GRAEFF, J.
This appeal arises from a confrontation that ensued during an attempt to serve an arrest warrant on an individual believed to reside at the home of Kimberly Jones, appellee and cross-appellant. On September 21, 2009, a jury in the Circuit Court for Prince George's County found the State of Maryland, appellant and cross-appellee,
On appeal, the State presents the following questions for our review, which we quote:
For the reasons set forth below, we shall reverse the judgment of the circuit court.
On September 15, 2006, at approximately 11:30 a.m., Deputies Billy Falby and Gerald Henderson went to 151 Westway Center Drive, an apartment building in Greenbelt, Maryland, to serve a domestic violence arrest warrant on Lamarr Wallace.
The deputies knocked on the door and announced that it was the Prince George's County Sheriff's Office. Ms. Jones, who was asleep at the time, asked the officers to "hold on," and she put on a robe. The deputies heard doors opening and closing inside the apartment, and they were concerned that Mr. Wallace might be trying to escape.
When Ms. Jones answered the door, she informed Deputy Falby that Mr. Wallace did not live there. What occurred next is disputed by the parties, but the parties agree that a confrontation occurred between the deputies and Ms. Jones, first inside her apartment, and later, in the parking lot of the apartment complex. Ms. Jones ultimately was arrested and charged with hindering an investigation, assault on an officer, escape, and resisting arrest, charges that subsequently were entered nolle prosequi.
On November 27, 2007, Ms. Jones filed a Complaint in the Circuit Court for Prince George's County, naming Deputy Falby, Deputy Henderson, and the State of Maryland as defendants. She asserted the following claims: (1) Violation of Maryland Declaration of Rights, Article 26; (2) Violation of Maryland Declaration of Rights, Article 24; (3) False Arrest; (4) Trespass to Land; (5) Trespass to Chattels/Trover and Conversion; (6) False Imprisonment; (7) Battery; (8) Malicious Prosecution; (9) Intentional Infliction of Emotional Distress; and (10) Civil Conspiracy.
On December 24, 2007, the defendants filed their answers. All defendants generally denied liability and asserted that Ms. Jones failed to state a claim for which relief could be granted. In addition, they asserted as follows: (1) immunity under the Maryland Tort Claims Act ("MTCA"); (2) assumption of risk and/or contributory negligence; (3) any damages should be capped under the MTCA at $200,000; (4) the alleged acts did not rise to the level of malice or gross negligence; (5) legal justification and privilege; (6) the deputies acted reasonably, in good faith, without negligence, with due care, and in compliance with the law; (7) the deputies' actions were supported by reasonable suspicion,
On November 21, 2008, Ms. Jones filed an Amended Complaint, adding Counts XI and XII, the claims of negligent retention and negligent training and supervision. With regard to the claim of negligent retention, Ms. Jones asserted that Deputies Falby and Henderson "have committed violations such as those at issue here previously"; those "prior transgressions of the individual defendants are such as to put the State on notice that the individual defendants are unfit for duty"; such transgressions gave "rise to a duty to terminate the employment of the individual defendants"; the State nonetheless "negligently maintained their employment"; and that, as a result, the deputies "were put in [a] position to commit the other wrongs alleged in this case," directly and proximately causing injury to Ms. Jones. With regard to the claim of negligent training and supervision, Ms. Jones asserted that the "State has a duty to individuals such as Ms. Jones to properly train and supervise officers such that they do not violate the rights of citizens;" the State breached this duty by "failing and refusing to properly train and supervise" Deputies Falby and Henderson; the deputies "were trained that they may forcibly enter a person's home without a search warrant in order to serve an arrest warrant for someone who does not live there;" and as a result, the Deputies "committed the other wrongs alleged in this case," directly and proximately causing injury to Ms. Jones.
On December 10, 2008, the defendants filed answers to the amended complaint, raising two more defenses: (1) the plaintiff failed to comply with the mandatory notice requirements under the MTCA; and (2) the claims were barred by the statute of limitations and/or laches. On January 5, 2009, the defendants filed a Motion for Partial Summary Judgment, arguing, among other things, that the claims of negligent retention and negligent training and supervision could not be established as a matter of law. The defendants argued that Ms. Jones could not establish that they "owed her any legally actionable duty that could form the basis of her negligence claims, i.e., that the State specifically owed her in particular, versus the public in general, a duty of care, or that any special relationship was formed between her and the State." On March 5, 2009, the court denied the motion.
