Livesay v. Baltimore
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In the Circu it Court for B altimore C ounty Case No. C-02-7264 IN THE COURT OF APPEALS OF MARYLAND No. 7 September Term, 2004 JOSEPH KEVIN LIVESAY v. BAL TIM ORE COU NTY , MA RYL AND , et al. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: November 19, 2004 This case is a lawsuit filed pursuan t to the Local Gove rnment Tort Claims Act, Md. Code (1973, 2002 Repl. Vol., 2004 Cum. Supp.), § 5-301 et seq. of the Co urts and Judicial Proceedings Article.1 The complaint alleges negligence against Baltimore County, Baltimore County Detention Center W arden D orothy Williams, Classification Supervisor George Jackson, Correction s Officer Ricky Fore, a nd nurse K enya Thom as of Prison Health Services, Inc., in connection with appellant Joseph Kevin Livesay s attempted s uicide wh ile he was an in mate at the detention center. 2 The Circuit Court for Baltimore County granted summary judgment in favo r of Fore and B altimore County on the grounds of public official immunity and Gov ernm enta l Imm unity, and in favor of Jackso n on the ground s that there were no material facts in dispute and he was entitled to judgment as a matter of law.3 1 Unless indicated otherwise, all future statutory references will be to Md. Code (1973, 2002 Repl. Vol., 2004 Cum. Supp.), Courts and Judicial Proceeding Article. 2 In his complaint, appellant alleged first that Fore, Williams, and the County were negligent in allowing Livesay to remain hanging between the time he was discovered by Fore and the arrival of an Emergency Response Team. Second, he alleged that Williams, Jackson, Thoma s, and the C ounty were negligent in assigning Livesay to routine housing and in not taking steps to prevent his suicide attempt. Third, he alleged that William s and the C ounty were negligent in failing to design and implement policies to prevent Livesay from being sexually assaulted while in the Detention Center. Fourth, he alleged that Williams and the Coun ty were n egligen t in hiring and reta ining F ore, Jac kson, a nd Th omas. 3 The record does not indicate whether Williams or Thomas have ever been served with process in this action. Neither has participated in this ac tion. The docket indicates that Writs of Summons were issued for all five defendants on July 2, 2002, with no return of service in the file. Livesay requested that the sum mons be reissued f or Williams and Thomas on June 27, 2003, and new Writs of Summons were issued the same day. Correspondence sent to T homa s at the d etention center w as mark ed retu rn to sen der. Appellees stated in their October 17, 2003 Memorandum in Support of Motion for Summary Judgm ent, upon information and belief, that Williams was deceased, that they expected Livesay would dismiss the action with regard to Williams, and that Thomas was (contin ued...) Appellant noted a timely appeal to the Court of Special Appeals and this Court granted certiorari on its own initiative. We consider the following questions: (1) Whether the Local Government Tort Claims Act (LGTCA ) eliminates the immunity defenses asserted by the County employees; (2 ) whethe r Md. C ode (197 3, 2002 R epl. Vol., 2004 Cum . Supp.), § 5507(b)(1) of the Courts and Judicial Proceedings Article applies to county as well as municipal employees; (3 ) whethe r a Correctio ns Offic er is a public official en titled to statutory and common law qualified immunity; and (4) wheth er Office r Fore wa s acting in a discretionary capacity when he discovered appellant. We shall affirm the judgment of the Circuit Court and hold tha t Fore and the County were entitled to immunity and that summ ary judgment was proper as to Jackson. I. Appellant was arrested on June 30, 1999, after a traffic stop, and charged with fleeing and eluding a police officer, driving while revoked and suspended, and related traffic offenses. The District Court set bail at $10,000 and appellant was committed and transported to the Detention Cen ter. He r eceive d a hea lth evalu ation, co nducte d by Ke nya Tho mas, a Prison Health Servic es, Inc., nurse. On the checklist completed during this evaluation, 3 (...continued) separately represented by her emplo yer s counsel. In their brief, however, app ellees assert that Ms. Williams died prior to being served, and Ms. Thomas was never served, and therefore, they were not parties to the lawsuit or th is appeal. We will proceed under the assumptio n that neither W illiams nor T homas w ere parties be fore the C ircuit Court. -2- Thomas indicated that Livesay s general appearance and affect were normal, that he had no history of suicide a ttempt, no cu rrent suicidal id eation, and n o history or evidence of selfmutilation.4 Thoma s also indicate d that Lives ay could be assigned to the general population. The next day, a classification counselor