De La Puente v. Frederick County

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De la Puente v. Frederick County Dept. of Parks and Rec reation, No. 50, Septem ber Term 2004. Opinion by Harrell, J. LOCAL GOVERNMENT TORT CLAIMS ACT - PUBLIC OFFICIALS - QUALIFIED IMMUNITY Various employees o f the Frede rick Coun ty Parks and Recreation Commission were sued for negligence after a sledding accident at Pinecliff Park resulted in injuries to a minor child. The park is owned by Frederick County, Maryland, and is maintained by the Frederick County Department of Parks and Recreation. The defendant employees, comprising the Director of Parks, Capital Imp rovement Administrator, Recreation Superintendent, Park Superinten dent, and Safety Inspector, moved to dismiss the suit on, among other grounds, public official imm unity. If the individ uals were mere gov ernment e mployees, the y would not be immu ne from s uit. There are four guid elines enum erated in James v. Prince Georg e s County, 288 M d. 315, 324 , 418 A.2d 1173, 11 78 (1980 ), to aid in the analysis of whether a particular individu al en joys p ublic off icial statu s for purp oses of co mmon la w im mun ity, which include (i) whether the position was created by law and involves continuing and not occasional duties; (ii) whether the holder performs an important public duty; (iii) whether the position calls for the exercise of some portion of the sovereign power of the State; and, (iv) whether the position h as a definite te rm for w hich a com mission is issued and a bond o r oath are required. Applying these guide lines to the analysis of the present case, the individuals sued are not public officials. Th ere is nothing in the record to indicate that their positions are created by law, have a definite term for which a commission is issued, or require a bond or an oath. James, 288 Md. at 324, 418 A.2d at 1178. Although the individuals perform important public duties in their positions with the Frederick County Parks and Recreation Commission, there is nothing in the record to indicate that the individuals have the power to make or enforce laws; therefore, they lack sovereign power to exercise. They may not assert common law pub lic of ficia l imm unity. Circuit Co urt for Frede rick Coun ty Case # 10-C-02-000097 0T IN THE COURT OF APPEALS OF MARYLAND No. 50 September Term, 2004 ISABE L DE L A PU ENTE , et al. v. COUNTY COMMISSIONERS OF FRED ERICK COU NTY , et al. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: May 5, 2005 This litigation began with the filing of a complaint in the Circuit Court for Frederick County by Isabel de la Puente and M ark Willoughby (collectively Appellants ) pertaining to a sledding accid ent on Fre derick Co unty parkland in which th eir minor ch ild, Amelia Will oughby, was injured. The third amended complaint, seeking compensatory damages only, alleged simple negligence on the parts of at least seven individuals employed in various capacities by the Frederick County Department of Parks and Recreation. The defendants included: Paul Dia l, Director of Parks; Bob Failor, Capital Improvem ent Administrator; Deborah Spalding, Recreation S uperintendent; Earl Eyler, Park Superinten dent; and James Gist, Safety Inspe ctor (collective ly referred to here as Appe llees ).1 Appellees moved to dismiss, or for summary judgment. One of the grounds argued in support of the motion was public official imm unity. At the conclusion of a hearing on 1 7 March 20 04, the Circuit Court effectively granted s umm ary judgm ent in fa vor of Appe llees on that gro und, 2 which judgment was entered the following day. Appellant noted a timely appeal to the Court of 1 Additional defendants were named, but they were dismissed by consent prior to the ruling on the motion affecting Appellees. The dismissal of the other defendants is not challenged in the presen t appeal. 