Prior to trial, the parties filed several motions in limine. Ms. Jones filed a motion to exclude evidence of her alleged contact with Mr. Wallace. She argued that the only contact of which the Deputies were aware at the time that they obtained and executed the warrant was based on information provided by a single witness. She asserted that any other inquiries regarding her contact with Mr. Wallace "should be excluded as irrelevant, confusing, more prejudicial than probative and an attempt to introduce impermissible character evidence to tar Ms. Jones through `guilty by association.'" The court granted the motion regarding evidence of a joint bank account held by Ms. Jones and Mr. Wallace, but it denied the motion regarding evidence that Mr. Wallace occasionally listed Ms. Jones' address as his own and occasionally stayed overnight at her house.
Trial commenced on March 16, 2009. On direct examination of Deputy Falby, counsel for Ms. Jones asked the court to reconsider its previous ruling that it could not ask Deputy Falby about his prior bad acts, arguing that there was evidence that Deputy Falby previously had improperly charged an individual with assault on an officer and failed to appear for trial, and this evidence was relevant to show intent and malice. The court ruled that, because there was no evidence that Deputy Falby received a summons to appear for the other trial, it would not allow the evidence. The court indicated that it would reconsider the issue if it became appropriate as impeachment evidence.
Ms. Jones then asked Deputy Falby if he had ever been disciplined by the Department. When the State objected, counsel argued that it was necessary to introduce evidence of prior complaints against Deputy Falby to establish the notice element of the negligent hiring and retention claim against the State.
The court ruled that Ms. Jones had "satisfied the burden of demonstrating the need for this material," and it permitted an examination of Deputy Falby outside the presence of the jury. The court sealed this testimony.
During the discussion after the testimony, the court summarized the testimony as indicating that there were two potentially relevant lawsuits, one involving a complaint by a prisoner as to insufficient medical care and the other involving excessive force, i.e., punching an inmate in the face. The court stated:
Counsel for the State then stated that, if the court was determined to admit this unfairly prejudicial evidence, it was "necessary
Trial then resumed. At the conclusion of the six-day trial on counts I through X, the jury found in favor of Deputy Henderson and the State on all counts, and in favor of Deputy Falby on all counts except the battery claim. On the battery claim the jury found in favor of Ms. Jones, against Deputy Falby, awarding no economic damages, but $5,000 in non-economic damages.
On March 26, 2009, the court signed an order staying entry of the judgment "pending determination of all the counts."
On August 17, 2009, prior to the second trial on Counts XI and XII, negligent retention and negligent training and supervision, the State filed a Motion for Summary Judgment. It argued that "Ms. Jones cannot show that the State breached any duty that she can show it owed to her or that
On September 14, 2009, a second trial commenced before a different jury on the claim of negligent retention, training, and supervision. Ms. Jones testified that, prior to the incident on September 15, 2006, she was employed as a youth care worker at Father Flanagan's, an emergency shelter for young teenagers. On September 15, 2006, after her night shift ended at 8:00 a.m., Ms. Jones went home and went to sleep. At approximately 11:30 a.m., Ms. Jones awoke to a knock at her door and an announcement that it was the Sheriff's Department. It took Ms. Jones a couple minutes to answer the door because she had been asleep, and she needed to go to her closet to get a robe. When she opened the door, Deputy Falby immediately placed his foot across the threshold of her home. He advised that he and Deputy Henderson were looking for Mr. Wallace. Ms. Jones testified that she knew Mr. Wallace, and he sometimes spent an evening at her house along with other friends, but he did not live with her.
Ms. Jones asked to see a warrant, but Deputy Falby told her that his supervisor had it. At this point, Deputy Henderson had walked around the side of the apartment complex and was standing outside Ms. Jones' patio door. She turned around to see who was tapping on her door, and when she turned back, Deputy Falby pushed the door open and punched her in the eye. Ms. Jones fell back into her foyer and hit her head on a closet door.
