MEREDITH, J.
Melissa Rodriguez and Philip E. Parker, Sr., appellants, are the parents of the late Philip E. Parker, Jr., who was an inmate murdered by another inmate on February 2, 2005. Appellants brought suit individually and on behalf of their deceased son's estate against the State of Maryland (an appellee and cross appellant), and various persons who were State officials whom the appellants alleged bore responsibility for their son's death. In addition, appellants sued five correctional officers who were transporting inmates via bus when the assault and murder of appellants' son occurred. A twelve-day jury trial in the Circuit Court for Baltimore City resulted in a verdict in favor of appellants in the aggregate amount of $18.5 million, but the grant of certain post-trial motions resulted in the entry of judgments in a smaller amount. The trial court struck the jury's finding of gross negligence on the part of one of the individual defendants — Sergeant Larry Cooper, another appellee — and the court entered judgment in favor of all individual defendants pursuant to the doctrine of public official immunity and the immunity for State personnel under the Maryland Tort Claims Act ("MTCA"). The court entered judgment in favor of appellants against only the State. The court concluded that the State was liable for three separate claims (i.e., the survival action and a wrongful death claim for each parent), and the court entered judgment for $200,000 for each of the three appellants. Appellants noted the instant appeal. The State noted a cross-appeal, and contends that appellants are entitled to a single judgment of no more than $200,000.00 in this case.
Appellants present four questions for our consideration:
The State's cross-appeal asks:
With respect to the claims against Sgt. Cooper, we conclude that, because there was sufficient evidence of gross negligence on the part of Sgt. Cooper to have supported the jury's finding on that issue, the trial court erred in striking that part of the jury's verdict. We further conclude that the trial court erred in ruling that there was no special relationship between Sgt. Cooper and the inmates. Consequently, the trial court also erred in concluding that Sgt. Cooper was immune from liability and entering judgment notwithstanding the verdict in favor of Sgt. Cooper. Because Sgt. Cooper's tortious conduct was gross negligence, he was not entitled to immunity under the MTCA; and, because Sgt. Cooper owed a duty arising out a special relationship with the inmates in his custody, he was not entitled to common law public official immunity. We will remand
With respect to the claims against the State, we do not reach appellants' argument that the State is liable for the full, uncapped verdict; that argument was neither raised in, nor decided by, the trial court. We reject the appellants' argument that the MTCA's $200,000 limit on the State's waiver of sovereign immunity is unconstitutional.
With regard to the State's cross-appeal, we hold that the trial court erred in entering three judgments against the State in the amount of $200,000 for each of the appellants. We agree with the State's contention that appellants are entitled to collect no more than $200,000 from the State pursuant to the MTCA.
On February 1, 2005, several inmates who were incarcerated at the Maryland Correctional Adjustment Center (hereafter referred to as "Supermax") in Baltimore, were transported by bus to Hagerstown to participate in a hearing at which inmate Kevin Johns was to be sentenced for the murder of a cellmate, committed while Johns was already serving a sentence for another murder. In 2002, Johns had murdered his maternal uncle, nearly decapitating him. For that murder, Johns was sentenced to 35 years' incarceration, and sent to the Maryland Correctional Training Center (hereafter "Hagerstown Correctional Center") in Hagerstown. While incarcerated in the Hagerstown Correctional Center, Johns stomped his 16-year-old cellmate to death. After he was convicted of that second murder, he was incarcerated in Baltimore at Supermax pending sentencing.
On February 1, 2005, Johns and three other Supermax inmates were transported to Hagerstown for Johns's sentencing hearing in the Circuit Court for Washington County. The other three inmates, who testified on Johns's behalf at the hearing, were: Bradford Diggs, James Folk, and the appellants' son, Philip E. Parker, Jr.
Johns was sentenced to life without the possibility of parole for the murder of the cellmate. After the sentencing hearing, the four Supermax inmates were placed on a bus and taken to Hagerstown Correctional Center for a brief period to await transportation back to Baltimore by correctional officers a few hours later. During that bus ride to Baltimore, Johns would murder Philip E. Parker, Jr.
Two guards from Hagerstown Correctional Center — Bradley Hott and B.J. Vest — later submitted reports in connection with the internal investigation conducted after Parker was murdered. Officers Hott and Vest had transported the Supermax inmates from Hagerstown Correctional Center to the Circuit Court for Washington County for Johns's sentencing hearing, and back again to Hagerstown Correctional Center once the hearing was over to await the ride to Baltimore. Officer Hott's report indicated that Johns started laughing when he was sentenced to life without parole, and Johns later commented that "the killing [had] just begun."
Officer Vest's report was similar to Hott's, but provided greater detail as to Johns's threats to kill again. The report stated: "Officer Vest advised that Inmate JOHNS made the following comments, `Gonna be trouble when I get back to
Shortly before 3 a.m. on the morning of February 2, 2005, the prisoners boarded a "prison bus" owned by the State. Bus #2809 was a "relatively new" Bluebird bus that had been modified for the transport of prisoners. The front and rear of the bus were equipped with secured compartments in which correctional officers traveled. The officers' compartment in the rear of the bus was elevated to permit a better view of the interior of the bus. Bus # 2809 was fully loaded on the night in question. It carried 36 inmates and five correctional officers, one of whom acted as the bus driver.
Bus #2809 was staffed, as mentioned above, by five correctional officers. Corporal Charles Gaither was the bus driver. Cpl. Kenyatta Surgeon sat in the front of the bus directly behind the driver. Cpl. Earl Generette sat in the front of the bus, across the aisle from Cpl. Surgeon. Cpl. Robert Scott and Sgt. Larry Cooper — the Officer in Charge — sat in the elevated cage in the back of the bus. Seven and one-quarter feet in front of the elevated cage was the last bench seat in the passenger compartment of the bus. The passenger compartment itself was locked, and enclosed by a plexiglass and metal honeycombed grate.
The five officers had various responsibilities prior to loading the inmates onto the bus. One of Cpl. Surgeon's responsibilities was to apply three-point restraints — consisting of handcuffs, a lockbox, and a belly chain — to Johns. Cpl. Surgeon did not secure these restraints properly, as the internal investigation later found, with the result that Johns had much more freedom of movement of his arms than he should have had.
When it was time to board the bus, the Supermax inmates seated themselves on two bench seats in the very rear of the bus, directly in front of the officers' elevated compartment. This was a violation of a policy of the Maryland Department of Public Safety and Correctional Services which provided that Supermax inmates were to ride in one of the two enclosed security cages in the front of the bus. Although none of the officers testified that they were even aware of this policy, several officers testified that the two security cages were otherwise occupied on this particular trip.
The bus departed from Hagerstown Correctional Center shortly before 3 a.m., with Johns and Folk seated on the last bench directly in front of the elevated cage occupied by Cpl. Scott and Sgt. Cooper. In the seat in front of Johns and Folk, at the window, was Philip Parker. Seated next
At some point during the trip, Johns got up from his seat, reached over the seat in front of him, and strangled Parker. After a time, Johns got up again, moved into the seat next to Parker, and continued strangling him. He also slashed Parker's neck with a razor blade that had somehow been smuggled onto the bus.
At a motions hearing in connection with Johns's trial regarding Parker's murder, inmate Patrick Cook, who was on the bus the night of the murder, testified that he saw Johns murder Parker. Cook provided the following description:
Mr. Cook's testimony is the most detailed account of what happened to Mr. Parker. All five of the correctional officers on board the bus claimed not to have seen the assault. Even Cpl. Scott and Sgt. Cooper — who were seated only seven feet from where it occurred — denied witnessing the assault.