2 The trial judge stated, I have listened carefully to the arguments of both counsel and I have revie wed the documents, the motions as well as the memoranda. The record also reflects that a suppo rting affida vit was filed by Appellee s with their m otion, that its con tents were raised in argument by counsel at the motions hearing, and that those contents were relied on by the trial judge in ruling. Therefore, although the trial judge said . . . and therefore I will grant the motion to dismiss, her action was in fact the grant of a motion for summary judgm ent. When a trial judge co nsiders matters presented outside the f our corners of the complaint, a motion to dismiss is converted to a motion for summar y judgmen t, pursuant to Md. Rule 2 -322(b ,c), 2-50 1. See Converge Servs. Group, LLC v. Curran, 383 Md. 462, 475-76, 860 A .2d 871 , 879 (2 004). See also Dual Inc., v. Lockheed Martin Corp., 383 Md. 15 1, 161, 857 A.2d 1095, 1100 (20 04). Special Appeals. 3 Before th e intermed iate appellate c ourt could c onsider the appeal, however, this Court, on its initiative, issued a writ of certiorari to consider whether Appellees are public of ficials ent itled to assert the defen se of qualified public o ffic ial im mun ity. 4 We shall reverse the ju dgment o f the Circu it Court and remand th e case to the Circuit Court for further proceedings not inconsistent with this opinion. I. There being no argument tendered here that a genuine dispute of material fact was generated in the Circuit Court on the question of public official immunity, we recite the fac ts as alleged by Appellants, as the non-moving parties below, giving them the benefit of any reasonab le inference s. On 16 J anuary 199 9, Amelia was sledd ing with her father at Pinecliff Park in Frederick, Maryland. The sledding/toboggan run ( Slope ) at Pinecliff Park, including the land and improvements, is owned by Frederick County, Maryland, and 3 Final judgmen t ostensibly was entered by the trial court on Thursday, 18 March 2004. Appellan ts noted an appeal on Frid ay, 19 M arch 20 04. On 29 M arch 200 4, howe ver, within 10 days of entry of the trial court s ju dgment ( see Md. Rule 1-203(a) for computation of time in such a circumstance), Appellants filed a motion for reconsideration pursuant to Md. Rule 2-534 and a motion for a new trial pursuant to Md. Rule 2-533; both were denied on 11 May 2004. Md. Rule 8-202(c) extends the time for filing an appeal to 30 days after entry of the order disposing of the pos t-judgm ent mo tion. A second, protective notice of appeal was filed on 18 May 2004. 4 When we assum e jurisdiction over an appeal pending, but undecided, before the Court of Special Appeals, we consider those issues that would have been cognizable by the Court of Special A ppeals. M d. Rule 8-1 31(b)(2). W e most freq uently do so based on the appellants brief filed in the Court of Specia l Appe als. Thus, we rely on appellants question or questions as framed in their brief be fore the inter mediate ap pellate court to frame the issue or issues w e consi der. See Converge Servs. Group, LLC v. Curran, 383 Md. 462, 467, 860 A.2d 871, 87 4 (200 4). See also Dual Inc., v. Lockheed Martin Corp., 383 Md. 151, 161, 857 A.2d 1095, 1100 (2004). That is the case in this instance. 2 maintained by the Frederic k Coun ty Departme nt of Park s and Re creation fo r public recreational use. Amelia s toboggan veered off the Slope a nd collided with a tree, resulting in significant physical injuries to her. She was flown by helicopter to the Shock Trauma Unit at the University of Maryland School of Medicine where she underw ent two major operations, followed by months of physical therapy and rehabilitation. She continues to have permane nt physical disab ilities as a result of the acciden t. In their comp laint, Appe llants alleged, in separate counts as to each Appellee, respective ly, that h e or s he w as ne gligent in main taini ng an inh eren tly dan gero us fa cility, failing to prevent use of the slop e, failing to w arn the pub lic that the slope was inhe rently dangerous due to icy con ditions, failing to hire comp etent peop le to maintain the slope, and failing to assure that the slope was safe for public use, all of which were alleged to be the proximate cause of Amelia s injuries. As noted earlier, the Circuit Court granted summary judgment in favor of Appellees on the sole ground of public official imm unity.5 Appellan ts contended that Appelle es were m ere govern ment em ployees and, th erefore, no t entitled to assert this defens e. The trial jud ge, how ever, stated that . . . the Court does find that the [Appellees] . . . by their conduct the [Appellants] are alleging that [Appellees] are exercising some portion of the sovereign power of the state. And furthermore, clearly alleges to me that [Appellees] were perform ing discretionary as opposed to ministerial acts entitling th em to 5 Appellants, in their complaint, did not allege on the part of any defendant: (a) malice; (b) gross n egligen ce: (c) re cklessn ess; or, (d) action or inaction beyond the scope of employme nt. 3 assert public official immunity, as permitted by the Local Government Tort Claims Act ( LGTC A ). 