MEMORANDUM
Before the Court are the following motions: (1) a motion to dismiss filed by three Frederick County Sheriffs Deputies: Defendants Richard Roehford, Scott Jewell, and James Harris (the Deputies), ECF No. 26; (2) a motion to dismiss, or for
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of the tragic death of 26-year-old Robert Ethan Saylor, an individual with Down Syndrome. Mr. Say-lor died after three off-duty Frederick County Deputy Sheriffs, Defendants Richard Rochford, Scott Jewell, and James Harris, attempted to force him to leave a movie theater owned and operated by Defendant Regal because he was attempting to view a movie for a second time without paying for a second ticket. At the time, the Deputies were working as security guards for the mall in which the theater was located, the Westview Promenade Mall. A struggle ensued in the course of the attempted removal of Mr. Saylor from the theater and, by the end of that struggle, Mr. Saylor suffered a fractured larynx and died of asphyxiation. The details of this encounter, as alleged in the First Amended Complaint, are as follows.
Mr. Saylor had an I.Q. of about 40, the physical and facial features common to individuals with Down Syndrome, and was easily recognizable as someone with this disability. He was also both short and obese, standing at about 5 feet 6 inches tall and weighing almost 300 pounds. Mr. Saylor lived in a separate apartment connected to his mother’s home. A full-time aide, Mary Crosby, was employed to assist Mr. Saylor with living in the community. While Mr. Saylor often traveled about in the community, he did not like to be touched, particularly by strangers. He also sometimes displayed anger when he was frustrated and could be difficult to redirect from one activity to another. Ms. Crosby, other caretakers, and family members were well aware of these characteristics.
Mr. Saylor was an avid moviegoer and was a regular patron of the Regal Cinemas, having seen hundreds of movies there. On the evening of January 12, 2013, Mr. Saylor, accompanied by Ms. Crosby, went to an early showing of the movie Zero Dark Thirty. When the movie was over, Mr. Saylor and Ms. Crosby exited the theater and Ms. Crosby inquired if Mr. Saylor was ready to go home. Mr. Saylor became angry and Ms. Crosby called Mr. Saylor’s mother to inquire how to proceed. Mrs. Saylor suggested Ms. Crosby go and bring the car around to give Mr. Saylor the opportunity to calm down and she did so.
WTien Ms. Crosby returned with the car, she discovered that Mr. Saylor had gone back into the theater to see the movie a second time. While she was in the lobby of the theater, the theater manager approached her and stated that Mr. Saylor had to purchase another ticket or leave the theater. Ms. Crosby explained that Mr. Saylor had Down Syndrome and that no one should attempt to speak with him. She also requested that the manager simply wait a bit to let her attempt to deal with Mr. Saylor. Despite that request, the manager called for assistance from one of the Deputies who was working as a mall security guard and, Plaintiffs allege, on information and belief, that the manager asked the Deputy to remove Mr. Saylor from the theater.
[Ms. Crosby] told the Deputy about Mr. Saylor’s disability and asked again that they just “wait out” Mr. Saylor’s refusal to leave the theater. She told the deputy that she had spoken with Mr. Saylor’s mother, who was coming to the theater, and that Mr. Saylor would “freak out” if he was touched and that he would resist being forcibly ejected. She told the deputy that if given sufficient time she and Mrs. Saylor could handle the situation.
ECF No. 19 ¶ 23.
Meanwhile, Mr. Saylor sat quietly in the same seat in which he had sat when watching the movie the first time. Despite Ms. Crosby’s warning, Defendant Roehford approached Mr. Saylor and told him that he needed to leave the theater. Mr. Saylor refused and the Deputy asked the manager to call for the other two Deputies who were also working as mall security guards, indicating “ “we are gonna have an issue here.’ ” Id. ¶ 26. After ordering Ms. Crosby to stay out of the theater, the three Deputies approached Mr. Saylor and told him he had to leave the theater.
Mr. Saylor refused to leave and, according to the First Amended Complaint,
two of the three deputies grabbed Mr. Saylor, one by each arm, and tried to drag him from the theater while telling him he was going to jail. As they neared the rear of the theater with the struggle underway the Deputies handcuffed Mr. Saylor with his hands behind his back. Mr. Saylor was heard to scream “mommy, mommy” and say “it hurts.”
At the back of the theater, Mr. Say-lor — handcuffed and held by the deputies — ended up on the floor with at least one deputy on top of him. As the deputies manhandled Mr. Saylor, they fractured his larynx making it difficult for him to breathe. Because this was apparent, the deputies rolled him to his side, removed his handcuffs, and called emergency medical technicians. It was too late — Mr. Saylor suffocated.
Id. ¶¶ 27-28. Mr. Saylor was later pronounced dead at Frederick Memorial Hospital.
In the original complaint, ECF No. 1, Plaintiffs, Mr. Saylor’s parents, individually and as personal representatives of Mr. Saylor’s estate, named the Frederick County Sheriffs Department and Frederick County as Defendants, in addition to Regal and the Deputies.
