*1 KENNETH et ux. v. PRINCE GEORGE’S JAMES
COUNTY, MARYLAND DAWSON v. PRINCE GEORGE’S ARTHUR DOUGLAS COUNTY, MARYLAND et al. Term, 158, September 1979.]
[No. September
Decided *2 2, 1980; filed October denied Motion for reconsideration October J., C. argued
The cause was before Smith, Murphy, JJ. Rodowsky, Digges, Eldridge, Cole, Davidson Taglieri, James W. with whom was Robert Cadeaux on the brief, Pyne, John J. with whom Kenneth James et ux. brief, Douglas Arthur William P. Dale on
Dawson. *3 Bliden, County Attorney,
David Associate with whom S. Ostrom, County Attorney, and
were Robert B. Michael O. brief, County Attorney, for Connaughton, Deputy on the Feissner, appellee George’s County. Prince Karl G. with whom were Eric S. Slatkin and Feissner & Beckman on the brief, appellee West Lanham Volunteer Fire Department, Inc.
Digges, J., opinion delivered the of the Court. C. Murphy, J., in part part, opinion concurs and dissents in and filed an concurring in part and dissenting part in infra. page 337 actions,
These two which been have consolidated and are by here on certiorari before their consideration the Court of Special Appeals, present primarily for decision the same — question general county extent to which a charter may, George’s County and Prince present did as it affects the cases, governmental immunity waive so as to make it liable for damages by negligent caused or acts its officials agents. situations, Since we conclude both that there are and they here, exist being imposed which can result
upon positioned present counties as Prince cases, by the circuit judgments we will reverse the entered county immunity grounds, on dismissing, court of that appellants’ prior causes of action to trial.
The each of these cases comes background factual basically declarations filed in these appellants’ from case, may briefly actions and appel- related. the first $2,000,000 lant Douglas damages Arthur Dawson seeks appellees, George’s County Prince and the Volunteer Hills, Inc., Fire Department Maryland, of West Lanham truck, personal injuries sustained in March 1976 when a fire operated by a member of company the volunteer fire assistance, response alleged to a call for was to have been negligently into Luck driven the intersection of Good Road Cipriano George’s County, Road in Prince where it struck Dawson’s automobile and propelled across intersection into an electric before pole. second case us also involves a motor vehicle accident a collision between an operated by appellant automobile owned and Kenneth by James an George’s County. ambulance owned Prince The declaration which filed appellant and his wife (also Court) appellant only against Elizabeth an before this George’s County, that, asserts in November county negligently agent ambulance was driven an employee of the into the intersection of Marlboro Suitland, Pike and Maryland, Brooks Drive where it collided with the James vehicle.1 As a result allegedly of this act, negligent individually personal Mr. James claimed property $1,000,000, damages of while he and his wife $25,000 jointly requested damages of for loss of consortium. asserted, by way of a filing pleas, appellee Prior to each *4 Raising Preliminary Objection, Motion that it was immune alleged by conduct type for the of tortious company, The fire on the one Dawson and James. volunteer hand, argued that it was entitled to charitable county’s report, response to the 1. The accident which was filed case, part appellants’ particulars pleading in this Md. was demand for Rule operating proceeded and is call, emergency that the ambulance was on an indicates collision, emergency lights the and had and siren at the time of although signal for it was red. into the intersection the traffic county, on the The status. nonprofit, charitable due to its George’s Prince that, though the even other, contended immunity which governmental waived the County Charter liable still not was enjoyed, it nonetheless previously it had agents acts of its negligent by the any damages caused with cloaked officials” "public were individuals since these so, This was conduct. immunity for their qualified personal doctrine of the under county, because asserted based,2 it, as each suit upon which superior, respondeat derivatively liable for the held may not be principal, incurred, actual tortfeasor when damages plaintiffs the Cir- rulings, By separate responsible. not also be would posi- County agreed with George’s Court for Prince cuit damage dismissed accordingly, appellee, of each tion appeal This then James. Dawson and actions of both nonliability is central followed; and, county’s claim of as the issue. case, first address that we shall to each county’s analysis of the begin our proper place to county’s own of the provision with the claim of — County George’s the Prince 1013 of organic law section observed, recently expresses which, as this Court Charter "to waive the county’s voluntary determination law for its enjoy at common immunity it would otherwise Md. George’s County, v. Prince acts ... .”Bradshaw (1979). first 1013 was Section A.2d 259-60 charter, February effective part original enacted as County pursuant George’s Prince people At the time Maryland Constitution.3 Article XI-A of the incorporated nonprofit volunteer for the reader that all 2. We should note instrumentality code, are, by county to be an companies "declared fire (a) George’s County Code 11-207 George’s .. ..” Prince (1975). conjunction provision, with sections recently that We held powers establishing county the office and 11-126 of the code 11-125 and direction of the chief, control and place firemen under the fire volunteer from, fighting Co. fires. Prince county going when to or or when (1975). 383-84, It is A.2d 271-72 Chillum-Adelphi, 275 Md. liable, holding on link for which forms the this control firefighters. grounds, respondeat superior the actions of volunteer authority govern is limited to county’s power and A charter Constitution, Maryland XI-A, § directly by 1 of the granted through pursuant Article Assembly by the General given express powers such counties Board, Partnership v. See Ritchmount 2 of that same Article. 48, 58-59, *5 (March 1976), involving appellant the accident Dawson the its read: provision, inception, as it had from LIABILITY. Section 1013. GOVERNMENTAL sounding in in County may be sued actions The and to the same extent that tort in the same manner may The shall any private person be sued. limits to carry liability adequate insurance with injury damage prop to compensate persons other erty negligence resulting officers, agents, employees. of its wrongdoings County from Nothing preclude herein shall by of this a meeting requirements section program.[4] funded self-insurance however, amended, November 1013 was Section addition, made the General to an order to have conform Act. year, Express Powers Assembly in that earlier Art. (1957, Vol., Supp.), Cum. Repl. Md. Code (CC). 