Ms. Jones testified that, because the police were not wearing traditional uniforms, and because Deputy Falby punched her in the face, she did not believe they were police officers. She "began to defend [her]self," but by this time, Deputy Henderson had broken through the glass of her patio door, and he "maced" her. She was able to get away from the officers and ran into the hallway, where she began banging on her neighbors' doors for help. She testified that the officers followed her and hit her with a baton and again sprayed her with mace.
Ms. Jones then ran into the parking lot of her apartment complex. She ran toward several Greenbelt police officers, but they backed away. Deputies Falby and Henderson caught up with her, banged her head against a car, and handcuffed her. Ms. Jones testified that she was still wearing her robe, and she was not permitted to go into her house to get dressed. Rather, she was forced to dress outside, in front of her building. She stated that she was "mortified, ashamed ... upset, scared." After she was dressed, Deputy Falby took Ms. Jones to the hospital, where she was treated for a head injury, and then to jail, where she spent the night until her friends bailed her out the next morning.
Deputy Falby testified next. He testified first with regard to his experience and training. He attended the police academy for six months before starting with the
Deputy Falby then testified with regard to the events on September 15, 2006. He and Deputy Henderson were assigned to serve an arrest warrant on Mr. Wallace. They were in unmarked cars, and they were wearing "BDUs," "battle dress uniform," which is dark blue and includes a badge, name tag, and full duty belt. When he and Deputy Henderson arrived at 151 Westway, they realized that the address listed on the warrant was that of an apartment complex, but it did not list an apartment number. Deputy Falby called the complainant, and he and Deputy Henderson subsequently went to apartment T-3.
When Deputies Falby and Henderson knocked on Ms. Jones' door, a female voice asked who was there. After the deputies identified themselves, the woman stated: "[W]ait a minute." Deputy Falby heard a door open and close. He and Deputy Henderson continued to wait, but eventually, they became concerned that Mr. Wallace might be trying to escape. Deputy Henderson went around to the back of the apartment. Deputy Falby believed that there was someone besides Ms. Jones inside, and that Ms. Jones was trying to protect Mr. Wallace by saying that he was not there. Therefore, when Ms. Jones opened the door, he blocked it with his foot. He testified that he was trained to place his foot against the door after it was opened to prevent someone from obtaining a weapon, or restricting access to the residence to allow the officers to search the location for the subject of the arrest warrant.
When Ms. Jones asked if there was a warrant, Deputy Falby tried to radio to Deputy Henderson, but his message was not communicated due to poor radio service.
Deputy Falby testified that, once he was in the apartment, Ms. Jones was screaming and hit him in the face, knocking his glasses off. In response to the confrontation, Deputy Henderson broke through the patio door and sprayed Ms. Jones with mace. Both he and Deputy Henderson tried to grab Ms. Jones, but because his glasses had been knocked off and he also had been sprayed with mace, Ms. Jones was able to get away and run into the hallway and then the parking lot outside the apartment. He and Deputy Henderson ran after Ms. Jones, cornered her between two vehicles, leaned into her with their bodies, and used an "arm bar technique," also known as a pain compliance measure, to handcuff her. Deputy Falby testified that he never hit Ms. Jones, and he did not know how she got her injuries. He stated that everything he did that day was consistent with his training.
Deputy Falby subsequently charged Ms. Jones with hindering an investigation and assault on an officer.
Deputy Falby testified regarding a pending lawsuit against him for use of excessive force against an inmate, relating to an incident that occurred approximately a year and a half before the incident with Ms. Jones. Deputy Falby was assisting with the transport of 48 to 60 prisoners who were chained together in a line.
Deputy Gerald Henderson testified next. His testimony was consistent with the testimony of Deputy Falby with regard to the events that took place inside Ms. Jones' apartment, as well as in the parking lot complex. Deputy Henderson did not see Deputy Falby shove Ms. Jones or do anything inappropriate. With respect to his training, he testified that he attended Howard County Police training for six months, where he was trained in arrest procedures, warrant service and initiation of criminal proceedings, and when he joined the Prince George's County Police Department, he attended a six week Experienced Police Officers Academy. He received periodic in-service training at the Howard and Prince George's County Police Departments, and has periodic in-service
The next witness, Angela Bolder, was unavailable, so her testimony from the first trial was read into evidence. On September 15, 2006, she lived in the apartment next door to Ms. Jones, and she called 911 after she heard Ms. Jones in the hallway screaming: "Help me. Can you help me. Can you help me." When she looked through her peep hole, she saw a man in the hallway who had Ms. Jones pressed against the wall and who hit her with a "stick." She called 911 because she could not tell whether the man was a police officer because he was wearing dark clothing.
