BERGER, J.
This appeal involves litigation arising from the shooting death of Manuel Espina ("Espina") by off-duty Prince George's County police officer Steven Jackson
Following Espina's death, Espina's wife, Estela Concepcion Jacome-Espina ("Estela"),
The Espinas present four issues for our review, which we have rephrased as three issues as follows:
The county and Jackson present nine issues for our review, which we have rephrased as follows:
For the reasons set forth below, we shall affirm in part and reverse in part the judgment of the Circuit Court for Prince George's County.
On August 16, 2008, Espina and a friend were enjoying a beer outside Espina's Langley Park apartment. Prince George's County police officer Steven Jackson drove by Espina and his friend and observed the men drinking what he believed to be alcoholic beverages in the common area of the apartment complex.
Jackson testified that he entered the building to investigate possible violations of loitering, trespassing, or open container laws. When he entered the building, Jackson believed that Espina and another man had "taken evasive movements or measures" by going into the building and Jackson felt "outnumbered." Jackson testified that he asked Espina if he had any weapons and to put his hands against the wall. Jackson placed his hands on Espina and then, according to Jackson, Espina elbowed him in the back of his neck. Jackson testified that Espina became anxious and took a combative stance, and that after Espina charged him, Jackson sprayed Espina in the eyes with pepper spray. Jackson explained that he was able to get one handcuff on Espina's left hand but was unable to finish handcuffing him due to Espina's resistance. Jackson testified that he viewed the loose handcuff on Espina's left hand as a deadly weapon.
At some point, Jackson and Espina moved down the stairs to the first floor
Jackson testified that after he finished his call to dispatch, Espina began running downstairs to the lower level. Jackson explained that he grabbed Espina by the shirt and struck him with his baton because he was concerned that Espina might be trying to break into one of the lower level apartments. Espina and Jackson continued fighting into the lower level apartment of Espina's friends, Maria Gamez ("Gamez") and her daughter, Elvia Rivera ("Rivera").
Thereafter, according to Jackson, the other men engaged in the struggle and a total of five to seven people pushed at him and grabbed for the baton. Jackson testified that the men were pushing him toward the couch and reaching near his waistband and holster. Jackson testified that he begged the people to stop pushing against him, but they continued to push. According to Jackson, Espina reached toward his service weapon and Jackson feared that he might lose his weapon. Jackson removed his weapon from his belt and pointed the gun at the group of people. Jackson testified that, while he was holding the gun at waist level pointing toward the group of men, he asked everyone to get back and warned that he would shoot, but the members of the group continued reaching for his baton and service weapon. Espina was on his feet and moved toward Jackson, with his hands on Jackson's baton. Espina removed his hands from the baton and Jackson believed that Espina was going to take his service weapon. Jackson testified that, in fear for his life, he leaned his upper body backwards and fired his service weapon, striking Espina in the stomach. Jackson testified that Espina was standing when the fatal shot was fired and remained standing immediately after he was shot.
Jackson testified that after the shooting, the group retreated enough so that he was
Jackson testified that he used deadly force because he believed that his life was in danger. Jackson explained that he feared for his life because the group of men had a strategic advantage over him by virtue of their number and position. Jackson denied that he yelled profanity at any time during the altercation.
Noe Cordova ("Cordova"), a friend of the Espina family, testified that on the afternoon of August 16, 2008, he was outside of the apartment building with Espina, Estela, Manuel, and Gamez. It was Espina's birthday and Gamez was planning a birthday meal for him in her apartment. After the individuals went into the apartment building, Espina told Cordova that he thought he saw a police officer outside. Espina walked up to the landing and a police officer, who was later identified as Jackson, entered through the door and quickly walked past Cordova. Cordova testified that Jackson had a furious expression on his face and uttered the phrase "mother fucker." According to Cordova, Jackson grabbed Espina, pushed him against the wall, and hit him in the face. Jackson then sprayed Espina with pepper spray. Cordova testified that Espina began to yell, but Jackson kept hitting him and then threw Espina down the stairs. Cordova observed that Espina's face was bleeding and that Jackson continued to strike Espina with the baton. After Espina and Jackson moved to the lower level, Cordova was unable to see the altercation, but Cordova testified that he heard Espina's screams and heard a shot from Gamez's apartment. Cordova saw Jackson come out of the apartment after the shot was fired. He testified that he did not see anyone else come out of the apartment.