The evidence established that, at the time of the assault, the interior lights of the bus were off, and music was playing. Cpl. Generette was riding in the front of the bus. He testified that he neither saw nor heard anything amiss, and did not realize there might be a problem until he received a call from Cpl. Scott on the internal bus phone. Cpl. Generette testified:
Cpl. Scott, who was in the back of the bus, described what prompted his call to Cpl. Generette:
Despite the fact that Cpl. Scott testified that he could not see anything definitive, Cpl. Scott was suspicious enough that he told Cpl. Generette that all the officers should "go into the back of the bus as a team" when the bus arrived at Supermax "[b]ecause I didn't know if the inmates back there were planning something or if they were already doing something in the back."
Cpl. Scott's seatmate in the back of the bus was also the Officer in Charge during the bus ride, Sgt. Larry Cooper. Pursuant to Departmental policy, the Officer in Charge should have been seated in the front of the bus. During the internal investigation of this incident, Sgt. Cooper admitted that he was unaware of this policy, along with several other Departmental policies. Sgt. Cooper's testimony at trial was, essentially, that he did not see anything, and could not explain why he did not see anything:
On cross-examination, Sgt. Cooper was asked to provide more details about the bus ride, but he was never able to explain why he failed to see the assault and murder of Philip Parker, Jr., which took place just a few feet in front of him. His testimony included the following exchange:
Although Sgt. Cooper claimed that he did not see anything particularly troubling in the back of the bus, Cpl. Gaither, the driver, testified that Cpl. Generette relayed to him that Cpl. Scott "said something was going on" in the back of the bus. With the bus lights out, Cpl. Gaither "picked up the pace a little bit" and proceeded to Supermax.
When the bus arrived at Supermax, the inmates were called off the bus one at a time, with the four Supermax inmates called first. Diggs and Folk were called and exited the bus. Next, Johns was called. His shirt was observed to be bloody, and he had a cut on his arm. Cpl. Surgeon took Johns inside Supermax. Philip Parker's name was then called. After he failed to reply, he was found unconscious on the bus, wedged between his seat and the bus window. Cpl. Scott and Cpl. Gaither had to remove his restraints to pull him out from under the seat. The officers carried Parker to the front of the bus, where Cpl. Gaither administered three rounds of CPR until EMTs arrived. At that point, Cpl. Gaither and Cpl. Scott carried Parker off the bus, and the EMTs took over. Photographs introduced at trial demonstrated that there was blood smeared on top of the seat back and in the seat portion of the bench seat in which Philip Parker was sitting when he was murdered.
Battalion Chief (then Lieutenant) Theresa Harp of the Baltimore City Fire Department EMS service testified that she was summoned to Supermax at approximately 4:00 a.m. on the morning of February 2, 2005. She found Philip Parker "unresponsive and in cardiac arrest" when she arrived, and he was being worked on by other EMS personnel. Eventually, Philip Parker was transported to Mercy Hospital, where he was pronounced dead at 4:57 a.m., without ever having regained consciousness.
An internal investigation was launched, which resulted in the terminations from State service of Cpl. Surgeon and Cpl. Scott. Both terminations were upheld on appeal. Sgt. Cooper also was going to be terminated for his role in these events, but he opted instead to retire. Cpl. Gaither and Cpl. Generette were also disciplined; each was given an official reprimand, with Cpl. Generette also receiving a five-day suspension without pay. The disciplinary documents, including Notices of Termination, generated by the internal investigation were admitted, over the State's objection, at the trial of this matter.
After providing timely notice pursuant to the Maryland Tort Claims Act, appellants filed a complaint and jury demand on May 15, 2006, naming as defendants: the State of Maryland; Mary Ann Saar, then-Secretary of the Department of Public Safety and Correctional Services; Frank C. Sizer, Jr., then-Commissioner of Corrections; Lehrman Dotson, then-Warden of Supermax; and the five individual correctional officers identified above who staffed the bus. The suit was brought by appellants Melissa Rodriguez, individually and as personal representative of Philip Parker, Jr.'s estate, and Philip Parker, Sr. The original complaint included six counts. Count 1 asserted a claim pursuant to 42 U.S.C. § 1983 for violation of Philip Parker, Jr.'s rights under the Eighth and Fourteenth Amendments to the United States Constitution. Count 2 alleged that the defendants violated Philip Parker, Jr.'s rights under Articles 24 and 26 of the Maryland Declaration of Rights. Count 3 alleged wrongful death. Count 4 was a survival action. Count 5 alleged assault and battery against the individual officers in connection with their actions after the bus arrived back at Supermax. And Count 6 sought funeral expenses.
On June 29, 2006, the State removed the case to federal court. On February 8, 2008, the State filed a motion to dismiss or, in the alternative, for summary judgment. On April 30, 2008, appellants filed their response, along with their own motion for summary judgment. A motions hearing was held on July 25, 2008, and on July 31, 2008, the United States District Court for the District of Maryland granted the State's motion for summary judgment and dismissed, with prejudice, the federal claims. The order further provided that the federal court would decline to exercise supplemental jurisdiction over the state law claims, and the court remanded those claims to the Circuit Court for Baltimore City. Because the parties to this appeal disagree on the import of the federal court's memorandum opinion which was filed with the order, we will discuss it in more detail later in this opinion.
Following remand to the Circuit Court for Baltimore City, the case was stayed while appellants pursued an appeal, ultimately unsuccessfully, to the United States Court of Appeals for the Fourth Circuit. In early 2011, the Circuit Court for Baltimore City issued a scheduling order providing that trial would begin on October 11, 2011. As scheduled, trial proceedings took place on October 11-14, 17-21, and 24.
On October 24, the jury returned its verdict, responding as follows to the questions submitted. The jury found that Cpl. Scott, Cpl. Surgeon, Cpl. Gaither, and Sgt. Cooper had been negligent, and that the negligence of each was a proximate cause of Mr. Parker's death. The jury found Cpl. Generette not to have been negligent at all. The jury found that, of the five officers, Sgt. Cooper alone had also been grossly negligent. The jury also answered
Timely post-trial motions were filed by the defendants. By reference to docket entries, we glean that, on November 1, 2011, the defendants filed two motions for remittitur, a motion for judgment notwithstanding the verdict as to the jury's finding that Sgt. Cooper had been grossly negligent, and a motion for judgment notwithstanding the verdict as to all individual defendants, asserting the immunity of the individual defendants under both common law public official immunity and the Maryland Tort Claims Act.
On June 8, 2012, the two orders that have prompted this appeal and cross-appeal were docketed. Those orders: 1) struck the jury's finding of gross negligence as to Sgt. Cooper, 2) recognized the immunity from liability of all individual defendants, including Sgt. Cooper, "under both Public Official Immunity and the Maryland Tort Claims Act, Maryland Code, State Government Article § 12-104(a)," 3) entered judgments notwithstanding the verdict in favor of each of the individual defendants, including Sgt. Cooper, 4) ruled that there were three claims under the Maryland Tort Claims Act, and granted remittiturs of the jury's awards of compensatory damages to $200,000 for each of the three appellants, and 5) entered judgment in the amount of $200,000 in favor of each of the three appellants ($600,000 in the aggregate) against only the State.
