David Reginald HERON v. Veronica STRADER, et al.
No. 13, Sept. Term, 2000.
Court of Appeals of Maryland.
Oct. 17, 2000.
761 A.2d 56
Marc E. Curry, Associate County Atty. (Sean D. Wallace, County Atty., and John A. Bielec, Deputy County Atty., on brief), Upper Marlboro, for respondents.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.
RAKER, Judge.
Petitioner, David Reginald Heron, filed suit against Prince George‘s County, Maryland under the Local Government Tort Claims Act (hereinafter “LGTCA“),
I.
On August 24, 1997, Petitioner was arrested and charged with resisting arrest, obstructing the police in the performance of their duties, and disorderly conduct. On March 3, 1998, he was acquitted of all charges. On April 30, 1998, pursuant to the LGTCA, Petitioner sent a Notice of Claim to Prince George‘s County notifying the county of his intention to file a civil complaint against Respondents, the arresting officers. In the Notice, Petitioner alleged that he had been injured when Respondents “assaulted and battered him, falsely imprisoned him, violated his civil rights, and committed numerous other wrongs against him.” He identified the time and place of injury as “[o]n or about August 24, 1997” at the Landover Metro Station.
On June 1, 1998, Petitioner filed a complaint in the Circuit Court for Prince George‘s County alleging multiple claims against Respondents, Corporals Veronica Strader and Todd Nalley of the Prince George‘s County Police Department, in their individual and official capacities. The Complaint included the claims of false imprisonment, false arrest, and malicious prosecution.2
Petitioner noted a timely appeal to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, affirmed the trial court, holding that the notice period for Petitioner‘s claims of false arrest, false imprisonment, and malicious prosecution began to run on the date of his arrest and that the trial court did not abuse its discretion in finding that no good cause existed to excuse the notice requirements of the LGTCA. This Court granted certiorari to determine whether the trial court erred in dismissing Petitioner‘s claims of false arrest, false imprisonment, and malicious prosecution.
II. Timeliness
In order to assess the timeliness of Petitioner‘s Notice of Claim under the LGTCA, it is necessary, first, to determine the time of his alleged injury for each of the appealed claims. Petitioner contends that his injury in this case occurred when his causes of action accrued for malicious prosecution, false arrest, and false imprisonment, which he asserts was after his acquittal.
Although this Court has not previously interpreted the definition of an “injury” under the LGTCA, we have considered the question of when an injury arises in the context of the Maryland Tort Claims Act (“MTCA“),
Petitioner‘s injury, therefore, occurred, pursuant to
The elements of malicious prosecution are: 1) a criminal proceeding instituted or continued by the defendant against the plaintiff; 2) without probable cause; 3) with malice, or with a motive other than to bring the offender to justice; and 4) termination of the proceedings in favor of the plaintiff. See DiPino v. Davis, 354 Md. 18, 59, 729 A.2d 354, 373 (1999); Montgomery Ward v. Wilson, 339 Md. 701, 714, 664 A.2d 916, 922 (1995).
The elements of false arrest and false imprisonment are identical. Those elements are: 1) the deprivation of the liberty of another; 2) without consent; and 3) without legal justification. See Manikhi v. Mass Transit Admin., 360 Md. 333, 364, 758 A.2d 95, 111-12, 2000 Md. LEXIS 517, at *44 (2000); Montgomery Ward, 339 Md. at 721, 664 A.2d at 925-26. Petitioner argues that the third element, legal justification, does not come into existence until after acquittal. He is wrong. The test of legal justification, in the context of false arrest and false imprisonment, is “judged by the principles applicable to the law of arrest.” Montgomery Ward, 339 Md. at 721, 664 A.2d at 926 (quoting Ashton v. Brown, 339 Md. 70, 120, 660 A.2d 447, 472 (1995)). Therefore, “where the basis of a false imprisonment action is an arrest by a police officer, the liability of the police officer for false imprisonment will ordinarily depend upon whether or not the officer acted within his
Petitioner‘s causes of action for false arrest and false imprisonment arose, and his injuries for the purposes of the LGTCA therefore occurred, on August 24, 1997, the date that he was arrested and detained by the police. The facts alleged to support each element of his claim were in existence at that time. Therefore, his Notice of Claim, with respect to his claims of false arrest and false imprisonment, was not timely.
Malicious prosecution, however, is a different case. The tort of malicious prosecution includes not only the initiation of criminal proceedings against the plaintiff, but also the termination of those proceedings in the defendant‘s favor as a necessary element of the cause of action. Petitioner was lacking the facts to support that element until his acquittal on March 3, 1998. Therefore, his Notice of Claim, with respect to his claims of malicious prosecution, was timely, and it was error for the trial court to dismiss those counts of the Complaint.