In their respective motions, the Deputies, Regal, and the State of Maryland all seek dismissal of all claims asserted against them. Regal and the State also purport to move, in the alternative, for summary judgment. To the extent Regal is actually seeking summary judgment, it appears to rely on witness statements given to the police as part of the investigation of this incident. These statements suggest that Defendant Rochford, at least initially, attempted to coax Mr. Saylor to leave the theater in a polite and professional manner and that it was Mr. Saylor that first became disruptive. ECF No. 28-1. In response, Plaintiffs attach to their opposition other witness statements that report that Mr. Saylor was sitting peacefully before the Deputies attempted to extract him from his seat. ECF No. 37-2.
While Regal submitted exhibits with its motion and captioned the motion as one seeking, in the alternative, summary judgment, in discussing the standard of review to be applied to its motion, Regal provides only the standard for a motion to dismiss under Rule 12(b)(6), making no mention of the standard for a summary judgment motion under Rule 56 of the Federal Rules of Civil Procedure. Instead of presenting that alternative standard, Regal suggests that the Court can consider its proffered witness statements without converting the motion to one under Rule 56 because those statements are being submitted to “address and rebut the reference to such statements and reliance thereon by Plaintiffs.” ECF No. 28 at 2.
Plaintiffs did make a single passing reference to “numerous witness accounts” in their First Amended Complaint. ECF No. 19 ¶ 24. Assuming these are the same accounts that Plaintiffs attached to their opposition, these are handwritten “Statements” apparently prepared at the theater shortly after the confrontation. ECF No. 37-2. In contrast, the documents submitted by Regal with its motion are typewritten “Supplemental Incident Reports” prepared by members of the Sheriffs Department based on interviews they conducted with witnesses, mostly at the sheriffs office. , Not only are these documents different than those referenced in the Complaint, they are not the type of documents that are “integral to and explicitly relied upon in the complaint” which the Court would be permitted to consider when ruling on a motion to dismiss. See Am. Chiropractic Ass’n v. Trigon Healthcare, Inc.,
Similarly, the State attached an exhibit to its motion and captioned its motion as one, in the alternative, for summary judgment. The State, however, also provided no substantive discussion of the standard for such a motion except for the conclusory statement that “if it is determined that the motion should be treated as one for summary judgment, the Court should enter summary judgment in favor of Defendants as to all claims, there being no genuine issue of material fact.” ECF No. 44-1 at 6.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
III. DISCUSSION
A. The Deputies’ Motion to Dismiss
I. Section 1983 Claim (Count IX)
To state a claim under 42 U.S.C. § 1983, a plaintiff must aver that a person acting under color of state law deprived him of a constitutional right or a right conferred by a law of the United States. Wahi v. Charleston Area Med. Ctr.,
To establish such a claim, a plaintiff must show that the force used in mak
Furthermore, the Fourth Circuit has cautioned courts when analyzing the objective reasonableness of the amount of force used by a law enforcement officer not to adopt a “segmented view of [a] sequence of events,” where “each distinct act of force becomes reasonable given what [the officer] knew at each point in this progression.” Rowland v. Perry,
Viewed under this analysis, the Court concludes that the Deputies’ conduct, at least as alleged, could be found to have constituted an unreasonable use of force. The first Graham factor — the seriousness of the suspected crime — undoubtedly points in Plaintiffs’ favor. The Deputies acknowledge that, at the time that they initiated this encounter, “the crimes Mr. Saylor was committing were relatively minor misdemeanors of trespass, disturbing the peace, and theft of services.” ECF No. 26-1 at 13.
As to the second Graham factor— whether Mr. Saylor posed an immediate threat to the officers or others — the allegations in the First Amended Complaint would indicate that, before being approached by the Deputies, Mr. Saylor was sitting quietly in the theater, posing a threat to no one. Were it not for the intervention of the Deputies, there is no reason to believe he would not have remained sitting quietly in his seat.
As to the third Graham factor — whether Mr. Saylor resisted arrest or was evading arrest by flight — it is true that, once the Deputies attempted to drag him from his seat, he did resist. The Court notes, however, that Mr. Saylor responded in precisely the way that Ms. Crosby informed the Deputies he would respond, because of his disability, if touched by strangers. Furthermore, just as Mr. Saylor posed no threat to anyone until approached by the Deputies, there was no indication that he would have fled the scene. While the Deputies may justifiably quibble with the technical validity of Plaintiffs’ conclusion that Mr. Saylor “effectively detained himself in the theater quietly,” ECF No. 30 at 9, there was certainly little risk that Mr. Saylor would not have remained in the theater, at least until the end of the movie.