Timely appeals were noted to this Court by both sides. Appellants argue that the trial court erred in striking the jury's finding of gross negligence as to Sgt. Cooper, finding that immunity protected Sgt. Cooper from liability, and in remitting the jury's award in any amount. Appellants also argue that the limit on damages in the Maryland Tort Claims Act is unconstitutional, both on its face and as applied in this case. In the State's cross-appeal, it contends that the court erred in remitting the award to $600,000.00; the State asserts that the total amount collectible under the MTCA is limited to $200,000.00 for all appellants collectively.
The term "gross negligence" has been described as an amorphous concept, resistant to precise definition. In Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699
Liscombe v. Potomac Edison Co., 303 Md. 619, 635, 495 A.2d 838 (1985) (quoting Romanesk v. Rose, 248 Md. 420, 423, 237 A.2d 12 (1968)).
"Whether or not gross negligence exists necessarily depends on the facts and circumstances in each case. It is usually a question for the jury and is a question of law only when reasonable men could not differ as to the rational conclusion to be reached." Romanesk, supra, 248 Md. at 423, 237 A.2d 12 (citation omitted). Courts have said that the question of whether a defendant's conduct rises to the level of gross negligence is a question for the trier of fact to decide: "Ordinarily, unless the facts are so clear as to permit a conclusion as a matter of law, it is for the trier of fact to determine whether a defendant's negligent conduct amounts to gross negligence." Taylor v. Harford County Dept. Of Social Services, 384 Md. 213, 229, 862 A.2d 1026 (2004) (quotation marks and citations omitted). See also Artis v. Cyphers, 100 Md.App. 633, 652, 642 A.2d 298 (1994).
In the present case, the trial court gave two reasons for granting the judgment notwithstanding the verdict as to the jury's finding of gross negligence on the part of Sgt. Cooper: (1) because "the allegations of gross negligence [in the complaint] are practically non-existent," and (2) because "[n]o evidence presented adequately supports the assertion that Sgt. Cooper's actions... rose to the level of `outrageous' or `utterly indifferent to the rights of others.'" We hold that these rulings were erroneous for the reasons set forth below. But the defendants also argue that, even if the trial court erred in granting judgment notwithstanding the verdict as to the finding of gross negligence on the part of Sgt. Cooper, the finding of gross negligence should nevertheless be vacated because it was the product of certain improperly admitted evidence. Finally, the defendants argue that the federal court's rejection of appellants' federal claims required a ruling by the trial court against the appellants on the gross negligence issue. We reject these last two arguments for the reasons set forth below.
On Friday, October 21, 2011, after a two week trial and while arguing its motion for judgment at the close of evidence, the defendants asserted, among other things, that there was not sufficient evidence of gross negligence, but they did not assert that there was a defect in the pleadings. On Monday, October 24, 2011, just before jury instructions were given, the defendants for the first time asserted that the complaint did not sufficiently allege
Assuming arguendo that the adequacy of the complaint remained open to challenge after the close of evidence at trial, see Maryland Rule 2-324(a), we are satisfied that the allegations in the complaint were sufficient to state a claim for damages based upon gross negligence. In Tavakoli-Nouri v. State, 139 Md.App. 716, 730-31, 779 A.2d 992 (2001), in reviewing the trial court's dismissal of a pro se complaint for failure to state a claim, we said:
Here, the record is plain that, even before the complaint was filed, the State was aware that gross negligence would be at issue in this case. The notice of claim sent to the State Treasurer in April 2005 put the State on notice that appellants would be asserting a claim for "acts and omissions that amount to gross negligence[.]" Moreover, a review of the complaint reveals that facts which would constitute gross negligence were sufficiently pled by appellants; the complaint included the following allegations:
(Emphasis added.)
The Court of Appeals, in Romanesk, supra, 248 Md. at 423, 237 A.2d 12, described gross negligence as occurring when the actor is "so utterly indifferent to the rights of others that he acts as if such rights did not exist" or acts "with a thoughtless disregard of the consequences without the exertion of any effort to avoid them." The complaint's allegations put the defendants on notice that they were being charged with more than mere negligence, and specifically advised the defendants that they were being charged with conduct that was deliberately indifferent to the rights of the decedent. This was enough to assert a claim of gross negligence. Accordingly, it was error for the trial court to have decided, post-trial, that gross negligence was not sufficiently pled.
As noted above, the question of whether or not gross negligence exists is one for the jury. Here, the jury made a specific finding that defendant Cooper "was grossly negligent toward Philip Parker, Jr." In Barnes v. Greater Baltimore Medical Center, 210 Md.App. 457, 63 A.3d 620 (2013), a medical malpractice case in which we were examining a trial court's grant of a motion for JNOV, we outlined
Id. at 480, 63 A.3d 620 (emphasis added).
Here, there was evidence which, if credited by the jury, supported the jury's finding that Sgt. Cooper was grossly negligent. There was evidence that Sgt. Cooper was required, during transport, to maintain "direct observation" of inmates, which is defined as "continuous, unobstructed surveillance." He was seated just a little more than seven feet from where the violent attack on Philip Parker occurred, yet performed his surveillance duties with such indifference and disregard for Parker's safety that Sgt. Cooper failed to take any action to stop the attack and prevent the murder occurring right in front of him. The attack occurred in phases. Initially, Johns stood and hooked his arm around Philip Parker's neck from behind, choking him. Later, when Philip Parker began to make guttural sounds, Johns changed seats in order to continue the attack. Others in the bus saw and heard the attack. Moreover, the State performed a reenactment of the attack in the course of its investigation, and concluded that Johns's movements inside the bus should have been readily observable by a person in Sgt. Cooper's position even with the lights completely off and only a small amount of ambient light from outside.
Yet Sgt. Cooper claimed to have seen nothing unusual on the night in question, not even Johns's change of seats. Sgt. Cooper claimed to have heard nothing unusual. The movement by inmates inside the bus was contrary to policy, and Cpl. Scott even reported Johns's movement to Sgt. Cooper. Cpl. Scott called the front of the bus and asked that the lights be turned on. There was evidence that Cpl. Scott and Sgt. Cooper shined their flashlights in the vicinity of where Johns was sitting, but did not leave their seats to investigate further. Despite the claims of seeing no unusual activity, there was evidence that the officers on the bus were sufficiently concerned that something "unusual" had or was happening that the driver of the bus increased his speed, and the officers formulated a plan to enter the bus as a team upon arrival at Supermax. This was contrary to the usual deboarding procedure, and was an acknowledgment that the "unusual" events that had taken place on the bus indicated potential danger to
In Catterton v. Coale, 84 Md.App. 337, 579 A.2d 781 (1990), we held that a motion to dismiss a negligence and malicious prosecution suit against a county social worker should not have been granted because, we observed, the plaintiff's allegation in that case that the social worker had fabricated a report "is sufficient to show malice or gross negligence." Id. at 343-44, 579 A.2d 781.
In Newell v. Runnels, 407 Md. 578, 967 A.2d 729 (2009), the Court of Appeals reversed the grant of summary judgment in favor of the State's Attorney for Caroline County, who had been sued after firing two employees who had campaigned for the opposing candidate in the election in which the State's Attorney won his job. The issue for the court was whether the plaintiffs had generated "a triable issue as to whether [the State's Attorney] acted with ... gross negligence when he fired them, such that he, in his individual capacity, could be held liable under the MTCA." Id. at 606, 967 A.2d 729. The Court held that summary judgment should not have been granted because the fired employees had "generated a material dispute of fact concerning the issue of possible gross negligence on [the State's Attorney's] part." Id. at (338, 967 A.2d 729. Finding that "a reasonable trier of fact reasonably could infer that [the State's Attorney's] decision to terminate Plaintiffs reflected a conscious disregard for their rights as employees," and further finding that Plaintiffs "articulated facts tending to show that Newell's decision to fire them was, at worst, a targeted reprisal for speaking against him or, at best, a reckless disregard for their rights to free speech," the Court concluded that summary judgment had been improper. Id. at 639, 967 A.2d 729.