This holding is in accord with the law of other jurisdictions. While the public entity tort claim statutes of many other states specify that notice must be given within a designated period of time after the claimant‘s cause of action has “arisen” or “accrued,” these precedents are nonetheless instructive as we interpret “injury” for the purposes of the LGTCA to be equivalent to the time when the plaintiff‘s cause of action has arisen.
The California District Court of Appeal, in interpreting the California Tort Claims Act,
Similarly, the District of Columbia Court of Appeals, in interpreting
The Indiana Court of Appeals, in interpreting the Indiana Tort Claims Act,
The Superior Court of New Jersey, in interpreting the New Jersey Tort Claims Act,
It is well established that a cause of action for malicious prosecution does not arise until the criminal proceeding has terminated in plaintiff‘s favor. That is a condition precedent to the institution of the action. Such a requirement that the criminal proceeding has terminated in plaintiff‘s favor is not a prerequisite for institution of an action for false arrest, as the form of action is based upon an illegal arrest and no matter ex post facto can legalize an act which was illegal at the time it was done.
Id. (internal citations omitted). The United States District Court, in interpreting both the statute of limitations and the Notice of Claim provisions of the New Jersey Tort Claims Act,
In interpreting the Notice of Claim provision of New York‘s municipal tort liability statute,
The United States Court of Appeals for the Third Circuit, in interpreting the Virgin Islands Tort Claims Act,
This approach to notice of tort claims is consistent with the general jurisprudence regarding the accrual of statutes of limitation for claims of false arrest, false imprisonment, and malicious prosecution. In determining the statute of limitations for claims of unlawful arrest and false imprisonment, the Oklahoma Supreme Court, in the oft-cited case Belflower v. Blackshere, 281 P.2d 423 (1955), held that the statute of limitations accrued at the release from imprisonment, not at the termination of the proceedings by which the arrest occurred. Several other states have subsequently followed this approach. See Kirwan v. State, 31 Conn.Supp. 46, 320 A.2d 837 (1974); Mound Bayou v. Johnson, 562 So.2d 1212, 1217 (Miss.1990) (“Thompson‘s [sic] action for false arrest accrued the day it occurred.... His action for malicious prosecution did not accrue until ... the date of the two judgments ... dismissing Mound Bayou‘s ... prosecutions.“); O‘Fallon v. City of Burlington, 427 N.W.2d 809, 811 (N.D.1988) (“False imprisonment is considered a continuing tort which commences at the time of the false arrest and continues until the unlawful detention ceases.“); Adler v. Beverly Hills Hosp., 594 S.W.2d 153 (Tex.Civ.App.1980) (holding that a cause of action for false imprisonment accrues for the purpose of the statute of limitations when the unlawful detention ends). Similarly, the United States Court of Appeals for the Third Circuit, in analyzing the date of accrual of a Section 1983 cause of action for malicious prosecution and false arrest, has held that, under federal law, since favorable termination was a necessary element of malicious prosecution claims, they did not accrue until the underlying criminal proceedings were terminated, but that false arrest claims accrued on the date of arrest. See Rose v. Bartle, 871 F.2d 331, 348-51 (3rd Cir.1989).
II. Waiver for Good Cause
Therefore, the trial judge‘s findings will not be disturbed absent a showing of abuse of discretion. See Westfarm Assoc. v. Washington Suburban Sanitary Comm‘n, 66 F.3d 669, 676 (4th Cir.1995); Madore, 34 Md.App. at 344, 367 A.2d at 56-57; cf. Viles v. State, 66 Cal.2d 24, 56 Cal.Rptr. 666, 423 P.2d 818, 821 (1967); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 543 A.2d 443, 449 (1988); Bowman v. Capital Dist. Transp. Auth., 244 A.D.2d 638, 663 N.Y.S.2d 727 (1997). The test for whether good cause exists pursuant to
Petitioner argues that concentrating on his criminal defense constitutes good cause for late filing under
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF DISMISSAL OF PETITIONER‘S CLAIMS OF FALSE ARREST AND FALSE IMPRISONMENT, REVERSE THE JUDGMENT OF DISMISSAL OF PETITIONER‘S CLAIMS FOR MALICIOUS PROSECUTION, AND REMAND THE CASE TO THE CIRCUIT COURT FOR PRINCE GEORGE‘S COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID TWO-THIRDS BY RESPONDENTS AND ONE-THIRD BY PETITIONER.
CATHELL, Judge, dissenting.