at the Detention Center found no medical or mental health issues an d spe cific ally, no suicide risk.5 Livesay wa s assigned a mid-leve l classification. At approximately 6:50 P.M. on July 5, 1999, an inmate alerted appellee Corrections Officer Ricky Fore that there was an unco nscious man in cell tw enty. According to Fore s deposition, he immediately ran up a flight of stairs to discover Livesay sitting slumped on the floor of his cell, a bed sheet tied between his neck and the bunk bed. Fore did not render direct assistance to Livesay, but instead radioed a Code T wo m edical alert to summon the facility s Emergency Re sponse Team ( ERT ). Inmates h ad gathere d outside L ivesay s cell, and Fore next cleared the area by ordering them to lock in to their own cells. Fore did not 4 In his complaint, Livesay alleged that the Detention Center had on file a General Information Report from a previous stay at the Detention Center, describing him as possibly suicidal. This record was allegedly created in response to a March 3, 1999 telephone call between Livesay s mother Patricia and a Sgt. Brian Matricciani, in which she informed the Sergeant that Livesay was depressed, was undergoing heroin withdrawal, and had attempted to hurt himse lf in the past. However, Livesay did not submit any evidence of the record or conversation in supp ort of his Opposition to D efendants M otion for Summ ary Judgment, nor did he refer to them in his Memorandum of Law. 5 The Intake Classification Form was not signed, but Livesay alleged in his complaint that appellee George Jackson was the Detention Cente r s Clas sificatio n Sup ervisor. Jackson later gave deposition testimony that he had no direct involvement with Livesay s classification a nd did no t recall any indirec t involvem ent. -3- believe himself to be in any physical danger, but described himself as just in shock. The ERT arrived approximately five minutes after Fore issued the Code Two. The ERT personnel rend ered eme rgen cy medical aid until paramedics arrived; appellant was then transported to Greater Baltimore Medical Center and eventually to Shock Trauma for further treatment. Appellant suffered oxygen deprivation, which caused some brain damage.6 Section 11.3(H) of the Baltimore County Bureau of Corrections Operations Manual ( Operations Manual ) states as follows: Intervention During Suicide Attempt 1. An off icer respon ding to a su icide attemp t will immed iately intervene based on the circumstances of the suicide attempt. The officer will respon d based o n their training. Generally, the officer s response may include: a. Assessment of the Officer s and othe rs sa fety; b. Securing the area; c. Notifying the Central C ontrol / Front Desk and summoning additional help if needed; d. Ta lk in a non-threate ning way; e. Listening to the inmate; f. Extricating the victim , if hanging , while protecting the head and neck as much as possible; g. Admin istering C.P.R . and/or othe r First Aid techniques; h. Utilization of protective safety equipment (i.e. rubber gloves, M ADA Mask, etc.) According to an internal affairs investigation report, appellee Fore had attended a Bureau of Corrections presentation entitled Suicide Discovery and Response on September 6 Livesay remains incom petent as a re sult of his inju ries and files s uit through h is guardi an and next fri end Pa tricia Liv esay. -4- 23, 1998, and received a passing sco re on the ex amination . Sgt. John Ripley, the Bureau s Training Coordinator, told the internal affairs investigator that Corrections O fficers are taught to respond in the following manner to inmate suicide attempts: ! Immediately intervene. ! Extricate the victim as soon a s possible (if hanging). ! Always ass ume the v ictim is alive and administer First Aid or CPR if needed. ! Neve r leave th e victim alone. Sgt. Ripley stated to the investigation that he does not deviate from his lesson plan (the Lesson Plan ), which reads as follows: Always ASSUME the victim is alive 1. Administer First Aid and/or C.P.R. 1. REMEM BER ONLY a certified M.D. or Coroner, M.E. can pronounce an individual dead! 2. Protect the h ead and n eck wh en cutting v ictim down. 3. PROCEDURE (Hanging Victim) A. Start E.M.S. (emergency medical services) no tification process B. One officer holds victim and stabilizes the head. C. Another officer cuts, loosens or removes the noose. ASSUME that the spinal cord is injured. CAUTION: Some victims are lost because too much time is spent cutting them down! *** -5- D. Administer Rescue Breathing or C.P.R. if needed. E. DO NOT GIVE THESE ITEMS TO A S UICIDE VICTIM E1. Water E2. Food E3. Medication F. Never leave victim alone G. If there is DISCOLORATION or SWE LLING apply an ice bag to that area . Eugene M. Nuth, a former Warden of several Maryland county and state facilities, executed an affidavit (the Nuth Affidavit ) stating as follows: Based on Baltimore County Bureau of Corrections suicide prevention policies and training, it is my opinion that Ricky Fore should have attempted to extricate Jo seph Ke vin Livesa y, freed his airw ay, and applied CPR a nd other fir st-aid techniques in which he was trained. Once officer Fore satisfied himself as to his own safe ty, which he did, it is my opinion that the palliative steps described in the foregoing paragraph were ministerial applications of existing policy. When he withheld these steps, Officer Fore was not making a discretionary decision, but was failing to ca rry out a ministerial function of his job. As we hav e indicated, th e Circuit Court granted summary judgment in favor of Fore, Jackson, and the County. The court held that Fore enjoyed statutory immunity under § 5507(b)(1) and that Fore was a public official, engaged in discretionary actions within the scope of his official duties, and had acted without malice. The court further found that, because Live say had not offered any evidence of Jackson s negligence, there were no disputed material facts with respect to the negligence claim against Jackson, and that Jackson -6- was therefore entitled to judgment as a matter of law. It held that, under the LGTCA, the County could b e held lia ble only to the exte nt that its e mployee s were liable. Because Livesay was not entitled to relief against Fore and Jackson, the court held that the County was entitled to summ ary judgmen t. Before this Court, Livesay contends that the LGTCA eliminates any immunity that appellees might assert. He also conte nds that county officials, as opposed to municipal officials, are not entitled to statutory public official immunity. He further contends that Fo re was not a public official, and that, even if Fore were a public official, he was not acting in a discre tionary ca pacity. II. As indicated previously, this matter was resolve d in the Circuit Court on summary judgmen t. Whethe r sum mary judg men t was gra nted prop erly is a question of law. The standard of review is de novo, and wheth er the tria l court w as legall y correct. See Walk v. Hartford Casualty, 382 M d. 1, 14, 8 52 A.2 d 98, 10 5 (200 4). Maryland Rule 2-501(e) states that a trial court shall enter judgment in favor of or against the moving party if the motion and respo nse show that there is no genuine dispute as to any material fact and that the party in whose favor judgm ent is entered is entitled to judgment as a matter of la w. In rev iewing a g rant of sum mary judgm ent under R ule 2-501(e), we indep endently review the record to determine whether the parties pro perly -7- generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law . Jurgense n v. New Phoenix , 380 Md. 106, 114, 843 A.2d 865, 869 (2004). W e review the record in the light most favorable to the non-moving party and construe any reasonable inferences which may be drawn from the f acts against th e movan t. Id. In addition, it is well established in M aryland that an a ppellate cou rt ordinarily will consider only the groun ds relied upon b y the trial co urt in gra nting su mmar y judgm ent. See, e.g., Lovelace v. Anderson, 366 Md. 690, 695, 785 A.2d 726, 729 (2001); PaineWebber v. East, 363 Md. 408 , 422, 768 A.2d 1 029, 1036 (200 1). To survive a motion for sum mary judgmen t, there must e xist not just a dis pute as to any facts, but rath er as to facts which are ma terial, i.e. necessary to the determination of the case. Remsburg v. Montgomery, 376 Md. 568, 580 , 831 A.2d 18, 25 (20 03); Lippert v. Jung, 366 Md. 221, 227, 783 A.2d 206, 209 (200 1); Beatty v. Trailmaster, 330 Md. 726, 737, 625 A.2d 1005, 10 11 (1993 ). Because the instant case involves claims of governmental and public official imm unity, disputes as to facts surround ing the und erlying causes o f action w ill not be material if summary judgment was proper on the basis of immu nity alone . Immun ity is a threshold issue that, once established, defeats a claim without inquiry into the underlying merits of the claim. -8- III. We begin our analysis with the negligenc e claim asserted against Corrections Officer Ricky Fore. A. We consider first Livesay s argument that § 5-303(b) of the LGTCA eliminates immunity defenses for local government employees. Section 5-303(b) provides as follows: (1) Except as provided in subsection (c) of this section [governing punitive damages], a local government shall be liable for any ju dgm ent a gain st its e mployee for damages resulting from tortious acts or omissions committed by the employee within the sc ope of em ployment w ith the local go vernmen t. (2) A local government may not assert governmental or sovereign immunity to av oid the duty to defend or indemnify an employee established in this subsection. Section 5-303(b) requires local governments to indemnify employees for torts