25A, now reads: § 5 The section constitutionality 4. Without section Court addressing uphold George’s County, did it in effectiveness of Bradshaw Prince 294, 297-99, being as within the broad grant power legislate general Express welfare in the contained (S); Act, (1957, Vol.), 25A, likewise, Repl. Powers Md. Code Art. constitutionality provision questions no one consider it. of the here and we do not provides: Express provision Powers Act This county provide To ordinance or inclusion in the charter for the county may sovereign immunity waiver so that the be sued in any tort actions in the same manner and to the same extent private person may legislation Any county enacting be sued. chartered waiving sovereign immunity under this or otherwise carry and its liability protect comprehensive subsection shall insurance to itself, shall be considered as for expense. be whichever is which has powers eign coverage. itself of agents employees. purchase The of this insurance public purpose and as a valid may any county not The under this subsection $250,000 greater coverage, than or the amount of its insurance greater, per per A individual occurrence. adopted legislation itself of the or otherwise availed may sover- contained in this subsection raise the defense of any amount in excess of the limit of its insurance case, county availing any any several counties or may privileges not raise the defense of this subsection $250,000 any than or the sovereign claim of less LIABILITY. 1013. GOVERNMENTAL Section County may sounding in actions sued *6 filed in the courts of the State of by tort actions Court for Maryland, or in the United States District Maryland, the of with a maximum District ($250,000) Fifty of Two-Hundred Thousand Dollars individual, occurrence, to the extent of its per per may greater. be The coverage, insurance whichever protect carry liability insurance to County shall itself, officers, employees. Nothing agents, meeting County the preclude shall herein by a funded requirements of this section herein shall program, nothing self-insurance charitable, any be to a waiver of deemed immunity any governmental, sovereign or which have, by officer, agent, employee shall otherwise or any States of reason of Statute of the United America, general law of the State of by or law as determined Maryland, common Maryland.[6] of of the State Courts George’s Charter
It is clear that amended since the cause action the James’ pertains to provision date of effective occurred after the alleged negligent conduct monetary contained limitation change; that whether the to Dawson’s applies appellant that charter modification which is not question is a already cause of action accrued l.7 from the fact that This results appea now us on this before have predecessor provision and its both the amendment us, i.e., they both presently before same effect on the issue immunity. county’s governmental purport to waive the own coverage, greater. [Md. Code amount of its insurance (1957, whichever is (CC).J 25A, Vol., Repl. Supp.), Art. 1979 Cum. waive, they grant explicit power if so to charter counties to This initial elect, governmental immunity July In these became effective on it, cases, concerning express any questions upon views not called since no one are legislative validity any portion enactment. of this extent, upon all, 6. Also we are not called if here to consider the that may county governmental immunity a charter elect to waive in a more by Express restrictive manner than that authorized Powers Act. monetary question already application appellant 7. The limitation’s damages Dawson’s not accrued cause action will arise unless the restriction, eventually awarded not now exceed and therefore we do consider it. immunity 1013’s initial waiver scope of section George’s Court in Bradshaw v. Prince first examined this County, we held when the supra. There that.- charter, "in the same consented, in its be sued original any private person,” [as] extent manner and to same any private for those torts for which accepted responsibility liable, directly derivatively. or either person could be held Moreover, at 259-60. we concluded Id. at County did not of Prince people Bradshaw that intend, 1013, to of section eliminate the enactment in certain instances which available individual 303-04, A.2d at county’s public officials.8 Id. at in the amended expressly 261. Such intent is now stated "nothing shall be deemed to be a waiver of charter: herein charitable, governmental, sovereign which any ....” any officer, employee shall otherwise have agent, or *7 in State Having private persons that further observed agent, who not held for the torts of an could liable (i.e., spouse, relationship reason of his to the tort victim child) immune, or this Court reasoned parent personally was principle prevent in that a similar should Bradshaw agents of its county being held liable for actions from immunity. A.2d at have Id. at public-official who continuing integrity of our decision Accepting liability if that the remains without Bradshaw— is is the act of an on the suit based tortious conduct which — the central issue individual is immune personally who case now is whether present Court in the before this officials”; and emergency "public vehicles were drivers so, agents these protect if official would whether exclusively Relying on liability negligent for their acts. from is police officer this Court’s decision in Bradshaw that a immune for official” who "public during his performance nonmalicious acts committed duties, the drivers all the circuit court determined that are, emergency police, engaged as are authorized vehicles authority county possesses 8. We do here not consider whether immunity enjoyed by public eliminate the officials. Thus, responding exercise of discretion a call. they reasoned that are public officials and immune. Specifically, pointed the trial court to the fact that alarm, response to an the driver had to decide whether to use sirens, taken, emergency signals his the route to be how proceed fast to through and which traffic rules of the road disregard. While agree that the emergency driver of an many vehicle must make decisions in the operation of that conveyance, we cannot agree that he is thereby always (even official) immune assuming he public is a negligently carrying out the driving decisions made. We explain. governmental
Before a representative in this State is relieved of liability acts, negligent his it must be determined following independent factors (1) simultaneously actor, exist: the individual alleged whose negligent issue, conduct is at is a official rather than (2) government a mere employee agent; his tortious conduct occurred while he performing discretionary, as opposed ministerial, acts in furtherance of his official E.g., duties.9 Koustenis, 98, 104, Duncan v.