Turning to the seriousness of injury factor that courts also take into consideration, here, Mr. Saylor died as a direct result of the course of events set into motion by the
The Court notes that, before entering the theater and confronting Mr. Saylor, there were a number of other alternatives available to the Deputies instead of pursuing a course they were told would lead to a potentially dangerous interaction. They could have allowed Mr. Saylor’s caregiver, Ms. Crosby, to enter the theater to attempt to persuade Mr. Saylor to leave, or at least allowed her to accompany them and function as a mediator in the confrontation. It is alleged that they were aware that Mr. Saylor’s mother was on the way and they could have simply waited for her to arrive and had her either convince her son to leave or, failing that, to pay for a ticket. While the Fourth Circuit has noted that the relevant inquiry is not whether the law enforcement officer took the “the most reasonable course of action ... [njonetheless, the availability of other reasonable, or even more reasonable, options is not completely irrelevant to our inquiry.” Young v. Prince George’s Cnty., Md.,
The Court also notes that, when the Deputies were presented with these various alternatives, there was no emergent situation requiring any rapid response on their part. This lack of an emergent situation makes this case distinguishable from the typical excessive force case and the cases on which the Deputies rely. The Deputies suggest that “[t]he facts and circumstances in the instant case are similar to those in Brown v. Gilmore, ”
When describing those circumstances, the Fourth Circuit noted that it was “undisputed that the situation on the street was tense.” Id. at 369.
This Court finds that a different excessive force decision from the Fourth Circuit, Rowland v. Perry,
While there were factual disputes as to precisely what happened next, the officer testified that he had observed the plaintiff simply wave the money in front of the openly distressed woman and then leave the station with the money. The officer followed the plaintiff. He claimed that the plaintiff then began to run and he chased him to a nearby construction site. The plaintiff asserted that he never ran but was standing at a nearby corner when the officer approached him. According to the plaintiff, the officer then grabbed his collar and jerked him around, yelling at him as he did so. Out of fright, the plaintiff asserted he “instinctively tried to free himself.” Id. at 172. The officer asserted that the plaintiff first shoved him in an attempt to escape, and only then did he grab him by the collar. The parties agreed, however, that the officer “ultimately used disabling force to gain control over [the plaintiff].” Id. at 171. In the course of the struggle, the officer wrenched the plaintiffs leg causing a serious knee injury.
The Fourth Circuit concluded that “a jury could find that no reasonable officer could have believed his conduct to be lawful in light of the circumstances known to him at the time.” Id. at 174. Applying the first two Graham factors, the court observed that “there is no dispute here that the offense was a minor one” and that the plaintiff “posed no threat to the officer or anyone else.” Id. As to the third factor, while the court acknowledged that there was some evidence that the plaintiff offered resistance, the plaintiff. maintained that “he resisted only to the extent of instinctively trying to protect himself from the defendant’s onslaught.” Id. “When all the factors are considered in toto,” the court held, “it is impossible to escape the conclusion that a man suffered a serious leg injury over a lost five dollar bill.” Id.
Like the defendant in Rowland, the Deputies urge this Court to review their encounter with Mr. Saylor as a segmented sequence of events. The Deputies suggest that, when they ordered him to leave the theater and he refused, it became reasonable to arrest him. Once they determined to arrest him, they suggest having “two Deputies grabbing one of Mr. Saylor’s arms and together trying to drag him out of the theater ... was certainly an objectively reasonable use of force.” ECF No. 26-1 at 14. When, in response to his being dragged out of the theater, Mr. Saylor “engaged in a course of struggle,” id., the Deputies suggest it was reasonable to handcuff Mr. Saylor’s hands behind his back. Finally, once the struggle was underway, the Deputies suggest that the escalating use of force that resulted in Mr. Saylor being on the ground with a Deputy on top of him, however that escalation happened, was also reasonable. The result of this sequence of events, however, was
In addition to arguing that there was no constitutional violation, the Deputies also assert that they are entitled to qualified immunity under Harlow v. Fitzgerald,
The Deputies assert that, in Maryland, a constitutional right becomes “clearly established” only by a decision of the United States Supreme Court, the Fourth Circuit Court of Appeals, or the Maryland Court of Appeals and that, in their assessment, there is no decision in these three classes of decisions holding that their use of force in the particular circumstances alleged here would be violative of any constitutional right. ECF No. 26-1 at 20-21. The Fourth Circuit has instructed, however, that while the “contours” of the right “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right, [t]his is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. ...” Jones,
The standard is again one of objective reasonableness: the “salient question” is whether “the state of the law” at the time of the events at issue gave the officer “fair warning” that his alleged treatment of the plaintiff was unconstitutional. Officials can still be on notice that their conduct violates established law even in novel factual circumstances. Although earlier cases involving “fundamentally similar” or “materially similar” facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Even though the facts of a prior case may not be“identical,” the reasoning of that case may establish a “premise” regarding an unreasonable use of force that can give an officer fair notice that his conduct is objectively unreasonable.
Id. at 531-32 (internal citations omitted).
