WATTS, J.
Gross negligence has been defined as, among things, "an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies
We hold that: (I) the trial court erred in striking the jury's finding of gross negligence by the correctional officer and in concluding that the correctional officer was entitled to immunity under the Maryland Tort Claims Act ("the MTCA"), Md. Code Ann., State Gov't (1984, 2014 Repl. Vol.) ("SG") § 12-101 to 12-110; and (II) the correctional officer was not entitled to common law public official immunity, not because the correctional officer owed a duty arising out of a special relationship with the inmates in his custody, but instead because entitlement to common law public official immunity is limited by gross negligence; i.e., gross negligence is an exception to common law public official immunity. Thus, here, having acted with gross negligence, the correctional officer is not entitled to immunity under the MTCA or common law public official immunity.
In the early morning hours of February 2, 2005, inmate Kevin G. Johns, Jr. ("Johns") murdered fellow inmate Philip E. Parker, Jr. ("Parker"), in plain sight of other inmates and correctional officers, while the two were traveling together on a prison transport bus with thirty-four other inmates and five correctional officers.
On May 15, 2006, in the Circuit Court for Baltimore City ("the circuit court"), Melissa Rodriguez and Philip E. Parker, Sr., Parker's parents (together, "Respondents") sued: the State of Maryland; the Secretary of the Maryland Department of Public Safety and Correctional Services ("DPSCS"); the Commissioner of the Division of Correction; the Warden of the Maryland Correctional Adjustment Center ("Supermax");
Before murdering Parker, Johns had been convicted of murdering his uncle;
Two guards from Hagerstown Correctional Institution, Bradley Hott ("Hott") and Hunter Vest ("Vest"), submitted reports in connection with an internal investigation conducted after Parker was murdered, detailing Johns's conduct before, during, and after the sentencing hearing. Hott and Vest had transported the four Supermax inmates between Hagerstown Correctional Institution and the Circuit Court for Washington County for Johns's sentencing hearing. According to Hott, after being sentenced, Johns "began to laugh[,]" and later commented that "the killing had just begun." According to Vest, upon being sentenced, Johns said: "`Gonna be trouble when I get back to Baltimore. They think it[']s bad now, the killing has just begun. I'll be back in court for these charges the rest of my life. They will have to put me to death to end this.'" Prior to Parker's murder, neither Hott nor Vest reported Johns's comments to their supervisor because both believed that such comments were not "uncommon for an inmate in [Johns's] situation." Nor were Johns's comments reported to the transportation team from Baltimore when it arrived to transport the Supermax inmates back to Baltimore.
After Johns's sentencing, Johns, Parker, Folk, and Diggs were transported to the Hagerstown Correctional Institution to await transport to Supermax on the Maryland Reception, Diagnostic and Classification Center ("MRDCC")'s Central Transportation Unit Bus # 2809 ("the bus"). The bus was a "relatively new" Bluebird bus, modified to be a "mobile prison" for the transport of prisoners. The bus consisted of three locked compartments that
The bus was staffed by five correctional officers. Cooper was the Officer in Charge. Gaither was `the driver. Surgeon and Generette sat in the front of the bus. Scott and Cooper sat in the rear elevated cage, approximately seven and one-quarter feet from Parker, who was sitting next to the window in the second-to-last bench in front of the elevated cage. As the Officer in Charge, Cooper was required to sit at the front of the bus and was disallowed from being the bus driver; Cooper later stated that he "never knew" that, as the Officer in Charge, he was required to ride in the front of the bus. Under a Division of Correction policy concerning "Post Orders: Escort and Transportation Procedures" — applicable to MRDCC, the post to which the five correctional officers were assigned — the correctional officers were to be "alert and observant at all times" and to "display initiative [and] good judgment[.]" And, under a Division of Correction policy concerning "Escort and Transportation of DOC Inmates," applicable to MRDCC, the correctional officers were to report any unusual occurrences to the Officer in Charge.
On the morning of February 2, 2005, Johns, Parker, and thirty-four other inmates, boarded the bus. Although DPSCS policy required that there be "[a]t least two armed escort officers [] assigned to transport each" Supermax inmate, and although there were four Supermax inmates on the bus, only five correctional officers staffed the bus. Before boarding the bus, the inmates were strip searched and secured in three-point restraints, which consisted of handcuffs, leg irons, and a waist restraint chain, secured by a metal box and a padlock; the waist chain was to be wrapped snugly around an inmate's torso and secured by the metal box and padlock, resulting in the inmate's hands and forearms being unable to be moved from the inmate's upper abdomen and lower chest. One of Surgeon's responsibilities was to apply the three-point restraints on Johns. It was later discovered that Surgeon improperly placed the three-point restraint device on Johns, such that it was loose; Johns's waist chain was loose and hanging down, permitting Johns to move his hands and forearms away from his upper abdomen and lower chest. As the Officer in Charge, Cooper was responsible for ensuring the three-point restraints were properly secured;
Once on the bus, the four Supermax inmates seated themselves on two benches at the rear of the bus, directly in front of the elevated officers' cage. Johns and Folk sat on the last bench directly in front of the elevated officers' cage, and Parker and Diggs sat directly in front of Johns and Folk. Both Johns and Parker were in window seats; thus, Johns sat directly behind Parker. This seating arrangement violated DPSCS policy, under which Supermax inmates were to ride in the protective custody cages located at the front of the bus, or, absent space in a protective custody cage, Supermax inmates were to be placed in the front of the bus. The two protective custody cages at the front of the bus were otherwise occupied — one by an immigration detainee who was required to ride separately from the State prisoners, and the other by an inmate who had requested to be segregated from the four Supermax inmates because he was afraid of them. In a deposition excerpt read to the jury, when asked about the seating arrangements on the bus, Cooper testified that he "did the best [he] could with what [he] had."
