McNack v. State
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Alice Mc Nack, et. al. v. S tate of Ma ryland, et al. No. 98, September Term, 2006 Headnote: Seven members of the Dawson family died as a result of the alleged firebombing of their home by drug-dealers. Relatives of the Dawson family filed suit against various governmental entities asserting that their actions violated the state constitutional rights of the Dawson family and that said entities were also negligent in failing to protect the Dawson family from the drug-dealers. Reviewing the trial court s grant of the governmental entities motion to dismiss the complaint for failure to state a claim, the Court of Appea ls held that the Circuit Court for Baltimore City was correct as a matter of law when it found that the state-created danger theory did not apply in Maryland or, even if applicable, did not apply under the circumstances of the case and that a special relationship did not exist between the appellees and the Dawson family. The Court further held that the trial cou rt did not err in dismissing the case prior to discovery being conducted. Circuit Co urt for Baltim ore City Case # 24-C-05-001889 IN THE COURT OF APPEALS OF MARYLAND No. 98 September Term, 2006 Alice M cNack, e t al. v. State of M aryland, et. al. Raker Cathell Harrell Battaglia Greene Eldridg e, John C. (Retired, Specially assigned) Wilne r, Alan M . (Retired, Specially assigned), JJ. Opinion by Cathell, J. Filed: April 12, 2007 This case arise s fro m the dea ths o f sev en m emb ers o f the Daw son f amil y in a firebombing of their Ba ltimore City home. Relatives of the Dawson family, appellants, filed suit against the State of Maryland (the State ) and the Mayor an d City Council of Ba ltimore (the Cit y ), collectively appellees.1 Appellants allege that the City had actively sought cooperation from me mbers of the public in combatin g the illicit drug trade occurring throughout the city, but that when the Dawson family cooperated with the Baltim ore City Police Department (the BCPD ), the State and the City failed to protect them from retaliation by those a gainst w hom th e Daw sons co mplain ed. Appellants alleged below that the State and the City violated the Dawson family s right to due process and equal protection under Article 24 of Maryland s Declaration of Rights.2 Appellan ts also alleged that the government entities were negligent in failing to protect the Dawson family. The State and the City argued that, with respect to the state constitutional claims, they did not owe appellants a duty and tha t the prerequ isite for them to be found negligent under a traditional 1 In addition to suing the State and the Mayor and City Council of Baltimore, appellants also filed suit against the Baltimore City Police De partment, the Baltimore City State s Attorney s Office, the Governor of the State of Maryland, the former Mayor of Baltimore City, Martin O Malley, the State s Attorney for Balt imore City, Patricia J essa my, an Assistant State s Attorney, Katherine Moxley, the current Baltimore City Police Commissione r, Leon ard D. H amm, a former Baltimore City Police Commissione r, Edward Norris, Gregory Eads, and 40 unnamed police officers and their supervisors. For c larity s sake, we w ill ge nera lly refer to them by the governm ental entity by which they were employed. 2 That no man shall be taken or imprisoned or dissiezed of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liber ty, or property, but by the judgmen t of his peers , or by the Law of the land . Md. C onst. Declaration of Rights, Art. 24. tort action, a special relationship, did not exist in this situation. The Circuit Court for Baltimore City, agreeing with the State and the City, dismissed the case on May 25, 2002, because appellants failed to state a claim upon which relief could be granted. Appell ants noted an appeal to the Court of Special Appeals. Prior to consideration in that court and on our own initiative, we issued a writ of ce rtiorari, McNack v. State of Maryland, 396 Md. 11, 912 A.2d 647 (2006), to consider the following issues: 1. At the motion to dismiss stage and taking all factual allegations as true, do Appellants allege facts to state a claim for violations of constitutionally protected due proc ess rights un der the state created danger doctrine? 2. At the motion to dismiss stage and taking all factual allegations as true, do appellants allege a special relationship between members of the Dawson family and Defendants? 