Sandy Frye, a childhood friend of Ms. Jones, testified that Mr. Wallace, the subject of the arrest warrant, was her brother, and he lived with her at the time of the incident. On the day that Ms. Jones was arrested, she and her brother began walking to Ms. Jones' house, but along the way, Mr. Wallace was arrested. When she picked up Ms. Jones from jail the next day, Ms. Jones had a black eye, and she had a bald spot in the back of her head. They went to Ms. Jones' apartment, where they noticed hair on the floor, and Ms. Frye took pictures using her cell phone camera.
On cross-examination, Ms. Frye stated that Mr. Wallace spent most nights at her house, but occasionally he would spend the night at Ms. Jones' house.
After Ms. Jones rested her case, the State made a motion for judgment, adopting the arguments made in its earlier motion for summary judgment and further arguing that the sheriff owed no duty to Ms. Jones, that the sheriff was entitled to immunity, and the plaintiff failed to establish the elements of her claim. It argued that, with respect to the negligent retention claim, there was no evidence that the sheriff was on notice of "the allegations related to Terron Williams." With respect to the claim regarding training and supervision, it argued that there was "no expert testimony offered to suggest that [the deputies] didn't perform their work properly as law enforcement officers" or that anything that "the sheriff did in supervision or education of these deputies ... could have caused any wrongful harm to the plaintiff." The State contended that Ms. Jones failed to call any training witness, and she did not admit into evidence any guidelines, rules, manuals, general orders, etc. that showed improper training or supervision. It asserted that the only testimony regarding any impropriety was Deputy Falby's testimony regarding his decision to charge Ms. Jones with assaulting a police officer, which was erroneous because he did not suffer an injury. Deputy Falby testified, however, that he was trained correctly, and he just made a mistake.
Ms. Jones argued that all of the elements of the claim of negligent training, supervision, and retention had been met. Initially, she argued that the sheriff need
In response, the State argued that the Law Enforcement Officer's Bill of Rights ("LEOBR") "precludes the sheriff from discharging the deputy, absent appropriate procedures having been followed ... including a guilty finding before a trial board." It asserted that the LEOBR "prohibits the sheriff from carrying out disciplinary action absent a sustained finding, which plaintiff has not put on any evidence of in this case."
The State further argued that it "has already been held liable for the deputies direct actions" in the first trial, and "there is no separate liability through negligent retention." With regard to the deputies' actions, the State noted that the assertions of negligent training involved two things: (1) the officer putting his foot in the door when it was opened; and (2) the erroneous charge. With respect to the foot in the door, the State argued that there was no case stating that this was impermissible, and even if it was, this action was not causally related to any damage claim. With respect to the erroneous charge, the State noted that, although the officer may have erroneously charged Ms. Jones with assault with injury to a police officer, there was no evidence that the other charge was improper. It further argued that the only potential damages from the improper charge were lost wages, but Ms. Jones did not submit evidence to support this claim.
The court denied the State's motion for judgment, stating: "Considering all of the evidence in the light most favorable to the plaintiff at this point, the Court finds sufficient evidence at this point to send to the jury on the issues before it, which are the negligence issues. So the motion will be denied."
Ms. Jones subsequently made a motion for judgment as to the defendant's LEOBR defense, arguing that it was an affirmative defense that the State failed to raise earlier, and further, that there was no proof that the LEOBR prevented the sheriff from taking disciplinary action against Deputy Falby. The court agreed, ruling that the State could argue that no action was taken after the Terron Williams incident because Deputy Falby did nothing wrong, but it could not argue that the State could not have taken any action because there was no LEOBR hearing.
The court instructed the jury on the elements of the claim of negligence as follows:
In closing argument, Ms. Jones argued that the State improperly trained and supervised its officers, stating that the deputies were trained that they could enter apartments when there is no reasonable belief that the subject of an arrest warrant is inside the premises, and that they were trained to use excessive force. She argued that Deputy Falby did not receive training that he should not improperly charge individuals, and that both deputies testified that everything that they did was pursuant to their training and supervision. With regard to the State's negligent retention, Ms. Jones argued that, after the Terron Williams incident, the State should have terminated Deputy Falby, moved him to a different position in the Department, or required him to attend additional training.