Similarly, there was adequate evidence for the jury to find gross negligence in the acts and omissions of Sgt. Cooper in the present case. Gross negligence was properly pled and was supported by the evidence. The jury's finding on that factual issue should not have been disturbed by the trial judge.
The defendants argue that, even if the trial court erred in granting judgment notwithstanding the verdict as to the finding of gross negligence on the part of Sgt. Cooper, the finding of gross negligence should be vacated because it was the product of certain improperly admitted evidence. Specifically, the defendants argue that the trial court committed reversible in admitting into evidence redacted versions of (1) "Administrative Charging Documents," and (2) an "out of court statement of Kevin Johns." We find no error in the admission of this evidence.
The defendants fail to identify by exhibit number the "Administrative Charging documents" to which they object. In context, however, the defendants appear to
Rule 5-803(a) provides:
See, e.g., Crane v. Dunn, 382 Md. 83, 96, 854 A.2d 1180 (2004) ("`Admissions, in the form of words or acts of a party-opponent, may be offered as evidence against that party.'") (quoting Briggeman v. Albert, 322 Md. 133, 586 A.2d 15 (1991)); B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co., 324 Md. 147, 157-58, 596 A.2d 640 (1991) ("Statements by agents concerning a matter within the scope of the agent's employment and made during the existence of the agency relationship should be admissible without the necessity of proving that the agent had authority to speak or that the statements were part of the res gestae." (Citing Federal Rule of Evidence 801(d)(2)(D))).
The "Notices of Termination" reflected the results of the State's investigation and were the State's official position on the conduct of its employees during the incident. These Notices of Termination stated on their face that they were issued "[u]nder the authority of Title 11 of the State Personnel and Pensions Article," and were signed and "approved by" Secretary Saar. The State was and is a party to the action, as was Secretary Saar. These documents contained "statements of a party opponent."
The State, however, contends that the documents did not contain "admissions" of the State and Secretary Saar because the documents included charges of recklessness, intentional misconduct, and gross negligence on the part of correctional officers, and because neither the State, nor Secretary Saar, could ever be liable for such conduct under the MTCA.
The short answer to this contention is that Rule 5-803(a) provides for the introduction in evidence of "statements" of a party opponent and the party's agents, and is not limited to statements which constitute an admission by the party. Professor Lynn McLain explains in her treatise on Maryland evidence that the statement of a party opponent need not be an admission against interest:
LYNN McLAIN, 6A MARYLAND EVIDENCE § 801(4):1 at 332 (3d ed.2013) (footnotes omitted).
Moreover, the documents did contain numerous admissions which supported the claim against the State. The Notices of Termination contained admissions as to a number of duties owed by the State and its employees to the decedent. For example, the Notice of Termination issued to Sgt. Cooper admitted that, "[p]rior to seating the inmates on the bus, the CTU officers were responsible for securing the inmates in a three-piece restraint device that consists of handcuffs, leg irons and a waist restraint chain, secured by a metal box and a padlock." In the Notice of Termination, the State admitted that the Officer in Charge, Sgt. Cooper, "was responsible for supervising the transportation detail." The Notice of Termination admitted that the correctional officers, including Sgt. Cooper, had a duty to be "familiar with the directives pertaining to the transportation bus" and a duty to be "alert and attentive at all times during their tour of duty." The Notices of Termination contained admissions by the State that the officers, including Sgt. Cooper, breached duties owed to the decedent. For example, the Notice of Termination issued to Sgt. Cooper stated that, "as the Officer-in-Charge, Mr. Cooper had a duty to take the appropriate steps necessary to prevent inmate Johns' murder of inmate Parker. The investigation revealed that he failed to issue any orders to subordinate staff or to the inmate in custody." The Notice of Termination issued to Sgt. Cooper also stated: "After reviewing the investigative findings, it was determined that Mr. Cooper violated several Post Orders, Institutional Directives and Department of Public Safety & Correctional Services' policies and procedures." The admission of these documents was not error.
The defendants also include a single sentence in a footnote in their brief critical of the admission in evidence of Exhibits 43 and 44. The footnote states: "Similarly, the memoranda on which Secretary Saar based her decision to approve the termination, admitted as Plaintiffs' Ex. 43 and 44, were, as defense counsel observed, riddled with prejudicial and inadmissible hearsay." The defendants, however, did not provide any further argument regarding Exhibits 43 and 44, and did not include the referenced exhibits in their Appendix. It appears that Exhibit 43 was a memorandum prepared by the Department proposing termination of Cpl. Scott, and Exhibit 44 was a similar memorandum proposing termination of Sgt. Cooper. In the absence of any argument from the defendants as to why these documents should be treated differently from the Notices of Termination discussed above, we decline to address this argument further. Shell Oil Co. v. Ryckman, 43 Md.App. 1, 4, 403 A.2d 379 (1979).
Finally, the defendants assert that the trial court erred in admitting into evidence the transcribed statement that Johns gave to a State investigator three days after the murder. The defendants' objection to the statement at trial was as follows:
Although the defendants now claim that the transcribed statement was inadmissible hearsay, the word "hearsay" does not appear anywhere in the defendants' objection at trial. Generally, Maryland litigants are not required to state the specific ground for an objection unless requested to do so by the trial court. Maryland Rule 2-517. But, if counsel argues specific grounds for an objection, the litigant may raise on appeal only those grounds actually presented to the trial court. All other grounds for the objection, including those appearing for the first time in a party's appellate brief, are waived. See, e.g., United States Gypsum Co. v. Baltimore, 336 Md. 145, 173-75, 647 A.2d 405 (1994). Because no hearsay objection was argued at trial, none will be entertained on this appeal.
The defendants argue that, "in light of the federal district court's ruling that Sgt. Cooper's conduct was merely negligent, the circuit court's ruling [granting judgment notwithstanding the verdict as to Sgt. Cooper's gross negligence] was required [in order] to prevent legally — and factually — inconsistent final judgments in the same case." This argument assumes that the federal court considered and rejected a claim of gross negligence under Maryland State law. That was not the case. Appellants' federal claim was brought under 42 U.S.C. § 1983 for an alleged violation of the decedent's rights under the 8th Amendment of the U.S. Constitution. The opinion of the federal court dealt with the legal question of whether the officers were "deliberately indifferent" to the decedent's rights to a degree that would support the federal claim. The Fourth Circuit held that this standard requires a plaintiff to show that the officer "knows of and disregards an excessive risk to inmate health and safety" and this standard "sets a particularly high bar to recovery." While the "deliberate
Our holding that the trial court erred in striking the jury's finding of gross negligence on the part of Sgt. Cooper requires us to examine the implications of that finding with respect to the liability of the various defendants and the application of any immunities. The defendants argue that the trial court correctly found that Sgt. Cooper was shielded from liability by common law public official immunity and by immunity under the MTCA. Appellants respond that public official immunity, regardless of its source, is destroyed in the presence of gross negligence and/or a special relationship, both of which exist here. We will address and examine each potential source of immunity. Because we conclude that Sgt. Cooper is not entitled to protection of immunity under either the MTCA or common law public official immunity, we will then address the impact of that loss of immunity on the judgments in this case.