A.2d 109, 113-14, (1970); State, Use, Clark v. Ferling, 220 Md. (1959);
151 A.2d
139-40
Cocking Wade,
529, 541,
Md.
(1898);
A.
Macy Heverin,
Md. App.
(1979);
accord,
Mayor
Schoonfield v.
City
Baltimore,
&
Council of
399 F.
(D.
Supp. 1068, 1088
(4th
1975), aff'd,
Md.
individual involved free 302-04, 284 at 396 County, supra, Md. George’s v. Prince Comm’rs, 260-61; 262 Md. v. Bd. of A.2d at Robinson (1971). 342, 346-47, The rationale 278 A.2d public purpose this "is that a underlying grant they in an when act exercise by protecting officials is served County, of their discretion.” Bradshaw v. A.2d at 261. supra, 284 Md. at — establishing for The first factor required been a official has whether an individual recent decision often Court. Our most considered this context concept "public a official” this dealing with the Koustenis, forth the follow- supra, v. where we set is Duncan making used in ing principal guidelines be determination:
(i) created law and involves position The continuing not occasional duties. and (ii) duty. performs important public The holder an (iii) por- of some position The calls the exercise sovereign the State. power tion (iv) for which a position a definite term has oath are bond and an commission is issued required. Accord, Attorney e.g., at at Board
Id. A.2d 550. (1967); General, 439, 229 Moser A.2d Md. 279, 281, County Board, 235 Md. Howard Trustees, 446, 449, Gary v. Board of conclusive, not 475, 477-78 guidelines These are A.2d may emphasis placed be on each varies which case. depending upon present the circumstances each A.2d at Koustenis, Md. at supra, Duncan v. Moreover, well-recognized there least two are four exceptions requirement to the that the above factors Judge Barnes this Court present, explained by as Duncan: individual most of the
[A]n [who] fails meet tests, yet to be above is nevertheless considered *9 official, large public one] exercisers] who "a [is a ..., portion sovereign power government” of v. County Howard Commission Metropolitan 340, 193 Westphal, 232 Md. A.2d well on to [as one] as who can be called exercise peace. [a] conservator police powers as Koustenis, 260 Md. at supra, [Duncan 551.] at A.2d County goes great lengths in its brief
this Court to demonstrate that the drivers of the fire truck
and the
"public
ambulance are both
officials” under the rules
just
Maryland
we have
While
are
outlined.
there
no
directly
is,
point,
by analogy
decisions
on
there
cases
officials,
holding police
this Court
officers to be
see
George’s County, supra,
Bradshaw v. Prince
Foundry, (same); however, 154 Wash. P. we find that need we not decide whether such individuals are State, "public are, officials” in they this for even if the drivers fail, view, in our requirement necessary meet second public-official immunity establish the alleged (here, negligent ordinary act driving and routine of an vehicle) emergency is one which involves discretion as to how the police power of the sovereign should be exercised. previously indicated,
As
protection
"public
afforded
officials”
this
depends upon
State’s
doctrine
nature of
agent being questioned.
the conduct
distinction which this Court
developed
past
has
in the
determining
"public
whether a
official”
immune from
individual,
is whether
the time the
occurred,
complained of act
performing
discretionary
former,
ministerial
public-official
task.
If the
then
latter,
shields him from
if
liability, but
then
Comm’rs,
See, e.g.,
v. Bd.
it does not.
Robinson
*10
346-47,
74;
v.
at
Duncan
at
278 A.2d
supra, 550;
Cocking
at
Koustenis,
at
271 A.2d
supra, 260 Md.
A
Wade,
A.
similar
Md. at
at 106.
supra, 87
v.
majority
our sister states.
in the
developed
has
distinction
James,
29.10,
at nn.
See,
supra,
& F.
e.g.,
Harper
2 F.
cases);
Prosser,
(citing
W.
numerous
accompanying
and
text
rule);
Rhyne,
Rhyne
W.
C.
