TIMOTHY BROOKS, ET AL. v. ROGER JENKINS, ET UX.
No. 1499
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
December 16, 2014
September Term, 2012; REPORTED;
REPORTED
Filed: December 16, 2014
* Judge Eldridge participated in the argument of this case but did not participate in the decision.
This case began as a seemingly simple arrest warrant, but went very wrong in the execution. Frederick County Sheriff deputies Timothy Brooks and Nathan Rector (the “Deputies“)1 went to the home of
The Jenkinses filed a complaint in the Circuit Court for Frederick County seeking damages, on a number of theories, for the wounding of the dog and the officers’ alleged unlawful entry into their home. The counts in the complaint contain overlapping claims alleging both constitutional and common-law causes of action. After a trial, both the Jenkinses prevailed against both of the Deputies and the jury awarded damages totaling $620,000 (reduced, after remittitur, to $607,500). The Deputies appeal.
We conclude that the trial court properly permitted the Jenkinses’ constitutional tort claims arising from the dog shooting to go to the jury and properly declined to apply
I. BACKGROUND
A. Events at the Jenkins Home
On January 9, 2010, the Deputies went to the Jenkinses’ home to serve a writ of body attachment on their eighteen-year-old son, Jared, in connection with an incident that took place while Jared was a minor. Deputy Brooks left his patrol car running, so the camera inside it kept recording.2
Mr. Jenkins woke up at about 7:00 a.m. to hear Deputy Brooks “banging” on the door. When Deputy Brooks told him the purpose of his visit, Mr. Jenkins responded that he didn‘t know whether Jared had come home the night before, but that before they spoke further, he would move the barking dogs from the house to an outdoor kennel. Mr. Jenkins walked out the rear of the house, apparently expecting the dogs to walk with him out the door, across the driveway, and to the garage. He headed to the back door with Brandi ahead of him by about six to eight feet. He did not put her on a leash; he explained in response to his counsel‘s question at trial that it did not occur to him that Brandi might act aggressively toward any officer:
It certainly didn‘t. If I . . . thought that . . . there was going to be any issues I
would not have let my dog just . . . walk out the door as I did, and there was no concern of mine that my dog was going to be shot, for one, or there‘s going to be [any] aggression.
When Mr. Jenkins saw Brandi turn the corner ahead of him, he called her to come. But as he walked up the side of the house, he heard a gunshot, and as he continued up the driveway, he realized that Deputy Brooks had shot Brandi. Mrs. Jenkins came out of the house and sat with Brandi while her husband went inside, got towels to put on Brandi, and called the vet.
Not surprisingly, Deputy Brooks‘s perspective differed greatly from Mr. Jenkins‘s.3 He testified that he backed away from Brandi, but she continued coming at him. Although Deputy Brooks agreed that the dog never got closer to him than three feet away, he testified that he believed that she was on the attack:
[T]he dog was . . . barking loudly and coming in . . . a pretty determined pace. It was the sound of this dog as well as the sound that he was making on the inside [of the house previously], and the aggressive and agitated nature when I had seen him on the inside so I took a couple steps back at that point to create distance in case that dog came around the corner, and . . . came after me.
In response, Deputy Brooks pulled his gun from the holster and fired it in the direction of Brandi‘s chest.
About three-and-a-half minutes elapsed from the time Deputy Brooks knocked on the front door until he shot Brandi. About eight minutes later, Mr. and Mrs. Jenkins left to take Brandi to the vet. Mr. Jenkins testified that before they left, he instructed the Deputies (in more colorful language) not to enter his house.
Deputy Brooks, on the other hand, testified that he heard no such instruction. After Mr. and Mrs. Jenkins left, the Deputies awaited the arrival of their supervisor, Corporal Michael Easterday. As they waited, though, they decided that they should go inside because they had not yet secured the area and they “potentially [had an] unaccounted [for] wanted person right here.” Deputy Rector went in and announced himself, and they located Jared behind a door. Corporal Easterday arrived, and a third deputy took Jared to patrol headquarters. Mr. and Mrs. Jenkins returned to the house during Brandi‘s surgery, and, according to Mr. Jenkins, “nothing seemed to be disturbed.” Mr. Jenkins offered detailed testimony about picking up Brandi the next day, tending to her injuries, and the effect the incident has had on his family.
B. Pleadings and trial (through defendants’ motions for judgment)
The Jenkinses filed suit in a twelve-count complaint on October 25, 2010. The following counts against Deputies Brooks and Rector survived pre-trial motions:
Count 2: Trespass to Property (for entry into the home)
Count 3: Trespass to Chattel (for shooting Brandi)
Count 5: Violation of
Count 6: Violation of
Count 7: Violation of
At trial, the Jenkinses called various members of the family to testify, along with Deputies Brooks and Rector. The veterinarian who treated Brandi also testified.