At approximately 2:48 a.m., the bus departed for Supermax. At some point during the trip, Johns got up from his seat, reached over the seat in front of him, hooked his arm around Parker's head from behind, pulled Parker's head over the back of the seat, and began choking Parker with his arm. Eventually, Johns released Parker, thinking that Parker was dead. At some point, Diggs, who was sitting next to Parker, got up from his seat and moved to a vacant seat across the aisle, leaving the space next to Parker empty. Although it was a violation of policy for inmates to get up and move around the bus, none of five correctional officers took any action. After the initial choking, Parker started to move and snore or breathe heavily. Johns got up, moved into the seat next to Parker (which had been vacated by Diggs), and began choking Parker again. During the attack, Johns pulled down on Parker's head while Parker tried to push up, and Johns held Parker's head while turning his body toward the aisle of the bus, "trying to snap [Parker's] neck off." Johns said, among other things, "this is what I do best." Johns cut Parker's neck with a razor blade that had been smuggled onto the bus, and Parker yelled loudly. After the second round of choking, Johns stuffed Parker's limp body between the two seats. There was blood on top of the back of the seat and Johns was covered in a large amount of blood. This brutal two-part attack occurred approximately seven and one-quarter feet from where Cooper was seated in the rear elevated cage, yet Cooper — who was required to be "alert and observant at all times" — claimed not to have witnessed the occurrence.
Patrick Cook ("Cook"), an inmate who was sitting in the last seat on the left-hand side of the bus directly in front of Scott and Cooper, testified at a motions hearing in the criminal case against Johns for Parker's murder that he could see the attack. Excerpts of the transcript of Cook's testimony, admitted into evidence at trial, provided the following description of the murder:
In an interview with law enforcement officers one week after the murder, Johns confessed to the murder; his confession corroborated Cook's account of the murder and excerpts of the interview were admitted into evidence. According to Johns, he choked Parker with his arm, but let Parker go because he thought Parker was dead. Johns acknowledged that when he started choking Parker, Parker tried to yell for help, but "[i]t was pointless." Johns heard Parker snoring or breathing heavily, and he "went around[,]" and cut Parker's neck with a razor. At that point, Parker "yelled real loud[.]" Johns held Parker's head in his arm and was holding Parker while turning his body toward the aisle, "trying to snap [Parker's] neck off." According to Johns, during the attack, Parker tried to wiggle around and "push up" while he was "pulling down[.]" Johns
In an expert witness report, Dr. John E. Adams described the method in which Johns accomplished Parker's murder:
In contrast to Cook's testimony, all five correctional officers — including Cooper, who was approximately seven feet from where the attack occurred — alleged that they did not see Johns's attack on Parker.
Scott, who was sitting in the rear elevated cage next to Cooper, testified as follows. Scott saw Johns move to the seat in front of him. Scott knew that inmates were not allowed to change seats, but did not think that he could do anything about it. Scott saw Johns lean towards the window, but could not see what Johns was doing. Scott used the bus telephone to contact Generette, who was at the front of the bus. Scott, Cooper, and Generette shone their flashlights, but Scott still could not see what Johns was doing. Although he could not see anything, Scott told Generette that the officers should "go into the back [of the bus] as a team" when they arrived at Supermax "[b]ecause [he] didn't know if the inmates back there were planning something or if they were already doing something in the back." At a deposition, excerpts of which were read to the jury, Scott testified that he could not "remember what [Cooper] was doing" prior to Johns standing up, but stated that Cooper "might have been eating" or "could have been" sleeping.
Generette testified as follows. Generette was sitting in the front of the bus. Generette received a call from Scott on the bus telephone telling him that Johns had gotten up and moved around. Generette had Gaither turn on the bus's lights. Generette saw Johns sitting and looking up at the ceiling. According to Generette, once the officers "found out that something might have happened [they] speeded up the process." Indeed, Generette acknowledged later telling the internal investigator that "we just put the pedal to the metal and we tried to get to [Supermax] as fast as we could."
Gaither, the driver, testified that during the drive back to Supermax, he received a message from Generette to turn the bus's lights on because "Scott said he saw something going on in the back of the" bus. Gaither turned the lights on, but Generette said that he could not see anything, and Gaither turned the lights back off. Gaither then "picked the pace up a little bit" and continued driving to Supermax.