6 II. A motion for summary judgment may be granted where th ere is no gen uine dispu te as to any material fact and [the moving] party is entitled to judgment as a matter of law. Md. Rule 2-501. An ap pellate court reviews a trial court s grant of a motion for summary judgment de novo. Remsburg v. Montgom ery, 376 Md. 568, 579, 831 A.2d 18, 24 (2003) (citations omitted). The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law. The standard of appellate review is whether the trial court was legally correct. Id. When reviewing a grant of summary judgment, this Court first determines whether a genuine dispute of material fact exists. Id. If no such dispute exists, we proc eed to review determ inations of law . Id. The facts properly before the court, and any reasonab le inference s that may be d rawn fro m them w ill be construed in the light most favorable to the no n-mov ing par ty. Id. at 579-80, 831 A.2d at 24. The only issue presented in this case is whethe r Appellee s are public officials, a question of law, which we review de 6 The Local Government To rt Claim Act, at § 5-303(d), provides: Notwithstanding the provisio ns of sub section (b) o f this section, this subtitle does not waive an y common law or statutory defense or immunity in existence as of June 30, 1987, and possessed by an emplo yee of a local g overnm ent. Md. Code (1987, 2002 Repl. Vol., 2004 Cum Supp.), § 5-303(d) of the Courts and Judicial Proceedings Article. 4 novo.7 See Mu thukum arana v. M ontgom ery Cou nty, 370 M d. 447, 4 78-80 , 805 A.2d 372, 390-91 (2002 ). III. Appellants maintain that the Circuit Cou rt erred in concluding that A ppellees were public officials entitled to the benefit of public official immunity for merely negligent performance (or non -perfo rmanc e) of the ir duties. For the follow ing reason s, we agre e with Appe llants. In Muthukumarana, we outlined the doctrine of common law public official immunity: At common law, a government actor will enjoy qualified immunity from liability for his or he r non-m alicious acts where: (1) he is a public official rather than a mere government employee or agent; an d (2) his tortious conduct occurred w hile he was performing discretionary, as opposed to ministerial, ac ts in furtherance of his of ficial du ties. Ashburn v. Anne Arundel County , 306 Md. 617, 622, 510 A.2d. 1078, 1080 (1986) (quoting James v . Prince G eorge s C ounty, 288 Md. 315, 323, 418 A.2d 1173, 117 8 (198 0)) (em phasis o mitted). See also Lovelace v. Anderson, 366 Md. 690, 704-05, 785 A.2d 726, 734 (2001) (quoting James). Once it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of dis cretion, a qualified immunity attaches; namely, in the absence of malice, 7 Although Appellees alternatively argue for affirmance of the trial court s judgment based on the Maryland Recreational Use Statute (Md. Code (1973, 2000 Repl. Vol.)), § 51101 et seq. of the Natural Resources Article, an alternative basis for their motion below, Maryland procedu re directs that, in appeals from grants of summary judgment, Maryland appellate courts, as a g eneral rule, w ill consider on ly the grounds upon which the [trial] court relied in granting summary judgment. Lovelace v. Anderson, 366 Md. 690, 695, 785 A.2d 726, 729 (2001) (quoting PaineWebber v. East, 363 Md. 408, 422, 768 A.2d 1029, 1036 (2001)). See also Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 536, 836 A.2d 655, 671 (200 3). It is clear on th is record that the trial judge, in granting summary judgment in favor o f App ellees, re lied exc lusively on their pu blic off icial imm unity argu ment. 5 the individual in volved is free from liabi lity. Lovelace, 366 Md. at 705, 785 A.2d at 734 (quoting James). Muthukumarana, 370 M