3. Did the trial court err as a matter of law by dismissing Appellants claims prior to discovery, where the A ppellants primary eyewitnesses are deceased leaving the Defend ants solely and uniquely in possession of relevant information otherwise unavailable to Appellants at the pleading stage? We hold that the Circuit Co urt for Baltim ore City was correct as a matter of law w hen it found that the state-created danger theory did not apply under the assumed circumstances of this case; and, we also hold that on the facts pled, a special relationship did not exist between the appellees a nd the D awson f amily. We fu rther hold tha t the trial court did not err in dismissing the case prior to discovery being conducted. I. Facts In 1999, Angela and Carnell Dawson, along with five of their children, moved into 1401 East Preston Street in the East Oliver neighborhood of Baltimore City. In the Spring -2- of 2002, Ba ltimore City laun ched its B elieve Cam paign to Combat Drug Traff icking. Appellan ts maintained that the City s Believe Campa ign pro-actively solicited and encouraged Baltimore residents, including the Dawsons, to participate in the program by reporting illegal drug activities in their neighborhoods. Appellants also asserted that the campaign was instituted even though the City plainly knew or had reason to know that they were not able to prov ide ade quate p rotectio n for re spond ing wit nesses . Appellan ts assert that the City, despite knowing that it did not have the ability to protect witnesses, launched the Believe Campaign in th e midst of a violent retaliatory drug culture in certain areas of Baltimore City, where lack of witness cooperation was com monplac e due to well-founded fear of retaliatio n. Between January 1, 2000, and October 16, 2002, a total of 109 calls were made by the Dawson family to 911 or 311. The calls were generally made to report drug activity or disorderly persons in the vicinity of the Dawson family home. According to the appellants, the BCPD did not respond to th ese calls quic kly and som etimes failed to respond at all. When the BCPD did respond, the officers would go directly to the Dawson family home, indicating to the entire neighborhood, including the drug dealers, that it was the Dawsons who h ad calle d the po lice. According to appellants, the drug dealers, made aw are that the Dawso ns were reporting them to the BC PD by officers arriving at the family home, began to threaten and attack members of the family in order to prevent future calls to the BCPD. Appellants allege -3- that on August 23, 2002, a drug dealer named John Henry wrote the word Bitch on an exterior wall of the family home and assaulted Angela Dawson by slapping her across the face. The same man allegedly threw bricks though windows in the family home on August 25, 2002, and September 4, 2002. He also allegedly hit An gela Daw son in the chest with a bottle on September 25, 2002. The next day, the Dawsons reported to the BCPD that a different man, Darrell Brooks, was one of several people throwing bottles at their house. Appellants, relying on a transcript of one of C arnell Dawson s phone calls to 911, allege that on October 1, 2002, John Henry and several other men surrounded the Dawson family home and threatened to bust up [the home s] windows and shoot up my house. On October 2, 2002, the B CPD apparen tly arrested Joh n He nry, but he was released that same day. Appellants allege that the next day, October 3 , 2002, a t appro ximate ly 3:15 am , a Molotov Cocktail was thrown through the kitchen window of their home. Angela Dawson was able to extinguish the fire and the family was able to exit the house without serious bodily harm. Appellan ts assert that the B CPD, in response to the Molo tov Cock tail incident, promised to give the Dawsons increased protection by placing them on a Special Attention List 3 and that the police advised the Daw sons to move out of th eir hom e. 4 Appellants also 3 According to appellants, after the BCPD puts a location on the Special Attention List, patrols are increased in that area. 4 Appare ntly, the Daw sons attem pted to mo ve after the in cident. On October 4, 2002, Carnell Dawso n allegedly asked ap pellant, Alice McNack, for money so that he could place (contin ued...) -4- allege that an individual within the B altimore City State s Attorney s office verbally offered protection to the Daw sons, but ne ver follow ed up w ith the neces sary referrals or paperwork. According to the appellants, the Dawsons were neither placed on the Special Attention List nor into the State s Attorney s witness protection program. Early in the m orning on Oc tober 1 6, 2002 , appella nts alleg e that D arrell Br ooks, a local drug dealer, kicked down the Dawsons front door, poured gasoline on their livingroom floor, and set it ablaze. Carnell and Angela Dawson, along with their five children all under the age of fourteen died as a result of injuries suffered in the fire. II. Standard of Review When reviewing a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, a court must assume the truth of all well-pleaded facts and allegations in the comp laint, as well as all inferences (favorab le to the pleader) that can be reasonab ly drawn from them. Lloyd v. General Motors Corp., __Md. __ (2007) (No. 10, September Term, 2002) (filed February 8, 2007) (quoting Morris v. Osmose Wood Preserving, 340 Md. 519, 531, 667 A.2d 624, 630 (1995)). A court will only order dismissal if, after assuming the allegations and permissible inferences stemming therefrom are assumed to be true, the p laintiff wo uld not be a fforde d relief. Lloyd, __ Md. at __ (citing Decoster Co. v. Westinghouse, 333 Md. 245 , 249, 634 A.2d 1 330, 1332 (199 4)). 