At the close of the Jenkinses’ case, the Deputies moved for judgment as a matter of law. They argued that Count 6 improperly sought recovery for the Deputies’ trespass into the Jenkins house under
well that the Jenkinses had failed to establish facts that would have permitted the jury to find that Deputy Brooks acted with gross negligence when he shot Brandi.
The court denied the motion as to both the trespass claims and to the claims arising from the shooting.6 The court likewise denied the State‘s motion for judgment with respect to the negligence claims. The defense did not present any witnesses. The jury deliberated for about four hours, then returned with a verdict that made the following findings and awards (which we have paraphrased from the long verdict form—the emphases are ours):
DEPUTY BROOKS
Liability
- Deputy Brooks “violated [the Jenkinses‘] State constitutional rights” by shooting Brandi, and acted with gross negligence but without actual malice. (Questions 1-3; Count 5)
- Deputy Brooks “committed a trespass to chattels by shooting” Brandi, and acted with gross negligence but without actual malice. (Questions 10-12; Count 3)
- Deputy Brooks “violated [the Jenkinses‘] State constitutional rights” by entering the home, but acted without gross negligence or actual malice. (Questions 4-6; Counts 6 & 7)
-
Deputy Brooks trespassed onto the Jenkinses’ property “by entry into the home,” and acted with gross negligence but without actual malice. (Questions 7-9; Count 2)
Damages
- For the shooting
- - to Roger Jenkins:
- $10,000 economic damages
- $100,000 non-economic damages
- - to Sandra Jenkins:
- $10,000 economic damages
- $100,000 non-economic damages
- For entry into the home
- - to Roger Jenkins:
- $100,000
- - to Sandra Jenkins:
- $100,000
DEPUTY RECTOR
Liability
- Deputy Rector “violated [the Jenkinses‘] State constitutional rights” by entering the home, but acted without gross negligence or actual malice. (Questions 18-20; Counts 6 & 7)
- Deputy Rector trespassed onto the Jenkinses’ property “by entry into the home,” and acted with gross negligence but without actual malice. (Questions 21-23; Count 2)
Damages
- For entry into the home
- - to Roger Jenkins:
- $100,000 non-economic damages
- - to Sandra Jenkins:
- $100,000 non-economic damages
C. Post-verdict
The Deputies moved for judgment notwithstanding the verdict or, alternatively for a new trial or remittitur, and argued six specific grounds: (1) the evidence was insufficient to support the jury‘s finding that Deputy Brooks acted with gross negligence in shooting Brandi; (2) the evidence was insufficient to support the jury‘s finding that the Deputies acted with gross negligence in entering the home, and therefore they were entitled to statutory immunity; (3) there was no basis on which to award non-economic damages for the shooting; (4) the $20,000 award for economic damages arising from the shooting exceeded the statutory cap for damages arising from injuries to pets; (5) the total award of $400,000 erroneously permitted “separate damages . . . against separate Defendants for a single event“; and (6) “all damages awarded were excessive.” They also claimed broadly that “deficiencies in the jury instructions and the verdict sheet . . . in the absence of j.n.o.v. or remittitur, can only be cured by a new trial.”
After a hearing, the court denied the requested relief except that the court applied
II. DISCUSSION
This case requires us to chart the often-fuzzy boundary between the Deputies’ undeniable right to stay safe as they discharge their duties, on the one hand, and the Jenkinses’ constitutional rights to be free in their home from excessive force and intrusion, on the other. That boundary
Jenkinses’ rights and the injuries they suffered (or, with regard to the trespass claims, didn‘t suffer) and the Deputies’ mental states at the time they acted. Brandi is not irrelevant, of course, but her injuries comprise a comparatively small portion of the overall award, and we hold that the Maryland pet tort statute
A. The Trial Court Properly Permitted The Jury To Consider Whether Deputy Brooks Was Grossly Negligent When He Shot Brandi.
Deputy Brooks argues first that the trial court improperly denied his motion for judgment with respect to the Jenkinses’ claim that he violated their constitutional rights (under Count 3) and committed a trespass to chattel (Count 5) when he shot Brandi. We examine “whether the evidence was legally sufficient to permit the judge, as a matter of law, to submit the case to the jury.” Starke v. Starke, 134 Md. App. 663, 677 (2000). That is, we ask: “[i]s there some evidence in the case, including all inferences that may permissibly be drawn therefrom, that, if believed and if given maximum weight, could logically establish all of the elements necessary to prove” the elements of the claim? Id. at 678-79. We view the evidence in the light most favorable to the prevailing party (here, the Jenkinses), and “the quantum of legally sufficient evidence needed to create a jury question is slight.” Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md. App. 321, 329, cert. denied, 427 Md. 65 (2012) (citation omitted); see also Espina v. Prince George‘s Cnty., 215 Md. App. 611, 655-56 (2013) (finding sufficient evidence to support a jury verdict of actual malice to preclude officer from invoking statutory immunity, where evidence showed that police officer attacked victim unprovoked, shooting and killing him when he was “unable to resist or fight back“), cert. granted, 438 Md. 142 (May 16, 2014).
