Horridge v. Social Services

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In the Circu it Court for A nne Aru ndel Cou nty Case No. C-2002-80741 IN THE COURT OF APPEALS OF MARYLAND No. 80 September Term, 2003 ______________________________________ ERIC HORRIDGE, ET AL. v. ST. MARY S COUNTY DEPARTMENT OF SOCIAL SERVICES, ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. Cathell and Battaglia, JJ., Dissent ______________________________________ Filed: July 28, 2004 Maryland law requ ires any person having reason to believe that a child has been subjected to abuse or neglect to make a fairly detailed report to either the local department of social services (DSS), which is a unit of the State Department of Human Resources and therefore a State agency, or an appropriate law enforcement agency. The law requires DSS, promptly after receiving such a rep ort, to make a thoroug h investigatio n in order to protect the health, safety, and welfare of the child. Part of that requirement is the directive that, if the report is of physical or sexual abuse, DSS must, within 24 hours, see the child, attempt to have an on-site interview with the child s caretaker, and decide on the safety of the child. The principal questions before us are whether (1) the statutory obligation to conduct a thorough investigation and take a ppropriate s teps to protec t the child creates a civil duty on the part of DSS to the child who is the subject of a report of abuse, and (2) if so, and subject to the State T ort Claims Act, liability exists on the part of the State or individual social workers if harm ensues to a child because of a negligent breach of that duty. We s hall answer both questions in the affirmative. BACKGROUND In an amended complaint filed in the Circuit Court for Anne Arundel County, plaintiff, Eric Horridge, alleged that, between December, 1999, and February, 2000, he made eight reports to the St. Mary s County DSS of physical abuse being inflicted on his nineteenmonth-o ld son Collin by Collin s mother or her boyfriend, that a neighbor also reported that Collin was being abused, that DSS failed to make a thoroug h investigatio n and take steps to protect Collin, as required by law, and th at, as a result of that failure, C ollin remain ed in mortal danger and, in fact, was beaten to death by his mother or her boyfriend eight days after the last report was made and ignored. The complaint charged the State and two DSS social workers, Briana Shirey and Deborah Walsh, with negligence, intentional infliction of emotional distress on Collin, and depriving Collin of his State Constitutional right to procedural and substa ntive due p rocess, and it added a c ount again st the State for negligent selectio n, supe rvision, a nd reten tion of M s. Shirey a nd M s. Wals h. The court dismissed the complaint as failing to state a cause of actio n upon which relief can be granted. Its decision was ultimately ground ed on its con clusion that n o duty was owed to Collin by any of the defendants an d that, even if a duty were owed to him, the breach of that duty was not the proximate cause of the harm that ensued. Horridge appealed, and we granted certiorari prior to proceedings in the Court of Special Appeals. Because the comp laint was dis missed on the groun d that it failed to state a cause of action, the issues before us are purely ones of law. We must assume the truth of all well-pled factual allegations in the complaint, as well as any reasonable inferences that may be drawn from those a llegation s. Adamson v. Correctional Medical, 359 Md. 238, 246, 753 A.2d 501, 505 (2000); Muthukumarana v. Montg omery C ounty, 370 Md. 447, 474, 805 A.2d 372, 388 (2002). Accordingly, we shall recite as fact that which, at this point, is merely alleged. Collin was born in Texas, in June, 1998, to plaintiff, Eric Horridge, and Tiffany Fairris. In October, 1999 , Ms. Fairris m oved to S t. Mary s Co unty, Maryland , along with -2- Collin, his three-year-old sister, Erica, and Ms. Fairris s boyfriend, Daniel Fowkes. Plaintiff remained in Texas. In December, 1999, he reported to Defendants that Collin was being abused. That abuse, the complaint alleges, arose out of a series of telephone conversations that [Horridg e] had w ith Tiffany F airris during w hich she w ould physically ab use Collin while threa tening Eric Horridge with never seeing his son again. The complaint does not indicate what, if an ything, DSS did in respo nse to that initial report. T he two ca lls that are of particular importance were those that occurred later, in January and February, 2000. On or about January 24, 2000, during the course of a telephone call to Maryland, Horridge heard C ollin screaming and crying in the background because Tiffany Fairris was hitting him and had pushe d him in to a wa ll. He immediately contacted the Defendants and provided them with detailed information about the p hysical injuries that Collin was suffer ing. Horridge also informed the defendants that Fairris abused drugs in the children s presence, that she became more abusive when under the influence of drugs and alcohol, that she had anoth er child in Texas who had been abused while in her care, that a Texas court had restricted her right of visitation with that child, and that Fairris had threatened to abuse C ollin in retaliation for Horridge having initiated custody proceedings in Texas. On Januar y 28, 2000 four da ys after that call w as received the defe ndants purported to conduct an on-site visit with Collin, but, according to the amended complain t, failed to conduc t a thorough investigation of the reported abuse. D uring the on -site visit, defendant Shirey observed circular bruising on Collin that was consistent with the -3- particulars of the abuse reported by [Horridge] to the Defendants, and which was inconsistent with normal toddler play, but Shirey declined to remove Collin from the home, have a doctor examine him, m onitor the home environment, or take any other action to protect Collin. Instead, the d efendan ts purporte d to rely upon a statement, taken in the presence of the suspected abuser(s), from Collin, a nineteen- month-o ld toddler w hose lingu istic ability was limited to single words, in which he attributed his injuries to play activities. On February 2, 2000, the Defendants closed the case without taking any further action. On or about February 17, 2000, Fairiss informed Horridge that she would abuse C ollin in retaliation for his reports of abuse. Horridge immediately reported that threat to the defendants, but they refused to investigate it. Instead, Shirey accused Horridge of being a disgruntled parent and told him that she did not care about his report because the case was closed . Walsh ins tructed him not to call ba ck again w ith a report o f abuse concerning [Collin]. Apart from Horridge s complaints, a concerned neighbor with personal knowledge of abuse or neglect of [Collin], also made a report, at a time or times to be determined, to DSS that [Collin] was being abused or neglected, but the defendants essentially ignore d that report a s well. On February 25 , 2000, Co llin was bea ten to death by Fairris or her boyfriend, Fowkes. The autopsy revealed that Collin d ied from m ultiple blunt force injuries, includ ing multip le abrasions and contusions of varying ages, scalp hemorrhage, lacerations of the liver, contusions of the right lung, lacerations of the pancreas, lacerations of the mesent[e]ry and -4- mesenteric lymph nodes [membranes that connect the intestines to the dorsal abdominal wall], hemorrhage within the soft tissues of the anterior mediastinum [the space containing the heart and viscera of the chest, other than the lungs], perirenal adipose, pelvic soft tissues, and within the anterior diaphragm , multiple serosal contusions of the bowel, pulmon ary edema and congestion. The autopsy also revealed numerous and significant wounds on his body that were more than seven days old, includ ing wou nds that w ere circular in appearance; wounds that are consistent with Collin being struck by an adult hand or knuckles and the reports by [Horridge] of physical abuse being inflicted on Collin by [Fairris or Fowk es]. The nine-coun t amende d compla int stated fou r counts of negligence two against the State (DSS) and two against Shirey and Walsh . In Count I, against DSS, the complaint noted the requirements set forth in Maryland Code, §§5-702 through 5-706 of the Family Law Article and in implementing regulations of the Department of Human R esources that require DSS to make a thorough investigation of reports of child abuse an d to render a ppropriate service in the best interest of the child. It alleged that those statutory and regulatory obligations were the basis of a duty that DSS owed to Collin, because as a child in a home where suspected abuse had been reported he was a member of the class specifically protected by law. DSS knew, the complaint said, from the reports by Horridge and the neighbor and from their own observations, that Fairris and Fowkes were harming Collin and that it was reasonab ly foreseeable that the abu se would continue. It breached its duty to Collin by (1) -5- failing to protect him from known abuse, (2) failing to investigate reports of a buse prop erly and in complia nce with s tatutory, administra tive, and pro fessional sta ndards, (3) f ailing to provide services an d follow -up mon itoring after the initial home v isit to minimize the risk