(majority
supra,
at 988-89
Liability
Immunity Municipal
Elmendorf,
and
Tort
& S.
dividing
line between
While
Officials 15-25
Maryland,
longstanding
immunity and
is one of
difference between
only rarely explained the
we have
State, Use,
v.
Clark
discretionary
ministerial acts.
and
Prescott,
(1959),
Judge
summarized years ago: certain, absolute, duty officer’s] is [a
Where of a involving merely execution imperative, — — words, simply is ministerial in other set task injured anyone specially to damages he liable task, or omitting perform either his unskillfully. On the it or performing negligently discretionary, hand, powers his are other where according judg- be exerted or withheld his own necessary is not proper, ment as what is he any private persons neglect liable to to exer- powers, consequences cise those nor for the of a them, lawful exercise of where no corruption keeps malice can be imputed, he within Cook, authority. scope [Doeg of his 126 Cal. (1899).] 707, 708
58 P. (Second) § 895D, See also (1979) Restatement Torts comment f (factors in determining whether function is others, discretionary include, among function, nature of importance operational, to public, planning essentially decision); al., (discretionary political supra, Rhyne,et C. requires in nature quasi-judicial
function *11 personal judgment). deliberation
When attempting classify to particular the actions of a official, public a court should be not the careful to let mere fact questioned that decisions made in performing are task be liability determinative whether of attaches to the conduct, sense, "[i]n a strict action every government of a employee, except perhaps action, a conditioned reflex involves degree the use of some of discretion.” Swanson v. (N.D. 1964). States,
United 229 219-20 Cal. Supp. F. Or as has been expressed: otherwise "it would be difficult to any act, conceive of official matter directly no how ministerial, that did not admit of some discretion manner its performance, of it only even if involved driving State, of a nail.” v. Johnson 69 Cal. 2d 447 P.2d banc). 352, 357, (1968) (en Thus, 73 Cal. Rptr. an act falls within the discretionary public function of a official if the decision which involves an of personal judg- exercise his includes, ment also to more than a minor degree, the manner police which power of the State should be utilized. The case now presents before us an example excellent of what we mean. driving emergency of an vehicle as such an requires, ambulance or fire driving truck as does the of any automobile, that a of regard number decisions be made with to decisions, however, of operation. manner Such involve all, degree, minimal if at the exercise of with discretion grants sovereignty. While State law
regard to the State’s when operators of these vehicles privileges certain (1977), Transpor signals, visual Md. Code using audible 21-106(b),10 relieve the driver an Art., § it "does not tation duty regard drive with due emergency vehicle from (d). light In of this safety all Id. at 21-106 persons.” a truck section, part on the of fire is minimal discretion there drives; did not if this statute he but even driver as to how ordinarily oper exist, nevertheless hold we would official,” one, including by any "public a a ation of vehicle States, See, Friday United e.g., act. v. a mere ministerial (9th 1957) truck); (government Florio v. Cir. F.2d 535, 129 Jersey City, 101 N.J.L. A. Mayor and Aldermen (fire (1925) truck); Tilton, Hansley 234 N.C. (school (1951) bus); Gandy, Wynn 65 S.E.2d bus). (1938) (school Cf. Md. Va. 197 S.E. 23A, (1957, Vol., Cum. Art. Repl. Supp.), Code (b) arising § IB official not immune for torts out (municipal automobile). contrast, In if operation what had discretionary arising us a suit out of the decision before was authorized) destroy generally a (although of a fire chief fire in non-burning building order to contain a specific this nearby building, another we would have no doubt that official from since action would isolate judgment expertise involves an exercise of his personal police power. furtherance of the State’s vehicle, operation of a sum, that the normal we hold mission, ordinarily is not including emergency those on an the driver discretionary will shield act for which *12 Therefore, the individuals since liability for negligence. waiver, neither, immunity, does possess with its here no (b) provides: Transportation Article 10. Section 21-106 (b) privileges. the stated in Under circumstances Enumeration of (a) section, may: emergency vehicle subsection of the driver of an this (1) title; regard provisions to of this Park or stand without the other (2) only stop signal, stop sign, yield sign, after red or a but Pass a or a slowing necessary safety; down as for (3) limit, any speed only long as the driver maximum but so Exceed endanger property; does not or life (4) regulation any governing Disregard traffic control device or turning specified direction of or in a direction. movement if George’s County; operation Prince the of these county’s negli- vehicles furtherance of the business was gent, George’s County any damages Prince liable then is by George’s such v. Prince caused conduct. Bradshaw County, supra. above, is, expressed addition to the conclusion there