Deputy Brooks argues that the evidence did not support a finding of gross negligence, and without that finding he was acting within the scope of his employment “throughout the event” and, therefore, entitled to statutory immunity under the Maryland Tort Claims Act (the “MTCA“). See generally
The Jenkinses see it differently. They identify numerous disputed factual issues about how Brandi approached Deputy Brooks and the surrounding environment, and they argue that the facts were sufficient for a jury to find him grossly negligent for opting to pull the trigger rather than adopting a less extreme course of action. As they see it, the evidence supported their version of events—from the testimony of the officers to the videotape of the confrontation—and justified submitting the case to the jury.
The MTCA did away with the principle of sovereign immunity in certain circumstances, Tollenger v. State, 199 Md. App. 586, 595 (2011), such
It might seem that gross negligence, the less egregious of the two standards, would be easier to describe, but over time courts have struggled to articulate a consistent definition. The best overarching statement of the principle comes from Barbre v. Pope, 402 Md. 157, 187 (2007), in which the Court of Appeals adopted language from a non-MTCA setting to define gross negligence in the context of the MTCA:
[G]ross negligence is “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 a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.”
Id. at 187 (emphasis added) (quoting Liscombe v. Potomac Edison Co., 303 Md. 619, 635 (1985)). The challenge, though, lies in translating this principle to different factual settings—and, for our purposes, in establishing a benchmark against which we can review the trial court‘s decision to send the question to the jury in the first place. We start by looking to the universe of cases that have found no gross negligence as a matter of law, and then compare them with those where a jury properly considered the question.
Boyer sits squarely in the “no-gross-negligence” camp. There, the Court of Appeals held that the plaintiff failed to allege facts supporting gross negligence in the context of the MTCA where the defendant, a state trooper, pursued a suspect at a high rate of speed through a congested area, and the suspect—whom the trooper believed to be intoxicated at the time—crashed into the back of another vehicle and killed two passengers. Id. at 578-79; see also Khawaja v. Mayor & City Council, City of Rockville, 89 Md. App. 314, 318-20 (1991) (holding that police sergeant‘s conduct “in deliberately not sounding the siren, while intentionally speeding through a red light with the [plaintiff‘s] automobile in view,” did not constitute gross negligence for purposes of immunity under local government tort claims act, because the plaintiff had to demonstrate a “reckless disregard for human life,” and not just reckless driving); Tatum v. Gigliotti, 80 Md. App. 559, 569 (1989) (holding in context of Good Samaritan statute that emergency medical technician‘s failure to properly treat asthma patient did not constitute gross negligence, where even plaintiff‘s expert did not testify that defendant‘s actions constituted “reckless disregard for human life“).
In the opposite camp are cases involving not just gross negligence, but also malicious conduct. Barbre is a good example: the Court of Appeals held that the plaintiff sufficiently alleged malice and gross negligence where the officer allegedly ordered him to raise his hands and, despite his compliance and being unarmed, “approached with his gun drawn and shot him in the neck.” 402 Md. at 190. So too Sawyer v. Humphries, 322 Md. 247, 261 (1991), in which the plaintiff alleged that the officer, “unprovoked
Gross negligence without malice lies somewhere in between. As the Court explained in Barbre, gross negligence is “‘more akin to reckless conduct,‘” 402 Md. at 187 (quoting Taylor v. Harford Cnty. Dep‘t of Soc. Servs., 384 Md. 213, 229 (2004)), but in the absence of malice, gross negligence is often “more troublesome” to define because of the “fine line . . . between allegations of negligence and gross negligence,” id. at 187, incorporating a subtle element almost of intentional indifference. But it is not good enough simply to parrot the word “gross“: a plaintiff “must point to specific evidence that raises an inference that the defendant‘s actions were improperly motivated.” Chinwuba v. Larsen, 142 Md. App. 327, 382 (2002) (internal citations omitted), rev‘d in part on other grounds, 377 Md. 92 (2003); Boyer, 323 Md. at 579-80 (requiring that the plaintiff plead facts to show a “wanton and reckless disregard for others” on the part of the defendant).
We recently reversed a trial court‘s decision to enter judgment in favor of a police officer who pursued a suspect onto an exit ramp, and made contact with his motorcycle, which threw the suspect off the cycle and killed him. See Holloway-Johnson v. Beall, --- Md. App. ---, Sept. Term 2012, No. 2338 (filed November 25, 2014), slip op. at 5, 24. And we reaffirmed in that case that the gross negligence inquiry is inherently fact-bound: “because of the ‘troublesome’ factual problem of trying to differentiate between simple and gross negligence, the issue is usually one for the jury, not the court.” Id., slip op. at 23.