I respectfully dissent. The notice requirements of the Local Government Tort Claims Act (LGTCA), and the notice requirements of the applicable predecessor acts, have always been considered by this Court to constitute a condition precedent to the subsequent filing of a cause of action against an applicable local government entity. It is not merely a waiver of immunity or a statute of limitations that is based upon the accrual of an action. We have always held that its purpose was (is) to afford to local government an opportunity to promptly investigate claims while the incidents, details and the evidence are fresh and available. Even in cases in which local governments enjoy no immunity, the notice requirement exists. In order to sue a local government in tort, even in automobile accidents where immunity has been waived, notice must be given.
Today the majority abandons those concepts, and, in essence, holds that a notice of a claim for unliquidated damages against a local government is not required to be made until all the elements of a cause of action have come into being and, by
Moreover, the majority today equates the terms “claim” or “injury” with the term “cause of action.” That simply has not, heretofore, been the law in this State, and should not now be made to be the law of this State. There is, I would respectfully suggest, a substantial difference between a claim and a cause of action. The LGTCA does not require that the notice identify the exact cause of action, or causes of action, arising out of a claim generated by an incident.
This might cause severe problems for potential litigants. The logical extension of the majority‘s policy that a claim or injury is not complete, for purposes of notice, until the last element of a cause of action comes into being, might require litigants to file notices of causes of action instead of claims. Accordingly, a litigant who knows he has been the subject of a happening that might give rise to some cause of action, has to
It is important to note that the language of the notice statute is not the language of immunity nor does it create some type of limitations statute. It creates a condition precedent. No where does
The majority focuses on the term “injury,” instead of the term “claim,” holding that until a cause of action exists, there is no injury. That is simply incorrect, and in the notice context, is totally inconsistent with over a half century of our cases, that are not overruled, and most not even mentioned, by the majority. In essence, the majority treats the term “claim” to be equivalent with the accrual of a cause of action, and then treats the 180-day notice provision as a statute of limitation based upon that accrual. This entire approach skewers a long standing body of authority in this State to the contrary.
Moreover, when the Legislature wants a matter of notice to depend upon the accrual of a cause of action, it knows how to utilize cause of action language.
I am unaware of any case in Maryland where this Court has addressed any requirement that all the elements of a cause of action must exist before a notice of a claim against a local governmental entity is required to be given.3 Such a requirement defeats the purposes of the notice requirements in the first instance. More importantly, as I have indicated, the majority cannot logically adopt a position that the notice in this case was timely, although far beyond the period of notice for the actual incident, without also creating a requirement that a cause of action actually exist before notice is given.
The injury occurred to petitioner on the night of August 24, 1997, when he was arrested by Corporals Strader and Nalley of the Prince George‘s County Police Department. It was then that his freedom was restricted; it was then that charges were filed against him; it was then that his prosecution commenced; it was then that his “injury” began. The majority holds that for the purpose of false arrest and false imprisonment, the 180-day period to give notice of claim commenced at the time of injury, i.e., the incident of Heron‘s arrest. Yet, when considering the tort of malicious prosecution, the majority holds that the 180-day period to give notice of claim does not commence until termination of the criminal charges. Under this rationale, there would be no way to determine the commencement of the time period until the last possible cause of action that might be conceived of by counsel is, in fact, filed. In other words, under the majority‘s reasoning, the notice period for each cause of action would not begin to run until the
Under the majority‘s holding, if Heron had been convicted, rather than acquitted, had appealed to the Court of Special Appeals and there had his conviction affirmed, then filed a Petition for Writ of Certiorari with this Court, had it granted, and this Court also affirmed his conviction; then filed his first Post Conviction Petition and had his request for relief denied, appealed that denial through the appellate process, losing all the way; then filed a second Post Conviction Petition or even filed a Petition for a Writ of Coram Nobis many years thereafter, and had the trial court, or an appellate court, granted him a new trial,4 and at that new trial, he was finally acquitted, the 180-day notice provision would only then, years or decades later, begin to run. In the meantime, the local government entity has no knowledge that something occurred ten or twenty years before, that might result in liability. That simply does not, and cannot, satisfy the condition precedent purpose of the notice provision, which we have consistently held is to afford a prompt opportunity to local governments to investigate the details of the occurrences creating potential liability.
The statutory notice requirement does not read, as the majority would have it read, that notice must be given within a certain time period of the last event to happen of a series of events relating to the accrual of a specific cause of action. Generally, the creation of such a standard in this case serves little useful purpose, even for plaintiffs; certainly not for local governments for whose benefit the notice requirements, indeed the Act itself with its “cap” requirements, was ostensibly
Maryland‘s
(b) Nonliability of officials generally; torts involving motor vehicles. . . .
(2) An official of a municipal corporation is not immune from liability for negligence or any other tort arising from the operation of a motor vehicle except as to any claim for damages in excess of the limits of any applicable policy of motor vehicle liability insurance.