because now respect entertain a different view with to Bradshaw, of some the issues addressed another basis for holding George’s Prince for the if damages, liable any, by negligent agents. caused the conduct of its As opinion, discussed the previously people this of Prince waived, charter, George’s County through county’s their governmental immunity by own to "in consenting suits sounding actions in tort in the same manner and to the same may sued,” any private person extent that which we limiting county’s liability construed in Bradshaw as to only agents. Upon those torts committed its non-immune reflection, however, further we now that conclude such of language construction this in scope, too narrow voluntary the terminology chosen reflects a election people part on provide of their government notwithstanding personal status amenability to suit of the agent individual who commits the explain. tort. We governmental
When waiving immunity for tortious conduct, George’s County, by assenting to suits "in the same manner and to the same "any extent” as that of private person,” employed which, words their because of general nearly use all of the waiver statutes throughout country, as well as their interpretation, may considered, now be context, when together used in this a phrase See, e.g., constitute art.11 28 U.S.C. Although provision the modified waiver of the Prince
County Express immunity Repl. VoL, art, Charter does not contain these words of section permitting Powers Act governmental charter counties to waive adopt does (1957, this same See phraseology. Md. Code (CC) (set Supp.), 25A, supra.) 1979 Cum. Art. out in full n. amended, Since pursuant Section as of the charter was enacted (CC) 25A, section 5 phrase Article our construction "in the same any manner private person” and to the applicable [as! same extent both
330 (1973); Ann. (1970); § Fla. Stat. Rev. Stat. 24-10-106 Colo. (West 768.28(5) 1980); Supp. § Haw. Rev. Stat. Cum. 25A.2(5)(a) (1976 Vol.); § § Iowa Code Ann. Repl. 662-2 (1976 (West Repl. § 1978); Mont. Ann. 83-701 Rev. Codes (1971 Vol.); Vol.); 81-8,210(4) Repl. Nev. § Neb. Rev. Stat. 8;§ (1973); § Act. N.C. Gen. 41.031 N.Y.Ct.Cl. Rev. Stat. (1978 Vol., Supp.); Ohio Rev. Repl. § 1979 Stat. 143-291 2743.02(A) 1953, R.I. Gen. Supp.); 1979 (Page § Ann. Code Ann. (1956, Tenn. Code Supp.); § 9-31-1 1979 Laws 23-3302(4) Ann. tit. (1956, Tex. Civ. Code Supp,); § 1978 (Vernon 1970, Wash. Rev. Code 6252-19, Supp.); § 1979 3 (1962, Supp.).12 The construction 1980 Ann. 4.92.090 of our sister in the courts given language to this which, logic, are contrary sound jurisdictions, unless meaning of this authority for the intended persuasive Hamilton, Md. 256 C. & J. Fund v. phrase, see Unsatisfied (1969); Hospital 303, 56, 58-62, Joseph St. 259 A.2d 305-07 732, 371, 377, 735-36 Quinn, 241 v. Md. entity for conduct is liable applicable governmental that the by private person if... done a "which would actionable 217, P.2d State, 2d 595 92 Wash. setting.”Edgar v. private (1979) banc) (en added); accord, e.g., 534, (emphasis 539 States, v. 352 U.S. Incorporated United Rayonier (1957); 374, 1 Towing L. 354 Indian 318-19, 77 Ct. Ed. 2d S. 64-65, States, S. Ct. 76 v. United 350 U.S. Company (1955); Indian Corp. Carrier v. L. Ed. 48 Commercial 100 (Fla. State, 1979); 1010, 1017 v. Rogers 2d Cty, So. River State, (1969); v. Upchurch 459 P.2d Haw. (1969); District Ct. State v. P.2d Haw. (Mont. Dist., Judicial 572 P.2d of Fourteenth 275, 307 236, 237-38, State, 1977); N.Y.2d N.E.2d Jones York, City of New Bernardine 352 N.Y.S.2d county. waivers Express provision of the authorization We also note waiver Assembly prior our decision Act was enacted General Powers adopting Bradshaw, thus, question legislature our no there is language the Prince found in earlier construction of terminology in 25A the Code. Article Charter when it used similar that, law on administrative as of Davis notes his treatise 12. Professor 1976, thirty-four extent which at least some states have enacted statutes Davis, immunity. unconditionally governmental K. Administrative waive Law the Seventies 25.00-1 *14 (1945); 361, 604, 294 N.Y. 62 605 Macfarlane v. N.E.2d Com’n, 385, R. 244 S.E.2d North Carolina Wildlife N.C. 93 557, 27, (1956); State, Misc. Harris Ohio (Ct. 1976). words, N.E.2d the govern Cl. other ment, statutes, with equally under such is answerable of private corporations wrongs individuals and for the its thus, not, as employees, officers and a court should Bradshaw, County did in George’s private treat Prince as a entity public-official agents, private with but rather as a entity utilizing private persons agents.13 as its See York, v. City supra, Bernardine of New 62 N.E.2d at if Consequently, complained performed by the of is conduct representative acting while the of his scope within employment manner, negligent but in a Prince for subject resulting damage, will to suit the without to fact regard agent public-official that the has immunity. — that,
Even without
for
of
purposes
determination
county liability,
county’s
agents
are
be treated as
though they
private persons
were
we would still hold that
George’s County
of
under
the terms of each
its
responsible
successive waiver
provisions,
is
the torts
mean, however,
court,
determining
13. This
not
does
that a
when
governmental agent
negligent,
ignore
whether an
of a
act
is
should
status of the individual involved and the situation which
him when
faced
engaged
complained
Bradshaw,
example,
supra,
he
in the
of conduct. For
in
negligence alleged
county police
properly
was the failure of
officers to
they
hanging
dumpster.
care
Concluding,
a child which
observed
from a trash
tests,
following
dead,
officers,
that the
order
infant
in
preserve
investigation
they
aid
as an
further
their
of what
deemed to
crime,
attempt
be the scene of a
did not remove the child and
to revive him.