Viewed against this backdrop, the trial court in this case properly denied the motion for judgment so long as the Jenkinses introduced evidence sufficient to permit the jury to infer that Deputy Brooks acted either with the intent to inflict injury or with “utter indifference” to the rights of others, and we have no trouble finding that standard met here. The jury had in front of it testimony and videotaped evidence from which it readily could infer that he acted indifferently to the Jenkinses’ rights in concluding that Brandi posed a threat and that he acted intentionally when he fired his gun at her as he did:
- Not only was there no evidence that Brandy was vicious or threatening, but counsel for Deputy Brooks conceded in opening statement that “there‘s not going to be any evidence [in] this case that . . . Brandi was a vicious animal in any way. The evidence is going to be that Deputy Brooks didn‘t know;”
- The videotape showed Brandi wagging her tail as she approached the Deputy, and that she did not approach him at an inordinate speed or in a crouched position; and
- Rather than using some lesser form of force or deterrent, the videotape showed Deputy Brooks aiming his gun directly at Brandi‘s chest, and his bullet created a “small wound . . . behind her shoulder, and a large . . . gaping wound . . . in front of her leg, . . . in her chest area . . . where the tissues were . . . destroyed.”
The jury was not, of course, required to find gross negligence from these facts. But the evidence sufficed to support the jury‘s finding that the Deputy overreacted to the potential threat, responded with excessive force, and acted with reckless indifference,
Deputy Brooks cites cases in which courts did find the pleading or evidentiary threshold not met, but none of them compels a reversal here. For example, he claims that the facts in Khawaja, in which we held that the driver‘s deliberate decision not to sound a siren while speeding through a red light did not amount to gross negligence, were “far more egregious than what occurred here.” But importantly, the trial court there dismissed the complaint because gross negligence was not pled with specificity, 89 Md. App. at 318, a failure the Deputy has not alleged here. Wells v. State, 100 Md. App. 693 (1994), does not help either—there, the complaint alleged negligent supervision on the part of Department of Social Services supervisors for failing to prevent the beating death of a child at another‘s hands:
These allegations, taken in a light most favorable to appellants, suggest individual negligence and bureaucratic mismanagement and incompetence; they suggest a critically important governmental unit not properly doing its job because of underfunding, understaffing, lack of effective leadership and supervision, lack of training, and lack of clear procedures and protocols. They do not indicate, however, malice, evil intention, or wanton, willful, or reckless disregard for human life or the rights of others. In short, they do not allege gross negligence on the part of any of the defendants.
Id. at 705-06 (emphasis added). The same holds for Tatum, where the plaintiff failed to show that the paramedic acted with disregard of the decedent‘s condition as they travelled to the hospital (and indeed the paramedic‘s own uncontradicted testimony showed that he attempted on numerous occasions during the ambulance ride to assist the decedent with medical care). 80 Md. App. at 569. The evidence here—and perhaps most prominently, the video evidence—created genuine issues of disputed material fact for the jury to resolve on the critical element of Deputy Brooks‘s mental state as he made the decision to use deadly force on the family dog.
More recently, in Newell, the Court of Appeals explained that it is “for the trier of fact” to determine whether a defendant acted with gross negligence or malice that removes him from the protections of the MTCA. 407 Md. at 636 (emphasis added). Although there the decision affected not the physical well-being but the employment status of the plaintiffs, the court found that a trier of fact could infer that the defendant terminated the plaintiffs’ employment with “a conscious disregard for their rights as employees.” Id. at 639. Although the Court conceded that the defendant‘s decision may have been grounded in a “legal mistake,” it was for a trier of fact to adopt that position or the plaintiffs‘. Id.; see also Holloway-Johnson, slip op. at 24 (“Demarcating the illusive line between simple negligence and gross negligence is frequently far more a matter of persuasion, as a matter of fact, than of production, as a matter of law.“) The same was true here: it is not up to us, but rather to a jury to determine which version of events they believe. The plaintiffs here presented sufficient evidence on which a jury could conclude that Deputy Brooks acted with a conscious disregard of the Jenkinses’ rights when he fired his gun at Brandi, and the court did not err in submitting the issue to the jury to decide.
B. The Trial Court Properly Capped Only The Damages For Brandi’s Treatment.
Deputy Brooks next argues that the trial court should have capped all recoverable
1. CJ § 11-110 and the limitation on damages
Section 11-110 caps compensatory damages for the death or injury of a pet to a total of $7,500 in lost economic (not emotional) value and veterinary bills:
(a)(1) In this section the following words have the meanings indicated.
(2) “Compensatory damages” means:
(i) In the case of the death of a pet, the fair market value of the pet before death and the reasonable and necessary cost of veterinary care; and
(ii) In the case of an injury to a pet, the reasonable and necessary cost of veterinary care.