Because the jury's finding that Sgt. Cooper acted with gross negligence must be reinstated, Sgt. Cooper is not eligible for immunity under the MTCA, and the State retains its sovereign immunity with respect to the claims against Sgt. Cooper. The MTCA is codified at Maryland Code (1984, 2009 Repl.Vol.), State Government Article ("SG"), § 12-101 et seq. Section 12-104 provides, in pertinent part:
Section 5-522 of the Courts and Judicial Proceedings Article — referenced in SG § 12-104(b) — provides, in pertinent part that, when State personnel commit a tortious act or omission with gross negligence, then (a) the sovereign immunity of the State is not waived, and (b) there is no statutory immunity under the MTCA for the State personnel who committed the act or omission. Section 5-522 provides:
(Emphasis added.)
When we read SG § 12-104 and CJP § 5-522 together, it is clear that State personnel are immunized for their tortious conduct committed within the scope of their public duties, unless that conduct was, as in the case of Sgt. Cooper, committed "with malice or gross negligence[.]" CJP § 5-522(a)(4)(ii). The jury's finding that Sgt. Cooper acted with gross negligence defeats his claim to immunity for State personnel under the MTCA.
Common law public official immunity applies when (1) the actor is a public official, and (2) the complained-of conduct occurred in the course of the actor's performance of discretionary — as opposed to ministerial — acts, which were (3) within the scope of the actor's official duties. Houghton v. Forrest, 412 Md. 578, 585, 989 A.2d 223 (2010). Prison guards are considered public officials. Carder v. Steiner, 225 Md. 271, 275, 170 A.2d 220 (1961). See also Livesay v. Baltimore County, 384 Md. 1, 14, 862 A.2d 33 (2004) (explaining that James v. Prince George's County, 288 Md. 315, 323 n. 9, 418 A.2d 1173 (1980), "did not purport to overrule Carder's specific holding that a prison guard was a public official in the context of public official immunity"). Ministerial duties are those to which nothing is left to the official's discretion, while discretionary acts are those involving "the freedom and authority to make decisions and choices." State ex rel. Clark v. Ferling, 220 Md. 109, 113, 151 A.2d 137 (1959). No dispute has been raised in this case as to whether Sgt. Cooper's actions were discretionary or ministerial. Like the police officer who was deemed a public official in Houghton, supra, 412 Md. at 585, 989 A.2d 223, Sgt. Cooper also was empowered with the discretionary "`freedom to act according to one's judgment in the absence of a hard and fast rule.'" (Quoting Schneider v. Hawkins, 179 Md. 21, 25, 16 A.2d 861 (1940)). Sgt. Cooper fell within the class of employees who might enjoy common law public official immunity based on being a public official, engaged in the performance of discretionary acts, within the scope of his employment. Id.
Common law public official immunity does not protect a defendant against personal liability in cases where the official committed an intentional tort, Houghton, supra at 586, 989 A.2d 223, or acted with malice, Robinson v. Board of County Comm'rs for Prince George's County, 262 Md. 342, 348, 278 A.2d 71 (1971) ("Indeed we can not think of any reason why a public official should not be held responsible for his malicious actions even though he claims they were done within the scope of his discretionary authority."). But, in this case, there was no finding of actual malice; nor was there a finding of liability in connection with any intentional tort. These two disqualifications for common
In the briefs in this case, the parties disagree about the impact the jury's finding of gross negligence has upon the applicability of common law public official immunity. The appellants insist that either gross negligence or (as we shall discuss later) a special relationship defeats common law public official immunity. The defendants argue that only malice provides an exception to common law public official immunity. In support of the defendants' position, they cite McCoy v. Hatmaker, 135 Md.App. 693, 763 A.2d 1233 (2000); Lee v. Cline, 384 Md. 245, 863 A.2d 297 (2004); Livesay v. Baltimore County, 384 Md. 1, 862 A.2d 33 (2004); and D'Aoust v. Diamond, 424 Md. 549, 36 A.3d 941 (2012).
In McCoy, the widow of a man who died suddenly in his car sued Hatmaker, a Baltimore City paramedic, and Schwaab, a Baltimore City police officer, alleging that neither man — both trained first responders — complied with the relevant standard of care when each assessed the decedent as beyond resuscitative help. The widow asserted that Hatmaker and Schwaab acted with gross negligence. Hatmaker and Schwaab raised the Good Samaritan Act and the Fire and Rescue Company Act as defenses, and argued that, because they did not act with gross negligence, they were immune from suit under both statutes. The trial court agreed, and granted summary judgment in their favor. On appeal, we affirmed because the appellant could not point to any facts showing "a deliberate choice not to give McCoy a chance to survive." In affirming, we also noted:
135 Md.App. at 719, 763 A.2d 1233 (emphasis added). Accordingly, there is dicta (but not a holding) in McCoy indicating that public official immunity would have been applicable "[e]ven if the appellant could have proven gross negligence." Id.
In Lee v. Cline, 384 Md. 245, 863 A.2d 297 (2004), a case interpreting the MTCA, the Court of Appeals discussed common law public official immunity only tangentially. The passing reference to gross negligence in Lee appears in the context of a discussion of immunity under the MTCA. Id. at 261, 863 A.2d 297 ("[T]he purpose of the [Maryland] Tort Claims Act's immunity is to insulate state employees generally from tort liability if their actions are within the scope of employment and without malice
Livesay v. Baltimore County, 384 Md. 1, 862 A.2d 33 (2004), was a Local Government Tort Claims Act (LGTCA) case in which a Baltimore County correctional officer — Officer Fore — was sued for his failure to render direct assistance to an inmate who had attempted suicide. The correctional officer described himself as being "in shock" upon finding the inmate "sitting slumped on the floor of his cell, a
Id. at 12, 862 A.2d 33 (emphasis added).
On its face, the statement in Livesay indicating that a government representative is entitled to common law public official immunity if the representative acted "without malice" seems to imply that only malice can defeat such immunity. But the Livesay Court expressly avoided reaching such a conclusion, stating, id. at 18, 862 A.2d 33:
D'Aoust v. Diamond, 424 Md. 549, 36 A.3d 941 (2012), dealt with a foreclosure sale in which the property owner claimed that the court-appointed trustees failed to send proper notice to her at her last known address, and then lied about having accomplished service in an affidavit filed with the court. For that reason, the property owner argued, the trustees were not "public officials" entitled to public official immunity. Both the trial court and this Court ruled that the trustees were protected by qualified judicial immunity. But the Court of Appeals sided with the property owner, and held that the trustees enjoyed neither qualified judicial immunity nor common law public official immunity. The Court of Appeals noted that it had never recognized a "qualified judicial immunity." 424 Md. at 585, 36 A.3d 941. Moreover, the Court held that, because the trustees "were clearly not public officials," it was plain that "the concept of qualified public official immunity is inapplicable to their actions in connection with the judicial sale of [the property owner's] condominium." Id. at 592, 36 A.3d 941. Consequently, D'Aoust offers no guidance on the question of whether public official immunity protects Sgt. Cooper from personal liability in the present case.