Luis Felipe Agustín ("Agustín"), another friend of the Espinas and resident of the apartment complex, testified that he saw a police cruiser parked outside of the apartment when he arrived home from work on the afternoon of August 16, 2008. When he walked up to the door of the apartment, Agustín saw Espina pushed up against the glass door at the entrance to the building. Agustín testified that Espina, whose face was "bathed in blood," was trying to exit through the door and the officer, who was later identified as Jackson, was striking
Elvia Rivera ("Rivera"), a friend of the Espina family, testified that as of August 16, 2008, she lived with her mother, Gamez, in the lower level apartment. Rivera testified that Gamez was preparing a meal for Espina's birthday celebration. Rivera looked through the peephole in her apartment door and observed an officer, who was later identified as Jackson, beating Espina with a baton. The struggle was occurring on the landing near the front door of the apartment building. She described Espina as "very hurt and bloody." According to Rivera, Espina did not resist or fight back and was not hitting or kicking Jackson in any way. Rivera testified that she unlocked and opened her apartment door because she saw her friend getting hurt. Immediately after she opened the door, Rivera saw Espina and Jackson coming down the stairs. Rivera described Espina as "rolling on his back" with Jackson "beating him behind him." Rivera testified that Jackson was yelling the word "fuck" and using a mean and angry tone of voice. She testified that she heard Jackson using the word "fuck" many times.
After Rivera opened the door to the apartment, Jackson and Espina stumbled into her apartment. Rivera testified that Jackson continued to strike Espina, who at this point was "crouched down on the floor, pretty much on his knees." Jackson remained standing. Rivera testified that she heard Espina "moaning a lot." Rivera saw Jackson hitting Espina with the baton, saying "[f]uck, shut the fuck up" in a very mean voice. Rivera testified that she was afraid, so she grabbed Gamez and took her to the bedroom, where Gamez's boyfriend Carlos was also present. After she got her mother into the bedroom, Rivera came back out into the living room and saw Jackson shoot Espina in the stomach. Rivera testified that Jackson was standing when the shot was fired and that Espina was crouched on the floor. Rivera testified that after Jackson shot Espina, she heard Jackson say "fuck" again.
Rivera testified that she did not see Espina touch Jackson's gun or waistband, and that there was not a group of five or six men surrounding Jackson before he shot Espina. Rivera testified that she did not see any other men in the apartment before Espina was shot, other than Carlos, who remained in the bedroom. According to Rivera, Manuel came into the apartment at some point and yelled to Jackson, "Why did you kill my father?" Rivera did not remember exactly when Manuel came into the apartment, but she testified that she did not see Manuel "doing anything against [Jackson]." She testified that she did not see Manuel doing anything with Jackson's baton or gun, nor did Rivera see Jackson fall or be pushed onto a couch.
Manuel, Espina's son, testified that on August 16, 2008, as he came out of his apartment, a neighbor alerted him that a police officer was beating his father. Manuel testified that he ran to the next-door apartment building in his complex and looked through the glass door; he observed the officer he identified as Jackson "hitting [his] father really hard." Manuel tried to open the door, but it was locked. He testified that, at this point, Espina was limping and bleeding significantly from his face. Initially, Manuel observed Jackson striking Espina with his fists, and later, striking Espina with his baton. Manuel testified that he saw Jackson use the baton to strike Espina's face, back, and leg. Manuel testified that Espina did not fight back. According to Manuel, Jackson struck Espina in the back with the baton, causing him to fall down the stairs to the lower level. Manuel testified that Jackson "continued hitting him until he got to the basement door." In order to get into the apartment where Espina and Jackson continued to struggle, Manuel entered through a kitchen window.
Manuel testified that when he got into the apartment, he yelled at Jackson to stop hitting Espina. Jackson continued to strike Espina, who was on his feet but was bent over. Manuel explained that Jackson repeatedly knocked Espina over and Espina tried to get up, only to be knocked down again. Manuel testified that he did not see Espina roll onto his back and kick Jackson. Jackson repeatedly said "fuck" as he struck Espina. Espina's face was bleeding and his eyes were filling with blood. From Manuel's perspective, Jackson was the only person who had control in the altercation. Manuel testified that the only people in the apartment were Espina, Jackson, Gamez, Rivera, and himself and that there was no group of five to six men.
Manuel denied that he ever pushed Jackson onto the couch, as Jackson testified. Manuel further testified that he never put his hands on Jackson in any way. Prior to the gunshot, Manuel did not hear Jackson say "please stop" or "please let me go." Rather, Manuel testified that "[t]he only thing that [Jackson] was saying is `fuck.'" Manuel did not hear Jackson say, "Get back, or I will shoot." Manuel testified that he saw Jackson shoot Espina and Espina screamed and fell to the floor. After Espina was shot, Manuel started crying and asked Jackson to call an ambulance. Manuel testified that Jackson responded by saying "shut up, shut the fuck up." Manuel attempted to perform CPR on Espina, while Jackson stood by the door and did not render assistance. While Manuel was attempting to perform CPR, another officer came up behind Manuel,
Estela, Espina's wife, testified that she arrived at Gamez's apartment after Espina had been shot. Manuel told Estela that an officer had beaten and shot Espina. Estela testified that there was not a group of four to six men inside the apartment and that she did not see any men leaving the apartment. Estela testified that she asked Jackson why he killed her husband and he responded using offensive language. Estela saw Manuel attempt to perform CPR on Espina. Estela explained that Espina was on the floor, was "losing a lot of blood," and "had [his] eye blown up, like it was puffed out." Estela testified that two officers grabbed her and removed her from the apartment. Estela asked to go with Espina, but the officers did not allow Estela to join her husband in the ambulance. Estela identified her own voice as well as Jackson's voice in the 9-1-1 recording. The voice Estela identified as Jackson's was heard saying "shut the fuck up" and "fuck you."