(3)(i) “Pet” means a domesticated animal.
(ii) “Pet” does not include livestock.
(b)(1) A person who tortiously causes an injury to or death of a pet while acting individually or through an animal under the person’s direction or control is liable to the owner of the pet for compensatory damages.
(2) The damages awarded under paragraph (1) of this subsection may not exceed $7,500.
The question here, and one not previously addressed in a reported appellate decision, is how far this cap reaches. According to Deputy Brooks, the plain meaning of the statute limits all “compensatory damages arising from tortious injury,” and thus limits the Jenkinses only to the capped compensatory damages even in the context of these constitutional tort claims. Notwithstanding
In response, the Jenkinses argue that the trial court correctly applied
We review de novo the trial court’s decision on this question of statutory interpretation.12 Reier v. State Dep’t. of Assessments & Taxation, 397 Md. 2, 26 (2007); Sail Zambezi, Ltd. v. Maryland State Highway Admin., 217 Md. App. 138, 150 (2014). Our “‘primary goal is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision.’” Miller v. Mathias, 428 Md. 419, 450 (2012) (quoting Ray v. State, 410 Md. 384, 404 (2009) (internal citations omitted)). The logical starting point, of course, is the “normal, plain meaning of the language of the statute, reading the statute [or rule] as a whole to ensure that ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.’” Id. at 450–51 (quoting Ray, 410 Md. at 404 (internal citations omitted)). If the statutory language is “clear and unambiguous,” we look no further. In re Sean M., 430 Md. 695, 703 (2013). On the other hand, when the language of a statute presents an ambiguity and is subject to more than one interpretation, we dig deeper. Lipitz v. Hurwitz, 435 Md. 273, 283-84 (2013). We consider “the purpose and objective of the legislature’s enactment,” and must be careful to “avoid statutory constructions that are ‘illogical, unreasonable, or inconsistent with common
sense.’” Coroneos v. Montgomery Cnty., 161 Md. App. 411, 424 (2005) (quoting Bd. of Physician Quality Assur. v. Mullan, 381 Md. 157, 168 (2004)).
We see no ambiguity about the purpose of this statute: by its very terms, it defines and limits the compensatory damages value of pets—which the law always have treated as chattel (not cattle, see
Although we don’t need it for interpretive purposes, the legislative history of
“compensatory damages,” defined it, altered the language of
All this means, though, is that the General Assembly limited the extent of a tortfeasor’s liability for the tortious injury he causes to a pet. This statute does not, and
The argument becomes even more untenable when we bring it back to this case. On the count at issue, the Jenkinses alleged that Deputy Brooks violated their rights under
veterinary bills from the original $20,000 award to the total of $7,500. But nothing about
We express no views on
2. Mental anguish damages under Counts 3 and 5.
Next, Deputy Brooks appeals the award of damages in the shooting incident under Count 3 (Trespass to Chattel) and Count 5 (Article 24 Violation), arguing that the trial court should not have denied his Motion for Judgment on the Jenkinses’ claim for mental anguish damages relating to the shooting.
Deputy Brooks argues that the Jenkinses could not recover “for mental-anguish type damages for tortious injury to property in Maryland in the absence of fraud, malice, or other like motives.” (Emphasis added.) Citing Exxon Mobil Corp. v. Albright, 433 Md. 303 (2013), he claims that the facts here do not constitute any “extenuating circumstances” that could fall under the “other like motives” umbrella. The Jenkinses counter with two arguments: first, that the gross negligence that the jury found qualifies as an “other like motiv[e],” and second, that this limitation on emotional damages doesn’t apply in any event because they sought recovery not simply for witnessing the injury to Brandi, but for the harm done directly to them based on the violation of Article 24.