4 (...continued) a down payment on a new home. -5- When determining whether an appellant has alleged claims upon which relief can be granted, [t]here is . . . a big difference between that which is necessary to prove the [commission of a tort] and that which is necessary merely to allege [its comm ission][.] Lloyd, __ Md. at __ (quoting Sharrow v. State Farm Mutual Ins. Co., 306 Md. 754, 770, 511 A.2d 492, 500 (1986 )). In such situations, the court s dec ision does n ot pass on th e merits of the c laims; it m erely dete rmines the plain tiff s rig ht to brin g the ac tion. Lloyd, __ Md. at __ (citing Figueiredo-Torres v. Nickel, 321 Md. 642 , 647, 584 A.2d 6 9, 72 (1991)). Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, no netheless fa il to afford relief to the plaintiff. Ricketts v. R icketts, 393 Md. 479, 492, 903 A.2d 857, 864 (2006) (citing Allied Invest. Corp. v. Jansen, 354 Md. 547, 555, 731 A.2d 957, 961 (1999 ); Bobo v. S tate, 346 Md. 706 , 709, 697 A.2d 1 371, 1373 (199 7); Morris, 340 at 5 31, 667 A.2d a t 630). III. Discussion A. State Created Danger Theory Appellants claim that due to the City s solicitation of the D awson fam ily s participation in the Believe Cam paign that the City expressly or impliedly promised to protect them aga inst the type of attack they suffered. They further allege that instead of protecting the Dawsons, the City, through the actions of the BCPD, made the danger presented by the drug dealers greater by identifying the family to the neighborhood as inform ants of a sort. Thus, appellants allege that the C ity demonstrated a willful disregard -6- for the safety of the Dawsons and maliciously caused them to be subjected to unconstitutional treatment, resulting in their deaths. The state created danger theory has its origins in language used in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed.2d 249 (1989). In that case, Joshua DeShaney and his mother filed suit against the Winnebago County Department of Social Services (the DSS ) alleging federal due process violations because the DSS failed to permanently remove him from his father s custody after allegations of abuse w ere ma de. Id. at 191-92, 109 S. Ct. at 100 1. In January of 1982, at the time of her divorce from DeShaney s father, the child s step-mother complained to police that the three year-old boy was abused by his father. DSS interviewed the father, but did not pursue the investigation. One year later, in January of 1983, Josh ua was a dmitted to the hospital w ith bruises and abrasions. The treating physician notified DSS that he suspected child abuse. DSS obtained a n order fro m a Wisc onsin juve nile court which placed Joshua in the temporary care of the hospital until a Child Protection Team could make a determination of how best to proceed in Joshua s situation. The protection team determined that there was insufficient evidence to remove Joshua from his father s home and that he should be returned to his father s home with the understanding that his father w ould com ply with certain conditions designed to protect Joshua. Based on the recommendation of the protection team, the juvenile co urt returned J oshua to the custody of his father. Over the next seven months Joshua was treated in the hospital twic e more fo r abuse an d the social w orker han dling his -7- case recorded signs of abuse during her visits to the father s home in each of those months. In March of 1984, Joshua s father beat him so severely that he went into a coma and required emergency brain surgery. Although five year-old Joshua s life was saved, he was expected to be institutionalized for the rest of his life. Joshua s father was tried and convicted of child abuse . Subsequ ently, Joshua an d his mother brought an action in a federal court under 42 U.S.C. § 19 83 (1996), 5 against Winnebago County, the DSS, and individual employees of the DSS alleging a violation of Joshua s Fourteenth Amendment D ue Process rights. The trial court granted summary judgment for the defendants and the United States Court of Appeals for the Seventh Circuit affirmed. The late Chief J ustice Reh nquist, writing for the Supreme Court, explained why the State actors in Joshua s case could not be held liable under the Due Process Clause for failing to act on Joshua s behalf: 5 § 1983 . Civil action f or deprivatio n of rights Every person who, u nder co lor of an y statute, or dinanc e, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws , shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer s jud icial capa city, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be consid ered to b e a statut e of the District o f Colu mbia. -8- The Clause is phrased as a limitation on the State s power to act, not as a guarantee of certain minimal levels of safety and sec urity. It forbids the S tate itself to deprive individuals of life, liberty, or property without due process of law, but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to h arm through other means. . . . [T]he Due Process Clause of the Fourtee nth Amendment was intended to prevent governm ent from abusing [ its] power, or employing it as an instrument of oppression[.] . . . Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes. Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such ai d may be necess ary to secu re life, liberty, or property interests of which the govern ment itself may not depriv e the ind ividual. . . . If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follo ws that the S tate cannot b e held liable under the Clause for injuries that could hav e been av erted had it ch osen to provide them. As a general matter, then, we conclude that a State s failu re to protect an individual against private violence simply does not constitute a violatio n of the Due P rocess C lause. DeShaney, 489 U.S. at 195-97, 109 S. Ct. at 1003-04 (citations omitted) (footnote omitted). The Court went on to note, however, that it had recognized limited circumstances where the Due Process Clause required the State to act af firmatively with respect to prisoners and involuntarily committed menta l patients . DeShaney, 489 U.S. at 198, 109 S. Ct. at 100405 (citing Estelle v. Ga mble, 429 U.S. 97, 103-04, 97 S. Ct. 285, 290-91, 50 L.Ed.2d 251 (1976) (establishing the federal governm ent s obligatio n to provid e medical c are for its prisoners); Youngberg v. Romeo, 457 U.S. 307, 314-25, 102 S. Ct. 2452, 2457-63, 73 L.Ed.2d 28 (1982) (involun tary commitm ent does n ot deprive in dividuals of all substantive due process rights under the Fourteenth Amendment)). The Court noted the duty to act -9- affirmatively was only imposed in those situations because th e State had taken indiv iduals into cus tody aga inst their w ill. Id. at 199-200, 109 S. Ct. at 1005. In Joshua s case, he was not in the State of Wisconsin s custody. He had been returned to his father. W hile in the pro cess of ex plaining w hy the State did not owe Joshua a duty, the Court apparently left open the door for what has become known as the statecreated danger theory when it said: While the State may have been aware of the dangers that Joshua faced in the free world , it played no part in their creation , nor did it do anything to render him any more vulnerable to them. DeShaney, 489 U.S. at 201, 109 S. Ct. at 1006 (emph asis added). The state-created danger theory, where applicable, imposes liability on a govern mental entity for private a cts that if com mitted by the go vernmen t would v iolate constitu tionally protected rights, even when no special relation ship exists betw een the go vernmen tal entity and the injured person . Kneipp v. Tedder, 95 F.3d 1199, 12 05 (3 rd Cir. 19 96). Gen erall y, this sort of claim is limited to situations in which the state increases the risk of harm to its citizens throu gh its own affirmative acts. Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 199 8); Kenned y v. City of R idgefield, 439 F.3d 1055, 1062 (9th Cir. 2006) (stating that there may be a due process violation when the governmental action affirm atively places the plaintiff in a dange rous situation .); Butera v. D istrict of Colum bia, 235 F.3d 637, 650 (D.C. Cir. 2001) ( Regardless of the conduct at issue, however, the circuits hav e held that a key requirem ent for con stitutional liability is affirmativ e conduc t by the State to -10- increase or create the danger that results in harm to the individual. ); Carlton v. Cleburne County , 93 F.3d 505, 508 (8th Cir. 1996) (finding that the Due Process Clause imposes a duty when the government affirmatively places an individual in danger when the person would not have f aced that situation withou t the state action.) . Absent such affirmative conduct by the State to endanger an indiv idual, courts h ave rejected liability under a state endangerment concept. Butera, 235 F.3d at 650. There are several problems with appellants assertion of the state-created danger theory here. Initially, and forem ost, Maryland has not ad opted it as a b asis upon w hich to recover for violations of Maryland s Constitution.6 Although we have acknowledged that many provisions of the Maryland Constitution are in pari materia with their federal counterparts, we have also emphasized that, simply because a Maryland constitutional provision is in pari materia with a federal on e or its federal counterpart, does not mean that the provision w ill always be interprete d or applied in the same manner as its federal counte rpart. Dua v. Comcast Cable of Maryland, Inc., 370 Md. 604, 621, 805 A.2d 1061, 1071 (2002). To date, the General Assembly has not enacted, nor has this Court adopted, the state-created danger th eory as a basis for recovery under Article 24 of the Declaration of Rights . We ne ed not d ecide th e issue to day. Furthermore, the state-created danger theory, even when recognized by the various 6 Appellants concede that no Maryland appellate court has considered the statecreated danger doctrine. Our own research does not reveal otherwise. -11- Federal Courts of Appeals, has only been discussed in the context of claims brought under 42 U.S.C. § 1 983 for a lleged violatio ns of an in dividual s civ il rights rights which are protected by the United States Constitution and federal statutes. The Supreme Court did not make the state-created danger theory applicable to alleged violations of Maryland s, or any state s, constitution. The DeShaney Court stated : A State may, through its courts and legislatures, impose such affirmative duties of care and protection u pon its agen ts as it wishes. B ut not all common-law duties owed by government actors were . . . constitutionalized by the Fourteenth Am endment. 489 U.S. at 202, 109 S. Ct. 1007 (quoting Daniels v. Williams, 474 U.S . 