The Court believes that the Fourth Circuit’s decision in Rowland, both by the similarity of its facts and its instruction that the conduct of officers is not to be viewed as an artificially divided sequence of events, gave fair warning to the Deputies that their conduct was unreasonable, at least under the facts as alleged in the First Amended Complaint. For that reason, the Court will deny the Deputies’ motion to dismiss on the ground of qualified immunity.
That is not to say that the Court might not reach a different decision on a motion for summary judgment where the Court would have the benefit of a fuller record. The Court notes that there appears to be some disagreement or uncertainty as to precisely what Ms. Crosby may have told the Deputies prior to their confrontation with Mr. Saylor. See ECF No. 39 at 4 n. 3 (noting that, while implied in Plaintiffs’ Opposition, it was not alleged in the Complaint that Mr. Saylor’s mother would pay for an additional ticket if need be). There is an apparent disagreement as to whether Mr. Saylor was sitting quietly before he was approached and how quickly he may have escalated the tension in the situation. See id. at 11 (referencing witness statements that contradicted the allegation that Mr. Saylor was sitting quietly and that he began cursing and yelling when requested to leave).
Perhaps the most significant unsettled question is the reason for the escalation in the Deputies’ use of force. While it would seem apparent, given the nature of the injury suffered by Mr. Saylor and the fact that Mr. Saylor ended up on the floor underneath a Deputy, that the level of force used on Mr. Saylor increased dramatically, the cause and manner of that escalation is unclear. There even appears to be some confusion as to when Mr. Say-lor was handcuffed. Plaintiffs seem to allege in the First Amended Complaint that it was near the back of the theater, but before he fell, see ECF No. 19 ¶¶ 27-28 (“As they neared the rear of the theater with the struggle underway the Deputies handcuffed Mr. Saylor with his hands behind his back” and then he ended up on the floor), but the Deputies seem to imply that he fell first, and they then handcuffed him. ECF No. 26-1 at 4 (after stating that “Mr. Saylor suddenly fell to the ground and brought all three deputies down as well for a short time,” “[t]he Deputies used a chain of three (3) handcuffs to handcuff Mr. Saylor behind his back, and tried to help him stand”). Furthermore, while Plaintiffs allege that the Deputies manhandled Mr. Saylor and fractured his larynx, the Deputies suggest that some of Mr. Saylor’s injuries might have been caused by the lifesaving efforts of the EMS personnel. Id. at 17 n. 3.
The Court is well aware that qualified immunity is “an immunity from suit rather than a mere defense to liability” and thus, the question of qualified immunity should be resolved “at the earliest possible stage in litigation.” Hunter v. Bryant,
2. State Law Claims
The state law survival claims asserted by Plaintiffs against the Deputies are for negligence (Count II), gross negli
Plaintiffs argue that the Deputies are not immune from liability for any of the claims asserted against them on the ground that, in their interactions with Mr. Saylor, they were not acting within the scope of their public duties but, instead, were acting as private security guards. As noted above, however, supra at 420 n. 6, at least by the time that the Deputies determined to arrest Mr. Saylor, they had reverted to their status as on-duty sheriffs’ deputies. As the alleged wrongful conduct occurred after that point, statutory immunity is at least potentially available. With regard to their negligence claim, Plaintiffs’ only argument to defeat immunity is their argument that the Deputies were not acting within the scope of their public duties. As the Court rejects that conclusion, the Court finds that the Deputies are entitled to immunity from liability on the negligence claim and that count will be dismissed.
As to the gross negligence claim, however, the immunity statute explicitly exempts that claim from its reach. While the Deputies claim that there are insufficient factual allegations to support such a claim, the Court concludes that there are. Maryland courts view gross negligence as “something more than simple negligence, and likely more akin to reckless conduct.” Taylor v. Harford, Cnty. Dep’t of Soc. Servs.,
As to the battery claim, Plaintiffs have alleged that this conduct was “undertaken deliberately and with actual malice.” Id. ¶ 67. While the Deputies correctly note that bald allegations of malice are insufficient to defeat immunity and that a plaintiff “must allege with some clarity and precision those facts which make the act malicious,” Green v. Brooks,
The Deputies also argue that the battery claim should be dismissed because their touching of Mr. Saylor was privileged based upon their right to place him under arrest. The right to arrest, however, does not give rise to a privilege to use an unreasonable amount of force. See French v. Hines,
The Deputies’ final argument regarding Plaintiffs’ survivor claims is that the claims are barred by the doctrines of contributory negligence and/or assumption of risk. While possibly relevant to Plaintiffs’ negligence claim, the Court has already determined that this claim will be dismissed on the ground of statutory immunity. The doctrines, of course, are not applicable to a claim of battery. See Saba v. Darling,
As to the gross negligence claim, the question is more complicated as Maryland courts apparently have yet to decide if contributory negligence is a bar to such a claim. Plaintiffs point to a decision of the Maryland Court of Appeals, Liscombe, supra, that assumed without deciding that the doctrine would not be applicable to a gross negligence claim.