of retaliatory abuse, (4 ) failing to pro perly investigate reports of a buse of C ollin made after DSS had closed the case, and (5) failing to competently hire, train, and supervise Walsh and Shir ey. Count II charged DSS with negligence based on a special relationship with Collin. It averred that DSS knew that Collin faced a sp ecial dange r of abuse and it had specifically proclaimed by word and deed its intention to protect him against that danger, that, having undertaken to do so, it ac quired an a ffirmative d uty to do so in a r easonab ly competent fashio n, and, for the reasons noted in Count I, failed to carry out that duty. Counts III and IV charged W alsh and S hirey with gro ss negligen ce with b reaching th eir statutory and common law special relationship duties to Collin willfully, wantonly, and with reckless disregard of Collin s rights. With an extreme paucity of sup porting fac ts, Count V charged DSS with negligence in selecting , reta ining, an d sup ervising Wal sh an d Sh irey. Apart from the allegations already noted, going to their negligence in pursuing the reports of abuse, Count V states only that DSS knew or should have known by the exercise of diligence and reasonable care that Defendant[s] Shirey and Walsh were capable of inflicting harm upon Collin and tha t it failed to use proper care in selecting, supervising or retaining [them]. There are no -6- avermen ts regarding the professional qualifications of Shirey and Walsh, other than that they are licensed so cial worke rs; nor did Horridge allege the nature of any deficient supervision of them o r how the ir selection an d retention a s employees was neg ligent. Counts VI and VII attempted to plead State Constitutional torts a violation of Articles 19 and 24 of the Maryland Declaration of Rights. The theory of those Counts was that Collin had a Constitutionally protected property and liberty interest in the protection afforded him b y the statutory and regulatory requirements previously noted and thus had a legitimate entitlement to receive the protective services mandated by those requirements proper monitoring and supe rvision of h is home, access to the courts for protection, truthful and accurate reporting of abuse to interested persons, and proper investigation of reported child abuse a ll of which were denied him by the defendants, who were State actors. Count VIII charged DSS and the two social workers with intentionally inflicting emotional distress upon Collin by their callous ind ifference in refusing to take appropriate action in light of the repo rts they ha d receiv ed. With respect to these eight counts, Horridge was apparently suing as the personal representative of Collin s estate, to recover for the tortious conduct committed against Collin. In Count IX, Horridge sued on his own behalf for the wrongful death of Collin. He incorporated into that count all of the allegations previously pled. In this app eal, Horridge has abandoned all but Counts I, II, and V the negligence actions against the State (DSS). He urges that DSS did have a duty to protect Collin, once -7- it received a credible report that the child was being abused, tha t the Circuit C ourt erred in deciding proximate cause on a motion to dismiss, and that the allegations of negligent supervision were sufficient to state a cause of action. DISCUSSION Negligent Supervision In Norfolk & Western Railroad Co. v. Hoover, 79 Md. 253, 262, 29 A. 994, 995 (1894), we concluded that a n em ploye r ow es a d uty to its employees to use reasonable care and caution in the selection of competent fellow servants, and in the retention in his service of none but those wh o are, and that, if the em ployer fails in that d uty and an in jury is occasioned by the negligenc e of an inc ompeten t or careless se rvant, the em ployer is liable to the injured employee not for the mere negligent act or omission of the incompetent or careless servant, but for his own negligence in not discha rging his own duty towards the injured servant. In Evans v. M orsell, 284 Md. 160, 166-67, 395 A.2d 480, 483-84 (1978), we extended that duty, and liability, to the public generally not just to co-employees at least with respect to the selection of employees who were expected to have contact with the public. We there quoted with approval the pronouncement from Fleming v. Bronfin, 80 A.2d 915, 917 (D.C .1951): One dealing w ith the public is bound to use reason able care to select employees c ompeten t and fit for the w ork assigne d to them and to refrain from retaining the services of an unfit employee. When a n employer n eglects this duty and as a result -8- injury is occasioned to a third person, the employer may be liable even though the injury was brought about by the willful act of th e emp loyee beyo nd the s cope o f his em ploymen t. Evans, supra, at 166, 395 A.2d at 483. Our own conclusion in Evans was that, [w]here an emplo yee is expected to come into contact with the public . . . it has been held that the employer must make some reasonable inquiry before hiring or retaining the employee to ascertain his fitness, or the employer must otherwise have some basis for believing that he can rely on the employee . . . . The nature and extent of the inquiry that is needed will naturally vary with the circumstances. Id. at 166-67, 395 A.2d at 48 4. There is a rebuttable p resumptio n that an employer has used due care in hiring the em ployee. Id. at 165, 395 A.2d at 483, citing Norfolk & Western Railroad Co., supra, 79 Md. at 263, 29 A. at 99 6. See also Cram er v. Housing O pportunities Com m n, 304 Md. 705, 501 A.2d 35 (1985); Henley v . Prince G eorge s C ounty, 305 Md. 320, 503 A.2d 1333 (1986). We have already recounted the allegation s in the ame nded com plaint in support of the negligent selection, training, and retention count. They are woefully inadequate to state a cause of action. There are no allegations that Shirey and Walsh were professionally or personally unqualifie d for the po sitions they held o r that, if the y were unqualified, DSS was or should have been aware o f that fact. The only avermen t in that regard is that they were licensed social wo rkers wh ich, if anything, su ggests that the y were at least p rofessionally qualified. There are no allegations that they had acted in an incompetent or unprofessional -9- manner prev ious ly or th at, if they had done so, DSS was or should have been awa re of it. There are no allegations, other than bald, conclusory statements, that they were imp roperly trained o r impro perly sup ervised . In Scott v. Jenkins, 345 Md. 21, 28, 690 A.2d 1000, 10 03 (1997 ), we pointe d out that, although we had abandoned the formalities of common law pleading, our Rules do require a pleading to allege facts, if proven true, sufficient to support each and every element of the asserted claim. M aryland Rule 2-303(b) requires a pleading to contain such statements of fact as may be necessary to show the pleader s entitlement to relief or ground of defen se. We confirmed in Scott that, in a neglige nce action, a complain t must alleg e, with certain ty and definiteness, facts and circumstances sufficient to set forth (a) a duty owe d by the defendant to the plaintiff, (b) a breach of that duty a nd (c ) inju ry proxima tely resulting from that breach. Id. at 28, 690 A.2d at 1003, quoting from Read Drug & Chemical Co. v. Colwill Constr. Co., 250 Md. 406, 412, 243 A.2d 54 8, 553 (19 68). Me rely stating that a du ty existed, or that it was breached, or that the breach caused the injury does not suffice, and that is all that appears in the complaint with respect to Count V. That count was properly dismissed. Negligence: D uty As noted, the actions against Shirey and Walsh personally, based on allegations of gross negligence, are not pursued in this appeal. Because the St. Mary s County DSS is a -10- State agency and Shirey and W alsh are State personne l (see Walker v. Human Resources, 379 Md. 407, 842 A.2d 53 (2004)), any action for simple negligence is properly brought against the State under the State Tort Claims Act (Maryland Code, title 12, subtitle 1 of the State Gove rnmen t Article ). The elements of a cause of action in negligence are well-established. To state a claim, the plaintiff must alleg e facts dem onstrating (1 ) that the defe ndant w as under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suff ered actu al inj ury or loss, and (4) th at the loss or injury proximate ly resulted from the defendant s breach of the duty. Remsburg v. Montgom ery, 376 Md. 568, 582, 831 A.2d 18, 26 (2003), quoting from Muthukumarana v. Montgomery Co., supra, 370 Md. at 486, 805 A.2d at 395. As noted in Remsburg, 376 Md. at 582, 831 A.2d at 26, we have adopted Prosser and Keeton s characterization of duty as an obligation, to which the law will give recognition and effect, to conform to a particular stand ard of conduct tow ard another, and, in determining whether a duty exists, have considered such things as, the foreseeab ility 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 defenda nt s condu ct, the policy of preventing future harm, the extent of the burd en to the defendant and consequ ences to the commu nity of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involv ed. Id. at 583, 831 A.2d at 26, quoting from Ashburn v. Anne Arundel Co., 306 Md. 617, 627, -11- 510 A.2d 1078, 1083 (1986), quoting, in turn, from Tarasoff v. Regents of Univ. o f California , 551 P.2d 334, 