327, 335, 1 06 S. Ct. 662, 667, 88 L.Ed. 662 (1986)). We read the DeShaney Court s lan guage to in dicate that even though some common law torts have federal constitutional implications , it is up to the state legislatures and courts to establish the parameters for liability, if any, of each state s governmental actors with respect to civil remed ies for alleged violations of an in dividual s state constitutional rights. Some v iolations of sta te constitutional provisions may also allow for relief under the federal constitution, but that does not necessarily mean that the legal theory under which the remedy is obtained is always the same.7 7 Appellants did not cite to any cases from other state courts addressing the statecreated danger theory. Our research found a few cases, none of which is helpful to them. Of the six opinio ns from o ur sister states, all are distinguisha ble in one cruc ial respect a ll were based on federal constitutional claims brought under 42 U.S.C. § 1983. Brum v. Town of Dartm outh, 428 Mass. 684, 704 N.E.2d 1 147 (199 9); Pack v. Associated Marine Institutes, Inc., 362 S.C. 239, 608 S.E.2d 134 (2004); Gonzales v. City of Camden, 357 N.J.Super. 339, 815 A.2d 48 9 (2003); Robbins v. Cumberland County Children and Youth Services, 802 A.2d (contin ued...) -12- Fina lly, the state-created danger theory, if we were to adopt it, requires an affirmative act by the govern mental acto r. We address whether there were any affirmative acts by governmental actors, in the present case, in our discussion of special relationships in this opinion infra. There, we conclude, in our discussion of special relationships, that there were no affirmative acts by governmental actors in this case. Thus, even if we were to adopt the state-created danger theory, it would not apply in this instance because the state actors did not a ct suffic ientl y affi rmativel y towards the D aws on famil y. B. Special R elationship In order to sustain a claim for an action in negligence, a plaintiff must allege facts demonstrating (1) that the defe ndant w as under a duty to protec t the p laint iff f rom injury, (2) that t he defen dant breache d tha t duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defend ant s breach of the du ty. Remsburg v. Montgomery, 376 Md. 568, 582, 831 A.2d 18, 26 (2003) (quoting Muthukumarana v. Montg omery C ounty, 370 Md. 447, 486, 805 A.2d 372, 395 (200 2)). This Court has held for ov er a century that: [T]here can be no negligence where there is no duty that is due; for negligence is the breach of som e du ty that one pe rson ow es to anothe r. It is consequ ently relative and c an have n o existence apart from some duty 7 (...continued) 1239 (Pa. Cmw lth. 2002); Eastland County Cooperative Dispatch v. Poyner, 64 S.W.2d 182 (Tex. App. 20 02); Wood County v. Rivers, 51 S.W.3d 626 (Tex. App. 2000). In those six cases, not one of those courts adopted the state-created danger theory as a basis for redress for violation of the respective state s constitution. -13- expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act mu st be sough t and foun d a duty to the individual complaining, the observance of which duty would have averted or avoided the injury . . . . As the duty owed varies with circumstances and with the relatio n to eac h other of the in dividu als con cerned , so the alleged negligenc e varies, and the act com plained of never am ounts to negligence in law or in fact; if there has bee n no breach of d uty. Bobo, 346 Md. at 714, 697 A.2d at 1375 (quoting West Virg inia Cent. & P . R. v. State ex re l. Fuller, 96 Md. 652, 666, 54 A. 669, 671-72 (1903)). Thus, when reviewing a case which has its basis in negligence, our analysis usually begins with the question of whether a legally cognizab le duty exist[s][,] Remsburg, 376 Md. at 582, 831 A.2d at 26, because [t]he issue of duty is one for the court as a matter of law. Dehn v. Edgecomb, 384 Md. 606, 619-20, 865 A.2d 603, 611 (2005) (citing Hemmings v. Pelham Wood, 375 Md. 522, 536, 826 A.2d 443, 451 (200 3); Valentine v. On Target, 353 Md. 544, 551, 727 A.2d 947, 950 (1999) (emphasis added )). We have defined duty as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. Muthukumarana, 370 Md. at 486, 805 A.2d at 395 (quoting Ashburn, 306 Md. at 627, 510 A.2d at 1083). When determining the existence of a duty, we consider, among other things: [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant s conduct and the injury suffered, the moral blame attached to the defendant s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resu lting liabi lity fo r bre ach, and the a vaila bility, cost an d preva lence o f insura nce fo r the risk involv ed. -14- Ashburn, 306 Md. at 627, 510 A.2d at 1083 (quoting Tarasoff v. Regents of University of California , 17 Cal.3d 425, 43 4, 131 Cal.Rptr. 14, 22, 551 P.2d 334, 342 (1976)). We have discussed the relationship between forseeability and duty and said: The fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is n o duty to control a third person s condu ct so as to prevent personal harm to another, unless a special relationship exists either between the actor and the third person or betw een the actor an d the pe rson inju red. Ashburn, 306 Md. at 628, 510 A.2d at 1083. The seminal ca se in Ma ryland addres sing the du ty owed by po lice