The Court need not resolve this legal issue at this time as there is an insufficient factual basis on which to conclude, as a matter of law, that the doctrine should apply.
3. Wrongful Death Claim
As for Plaintiffs’ Wrongful Death claim, Count XII, the Deputies do not appear to challenge that Plaintiffs are proper plaintiffs for a wrongful death action, or that this action was timely filed under the statute. Instead, the Deputies suggest that Plaintiffs have improperly joined all of their separate wrongful death claims in a single claim in a single count. ECF No. 26-1 at 22.
Maryland’s Wrongful Death Statute provides that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” Md.Code Ann., Cts. & Jud. Proc. § 3-902(a). A “wrongful act” is defined as “an act, neglect, or default ... which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” Id. § 3-901(e). Thus, to the extent that Plaintiffs prevail on any claim brought on the estate’s behalf as a surviv- or action, they will have established a “wrongful act.” The only additional contested element that Plaintiffs would then need to prove to establish a wrongful death action is that they sustained damages from the loss of their son. See Stewart v. United Electric Light and Power Co.,
B. The State’s Motion to Dismiss
1. Wrongful Death Claim (Count XII)
The State first argues that the wrongful death claim against it must be dismissed as the State has not waived its Eleventh Amendment immunity for tort action brought in federal court. While the State has made a limited waiver of its sovereign immunity in the MTCA, that waiver is expressly limited to suits brought in the state courts. Md.Code Ann., State Gov’t § 12-104(a)(l). Plaintiffs make no response to this argument and the State’s motion will be granted as to Count XII.
2. Failure to Train Claim under Title II of the ADA (Count X)
As to Plaintiffs’ “failure to train” claim under Title II of the ADA, the State is correct that the Fourth Circuit has yet to explicitly recognize such a claim in this particular context. ECF No. 44-1 at 10-11 (citing Waller v. City of Danville,
The “services, programs, and activities” of public entities have been held to include “all core functions of government” and that “[a]mong the most basic of these functions is the lawful exercise of police powers, including the appropriate use of force by government officials acting under color of law.” Schorr v. Borough of Lemoyne,
Relying on the legislative history of Title II, courts have also recognized an implicit duty to train officers as to how to interact with individuals with disabilities in the course of an investigation or arrest:
“In order to comply with the non-discrimination mandate, it is often necessary to provide training to public employees about disability. For example, persons who have epilepsy, and a variety of other disabilities, are frequently inappropriately arrested and jailed because police officers have not received proper training in the recognition of and aid of seizures. Such discriminatory treatment based on disability can be avoided by proper training.”
Lewis v. Truitt,
Plaintiffs premise their Title II claim on the contention that “Mr. Saylor was qualified to receive the benefit of deputies properly trained to interact with members of the community with developmental disabilities,” that the State denied him the benefit of that proper training, and that denial proximately caused his death. ECF No. 45 at 7-8. Plaintiffs argue that they have sufficiently alleged both types of arrest cases. They argue that Mr. Saylor was wrongfully arrested in that his refusal to leave the theater was “a manifestation of his disability, not criminal intent” and thus, he was arrested “ ‘because of his disability.’ ” Id. at 16 (quoting Lewis,
The State proffers a number of challenges to Plaintiffs’ Title II failure to train claim. First, relying on Waller and Paulone v. City of Frederick,
The State next invokes limitations recognized by courts on the requisite scope of modifications and accommodations that must be adopted by public entities for the benefit of individuals with disabilities. Quoting Tennessee v. Lane, the State notes that ‘“Title II does not require States to employ any and all means to make ... services accessible to persons with disabilities.’ ” ECF No. 44-1 at 15 (quoting
The accommodation envisioned by Plaintiffs does not approach the employment of “any and all means” or an anticipation of “every conceivable disability.” Plaintiffs suggest that following the advice of the caregiver of a clearly disabled individual and simply waiting would have been the most logical accommodation. From the allegations in the First Amended Complaint, it would not appear that the Deputies were trained to make any modification at all in their treatment of individuals with developmental disabilities.