Cooper, who was seated next to Scott in the rear elevated cage and who was the Officer in Charge during that trip, testified that he did not see anything unusual and was unable to explain why he did not see
On cross-examination, Cooper was questioned about his observations on the bus ride, and the following colloquy occurred:
The bus proceeded to Supermax without stopping or contacting any law enforcement agency for assistance. The bus arrived at Supermax at approximately 4:03 a.m. Once there, Cooper collected and secured the officers' weapons, and Gaither called the inmates off the bus individually by name, beginning with the Supermax inmates. Diggs and Folk were called and exited the bus. When Johns, the third inmate called, got out of his seat, the officers saw a large amount of blood on Johns's shirt and a cut on Johns's arm. According to Generette, Johns was "covered in blood[,]" with "blood on his shirt, on his arm sleeves." When Parker's name was then called, Parker failed to respond. The officers entered the bus, saw blood on Parker's seat,
As a result of Parker's death, the DPSCS Internal Investigation Unit ("IIU") launched an investigation. The investigation revealed that the officers did not follow appropriate procedures in transporting the inmates on the bus. For example, Cooper, as the Officer in Charge, should have had keys to the rear passenger compartment so that he and Scott could enter in the event of an emergency. Cooper, as the Officer in Charge, should have sat in the front of the bus instead of in the rear elevated cage, and Cooper should have notified his superiors of any problems during transport. Several of the bus's interior lights were burned out and a two-way radio was not working. Johns's three-point restraints were not properly secured, and the officers permitted Diggs and Johns to move about on the bus. Cooper knew that the correctional officers had unauthorized personal cell phones on the bus, but did not confiscate the cell phones or report the infractions; such contraband items would have distracted the officers from maintaining direct observation of the inmates on the bus.
The IIU reenacted the attack under three lighting conditions: (1) with all of the interior bus lights turned off; (2) with three overhead interior bus lights turned on, two in the front and one in the rear;
As a result of IIU's investigation, Gaither and Generette were officially reprimanded, and Generette was suspended for five days without pay. Surgeon and Scott were both terminated from employment, and their terminations were upheld on appeal. Cooper, like Surgeon and Scott, was to be terminated, but elected to retire instead; accordingly, Cooper did not appeal his notice of termination. Cooper's notice of termination was admitted into evidence at trial.
The jury returned verdicts in Generette's favor, finding that he had not been negligent, and in Respondents' favor against Cooper, Scott, Surgeon, Gaither, and the State. The jury found Scott, Surgeon, and Gaither were negligent; that Cooper was grossly negligent; and that Scott's, Surgeon's, and Gaither's negligence, and Cooper's gross negligence, were the proximate causes of Parker's death. The jury awarded $10,000,000 in non-economic damages to Parker's estate, $1,000,000 in non-economic damages to Parker's father, $7,500,000 in non-economic damages to Parker's mother, and $15,000 in funeral expenses.
Cooper, Gaither, Scott, and Surgeon filed a motion, seeking judgment notwithstanding the verdict as to the jury's finding that Cooper had been grossly negligent, and judgment notwithstanding the verdict as to the liability of the individual correctional officers. The circuit court granted the motion for judgment notwithstanding the verdict as to the correctional officers by: (1) striking the jury's finding of gross negligence as to Cooper and ordering that a finding of negligence be entered; and (2) determining that the correctional officers were immune from liability "under both Public Official Immunity and the" MTCA.
Respondents and the State appealed, and the Court of Special Appeals affirmed in part and vacated in part the judgments of the circuit court. See Rodriguez v. State, 218 Md.App. 573, 98 A.3d 376 (2014). Specifically, the Court of Special Appeals held that the circuit court erred in striking the jury's finding of Cooper's gross negligence and in concluding that Cooper was immune from liability, stating:
Rodriguez, 218 Md.App. at 580-81, 98 A.3d at 380.
Cooper filed a petition for a writ of certiorari, which this Court granted. See Cooper v. Rodriguez, 441 Md. 61, 105 A.3d 489 (2014).
Cooper contends that the circuit court was correct in striking the jury's finding that his conduct constituted gross negligence. Essentially, Cooper argues that there was no evidence that he intentionally failed to perform a duty or that he exhibited a reckless disregard for Parker's life. Cooper asserts that he had no reason to believe that Johns posed a danger to Parker or that he intentionally disregarded danger to Parker.
Respondents counter that there was "overwhelming evidence" to support the jury's finding that Cooper was grossly negligent. According to Respondents, the evidence demonstrated that Cooper was aware of Johns's attack on Parker, yet intentionally failed to perform his duty, as the Officer in Charge, to protect Parker. Respondents assert that whether Cooper had prior notice of Johns's propensity for violence is of no consequence because, once Johns began to attack and choke Parker only seven feet away from Cooper, it was grossly negligent for Cooper not to intervene despite having the duty to do so.
"An appellate court reviews the trial court's decision to allow or deny judgment or [judgment notwithstanding the verdict] to determine whether it was legally correct, while viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party, and determining whether the facts and circumstances only permit one inference with regard to the issue presented." Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503, 16 A.3d 159, 163 (2011) (citations, brackets, and internal quotation marks omitted). See also Bradford v. Jai Med. Sys. Managed Care Orgs., Inc., 439 Md. 2, 15, 93 A.3d 697, 705 (2014) ("In reviewing a trial court's denial of a motion for judgment notwithstanding the verdict, the appellate court considers whether there is any evidence adduced, however slight[,] from which reasonable jurors, applying the appropriate standard of proof, could find in favor of the plaintiff on the claims presented." (Citation, internal quotation marks, and ellipses omitted)). "[I]f the nonmoving party offers competent evidence that rises above speculation, hypothesis, and conjecture, the [judgment notwithstanding the verdict] should be denied." Barnes v. Greater Balt. Med. Ctr., Inc., 210 Md.App. 457, 480, 63 A.3d 620, 633-34 (2013) (citations omitted).