officers to the public is Ashburn, supra. In that case, an Anne Arundel County Police Officer encountered an individual in a convenience store parking lot sitting behind the wheel of a vehicle that had the engine running. The individual was intoxicated and it was agreed by the parties that he could have been charge d with d riving w hile into xicated . The Anne Arundel County Police Officer determined that the individual was too impaired to drive, ordered him to park his car for the eve ning an d not to drive it u ntil the n ext day. A fter the officer left the scene, the driver of the vehicle drove away from the convenience store and collided with a pedestrian who, as a result of the collision, lost a leg and suffered other injuries. The pedestrian brought suit against the driver, the police officer, the Anne Arundel County Police Department, and Anne Arundel County. The basis for the suit against the officer, the department, and the county, according to the pedestrian, was that the police had a mandatory duty under state law to detain a ll intoxic ated driv ers. Ashburn, 306 Md. at 620 , 510 A.2d at 107 9. The trial court -15- dismissed the case ag ainst the off icer, the police departme nt, and the co unty, in part, because the officer ow ed no spe cial duty to the pedestrian. W e affirm ed. Id. at 634, 510 A.2d at 1087. After determining that the officer was acting in a discretionary capacity and defining duty in the context of negligenc e, we said th at the duty ow ed by the polic e by virtue of th eir positions as o fficers is a du ty to protect the public . . . . Id. at 628, 510 A.2d at 1084. We then explained why that general duty to the public, in and of itself, does not create a special relationship w ith an individ ual: [P]ublic officials who act and react in the milieu of criminal activity where every decision to deploy law enforcement personnel is fraught with uncertainty must have broad discretion to proceed without fear of civil liability in the unflinching discharge of their duties. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949). As the Conne cticut Supreme C ourt recognized the public in terest is not served by allowing a jury of lay (persons) with the benefit of 20/20 hindsight to secondguess the exercise of a police [officer] s d iscretionary professional duty. Such d iscretion is no dis cretion a t all. Shore v. Town of Stonington, [187 Conn. 147, 444 A.2d 1379, 1381 (1982)]. ****** [I]f the police were held to a duty enforceable by each individual member of the public, then every complaint whether real, imagined, or frivolou s would ra ise the spectre of civil liability for failure to respond. Rather than exercise reasoned discretion and evaluate each particular allegation on its own merits the police may well be pressured to make h asty arrests solely to eliminate the threat of personal prosecution by the putative victims . Porter v. City of Urbana, [] 88 Ill.App.3d [443,] [] 445, 43 Ill.Dec. [610,] [] 612, 410 N.E.2d [610,] [] 612 [(1980)]. Such a result historically has been viewed, rightly so, as unte nable, u nwor kable a nd unw ise. -16- Furthermore, a policy which places a duty on a police officer to insure the safety of each member of the community would create an unnecessary burden on the judicial system. Under such circumstances, the slightest error of a po licema n wou ld give r ise to a p otential la wsuit. Ashburn, 306 Md. at 629-30, 510 A.2d at 1084 (quoting Morga n v. District of C olumbia , 468 A.2d at 1311-12 (D.C. 1 983) (s ome c itations o mitted)) . Thus, a po lice officer o wes no d uty to individual members of the community simply by virtue of the fact that he is a police officer. 8 In the present case, the Believe Campaign, to the extent it created any duty at all, was a duty to the general public not a duty to the individual members of the public. There are, however, circum stances under wh ich a police officer may, b y his or her affirmative acts, cre ate a du ty to a spec ific indiv idual. Such a situation is known as a special relation ship. We have said that the special duty rule is a modified application of the principle that althoug h generally ther e is no duty in ne gligence term s to act for th e benefit of any particular person, when o ne does indeed ac t for the benefit of anothe r, he must ac t in a reason able m anner. Williams v. Mayor and City Council of Baltimore, 359 Md. 101, 144, 753 A.2d 41, 64-65 (2000) (quoting Ashburn, 306 Md. at 630-31, 510 A.2d at 1085). For there to be a spec ial relationship, it must be shown that the local government or the police officer affirmative ly acted to protec t the specific victim or a specific group of individuals like the victim, thereby inducing the victim s specific reliance upon the police protecti on. 8 The duty ow ed b y police office rs is sometim es referred to as the pub lic duty doctrin e. For a discussion of this subject using the term public duty doctrine, see Muthukumarana, 370 Md. at 486-87, 805 A.2d at 395. -17- Ashburn, 306 Md. at 631, 510 A.2d at 1085. We affirmed the validity of the Ashburn test in Muthukumarana when we concluded there that in light of the many different special relationship requirements adopted by other jurisdictions[,] that the intent of the special relationship