The jury ultimately returned a verdict for the Espinas, finding Jackson and Prince George's County liable for the violation of Espina's rights under Article 24 of the Maryland Declaration of Rights, assault and battery of Espina, and wrongful death. The jury further found a violation of Manuel's rights under Article 24 of the Maryland Declaration of Rights, and awarded damages totaling $11,505,000. Jackson and the county filed a motion for remittitur, JNOV, and/or a new trial. After briefing and a hearing on the post-trial motions, the circuit court denied the motion for JNOV and the motion for a new trial, but granted the motion for remittitur by applying the LGTCA cap to the judgment and reducing the judgment as to the county to $805,000. Following this Court's decision in Leake v. Johnson, supra, 204 Md.App. 387, 40 A.3d 1127 the county filed a motion for reconsideration. After a hearing, the circuit court reduced the verdict as to Prince George's County to $405,000. The entire verdict as to Jackson was not reduced. The county also filed a motion to dismiss the "unlawful pattern or practice" claim against Prince George's County, which was the only remaining claim. The circuit court denied the motion to dismiss.
Additional facts will be discussed as necessitated by the issues presented.
The applicability and constitutionality of the LGTCA damages cap, as applied to constitutional claims, is an issue that has been presented several times but never addressed by this Court or the Court of Appeals. In this case, however, we are presented squarely with the issue of the constitutionality of the LGTCA damages cap and are asked to decide the extent to which the LGTCA limits recovery for state constitutional violations.
The damages cap provision of the LGTCA appears in § 5-303 of the Courts and Judicial Proceedings Article, which provides in relevant part:
Md.Code (1974, 2013 Repl.Vol.), § 5-303 of the Courts & Judicial Proceedings Article ("CJP").
In considering the applicability of the LGTCA cap to claims involving constitutional violations, we look first to the statute itself. It is well established that "[t]he cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature." Lockshin v. Semsker, 412 Md. 257, 274, 987 A.2d 18 (2010). The Court of Appeals explained:
Id. at 274-76, 987 A.2d 18 (internal quotations and citations omitted).
Accordingly, we look first to the text of the statute, which provides that the cap applies "for damages resulting from tortious acts or omissions." CJP § 5-303(a)(1). The statute further provides that the "local government shall be liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government." CJP § 5-303(b)(1). The statute, however, does not define the term "tortious acts or omissions."
The Court of Appeals' discussion of the Maryland Torts Claim Act ("MTCA") in Lee v. Cline, 384 Md. 245, 863 A.2d 297 (2004), while not directly on point, is instructive. In Lee, the Court of Appeals considered whether the MTCA provided qualified immunity to state personnel for tort actions based upon violations of the Maryland Constitution and certain common law intentional torts. The MTCA provided, in pertinent part, that state personnel enjoyed immunity "for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence." CJP § 5-222(b). The Court discussed the language of the MTCA as follows:
Lee, 384 Md. at 256-57, 863 A.2d 297 (emphasis added). The Court concluded that "the immunity under the Maryland Tort Claims Act, if otherwise applicable, encompasses constitutional torts and intentional torts." Id. at 266, 863 A.2d 297. Similarly, the language of the LGTCA provides no exceptions for intentional torts or constitutional violations. As such, we are similarly reluctant to recognize an exception in a statute when there is no express basis for the exception in the statutory language.
We addressed the issue of the definition of "tort" in Green v. N.B.S., Inc., 180 Md.App. 639, 952 A.2d 364 (2008), aff'd 409 Md. 528, 976 A.2d 279 (2009). In Green, we considered whether the statutory cap on noneconomic damages applied to claims based upon violations of the Consumer Protection Act ("CPA"). In reaching our conclusion that the cap applies to violations of the CPA, we noted that "[i]n Lee, the Court interpreted the term `tortious act or
We have, however, acknowledged an "uneasy fit" between state constitutional torts and the requirements of the LGTCA. Prince George's County, et al. v. Longtin, 190 Md.App. 97, 115, 988 A.2d 20 (2010) ("Longtin I"), aff'd, 419 Md. 450, 19 A.3d 859 (2011) ("Longtin II"). We explained:
Longtin I, supra, 190 Md.App. at 117-19, 988 A.2d 20 (cited with approval in Longtin II, 419 Md. at 470, 19 A.3d 859). We also observed that "when it comes to State constitutional torts, there can be no easy reliance on a literal reading of either the MTCA or the LGTCA." Id. at 118 n. 26, 988 A.2d 20. Accordingly, despite the apparently unambiguous language of the LGTCA damages cap, we look beyond a mere literal reading of the statute.
We find guidance in Judge Harrell's concurring and dissenting opinion in Longtin II, 419 Md. at 500-23, 19 A.3d 859 (Harrell, J., concurring in part and dissenting in part).