committed within the sco pe of e mploym ent, and prevents the gove rnmental e ntity from eva ding this obligation by asserting governmental or sovereign immunity. It does not address the defenses which employees may assert in a tort action. Rather, employees defenses and immunities are preserved explicitly in § 5-303(d), which provides as follows: Notwithstanding the provisions of sub section (b) o f this section, this subtitle does not waive any common law or statutory defense or immunity in existence as of June 30, 1987, and po ssessed by an em ployee o f a loca l gover nmen t. While the Coun ty as indemnor is the real party in inte rest, the claim is a gainst Fore and is subject to any valid immunity he asserts. -9- B. Fore has ass erted bo th com mon la w and statutory p ublic of ficial im munity. T he Circuit Court found that Fore en joys statutory public o fficial imm unity under § 5-507(b )(1). That statute p rovides as f ollows: An official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official's employment or authority shall be immune as an official or individual from any civil liability for the performance of the a ction. Livesay contends that Baltimo re Coun ty is not a mun icipal corporation and that Fore thus does not fall with in the amb it of the statute. W e hold that F ore, as a Co unty employee, is cloaked with statutory immunity so long as he is acting in a discretionary capa city, w ithout malice , and with in the sco pe of his emp loyment o r authority. We have held that the purpose of § 5-507(b)(1) was to codify existing public official imm unity, and not to extend the scope of qualified immunity beyond its Maryland common law bounda ries. Lovelace v. Anderson, 366 Md. 690, 704, 785 A.2d 726, 734 (2001) (quoting Ashton v. Brown, 339 Md. 70, 116 n.23, 660 A.2d 447, 470 n.23 (1995) ). As discussed infra, officials of Maryland counties enjoy com mon law public of ficia l imm unity. Section 5-507(b)(1) codified the common law, and while it did not extend the scope of the common law, it did not limit i t either. U nder th e com mon la w, coun ty public off icials enjoyed immunity; accordingly, despite the seemin gly narrower drafting, § 5-507(b)(1) applies to county as well as municipal officials. As appellees point out, a contrary holding -10- would produce the absurd result that when city and county police respond to the same emergency, the former enjoy immunity but the latter do not. We do not believe the Legisla ture inte nded th is result. Because we hold that § 5-507(b)(1) merely codified Maryland common law public official immunity, and because the case law on commo n law public official imm unity is more developed, we shall analyze F ore s situ ation in t hat con text. A governmental representative is entitled to public official immunity under the common law when he or she is acting as a public official, when the tortious conduct occurred while that person was performing discretionary rather than ministerial acts, and when the representative acted without malice. See Lovelace v. Anderson, 366 Md. 690, 714, 785 A.2d 726, 739 (2001) (citing James v. Prince George s County, 288 M d. 315, 323 , 418 A.2d 1173, 11 78 (1980 )); Williams v. Baltimore, 359 Md. 10 1,137, 753 A.2d 41, 61 (2000). Fore must have been acting as a public of ficial if he is to be immune from liability for his conduct. At the time of the c onduc t at issue, h e was a cting as a correc tions of ficer, i.e. as a prison gu ard. We h old that, in accord with Carder v. Steiner, 225 Md. 271, 170 A.2d 220 (196 1), as a prison guard, Fo re was a p ublic officia l. Carder, a prisoner, sued a guard and the Warden of the Maryland House of Corrections alleging , inter alia , that the prison guard maliciously, w ilfully, and neglig ently closed Carder s cell door, knowing that the door would strike him. Carder contended that the guard was not a public official and hence was not entitled to public official immunity on -11- the grounds that the guard s duties were ministerial only and that he was liable for negligence in their performance, w ithout a showing of malice. The guard argued that he was a public officer exercising discretion, and therefore was immune unless he had acted with malice. We held that a prison guard is a public officer, entitled to immunity. We stated as follows: We agree that the guard is a public officer within the meaning of the rule of the Ferling[7] and Cocking[8] cases. Immunity from liability rests not on the dign ity of the office but rather upon the nature of the function exercised. A policeman has been held to be a public officer. A prison guard, like a policeman, acts as an arm of the State, in keeping incarcerated tho se comm itted to imprisonment and in maintaining order in the prison, and is not to be held liable civilly for damages resulting from mere neglige nce in th e perfo rmanc