Several other sections of that subtitle of the
This suit was brought by Doris Neuenschwander in the Circuit Court for Prince George‘s County against Washington Suburban Sanitary Commission and the Mayor and City Council of Hyattsville to recover damages for injuries sustained on June 23, 1944, when she stepped upon the metal top of a sewer manhole along the sidewalk on Madison Street in Hyattsville. She alleged in her declaration that the metal top turned upwards, thrusting her left leg into the manhole, throwing her to the ground and severely wrenching her body; and that she has suffered continuous pain, has spent large sums of money for medical and hospital treatment, and has been advised to undergo a surgical operation. She further alleged that the manhole was maintained negligently by defendants and was in an unsafe condition for pedestrians. Defendants pleaded that, because of the fact that they are municipal corporations, they are not liable for damages. Plaintiff demurred to the pleas, and the Court sustained the demurrers on the ground that the declaration failed to allege that defendants knew or should have known of the defective condition.
The law is established that a municipal corporation may be held liable for injuries caused by its negligence in failing to keep the streets and sidewalks under its control reasonably safe for travel in the ordinary manner, and in preventing and removing any nuisance affecting their use and safety. Cordish v. Bloom, 138 Md. 81, 85, 113 A. 578 [(1921)]; Mayor and City Council of Baltimore v. Eagers, 167 Md. 128, 136, 173 A. 56 [(1934)];
Mayor and City Council of Baltimore v. Thompson, 171 Md. 460, 189 A. 822 [(1937)]. But a municipal corporation is not liable for injuries caused by the defective condition of a street, unless it is shown that it had actual or constructive notice of such condition. Constructive notice is such notice as the law imputes from the circumstances of the particular case. It is clear that in our consideration of that case we accepted that there was no immunity for local governments in respect to those specific facts, i.e., the failure to keep streets safe. We clearly noted that immunity was not available under those circumstances; that the local governments there involved were liable to suit. We nonetheless went on to hold that the notice requirements of the statute, the precise predecessor to the one at issue in the case at bar, constituted a condition precedent to the right to maintain any action in tort against a local government.
After the Court sustained the demurrers to the declaration, plaintiff filed an amended declaration. The first count was similar to the original declaration, but the second count alleged that defendants knew or, by the exercise of reasonable care, should have known of the dangerous condition of the manhole and metal top. In the meantime defendants learned that the Legislature of Maryland had passed an Act in 1943, applicable to Prince George‘s County, providing that no suit for damages shall be maintained against a municipal corporation unless written notice of the claim shall be presented within 905 days after the injury or damage is sustained. Defendants accordingly withdrew their pleas and filed demurrers alleging that plaintiff had failed to comply with the Act of 1943. The Act provides: “No action shall be maintained and no claim shall be allowed against any county or municipal corporation of Maryland, for unliquidated damages for any injury or damage to person or property unless, within ninety days after the injury or damage was sustained, written notice thereof
setting forth the time, place and cause of the alleged damage, loss, injury or death shall be presented either in person or by registered mail by the claimant, his agent or attorney, or, in case of death, by his executor or administrator, to the City Solicitor of Baltimore City, the County Commissioners, or the corporate authorities of the municipal corporation, as the case may be. . . .” On account of plaintiff‘s failure to allege compliance with the statute, the Court sustained the demurrers and entered judgment for defendants. . . . The Maryland Legislature has declared the county commissioners of every county in the State to be a corporation (
Code 1939, art. 25, sec. 1 ), and the Court of Appeals considers them to be a municipal corporation.The attributes of a municipal corporation are possessed by Washington Suburban Sanitary Commission to an extent amply sufficient to bring it within that designation. . . .
It is a fundamental doctrine that the Legislature may grant or deny to individuals a right of action against municipal corporations for injuries resulting from the negligent manner in which streets are maintained. When the Legislature creates a municipal corporation as part of the machinery of government of the State, it is within its province to adjust the relative rights of the corporation and the citizens. The Legislature has thus the power to enact a statute requiring that, before suit for damages shall be instituted against a municipal corporation, a written notice of the claim shall be presented to the municipal authorities within a specified period after injury or damage is sustained. Engle v. Mayor and City Council of Cumberland, 180 Md. 465, 470, 25 A.2d 446 [(1942)]; MacMullen v. City of Middletown, 187 N.Y. 37, 79 N.E. 863, 11 L.R.A.N.S. 391 [(1907)]. In order to maintain such an action, the declaration must allege that the notice prescribed by the statute was duly presented, for the notice is a condition precedent to the right to maintain the suit. If the declaration does not contain such an allegation, the defendant can object either by demurrer or plea. Engle v. Mayor and City Council of Cumberland,
180 Md. 465, 469, 25 A.2d 446; Greenleaf v. Inhabitants of Norridgwock, 82 Me. 62, 19 A. 91; Forbes v. Town of Suffield, 81 Conn. 274, 70 A. 1023; Reinig v. City of Buffalo, 102 N.Y. 308, 6 N.E. 792; Daniels v. Racine, 98 Wis. 649, 74 N.W. 553.