(or
Md.
negligence
doing
conclude
to be mentioned
except
in the limited circumstances
possibly
immunity of the
permit a
to assert the
presently,
principal
agents’
Respondeat
in a
founded on the
conduct.
agent
suit
known,
a prin-
as it is also
superior,
vicarious
that, by reason of some
tort
"means
ciple of
law which
B,
A
negligence
A
relationship existing between
B,
part
B
no
against
although
played
has
charged
is to be
it, or
it,
encourage
whatever
to aid or
nothing
has done
prevent
it.” W.
all
can to
possibly
indeed has done
that he
most
arises
Prosser,
The doctrine
often
supra,
at 458.
the torts
their
against
of suits
masters for
the context
'As a
employment.
their
servants committed in
course of
*15
courts,
rule,
by
majority
a
American
general
followed
vast
of
servant’s conduct even
the master
liable for the
remains
personal
of a
though the
himself not liable because
servant is
James,
26.17,
§
at
supra,
F. &
Harper
F. 2
immunity. See
(1965
677,
cases); Annot., 1 A.L.R.3d
(citing
1427 n. 6
jurisdictions
from 25
Supp.) (citing
&
cases
American
1979
(Second)
Canada);
Agency
of
England &
Restatement
plus
Seavy,
Agency
Law of
§ 217
W.
Handbook
the
(1964).
However,
to this
exception
167
there
an
at
view,
a handful of other
recognized
Maryland
the
employer
an
to assert
jurisdictions,
permits
which
by
of the
in a
a member
immunity
employee
of the
suit
178
family.
Brewing Company,
employee’s
Riegger
See
v.
(1940) (suit
by
against
518, 523,
wife
Md.
101
Annot., A.L.R.3d, supra,
1
at 685-86
employer);
husband’s
immunity granted
jurisdictions).14
from six
(citing cases
joined
minority
Maryland
the
that after
small
Our research indicates
superior
Riegger
adopted
principle
respondeat
v.
of states
this
jurisdiction,
Brewing Company, 178
A.2d
no other
Md.
99
Columbia,
Gaffney,
except
Supp.
v.
141 P.
for the
see Baker
District
(D.D.C. 1956)
own),
(following Maryland
adopted
as its
has likewise
it.
law
fact,
Riegger
Maryland
concerning
Review
the
decision
In
points
a note in the
Law
case,
clearly
trend was
that when this Court decided that
the
out
opposite
Professor Prosser
L.
n.
the
there taken. 6 Md. Rev.
While
view
Maryland
characterizes
view of vicarious
inter-family immunity
it
this
as "obsolete” in that
confuses
area of
Prosser,
immunity
responsibility,
from suit with lack of
W.
Handbook of the
(4th
1971),
upon
to
at
we are not called
here
Law of Torts
decide whether
immunity.
ed.
inter-family
pertains
to retain the doctrine as
family
discourage
was created to
the destruction
members
family harmony,
Riegger Brewing Company, supra,
see
thus,
permit
Md.
at
a minor
A.2d
child,
injuries
example,
parent’s employer
a
for
sue
acting
parent’s negligence
sustained as a result of the
while
employment,
accompanying
in the
of his
with the
abil-
scope
ity
erring
to seek reimbursement
from the
employer
indirectly what
agent,
accomplish
would allow the child to
directly.
Sherby
Brothers
he could not do
See
v. Weather
(4th
1970)
Company,
Transfer
421 F.2d
Cir.
law);
Company,
(applying Maryland
Riegger
Brewing
cf.
(suit
wife).
by
However,
supra
promotion
such a
purpose
present
personal
immunity
is not
a
such as
when
public-official
immunity
Unlike inter-family
is involved.
immunity,
depend
special
official
does not
on the
relationship between tortfeasor and victim. While a suit for
against
principal
indemnification could be maintained
negligent agent
damages paid
agent’s
his
to the
child
(thus, circumventing
immunity),
a similar suit could not
brought
government against
public-official
agent
because his official
would still bar the suit.
Therefore,
there
is no reason
to extend
to the
law,
governmental-official
immunity area of
as we did in
Bradshaw,
inter-family immunity
exception principle to
rule,
respondeat superior
now decline to
follow
aspect
of that decision.
ruling,
nearly
courts,
so
we note that
all of the
both
federal,
state and
considering
question,
adopted
have
*16
view we
government,
announce here
that the
it
when
has
waived immunity in a fashion
similar to Prince
1013,
County in section
is liable for torts committed
though
officers even
those officers themselves are not liable
public-official
See,
because of
immunity.
e.g., Carter v.
(D.C.
Carlson,
358,
1971),
447 F.2d
367
Cir.
rev’d on other
grounds
Carter,
sub nom. District of Columbia v.
409 U.S.
(1973);
Trubow,
192,
418
United States v.