In the cases above, the Court described common law public official immunity as being available to a governmental representative when he or she is acting as a public official if the tortious conduct occurs while performing discretionary rather than ministerial acts and the representative acts without malice. But none of these cases specifically holds that a finding of malice is the only way to defeat common law public official immunity.
Appellants cite two cases which they argue constitute "contrary and more recent authority" in support of their contention that gross negligence defeats common law public official immunity: Hines v. French, 157 Md.App. 536, 852 A.2d 1047 (2004), and Lovelace v. Anderson, 366 Md. 690, 785 A.2d 726 (2001). But our examination of these cases does not persuade us that either case provides compelling support for appellants' argument.
Hines involved an appeal from a grant of summary judgment in favor of a deputy sheriff who allegedly attacked the plaintiff during a traffic stop and, without provocation, forced her face into the side of her vehicle despite having noticed that she had recent TMJ surgery. In reversing the summary judgment in favor of the deputy sheriff, we held: "Assuming a jury found these allegations to be true, [the deputy's] conduct would constitute malice, and thus, qualified immunity would not be available to him as a defense." Id. at 564, 852 A.2d 1047 (emphasis added).
In Hines, we explained that, when a claim is made under the MTCA, State personnel are immune, pursuant to CJP § 5-522(b), from liability in tort for an "`act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence....'" Id. at 562, 852 A.2d 1047 (quoting CJP § 5-522(b)) (italics in quoted opinion). We then stated: "Accordingly, whether under common law qualified immunity or the statutory qualified immunity provided by the MTCA, [the defendants] may only avoid liability for a claim of negligence if their conduct was within the scope of the duties of State personnel and each acted without malice or gross negligence." Id. at 562, 852 A.2d 1047. To the extent that the quoted language from
Lovelace involved an appeal from a grant of summary judgment on grounds of public official immunity in favor of a hotel security guard and his employer. The privately-employed security guard — who was an off-duty police officer — shot and injured a hotel guest while engaged in a gun battle with two armed robbers in the hotel lobby. Lovelace held that the security guard would not be entitled to public official immunity if a finder of fact concluded that he was acting as a private security guard for the hotel rather than as a public official. Consequently, the circuit court should not have granted summary judgment on the basis of immunity. Although the Lovelace Court cited other cases for the proposition that common law public official immunity may not apply under circumstances where there is a special relationship between a police officer and a victim, id. at 706-07, 785 A.2d 726, the Court did not hold that proof of gross negligence would defeat common law public official immunity if the official could otherwise qualify for such immunity.
We conclude that existing case law does not definitively answer the question of whether gross negligence defeats common law public official immunity. Appellants nonetheless insist that this Court should recognize such a rule (a) because, "when the legislature codified public official immunity [in the MTCA], it specifically included gross negligence as an exception," and (b) because "the interplay between the MTCA and Article 19 of the Maryland Declaration of Rights mandates adoption of the gross negligence standard for piercing public official immunity."
We find it unnecessary to resolve the dispute between the parties as to whether common law public official immunity can be defeated by proof of gross negligence; there is an alternative ground for invalidating Sgt. Cooper's claim of common law public official immunity. The Court of Appeals has stated: "In the presence of a `special relationship,' liability may lie, and [public official] immunity may not survive." Williams v. Mayor & Council, 359 Md. 101, 144, 753 A.2d 41 (2000).
Here, there was clearly a special relationship between Sgt. Cooper and the decedent, Philip Parker, Jr., and also a special relationship between Sgt. Cooper and the murderer, Kevin Johns. To the extent the trial court found otherwise, such ruling was clear error. Indeed, the defendants, on appeal, do not contest the existence of a special relationship between Sgt. Cooper and the inmates under his charge. Rather, they disagree about the impact such a relationship has upon the availability of common law public official immunity under Maryland law. Defendants argue that, whether a special relationship exists is a factor which has bearing on only the issue of whether a public official owes a duty to the plaintiff, and is not a factor which has any impact in determining whether the official is entitled to immunity if such a duty is breached. However, this position is at odds with Williams, in which the Court of Appeals held that a public official's breach of a duty arising out of a special relationship not only gives rise to liability but also defeats a claim of common law public official immunity.
Williams involved a negligence suit against a police officer arising out of a domestic violence incident. There was no claim that the officer either acted with malice or committed gross negligence, but,
According to the mother, the officer told her "that he had to write his report, and that she was to go in the house, because he was going to remain outside." Id. at 150, 753 A.2d 41. Unfortunately, the police officer grew impatient waiting for someone to bring him a camera to photograph the daughter's injuries, and, without telling the mother or daughter he was leaving, the police officer decided to drive to the police station to get a camera. Before he returned with a camera, the abuser returned. The abuser shot and killed the daughter, and also shot the mother, who survived but was partially paralyzed. Id. at 107, 753 A.2d 41.
Suit was subsequently filed against the police officer, alleging that a special relationship had arisen between him and the two women as a result of his actions and express promise of protection. The plaintiffs alleged that this special relationship imposed a duty on the police officer beyond that which would ordinarily be owed generally to citizens threatened by crime. The circuit court granted summary judgment in favor of the police officer based on the court's finding that, as a matter of law, the police officer "was acting in a discretionary capacity, without malice, at the time of the incident and was therefore entitled to qualified immunity." Id. at 112, 753 A.2d 41. Although this Court affirmed the grant of summary judgment in favor of the police officer, the Court of Appeals reversed, relying on the "the special relationship exception" to qualified immunity. Id. at 130-31, 753 A.2d 41. The Court held that the police officer's "affirmative actions, directions and specific promises of protection ... if they occurred and were reasonably relied upon by [the plaintiffs], may have created a special relationship between [the officer] and [the plaintiffs] that would establish a duty of care on the part of [the officer] to protect them; therefore his actions at [the home of the plaintiffs] might not be protected by either statutory or common law immunity." Id. at 112-13, 753 A.2d 41. The Williams Court reiterated this holding in its "Conclusion" section of the opinion, id. at 151, 753 A.2d 41, stating:
Although Williams appears to be the only case in which the Court of Appeals has expressly held that common law public official immunity may be defeated by proof of a special relationship, similar language appears in Lovelace v. Anderson, 366 Md. 690, 785 A.2d 726 (2001). In Lovelace, the Court of Appeals stated: "Another limitation
There was clearly a special relationship between Sgt. Cooper and the decedent — and between Sgt. Cooper and Kevin Johns — that imposed a duty on Sgt. Cooper to protect the decedent from Johns. In Ashburn v. Anne Arundel County, 306 Md. 617, 630 n. 2, 510 A.2d 1078 (1986), the Court of Appeals explained that a special relationship exists where there is an ongoing custodial relationship:
(Emphasis added.)
In Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985), the Court of Appeals "expressly adopt[ed] § 319 [of the RESTATEMENT (SECOND) OF TORTS] as the law of this State governing the duty of those in charge of persons having dangerous propensities." Id. at 245, 492 A.2d 1297. Accord Remsburg v. Montgomery, 376 Md. 568, 591, 831 A.2d 18 (2003). Section 319, captioned "Duty of Those in Charge of Person Having Dangerous Propensities," provides:
The Comments to § 319 are illuminating. Comment a states:
Johns, a Supermax inmate, and a two-time murderer, was within "the class of persons to whom the tendency to act injuriously is normal." And there can be no doubt that the correctional officers transporting Johns back to Supermax had knowledge of Johns's potentially injurious tendencies. Sgt. Cooper, in particular, was an experienced corrections officer who was the Officer in Charge of the transportation detail. Managing the behavior of individuals like Johns is a component of a
Similarly, the special relationship that imposes a duty upon correctional officers to protect persons in their custody from harm is recognized in § 320 of the Restatement (Second) of Torts, which states:
Comment c to § 320 indicates that the duty is applicable when a jailer has custody of a prisoner who is unable to protect himself from "notoriously dangerous" persons, "as where a prisoner is put in a cell with a man of known violent temper."