Id. at 520-21, 19 A.3d 859 (emphasis added). Judge Harrell further referenced the Court of Appeals holding in Green, supra, 409 Md. 528, 976 A.2d 279, that the cap on noneconomic damages in CJP § 11-108 applies to constitutional claims as well as common law tort claims. Longtin II, supra, 419 Md. at 522, 19 A.3d 859 (Harrell, J., concurring and dissenting).
We agree that a broad definition of the term tortious acts or omissions is appropriate. We find further support for this conclusion in Ashton v. Brown, 339 Md. 70, 660 A.2d 447 (1995). In Ashton, neither party raised the issue of the LGTCA, but the Court expressed its opinion on the applicability of the LGTCA in dicta, noting that "there is no exception in the Local Government Tort Claims Act for constitutional torts. In fact, there is no exception in the statutory language for any category of torts." Id. at 108 n. 19, 660 A.2d 447.
Moreover, nothing in the legislative history suggests that the General Assembly intended to limit the application of the cap to nonconstitutional claims. The General Assembly enacted the LGTCA, effective July 1, 1987. Acts of 1987, ch. 594. The LGTCA "affected the tort liability of local governments in several ways." Mitchell v. Housing Authority of Baltimore City, 200 Md.App. 176, 189, 26 A.3d 1012 (2011) (internal quotation omitted). In reviewing the legislative history of the LGTCA, we explained that the LGTCA "repealed prior legislation that had placed monetary caps on waivers of governmental immunity by charter counties and had imposed notice requirements for certain claims against counties or municipalities; defined local governments; adopted damages caps in tort actions; and imposed notice requirements that were `essentially the same notice requirements which had existed under the prior law which was repealed' by the legislation enacting the LGTCA." Id.
In Housing Authority of Baltimore City v. Bennett, 359 Md. 356, 754 A.2d 367 (2000), the Court of Appeals addressed whether the LGTCA's damages cap limits a local government's liability in a lead paint action in which the government itself is a defendant, rather than an action in which the local government is liable for judgments against its employees. At that time, § 5-303(a) provided that "the liability of a local government may not exceed $200,000 per an individual claim, and $500,000 per total claims that arise from the same occurrence for damages resulting from tortious acts or omissions, including liability arising under subsection (b) of this section and indemnification under subsection (c) of this section."
Immediately after the Court of Appeals issued its opinion in Bennett, the General Assembly enacted emergency legislation, eliminating the word "including" from CJP § 5-303(a) and replacing it with the word "or." Ch. 286, Acts of 2001 (effective April 20, 2001). In our opinion in Longtin I, supra, 190 Md.App. 97, 988 A.2d 20, we summarized the legislative action after Bennett as follows:
190 Md.App. at 126, 988 A.2d 20. We acknowledged in Longtin I that the legislative action "made no direct reference to constitutional torts," id., but the uncodified sections indicate that the legislature intended to limit the total liability of a local government in a broad range of cases, with no exceptions for constitutional violations.
214 Md.App. at 101-102, 75 A.3d 987.
Indeed, we have refused to permit tort claims, including those involving state constitutional violations, to proceed when a plaintiff has not complied with the notice requirements of the LGTCA. See Ransom, supra, 183 Md.App. 570, 962 A.2d 1025 (affirming the circuit court's dismissal of state constitutional claims for failure to comply with the LGTCA notice requirements); White, supra, 163 Md.App. 129, 877 A.2d 1129 (same). Critically, the Court of Appeals has suggested that the LGTCA notice requirement applies to constitutional claims in Longtin II, explaining that constitutional claims arising from a false arrest and imprisonment share an accrual date for purposes of the notice provision with the underlying tort claims of false arrest and imprisonment. 419 Md. at 480, 19 A.3d 859. Therefore, it would be unreasonable to interpret the notice provision of the LGTCA as applicable to constitutional claims, while excluding constitutional claims from the applicability of the damage cap provision of the same statute. This provides further support for our conclusion that the LGTCA damages cap applies to common law tort claims and constitutional claims alike.
In sum, based upon the statutory language, case law, and legislative history, we see no basis to conclude that the legislature intended that the LGTCA damages cap not apply to claims involving constitutional violations. Accordingly, we hold, as a matter of statutory interpretation, that the LGTCA damages cap applies to the claims in the instant case.
Having held that the LGTCA cap applies to constitutional claims, including the Article 24 claims asserted in the instant case, we next turn to whether the application of the LGTCA damages cap to damages awarded for the constitutional violations is an abridgement of the rights guaranteed under Article 19 of the Maryland Declaration of Rights.
Article 19 of the Maryland Declaration of Rights provides:
The Court of Appeals addressed the history of Article 19 at length in Jackson v. Dackman, 422 Md. 357, 30 A.3d 854 (2011), as follows:
Id. at 376, 30 A.3d 854 (quoting Piselli v. 75th Street Medical, 371 Md. 188, 204-05, 808 A.2d 508 (2002)) (internal quotations, citations, and footnotes omitted). The Court of Appeals explained that "Article 19 generally protects two interrelated rights: (1) a right to a remedy for an injury to one's person or property; (2) a right of access to the courts." Id. (internal quotation omitted). The Court, again quoting Piselli, supra, 371 Md. at 205-206, 808 A.2d 508, "set forth some of the specific applications of Article 19":
Dackman, supra, 422 Md. at 377-78, 30 A.3d 854 (internal quotations and citations omitted).