214 F.2d
195-96
(9th
1954);
Turner,
138,
Cir.
Supp.
Norton v.
427 F.
146-47
(E.D.
1977),
States,
Va.
rev’d sub nom. Norton v.
581
United
(4th Cir.),
denied,
(1978);
F.2d 390
cert.
v. 382 F. 750 Tenn. United (6th issue, 1975); Bridges 990 Cir. v. aff'd on this 522 F.2d (Alaska 1962); Auth., 696, 375 P.2d 702-03 Housing Phoenix, 613, City v. of Ariz. P.2d Patterson (1968); State, 2d 274 N.E.2d App. Krause 28 Ohio 31 Ohio St. 2d grounds, on rev’d other dismissed, (1972); Muntan appeal N.E.2d U.S. Ct. A.2d City Monongahela, 45 Pa. Commw. of Builders, Inc., (1979); v. Milzoco 25 Pa. Wicks 811, 813-14 (1976). 250, 253 A.2d See also Ct. Commw. Bermann, and Tort Governmental Officer Integrating L. Restatement Liability, 77 Col. Rev. (Second) 895D, Particularly j of Torts comment instructive, regard reasoning is the typical, this v. United expressed following passage in the from Downs States, supra: agents contends that the FBI
The Government would entitled to involved this case officer immunity, consequently the United States is under the Tort Claims Act’s likewise immune respondeat superior. posture In the doctrine of case, unnecessary it is decide the extent discretionary activity agents perform which FBI they protected by immunity, for even if and are thus be, it follow that the United States would does not fact, is immune Act. In also under Tort Claims relationship feels that a desirable of sover- court eign immunity compels opposite officer an Initially, result .... the application largely would sought the Government Act; it Tort Claims purpose emasculate with the Act’s waiver would be inconsistent immunity for the Government to reclaim brought merely against because no action could be gave whose act or omission rise employee Furthermore, damage claim.... fundamental differ; for for the two immunities the officer reason it encourage is to unrestrained execution sovereign for the responsibility, while *17 policies scrutiny of basic judicial prevent government. by coordinate branches formulated wishes)] [(against To insulate the Government which will mishaps liability for the inevitable their functions employees perform occur when its also only unjust, is but liability fear of not without sovereign for which purpose serves no Further, general trend given the need exist. immunity, a rule which officer
favoring growth of would, in as well States immune makes the United purposes of time, the remedial largely emasculate 749-50.] Supp. Act. F. [382 the Tort Claims of the common derogation ordinarily While enactments Prince construed, Bradshaw v. strictly e.g., law are to be at 260 396 A.2d 284 Md. at County, supra, George’s such as organic law applicable (assuming principle this ignored if we would be remiss provision), a charter 1013 of the remedial nature of section Express Charter, provisions as well as the that such Act, statutory construction Powers and the rule of in order to advance liberally construed statutes are to be were these laws remedy the mischief which and obviate Bd. v. See, Inj. Comp. designed e.g., Criminal to redress. Gould, State 273 Md. 195, 208,
Barnes, A.2d considerations, comfort we take balancing competing these addressed Frankfurter when he the words of Mr. Justice concerning the Court Supreme a similar conflict for the Federal Claims Act: Tort which the statute was just purpose broad and
designed compensate was to the victims to effect negligence governmental in the conduct of like unto those in which activities circumstances course, private person would be liable.... Of subjecting the dealing when with a statute Govern- great sums of potentially ment money, promote profligacy Court must not should it as a careless construction. Neither *18 Treasury guardian import self-constituted immunity designed back into a statute to limit it. States, supra, v. United Towing Company [Indian 350 at 68-69.] U.S.