In its resolution of the post-trial motions at issue here, the trial court concluded that no special relationship existed, citing Clark v. Ferling, supra, 220 Md. 109, 151 A.2d 137, as "precedential" and factually "analogous" to the instant case. In Clark, the parents of a juvenile inmate of the Maryland Reformatory sued Ferling (who was the superintendent of that institution) after their son was beaten to death in prison by other inmates. In the suit, the parents alleged that their son had testified against certain inmates; that the inmates bore the Clarks' son "great hatred and animosity" and "were determined to seek revenge against him at the first opportunity"; and that Ferling had permitted their son to be housed in the same dormitory with the inmates, which led, the parents alleged, to his fatal beating. Their case was dismissed by the circuit court on demurrer, and the plaintiffs appealed. The Court of Appeals affirmed the dismissal, explaining:
(Emphasis added.)
Accordingly, the holding in Clark is easily distinguished from the present case by the lack of knowledge on the part of the superintendent in that case and his absence from the scene of the inmates' assault. Clark does not support the trial court's erroneous conclusion that there was no special relationship between Sgt. Cooper and the inmates involved in the present case.
Because a special relationship existed between the inmates and Sgt. Cooper, and because that relationship gave rise to a duty which was clearly breached, the trial court erred in finding that Sgt. Cooper was entitled to the benefit of common law public official immunity. Williams, supra, 359 Md. at 112-13, 151, 753 A.2d 41.
Appellants argue that our conclusion that Sgt. Cooper was not entitled to immunity under either the MTCA or common law public official immunity compels restoration of the jury's full award of damages against Sgt. Cooper. We agree, subject however, to any rights of remittitur that may remain unaddressed by the trial court.
Without citation to authority, the appellants also argue "that the State is required to indemnify Larry Cooper in order to avoid a conflict of interest in the Office of the Attorney General because the same member of that office represented both the officer and the State at Trial." The appellants' argument is that the "interests of the State and the individual Defendants are irreconcilable as to the issue of malice/gross negligence and in connection with the post trial motions" and that this divergence in interests gives rise to an "unwaivable conflict of interest under Maryland Rule 1.7." The only remedy to address this conflict of interest, the appellants assert, is to require the State to fully indemnify Sgt. Cooper.
The State responds: (1) "there was no conflict of interest because counsel for the State admitted that there was negligence and that the State was therefore liable up to the $200,000 which the State has already paid"; (2) "if there were a conflict of interest, that would be for Sgt. Cooper to raise, not the plaintiffs"; (3) "if the plaintiffs could raise the issue, it would not be in an appeal from the verdict below, but in a separate proceeding to enforce the judgment"; and (4) "the law is clear that the State's agreement to represent a State
These arguments are not ripe for appellate review because it does not appear to us that they were raised in the circuit court. There is no ruling of the circuit court addressing these issues, and we decline to consider such potential issues further. Maryland Rule 8-131(a).
The appellants ask us to consider the constitutionality of the MTCA's "cap" on damages, arguing that it violates Article 19 of the Maryland Declaration of Rights, the constitutional mandate of separation of powers, the constitutional right to trial by jury, and the constitutional right to equal protection of the law. The State responds that the MTCA's restriction on recovery is actually a limit of the State's waiver of sovereign immunity, not a legislative "cap" on damages. In Proctor v. Washington Metro. Transit Authority, 412 Md. 691, 723, 990 A.2d 1048 (2010), the Court of Appeals explained that, although the MTCA's limit functions like a cap, "it is more accurately described as a limit on the State's waiver of sovereign immunity." The Court stated unequivocally: "[T]he limit on damages contained in § 12-104(a) of the State Government Article is a term of the State's waiver of sovereign immunity, not a cap on damages." Id. at 722-23, 990 A.2d 1048. We agree with the State that only the General Assembly can expand that waiver. Jekofsky v. State Rds. Comm'n, 264 Md. 471, 474, 287 A.2d 40 (1972).
Moreover, in Gooslin v. State, 132 Md.App. 290, 752 A.2d 642 (2000), cert. denied, 359 Md. 334, 753 A.2d 1031 (2000), this Court previously considered and rejected two of the four arguments advanced by the appellants, namely, that the MTCA's limited waiver of sovereign immunity violates Article 19 of the Maryland Declaration of Rights, 132 Md.App. at 296, 752 A.2d 642, and violates the constitutional right to equal protection, id. at 298, 752 A.2d 642. We decline to reconsider our decision in Gooslin.
We also reject appellants' remaining two arguments, namely (1) that the MTCA's limited waiver of sovereign immunity violates the constitutional mandate of separation of powers, and (2) violates the constitutional right to trial by jury. Appellants argue that the MTCA's limited waiver of immunity violates the separation of powers doctrine because it interferes with the right of judiciary to curb excessive jury verdicts and to render and enforce judgments. This argument is unavailing. The limited waiver of sovereign immunity did not limit the ability of Maryland judges to enter and enforce damage awards against the State. To the contrary, the limited legislative waiver of sovereign immunity established the ability of judges to enter damage awards where no ability previously existed.
The argument that the limited waiver violates the constitutional right to trial by jury is similarly unavailing. Prior to the enactment of the limited legislative waiver of sovereign immunity, there was no right to recover tort damages against the State — by jury trial or otherwise. The partial waiver of sovereign immunity created a limited right to jury trial where none had previously existed. Accordingly, we hold that the MTCA, which permits a right to jury trial where no such right previously existed, does not violate appellants' constitutional right to jury trial.
We turn now to the issue raised by the State on its cross appeal. The State argues that the MTCA limits recovery against it to $200,000 and that the trial
The MTCA provides, in pertinent part, that "[t]he liability of the State and its units may not exceed $200,000 to a single claimant for injuries arising from a single incident or occurrence." SG § 12-104(a)(2). The State relies on COMAR 25.02.02.02, an implementing regulation promulgated by the State Treasurer governing the administration of the MTCA. The State asserts that the following provisions of COMAR 25.02.02.02D are dispositive:
(Emphasis added.)
Appellants argue that the language of the implementing regulation varies from the plain language of the statute, which specifies only a $200,000 limitation per claimant, without attempting to define or delimit "claimant." Appellants contend that the State's regulation is at odds with the plain language of the statute, is entirely self-serving, and deserves no deference. Accepting these arguments, the trial court found that the implementing regulation was "contradictory to the legislative intent"; that legislative history did not support such a restrictive interpretation of § 12-104 as the State was attempting to ascribe to it with its regulation; and that the regulation relied on by the State "directly contravenes both the plain language of the MTCA and the demonstrated legislative intent." Consequently, the trial court concluded that there were three separate claimants — Mr. Parker, Sr.; Ms. Rodriguez; and the Estate of Mr. Parker, Jr. — and that each was entitled to collect $200,000 from the State under the MTCA, for a total recovery of $600,000. We conclude that the trial court erred in this regard.
No reported case from either appellate court of this State has ever squarely considered the question presented here, namely the weight to be given the implementing regulation at issue, COMAR 25.02.02.02(D).