342 (Cal. 1976). In Jacques v. First Nat l Bank, 307 Md. 527, 534, 515 A.2d 756, 759 (1986), we consolidated some of that into two considerations: the n ature of the harm likely to result from a failure to exercise due care, and the relationsh ip that exists between the parties. See also Bobo v. State, 346 Md. 706, 714-15, 697 A.2d 1371, 1375-76 (1997). As a general proposition, a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a specia l relation ship. Scott v. Watson, 278 M d. 160, 166 , 359 A.2d 548, 552 (1976); Valentine v. On Target, 353 Md. 544, 551-52, 727 A.2d 947, 950 (1999). Horridge has pled both a duty imposed by statute (Co unt I) and a duty imp osed by virtue of a special relationship (Count II), but we need deal only with the statutory context p led in Count I. The relevant statu tes are those c ontained in title 5, subtitle 7 of the F amily Law Article (FL), §§ 5-701 throug h 5-714. In the law itself, the Legislature declared that the purpose of that subtitle, caption ed Child Abuse and Neglect, was to protect children who have been the subject of abuse or neglect by: (1) mandating the reporting of any suspected abuse or neglect; (2) giving immunity to any individual who reports, in good faith, a suspected incident of abuse or neglect; (3) requiring prompt investigation of each reported suspected incident of abuse or neglect; (4) causing immediate, cooperative efforts by the responsible agencies on behalf of children who have been the subject of reports of abuse or neglect; and -12- (5) requiring each local department [of social services] to give the appropriate service in the best interest of the abuse d or negle cted child. (Em phasis a dded). F L §5-7 02. To achieve that purpose, FL §§5-704 and 5-705 req uire anyone w ho has rea son to believe that a child has been subjected to abuse or neglect to notify either DSS or the appropriate law enforcement agency. The report may be oral or in writing and, insofar as reasonab ly possible, it must include the name, age, and home address of the child, the name and home address of the child s parent or other person responsible for the child, the whereabouts of the child , the nature an d extent of the abuse o r neglect, and any other information that would help determine the cause of the abuse or neglect and the identity of the person respon sible fo r it. See FL §§5-704(c) and 5-705(d). The report, in other words, must be specific, so that the recipient can identify and locate the child and have some ba sis for launching an investigation. To encourage persons to make these reports, §5-708 provides immunity from both civil liability and criminal penalty for any person who makes or participates in m aking suc h a report. As noted, §5-706 requires DSS to respond to a report of abuse. Section 5-706(a) provides, in releva nt pa rt, tha t [p ]rom ptly after receiving a report of suspected abuse or neglect . . . the loca l departm ent or th e appro priate law enforc emen t agenc y, or both, if jointly agreed on, shall make a thorough investigation of a report o f suspecte d abuse to -13- protect the health, safety, and welfare of the child or children. 1 (Empha sis added). Section 5-706(b) requires DSS, [w]ithin 24 hours after receiving a report of suspected physical or sexual abuse, to (1) see the child; (2) attempt to have an o n-site interview with the child s caretaker; (3) decide on the safety of the child, wherever the child is, and of other children in the household; and (4) decide on the safety of other children in the care or custody of the alleged abuser. The investigation must include a determination of the nature, extent, and cause of the a buse a nd, if ab use is ve rified, a determina tion of the identity of the persons responsible for it, a determination of the name, age, and condition of any other child in the househo ld, an evalua tion of the p arents and th e home e nvironm ent, and a determination of any other pertinent facts and any need ed services. FL §5-7 06(c). To the extent possible, the investigation must be completed within ten days after receipt of the first notice of the suspected abuse. Within that 10-day period, DSS must make a preliminary report of its findings to the local State s Attorney, and, within five business days after com pletion of th e investigation, it must ma ke a com plete written r eport of its findings to the S tate s A ttorney. See FL §5-706(g), (h), and (i). Based on its findings and any treatment plan, DS S is required to render the a ppropriate s ervices in the best interests of the child, including, when indicated, pe titioning the juv enile court on behalf of the child 1 In this case, that duty would fall on DSS, as it was the recipient of the reports. As noted below, upon receipt of a report of suspected child abuse, DSS is required by regulation of the Department of Human Resources to notify the local law enforcement agency immediately, at which point the two agencies can agree on their respective roles in the investigation. -14- for appropriate relief, including the added protection to the child that either commitment or custody would provide. (Emphasis added). FL §5-710. These statutory requirements are supplemented by regulations a dopted by the Departm ent of Human Resources. COMAR 07.02.07.05 requires DSS to establish a process for ensuring that a report of suspected child abuse from any source is immed iately directed to its child protective service unit. It requires DSS to have staff on call 24 hours a day, seven da ys a week, to receive an d take app ropriate action on reports of suspected child abuse and to ensure that the public has a means of access to staff who are on-call after normal office hours. Upon receipt of a report of suspected child abuse, DSS must [i]mmediately notify the loca l law en forcem ent age ncy. Only if the reported incident does not meet the definition of child abuse or neglect defined in Regulation .02B of this chapter may DSS decline to initiate an investigation. COMAR 07.02.07.05E.2 As noted, the statute requires a report to contain c ertain specific information, and that is provided for as well in the regulations (COMAR 07.02.07.04D). If the report is deficient in that regard, C OMA R 07.02.0 7.06 require s DSS to attempt to ob tain the missing information from the re porting sou rce. Thus, to the extent tha t any of the eigh t reports of abuse made by Horridge failed to contain relevant information, DSS was obliged to make 2 There is no question in this case that Horridge s complaint alleges reports of conduct that would qualify as child abuse under COMAR 07.02.07.02B(7), which defines the term to include [p]hysical injury, not necessarily visible . . . under circumstances that indicate that the child s health or welfare is harmed or at substantial risk of being harme d. -15- inquiry of him to obtain that information. The regulations concerning the investigation and any ensuing action are quite detailed and need n ot all be r epeate d. At least two more are p articularly relevan t, however. COMAR 07.02.07.07A requires DSS, during an investigation, to gather ap propriate inf ormation to assess immediate safety and risk of maltreatment of children in the household, determine whether child abuse is indicated, unsubstantiated, or ruled out, determine whether maltreatm ent, other than that initially reported, is indica ted, uns ubstan tiated, or ruled o ut, determine what services, if any, are ap propriate, an d determin e if DSS should initiate shelter care or file a Child in Need of Assistance petition. CO MAR 07.02.07.0 8, in conformance with FL §5-706(b), requires DSS (or, by joint agreement between DSS and a law enforcement agency, a law enforcement officer) to initiate an on-site investigation, see the alleged victim and determine if the health, safety, and well-being of the allege d victim require that the child be removed, and take certain other designated action. The defense th at is usually raised b y social service a gencies in cases such as this, and the defense raised by DSS in this case, is w hat has bec ome kno wn as the public du ty doctrin e, i.e., when a statute or common law imposes upon a public entity a duty to the public at large, and not a duty to a particular class of individuals, the duty is not one enforcea ble in tort. Muthukumarana v. Montgomery County, supra, 370 Md. at 486, 805 A.2d at 395, quoting from D AN B. D OBBS, T HE L AW OF T ORTS §271 (2000). See also Williams v. Baltimore, 359 Md. 101, 753 A.2d 41 (2000). Relying on Muthukumarana, -16- Willow Tree v. Prin ce Geor ge s Cou nty, 85 Md. App. 508, 584 A.2d 157 (1991), and Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985), DSS urges that, [a]bsent an express intent by the Legislature to create such a duty, there was no duty owed to Collin individually. Any contrary ruling, it fears, would make DSS a guarantor of a particular child s safety. As have other courts around the country, we reject that argument. The cases cited are not o n point; the Legislature, in our view, has created a d uty flowing to children sp ecifically identified to DSS as being the subject of suspected abuse, and recognition of that duty wou ld not make D SS a guarantor of the safety of those children or any other. We recognized in Muthukumarana that the pu blic duty doctrine has no application when th e court con cludes that a statute or court order has created a sp ecial duty or spe cific obligation to a particular class of persons rather than to the public at large. 