e of his duties. Id. at 275-6, 170 A.2d at 222. (Citations omitted). Appellant maintains th at Carder was overruled by James. Appellan t s argume nt is based upon a footnote in James, stating that [t]o the e xtent that Carder v. Steiner, 225 Md. 271, 170 A.2d 220 (1961) and similar cases indicate that the existence of the first factor alone is sufficient to create public-official immunity, they are overruled. James, 288 Md. at 323 n.9, 418 A.2d a t 1178 n .9. Appellant reads too m uch into fo otnote nine. In James, this Court addressed common law public official immunity, observing as follows: Before a governmental representative in this State is relieved of liability for his negligent acts, it must be determined that the 7 State, Use, Clark v. Ferling, 220 Md. 109 , 151 A.2d 137 (1959). 8 Cocking v. Wade, 87 Md. 529, 40 A. 104 (1898 ). -12- following independent factors simultane ously exist: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official d uties. Once it is established that the individual is a public official and the tort was committed while performing a duty which involv es the ex ercise o f discre tion, a qualified immunity attaches; namely, in the absence of malice, the indiv idual inv olved is free fro m liability. Id. at 323-324, 418 A .2d at 1178 (internal citations omitted). The footnote made clear that Carder and similar cases were overruled only to the extent that those cases held th at public official status alone was su fficien t to supp ort imm unity. James made clear that in addition to public off icial status, proo f that the pu blic official w as perform ing discretion ary acts is also a necessary requirement. It did not pu rport to overrule Carder s specific holding that a prison g uard was a public o ffic ial in the c onte xt of public of ficia l imm unity. The rule of stare decisis dictates the outc ome o f our d ecision today. Stare decisis, which means to stand by the thing decided, is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to th e actual and perceived integrity of the judicial proces s. Payne v. Tennessee, 501 U.S . 808, 827, 1 11 S. Ct. 2597, 2609, 115 L. Ed. 2d 720 (1991). The United S tates Supreme C ourt has noted that by the important doctrine of stare decisis . . . we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. Vasquez v. Hillery, 474 U.S. 254, 265, 106 S. Ct. 617, 624, 88 L. Ed. 2d 59 8 (1986). That Court also explained that stare decisis permits so ciety -13- to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of governm ent, both in appearance and in fact. Id. at 265-66, 106 S. Ct. at 624. While a court has the judicial power to overrule prior cases, courts generally act in a constrained manner to crea te predic tabil ity, stability and integrity in the law. McMellon v. United States, No. 02-1494, 2004 WL 230 3487, at *25 (4th C ir. Oct. 14, 2004). While we have never construed the doctrine of stare decisis to preclude us from changing or modifying a common law rule when conditions have changed or that rule has become so unsound that it is no long er suitable to th e people o f this State, departure from the rule should be the extraordinary case, especially so when the change will have a harmful effect upon s ociety. See Bozman v. Bozm an, 376 Md. 461, 493, 830 A .2d 450, 469 (200 3); Boblitz v. Boblitz, 296 Md. 242, 274, 462 A.2d 506, 521-22 (1983). Fore and Jackson, when they accepted employment, had every reason to believe, based on Carder, that they wou ld be protected from suit by public official immunity. The circumstances of prisoners and prison guards ha ve not cha nged so m uch in this regard in forty-three years as to warrant reversal of our earlier per se classification. Furthermore, the State and counties have been able to attract and retain corrections officers these many years with the expectation that the officers discretionary, non-malicious actions would not subject them to liability. We sho uld not, and do not, overrule Carder. -14- C. Having established that Fore is a public official, w e next con sider whe ther his actions surrounding Livesay s suic ide attempt w ere discretion ary, rather than m inisterial. Livesay argues that Fore was under a mandate to protect him because Fore was in charge of Livesay s section of the Detention Center. He maintains that while Fore may have had discretion as to how he protected Live say, he did not have discretion as to whether to come to his aid once he discovered Livesay on his cell floor. He contends that the Bureau of Corrections regulations mandated that Fore should have acted immediately and not have left Live say. We have stated that minister ial refers to du ties in respect to which n othing is left to discretion as distinguish ed from th ose whe re the officia l has the free dom and authority t o make decisions and choices, James, 288 Md. at 326, 418 A.2d at 1179 (quoting