The Court of Appeals explained further that "[m]any restrictions upon judicial remedies, challenged under Article 19, have been upheld by this Court, while others have been invalidated." Id. at 378, 30 A.3d 854. Applications "of traditional or well-established immunities from suit" do not violate Article 19. Id. "Article 19, however, `precludes the Legislature from immunizing from suit both the government and the governmental official involved ... when the cause of action is based upon a violation of state constitutional rights.'" Id. (quoting Piselli, supra, 371 Md. at 207, 808 A.2d 508). Other restrictions have been held permissible under Article 19, including certain notice provisions as well as mandatory arbitration prior to filing in court. Id. at 379, 30 A.3d 854. The imposition of "a reasonable limit" upon noneconomic damages is permissible under Article 19, as are 5, 10, and 20-year statutes of repose for certain tort actions. Id. The Court has also provided that "the Legislature may ordinarily substitute a statutory remedy ... for a common law remedy without violating Article 19 of the Declaration of Rights or other Maryland constitutional provisions." Id. (quoting Robinson v. Bunch, 367 Md. 432, 446-47, 788 A.2d 636 (2002)). The issue, therefore, is whether the LGTCA damages cap is reasonable under Article 19.
Prior analysis of the limitation upon recoverable noneconomic tort damages pursuant to CJP § 11-108 is particularly instructive.
325 Md. at 366, 601 A.2d 102 (1992). Similarly, the LGTCA damages cap does not modify access to the courts. Instead, it modifies the law of damages applied in cases involving claims against local governments.
The Espinas point to Dackman, supra, in support of their assertion that a cap of $200,000 per claim and $500,000 per occurrence is unreasonable. In Dackman, the Court of Appeals held that the substituted remedy under the Reduction of Lead Risk in Housing Act ("the Act") was invalid under Article 19. 422 Md. at 383, 30 A.3d 854. The Act provided that, when a landlord complied with certain requirements to properly maintain rental property, the maximum amount payable to a lead poisoned child was $17,000.
Id. at 382, 30 A.3d 854. The Court also emphasized that there was no exception in the Act for an injured child to bring her own personal injury action once reaching the age of majority, observing that "the grant of immunity in the present case leave[s] a negligently injured child without a remedy." Id. The Court noted that it could not "countenance a result that would leave the only innocent victim ... uncompensated for his or her injuries," id. (quoting Piselli supra, 371 Md. at 216, 808 A.2d 508 (quoting Johns Hopkins Hospital v. Pepper, 346 Md. 679, 695, 697 A.2d 1358 (1997))). Accordingly, the Court held that "the immunity provisions of the Reduction of Lead Risk in Housing Act are invalid under Article 19 of the Maryland Declaration of Rights." Id. at 383, 30 A.3d 854.
The LGTCA damages cap is distinguishable from the cap addressed in Dackman. The LGTCA damages cap of $200,000 per claim is over ten times the amount of the qualified offer at issue in Dackman. Moreover, in Dackman, if a qualified offer was rejected, the landlord had full immunity, including immunity against future claims by an injured child once she reaches majority, leaving a lead paint poisoned child with no remedy whatsoever. There is no similar immunity provision in the LGTCA, and plaintiffs injured by a local government may recover up to $200,000 per individual claim. Critically, in cases such as the instant case — in which malice was established — a plaintiff can recover in full, subject to no immunity or cap, against the local government employee himself. In our view, the LGTCA damages cap is more similar to the § 11-108 cap on noneconomic damages than to the qualified offer and immunity provisions of the Reduction of Lead Risk in Housing Act. As such, the LGTCA damages cap modifies the law of damages applied in cases involving claims against local governments. It does not operate — as the Espinas suggest — as a restriction upon access to the courts. We hold, therefore, that the LGTCA damages cap, as applied to state constitutional claims, does not violate the Espinas' rights under Article 19 of the Maryland Declaration of Rights.
Having concluded that the LGTCA damages cap applies and is constitutional, our next task is to determine whether it was properly applied. Pursuant to CJP § 5-303(a), the circuit court reduced the judgment against Prince George's County from $11,505,000 to $405,000. Both parties maintain that the circuit court improperly reduced the verdicts under § 5-303(a). The Espinas argue that the assault and shooting of Espina constitute a separate occurrence from the constitutional violation against Manuel. The Espinas further argue that a separate $200,000 cap should have applied for each of the wrongful death claim beneficiaries. The County asserts that all of the claims asserted by the Espinas constitute one individual claim because the claims are based upon the same set of facts. The verdicts, according to the County, should have been reduced to $200,000.