370 Md. at 487, 805 A.2d at 396, quoting from DAN D. D OBBS, supra, §271. That case dealt with whether 911 operators a nd superv isors were lia ble in tort for neglig ence in failin g to respon d properly to emerg ency calls . We concluded that their duty was to the public at large, not to anyone in particular, and that, unless it could be shown that the 911 employee affirmatively acted to protect or assist the specific individual, or a specific group of individuals like the individual in need of assistance, thereby inducing a spec ific reliance, no tort duty existed. Id. at 496, 805 A.2d at 401. In large part, that conclusion was based on the often imprecise or unclear information given to the 911 operators, upon which th ey mu st act instanta neously. Id. at 491, 805 A.2d at 398. That is less of a problem with respect to reports of child abuse. -17- For one thing, if the report is unclear or incomplete, as it often may be, DSS has a regulatory duty to clarify the informatio n. More important, it is us ually dealing w ith reports of abuse that have alrea dy occurred, a nd it has 24 hours to de al with the re port; the report of an ongoing incident of abuse, that needs a more immediate response, is more likely to go to 911 or a p olice agen cy. Willow Tree v. Prince George s County, supra, 85 Md. App. 508, 584 A.2d 157, dealt with whether a coun ty that had established general safety regulations fo r day care centers could be held liable to the parents of a child who was killed while using playground equipment that was allegedly unsafe and in violation of the safety regulations. The Court of Special Appeals concluded that there was no special duty on the part of the State to the child, merely from the adoption of safety regulations. That is a far cry from what we have here, which is true as well with Lamb v. Hopkins, supra, 303 Md. 236, 492 A.2d 1297. The question there was whether probation officers who failed to seek the revocation of probation of an individual though aware that the individual had committed a number of drunk driving offenses during the p robationary pe riod, was liab le in tort to the pa rents of a ch ild severely injured by the probatio ner while driving intoxicated. The theory of asserted liability was that the defendants, having taken charge of the probationer, had a special duty under the principles enunciated in §§ 314-319 of the Restatem ent (Second ) or Torts (1965) to prevent that person from harming others and that it had a statutory duty to report violations to the -18- court. The statutory duty, we held, was to the court, not to anyone else.3 3 DSS also seeks support from three out-of-State cases Marshall v. Montgomery County Children s Servs. Bd., 750 N .E.2d 5 49 (O hio 200 1), Beebe v. Franktman, 921 P.2d 216 (Kan. App. 1996), and Nelson v. Freeman, 537 F.Supp. 602 (W.D.Mo .1982), aff d, 706 F.2d 276 (8 th Cir.1983) which are either inapposite or simply not persuasive. In Marsh all, the county and its DSS equivalent were sued by the paternal aunt of a child, Davon, who was beaten to death by his mother. DSS was aware that the mother was a substance abuser and had abused other children, whom they had removed from her care prior to D avon s birth . After Da von wa s born, DS S received no report o f abuse as to him. The only call was from Davon s father, who asked that DSS check on the child due to the mother s substance abuse. In response, a social worker went to the home on four occasions but foun d no one present. O n a fifth oc casion, the so cial worke r made co ntact, went to the home, found the home clean and no indication of abuse, and therefore closed the case. DSS received no further report until the day that Davon was killed. That, of course, is a far different situation from the one now before us. Apart from that factual distinction, the c ourt, in holdin g that there w as no liability, relied on an Ohio statute stating that a p olitical subdiv ision is liable fo r injury or death o nly when liab ility is expressly imposed upon the political subdivision by a section of the Revised Code and that liability shall not b e construed to exist . . . merely bec ause a resp onsibility is imposed upon a political subdivision. Marsh all, 537 N.E.2d at 553. Maryland has no such sta tute. The Kansas court in Beebe found no special duty by merely taking a report of possible child abuse and promising to follow up on that report. The Kansas statute was nothing clo se to FL § 5-706, ho wever. It pro vided that, up on receipt o f informa tion that a child appe ared to be in need of c are, the agen cy shall mak e a prelimina ry inquiry to determine whether the interests of the child req uire further a ction be tak en and, if reasonab le ground s were fo und to belie ve that abu se or neglec t existed, the ag ency was to take imm ediate steps to protect the ch ild. The age ncy received two repo rts of possib le abuse, made a preliminary inquiry after each report, and determined that no further action was necessary. The court regarded any further investigation as a discretionary call and not subject of hindsight scrutiny. Beebe, 921 P.2d at 218. Nelson v. Freeman was a diversity case in which one Federal District Court judge postulated what the law of Missouri might be in the absence of any clear precedent. The case is not persuasive. Indeed, in Turne r v. Distr ict of Co lumbia , infra, 532 A.2d 662, (contin ued...) -19- The duties imposed on DSS by FL §5-706 and the implementing regulations of the Department of Human Resources are far more specific and focused. They require a prompt investigation of each reported inc ident of ch ild abuse. Th e duty to act is mandatory; the steps to be taken a re clearly delinea ted; and, mo st important, th e statute makes clear in several places that the sole and specific objective of the requirem ent is the prote ction of a sp ecific class of children those identified in or identifiable from specific reports made to DSS and those also found in the home or in the care or custody of the alleged a buser. This is not an obligation that runs to ev eryone in general and no one in particular. It runs to an identified or identifiable child or discrete group of children. Most every other co urt that has co nsidered th is issue in the c ontext of sim ilarly worded statutes or regulations has arrived at that conclusion. In Brodie v. Summit Cty. Children Servs. Bd., 554 N.E.2d 1301 (Ohio 1990), the Ohio equivalent of DSS, sued for failure to investigate reports of child abuse inflicted on an identified victim, raised the defense that the statutory obligation, similar to that embodied in FL §5-706, ran to the public generally and did no t create any duty to p rotect the specific child. The court rejected that defense: We conclude that in view of the General Assembly s express 3 (...continued) 671 (D.C.1987), the District of Columbia court expressly declined to follow Nelson, both because it found the case distinguishable and because [w]e are also influenced by the rather narrow holding of the Eighth Circuit and by its less than ardent endorsement of the trial cou rt s interp retation of state law. -20- intent that children services agencies take responsibility for investigating and proc eeding w ith appropr iate action to prevent further child abuse or neglect in specific, individual cases, the public duty doctrine does not apply as a defense against an allegation that a particular child did not receive the benefit of their action as a re sult of the agency s negligence. We hold that a children services board and its agents hav e a duty to investigate and repo rt their finding s as required by [the Ohio equivalent to FL §5-706] when a specific child is identified as abused or ne glec ted, a nd th e public d uty do ctrin e ma y not be raised as a d efen se fo r age ncy fa ilure to co mply with such statutory re quirem ents. Id. at 1308. The District of Columbia Court of Appeals reached the same result, for the same reason, in Turner v. District of Columbia, supra, 532 A.2d 662 (D.C.1987). As in this case, the DSS equiv alent was sued fo r failure to respond to a repo rt of child abuse. Rejecting the public duty defense, the court observed: The Child Abuse Prevention Act imposes upon certain pub lic officials specific duties and responsibilities which are intended to protect a narrowly defined and otherwise helpless class of persons: abused and neglected children. When CPS [DSS] employees are negligent in carrying out these responsibilities, that statutorily protected class suffers in a way uniq uely differe nt from the pub lic at large . Id. at 668. Noting that the que stion was w hether, in that circums tance, a spec ial relationship or special duty was created, the court relied on Mammo v. State, 675 P.2d 1347 (Ariz. App.1983) and Florida First N ational Ba nk v. City of J acksonv ille, 310 So.2d 19 (Fla. App.1975) as consistent with others througho ut the coun try, holding that if a state agency -21- is required by statute or regulation to take a particular action for the benefit of a particular class and fails to do so, or negligently does so, and the plaintiffs justifiably rely to their detriment on the agency s duty to act, a cause of action in negligence will lie agains t the state or its agency. Turner, 532 A.2d at 672. In Jensen v. Anderson County DSS, 403 S.E.2d 615 (S.C. 1991 ), the court concluded that the Sou th Carolina equivalen t of FL §5 -706 imp oses a spec