doctrine is better addressed by our general standard outlined in Ashburn because it preserves our ability to determine whether a special relationship exists on a case-by-case basis. Muthukumarana, 370 Md. at 495, 805 A.2d at 401 (quoting Williams, 359 Md. at 150, 753 A.2d a t 67-68 ). A special relationship may be established by a statute or rule, by a contractua l or other priva te relationship, or be implied by virtue of the relationship between the tortfeasor and a third party. Bobo v. S tate, 346 Md. at 715, 697 A.2d at 1376 (1997). A bsent a spe cial relationship between the state and a victim, however, liability for failure to protect an individual citizen against injury caused b y another citizen does not lie against police officers [or the government entity]. Ashburn, 306 Md at 628, 510 A.2d at 1083. Thus, we must determine whether a special relationship existed between the appellees and the Dawson family based on well pled facts of the co mplaint. If there is no special relationship, there can b e no duty owed to the Dawsons. Without the showing of a duty, there can be no relief. Appellan ts argue that, when viewed in a light most favorable to them, they alleged sufficient facts below to show that a special relationship was established between the BCPD and the Dawsons. Specifically, they argue that the 911 and 311 calls were continuous and systematic over a substantial period of time and that the BCPD officers affirmatively acted -18- for the Dawsons benefit and protection by repeatedly responding to 911 calls. They also argue that the BCPD affirmatively acted by promising to put the family on the Special Attention List and increasing the frequenc y of patrols by their h ouse. With respect to the State, appellants argue that an Assistant State s Attorney s alleged verbal promise of protection was an affirmative act creating a special relationship. The City argues that the only spe cific acts by the police that the appellants allege are the 911 calls and the subsequent police response. The calls were spread out over a period of time and n one of the m was d irectly connecte d to the fire-b ombing of the hou se. The Sta te argues that the Assistant State s Attorney s failure to act on an alleged promise for protection cannot be characterized as an affirmative act negating the creation of a special relation; it was an omission. As stated above, we determine the creation of a special relatio nship on a case-by-case basis. In the present case, it is unclear whether appellants are assertin g that the 91 1 calls themselves created the special relationship or whether it was the police response to the 911 calls coupled with the promise to place the Dawson family on the special protection list that created a special relatio nship. Un der either circu mstance, w e conclu de that there was no special relationship. With respect to any basis for a claim base d on the 91 1 calls, our ho lding in Muthukumarana is dispositive. In that case, w e addresse d wheth er 911 op erators we re liable in tort to individuals in need of assistanc e. We he ld that a 911 employee generally owes no -19- duty in tort for the negligent performance of his or her duties to an individual in need of emergency telephone services. Muthukumarana, 370 M d. at 492 , 805 A .2d at 39 9. We also acknowledged that if an individual plaintiff establishes that a 911 employee owed him or her a special duty, based on th e existence of a special relationship between the two, the employee may be found liable to the individual in tort for the negligent p erforman ce of his or her duties. Id. We then applied the Ashburn test for special relationships, which required, in that contex t, the 911 employee to affirma tively act for the p rotection of a specific individual or group and fo r the ind ividual o r group to rely on th e emp loyee. Id. at 496, 805 A.2d at 401. In the present case, there is no fact establishing a special relatio nship betw een the C ity and the Dawsons on the basis of the 911 calls. We stated in Muthukumarana that neither a dispatcher s receipt of a call for help nor the dispatch of emergency assistance alone creates a special duty to the person in need of such assistance. 370 Md. at 498, 805 A.2d 402 (quoting Fried v. Archer, 139 Md. App. 229, 260, 775 A.2d 430, 448 (2001)). In the present case, the fact that the 911 calls we re answered nu merous times and the police were dispatched numerous times does not alter the application of this rule of law. Under these circumstances it is not sufficie nt to establish a special relationship or to create a spec ial du ty. Appellant s argumen t with respect to the police response is equally unavailing. There simply is no allegatio n sufficiently pled showing that the police officers responding to the Dawson home affirmatively acted for the Dawson s benefit, that they did anything to induce -20- the Dawso n family to rely on them, or that they acted in any way diff erently than they w ould act responding to any comp laint of a ny other m embe r of the g eneral p ublic. Respon ding to the home on the b asis of a 911 call was part of the police officers public duty, regardless of how many times they had to respond to that particular home. Appellants allegations that the police stated