The LGTCA provides, in relevant part, that "the liability of a local government may not exceed $200,000 per an individual claim, and $500,000 per total claims that arise from the same occurrence." CJP § 5-303(a)(1). The circuit court found that the violation of Espina's constitutional right and the wrongful death of Espina constituted one occurrence and that Estela and Manuel's wrongful death claims were derivative. The circuit court further found that Manuel's constitutional claim constituted an individual claim arising out of the same occurrence. The court reduced the wrongful death award to $200,000 as to Prince George's County. The circuit court further reduced Manuel's award for violation of his constitutional rights to $200,000, and left the $5,000 award for economic damages unchanged, resulting in a total award of $405,000.
In Leake, supra, 204 Md.App. at 417, 40 A.3d 1127 we explained that "a wrongful death claim [is] aggregated with the claim of the injured person in applying the LGTCA limitation of liability of a local government to $200,000 per an `individual claim.'" We held in Leake that wrongful death claims must be aggregated with an estate's survival action under the LGTCA. Accordingly, the circuit court properly applied Leake when it found that Estela and Manuel's wrongful death claims were derivative of Espina's survival claim and limited recovery to $200,000.
The County contends that Manuel's constitutional claim is similarly derivative. We disagree. As discussed, infra, in section II(G), the jury's verdict finding that Manuel's constitutional rights were violated is reconcilable with the jury's verdict that Manuel was not assaulted. Accordingly,
Finally, we hold that the circuit court erred by awarding $5,000 for economic damages. Unlike the § 11-108 cap, the LGTCA damages cap does not differentiate between economic and noneconomic damages. See CJP § 5-303(a). Rather, the LGTCA's $200,000 per claim and $500,000 per occurrence damages cap applies to both economic and noneconomic damages. Id. Accordingly, we hold that the total award should have been reduced to $400,000, rather than $405,000.
We now turn to the nine issues asserted by the County in its cross-appeal. We address each of the County's contentions in turn.
Prior to trial, the circuit court bifurcated the Espinas' claim for unlawful pattern or practice and ordered that the unlawful pattern or practice claim proceed after the trial on all other counts. That claim has not been tried and is currently stayed by the circuit court, pending the outcome of the appeal in this case. Critically, the circuit court granted the County's motion for entry of final judgment. The order certifying the judgment as final did not apply to the unlawful pattern or practice count. Rather, the circuit court found and ordered that "the claims adjudicated at the trial held February 15, 2011 continuing to and including March 16, 2011, are final and totally decided" and "there is no just reason for delay in certifying those claims as final for purposes for appeal." (emphasis added). Accordingly, we are precluded from addressing the Espinas' unlawful pattern and practice claim at this time.
The County urges that, if the LGTCA damages cap does not apply, we should apply the § 11-108 cap and reduce the noneconomic damages accordingly. Because we hold that the LGTCA damages cap applies and that, pursuant to the LGTCA damages cap, the award is reduced to $400,000, the award represents less than the amount allowable under the § 11-108 noneconomic damages cap. Accordingly, we need not address whether the § 11-108 cap on noneconomic damages applies to constitutional claims.
Next, the County asserts that the trial court erred by excluding evidence that Espina had a knife in his pocket and evidence of Espina's undocumented immigration status. Indeed, the County acknowledges — as it must — that there is no indication that Jackson knew of either the knife or Espina's immigration status at the time of the incident.
Regarding the standard of review for evidentiary determinations, the Court of Appeals has explained:
Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, 418 Md. 594, 619-20, 17 A.3d 676 (2011) (internal quotations and citations omitted). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md. Rule 5-401.
The County asserts that both the knife and Espina's immigration status were relevant to establish Espina's "possible motive" for "violently resisting Officer Jackson's efforts, to support Jackson's version of events, and to show the jury how and why the incident escalated to the point of the shooting." The County concedes, however, that Jackson was never aware of Espina's knife or immigration status at any point during the altercation. Moreover, the knife was not discovered until after Espina's death. Although Jackson testified that Espina resisted his attempts to arrest him, there is no indication in the record that Espina's "possible motive" for resisting arrest was an issue in the case, nor did this evidence have any tendency to make the existence of any fact of consequence to the determination of the action more or less probable.
The County's next contention is that the circuit court erred by allowing the
At trial, the Espinas presented four motions to admit evidence of prior, violent encounters between Jackson and members of the public. The circuit court denied the first three motions without prejudice, but granted the fourth motion, finding that Jackson had opened the door to allow the evidence by testifying about his practices as a police officer and his habit and practice of typically following the various levels of the continuum of force. The Espinas introduced evidence of a violent encounter between Jackson and Sean Leake, which occurred less than three months prior to the incident that resulted in Espina's death, and evidence of a violent encounter between Jackson and Jacques Ross, which occurred twenty-one days prior to the incident that resulted in Espina's death.