The Court of Appeals, in Forster v. Public Defender, 426 Md. 565, 45 A.3d 180 (2012), observed:
Id. at 579-80, 45 A.3d 180 (internal citations omitted).
Although the trial court's interpretation of SG § 12-104(a)(2) is at issue in this appeal, there are other statutes and regulations relevant to our analysis. CJP § 3-904(f) establishes that there can be but one action for wrongful death. That provision was at issue in State v. Copes, 175 Md.App. 351, 927 A.2d 426 (2007), where an action for wrongful death was initially brought by only one of a decedent's three adult daughters. This Court found that the proper notice given pursuant to the MTCA by one daughter sufficed to put the State on notice of the claims of the other daughters. Id. at 444-45. Copes also bears on the instant case because it discusses the effect of certain implementing regulations for the MTCA, including the notice provisions of COMAR 25.02.03.02.
In Copes, we noted that SG § 12-106, which requires a "claimant" to provide notice to the State Treasurer of a claim within one year after the injury giving rise to the claim, does not otherwise define the term "claimant." Because SG § 12-106 was "not clear on that point," we concluded that an ambiguity existed, which required us to resort to other "tools of statutory construction at our disposal," including COMAR. Copes, 175 Md.App. at 381, 927 A.2d 426 (citing Reier v. State Dep't Of Assessments and Taxation, 397 Md. 2, 26, 915 A.2d 970 (2007)). In Copes, we discussed the same section of COMAR at issue in the case at bar, the "State Insurance Programs" subtitle.
Our discussion in Copes noted:
Id. at 380, 927 A.2d 426 (internal citations omitted). We ultimately concluded in Copes that the regulations at issue should be treated as interpretative in nature, and
As in Copes, the pertinent regulations in the instant case went through a notice and comment period, as documented in the Maryland Register. The specific language now found in 25.02.02.02(D)(1)(a) was first proposed in January 1990, and adopted effective April 16, 1990. 17:1 Md. R. 93; 17:7 Md. R. 853. Although there is no express delegation of rulemaking authority to the Treasurer in the MTCA, the Treasurer is directed to "adopt necessary regulations: (1) to set policies and procedures for payment on losses, including adjustment and approval; ... and (3) otherwise to carry out the duties of the Treasurer under this title." Maryland Code (2001, 2009 Repl.Vol.), State Finance and Procurement Article ("SFP"), § 9-104(b)(1), (3). Section 9-104(a)(1) establishes that the State Treasurer is responsible for the State Insurance Program, and § 9-104(a)(2) establishes that the Treasurer is the administrator of the State Insurance Trust Fund, which is the source of payments for losses under the MTCA.
In Comptroller v. John C. Louis, Co., 285 Md. 527, 404 A.2d 1045 (1979), the Court of Appeals recognized that administrative interpretations that have been "acquiesced in by the Legislature" are entitled to "great weight," although such interpretations are not binding on the courts. Id. at 543, 404 A.2d 1045. In that case, the Court of Appeals discussed factors that must be taken into account when determining the "proper weight to be accorded an administrative interpretation or practice[.]" Id. at 544, 404 A.2d 1045. These factors include:
Id. at 544-45, 404 A.2d 1045 (internal citations omitted) (emphasis in original).
We conclude that COMAR 25.02.02.02 is entitled to substantial weight. As noted, it is an administrative regulation, promulgated by the office in charge of handling MTCA claims (the State Treasurer), and, prior to its final adoption, the regulation was subject to a public notice and comment period. It has existed for over twenty years. As stated earlier, we have not been directed to, nor are we aware of, a published decision of either appellate court interpreting the claim limit provisions of the MTCA in the manner appellants urge. On the contrary, Maryland cases have consistently held that, as the Court of Appeals recognized in Proctor v. WMATA, 412 Md. 691, 713, 990 A.2d 1048 (2010), among the "notable features"
In reaching this conclusion, we necessarily reject the appellants' argument that the legislative history of the MTCA demands a different interpretation of the statute. Appellants point out that the limits on liability under the MTCA prior to 1985 "were $100,000 per individual claim and $500,000 per total claims arising from the same occurrence." Amendments to the MTCA later provided that sovereign immunity was waived to the extent of insurance coverage carried by the State. In 1999, the Maryland legislature again amended the statute to its current form. Citing this series of events, appellants argue that "it is evident that the Legislature did not intend the current statute to include an aggregate limit on the total value of all claims by all claimants arising from a single incident," and the General Assembly "specifically did away with the aggregate limit ... evidencing the legislative intent that there be no such limit." The appellants urge us to conclude that "[t]he Legislature had just done away with a much higher $500,000 aggregate cap in a stated effort to broaden liability. Applying the much lower $200,000 cap in an aggregate fashion, as the State suggests would be a comparative lessening of liability — the exact opposite of the legislative intent." We disagree. In our view, the clear intent of the General Assembly in eliminating the "per occurrence language" was indeed to broaden the State's liability, but to do so by permitting recovery by multiple individuals who sustained bodily injury in the same occurrence up to a limit of $200,000 per injured party. It was not the legislative intent, however, to allow an unlimited number of derivative claimants each to recover up to $200,000 for bodily injury to a single person in a single occurrence.
The COMAR provisions are consistent; with the purposes of the MTCA. Although SG § 12-102 requires the MTCA to be "construed broadly, to ensure that injured parties have a remedy," it is also the case that waivers of sovereign immunity are strictly construed in favor of the State. Bd. of Educ. v. Zimmer-Rubert, 409 Md. 200, 212, 973 A.2d 233 (2009).
The COMAR provisions are also consistent with holdings by our appellate courts in other cases. In Board of County Commissioners of St. Mary's County v. Marcas, LLC, 415 Md. 676, 687, 4 A.3d 946 (2010), a case interpreting the LGTCA, the Court concluded "that the General Assembly intended that courts would use the insurance industry's definitions of `individual claim' and `same occurrence' when applying C.J. § 5-303," the LGTCA corollary to the MTCA liability limits set forth in SG § 12-104.
Cases interpreting "per claim" and "per occurrence" language in insurance polices have consistently held that the "per claim" limit sets the upper ceiling on recovery for an injury involving one person, whether it be for direct or derivative claims. One bodily injury gives rise to a claim for personal injury (if the injured party survives), or wrongful death (if he does not), and can spawn claims derivative of that single bodily
A similar interpretation of the per claim limit has been applied in cases arising under the LGTCA. See, e.g., Surratt v. Prince George's County, 320 Md. 439, 454, 578 A.2d 745 (1990); Espina v. Prince George's County, 215 Md.App. 611, 647, 82 A.3d 1240 (2013), cert. granted sub nom., Espina v. Jackson, 438 Md. 142, 91 A.3d 613 (2014); Leake v. Johnson, 204 Md.App. 387, 416, 40 A.3d 1127 (2012).
Although appellants argue that our consideration of cases interpreting insurance contracts — such as Daley v. USAA, supra — is a "wasted exercise," we have made reference in prior decisions to the "Court of Appeals' repeated statements that, in construing limitations on local government tort liability, courts should look to definitions in the insurance industry." Leake, supra, 204 Md.App. at 413, 40 A.3d 1127. We are persuaded that interpretation of the claim limits in the MTCA deserve similar review.
For the foregoing reasons, we conclude that appellants are entitled to collect a total of no more than $200,000 from the State of Maryland pursuant to the MTCA.