"[G]enerally[,] under common law, the State enjoys sovereign immunity and is thus protected from suit for both ordinary torts and State constitutional torts. The
SG § 12-104. SG § 12-105, concerning immunity of State personnel, provides: "State personnel shall have the immunity from liability described under § 5-522(b) of the Courts and Judicial Proceedings Article." Md. Code Ann., Cts. & Jud. Proc. (1973, 2013 Repl. Vol.) ("CJP") § 5-522(a) and (b), in turn, provide:
In Ford, 149 Md.App. at 120, 814 A.2d at 134, writing for the Court of Special Appeals, Judge Greene explained that, when the above statutes are read in concert, they "clearly establish[] that a party can bring a viable tort action against the State when the tort was committed by a State employee acting within the scope of his or her employment and without malice or gross negligence." Consistently, the MTCA "provides that a State employee acting within his or her scope of employment and without malice or gross negligence is immune from suit." Id. at 120, 814 A.2d at 134. If "the State employee has acted with malice or gross negligence,... the State is immune from suit and the injured party may only bring a viable tort claim against the State employee." Id. at 120-21, 814 A.2d at 134.
In Barbre, 402 Md. at 187, 935 A.2d at 717, this Court described gross negligence as follows:
(Citations, emphasis, and internal quotation marks omitted).
"Whether or not gross negligence exists necessarily depends on the facts and circumstances in each case[,]" and "is usually a question for the jury and is a question of law only when reasonable [people] could not differ as to the rational conclusion to be reached." Romanesk v. Rose, 248 Md. 420, 423, 237 A.2d 12, 14 (1968) (citations omitted). "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 Cnty. Dep't of Social Servs., 384 Md. 213, 229, 862 A.2d 1026, 1034 (2004) (citation and internal quotation marks omitted).
In Barbre, 402 Md. at 190, 163, 935 A.2d at 718-19, 702-03, this Court held that an unarmed plaintiff had "presented sufficient facts to demonstrate gross negligence on the part of" the defendant, a deputy sheriff who ordered the unarmed plaintiff to raise his hands, saw the plaintiff comply, approached with his gun drawn, and shot the plaintiff in the neck. Although we held that the trial court had erred in granting summary judgment in the defendant's favor, we observed: "[T]he evidence at trial may show that [the defendant] was acting without malice or gross negligence. If it does, [the defendant] would be entitled to immunity granted by the MTCA. On the other hand, the evidence may show that [the defendant] was acting either maliciously, or grossly negligent, so that he would not be entitled to immunity under the MTCA." Id. at 190, 935 A.2d at 719.
Here, in complete agreement with the Court of Special Appeals, we conclude that the circuit court erred in striking the jury's finding that Cooper acted with gross negligence. The record is replete with evidence demonstrating that Cooper was grossly negligent. It is an unfortunate reality that prison can be dangerous for both inmates and correctional officers. In this instance, however, the circumstances demonstrate that Parker's murder was accomplished in the face of Cooper's total disregard for his duty as a correctional officer and indifference to the consequences to Parker.
Although any murder is abhorrent, this one was particularly heinous. Cooper, the officer responsible for protecting Parker and all of the inmates on the bus, sat several feet away while Parker was systematically choked to death and had his throat cut; and Cooper took no action whatsoever. The sequence of events is well established in the record. Johns, who initially sat behind Parker, rose, pulled Parker's head back up over the seat between them, and began choking Parker. Cooper did not respond to this occurrence. After "a minute[,]" believing that he had killed Parker, Johns let him go. Diggs, who was sitting next to Parker, moved to another seat. Cooper did not respond to this event. Parker began making sounds and moving; Johns moved into the seat next to Parker. Cooper did not respond. Johns began choking Parker again, twisting Parker's neck while pulling down and Parker pulled up. Cooper did not respond. Johns cut Parker's throat and Parker yelled out. Cooper took no action.
Although we are loath to belabor the unfortunate circumstances of Parker's death, the record overflows with facts sufficient to support the finding of gross negligence as to Cooper. Cooper failed to follow basic procedures. Expert testimony established that, as the Officer in Charge, Cooper was responsible for ensuring that the three-point restraints placed on inmates were properly secured. It is undisputed that Surgeon improperly secured the three-point restraint device on Johns, and Cooper did not check the restraints. Next, although according to DPSCS policy, Supermax inmates such as Johns and Parker were to ride in the protective custody cages located at the front of the bus, or, absent space in a protective custody cage, were to ride in the front of the bus, Cooper violated DPSCS policy by allowing Supermax inmates Johns, Folk, Parker, and Diggs to sit on the two benches at the rear of the bus. According to Cooper, he "did the best [he] could with what [he] had" concerning the seating arrangements on the bus. And, as the Officer in Charge, Cooper was required to sit at the front of the bus instead of in the rear elevated cage.
Evidence adduced at trial leads to the inescapable conclusion that Cooper was in a position to see and hear the murder. Sitting in the rear elevated cage, Cooper was seven and one-quarter feet from where Parker was at the time of Johns's attack, and was facing Johns and Parker when the attack occurred. Cook, an inmate on the bus who was seated in the last seat on the left-hand side of the bus directly in front of Cooper (in other words, in the seat across the aisle from where Johns originally sat), saw and heard Johns's attack on Parker. Johns confessed to the murder and stated that, when he started choking Parker, Parker "tried to yell for help[,]" and that, when he cut Parker's neck with the razor blade, Parker "yelled real loud[.]" Scott, who was sitting next to Cooper in the rear elevated cage, was so concerned that suspicious activity was occurring when he saw Johns get up and move around that Scott used the bus's telephone to contact Generette at the front of the bus.