Specifically, Ross testified regarding an encounter he had with Jackson on July 27, 2008. Ross learned from his brother, who had been driving Ross's car, that his car had been impounded for a taillight infraction. Jackson was the officer who had pulled over Ross's brother and impounded the vehicle. Ross, with his brother in the vehicle, drove to a nearby fire station, where he saw Jackson, and asked the officer if he could help locate the impounded car. At this point, Ross was unaware that Jackson was the same officer who had pulled his brother over earlier and impounded that car. Recognizing Ross's brother, Jackson began to yell at Ross's brother, "Oh, so you've come back, you've come back for some trouble?" and "You want a fucking piece of me? I'm going to give you what you fucking want." Jackson grabbed Ross by the neck and forcibly removed him from the vehicle, and while Ross was being questioned by another officer, Jackson jumped on him and kicked Ross's legs. After Jackson's supervisor arrived, the altercation ended. Ross sought medical attention and was not charged with any crime. Jackson used very similar justifications to explain his conduct in both the Ross and Espina incidents. In both instances, Jackson said he was "outnumbered" and at a "disadvantage."
Regarding the Sean Leake incident, Leake was unavailable for trial, but a recording from Jackson's police cruiser was introduced into evidence. The recording captured part of a violent encounter between Jackson and Leake on May 25, 2008. During a traffic stop, Jackson demanded that Leake step out of his car. Then, after Leake indicated that he was stuck in the vehicle, Jackson punched Leake in the face twice and wrestled him to the ground. Jackson testified that Leake hit him first, but that was not visible on the recording. Again, Jackson used very similar justifications to explain his conduct in both the Leake and Espina incidents. In both instances, Jackson said he was "outnumbered." Jackson also said that both Leake and Espina took a "combative stance."
In a civil case, the admissibility of prior bad acts evidence is governed by Maryland Rule 5-403. Ruffin Hotel Corp. of Maryland, Inc. v. Gasper, 418 Md. 594, 625, 17 A.3d 676 (2011) ("[Maryland] Rule 5-404(b) [is] applicable only to evidence offered by the State against the defendant in a criminal case. In civil cases, whether the evidence at issue is offered by a plaintiff or by a defendant, the admissibility of relevant evidence that presents the possibility of unfair prejudice is to be dealt with
Consolidated Waste Industries, Inc. v. Standard Equipment Co., 421 Md. 210, 219, 26 A.3d 352 (2011) (internal quotations and citations omitted).
We hold that the circuit court did not err in finding the prior conduct relevant. The evidence was relevant to Jackson's motive, intent, and modus operandi, as well as to rebut Jackson's testimony that, as a police officer, he followed the various levels of the continuum of force. The evidence was not admitted "to prove that [Jackson] acted in accordance with the character or trait on a particular occasion," as prohibited by Maryland Rule 5-404(a)(1).
Nor did the circuit court abuse its discretion in determining that the probative value of the evidence was not substantially outweighed by unfair prejudice pursuant to Rule 5-403. The circuit court afforded the County the opportunity to present testimony and admit evidence in order to explain these incidents. Indeed, two witnesses (in addition to Jackson) testified for the County regarding the Leake incident — both of whom supported Jackson's version of events. We cannot say that the circuit court's decision to admit the evidence was "removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable." Consolidated, Waste Industries, Inc. v. Standard Equipment Co., supra, 421 Md. at 219, 26 A.3d 352. Accordingly, we hold that the circuit court did not err nor abuse its discretion in admitting the evidence of Jackson's prior violent encounters with members of the public.
The County asserts that, as a matter of law, the Espinas' Article 24 claim should not have been submitted to the jury because such a claim can only be asserted via an Article 26 claim. We disagree.
We have explained that claims brought under Article 24 of the Maryland Declaration of Rights are analyzed utilizing the same test as claims brought under Article 26.
The County misstates the law on this issue. Simply because an Article 24 claim is analyzed utilizing the Article 26/Fourth Amendment reasonableness standard articulated in Graham, a claimant is not precluded from asserting an Article 24 claim. Rather, an Article 24 claim is viable if a claimant can prove excessive force under the Graham test. See, e.g., Okwa, supra, 360 Md. at 203-05, 757 A.2d 118; Hines v. French, 157 Md.App. 536, 574-75, 852 A.2d 1047 (2004) ("The standards for analyzing claims of excessive force are the same under Articles 24 and 26 of the Maryland Constitution as that under the Fourth Amendment of the United States Constitution."); Tavakoli-Nouri v. State, 139 Md.App. 716, 730, 779 A.2d 992 (2001) ("Such excessive force could be a violation of Article 24 of the Maryland Declaration of Rights....") Accordingly, we hold that the trial court did not err in submitting the Espinas' Article 24 claim to the jury.
The County's next contention is that the evidence presented at trial was insufficient to establish "actual malice," and that Jackson should retain his statutory immunity.