In challenging Plaintiffs’ failure to train claim, the State relies heavily on a decision of the First Circuit, Buchanan v. Maine,
Among other grounds, Buchanan is distinguishable from the case at bar in that it was decided on summary judgment with the benefit of a fully developed record. See
3. Vicarious Liability Under Title II
In Count XI, Plaintiffs assert that, as a joint employer of the Deputies, the State is liable for their acts done in violation of Title VII. ECF No. 19 ¶ 93. The State’s primary argument for the dismissal of this claim is simply that the Deputies did not violate the statute. See ECF No. 44-1 at 19 (“Absent a violation by the individual officers, there can be no governmental liability.”). Because the Court has concluded that the First Amended Complaint provides sufficient allegations to establish that the Deputies violated Title II, and because it is undisputed that the State is deemed the employer of the Deputies, see Paulone,
4. Damages Against the State under Title II
Finally, the State contends that Plaintiffs cannot recover monetary damages from the State because a plaintiff must show intentional discrimination on the part of the defendant before such damages can be recovered. ECF No. 44-1 at 19. In making that argument, however, the State acknowledges that the Fourth Circuit has yet to resolve whether compensatory damages are available for failure to
This Court has reached the issue and has concluded that “[a] successful plaintiff in a suit under Title II of the ADA ... is generally entitled to a ‘full panoply’ of legal and equitable remedies.” Paulone,
C. Regal’s Motion to Dismiss
The claims brought against Regal are claims of negligence (Count I) and gross negligence (Count IV). While cast in terms of state law claims, they are clearly premised on an alleged violation of Title III of the ADA. In their First Amended Complaint, Plaintiffs allege that, as a place of public accommodation, Regal was “required to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford their goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities” and that Regal’s failure “to modify its policies, practices, and procedures to permit Mr. Saylor the time and assistance he required to leave the movie theater (or to have his aide or mother buy him another $12.00 ticket) without the intervention of law enforcement was negligent.” ECF No. 19 at ¶¶35-36.
Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Regal concedes that its theater is a “place of public accommodation” and thus, it is subject to the requirements of Title III. Regal correctly notes, however, that while individuals with disabilities can pursue actions for injunctive relief to remedy discriminatory conditions in public accommodations, it is well established that Title III does not create a private cause of action for money damages. See Goodwin v. C.N.J., Inc.,
Recognizing that Title III cannot support an independent claim for money damages, Plaintiffs suggest that the alleged breach of the statutory duty created by Title III constitutes prima facie evidence of common law negligence. In making this argument, Plaintiffs rely primarily on two decisions that have recognized the viability of a negligence claim premised on a defendant’s failure to comply with the certain “Accessibility Guidelines” promulgated under the ADA (ADAAGs), Smith v. Wal-Mart Stores, Inc.,
In Dalgliesh, a partially disabled person was injured when he fell while walking down a ramp in defendant’s theater. The trial court allowed the plaintiff to introduce as evidence of negligence the fact that the slope of the ramp exceeded that permitted under the ADAAGs. The District of Columbia Court of Appeals “sustain[ed] the trial judge’s admission of the ADA standard as evidence of the care required in the circumstances.”
Maryland law also allows, in certain circumstances, that “the breach of a statutory duty may be considered some evidence of negligence.” Pahanish v. W. Trails, Inc.,
First, the plaintiff must be a member of the class of persons the statute was designed to protect. Second, the injury suffered must be of the type the statute was designed to prevent. Third, the plaintiff must present legally sufficient evidence to demonstrate that the statutory violation was the proximate cause of the injury sustained.
Id. (citations omitted). The requirement that the “injury suffered must be of the type the statute was designed to prevent” has generally limited the application of this principle to the violation of statutes related to public safety or health related issues and each of the Maryland cases on which Plaintiffs rely is so limited. See, e.g. Brooks v. Lewin Realty III, Inc.,
Regal maintains, and the Court agrees, that as an antidiscrimination statute, Title III was not designed to prevent the type of injury suffered here. Smith and Dalgliesh, the ADA cases on which Plaintiffs rely, are not inconsistent with that conclusion. In both, it was violation of public safety regulations promulgated under the ADA and not the more general anti-discrimination provisions of the statute itself that was admitted as evidence of negligence.
In opposing Regal’s motion, Plaintiffs argue that the court in Dalgliesh actually rejected the argument made by Regal here that the use of violations of statutes as evidence of negligence is limited to public safety statutes. There is language in Dalgliesh that, at first glance, appears to support the Plaintiffs’ view. Plaintiffs represent that the court in Dalgliesh “held that even ‘statutes without [a public safety] objective but setting forth an arguable standard of care are admissible to prove negligence.’ ” EOF No. 37 at 9 (quoting Dalgliesh,
Should the Court find that a violation of the ADA could be used as evidence of negligence, as Plaintiffs suggest, the Court would, nonetheless, conclude that the claim would fail because Regal’s conduct was not the proximate cause of Mr. Saylor’s injury and death. In Pittway Corporation v. Collins, the Maryland Court of Appeals provided a thorough and comprehensive review of the principles of “proximate cause.”
Proximate cause involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. To be a proximate cause for an injury, the negligence must be 1) a cause in fact, and 2) a legally cognizable cause. In other words, before liability may be imposed upon an actor, we require a certain relationship between the defendant’s conduct and the plaintiffs injuries. The first step in the analysis to define that relationship is an examination of causation-in-fact to determine who or what caused an action. The second step is a legal analysis to determine who should pay for the harmful consequences of such an action.
Id. at 786 (internal quotations and citations omitted).
Where, as here, it is alleged that two or more independent negligent acts bringing about an injury, the “substantial factor” test controls the determination of “causation-in-fact.” Id. at 787. Factors to be considered in determining whether an actor’s conduct was a “substantial factor” in bring about a particular harm include:
“(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces of which the actor is not responsible.”