For his part, Cooper testified that he did not see or hear anything unusual, and that he did not see Johns changing seats. Nonetheless, the officers on the bus were sufficiently concerned that something unusual was occurring that they formulated a plan and sped up. Generette testified that, once the officers "found out something might have happened [they] speeded up the process" and "put the pedal to the metal and [] tried to get to [Supermax] as fast as [they] could." Scott testified that he told Generette that the officers should "go into the back [of the bus] as a team" when they arrived at Supermax "[b]ecause [he] didn't know if the inmates back there were planning something of if they were already doing something in the back."
IIU's investigation confirmed that an officer in Cooper's location would have been able to see the attack. IIU's reenactments of the events of February 2, 2005, demonstrated that, even with all of the bus's lights turned off, a person seated in the rear elevated cage could see Johns stand up and move to the seat in front of him, and that the person would have been able to see Johns's facial features. Another investigator testified that, under each lighting condition and seated in the rear
When viewed in its totality and in the light most favorable to Respondents, the evidence was sufficient to support the conclusion that Cooper, as the Officer in Charge, failed to fulfill the duty to ensure Parker's safety and acted with reckless disregard for Parker's life. Indeed, the evidence was sufficient to support the conclusion that Cooper, who claimed to have not seen or heard the attack occurring right in front of him, and who testified that he was unaware of several policies meant to ensure inmates' safety, was "so utterly indifferent to the rights of others that he act[ed] as if such rights did not exist." Barbre, 402 Md. at 187, 935 A.2d at 717 (citations omitted).
Because Cooper acted with gross negligence, he is not entitled to immunity under the MTCA. See SG § 12-105 ("State personnel shall have the immunity from liability described under [CJP] § 5-522(b)[.]"); CJP § 5-522(b) ("State personnel ... are immune from suit ... and from liability in tort for a tortious act or omission that ... is made without malice or gross negligence[.]"); Ford, 149 Md.App. at 120, 814 A.2d at 134 (The MTCA "provides that a State employee acting within his or her scope of employment and without malice or gross negligence is immune from suit.").
Cooper primarily contends that the Court of Special Appeals erred in concluding that the special relationship exception negates public official immunity.
An appellate court reviews without deference a trial court's application of common law public official immunity. See, e.g., Livesay v. Balt. Cnty., 384 Md. 1, 9-10, 862 A.2d 33, 38 (2004).
Common law public official immunity applies to "public officials (as opposed to mere employees)".
Here, there can be no reasonable dispute that, at the time of the incident, Cooper was a public official, acting within the scope of his employment, and that he was authorized to use his discretion in the furtherance of his employment. It is undisputed that Cooper did not commit an intentional tort or act with malice. Thus, Cooper is seemingly entitled to common law public official immunity. Before concluding as much, though, we must address two issues related to Cooper's entitlement to common law public official immunity — (1) whether the "special relationship exception" is a limitation on common law public official immunity; and (2) whether gross negligence prevents the application of common law public official immunity. We conclude that the special relationship exception, rather than being a limitation on common law public official immunity, is a limitation on the public duty doctrine; in other words, the existence of a special relationship does not prevent the application of common law public official immunity. Nonetheless, we hold that the Court of Special Appeals was correct in concluding that Cooper was not entitled to common law public official immunity, not because Cooper owed a duty arising out of a special relationship with the inmates in his custody, but rather because entitlement to common law public official immunity is limited by gross negligence; i.e., gross negligence is an exception to common law public official immunity. Thus, Cooper, having acted with gross negligence, is not entitled to immunity under common law public official immunity. We explain.
Common law public official immunity is distinct from the public duty doctrine. Under the public duty doctrine, where a statute or common law principle imposes upon a public entity a duty to the public as a whole, as opposed to a duty to a particular group of people, "the duty is not [] enforceable in tort." Muthukumarana v. Montgomery Cnty., 370 Md. 447, 486, 805 A.2d 372, 395 (2002) (citation and internal quotation marks omitted). As such, under the public duty doctrine, law enforcement "officers ordinarily may not be held liable for failure to protect specific persons because they owe no duty, as the first element of a negligence actions requires, to those individuals." Id. at 486-87, 805 A.2d at 395 (footnote omitted). See also Pace v. State, 425 Md. 145, 157, 38 A.3d 418, 425 (2012) ("A frequently cited example is that the duty owed by [law enforcement] by virtue of their positions as officers is a duty to protect the public, and is thereby not enforceable in tort by a member of the public claiming that [law enforcement] failed to protect [that person], specifically." (Citations and internal quotation marks omitted)).
The public duty doctrine has certain limitations, including the "special relationship exception." In Muthukumarana, 370 Md. at 487-88, 805 A.2d at 396, this Court explained:
(Citations, brackets, ellipses, footnote, and internal quotation marks omitted) (emphasis in original).
In Williams v. Mayor & City Council of Balt., 359 Md. 101, 112-13, 753 A.2d 41, 47 (2000), this Court held that there was a genuine dispute of material fact as to whether a law enforcement officer, a victim of domestic violence, and the victim's mother were in a special relationship. The officer responded to the victim's home; the victim's mother was also present. Id. at 109, 753 A.2d at 45. The officer left the home to retrieve a camera to photograph the victim's injuries. Id. at 110-11, 753 A.2d at 45-46. Before the officer returned, the suspect returned and shot the victim and her mother. Id. at 110, 753 A.2d at 46.
The trial court granted summary judgment in the officer's favor. Id. at 112, 753 A.2d at 47. This Court held that the trial court erred in doing so, stating:
Id. at 112-13, 753 A.2d at 47.