Id. at 73-77, 48 A.2d at 596-98 (emphasis added) (some citations omitted). Our original holding that the notice requirement is a condition precedent is especially important in that in Neuenschwander, we were reviewing a cause of action in which there was no immunity. Our holding in that case was totally unrelated to governmental or sovereign immunity issues. It was a pure condition precedent holding.
We subsequently discussed Neuenschwander‘s treatment of the notice requirement in Cotham v. Board of County Commissioners, 260 Md. 556, 273 A.2d 115 (1971), where a party was attempting to assert that the notice requirement was merely a statute of limitation that had to be addressed by a plea of limitations not by a demurrer.6 We said:
At [Neuenschwander, 187 Md. at 78, 48 A.2d at 599], he further described this act as “creat[ing] a condition precedent to the right to maintain an action for damages“. Cotham seizes upon the next words in Neuenschwander which described this act as “[having] the effect of a statute of limitations.”
Basically the same argument was presented in State v. Parks, 148 Md. 477, 129 A. 793 (1925), relative to suits arising under the Maryland wrongful death statute, now
Code (1970 Repl.Vol.), Art. 67, § 4 , which at that time provided “that every such action shall be commenced withintwelve calendar months after the death of the deceased person.” (Now two years.) The contention was made that this was merely a limitation on the time within which the action should be brought and therefore could only be availed of by a plea of limitations and not attacked by way of demurrer. In an opinion by Judge Walsh the Court held the provisions of the statute to be “a condition precedent to the right to maintain the action” and said that the characterization of the statute in an earlier opinion as a “statute of limitations” was not binding upon the Court in Parks. . . . .
In Redfern v. Holtite Mfg. Co., 209 Md. 106, 120 A.2d 370 (1956), the Court had under consideration what was then
Code (1951), Art. 101, § 38 concerning the time within which death claims were required to be filed under theWorkmen‘s Compensation Act . The claim on behalf of a child unborn at the time of the employee‘s death was filed more than one year after death. There was an attempt to rely upon the provisions ofCode (1951), Art. 57, § 2 relative to limitations as applied to persons under disability of infancy or insanity. That claim was rejected.In setting up the Unsatisfied Claim and Judgment Fund, the General Assembly provided for the filing of notice of intention to make a claim within 180 days after the accident. It is expressly made “a condition precedent to the right thereafter to apply for the payment from the fund“. See
Code (1970 Repl.Vol.), Art. 66 1/2, § 7-606 . . . .. . . .
In construing the Maryland act it must be borne in mind that it is of comparatively recent origin. It found its way into the Code of Public General Laws with the enactment of Chapter 809 of the Acts of 1943, following on the heels of an enactment for Montgomery County by Chapter 405 of the Acts of 1941. At that time it was applicable only to Montgomery, Prince George‘s and Caroline Counties. Even today it does not apply in all counties of the state. Since its enactment in 1943 it has been amended by the General Assembly at seven sessions. At the 1965 session three
separate acts were passed amending the statute and at the 1970 session two separate acts were passed. It must be borne in mind that prior to the 1965 session of the General Assembly such amendment could be made only in an odd numbered year. To hold that notice given on May 19, 1969, “upon discovery of the negligence” in this case complies with this statute would be to judicially place in the statute language which is not there. Examination of the body of Maryland law leads us to the conclusion that had the General Assembly intended notice under the circumstances here recited to comply with the statute, it would have so stated. The matter is one, however, that merits the close scrutiny of the General Assembly. . . .
Cotham, 260 Md. at 563-65, 273 A.2d at 119-20 (emphasis added) (some alterations in original).
Just as we said in Cotham, supra, 260 Md. at 565, 273 A.2d at 120, what the majority does with its decision in the case at bar, is to “judicially place in the statute language which is not there.” (Emphasis added.) Had the Legislature intended a provision that notice need not be given until 180 days after all of a cause of action‘s elements exist, it would have so stated.
We cited our holding that notice requirements were conditions precedent in construing time limitations on filing cases, in the wrongful death case of Smith v. Westinghouse Electric Corporation, 266 Md. 52, 55, 291 A.2d 452, 454 (1972), where one of the issues was a statutory requirement that “every such action shall be commenced within three years after the death of the deceased person.” We initially noted that the wrongful death action was a statutorily created action and then went on to discuss whether the time for the filing of that action was a condition precedent. Discussing a prior case we said:
Appellees contend that the effort of the General Assembly to have the amendment operate retrospectively is unconstitutional, first, because the period of limitations set forth in the Act is not merely a limitation of remedy but is a condition precedent to filing suit; and, second, because it
denies them the equal protection of the laws guaranteed by the 14th Amendment of the Constitution of the United States of America . Charles Street also contends that the question can be raised by motion for summary judgment. We agree.. . . .