that they would place the Dawsons on a Special Attention List do not give rise to a special relatio nship bec ause that state ment, in and of itself, does not indicate that the police affirmative ly acted towar ds the Da wsons in any manne r different th an they wou ld respond to any member of the general public. They responded generally. Thus, the first prong of the Ashburn test, requiring a n affirma tive act, is not m et. Even if the first prong of the Ashburn test were met, there is no indication that the Dawson s relied on the statement. In fact, appellan ts acknow ledgmen t that the Dawson family was preparing to move tends to show that they did not rely on any additional protection resulting from being placed on the Special Attention List. The only affirmative act, if any at all existed, was the action of the police in suggesting that the Dawsons move from the subject location. They were not injured because they took any action to move. They w ere injur ed bec ause th ey stayed. Keeping in mind that a special relationship only exists when an affirmative act and reliance are alleged, it is clear that there was no special relationship between the Dawson family and the Assistant State s Attorney who allegedly offered them protection but then failed to complete the paperwork. There was no affirmative act. There was only an alleged -21- omission by the A ssistant S tate s A ttorney. Appellants concede that one may characterize the bulk of [the Assistant State s Attorney s] conduct as omissions that is, failures to act as opposed to affirmative acts . . . . After making this concession, appellants do not reference any conduct by the Assistant State s Attorney which demonstrates the type of affirmative act necessary to create a special relationship. Therefore, no special relation ship was formed between the Assistant State s Attorney and the Daw son fa mily. Had the State s Attorney placed them in protective custody and then failed to protect them, a different anal ysis m ay hav e bee n necess ary in that t hey m ay hav e bee n in c usto dy. We hold today that there was no special relationship between the City and the Dawsons and that there was no special relationship b etween th e State and the Daw sons. This holding is consistent with the underlying public policy considerations present in Ashburn, Williams, and Muthukumarana. If we were to dramatically expand the potential liability that police and 911 operators are subject to, which might occur if we were to dilute or do away with the Ashburn test, it is very likely that the police w ould be hin dered in res pect to their response to the numerous calls for help that occur in this State on a da ily basis. See Ashburn, 306 Md. at 629, 510 A.2d at 1084 (officers must be able to discharge their duties without fear of civil liability). Doing away with or watering down the affirmative act requirement of the special relationship te st might resu lt in inserting into the respon se to every emergency call the consideration of poten tial liability on the part of the officer or operator, before the officer completes his or her response and, in this context, it might slow down, if not in some cases, -22- stop, the emergency respon se to em ergenc y situation s. See Muthukumarana, 370 Md. at 490, 805 A.2d at 398 ( [f]or the courts to proclaim a new and general duty of protection in the law of tort, even to those who may be the p articular seek ers of prote ction based on specific hazards, could and would inevitably d etermine how the limited police resources of the community should be allocated and without predictable limits. ) (quoting Fried, 139 Md. App. at 258, 775 A.2d at 447 (quoting Riss v. City of New York, 22 N.Y.2nd 579, 293 N.Y.S.2d 897, 240 N.E.2d 860, 861 (1968))). We also recognized in Muthukumarana that when emergency services are involved, the circumstances are often quite demanding and . . . some mistak es will occur, eve n when the service is w ell organized and cons cientiously admin istered. 370 Md. at 490-91, 805 A.2d at 398 (quoting DeLon g v. Coun ty of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717, 722 (1983)). Thus, our decision to continue to limit the scop e of liability in the present case, is consistent with the public policy reasons that have led us to apply the Ashburn test for special relationships in certain of our previous cases. With respect to ap pellants third issue presented, even if the allegations of the complaint could be established by discovery, for the reasons we have stated, the allegations would not suffice to establish a d uty based upon a special relationship. It is the allegations themselve s that are insuf ficient. IV. Conclusion For the forego ing reasons, we hold that the Circuit Court for Baltimore City was -23- correct as a matter of law when it found that the state-created d anger theo ry did not apply under t he circu mstanc es of th is case. We also hold that a special relationship did not exist between the appellees and the Dawson family. We further hold that the trial court did not err in dismissing the case prior to discovery being conducted. JUDGMENT OF TH E CIRCU IT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APP ELL ANT S. -24-
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