First, we disagree with the Jenkinses that the “other like motives” analysis under Exxon and earlier cases applies here (although we will discuss it below when we address the trespass claims). Cases using this framework involved claims relating to real property, see, e.g., Dobbins v. Wash. Suburb. Sanitary Comm’n, 338 Md. 341 (1995); Wolf v. Levitt & Sons, Inc., 267 Md. 623 (1973), and we are not aware of any cases that apply the rule to a claim involving trespass to chattel (i.e., trespass to personal property). And it is not obvious that it should apply—a trespass to chattel is more like conversion than a trespass to real
Second, however, the Jenkinses were entitled to recover non-economic damages in connection with their constitutional claim. Beyond the trespass to chattel claim, the jury also found that Deputy Brooks acted with gross negligence in violating the Jenkinses’ constitutional rights. See Widgeon v. Eastern Shore Hosp. Ctr., 300 Md. 520, 537-38 (1984) (holding that “where an individual is deprived of his liberty or property interests in violation of Articles 24 and 26, he may enforce those rights by bringing a common law action for damages”); see also Prince George’s Cnty. v. Longtin, 419 Md. 450, 482-90 (2011) (affirming a $6.2 million verdict in favor of an arrestee whom police had held for eight months in spite of possessing exculpatory DNA evidence); Espina v. Prince George’s County, 215 Md. App. 611, 657 (2013), cert. granted, 438 Md. 132 (May 15, 2014) (holding that plaintiff could recover for an Article 24 claim even though the jury had found that a police officer was not guilty of assaulting the victim). It may be that the jury awarded more damages because Brandi is a beloved family dog rather than an inanimate object, but that doesn’t define the nature of the claim. Cf. Brown v. Muhlenberg Twp., 269 F.3d 205, 218 (3d Cir. 2001) (concluding that Pennsylvania law would allow recovery for intentional infliction of emotional distress where police officer fired five rounds into owner’s dog, reasoning that “in such cases, the malicious behavior is directed to the owner as well as to the pet, with the potential for serious emotional injury to the owner being readily apparent”). The jury had the opportunity to view Deputy Brooks, and Brandi coming toward him, for what even the Deputy concedes was a full eight seconds, and found affirmatively that Deputy Brooks acted with gross negligence. That finding entitled the Jenkinses to seek and prove noneconomic damages.
C. The Trial Court Did Not Err In Declining To Reduce The Verdict On The Shooting-Related Claims.
The Deputies contend that the damages the jury awarded for the shooting were grossly disproportionate to the amount of medical care the dog received (they contend that there was a “more than 30 to 1 ratio” between the $200,000 award and the $6,100 veterinary care bills).18 The Jenkinses respond that the jury arrived at a reasonable award in light of all the evidence and that the Deputies cannot justify a reduction. We review a trial court’s decision to reduce a jury verdict (or not) for an abuse of discretion. Owens-Illinois, Inc. v. Hunter, 162 Md. App. 385, 415 (2005).
[A]ll of these formulae mean substantially the same thing, . . . that the damages are “such as all mankind must be ready to exclaim against, at first blush,” being used to indicate the trial judge should extend the fullest consideration possible to the amount returned by the jury before it concludes that it shocks his conscience, is “grossly excessive” or is “excessive.”
Conklin v. Schillinger, 255 Md. 50, 69 (1969) (citations omitted).
Even so, the Deputies’ ratio argument does not withstand closer mathematical scrutiny. The jury awarded each plaintiff $100,000 in non-economic damages and $10,000 in economic damages, so the ratio from the jury’s perspective was only ten to one. The Deputies only get to their ratio figure by weighing the combined non-economic damages awarded to both plaintiffs against the single post-remittitur economic damages amount, which seems artificially skewed.
Against that standard, we disagree with the Deputies that the $200,000 verdict was excessive.19 The Jenkinses presented not just testimony, but also videotape evidence of what took place:
- The videotape shows Mr. Jenkins visibly upset, and Mrs. Jenkins holding Brandi and crying.
- Mr. Jenkins testified that he feared Brandi was going to die, and her cry on the way to the vet “was something I never heard in my life, and . . . my wife’s still hysteric[al], . . . I was hopin’ that that dog wouldn’t pass away in my wife’s arms.”
- Brandi had bandages on her shoulder that had to be changed every three to four hours for about ten days. (Mrs. Jenkins could not change the bandages because, as Mr. Jenkins implied, it was too upsetting for her.) She required constant attention during her recovery to keep her calm and keep her staples and drainage tube from coming out.
- Mr. Jenkins testified that the family’s “lifestyle was changed. We . . . pretty much stayed home all the time to try and make sure . . . [Brandi] was getting attention that she needed.”
- Brandi continues to be “very nervous and anxious,” keeping the Jenkinses up at night even at the time of trial.
- Mr. Jenkins testified that now when people come to his door, he and his wife become “jittery and nervous,” and as he put it, “we kind of feel that we’re little prisoners in our own little area here now.”
- Mrs. Jenkins testified to the fear she felt at the time of the shooting, both because she was “terrified” that Deputy Brooks was going to shoot her husband and because she was afraid her husband was going to die.
- Mrs. Jenkins also testified to the difficult ride to the vet, and the fact that she thought of Brandi as “part of [the] family.” She testified to the disruption of the family’s routine during Brandi’s recovery because of the logistics of having to change her dressing and how upset she was at seeing Brandi’s condition.
- After the shooting, Mrs. Jenkins began to have panic attacks, which she’d had before but subsided. She testified that she would move if she could, because she relives the incident daily when she pulls into the driveway. As she put it, she no longer feels at home.
The jury concluded from the evidence that Deputy Brooks had acted with gross negligence and awarded damages accordingly. The trial judge explained after lengthy post-trial argument that she knew of no case with similar circumstances that would have justified reducing this verdict, and the Deputies have not identified one (nor has our research unearthed any). We agree with the court that it was for the
D. The Deputies Were Immune To Suit For Constitutional Trespass And The Jenkinses Were Not Entitled To Mental Anguish Damages For Common Law Trespass.