In No. 371, Appellants contend that the question of limitations should have been raised either by plea of limitations or by demurrer (State v. Parks, supra) and cannot be raised by motion for summary judgment.
The period of time within which suit must be filed under
Article 67, section 4 , being a condition precedent to the institution of the action and not an ordinary statute of limitations, the question of whether the suit is barred by the statute can be raised by plea, demurrer, motion for summary judgment or any other appropriate procedure.
Id. at 55, 58, 291 A.2d at 454, 455-56.
We have remained consistent in our treatment of wrongful death cases. In the more recent wrongful death case of Waddell v. Kirkpatrick, 331 Md. 52, 57, 626 A.2d 353, 355 (1993), we framed the appellee‘s position as “they maintain that section 3-904(g) does not establish a statute of limitations at all; rather, it prescribes a time period as a condition precedent to maintaining a wrongful death action.” Judge (now Chief Judge) Bell wrote for the Court that:
As the appellant correctly concedes, the time period prescribed in section 3-904(g) has been construed by this Court to be a condition precedent to maintaining the action, rather than a statute of limitation.
In Parks, the issue was whether the requirement in the wrongful death statute then in effect,
Maryland Code (1912) Art. 67 § 2 , requiring “that every such action shall be commenced within twelve calendar months after the death of the deceased person“, is “a condition essential to the right to maintain the action given by the statute, or is merely a limitation of the remedy which must be pleaded to defeat the action.” Parks, 148 Md. at 477-78, 129 A. at 793. . . .
The [statute] create[s] a new legal liability, with the right to suit for its enforcement, provided the suit is brought within twelve months, and not otherwise. The time within which the suit must be brought operates as a limitation of the liability itself as created, and not of the remedy alone. It is a condition attached to the right to sue at all. . . . Time has been made of the essence of the right and the right is lost if the time is disregarded. The liability and the remedy are created by the same statutes, and the limitations of the remedy are, therefore, to be treated as limitations of the right.
In contrast, a statute of limitations affects only the remedy, not the cause of action. The failure of a defendant to raise the bar of limitations, timely, see
Once it has been established that section 3-904(g) is a condition precedent, as opposed to a statute of limitations, it follows inexorably that it does not fit within the prescription of
The situation in the case sub judice is similar, differing only in that a different statute, one relating to notice periods instead of filing periods, is involved. Judge Bell in Waddell, supra, held for the Court that, even though the plaintiff, who was three years old at the time her father was killed, could not maintain an action until she reached her majority, because the provision involved in Waddell was a condition precedent, she could not even then maintain the action, because it was
We construed the exact type of notice requirement at issue in the present case in Grubbs v. Prince George‘s County, 267 Md. 318, 297 A.2d 754 (1972), a case that was primarily concerned with the adequacy of notice by regular United States mail on the county attorney. There, as to the character of the notice requirement itself, we again opined relying on the earlier cases that:
As we have noted, having regarded § 187 as a statute of limitations, the court below placed considerable emphasis upon the need for strict construction. We observe here, mainly for perspective, that we have never held § 18 to be a statute of limitations. Rather, we have regarded it as a condition precedent to the right to maintain an action for damages. See Cotham and Maldonado v. Board, 260 Md. 556, 563, 273 A.2d 115 (1971) and Neuenschwander v. Wash. San. Comm., 187 Md. 67, 78, 48 A.2d 593 (1946).
Id. at 320-21, 297 A.2d at 755-56.
In a case challenging the validity of the Health Care Malpractice Claims statute, we noted that the predecessor statute to the one at issue here created a condition precedent, “(imposing as condition precedent to action against municipal corporation requirement that notice be given to it by claimant within 180 days after the injury or damage is sustained) (predecessor statute interpreted in Cotham and Maldonado v. Board, 260 Md. 556, 563-65, 273 A.2d 115, 119-20 (1971)).” Attorney General v. Johnson, 282 Md. 274, 283 n. 9, 385 A.2d 57, 62 n. 9 (1978), overruled on other grounds by Newell v. Richards, 323 Md. 717, 594 A.2d 1152 (1991). In Trimper v. Porter-Hayden 305 Md. 31, 501 A.2d 446 (1985), we were concerned with an issue of the applicability of the discovery
In construing the notice limitation under the
The plain language of
SG § 12-106(b) undermines Leppo‘s position. The 180-day requirement is a condition precedent to the institution of a third-party action against the State. Lopez v. State Highway Admin., 327 Md. 486, 490, 610 A.2d 778 (1992); Simpson v. Moore, 323 Md. [215,] 225, 592 A.2d 1090 [(1991)]. . . .