Ms. Jones argued that, as a result of the State's negligence, she incurred damages. Her physical injuries included a neck strain, black eye, and head injury. She was terminated from her position at Father Flanagan's, causing $35,000 in lost wages, and in her new job, she could no longer work overtime, causing her to make $5,000 less per year, a $15,000 loss of income she incurred over the past three years. She argued that, in addition to lost wages, she suffered the following economic damages: (1) loss of her vehicle, in which she had $10,000 equity, due to her failure to make payments; (2) loss of her Disney timeshare, in which she had $2,000 equity, due to her failure to make payments; (3) attorney's fees in connection with the charges Deputy Falby filed against her, totaling $1,000. Finally, Ms. Jones argued that she was entitled to damages for her pain, suffering, fear, and humiliation caused by the deputies' actions.
The jury returned a verdict in favor of Ms. Jones, finding the State liable for "negligent retention, supervision or training," and awarding $50,000 for lost wages, $11,000 for economic damages, and $200,000 in non-economic damages, a total of $261,000. The court stayed its entry of the judgment to allow the parties to submit legal memoranda on the issue of how to reconcile this damage award with the $5,000 non-economic damage award from the first trial.
In response, Ms. Jones agreed that judgment should be entered in the amount of $261,000. She stated that both juries awarded damages due to Deputy Falby's action in punching her in the face, and she
In its legal memoranda, the State argued that the court should enter judgment in the amount of $5,000. It argued, among other things, that because it had accepted liability, pursuant to the Maryland Torts Claim Act, for non-grossly negligent torts committed by state personnel within the scope of their employment, it was duplicative to hold the State liable for negligent retention or supervision of such personnel. Thus, the State argued that it was entitled to judgment as a matter of law. Alternatively it argued that, even if judgment on this claim was appropriate, the Maryland Torts Claim Act limited its liability to $200,000.
On October 6, 2009, the court ordered that judgment be entered in favor of Ms. Jones in the amount of $200,000. Additionally, it ordered that Ms. Jones' request for a new trial on Counts I through X be denied and "that the Judgment for Five Thousand Dollars ($5,000.00) mistakenly entered by the Clerk of the Court on April 7, 2009 contrary to the Order of Court dated March 26, 2009 staying entry of judgment be and hereby is vacated."
On October 16, 2009, the State filed a Motion and Memorandum in Support of Judgment Notwithstanding the Verdict. Initially, the State argued that it was "not liable for any negligent employment practice based upon the evidence admitted in this case," which it alleged showed merely
The State further argued that,
Finally, the State argued that "the Sheriff, and derivatively the State, is not liable for negligent employment practices absent proof of absolute malice, which the jury did not find."
On November 2, 2009, Ms. Jones filed her Opposition to the [State's] Motion for Judgment Notwithstanding the Verdict. She argued that there was "more than sufficient evidence for a rational jury to reach the verdict that it did," asserting that both deputies testified extensively regarding their wrongful acts, including Deputy Falby's testimony regarding the Terron Williams incident. Ms. Jones argued that both deputies "conceded that all of their actions were consistent with their
Ms. Jones next argued that the verdict was not duplicative because negligent retention is a direct, independent cause of action. She asserted that "[w]hen a case is bifurcated for separate trials, it remains a single action, and the Court is required to reconcile the separate verdicts." She further argued that the State was liable for the negligence of its employees, even without a showing of malice.
On November 16, 2009, the court denied the State's request for judgment notwithstanding the verdict. This timely appeal and cross-appeal followed.
The State contends that the circuit court erred in denying its motion for judgment at trial and its motion for judgment notwithstanding the verdict ("JNOV") after trial.
Initially, the State argues that Ms. Jones did not present sufficient evidence to support a claim for negligent retention, supervision, and training. It contends that Ms. Jones failed to show two requisite elements for a negligence action: (1) that it owed a duty to Ms. Jones; and (2) that it breached any duty. Additionally, the State asserts that the court erred "in entering judgment against the State in light of Ms. Jones' failure to present any evidence regarding negligent retention, training or supervision related to battery, the only tortious act the jury found either deputy committed." Finally, the State contends that the court erred in entering judgment against it in the second trial because the State had already accepted directly liability for Deputy Falby's alleged battery in the first trial.