d. at 479 , 805 A .2d at 39 1. In James, this Court established four guidelines to aid in the analysis of whether a particula r individual is a public o ffic ial fo r pur pose s of c omm on la w im mun ity: (i) (ii) (iii) (iv) whether the position w as created b y law and involves continuing and not occasional duties; whe ther the h olde r per form s an impo rtant pub lic du ty; whether the position calls for the exercise of some portion of the sovereign power of the State; and whether the position has a definite term for which a comm ission is is sued an d a bon d or oat h are req uired. James, 288 Md. at 324, 418 A.2d at 1178 (citing Dunca n v. Kous tenis, 260 Md. 98, 105, 271 A.2d 547, 550 (1970)). These four guidelines are not exclusive, nor do they carry equal weight in the analysis; rather, they are employed using the specific facts and circumstances of each individual s position. James, 288 Md. at 324, 418 A.2d 1178. Moreover, even if an individual s position does not satisfy the gu idelines, that individual may be ne vertheless co nsidered a p ublic official if he or she meets one of the two additional scenarios provided in Duncan. Muthukumarana, 370 Md. at 479-80, 805 A.2d at 391 (quoting Duncan, 260 Md. at 106, 271 A.2d a t 551, (c itation o mitted)) . Those scenarios are an individual who exercises a large portion of the sovereign power of go vernment or ca n be called on to exerc ise police powers as a conservator of the peace. Id. (quoting Duncan, 260 Md. at 106, 271 A.2d at 551) (citation omitted ) (emph asis om itted). See also James, 288 Md. at 324-25, 418 A.2d at 117879 (quoting Duncan). 6 Applying the guidelines to the analysis of the record, such as it is, in the present case, we conclu de that A ppellee s are no t public o fficials. A position created by law means tha t: (a) the office w as created b y Constitutiona l or legislative en actment, such as a statute or local ordinance; (b) an o ath is ge nerally pre scribed ; and (c) a com mission is issued . See Duncan, 260 Md. a t 108, 27 1 A.2d at 552. See als o Gar y v. Bd. o f Trs. of E mploy ees Re t. Sys., 223 Md. 446, 451, 165 A.2d 475, 478 (196 0). There is n othing in this p resent record to indicate that the positions of Director of Parks, Capital Improvement Administrator, Recreation Superinten dent, Park Superintend ent and Safety Inspector, respec tively, were positions created by law, 8 have a definite term for which a commission is issued, or require a bond or an oath. James, 288 Md. at 324, 418 A.2d at 1178. The parties concede that the Appellees perform important public duties within the meaning of Duncan.9 Duncan, 260 8 The Frederick County Code created the Frederick County Parks and Recreation Commission and deleg ated to it the resp onsibility and authority to determ ine and ad opt all necessary rules and regulations for the conduct of business and protection of properties under its control and to employ such personnel as it may conside r necessary to ad minister its functions prop erly. Frederick County Code §§ 1-12-21, 28, 30 (2004). These sections of the code remain unchanged since enactment in 1959. Appellees are employed by the Frederick County Department of Parks and Recreation, but do not serve on the Frederick County Parks and Recreation Commission. Thus, while the Commissioners positions may be said to have been created by law, to wit, the County Code, the positions of the Commission s employees may not be so characterized. 9 Positions previously considered by M aryland s appellate courts as providing an important public duty are discussed in Muthukumarana, 370 Md. at 480, 805 A.2d at 391 (911 operators a nd dispatch ers); Macy v . Heverin , 44 Md. App. 358, 363, 408 A.2d 1067, 1070 (1979) (volunteer ambulance driver of a volunteer fire company and volunteer firemen); Duncan, 260 Md. at 107, 271 A.2d at 552 (teach ers); Bd. of Supervisors v. Attorney General, 246 Md. 417, 439, 229 A.2d 388, 400 (1967) (delegate to a constitutional convention). Nonetheless, in each of these cases, none of the individuals was determined by the appellate courts to be a public of ficial. 