In Haupt v. State 340 Md. 462, 667 A.2d 179 (1995), an appellant asserted that the notice period under the
The purpose of the notice requirement of
§ 12-106 is patent. Requiring that notice be given to the State within 180 days after incurring the injury to which the claim relates obviously is designed to give the State early notice of claims against it. Johnson v. Maryland State Police, 331 Md. 285, 296, 628 A.2d 162, 167 (1993). That early notice, in turn, affords the State the opportunity to investigate theclaims while the facts are fresh and memories vivid, and, where appropriate, settle them at the earliest possible time.
. . .
The majority, in my view, misconstrues this Court‘s holding in Haupt by citing only a portion of our opinion, saying: “In Haupt . . . we considered the question of when an injury arises pursuant to the notice requirement of the MTCA [Maryland Tort Claims Act] for third party claims. We held that notice had to be given when the “legally operative facts” permitting the filing of the claim came into existence.”
First, Haupt was an action under the MTCA, not the LGTCA.
Haupt focused on the provisions of
The 180-day requirement is a condition precedent to the institution of a third-party action against the State. . . . [T]he only exceptions designated are cross-claims and counterclaims. The General Assembly could have added third-party claims to this short list, but it chose not to do so.
In Haupt, we continued by initially noting that the purpose of the notice provision “obviously is designed to give the State early notice of claims against it. That early notice, in turn, affords the State the opportunity to investigate the claims while the facts are fresh and memories vivid. . . .” Id. at 470,
We then noted that “[g]iving . . . its ordinary and common-sensical meaning, a claim is a broad and comprehensive term encompassing all species of legal demand.” Id. at 473. 667 A.2d at 184. We thereafter distinguished matters relating to third-party claims from direct claims.
While the date and place of the alleged tort are known at the precise moment when the accident occurred, the nature of a third party claim may not be known until much later. . . .
. . . In other words, a third party claim may be brought even though the defendant in the underlying action has suffered no actual injury. For purposes of a third-party claim, therefore, “injury” has a different meaning than it has in the first party context.
Id. at 475, 667 A.2d at 185 (emphasis added).
We then, even in a third-party context, held just the opposite of what the majority holds in this case in respect to first party claims. We held:
Although a claim for indemnification or contribution does not accrue until judgment has been entered against the party seeking indemnification or contribution, that does not mean that the party may delay giving the section 12-106(b)(1) notice until that time. The timeliness of the section 12-106(b)(1) notice is not tied to when a particular cause of action accrues; rather, it is dependent upon the
point at which the claimant suffered personal or property damage injury.
Id. at 476-77, 667 A.2d at 186 (emphasis added) (internal citations omitted).
In the case at bar, Heron was “injured,” in the context of the notice provisions of the LGTCA when he was arrested and criminal proceedings commenced against him—not, as the majority now holds, when all elements of this cause of action accrued upon his acquittal. The position the majority takes in this case is actually inconsistent with the Court‘s holding in Haupt, when that case is considered in its entirety—and especially considering the conspicuous absence of exceptions in the LGTCA.
The intermediate appellate court has consistently applied our cases holding that the notice provision is a condition precedent. Rivera v. Prince George‘s County Health Department, 102 Md.App. 456, 649 A.2d 1212 (1994), cert. denied, 338 Md. 117, 656 A.2d 772 (1995) (notice is a condition precedent under the State Act that serves to provide the State with sufficient time to investigate the claim); Prince George‘s County v. Blumberg, 44 Md.App. 79, 112, 407 A.2d 1151, 1172 (1979) (primarily concerned with application of the good cause provisions of the then statute), affirmed in part, remanded in part by 288 Md. 275, 418 A.2d 1155 (1980). The Court of Special Appeals even applied the condition precedent aspect of the statute to limit the period for which damages could be collected in a “continuing” tort case in Anne Arundel County v. Litz, 45 Md.App. 186, 197-98, 412 A.2d 1256, 1262-63 (1980):
The trial judge refused to grant the appellees damages because of their failure to give proper notice pursuant to
Md.Code, Art. 57, § 18 . Appellees argue that the statute does not apply to continuing and continuous invasions of property as were present in this case. Although a cause of action for a continuous injury is not cut off by the limitations period, damages for recovery in cases where there is a continuous invasion have been limited by the statutoryperiod. See Shell Oil Company v. Parker, 265 Md. 631, 291 A.2d 64 (1972); Martin v. Arundel Corp., 216 Md. 184, 140 A.2d 146 (1958); Consolidated Public Utilities Co. of Westminster v. Baile, 152 Md. 371, 136 A. 825 (1927); Commissioners of Aberdeen v. Bradford, 94 Md. 670, 51 A. 614 (1902). Thus, in this case, appellees could only recover for damages occurring 180 days prior to giving notice.