Ms. Jones disputes these assertions. She urges this Court to affirm the jury's verdict, but she argues that the circuit court improperly reduced the verdict to a judgment of $200,000. Accordingly, she requests that we vacate the judgment and remand with instructions for the circuit court "to reinstate the jury's full damages award of $261,000."
We start with the State's contention that the court erred in denying its motions for judgment and JNOV. We have explained our standard of review in that regard as follows:
Washington Metro. Area Transit Auth. v. Djan, 187 Md.App. 487, 491-92, 979 A.2d 194 (2009) (citations omitted). We review the denial of a motion for JNOV under the same standard as we review a denial of a motion for judgment. Id. at 491, 979 A.2d 194.
Ms. Jones' claims against the State in the second trial, the subject of this
The State contends that Ms. Jones failed to satisfy these requirements. As indicated, it contends that she failed to show a duty or a breach of a duty that was a proximate cause of her alleged damages.
A crucial element of a negligence action is a showing that the defendant had a duty to protect the plaintiff from injury. Horridge, 382 Md. at 182, 854 A.2d 1232. Accord Muthukumarana v. Montgomery County, 370 Md. 447, 486, 805 A.2d 372 (2002) ("The existence of `a legally recognized duty owed by the defendant to the plaintiff ... is vital to sustaining a cause of action in negligence.'" (quoting Valentine v. On Target, Inc., 353 Md. 544, 549, 727 A.2d 947 (1999))). Duty has been defined as "`an obligation, to which the law will give recognition and effect, to conform a particular standard of conduct toward another.'"
The State contends that Ms. Jones failed to make the requisite showing that it owed her any duty. It argues that, pursuant to the "public duty doctrine," the police have a duty to protect the public generally, not a duty to protect individual persons.
Ms. Jones argues that the public duty doctrine is inapplicable here because the doctrine involves the police duty to protect citizens from harm inflicted by another citizen, whereas this case involves injury inflicted by the police themselves, and the State's negligence in failing to properly train, supervise, and retain the police officers who caused the harm. She further argues that, even if the public duty doctrine applies, there is an exception to the doctrine where there is a "special relationship" between the police and the victim.
The Court of Appeals has explained the public duty doctrine as follows:
Muthukumarana, 370 Md. at 486-87, 805 A.2d 372 (some citations omitted).
The Court explained the rationale for the public duty doctrine as follows:
Id. at 487 n. 26, 805 A.2d 372 (citations omitted).
The Court further explained:
Id. (some citations omitted).
There is, however, an exception to the public duty doctrine, which allows an individual plaintiff to recover from a police officer if it is shown that a special relationship existed between the officer and the individual, such that a duty was owed to that individual separate from the general public. Id. at 487-88, 805 A.2d 372. A special relationship "`may be established in a number of ways: (1) by statute or rule; (2) by contractual or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and the third party.'" Ford v. Baltimore City Sheriff's Office, 149 Md.App. 107, 131, 814 A.2d 127 (2002) (quoting Bobo v. State, 346 Md. 706, 715, 697 A.2d 1371 (1997)). In order for a duty to arise by virtue of a relationship between the police and an individual plaintiff, the plaintiff must show that "`the local government or the police officer affirmatively acted to protect the specific victim or specific group of individuals like the victim, thereby inducing the victim's specific reliance upon police protection.'" Muthukumarana, 370 Md. at 488, 805 A.2d 372 (quoting Ashburn, 306 Md. at 631, 510 A.2d 1078).
The State argues that the public duty doctrine applies to Ms. Jones' claim of negligent retention, training and supervision because "the State's responsibility, through the Sheriff, to train and supervise Deputies is owed to the public, not to individual citizens." Ms. Jones disagrees, contending that the public duty doctrine applies to a case against a police officer for failure to protect a citizen from injury caused by another citizen, but her claim is a direct claim against the State for failing
Alternatively, Ms. Jones argues that the State affirmatively created a special relationship with Ms. Jones "either through their placing [her] in custody" or through their having "placed Ms. Jones in a zone of danger when they unreasonably forced themselves into her home and repeatedly battered her without justification." The State asserts that there was no special relationship between the State and Ms. Jones because "the only conduct relevant to her claims is conduct that preceded the custodial relationship with Ms. Jones."