7 Md. at 105, 271 A.2d at 550. There is some dispute, however, as to whether the Appellees exercise some portion of the sovereign power of the State. Duncan, 260 Md. at 105, 271 A.2d a t 550. Appellan ts contend th at Appell ees are mere local government employees. Appellees, however, argue that Appellees have each been sued because their job titles reflect policy-making duties (exercising a portion of the State s sovereignty). Appellees also argue that A ppellants sued Appellees because of their ability to make important policy. As stated by this Court in Carder v. Steiner, 225 Md. 271, 276, 170 A.2d 220, 222 (1961), [i]mmunity from liability rests not on the dignity of the office but rather upon the nature of the function exercised. The Circuit Co urt s express rationale for granting summary judgment in favor of Appellees was its perception that they exercise some portion of the sovereign power of the State. Appellees, however, on this record, do not appear to be vested with any sovereign power. Sovereig n powe r, in its simplest terms, means the power to mak e and e nforce laws. Black s Law Dictionary 1430 (8th ed. 2004). As stated in Duncan, sovereign power generally contemplates someone serving in a legislative or policymaking capacity. 260 Md. at 106, 271 A.2d at 551. In Duncan, a public sch ool teacher was not c onsidered to possess sovereign power because he d[id] not make rules and regulations or determine county educa tion po licy. Id. Using a similar touchston e here, Ap pellees do n ot satisfy this requirement because, by the nature of their duties, they do not make park rules, regulations, 8 or policy. 10 Rather, they execute the policies determined and adopted by the Frederick County Parks and Recreation Commission, the body to which these pow ers are committed. See supra n. 8. Because Appellees positions do not satisfy a majority of the analytical guidelines found in Dunc an, we look next to the additional scenarios where an individual may be nevertheless considered to be a public official. Duncan, 260 Md. at 106, 271 A.2d at 551. The first requires that the individual exercise a large portion of the sovereign power of govern ment. Duncan, 260 Md. at 106, 271 A.2d at 551. As noted earlier, Appellees cannot satisfy this exception because they do not exercise any sovereign power of the State or Freder ick Co unty. Appellees do not qu alify as public o fficials und er the secon d scenario b ecause th ey are not called on to exercise police powers as a conservator of the peace. Id. For example, Appellees do not serve in the capacity of any position the same as or similar to an y previously held by us to come within this desc ription. See Livesa y v. Baltimo re Coun ty, 384 Md. 1, 862 A.2d 33 (2004) (corrections officer); Williams v. Mayor of Baltimore, 359 Md. 101, 753 A.2d 41 (2000) (po lice officer); Carder v. Steiner, 225 Md. 271, 170 A. 2d 220 (1961) (prison guard); Clark v. Ferling, 220 Md. 109, 151 A.2d 137 (1959) (prison sup erintenden t); Harris v. Mayor of Baltimore, 151 Md. 11, 133 A. 888 (1926) (park policeman); and Cocking v. 10 Appellan ts allege in their c omplaint th at Appell ees had numerous duties and responsibilities that included: maintenance of the Slope, assuring that the Slope was safe for public use, provid ing adequ ate protections to correct defects in the slope, closing the Slope because it was not safe, warning the public that the Slope was dangero us, and hiring competent people to maintain the Slope, duties that do not reflect the power to make and enforce laws. 9 Wade, 87 Md. 529, 40 A. 104 (1898) (sheriff). Furthermore, to the extent that Appellees exercise any authority, such has not been shown on this record to be characterized fairly as in the nature of police power or conservator of the peace. Duncan, 260 Md. at 106, 271 A.2d at 551. Acc ordingly, we conclude, on the state of this rec ord, that Ap pellees are n ot public officials and may not assert as a defense common law public official immunity. We therefore need not address whether the conduct attributed to Appellees involved discretionary (and pe rforme d withi n the sc ope of their of ficial du ties) or m inisterial a cts. JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY REVERSED; CASE REMA NDED TO TH E CIRCU IT COURT FOR FURTHER PROCEEDINGS NOT I N C ON S I S T E N T WIT H T H IS OPINION; APPELLEES T O PAY COST S. 10

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