ial duty on the loc al child protection agency and its social workers to investigate and interven e in cases w here child abuse has been reported. Id. at 619. In reaching that con clusion, the court applied a six-part test to determine when a statutory special relationship exists: (1) an essential purpose of the statute is to protect aga inst a particula r kind of harm ; (2) the statute , dire ctly or indirectl y, imposes o n a specific public official a duty to guard against or not cause that harm; (3) the class of person s the statute inten ds to protec t is identifiable before the fact; (4) the plaintiff is a person within the protected class; (5) the p ublic officer knows or has reason to know the likelihood of harm to membe rs of the cla ss if he/she fails to do his/her duty; and (6) the officer is given sufficient authority to act in the circumstances or undertakes to act in the exercise of his/her office. See also Coleman v. Cooper, 366 S.E.2d 2, 8 (N.C. A pp. 1988 ); Tyner v. DSHS , Child Protective Servs., 1 P.3d 114 8 (Wash .2000); M.W. v. DSHS, 70 P.3d 954, 957 (Wash.2003); Owens v. Garfield , 784 P.2d 1187, 11 92 (Utah 1989); Dept. of H ealth & Rehab. Servs. v. Yamuni, 529 So.2 d 258, 26 1-62 (Fla.1 988); Alejo v. City of Alhambra, 75 Cal. App.4th 1180 -22- (2000); Susan Lynn A bbott, Liability of the State and Its Employees for the Negligent Investigation of Child A buse Rep orts, 10 Alaska L.R ev. 401, 405 (1993 ). It is not necessary to adopt precisely the six-part test enunciated by the South Carolina court in Jensen, although the elements of that test are analytically relevant and consistent with the considerations we noted in Ashburn v. Anne Arundel County, supra, 306 Md. 617, 627, 510 A.2d 1078, 1083, and Remsburg v. Montgomery, supra, 376 Md. 568, 583, 831 A.2d 18, 26. Clearly, the essential purpose of the statutory duties created by FL §5-706 and the implementing regulations of the Department of Human Reso urces was to protect a specific class of children, identified or identifiable befo re the fact from statutorily mandated reports, from a specific kind of harm likely to occur if the statutory duty is ignor ed. DSS is given not just a specific duty to act in response to such a report but ample and detailed author ity to do so . In a Remsburg analysis, the foreseeability of harm arising from a failure to co mply with the statutory and regulatory requirements is clear. The Department of Human Resources own statistics show that, in FY 2003, there were nearly 7,300 cases in Maryland in which there was an indicated finding of physical, mental, or sexual abuse or neglect of a child. Even more a larming, and relevant, is the mo st current report of the National Clearinghouse on Child Abuse and Neglect Information, a unit of the U.S . Department of Health an d Hum an Service s, which sh ows that, in CY 2002, approximately 1,400 children in the United States died of abuse or neglect, and that 76% of those fatalities involved -23- children younge r than fo ur years o f age. (See statistical inform ation on the National Clearinghouse on C hild A b use a nd Ne gle c t I nf or ma tion we bsite at www.nccanch.acf.hhs.gov ). The foreseeability of harm from agency inaction, once a facially reliable report of abuse is made, may serve to establish as well the close connection between the negligent conduct and the injury ultimately suffered. The legislative policy of preventing future harm to children already reported to have been abused is so abundan tly clear as to be be yond cavil, and , given the sta tutory manda te to act and the general waiver of tort immunity when State employees fail to act in a reasonab le way and harm ensues, we can see no great burden or consequence to regarding this existing statuto ry duty as a civil one from w hich tort liability may arise. We cannot conceive that the Legislature intended, w hen a child is killed or injured, at least in part because DSS fails to perform the duties clearly cast upon it to make a site visit within 24 hours and a thorough investigation, for the only sanction to be the placement of a reprimand in some social worker s personnel file. The Legislature meant for DSS and its soc ial workers to act immed iately and aggre ssively when specific reports of abuse or neglect are made, and the best way to ass ure that is done is to find that t hey do have a sp ecial relationship with specific children identified in or, upon reasonab le effort, iden tifiable from, fac ially reliable reports of abuse or neglect and, subject to the State Tort Claims A ct, to make th em liable if harm occurs be cause they fa il in their mandated duty. The Circuit Court erred in finding, on the allegations of the amended complaint, that no duty, cognizable under Maryland tort law, -24- existed. Proximate Cause As an alternative ground for dismissing the amended complaint, the Circuit Court concluded that, as any negligence on D SS s part was passive in nature and that the moving and effective c ause of C ollin s death was the active negligence [of his mother or her boyfriend] in beating Collin to death, the DSS negligence was not the proximate cause of the injury. In so holding, the court misconstrued the nature of proximate cause in a case such as this one. Where the actionable duty is to protect another from harm, proximate cause must be judg ed in term s of the forese eability of such h arm be ing infli cted. The Restatement (Second) of Torts addresses this issue in several sections. Section 442A makes clear that, [w]here the negligent conduct of the actor creates or increases the foreseeab le risk of harm through the interven tion of ano ther force, an d is a substantial factor in causing the harm, such intervention is not a superseding cause. Comment b. to that section notes: Where the negligence of the a ctor has created the risk of ha rm to another because of the likelihood of such intervention, the actor is not relieved of responsibility merely because the risk which he has created has in fact been fulfilled. The same is true where there is already some existing risk or possibility of the intervention, but the negligence of the actor has increased the risk of s uch inte rventio n, or of harm if it occurs . Section 447, dealing with the negligence of intervening a cts, provides , in relevant pa rt, -25- that the fact that an intervening act of a third person is negligent do es not mak e it a superseding cause of harm to a nother which the actor s negligent conduct is a substantial factor in bringing about, if . . . the actor at the time of his negligent conduct should have realized that a third per son migh t so act . . . . Finally, and most directly to the point, § 449 states: If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act w hether innocent, negligen t, intentionally tortious, or criminal does not prevent the actor from b eing liab le for ha rm cau sed the reby. Comment b. to that section explains: The happening of the very event the likelihood of which makes the actor s conduct n egligent an d so subjec ts the actor to liab ility cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To d eny recovery because the other s exposure to the very risk from which it was the purpose of the duty to protect h im resulted in harm to him, wou ld be to deprive the other of all pro tection and to mak e the duty a nullity. In Scott v. Watson, supra, 278 Md. 160, 359 A.2d 548, we adopted that approach in a generally analogous setting. Resp onding to certified questions from the U.S. District Cou rt, we conclude d that, although a landlord of an urban apartment complex had no common law special duty to its tenants to protect them from the criminal acts of third parties committed in the common areas within the landlord s control, if the landlord knew or should have known of crimina l activity against pe rsons or pro perty in the com mon area s, it had a duty to -26- take reasonable measures, in view of the circumstances, to eliminate the conditions contributing to the criminal activity. We observed that a breach of that duty, alone, was not conclusive of actionable negligence, however that proximate causation was also an element. In that regard, we noted a split of authority as to whether, when such a duty was found, the landlord s negligence constituted a proximate cause of a tenant s injury at the hands of a third person s criminal conduct. We decided to follow the approach of § 448 of the Restatem ent (Secon d) of Tor ts and concluded that [a] breach of duty by the defendant would result in his liability in the third party criminal activity context only if the breach enhanced the likelihood of the particular criminal activity which occurred. Id. at 173, 359 A.2d at 556. This enhanced risk theory, which underlies §§ 442A, 447, and 449 of the Restatement as well, we held to be a fair solu tion of th e causa tion pro blem in this con text. Id. We confirm that view. The amended complaint sufficed to allege that the negligence of DSS and its social w orkers w as a proxim ate cause o f the injury ultima tely inflicted on C ollin by Fairris or Fowkes. Caveat In holding that the Circuit Court erred in dismissing the complaint on the ground that no actio nable du ty existed on the part of D SS or that a ny negligenc e on its part w as not a proximate cause of Collin s injury and death, we do not suggest tha t DSS is, in fact, liable -27- in this case. Mr. Horridge will have to produce sufficient evidence to show that DSS negligently failed to com ply with the applicable statutory and regulatory requirements. As part of that burd en, he will have to establish that the investigation conducted was, indeed, negligently deficient or th at, given the f acts that a pro per investiga tion revealed or would have revealed, DSS negligently failed to take action demanded by the circum stances. H e will have to show , as well , that the injury suffered by Collin was a foreseeable consequence of the failure by DSS to perform its statutory obligations. The fact that a dreadful result ensued does n ot, of itse lf, mean that DS S failed in its duty. JUDGMENT OF CIRCUIT COURT REVER SED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS ON COUNT I OF THE AMENDED COMPLAINT; COSTS TO BE PAID BY APPELLEE, ST. MAR Y S COUNTY DEPARTMENT OF SOCIAL SERVICES. -28- Circuit Co urt for Anne A rundel Co unty Case # C-2002-80741 IN THE COURT OF APPEALS OF MARYLAND No. 80 September Term, 2003 Eric Hor ridge et al. v. St. Mary s C ounty Departm ent of So cial Services et al. Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting opinion by Cathell, J. which Battaglia, J., joins Filed: July 28, 2004 -29- I dissent. This is a tragic case. And it is not an isolated case. With the numbers of interactions between the Departments of Social Serv ices and children these types of v ery tragic cases are repeated more often then any of us believe is acceptable. One is too man y. We all know, however, that there will be more than one. But the actions o f the Dep artments of Social S ervices are not th e cause of thes e traged ies. The cause goes much deeper than the admin istrative o versigh t over th ese cas es. The Department doe s not mak e parents kill th eir children. I d o not kno w wha t in society is creating the conditions that seem to be causing the increasing levels of infanticide, but I have no hesitation in saying that the Department of Social Services is not the causative factor. Thus, in my view, the a ction taken by the majority in this case, in addition to being legally wrong, will have little, if any, effect in reducing the instances of infanticide or even the killing o f older c hildren . Its main direct effect will be to create a bonanza for trial attorneys, while its collateral effect will be to create high levels of confusion among the ranks of personnel in the numerous administrative agencies in M aryland with respect to the use of the d iscretion they are ch arged w ith exerc ising. With that said, this case, in addition to being tragic, is, in a legal sense, also a hard case. And there is an old saying that hard cases it is said make hard law. The majority creates today the template for tens of thousands of lawsuits that heretofore did not exist. For the first time in the history of this State, an employee of the State who does not commit an affirmative act placing a victim in da nger and who inv estigates the m atter prior to the inju ry to the victim -30- and makes a discretionary determination that no furth er action is ne eded, but is mistaken and the subject of the investiga tion is later injured, now creates liability for himself or herself and for the S tate. The majority s holding cann ot be logica lly limited to the fac tual param eters of this case - the death of a child. The majority s reasoning does not, and cannot, logically limit the applications it now creates, by the result of the mistake in the exercise of the social w orker s discretion, i.e., that it will only app ly if the injury to the child excee ds a cer tain leve l. Duty, if it exists, is not dete rmined by the degree of injury. Once th e duty is created, as the majo rity today creates it, a breac h of tha t duty will b e action able if a ny injury oc curs. The cause of action the majority creates today will apply equally to an estranged spouse alleging to the Department that the custodial sp ouse is spa nking the child too hard, and therefore abusing the child. The D epartmen t, in order to pro tect itself from litigation, will hav e to remove the child if bruising appears because of the fear that some fact-finder, a judge or a jury, (some of which m ay sha re a c omp letely diff eren t parentin g philoso phy) will consider the bruising to be abuse. And, even if it initially determines that it does not constitute abuse, when the estranged parent calls again and reports that spanking is continuing and it is now too severe, the Department will have to initiate a new inspection - every time there is another allegation. Moreover, with the majority s decision, virtually every discretionary action of every employee of an y adm inistrativ e age ncy, whose employees by statute are required to perfo rm -2- discretionary functions, will now subject the State to civil suits where none existed before. Factuall y, this is not a case where the respective employee failed to investigate (although they did not do so promp tly). Prior to the injuries comp lained of here, the employees investigated and made a discretionary decision. It turned out to be wrong tragically w rong. It is accurate to note, as the majority does, that the estranged father continued to make allegations of abuse. But, any trial judge, or for that matter, any person familiar with what happens in divorce and dom estic situations where parents are fighting over children, knows that it is not at all unusual for one parent to continue to accuse the other of abuse or improper actions toward the children. With the majority s decision today, in such cases where one parent is continually complaining about the other parent s treatment of children (and such complain ts are not at all unusual in the real world where people live), the Department will virtually have to assign an investigator to maintain a perpetual investigation as to every such situation. Or the Department may choose an easier course to protect itself by taking the child away from the custodial parent upon the first report of suspected abuse and thereby protecting the State, and its employees, from lawsuits of the nature the majority authorizes today. This Court has never before authorized this type of suit against the State, based upon a special relationship arising from a statute of this type. And the majority does not argue to the contrary. The majo rity m entions several cases in its discussion of the special -3- relationship/negligence issue. The first case is Remsburg v. Montgom ery, 376 Md. 568, 831 A.2d 18 (2003). The majority uses Remsburg for its statement in respect to duty, that Remsburg in turn quoted from Muthukumarana v. Montgomery, 370 Md. 447, 805 A.2d 372 (2002), and goes on to use the language of those two cases to state the general Maryland standard for the creation of duties out of which negligence cases can arise. Then the majority does not follow that standard. Remsburg was a case where it was alleged that the leader of a hunting p arty had, in part because of the existence of statutes regulating hunting, a duty to protect a person accidentally shot by his son. Admittedly, none of the statutes mentioned w ere as specific as the statute in the case at bar. Nonetheless, this Court found no duty arising out of those statutes that would support an action in negligence against the father for the actions of the son. Muthukumarana was actually two cases involving allegations that 911 operators had duties arising out of statutes that created actionable negligence causes of action if the operators made errors resulting in injury to others. This Court found n o actionab le negligence against the o perators who had, in one instance, made mistakes in furnishing information to responding officers, the result of w hich was a death. W e have rec ently described our holding in Muthukumarana (and Fried v. Archer, its companion case) in the case of Patton v. USA Rugby, ___ Md. ___, ___ A .2d ___, 2004 WL 1276725 (June 10, 2004) . -4- The position the majority takes today, is, in m y view, in direc t conflict w ith this Court s decision in Muth ukum arana , where we spec ifically held, as w e just describe d it in Patton , that System 91 1 operators , in spite of their specific functions to provide protective assistance to emergency callers, had to have acted affirmatively to protect, in order for a duty to exist out of which an action in negligence could arise. I see little difference, if any difference, in the 911 operators cases and the present case and I do not believe that the present cas e can be lo gically reconciled . The que stion will now arise: Are this Court s cases, previously mentioned and the earlier cases I shall mention later, now overruled ? If so, does the majority really understand that they are overruling the prior cases? If they are not overruling the prior cases, what will happen when a lawyer for a client is advisin g the client on what the la w is in respect to special relationships? Does he or she follow the prior line of cases because they have not been specifically overruled, or the latest - the present case? Or, does he or she flip a coin? I simply do not believe that the present case, and th e 911 op erators case s, and som e of the prio r cases I hav e and w ill mentio n, can c ompa tibly coex ist as the la w of M aryland. In Ashbu rn v. An ne Aru ndel C ounty, 306 Md. 617, 510 A.2d 1078 (1986), this Court found no negligence where a police officer told an intoxicated person to discontinue driving and that person, after the officer had left, began to drive again