We reiterated that "a claim for negligence will only stand if [the o]fficer [] actually owed [the victim and her mother] a legal duty to protect, which he breached." Id. at 142, 753 A.2d at 63. We explained:
Id. at 143-44, 753 A.2d at 64 (emphasis, brackets, and ellipses omitted). We set forth the "general standard" governing the "special relationship" doctrine, stating that "for a special relationship between [law enforcement] officer and victim to be found, it must be shown that the local government or the [law enforcement] officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim's specific reliance upon the [law enforcement] protection." Id. at 150, 753 A.2d at 67-68 (citation omitted).
This Court concluded:
Id. at 151, 753 A.2d at 68.
In Lovelace v. Anderson, 366 Md. 690, 705, 785 A.2d 726, 734 (2001), in discussing the requirements for application of common law public official immunity, we noted that "the defense of public official immunity generally applies only to negligent acts[,]" as opposed to intentional or malicious conduct. In noting that several other limitations to public official immunity existed, we stated:
Lovelace, 366 Md. at 706, 785 A.2d at 735. In Lovelace, id. at 714, 785 A.2d at 739, we concluded that the officer was not entitled to public official immunity because he was acting in a private capacity, and not as a public official engaged in acts in furtherance of his official duties.
A careful reading of the relevant case law makes clear that the special relationship exception is a limitation on the public duty doctrine and not a limitation on common law public official immunity. In short, Williams, 359 Md. 101, 753 A.2d 41, does not stand for the proposition that the special relationship exception is a limitation on common law public official immunity. The discussion in Williams of the special relationship exception is set forth in the context of the public duty doctrine, not common law public official immunity. In Williams, id. at 143-44, 753 A.2d at 64, we explained in detail that this Court recognizes the special relationship rule in the context of duties owed by law enforcement officers by virtue of their roles as officers, and then stated that, "[i]n the presence of a `special relationship[,]' liability may lie[,] and immunity may not survive. Thus, the public duty doctrine is not an absolute bar to recovery." (Citations, brackets, ellipses, and internal quotation marks omitted). In Williams, id. at 140-41, 753 A.2d at 62, when describing common law public official immunity, we stated that a government representative is entitled to public official immunity if and only if three requirements
Similarly, in Lovelace, we did not hold that the special relationship exception applies to common law public official immunity. In Lovelace, 366 Md. at 714, 785 A.2d at 739, this Court held that the off-duty officer was not entitled to common law public official immunity because he was serving in a private capacity and not an official capacity; thus, any discussion of the special relationship exception was dicta. Additionally, in Lovelace, id. at 706-07, 785 A.2d at 735, we repeated the same language contained in Williams and did not add to the analysis of the special relationship exception or common law public official immunity. Furthermore, in Lovelace, id. at 706, 785 A.2d at 735, this Court's observation — that the special relationship exception is "[a]nother limitation to a police officer's defense of public official immunity" — did not reflect the holding in Williams. As explained above, in Williams, this Court did not hold that the special relationship exception is a limitation to common law public official immunity. Rather, in Williams, 359 Md. at 144, 753 A.2d at 64, we held that the presence of a special relationship is an exception to immunity under the public duty doctrine. (Citation omitted). In other words, when read together, it is clear that, in Williams and Lovelace, this Court addressed the special relationship exception in the context of the public duty doctrine, not common law public official immunity.
Although neither this Court nor the Court of Special Appeals has expressly described the distinction between common law public official immunity and the public duty doctrine, we find instructive the Supreme Court of West Virginia's recent discussion on the topic. Specifically, in W.Va. Reg'l Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d 751, 776-77 (2014), the Supreme Court of West Virginia stated:
(Citations, paragraph break, brackets, and internal quotation marks omitted) (emphasis in original).
We know of no case involving common law public official immunity in which a Maryland appellate court — except for the decision of the Court of Special Appeals in this case, see Rodriguez, 218 Md.App. at 622-29, 98 A.3d at 405-09 — held that the special relationship exception is a limitation on common law public official immunity. Plainly put, the special relationship exception does not apply to a determination of whether a public official is entitled to common law public official immunity. Thus, the Court of Special Appeals
Whether gross negligence serves as an exception to common law public official immunity is a matter of first impression. On this issue, this Court's most relevant statement is that common law public official immunity applies to "public officials (as opposed to mere employees) who perform
(Citations and paragraph breaks omitted). Similarly, in Callahan v. Bowers, 131 Md.App. 163, 175-76, 748 A.2d 499, 506, vacated on other grounds, 359 Md. 395, 754 A.2d 388 (2000) (per curiam), in determining that a law enforcement officer was entitled to public official immunity, the Court of Special Appeals explained:
(Citations omitted). And, in Artis v. Cyphers, 100 Md.App. 633, 653, 642 A.2d 298, 308, aff'd, 336 Md. 561, 649 A.2d 838 (1994) (per curiam), in commenting on a medic's contention that he was entitled to common law public official immunity, the Court of Special Appeals, stated:
In each of these cases, the Court of Special Appeals acknowledged or implied that gross negligence is an exception to common law public official immunity. Although the Court of Special Appeals did not state as much, such an acknowledgement may be due, in part, to Article 19 of the Maryland Declaration of Rights, and
Article 19 guarantees a remedy for an injury to a person or property by stating: "[E]very man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land." In Lee v. Cline, 384 Md. 245, 264, 863 A.2d 297, 308 (2004), this Court discussed Article 19 in the context of the MTCA and common law public official immunity, stating:
(Citations and internal quotation marks omitted). This Court determined that the MTCA did not run afoul of Article 19, explaining:
Id. at 262, 863 A.2d at 307. This Court observed that, in contrast to the MTCA, there are "strict limitations upon public official immunity[,]" and stated:
Id. at 261-62, 863 A.2d at 307 (footnote omitted).