This holding is supported by cases interpreting
The rule that damages may be limited to the notice period under the statute is supported by cases from other jurisdictions. In Thomann v. City of Rochester, 256 N.Y. 165, 176 N.E. 129, 130 (1931), Judge Cardozo, in interpreting a statute which required notice to be given to the municipality within thirty days, stated:
“[The landowner] did not lose the right to some measure of relief by failing to give notice within the term of thirty days. What he lost was the right to include in the relief an award of damages antedating by more than thirty days the presentation of the notice in the statutory form.”
See also, Doran v. Town of Cheektowaga, 54 App.Div.2d 178, 388 N.Y.S.2d 385 (1976). [Footnote omitted.] [Alteration in original.]
In the case of the notice provisions of the LGTCA, they have existed in Maryland law since 1943; long before the enactment of the present LGTCA and long before the enactment of the MTCA. These conditions have been judicially
I believe that the relatively recent legislative history of the modifications of the statutes applicable to local governments, do not reflect any legislative intent to make it easier to file actions for unliquidated damages against local governments. The Bill Analysis of the Senate Judicial Proceedings Committee concerning Senate Bill 237, subsequently finalized as Chapter 594 of the Acts of 1987, (the Local Government Tort Claims Act) provided to the Legislators, that: “The bill also sets as a condition precedent to the suit against a local government for unliquidated damages, the giving of notice at least 180 days after the claim. . . .” (Emphasis added.) The term “at least” is a clear mistake. It is obvious that the Analysis meant “within” 180 days. In describing the changes to the
In recent years, local governments have increasingly become targets for liability claims.
Senate Bill 237 will address the existing liability crisis for local governments and problems of increasing claims, higher judgments, larger settlements and the availability and affordability of insurance.
Cities and towns may pay the bill for higher and higher insurance premiums, but it is the taxpayer who is the real victim. The choice for all local governments, when presented with huge cost increases is either higher taxes or reduced services.
The testimony in support of, and in opposition to, the bill all support that it was intended to strengthen local governments’ abilities to withstand suits, and the judgments resulting from them. The statement of Ms. Maureen Lamb, the First Vice-President of Maryland Association of Counties and Chairperson of its Legislative Committee, as well as a member of the
In analyzing the situation it was soon realized that the problem was greater than merely a down cycle of the insurance market. Insurance companies were not only raising prices, they were abandoning the business of insuring governments.
. . . .
Two recent events will give you some idea why our association continues to support this bill before you. On the tenth, Monday two weeks ago, Washington County was informed that their insurance policy for public officials’ liability would not be renewed. At the end of that week Caroline County received even worse news, their carrier for general liability and some property coverage was not renewing a relationship which had lasted for over 20 years. . . .
Local governments need the protection afforded by the Local Government Tort Claims Act because we are facing a liability crisis[:] everyone wants to sue us. Our liability is only limited by the size of our tax base. Unlike corporations and persons operating in the private sector, it is just not right for us to seek the protection of bankruptcy. We are the ultimate deep pocket, and because of the unique services we provide services which affect the day to day lives of most citizens—we are constantly vulnerable to suit.
Representatives of the Maryland Municipal League, Montgomery County, and Baltimore City testified similarly, directly or by document, in support of the bill, as did Governor Schaeffer. The major provisions of the amended statute addressed cap provisions, but, as the legislative reports indicated, the Legislature, at least through its committees, was well aware that the 180-day notice provision was to continue to be viewed “as a condition precedent to a suit” and that the bill “requires that a notice of claim be given within 180 days of the injury as a condition precedent to the bringing of an action. . . .”
I reiterate: notice and immunity, although both can be used to effectively curb lawsuits, serve different purposes. While immunity protects the government (and sometimes other entities) from lawsuits, notice gives the government time and a prompt opportunity to investigate claims in order to determine whether the claims might be, or might ripen into, causes of action against the governmental entity.
If the notice provision at issue is a condition precedent to maintaining a suit for unliquidated damages, as I believe it is, and as this Court since 1943 has consistently said it is, the time to give notice, as we so recently stated in Haupt, starts to run, not when a cause of action might finally accrue, but when the incident allegedly damaging a party, that gives rise to a claim, or potential claim, occurs. The majority‘s present position is inconsistent with a line of cases of this Court holding that the notice provision is a condition precedent. Moreover, it ignores the off-stated purpose of the notice provision being construed. Accordingly, I would affirm.
Chief Judge BELL and Judge WILNER have authorized me to state that they join in the views expressed herein.