and hit and injured a pedestrian, basing the decision in part on the fact that the police officer there involved had not taken any affirmative action in directing the driver to do what later resulted in serious -5- injuries or death to another. In the present case, the agency employees acted, exercised discretion, albeit poorly, and then failed to take other affirmative action - they failed to act further. They did not direct anyone to do anything that resulted in injury and death to the child. As in Ashburn, no act of commission occurred in the case sub jud ice, yet the majority departs from the holding of Ashburn to create a new cause o f action . Jacques v. First N ationa l Bank , 307 Md. 527, 515 A.2d 756 (1986), did not involve a governmental defendant. It was a private action for negligence against a priv ate defend ant. In Bobo v. State, 346 M d. 706, 6 97 A.2 d 1371 (1997 ), another case cited by the majority, this Court found no duty on the part of the Clerk of the District Court to issue a recall of a w arrant. One of the ave rments in tha t suit was tha t the clerk b reached h is duty as Court Clerk to pe rform the ta sks set forth b y the State as the c orrect proce dure to be followed in the performance of tasks of Court Clerks. . . . Id. at 710, 697 A.2d at 1373. Valentine v. On Ta rget, 353 Md. 544, 727 A.2d 947 (1999) w as an action against a priv ate party in which, f or several rea sons, no ne gligence w as found (there was no statute involved in the case). The majority next cite s to Williams v. Baltimore, 359 Md. 101 , 753 A.2d 41 (2 000). Amongst other claims , the plaintiffs in Williams argued tha t two different statutory provisions created duties out of w hich special relationships arose. Th e statute there involved, stated, in relevant part, [a] local law enforcement officer responding to the request for assistance shall: (1) Protect the complainant from harm when respon ding to the requ est . . . -6- . Id. at 124, 753 A .2d at 53 . It contained several othe r provisions requiring o fficers to aid complain ants in retrieving their belongings. We did a lengthy review of the legislative history of that statute b efore limiting its scope to imposing very specific and limited obligations upon the responding police officers. However, in its language that statute was every bit as specific, if not more so, than the statute the majority today holds creates an unlimited (the social services workers had made an investigation and exercised discretion) duty upon social services w orke rs to r einv estig ate, s eem ingly ad infinitum, whenever a parent is dissatisfied with the prior investigation. More important, the majority in this case holds that, even in the absence of an affirmative act, such a statute generates a duty out of which actionable negligence actions can arise when criminal acts are subsequently committed by others. This is EXACTLY what the Court said in Williams could N OT crea te actionable negligence. In Williams, we specif ically declined to impose su ch a duty base d upon a statute no less prote ctive than the one in the c ase at bar. W e stated in that c ontext: As we have said, it is clear that the intent of the Legislature in enacting section 798 clearly was not to create a duty to protect the victim for an indefinite amount of time: it was only to provide protection while responding to the request. . . . It is clear from the statute that it is limited to an officer who is responding to a complaint of domestic violence where the violence continues in the officer s presence, and an officer who is accompanying a person to recov er perso nal eff ects. -7- Id. at 128-29, 753 A.2d at 55. We also discussed the General Order that was alleged to have created a special relationship arising out of a statute. The G eneral Order, in relevant part, provide d that its purpose was to [ p]rotect the v ictim of a do mestic incident from physical harm. Id. at 130, 753 A.2d at 56. That statement is at least as specific as the statute the majority relies on in the case at b ar. In addres sing the G eneral Ord er, we stated , in the most relevant part, [t]o require a law enforcement officer to protect a victim of domestic abuse from all potential future possibilities of domestic assault would be absurd. That could not have been the intention of the police department in drafting this order, and we are not prepared to create such a duty. Id. at 130, 753 A.2d at 5 7. With the case sub judice, the Court is now prepared, and is, creatin g suc h a duty in the absence of any affirmative action on the part of the em ployees o f the D epartm ent. Ultimate ly, the Williams case was remanded because o f the police o fficer s spe cific affirmative act of commanding the victims to remain in th e house b ecause he would be right outside - and then he left, after which they were attacked. We noted in Williams that there had been an actual affirmative act, such as we later found lacking in the 911 operators cases and which is specifically lacking in this case, upon which a special relationship might have been created out of which a duty mig ht have arisen. A nd it wa s for tha t reason , and no other, that Williams was remand ed for the consideration b y a fact-finder as to whether that -8- affirmative act created a special relationship out of which a duty to protect was created, giving rise to ac tionable neglige nce. The majority summarily dismisses this Court s holding in the case of Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985) (as well it must in order to reach the result it wants to reach). In Lamb, a third party argued that because a probation o fficer had a duty to initiate action to revoke an individual s probation, but took no action, an d the individ ual, while driving drunk, seriously injured a child, the off icer s duty create d a special re lationship out of which a negligen ce action co uld arise. W e disagreed , primarily on the b asis that the duty to initia te revoc ation w as to the court. In similar fashion, the majority now disposes of the Court of Special Appeals case of Willow T ree Learn ing Cente r, Inc. v. Prince George s County , 85 Md. App. 508, 584 A.2d 157 (199 1), saying simp ly that it dealt with whether a county that had established general safety regulations for day care centers could be held liable to the parents of a child who was killed while using playground equipment that was alle gedly unsafe and in viola tion of safe ty regulations. The Court of Special Appeals concluded that there was no special duty on the part of the State to the child, merely from the adoption of safety regulations. That, too, is a far cry from what we have here . . . . The majority opinion s characterization of Willow Tree, as a far cry from what we have here, is completely wrong, because the majority s opinion in this case omits from its discussion the very issue in Willow Tree that makes it very relevant to the instant case. In Willow Tree, that court, very early in the opinion, discussed -9- one of the main arguments of the plaintiffs: The Sande rs argue that the frayed rope was a violation of applica ble safety regulations, and that under Md. Regs. Code title 10, § .05.01.16 ( COM AR ) and the Prince George s County Code, a duty was created on the part of the appellees [Princ e Geo rge s C ounty] to d iscove r and re port it. Id. at 513-14, 584 A.2d at 160 (alteratio n adde d) (foo tnote om itted). That court then discussed the statute applicable there, which was similar, in fact, to the one at issue here. It stated: The pu blic genera l statute . . . provide d that: ... (b). . . These r ules and reg ulations sha ll: (1) Ensure safe and sanitary conditions in group day care centers. (2) Ensure proper care, protection, and supervision of children . . . . Id. at 514, 584 A.2d at 160. As can easily be seen, the statute in Willow Tree had spec ific references to the protection of children - such as the statute in the instant case . That court then stated: Subsection (2) focuses on children, and reiterates the goal of safety. . . . The position of the appellants, were we to adopt it, would result in the creation of a duty to inspect f or all possible risks, and w ould effe ctively make th e Coun ty and its in specto rs liability ins urers of day care c enters . . . . Id. at 514, 584 A.2d at 160. W hile I agree th at Willow Tree does not support the position the majority now w ants to take, it is simply wrong to characterize it as a far cry from what we have h ere. In m y view, th ey canno t both sim ultaneo usly exist a s the law of M aryland. The majority reads some of the out-of-state cases differently than do I. It is one thing -10- to say that they are not persuasive - it is obvious in any event that they have not persuaded the majority. But you s imply cannot make something a far different situation from the one now before us merely by saying so. In my view, any objective reader of Marshall v. Montgomery County Children s Servs. Bd., 750 N.E.2d 549 (Ohio 2001) and Beebe v. Fraktman, 921 P.2d 216 (Ka n. App. 19 96), wou ld have to say that those two case s are very similar to the case at bar. In Marsh all, the social services workers were already aware that the mother was an abuser as to other children. After the child at issue was born, the agency received a call from the child s father (just as in the present case) who, while not reporting actual abuse, asked the agency to investigate the situation. Eventually, the social