Id. (quoting Restatement (Second) of Torts § 433).
If causation-in-fact is established, which it arguably is here, the inquiry turns to whether the defendant’s negligence actions constitute a legally cognizable cause of the plaintiffs injuries. This part of the proximate cause analysis considers “whether the actual harm to a litigant falls within a general field of danger that the actor should have anticipated or expected.” Id. “The question of legal causation most often involves a determination of whether the injuries were a foreseeable result of the negligent conduct.” Other public policy considerations that may play a role in determining legal causation include “the remoteness of the injury from the negligence [and] the extent to which the injury is out of proportion to the negligent party’s culpability....” Id. at 788. Under this analysis, a “defendant may not be liable if it appears highly extraordinary and unforeseeable that the plaintiffs’ injuries occurred as a result of the defendants’ alleged tortious conduct.” Id. (emphasis added). “Where it appears to the court in retrospect that it is highly extraordinary that an intervening cause has come into operation, the court may declare such a force to be a superseding cause.” Id. (quoting Restatement (Second) of Torts § 435 cmt. c).
In determining whether an intervening negligent act rises to the level of a superseding cause that would absolve the initial tortfeasor of liability, it is important to note that courts consider not only the unforeseeability of the intervening act, but also “the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence.” Id. (quoting Restatement (Second) of Torts § 442). The Maryland Court of Appeals emphasized that it “does not limit the superseding cause analysis to a consideration of either the foreseeability of the harm suffered by the plaintiffs or the foreseeability of the intervening acts in its approach to determining superseding causation. Rather, [it] considers] both the foreseeability of the harm suffered by the plaintiffs as well as the foreseeability of intervening acts in determining superseding causation.” Id.
Here, the Court notes that the alleged conduct of Regal is extremely limited. Plaintiffs allege that after talking with Ms. Crosby and telling her that Mr. Saylor needed to purchase another ticket or leave, the theater manager called for assistance from an off-duty deputy sheriff and asked him “to remove Mr. Saylor.” ECF No. 19 ¶ 22. Then, at the request of the original deputy, the manager called for the assistance of two other deputies. Id. ¶ 26. The Court finds that it was “highly extraordinary and unforeseeable” that Mr. Saylor would die as a result of that conduct.
Perhaps the clearest indication that Regal’s conduct was not a proximate cause of Mr. Saylor’s death is the manner in which Plaintiffs felt compelled to argue foreseeability in opposing Regal’s motion. Plaintiffs argue that “Regal’s violation of Title III proximately caused Mr. Saylor’s death” on the ground that “[o]nce Regal refused the necessary modification and demanded that the deputies intervene and forcibly remove Mr. Saylor from the theater, it was foreseeable that Mr. Saylor would be injured.” ECF No. 37 at 17 (emphasis added). The First Amended Complaint, however, simply alleges that, on information and belief, the theater employee “asked” the security guard “to remove Mr. Saylor.” ECF No. 19 at ¶22. It does not allege that the employee “demanded” that he be removed and it certainly does not allege that he demanded that he be “forcibly” removed. In their strained effort to establish proximate cause on the part of Regal, Plaintiffs continue, “[m]oreover, it was foreseeable that handcuffing an obese Mr. Saylor on the ground while applying pressure to his back would fracture his larynx.” ECF No. 37 at 18. To suggest that a theater manager’s request to a law enforcement officer to remove a patron from a theater would result in the patron being handcuffed, ending up on the ground, with an officer on his back, and, with a fractured larynx presumes a degree of clairvoyance on the part of the manager that the law does not impose.
The Court is aware that the proximate cause analysis is generally “reserved for the trier of fact.” Pittway,
The Court will dismiss the negligence claim against Defendant Regal. The Court will also dismiss the gross negligence claim against Regal. In addition to the reasons given above for dismissing the negligence claim, the Court finds that there is no support in the First Amended Complaint beyond Plaintiffs’ bald and con-clusory allegations for the conclusion that Regal acted with either malice or a “wan
TV. CONCLUSION
For the above stated reasons the following claims will be dismissed: the claim against the Deputies for Negligence (Count II); the Wrongful Death claim against the State (Count XII); and all claims against Regal (Counts I and IV). In addition, Plaintiffs’ prayer for punitive damages against the Deputies under their Wrongful Death claim and against the State as to all claims will be stricken. A separate order will issue.
Notes
. Plaintiffs also named as a Defendant in both the original Complaint and the First Amended Complaint, Hill Management Services, Inc. (Hill Management), the property manager for the Westview Promenade Mall and the purported joint employer of the Deputies. Plaintiffs asserted survivor claims for negligence (Count III) and gross negligence (Count VI) against this Defendant. Hill Management filed an answer, but no dispositive motion and, for this reason, the claims against it will not be addressed in this Memorandum.
