrate an intent to provide measures to increase public health and safety at public swimming pools in Maryland. Indeed, COMAR 10.17.01.01 explicitly recognizes this intent and states that the purpose and scope of the chapter is to "enact regulations that protect and promote the public health and safety of individuals at public spas and pools" and to establish "minimum criteria for public pools and spas." In light of this explicit purpose and scope, and given the legislative history demonstrating an intent to protect children at pools, in part through the adoption of the four inch sphere requirement as set forth in the Model Barrier Code, we have no difficulty in concluding that the Country Place pool was required to comply with the 1997 COMAR regulations, including COMAR 10.17.01.21.
As a separate matter, we note that the circuit court failed entirely to consider the applicability of Montgomery County statutory and regulatory provisions concerning pool barriers. Based on our review of the statutes and regulations at issue, we conclude that the 1990s Mont. Co. Code and COMCOR provisions were applicable to the Country Place pool at the time of the incident.
As to pool barriers specifically, Mont. Co.Code § 51-15(b)(2) provides that public swimming pools must be permanently enclosed "as required by the manual of public swimming pool construction." The Editor's Note to § 51-15 provides that § 51-15(b)(1), concerning permanent enclosures of private swimming pools, and § 51-16, concerning pool fences, gates, and locks of private swimming pools, "apply only to a pool for which the building permit is submitted after the effective date of this law (July 13, 1990)." As the Country Place pool is not by any stretch of the imagination a private swimming pool, the later effective date of those provisions governing private swimming pools is of no consequence to the applicability of Mont. Co. Code § 51-15(b)(2). Indeed, that appellees contend otherwise on brief — namely, that the 1997 version of the Mont. Co.Code "specifically states that the requirements of Montgomery County Code § [] 51-15, `Enclosure of swimming pools' and Code § [] 51-16, `Swimming Pool fences, gates and locks,' are not applicable to pools built prior to July 13, 1990" — is simply absurd and contrary to the plain language and construction of the statute.
Thus, in summary, we conclude that the 1997 COMAR regulations governing public swimming pools, and specifically COMAR 10.17.01.21 governing pool barriers, as well as the 1997 Montgomery County statutory and regulatory provisions, were applicable to the Country Place pool at the time of the incident in this case — i.e. appellees 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. That the circuit court found otherwise was error.
Next, despite that appellees were required to comply with the 1997 statutes and regulations, as discussed in detail above, we must determine whether those statutes and regulations may properly be invoked to establish a standard of care, and whether violations of the same statutes and regulations may serve as evidence of negligence. We adopt the standard of care set forth in the statutes and regulations, determining that the statutes and regulations create a civil tort action, and that the violation of the statutes and regulations is evidence of negligence. We explain.
As to whether the statutes and regulations at issue are proper for this Court to adopt as the applicable standard of conduct, we are guided by Joseph and the Restatement, Second of Torts. We observe that the statutes and regulations applicable here do not, in themselves, contain express provisions that violation shall result in tort liability, thus, we must determine whether to adopt the requirements of the statutes and regulations "as the standard of conduct necessary to avoid liability for negligence." Restatement, Second of Torts § 285 cmt. c. We turn to Restatement, Second of Torts §§ 286 and 288. Here, we have no difficulty in concluding that the statutes and regulations — Mont. Co.Code § 51-15(b)(2), COMCOR 51.00.01.03(B), and COMAR 10.17.01.21 — meet the requirements as set forth in §§ 286 and 288 for adoption by this Court as standards of care. The purpose of the Montgomery County statutes and regulations governing public swimming pools and the Maryland regulations governing public swimming pools meets the four part test set forth in § 286, in that the statutes and regulations are meant to protect: (1) a class of persons including the one whose interest was invaded — namely, the general public, those who use swimming pools, and Christopher, the individual injured in this case; (2) the particular interest invaded — i.e. the health and safety of individuals at public swimming pools; (3) the interest against the kind of harm which resulted — i.e. protecting the health and safety of individuals at public swimming pools from drownings and near drownings; and (4) the interest against the particular hazard from which the harm results — namely, the public's health and safety are to be protected by adequate pool barriers that prevent individuals from accessing pools and drowning or near drowning.
The Montgomery County pool barrier regulation includes explicit language that the barrier must be designed "so as to minimize the possibility of unauthorized or unwary persons entering the pool area." COMCOR 51.00.01.03B. Similarly, as discussed above, the COMAR regulations, and the legislative history leading up to their adoption, demonstrate an intent to provide measures to increase the public health and safety at public swimming pools in Maryland. Indeed, COMAR 10.17.01.01 explicitly recognizes this intent and states that the purpose and scope of the Chapter is to "enact regulations that protect and promote the public health and safety of individuals at public spas and pools" and to establish "minimum criteria for public pools and spas." The four inch sphere requirement adopted in COMAR 10.17.01.21, based on the Model Barrier Code, was created specifically to ensure that children are deterred and prevented from gaining access to swimming pools where they could drown or near drown. COMAR 10.17.01.03 exempts previously approved pools from compliance with certain regulations except in cases where the public's health or safety is jeopardized by a condition or danger that exists at the pool. Thus, unlike in Joseph, 173 Md.App. at 331-34, 918 A.2d 1230, where the county statute at issue was contained within a chapter generally governing landlord-tenant relations, and where with the express purpose of the statute was to improve relations between landlords and tenants, here, we are satisfied that the purpose of the statutes and regulations is, in large part, to protect the health and safety of the public. We, therefore, conclude that the statutes and regulations were designed to create a cause of action in tort for the protection of the swimming public.