Regarding the evidence required to support a finding of malice, we have explained:
Thacker v. City of Hyattsville, 135 Md.App. 268, 300, 762 A.2d 172 (2000). In the
We will not restate the details of the testimony laid out in the factual background section, supra, but we nevertheless identify a few key segments of testimony to illustrate the copious evidence presented to support a finding of malice. Several eyewitnesses testified that Jackson attacked Espina with no justification, yelled profanity in an angry voice, and ultimately shot and killed Espina when he was unable to resist or fight back. Noe Cordova testified that, when Jackson entered the apartment, he had a furious expression on his face and used the phrase "mother fucker." Cordova further testified that Jackson continued to strike Espina despite Espina's screams. Elvia Rivera testified that Jackson beat Espina with his baton and that Espina did not resist or fight back in any way. Rivera further testified that Jackson yelled the word "fuck" many times and used a mean and angry voice, and that Jackson shot Espina while he was crouched on the floor. Manuel testified that Jackson repeatedly knocked Espina down when Espina tried to get up. Manuel further testified that he did not see Espina fight back, and that after the shooting, when Manuel asked Jackson to call an ambulance, Jackson responded by saying, "shut the fuck up." Rivera and Estela both identified Jackson's voice on the 9-1-1 tape saying "shut the fuck up" and "fuck you." All of the eyewitnesses, other than Jackson, testified that they never saw a group of five to six men surrounding Jackson. There was also physical, medical, and forensic evidence presented enabling the jury to readily reach a finding of malice. Simply put, we hold that the evidence was more than sufficient to support the jury's finding of malice.
The County next contends that, because the jury found that Jackson did not assault or batter Manuel, its finding that Jackson violated Manuel's rights under Article 24 of the Maryland Declaration of Rights is irreconcilably inconsistent. We hold that the verdicts can easily be reconciled.
The Court of Appeals has explained that irreconcilable inconsistent jury verdicts cannot be allowed to stand in civil cases. Southern Management Corp. v. Taha, 378 Md. 461, 487-89, 836 A.2d 627 (2003). In Taha, a jury found a former corporate employer liable to a terminated employee for malicious prosecution but found former coworkers, who were the alleged tortfeasors, not liable. Id. at 495, 836 A.2d 627. The Court of Appeals held that the "judgments reflected irreconcilably inconsistent jury verdicts," and accordingly, held that the judgment must be set aside. Unlike Taha, the verdicts in the instant case can be reconciled.
At trial, there was evidence presented that Manuel was prevented from providing CPR to his dying father because he was handcuffed and arrested.
The County's next contention is that the verdict sheet was incorrect as a matter of law because Question 9 (which asked the jury whether Jackson was liable for wrongful death), did not identify the offense that caused Espina's death.
We have explained that "the decision to use a particular verdict sheet `will not be reversed absent abuse of discretion.'" Applied Indus. Techs. v. Ludemann, 148 Md.App. 272, 287, 811 A.2d 845 (2002). We hold that there was no such abuse of discretion in the instant case. Question 1 on the verdict sheet explicitly asked whether Jackson violated Espina's constitutional rights, to which the jury answered, "yes." Question 2 explicitly asked whether Jackson acted in self-defense, to which the jury answered, "no." Question 3 explicitly asked whether Jackson acted with actual malice, to which the jury answered, "yes." Question 5 explicitly asked whether Jackson assaulted and battered Espina, to which the jury answered, "yes." The verdict sheet was not required to repeat the same list of torts and defenses in Question 9. The jurors were properly instructed as to the elements of each claim brought on behalf of Espina, Estela, and Manuel, and the record does not reflect that the jury was confused in any way. Indeed, the verdict sheet used by the circuit court was neither legally incorrect nor confusing.
The County's final contention is that the damages were plainly excessive. This issue is moot in light of our conclusion regarding the applicability of the LGTCA damages cap.
For the reasons noted, the LGTCA damages cap limits the Espinas' total recovery. The LGTCA cap applies to claims for state constitutional violations. Further, the application of the LGTCA cap to constitutional claims is not a violation of Article 19 nor a violation of the separation of powers doctrine. Applying the cap, the jury verdict, as to Prince George's County, is reduced from $11,505,000 to $400,000. Finally, we are unpersuaded by any of contentions raised by the County in its cross-appeal.
Id.
125 Md.App. at 338-39, 725 A.2d 579.
We hold that the same rationale that has been applied to the § 11-108 cap applies to the LGTCA cap in the context of a separation of powers argument, and accordingly, we hold that there is no violation of the separation of powers doctrine. See, e.g., Univ. of Md. Med. Sys. Corp. v. Malory, 143 Md.App. 327, 355, 795 A.2d 107 (2001) ("[W]e were presented with [the constitutionality of the Cap under a separation of powers analysis] in Murphy and ... our holding in that case is controlling."); Edmonds v. Murphy, 83 Md.App. 133, 150, 573 A.2d 853 (1990), aff'd, 325 Md. 342, 601 A.2d 102 (1992) ("[W]e hold that [the Cap] does not violate the separation of powers doctrine embodied in Article 8.").
We are also unpersuaded by the Espinas' judicial admission argument. The Espinas contend that, because the County's counsel argued to the jury that Prince George's County would be liable for Jackson's conduct and would "pay the judgment in the case," the County is bound to its "judicial admissions." The Espinas cite no Maryland case directly on point, and we know of no such case. We hold that the County's counsel's statements were insufficient to establish a binding judicial admission to pay the judgment. Moreover, the County has never disputed that it will pay the judgment, subject to the limits of liability provided by § 5-303.