Finally, Deputies Brooks and Rector appeal the award of damages for common-law and constitutional trespass. To recap, the jury found gross negligence on the part of both Deputies under the common-law trespass claim (Deputy Brooks: Questions 7-9 (Count 2); Deputy Rector: Questions 21-23 (Count 2)), and liability but no gross negligence or malice under the constitutional claim (Deputy Brooks: Questions 4-6 (Counts 6 and 7); Deputy Rector: Questions 18-20 (Counts 6 and 7)). The Deputies argue first that because the jury found no malice or gross negligence in the context of the constitutional trespass claim, they were immune from liability on those claims; and second, the Jenkinses were not entitled to recover mental anguish, pain, and suffering damages in connection with the remaining trespass claim, which arose at common law. The Jenkinses respond that because the Deputies argued for a verdict sheet that allowed the jury to award damages for the trespass claims in the aggregate, and not by count, they cannot now challenge the generality of the resulting verdict. They also argue that the Deputies failed to preserve any argument regarding lack of damages for appellate review.
1. The Deputies are not liable personally for constitutional trespass.
We agree with the Deputies that once the jury found that they acted without malice or gross negligence, the MTCA immunized them from personal liability on the Jenkinses’ constitutional claim for entry into the home. Ford v. Baltimore City Sheriff’s Office, 149 Md. App. 107, 120 (2002). A State employee “acting within his or her scope of employment and without malice or gross negligence is immune from suit,” id. (citing
2. The Jenkinses are not entitled to mental anguish or pain and suffering damages for common-law trespass.
This leaves the common-law trespass claim. On this claim (and unlike the constitutional trespass claim), the jury found that the Deputies acted with gross negligence. That seems, at least at first blush, to create a potential inconsistency between the verdicts on the constitutional and common-law trespass claims, an argument that the Deputies raise in their briefs. But we need not resolve that possible discrepancy because the Jenkinses’
In Exxon Mobil Corp. v. Albright, the Court of Appeals reiterated that a plaintiff must establish “malice, fraud, or other like motives” to recover damages for emotional distress “attendant to property damage.” 433 Md. at 395. The Jenkinses argue that the jury’s gross negligence finding on the common-law trespass claim qualifies as an “other like motive” for these purposes. This matters because the jury was asked only to consider “Non-Economic Damages (mental anguish, pain and suffering)” in connection with the trespass claims, and the $100,000 the jury awarded to each plaintiff against each Deputy (a total of $400,000) fell entirely into that category. And since the jury declined to find malice with regard to the trespass, the Jenkinses’ common law damages claim fails altogether unless this “other like motives” concept applies and covers the Deputies’ actions.
The Court of Appeals in Exxon cited Ford for the “other like motives” language, but it originated in the Court’s decision in Zeigler v. F Street Corp., 248 Md. 223 (1967).21 A close look at that case suggests that although Zeigler intended to leave a door open for some undefined category of damages premised on a trespass, it left it open a crack too small for the Jenkinses’ claims here. The plaintiff in Zeigler owned property with her husband that sustained considerable damage after the defendant began developing adjacent property. The problems with the property continued unabated for many months, and Mrs. Zeigler claimed that they led her husband to develop a nervous condition and ultimately caused his death. Id. at 225. Her complaint initially alleged a willful trespass, but after a hearing she ended up claiming only negligence on the part of the defendant. Id. at 225. The trial court decided that she could not recover damages on behalf of her husband’s estate because his death “was not a foreseeable consequence of the negligent acts of the defendants causing damage to the plaintiff’s property.” Id. at 226.
The Court of Appeals affirmed, although it allowed for the possibility that a plaintiff could recover for mental suffering and emotional distress flowing from damage to property without a predicate physical injury. The Court qualified that possibility, though, by noting that “ordinarily, there can be no recovery for mental suffering, resulting from damage done to property.” Id. at 226 (emphasis added) (citations omitted). Quoting the then-current version of Corpus Juris Secondum on Damages, the Court limited mental anguish damages for injury to property, but carved out certain cases using the language that the Court quoted later in Exxon:
[U]nder ordinary circumstances there can be no recovery for mental anguish suffered by plaintiff in connection with an injury to his property. Where, however, the act occasioning the injury to the property is inspired by fraud, malice, or like motives, mental suffering is a proper element of damage. It has been held that an injury to property alone will not support a recovery for fright occasioned by such injury.
Id. (emphasis added). The Court included in that catch-all category certain factual circumstances that might justify recovery, “such as intentional conduct on the part of the defendant that could foreseeably result in injury to the plaintiff, or conduct by the defendant that endangered human safety.” Id.