Accordingly, modify holding we announced in Bradshaw, language waiving and conclude that in immunity liability from tort set forth the Prince Charter, specific and as is also contained in the Act, in the Powers makes the Express authorization negligent employees liable for the conduct of all of its occurring employment, regard in the course of their without to their status as officials.15 immunity Turning lastly appellee to the claim of raised Hills, Maryland, Fire Lanham Company Volunteer of West Inc., we find that the record does not contain the information necessary Consequently, to reach a conclusion on this issue. remand, reversal, we will affirmance or this matter without proceedings to the trial court for further and decision in express. accord with the views we now Md. Rule 885. Initially, we mention that the mere fact that the fire company nonprofit corporation is a does not mean that it is immunity. entitled It that to charitable is well-settled Maryland upon charitable exists and is founded i.e., theory,” what fund has come to be known as the "trust "damages from a fund held in trust for cannot be recovered By imply this decision we do not hold or that all acts or omissions government authority recovery against may bodies form the basis for or officials excep- though statute before us contained no involved. Even discretionary that in the tion for functions or duties such as contained (as Act, under Federal Tort Claims similar a number of our sister states have circumstances) by implication recognize there are certain judgmental governmental discretionary policy-making, planning or subject of and thus functions which cannot be the remain immune from traditional tort scrutiny by judge jury Public or as to its wisdom. policy system government integrity and the maintenance of the of our Jackson, for, exception necessitate such an in the words of Mr. Justice "Of course, government govern.” Although it is not a there is no tort for demarcation, occasion this time for us to further delineate this activities, suggesting guidelines identifying authorities these see Com- (Fla. Cty, Corp. mercial Carrier v. Indian River 371 So. 2d 1017-22 1979); State, Evangelical Brethren v. 2d United Church 67 Wash. (1965). Hitchins, 56, 66-67, Frostburg P.2d 380, 828-29 Md. 16 A. 444-45 Cf. 70 100, 109-10, (1889); Frostburg, 11 A. 381-82 Hitchins v. (1887). apply not be to it to so "would for to do purposes,” charitable fund had view.” author of the objects whom the those 27-28, Rep. Am. Md. Refuge, Perry v. House 214, 240-41, 300 (1885). Abell, Md. Accord, Woodv. e.g., Hosp., 130 Sheppard-Pratt Loeffler A.2d Note, generally See 265, 271, 100 A. Md. Immunity The Persistent Charitable Doctrine of (1974). Thus, Law, L. Rev. 4 U. Balt. Vigil of Outdated are held organization of the charitable the assets only when and when the by implication, trust, expressly either covering the liability insurance has no corporation Vol.), Art. (1957, Repl. act, Md. Code complained of apply. doctrine 48A, the charitable does the fire incorporation of examining the articles Without *19 the form of concerning taking evidence company determine the assets, impossible it is ownership of its immunity. Annapolis Cf. validity a claim of charitable 729, 737, 288 A.2d Co., Md. Imp.& Anna. Fire W. (volunteer (1972) possibly a although company, fire trust). necessarily a charitable not corporation,
charitable regard with no factual determination there has been Since company, fire but present the volunteer to the status of it was such that since unsupported conclusion merely an indicated, suit, already as it immune from company was assertion for suit exemption remand its expressed. here the views we in accord with redetermination for the Circuit Court Judgment of in County each George’s and the cases are reversed case court for further to that remanded proceedings. by appellees. paid to be
Costs J., dissenting part: concurring part Murphy, C. in these cases judgments Court that the agree
I with the because, regard to whether the without must be reversed officers” or "public vehicles were emergency drivers of the ministerial, not, opposed as they exercising were which, duties, time of the accidents as to discretionary at the Charter, County the had waived County under 1013 of the however, agree, I with the its from suit. do not reversing judgments, Court’s alternate reason County, v. Prince namely, that Bradshaw Court a decided a unanimous that year ago, wrongly little more than a concluded § 1013 immunity under County’s governmental waiver of nonmalicious, one, encompassing not was a limited its performed tortious acts committed negligently discretionary duties where performance officers liability for his immune from public officer was himself conduct. County’s Charter, it read at the
Under
1013 of the
as
Bradshaw,
County
time
authorized
suit
sounding
"in
in tort in the
filing
against
of suits
actions
any private person
extent that
same manner and to the same
in Bradshaw that this
language
may be sued.” We concluded
County’s
did not constitute
a blanket waiver
it intended to sub-
governmental
immunity but rather that
ject
County
liability under the doctrine
to derivative
respondeat
superior for the
officers
acts of its
tortious
where,
where,
only
they were themselves
employees
but
by providing
said that
legally liable for their acts. We
to the
liability to
shall be "in the same manner and
suit
"any private person,”
same extent” as that of
torts,
torts,
only those
accepted liability for those
but
directly
responsible,
would
either
private person
which a
*20
officer sued in Bradshaw
derivatively.
police
Because the
officer,
therefore not liable under the law
public
was a
Maryland
discretionary
negligently performed,
of
actions
respondeat superior,
concluded,
we
the doctrine of
applying
County
immunity
had not waived its
and was
therefore not
position
liable
such an action. Our
Maryland’s
by
involving
cases
buttressed
somewhat
concededly minority
non-liability
of
under
view
Operators
doctrine. See Stokes v. Taxi
interfamily immunity
Ass’n,
Riegger
248 Md.
The now as it reads, filed, to Bradshaw case was and as it now constitute immunity County’s governmental a total waiver of the subject just private if it were a as corporation, damages for the responsible so that it will be officers, discretionary negligently acts of as well as public Thus, maliciously performed. simple negligence officers, police jail guards, firemen and to mention a few, suit, will subject damage though to a even officer himself is immune for all but his malicious mandated, according majority, by acts. This result the interpretation jurisdictions language other on placed § effectuating similar to that used in 1013 in a waiver of governmental immunity. majority concludes that the provisions assenting to suits "in the same manner "any private person,” and to the same extent” as that of "phrase immunity throughout constitute a of art” in statutes country, uniformly interpreted to mean that the waiver governmental entity renders the liable for by private conduct "which would be actionable if... done person private in a setting.”
While the
support
major
authorities marshaled in
ity opinion
indeed,
impressive
noteworthy
are
it is
that the
provisions
waiver
involved
several of the cases relied
upon by
majority
support
construction
as
cases,
well
inas
other
imply
exception
an
from the
waiver
discretionary
performed
functions
governmental officers. See
Corp.
Commercial Carrier
(Fla. 1979);
Fote,
Indian
Cty.,
River
Misc.