After careful review of the relevant principles and authorities, in accordance with the dictates of Article 19, we hold that gross negligence is an exception to common law public official immunity; in other words, if a public official's actions are grossly negligent, the public official is not entitled to common law public official immunity. To hold otherwise would effectively leave a void in liability, leaving plaintiffs, such as Respondents, without a remedy for a public official's gross negligence. We would be remiss to leave Maryland common law in this position.
To illustrate the void in liability, we created the below table:
Negligence Malice Gross Negligence
MTCA State liable State immune State immune
Official immune Official liable Official liable
Common Law Public Official Immunity Official immune Official liable Official immune
Result State liable Official liable No one liable
We are unpersuaded by Cooper's contention that Article 19 does not inform the application of gross negligence as an exception to common law public official immunity, and that there is no void in liability because the State has already paid Respondents for the other correctional officers' negligence. That the State has compensated Respondents for the negligence of Scott, Surgeon, and Gaither is of no consequence. The State's payment for liability for negligence of another does not account for Cooper's liability for gross negligence; liability for negligence and liability for gross negligence are not interchangeable.
Our holding that gross negligence is an exception to common law public official immunity is consistent with the reasoning underlying the MTCA. To be sure, common law public official immunity and immunity under the MTCA are distinct principles. As this Court explained in Lee, 384 Md. at 260-61, 863 A.2d at 306-07:
(Citations and some internal quotation marks omitted) (emphasis in original). Despite the distinction between immunity under the MTCA and common law public official immunity, it is entirely consistent with the MTCA to conclude that gross negligence is an exception to common law public official immunity. In Rios v. Montgomery Cnty., 386 Md. 104, 131 n. 13, 872 A.2d 1, 16 n. 13 (2005), this Court noted that "[t]he [MTCA] was enacted by the General Assembly in 1984 for the purpose of creating a remedy for individuals injured by tortious conduct attributable to the State. [T]he [MTCA] ... [was] designed to expand the individual's right to obtain remuneration for injury from the government[.]" (Citation omitted). Under the MTCA, the State waives its sovereign immunity in certain circumstances; "the State does not waive its sovereign immunity[, however,] for any tortious acts outside the scope of employment or when a `state personnel' acts with malice or gross negligence." Barbre, 402 Md. at 175, 935 A.2d at 710 (citations omitted). Thus, where the MTCA applies, either the State or State personnel is liable for the State personnel's tortious conduct, depending on the nature of the tortious conduct.
One of the core principles of the MTCA is that it provides the State immunity for the gross negligence of State personnel, while allowing State personnel to be liable for gross negligence. The MTCA broadly defines "State personnel," in relevant part, as "a State employee or official who is paid in whole or in part by the Central Payroll Bureau in the Office of the Comptroller of the Treasury[.]" SG § 12-101(a)(1). The MTCA also lists specific examples of those who qualify as "State personnel" for purposes of the MTCA. See SG § 12-101(a)(2)-(14). By contrast, whether an individual qualifies as a "public official" for purposes of common law public official immunity has been defined narrowly through case law. In D'Aoust v. Diamond, 424 Md. 549, 587-88, 36 A.3d 941, 963 (2012), we noted the following "factors that are useful in determining whether an individual is a public official":
(Brackets, citations, footnote, internal quotation marks, and some paragraph breaks omitted). Thus, for example, law enforcement "officers are public officials" for purposes of common law public official immunity. Smith v. Danielczyk, 400 Md. 98, 128, 928 A.2d 795, 813 (2007) (citations omitted). Correctional officers are also public officials. See Livesay, 384 Md. at 12-13, 862 A.2d at 39. Court-appointed trustees, however, are not public officials.
Stated otherwise, it would be unreasonable to distinguish between State personnel and public officials for purposes of liability for gross negligence. Individuals who are State personnel but not public officials are liable for gross negligence under the MTCA. But, were we to hold otherwise, individuals who are both State personnel and public officials would not be liable for gross negligence. We discern no logical basis for shielding public officials from liability for gross negligence, but requiring State personnel to face liability for gross negligence.