The Court of Appeals has suggested, consistent with Ms. Jones' argument, that the public duty doctrine protects the police from liability for failure to protect an individual "against injury caused by another citizen." Ashburn, 306 Md. at 628, 510 A.2d 1078. As the State points out, however, it has not held that the doctrine is limited to this situation. Other courts have been more specific and have expressly limited the public duty doctrine to claims involving the failure to protect individual citizens against harm from third persons, holding that the doctrine does not apply where the harm was brought about directly by the police. See, e.g., Liser v. Smith, 254 F.Supp.2d 89, 102 (D.D.C.2003) ("The claim that the government has no general duty to protect particular citizens from injury is simply a non-sequitur where the government itself is solely responsible for that injury, which it has caused by the allegedly negligent use of its own police powers."); Bates v. Doria, 150 Ill.App.3d 1025, 104 Ill.Dec. 191, 502 N.E.2d 454, 458 (1986) (public duty doctrine inapplicable to case "where plaintiff seeks to impose liability based upon the defendants' negligent employment of a law-enforcement officer, not upon defendants' failure to prevent the commission of crimes").
This Court, however, has applied the doctrine in a factual scenario similar to the facts of this case. In Ford, 149 Md.App. at 107, 814 A.2d 127, the plaintiff alleged that he was injured when the police mistakenly attempted to execute an arrest warrant at his residence. Id. at 114-15, 814 A.2d 127. Ford filed a complaint against the deputy sheriffs and the Baltimore City Sheriff's Department, alleging, among other things, negligent training and supervision. Id. at 117, 814 A.2d 127. Specifically, Ford alleged that "the Sheriff's office negligently trained and supervised the deputies regarding the proper procedures for entering and searching a residence and detaining individuals." Id. at 128, 814 A.2d 127. In finding that Ford failed to establish a negligence claim, this Court addressed the public duty doctrine, noting:
The Court went on to hold that the public duty doctrine prevented a claim for negligence, stating:
Id.
Counsel for Ms. Jones candidly admitted at oral argument that it is difficult to distinguish Ford from the present case, at least with respect to application of the public duty doctrine analysis to the claim of negligent supervision and training. Counsel did note, however, that Ford did not address the public duty doctrine as it pertains to a negligent retention claim. Counsel further argued that, despite Ford, the doctrine should be limited to situations where the police fail to protect a citizen from injury inflicted by another citizen.
We need not address in this case whether the State had any duty to Ms. Jones. Even if it had such a duty, we agree with the State that judgment should have been entered in its favor because Ms. Jones did not establish any breach of duty.
The State contends that, "[e]ven if Ms. Jones were able to establish that the State, through the Sheriff of Prince George's County, owed a duty specifically to her, as opposed to the public generally, with respect to the retention, training or supervision of Deputies Falby and Henderson, her claim must fail because she failed to introduce evidence of ... any breach of such a duty." Ms. Jones disagrees, arguing that "there was ample evidence before the jury" from which it could conclude that the State breached its duty.
An employer is obligated "to the public to use due care in selecting and retaining only competent and careful employees." Henley v. Prince George's County, 60 Md.App. 24, 36, 479 A.2d 1375 (1984), rev'd in part on other grounds, 305 Md. 320, 503 A.2d 1333 (1986). To establish a claim for negligent hiring and retention, the plaintiff must prove the following five elements:
Id. (quoting 2 AM.JUR. PROOF OF FACTS 2d 609 § 2, 609, 615 (1974)). There is "a rebuttable presumption that an employer has used due care in hiring the employee." Horridge, 382 Md. at 181, 854 A.2d 1232.
The State argues that Ms. Jones failed to establish a claim for negligent retention. Specifically, it alleges: (1) Ms. Jones "did not even purport to present evidence" that Deputy Henderson was incompetent; (2) the evidence regarding Deputy Falby involved one incident, "as to which Deputy Falby's uncontroverted testimony was that he was completely exonerated"; and (3) there was no evidence of knowledge by a State official of improper behavior imposing a duty to fire him.