. Because of the presence of tables of contents and other introductory materials, the
. As Plaintiffs note, this portion of the General Order relates to dealings with persons with mental illness who may be experiencing loss of memory, delusions, depression, hallucinations, hyperactivity, incoherence and extreme paranoia. ECF No. 44-2 at 2. As such, it is of marginal relevance in dealing with individuals not with mental illness, but with developmental disabilities, like Mr. Saylor.
. Plaintiffs characterize the Deputies’ actions as "seizing and ultimately killing Mr. Saylor as a penalty for his attempt to integrate himself into the societal mainstream by coming to a movie theater.” ECF No. 30 at 21. The Court finds this rhetoric particularly inappropriate and unhelpful.
. In holding that a reasonable officer would believe that he had probable cause to arrest the plaintiff, the court noted that her car had been blocking traffic on a major Myrtle Beach thoroughfare during Memorial Day weekend for over half-an-hour and that the request that the plaintiff move her car should have been expected "before the tempers of other motorists reached the boiling point.” Id. at 368.
. As an additional argument against the Deputies' entitlement to qualified immunity, Plaintiffs assert that, because the Deputies were off duty, they were acting outside of the scope of their government employment and thus, not entitled to qualified immunity under any circumstances. ECF No. 30 at 14. Like deputies in most if not all sheriff's departments in Maryland, off-duty deputies of the Frederick County Sheriff's Department revert to on-duty status where law enforcement action is taken. See ECF No. 39-1 (Frederick Cnty. Sheriff's Office Admin. Manual). Arrest is a quintessential law enforcement action. As such, the Deputies were acting as law enforcement officers and were potentially entitled to qualified immunity while so acting. See Drewitt v. Pratt,
. The Deputies make no serious argument that the applicability of the doctrine of assumption of risk could be decided on a motion to dismiss.
. The Deputies also challenge Plaintiffs’ entitlement to punitive damages under the Wrongful Death Statute. ECF No. 26-1 at 21 n. 4. Maryland courts have consistently held that "punitive damages are not recoverable in cases arising under the wrongful death statute.” Cohen v. Rubin,
. In a previous decision in that action, this Court found that the State of Maryland had a duty under the ADA to provide deaf interpreters in court-ordered alcohol education programs and that by alleging that the State “breached that duty by failing to train [its Division of Parole and Probation] to provide such free service” the plaintiff stated a claim for negligent supervision and training. Paulone v. City of Frederick,
. As noted above, the State submitted with its motion a copy of the section of the Frederick County Sheriff's Office General Order regarding the "Investigation of Persons with Mental Illness,” ECF No. 44-2, and argues that the failure to train claim against the State should be dismissed because "the Sheriff had a policy in the General Order Manual that provided specific protocols for interacting with persons suffering from mental illness or disease.” ECF No. 44 — 1 at 14 (emphasis in original). While the Court has determined that it will not consider this exhibit at this stage in the litigation, it notes that the General Order recognizes that an appropriate response when dealing with person with mental illness includes:
Obtaining relevant information from family members, friends, others at the scene who know the individual and his/her history.
Remain[ing] calm and avoid overacting
Actions that deputies should avoid include ... [tjouching the person (unless essential to safety); [c]rowding the person or moving into his or her zone of comfort
ECF No. 44-2 at 2-4. The General Order also instructs, “[o]nce sufficient information has been collected about the nature of the situation, and the situation has been stabilized, there are a range of options deputies should consider when selecting an appropriate disposition.” Id. at 4. While one of those "options” is “[a]rrest, if a crime has been committed,” other options offered include: "[o]utright release” and "[rjelease to care of family care giver_” Id. Thus, should these guidelines be considered relevant to individuals with developmental disabilities, the argument could be made that the Deputies were not trained to follow or simply failed to follow these guidelines in dealing with Mr. Saylor.
. Unlike those in Maryland, sheriff deputies in Maine are considered county agents, not state agents, for purposes of § 1983. The claims against the State of Maine in Buchanan involved, not the actions of the sheriff's deputies, but rather the services rendered by the deceased’s mental health case worker, a state employee, prior to the shooting incident. As reasonable accommodations, the plaintiff asserted that the case worker should have, inter alia, made weekly check-ups, performed additional medical check-ups, and made other adjustments to his treatment plan. Buchanan,
. The State also argues, correctly, that punitive damages are not available under Title II. See Constantine v. Rectors & Visitors of George Mason Univ.,
. In opposing the motion to dismiss, Plaintiffs attempt to argue that, even if Title III is found not to supply a statutory duty to support their negligence claims, Regal breached a general duty of reasonable care. ECF No. 37 at 18-19. The negligence claim in the First Amended Complaint, however, clearly is premised solely on an alleged breach of a duty under Title III and the Court will consider it as it was pled.
. Unlike Maryland courts, North Carolina courts have held that the violation of a public safety statute is negligence per se. Id. North Carolina, however, recognizes the same distinction as Maryland between statutes that are public safety statutes and those that are not.