We move to the next step — whether violation of the statutes and regulations may serve as evidence of negligence in light of the contention that Christopher was a trespasser. See Joseph, 173 Md. App. at 321-22, 918 A.2d 1230. In this case, there is no doubt that the criteria identified in Joseph were fulfilled, and that violation of the 1997 statutes and regulations may properly serve as evidence of appellees' negligence. First, appellees allegedly violated the applicable statutes and regulations by maintaining a pool barrier which: (1) allowed passage of a sphere greater than 4 inches in diameter when the gate was closed and (2) failed to minimize the possibility of unauthorized or unwary persons entering the pool area. COMAR 10.17.01.21A(3); Mont. Co.Code § 51-15(b)(2); COMCOR 51.00.01.03(B). Second, the injury that resulted, Christopher's near drowning, was a type of injury which
We pause briefly to address Christopher's status as a tenant and the contractual duties owed to him by appellees pursuant to the lease and its addenda. Pursuant to appellant's lease, Blackburn agreed to "substantially comply with applicable federal, state, and local laws regarding safety, sanitation, and fair housing[,]" and to "make all reasonable repairs, subject to [the tenant's] obligation to pay for damages for which [the tenant] is liable." In the Montgomery County, Maryland-Addendum to the lease, Blackburn agreed to "deliver the leased premises and all common areas in a clean, safe, habitable and sanitary condition, free of rodents and vermin, and in complete compliance with all applicable laws." In the addendum, Blackburn further acknowledged its "responsibility for maintaining the premises in accordance with all applicable laws." In essence, as to the Country Place pool, a common area under appellees' control used by all tenants, see Hemmings v. Pelham Wood LLP, 375 Md. 522, 538, 826 A.2d 443 (2003), Blackburn contracted to meet its statutory and regulatory duties. Accordingly, the contractual duties, in this case, are part and parcel of the statutory and regulatory duties owed, and need not be addressed separately.
As a final matter, we determine that the circuit court erred in finding that, because there was no direct proof of proximate causation, i.e. there was no direct evidence "demonstrating exactly how Christopher circumvented the fence," appellant failed to make out a prima facie case of negligence. We agree with appellant that proximate cause need not be proven with direct evidence, but rather may be shown through circumstantial evidence. For example, in Dow v. L & R Props., Inc., 144 Md.App. 67, 75, 796 A.2d 139 (2002), this Court discussed proximate cause in a negligence action generally, stating:
(Citations omitted) (omissions in original). See also Lyon v. Campbell, 120 Md.App. 412, 437, 707 A.2d 850, cert. denied, 350 Md. 487, 713 A.2d 980 (1998) ("We are mindful that `the matter of causation [does not have] to be proved by direct and positive proof to an absolute certainty.' Circumstantial evidence that supports a `rational inference' of causation is legally sufficient." (Citations omitted) (alteration in original)).
That there was no direct evidence demonstrating how Christopher gained access to the pool area — for example, in the form of an eyewitness, a surveillance videotape, or Christopher's own recollection — was not dispositive of the determination of proximate cause. The following circumstantial evidence was sufficient to survive summary judgment on the issue of causation and leads to the reasonable inference that Christopher gained access to the pool area by squeezing through the gap in the gate: (1) at the time of the near drowning, Christopher was three-years-old, and his head was approximately 5.1 inches wide; (2) appellant discovered Christopher submerged in the water in the five foot section of the pool closest to the gate; (3) when investigating the near drowning, Detective Hamill observed a pair of shoes and a T-shirt on the "first table [] inside the front gate"; (4) Detective Hamill observed that there was "a lot of play in the gate," and that she was "able to completely put [her] leg from the waist down into that [] opening, [with] how the gate bowed out"; (5) Detective Hamill stated that it did not take the "force of an adult" to open the gate; (6) Beerman, Berkshire's property manager, testified that he inspected the pool barrier within a day of the near drowning and measured six inch spacing between the vertical posts of the fence; (7) neither Detective Hamill nor Officer Magnelli observed any cuts, bruises, or other injuries to Christopher — i.e. marks indicating that he climbed or jumped over the six foot fence surrounding the pool; and (8) Officer Magnelli testified that there was no evidence suggesting that Andre assisted Christopher in gaining access to the pool area. Based on this chain of circumstantial evidence, we have no difficulty in concluding that the circuit 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.
(Citation and emphasis omitted).