The Court of Appeals extended this limitation to a trespass action in Wolf v. Levitt & Sons, Inc., 267 Md. 623 (1973), where the plaintiffs contended that employees of the defendant trespassed onto their property in an effort to obtain information for a lawsuit between them. Mrs. Wolf claimed she became so upset upon seeing three men standing at her doors (she understood them to be Mr. Levitt’s employees) that she “‘fell completely apart,’” and her husband discovered her that evening “‘in such a state of extreme fright that it bordered on hysteria.’” Id. at 626. The Wolfs filed suit seeking damages of $150,000, including punitive damages, medical expenses, and loss of companionship by Mr. Wolf. Id. at 624. The Court of Appeals held that the Wolfs had presented no evidence that could bring their trespass claim within the language of Zeigler, and explained that the jury had properly found a “technical trespass” that entitled the Wolfs to nominal damages only. Id. at 630-31.
No cases we have found, however, offer any deeper insight on what range of motives might qualify as being “like” fraud or malice. Because there is no allegation here that either Deputy made any “knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment,” Black’s Law Dictionary 775 (10th ed. 2013), this turns on whether gross negligence is “like” malice, which for purposes of the LGTCA means “an intentional act done knowingly of an improper purpose without legal justification or excuse.” Thomas v. City of Annapolis, 113 Md. App. 440, 458 (1997). In the context of punitive damages, malice is “conduct of the defendant characterized by evil motive, intent to injure, ill will, or fraud.” Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 460 (1992). The Court of Appeals clarified there that “negligence alone, no matter how gross, wanton, or outrageous, will not satisfy this standard.” Id. at 463. And more generally, plaintiffs have not been permitted to recover for emotional injuries flowing from negligence-level torts. See Dobbins v. Washington Sub. Sanitary Comm’n, 338 Md. 341, 345 (1995) (“[A] plaintiff ordinarily cannot recover for emotional injury caused by witnessing or learning of negligently inflicted injury to the plaintiff’s property” (emphasis added).); H&R Block, Inc. v. Testerman, 275 Md. 46, 48-49 (“Maryland decisions have generally denied compensation for mental anguish resulting from damage to property.”).
Our opinion in Abbott v. Forest Hill State Bank, 60 Md. App. 447 (1984), also suggests that the plaintiff must show some element of foreseeability. There, we held that the plaintiff had to allege “either notice of . . . mental distress on the part of the defendant or that the act was calculated to cause mental distress.” Id. at 455-56 (citing Zeigler, 248 Md. at 226). In Abbott, we considered whether a plaintiff could recover damages for conversion after a bank wrongfully repossessed his car, and we held that emotional distress damages weren’t recoverable for loss in property value (resulting from property damage) because the court had already dismissed an underlying fraud claim. Id. at 456-58.
This decision does not, however, undermine the jury’s threshold decision that the Deputies committed a common-law trespass. Accordingly, and because the Jenkinses did not seek economic or actual damages for the common-law trespass, we remand with directions that the circuit court enter a judgment for nominal damages on that claim. See Brown v. Smith, 173 Md. App. 459, 484 & n.10 (2007) (a trespass violation entitles the plaintiff to nominal damages, whereas an injury to the property itself would entitle the plaintiff to compensatory damages).
* * *
To summarize: we affirm the trial court’s reduction of the award of economic damages for the shooting of Brandi, to one $7,500 award to Mr. and Mrs. Jenkins against Deputy Brooks only; we affirm the jury’s award of $100,000 in non-economic damages each to Mr. and Mrs. Jenkins, also for the shooting of Brandi, against Deputy Brooks only; and we reverse the award of $100,000 to each Mr. and Mrs. Jenkins against both Deputy Brooks and Deputy Rector—a total of $400,000—and remand for the entry of nominal damages on the trespass claim against each.
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE DIVIDED EVENLY.
Notes
[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.
[t]hat all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.
- Whether the evidence was sufficient to submit the issue of gross negligence as to the wounding of the dog to the jury?
- Whether the trial court erred by permitting a damages award in excess of the statutory cap on compensatory damages for tortious injury to a pet?
- Whether the trial court erred by permitting mental anguish damages arising from harm to personal property in the absence of fraud, malice or like motives?
- Whether the trial court erred by denying [the Deputies] the immunity from liability they enjoy under the MTCA where the jury found the alleged constitutional violation for entry into the residence was performed without malice and without gross negligence?
- Whether the trial court erred by permitting an irreconcilably inconsistent verdict to stand?
- Whether the trial court erred by permitting [Mr. and Mrs. Jenkins] each . . . to recover twice for the indivisible harm of entry into the home?
- Whether the trial court erred by denying [the Deputies] motion for remittitur on the award of damages?
- Whether the trial court erred by conflating claims under Article 24 and Article 26 of the Maryland Declaration of Rights?