The MTCA's legislative history supports our conclusion. In 1984, the MTCA was enacted as part of the then-new State Government Article. See 1984 Md. Laws 979, 1417-25 (Ch. 284, S.B. 50). At that time, SG § 12-104(c), concerning exclusions and limitations on the State's waiver of immunity, contained no mention of not waiving immunity for a State employee's gross negligence. See id. at 1420. SG § 12-107(d) provided, though, that "State personnel who act[ed] within the scope of the State personnel's public duties and without malice and gross negligence [was] not liable as an individual for any damages that result[ed] from tortious conduct for which immunity [was] waived under" the MTCA Id. at 1424 (capitalization omitted). The following year, the General Assembly amended the MTCA. See 1985 Md. Laws 2682, 2688 (Ch. 537, S.B. 380). One of Senate Bill 380's purposes was to "provid[e] that sovereign immunity is not waived for certain items" and to "provid[e] that State personnel are immune from certain tort suits[.]" Id. at 2682. To that end, one amendment to SG § 12-104 included adding a provision stating that "[i]mmunity is not waived under this section for ... any tortious act or omission of State personnel that ... is made with malice or gross negligence[.]" Id. at 2684 (capitalization and paragraph breaks omitted). And, the provision concerning State personnel was moved from SG § 12-107(d) to SG § 12-105. See id. at 2685. Senate Bill 380's bill file included an "Explanatory Statement" prepared by the Treasurer, which stated, in relevant part:
(Paragraph breaks omitted). Senate Bill 380's bill file also contained a "Bill Analysis" by the Senate Judicial Proceedings Committee, which noted that Senate Bill 380 "establishes the State's immunity to liability for torts of State employees acting outside the scope of their duties or with malice or gross negligence." The Senate Judicial Proceedings Committee noted, though, that Senate Bill 380 "retains the
The rationale underlying the MTCA immunity provision applies equally to common law public official immunity. It would be contrary to both the purpose of Article 19 and the logic of the MTCA to conclude that common law public official immunity shields public officials from liability for their gross negligence, leaving plaintiffs effectively without a remedy for a public official's gross negligence. Already under common law public official immunity, public officials are not shielded from liability for their intentional torts or malicious acts. We decline to construe common law public official immunity in such a way that it is inconsistent with Article 19 and leaves those injured by the gross negligence of a public official without a remedy.
Our holding is consistent with the manner in which other jurisdictions have addressed gross negligence through various tort claims acts, namely, someone — either the governmental entity or the government official — is liable for gross negligence under the circumstances set forth in the jurisdictions' respective tort claims acts. In other words, other jurisdictions have expressed a desire for liability to exist for gross negligence. See, e.g., J.L. v. Barnes, 33 A.3d 902, 914 (Del.Super.Ct.2011) ("When State actors or employees are sued in their individual capacities, they are exempt from liability ... pursuant to the [State Tort Claims Act] when: (1) the alleged act or failure to act arises out of and in connection with the performance of official duties involving the exercise of discretion; (2) the act or failure to act was done (or not done) in good faith; and (3) the act or failure to act was done without gross negligence. A plaintiff need only prove the absence of one of these elements to defeat qualified immunity." (Footnotes omitted)); Reilly v. Vadlamudi, 680 F.3d 617, 627 (6th Cir.2012) ("Michigan law offers government employees immunity from tort liability under certain circumstances. Mich. Comp. Laws § 691.1407(2). Defendants are immune from liability if ... their `conduct did not amount to gross negligence that was the proximate cause of the injury or damage.' Id." (Brackets omitted)); Jackson v. S.C. Dep't of Corr., 301 S.C. 125, 390 S.E.2d 467, 468 (Ct.App.1989) (per curiam) ("[T]he Tort Claims Act states: [`]The governmental entity is not liable for a loss resulting from responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any ..., inmate, ..., except when the responsibility or duty is exercised in a grossly negligent manner.[`] Therefore if the Department [of Corrections] was grossly negligent ..., its immunity from liability under the Act is waived." (Some ellipses in original) (paragraph breaks omitted)); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex.2004) ("The Tort Claims Act
Because public official immunity is a common law doctrine, it is entirely appropriate for this Court to define its contours. In Lee v. Cline, 384 Md. 245, 261, 863 A.2d 297, 307 (2004), we stated: "The principle of public official immunity is not, and has never been, tied to a waiver of sovereign or governmental immunity." In other words, although under the MTCA (and in other instances), the General Assembly has expressly waived sovereign or governmental immunity — and it was appropriate for the General Assembly to have acted in this regard — immunity pursuant to common law public official immunity is not a matter that requires action by the General Assembly. Instead, "this Court has authority under the Maryland Constitution to change the common law." Bowden v. Caldor, Inc., 350 Md. 4, 27, 710 A.2d 267, 278 (1998) (citations omitted). See also Telnikoff v. Matusevitch, 347 Md. 561, 593 n. 29, 702 A.2d 230, 246 n. 29 (1997); Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 469, 601 A.2d 633, 657 (1992) ("By changing this standard of proof ..., we have not overruled any particular Maryland cases on the ground that they were wrongly decided at the time. Instead, we have exercised our constitutional authority to change the common law." (Citations omitted)).
This Court has noted that "the common law is not static. Its life and heart is its dynamism — its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems. . . . The common law is, therefore, subject to modification by judicial decision[.]" Warr v. JMGM Grp., LLC, 433 Md. 170, 250, 70 A.3d 347, 395 (2013) (citation omitted). Although the General Assembly is the appropriate entity to waive sovereign immunity under the MTCA, common law public official immunity is a principle developed through case law by the Courts of this State. Thus, the General Assembly would not be charged with determining whether gross negligence is an exception to common law public official immunity absent codification of public official immunity.
In sum, we conclude that the special relationship exception is a limitation on the public duty doctrine, not common law public official immunity; thus, the existence of a special relationship, or lack thereof, does not govern the determination of whether a public official is entitled to common law public official immunity. We hold that gross negligence is an exception to common law public official immunity. The Court of Special Appeals was correct in holding that Cooper was not entitled to common law public official immunity, not because Cooper owed a duty arising out of a special relationship with the inmates in his custody, but instead because entitlement to common law public official immunity is limited by gross negligence. Accordingly, here, because Cooper acted with gross negligence, Cooper is not entitled to common law public official immunity.