Ms. Jones contends that there was ample evidence of the deputies' incompetence and the State's actual or constructive knowledge of this incompetence. In support, she states that the evidence at trial showed "that Deputy Falby previously punched a defenseless man in the face, that the State was on notice of his conduct, and that he was not disciplined, nor did he receive any additional or different training as a result of the incident."
The Court of Appeals has made clear that a "critical standard" in a claim for negligent hiring/retention is "whether the employer knew or should have known that the individual was potentially dangerous." Evans v. Morsell, 284 Md. 160, 165, 395 A.2d 480 (1978). We agree with the State that Ms. Jones failed to present sufficient evidence to satisfy this standard. She failed to show that either Deputy Falby or Deputy Henderson was "unfit for the job, posing an unreasonable risk to those members of the public who would foreseeably come into contact with" them. Henley, 60 Md.App. at 37, 479 A.2d 1375. With respect to Deputy Henderson, Ms. Jones points to no evidence that would support such a claim. With regard to Deputy Falby, Ms. Jones points to a single incident where Deputy Falby punched a prisoner. The evidence showed that Deputy Falby punched this prisoner during an assignment where he was guarding approximately 50 prisoners who were being transported back to jail, and after the prisoner confronted another deputy and then shoved Deputy Falby. An internal investigation cleared Deputy Falby of all charges.
This evidence did not support a finding that Deputy Falby was unfit or incompetent, and therefore, it was insufficient to support a claim that the State was negligent in retaining him. The evidence did not come close to rebutting the presumption that the employer had used due care in hiring and retaining its employees. See Horridge, 382 Md. at 181, 854 A.2d 1232. Accord Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897, 903 (1991) (burden on plaintiff to rebut presumption of due care and show employer negligent in employing or retaining incompetent servant after knowledge of incompetence). Because Ms. Jones failed to produce evidence that would permit the jury to find that the deputies were unfit, there was no evidence to support a finding of negligent retention. Under these circumstances, the circuit court erred in submitting this issue to the jury and in denying the State's motion for judgment notwithstanding the verdict on Ms. Jones' claim of negligent retention.
The State next argues that Ms. Jones failed to show any breach of duty with respect to the training or supervision of the deputies. It asserts that Ms. Jones "failed to introduce any evidence as to the standard of care for training or supervision of law enforcement officers and failed to offer any expert witness testimony to establish appropriate standards." Indeed, it asserts that "Ms. Jones failed to introduce
The State asserts that the only testimony regarding training came from the deputies. It lists Deputy Falby's testimony as follows:
The State summarizes Deputy Henderson's testimony as follows:
Ms. Jones does not dispute the State's summary regarding the training of the deputies or suggest that there was any additional testimony. Rather, she contends that the deputies' testimony was sufficient to support her claim. She notes that the deputies testified that everything they did was consistent with their training. She asserts that the jury was free to believe Ms. Jones' version of events, and "[f]rom this evidence, the jury could find that the deputies were trained to unlawfully enter Ms. Jones' [ ] home, severely batter her, and falsely arrest and charge her."
In some jurisdictions, courts have held that expert testimony is necessary to maintain a claim of negligent training and supervision of police officers. For example, in Cotton v. District of Columbia, 541 F.Supp.2d 195, 207 (D.D.C.2008), the United States District Court for the District of Columbia stated that expert testimony is necessary where "`the subject matter is so distinctly related to some science, profession, or occupation as to be beyond the ken of the average layperson.'" Id. The court held that expert testimony was necessary for the claim of negligent training and supervision of police
We agree that, in most cases, expert testimony regarding the standard of care regarding police training is necessary to support a claim of negligent training and supervision of police officers. Here, Ms. Jones failed to introduce any testimony, expert or otherwise, indicating that the training and supervision of Deputies Falby and Henderson was deficient. The only testimony regarding the training of the deputies was from the deputies themselves, and nothing in their testimony suggested that their training was inadequate or contrary to reasonable standards of police training. Under these circumstances, there was no evidence for the jury to find that the State was negligent in its training or supervision of the deputies. Accordingly, the circuit court erred in not granting judgment in favor of the State on this claim.
Horridge v. St. Mary's County Dep't of Soc. Serv., 382 Md. 170, 183, 854 A.2d 1232 (2004) (quoting Remsburg v. Montgomery, 376 Md. 568, 583, 831 A.2d 18 (2003))