Ferling, 220 Md. at 113, 151 A.2d at 139 (1959)). We expounded upon the term discretion as follows: The term discre tion deno tes freedom to act accordin g to one's judgment in the absence of a hard and fast rule. When applied to public officials, discretion is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience and uncontrolled by the judg ment or conscienc e of others. James, 288 Md. at 326, 418 A.2d at 1179 (quoting Schneider v. Hawkins, 179 Md. 21, 25, 16 A.2d 861 , 864 (1940)). -15- The Circuit Court considered two potential sources of information about Fore s instructions in the event of an inmate suicide attempt: the Operations Manual and the Lesson Plan. Livesay contends that the O perations Manu al sets out a prescribed, non-discretion ary protocol for responding to an inmate suicide attempt. We do not agree. The plain language of the Operations Manual makes clear that the officer s response may include a number of different actions (emphasis added); those actions include direct lifesaving measures , assessing the safety of the o fficer and others, securing the area, notifying the facility s contro l units, and sum moning additional h elp. Ma y is generally interpreted as permissive, in contrast with shall, whic h is interp reted as mand atory. See Board of Physician Quality v. Mullan, 381 M d. 157, 166 , 848 A.2d 642, 648 (2004); State v. Green, 367 Md. 61, 82, 785 A.2d 12 75, 1287 (2001); Brodsky v. Brodsky, 319 Md. 92, 98, 570 A.2d 1235, 1237 (1990). The manual says may and thus conveys discretion. The plain language of the Operations M anual defeats Livesa y s argument that the Operations Manual creates a ma ndatory, non-discre tionary duty. The L esson Plan , while it contains a protocol for providing direct life saving aid to an individual attempting suicide, addresses only the manner in which such measures should be undertaken. It does not mandate direct intervention to the exclusion of other responses. It is clear that, reading the Operations Manual and Lesson Plan together, officers retain the discretion to select the ap propriate response, based on the circumstances. -16- In Ashburn v. Anne Arunde l County , 306 Md. 617, 510 A.2d 1078 (1986), we considered a similar issue. There, the Court considered whether a county police officer may be held liable to a person injured by a drunk driver where the officer detec ted th e driver's condition before the accident but failed to detain him. The appellant, Ashburn, argued that the police officer was not im mune fro m suit und er the doctrin e of public official imm unity because he negligently failed to perform the mandatory (as opposed to discretionary) act of detaining a drunk d river. Ashburn cited a statutory proced ure 9 for processing suspected drunk drivers and argued that it had created a ministerial duty for the officer to detain an apparently drunk driver discovered behind the wheel of an idling truck. Id. at 624, 510 A.2d at 1081-82. We noted, however, that the entire procedure was proceeded by the phrase if a police officer stops or detains any individual . . . . Id. at 625, 510 A.2d at 10 82. We h eld that, even assuming the procedure was the mandatory method for processing a suspected drunk driver o nce de tained, th e thresh old dec ision to d etain w as itself d iscretion ary. Id. Similarly, in this case, the plan and manual d id not create a mandato ry duty to act in a particular manner and did not transform the inherently discretionary decision to commence direct lif esavin g mea sures in to a min isterial on e. Finally, because the question of whether a public official s act was discretionary or ministerial is one of law, the Circuit Court was not required to give any weight to Eugene M. Nuth s affidavit statement that Fore was not 9 See Md. Code (1977, 1984 Repl. Vol.), § 16-205.1(b) of the Transportation Article. -17- making a discretiona ry decision, but was failing to carry ou t a ministerial fu nction of h is job. The Circuit Court did not err in finding that Fore was acting in a discretionary capacity within the meaning of the public official immunity doctrine. IV. Live say, for the first time, contends that Fore established a special relationship with him, and that under our holdings in Williams and Ashburn, this defeats Fore s claim of imm unity. Livesay also contends for the first time that Fore acted with deliberate indiffe rence when he faile d to ren der dire ct aid. Because these issues were not raised below, we shall not consider them. We have held consistently that this Court will not ordinarily decide issues not raised in and decided by a trial cou rt. See Taylor v. State, 381 Md. 602, 612, 851 A.2d 551, 557 (2004) (citing Md. Rule 8-131(a) in holding that a claim of double jeopardy was not preserved because it was not raised at the trial le vel); Conyers v. State, 354 Md. 132, 148, 729 A.2d 910, 918 (1999) (citing Md. Rule 8-131(a) in holding that several issues in review of a death sentence w ere not preserved because they were not raised at the trial level); Walker v. State, 338 Md. 253, 262, 658 A.2 d 239, 24 3 (1995) (c iting Md. R ule 8-131(a) in holding that issues relating to denial of due process because of prosecutorial misconduct and denial of Sixth Amendment right to counsel during pre-trial proceedin gs were n ot properly raised below); White v. Sta te, -18- 324 Md. 626, 640, 598 A.2d 187, 194 (1991) (citing Md. R ule 8-131 (a) in holding that claim of deprivation of constitutio nal right to pre sent witnes ses in defense was not properly before the Court bec ause the arg ument w as not mad e to the trial cou rt); In re John H., 293 Md. 295, 303, 443 A.2d 594, 598 (1982) (citing Rule 885, a predecessor of Md. Rule 8-131(a), in not reaching the issue of whether statute was constitutional because the issue of constitutio nality was not argued to the trial court). In Medley v. State, 52 Md. App. 225, 448 A.2d 363 (1982), the Court of Spe cial Appeals exam ined the purpose of Rule 88 5, a predec essor to Md. Rule 8-1 31(a), and noted that [i]t is a ma tter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice; and one need only look at the extensive annotations to Maryland Rules 885 and 1085 to see that it is rigorously enforced. Id. at 231, 4 48 A.2 d at 366 . V. We turn now to the negligence claim against appellee George Jackson, the classification supervisor. The Circuit Court granted summary judgment in favor of Jackson on the merits of that claim, rather than on the basis of pu blic official immunity; therefore, we will rev iew the grant o n that ba sis alone . Livesay s complaint alleges that Jackson owed Livesay a du ty of reasonab le care to keep him safe and free from harm w hile he was in custody at the D etention Center. According to the complaint, Jackson breached this duty to [Liv esay] when , despite -19- docume ntary, medical, an d behavio ral evidenc e of Plaintiff s past and present depression, agitation, drug withdrawal and potential for suicide, [Jackson] placed [Livesay] in routine diagno stic hou sing . . . an d took n o steps to preven t [Live say] s suic ide attem pt . . . . Livesay submitted no evidence whatsoever of J ackson s role in Livesay s stay at the Detention Center. Livesay s Memorandum of Law in Opposition to Defendants Motion to Dismiss does not address the claim against Jackson. Although Livesay alleges in his complaint that the Detention Center maintained a record of a prior conversation between Patricia Livesay and Detention Center personnel, no evidence of this record or of the conversa tion were b efore the c ourt. There was no evidence before the Circuit Court establishing any act or omission on the part of Ja ckso n, let alon e one wh ich w ould constitute a b reac h of his d uty to Live say. The court correctly concluded that no facts material to this claim were in dispute, and that Jackson was entitled to judgment as a matter of law. VI. Fina lly, we address the grant of summary judgment to the County. To the extent that the County is joined as indemnor of Fore and Jackson, its liability is dependa nt on that of its employees and it may only be held liable to the extent that a judgment could have been rendered agains t . . . an employee under this subtitle. § 5-303(e). Because, as discussed -20- supra, summary judgment was proper as to Fore and Jackson, it is likewise proper for the County as indemno r. Livesay s complaint also alleges vicarious liability on the part of the County for the actions of Fore, Jackson, Thomas, and Williams. Section 5-303(d) makes clear that the Local Government Tort Claim s Act doe s not waiv e the Cou nty s comm on law govern mental immunity in any extent more broad than its duty to indemnify employees. We have previously made clear that the LGTCA does not waive governmental immunity or otherwise authorize any actions directly against local governments . . . . Williams v. Maynard, 359 Md. 379, 394, 754 A.2d 379, 388 (2000 ). See also M artino v. Be ll, 40 F. Supp. 2d 719, 722 (D. Md. 1999) (LGTCA did not permit plaintiffs to name county directly in state law claims for wrongful arrest, false imprisonment, and malicious p rosecution ); Dawson v. Prince Geor ge's County , 896 F. Supp. 537, 539 (D. Md. 19 95) (althou gh coun ty was financ ially responsible under LGTCA for judgment against employee, Act does not create liability on part of county). As there were no material facts which could have established the County s liabi lity, and governmental immunity entitled the County to judgment as a matter of law, the Circuit Court did not err in granting summary judgment on all counts. JUDGMENT OF TH E CIRCU IT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT. -21-
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