worker was, after four tries, able to enter the home to investigate and made a finding of no abuse - just as did the social service workers in the present case. They then c losed the ca se, just as did the workers in this case. T he child w as later killed. T he only real difference in Marsh all is that they received no follow -up calls from the father an d the calls received h ad not bee n specific (although they had to have been expressions of concern for the well-being of the child and the workers were already aware of the pare nt s inclination tow ard comm itting violent ac ts against her children). Factually, then, I suggest that there were man y similarities. However, as the majority states, there was a statute that contained express language limiting the ability of subdivisions to be sued based upon other statutes that imposed responsibilities upon subdivisions. In other words, in Ohio there was a statute that said what this State s common law said prior to the Court s opinion in the case sub judice. What the statute stated in -11- Marsh all, the doctrine of stare decisis provides in this case, at least until the majority chose to abandon the doctrine. The Kansas case of Beebe is almost exactly on point. It may not persuade the majority but it certainly is not inapposite. I accept the m ajority s position tha t, to it, Nelson v. Free man, 537 F.Supp. 602 (W.D. Mo. 1982), is not persuasive. I wish it were. In fact, I do not see how it is not on point and not persuasive. The Missouri child abuse statute at issue in Nelson was similar to the statutes in the present case. It stated, in relevant part, as discussed by the federal district court: The second objective [of the statute] is furthered by requiring the local D.F.S. office to investigate reported cases of child ab use a nd, if nece ssary, provide protective services or contact the appropriate law enforcement author ity. Id. at 606. The federal district court then quoted portions of the statute: 1. Th e divisio n shall e stablish and m aintain a telepho ne serv ice . . . . 2. The division shall ma intain a c entral re gistry . . . . ... 4. The local office . . . shall cause a thorough investigation to be made immedia tely or no later than within twenty-four hours [familiar?] . . . the primar y purpos e of su ch inve stigation being th e protec tion of th e child. . . . 5. Protective social services shall be provided by the local office . . . to prevent further abuse . . . . Id. (alteration added). The court then described the issue, which plaintiffs asserted created an individual duty, as: -12- The question presented by the third ground alleged . . . is whether the alleged failure of D .F.S. officials to comply with the statutory duty created by [the statute], in particular the duty to cause a thorough investigation to be made of reported ch ild abuse, state s a cause o f action in fa vor of plain tiffs under applica ble M issouri to rt law. Under M issouri law, Before an act is said to be negligent, there must exist a duty to the individ ual com plaining . Whether a duty was owed by these defendants to these plaintiffs under the facts of this c ase dep ends u pon w hether, under applicable Missouri law, the Child Abuse reporting statute must be found to have created on ly a public d uty and not a duty to individuals, and whether, under the allegations of plaintiffs complain t, plaintiffs co uld be said to fall within some exception to the general applicable rule in that D.F.S. officials, by their actions, could be said to have established a specific duty to these plaintiffs. Id. at 607 (alterations added) (citation om itted). The facts alleged in Nelson (initially a sexual-abuse case, but one that did result in a death), accepted f or the purp oses of tha t court s resolu tion, included that: [D]efe ndants K eatings and White un dertook to in vestigate some bu t not all of the hotline calls concerning the aforenamed Nelson ch ildren. . . . [Defendants] fail[ed] to adequately investigate or detect the a foredescribed child abuse a nd mis treatme nt . . . failed to adequately investigate the aforedescribed reputations and prior bad acts . . . improperly classifying . . . welfare investigations as unsubstantiated, thereb y foreclosing future investigation of the p light of t he Ne lson ch ildren . . . failing to remove the Nelson children from the residence . . . . Id. at 604. How much more similar could the allegations in that case be compared to those in this present case? The federal district court in Nelson, interestingly, in referring to the seminal Missou ri case, noted that it had been based on an old Supreme Court case in respect to conserva tors of the p eace and their duties to in dividuals, arisin g out of Maryland. It involved allegations that a Maryland sheriff had not performed his duty to suppress riots, and a citizen had b een hurt as a result. That citizen then sued the sheriff on his bond. The -13- Supreme Court of the United States in South v. Maryland, 18 How. 396, 59 U.S. 396 , 15 L.Ed. 433 (1856), noted: [T]he sheriff, being present, the plaintiff, Pottle, applied to him for protection, and requested h im to keep the peace o f the State o f Maryland, he, the said sheriff, having pow er and authority so to do. That the sheriff neglected and refused to protect and defend the plaintiff, and to keep the peace, wherefore, it is charged, the sheriff did not well and truly execute and perform the duties required of him by the law s of said State . . . . It assumes as a postulate, that every breach or neglect of a public duty subjects the officer to a civil suit by any individual who, in consequence thereof, has suffere d loss o r injury . . . because he has not executed and performed all the duties required of and imposed on him by the laws of the State. South, 59 U.S . at 401. The Supreme Court answered the issue by stating that, [i]t [the sheriff s] is a public duty, for neglect of which he is amen able to the p ublic, and p unishable by indictm ent only (alteratio n adde d). Id. at 403. In Nelson, that court also quoted from the case of Crouch v. Hall, 406 N.E. 2d 303, 304 (Ind. App. 19 80): In our research we have found it overwhelmingly held that liability to an individual for damages will not lie where the officer or the public body owes a duty to the general public as a w hole, but it is not shown that the officer or public bo dy ow es a s peci fic d uty or has a special relationship to the individual. [Em phasis a dded.] The Nelson court then held: [T]his Court must conclude that the Missouri Child Abuse statute created only a duty to the pu blic and no t to individua ls, and theref ore canno t be said to supp ort a cau se of ac tion in fa vor of individ uals. ... But the public duty to investigate imposed by the statute does n ot suffice to establish a specific duty to these plaintiffs as individuals, the breach of which would, under applicable Missouri law, entitle plaintiffs to a private cause of -14- action . . . . Neither the cases cited by plaintiffs nor those already discussed support plaintiffs argument that reliance up on public officials to perfo rm their public duty will transform a duty to the public into a duty to individuals. ... The Court has not overlooked the allegations in the complaint that defenda nts willfully refused to perform the duties mandated by the M issouri Child Abuse statute and demonstrated complete indifference to or conscious disregard for the safety of others. Those allegations do not state a cause of action under Missouri law. ... Fin ally, it should be noted that the declaration in South v. Maryland alleged that the sherif f, although present and able to do so, did then and there neglect and refuse to protect and defend th e said Jona than from the said unlawful conduct and threatened violence of the said evil-disposed persons, and to preserve a nd kee p the pe ace of the State of M aryland . . . . Nevertheless, the court concluded that the declaration had set forth no suffici ent cau se of ac tion. Nelson, 537 F.Supp. at 610 -12 (citation omitted) (footnotes om itted). Acc ordingly, I do not believe that any of the cases cited b y the majority as inap posite actually are. They are all on point and relevant to the debate. Becaus e the presen t Court, after more tha n one hundre d and fif ty years of the Court agreeing with the concepts of the cases, now chooses to disagree with them - does not make them inapposite. It seems to me, that if stare decisis is not going to be controlling, the Court ought to have the intellectual honesty to adm it it and o verrule the case s that ho ld to the c ontrary, instead of using semantical device s, i.e., an overuse of the word distinguish - when there are not any distinguishing factors. Here the majority abandons stare decisis. As important, and distressing, is the fact that lawyers are now left with two lines of cases. One line involves -15- numerous cases dating back a hundred years or more. The other line being this single case. They cannot kn ow wh at advice to proffer to clients. If the Court is going to change the law it should , at least, sp ecifica lly state that it is overru ling the p rior case s. Again, I point out that this is not simply a case of an agency with a duty to investigate, not investigating. The agency investigated before the child was killed and specifically found no abuse. That finding may well be wrong, in hindsight unquestionably so, but it was the agency s decision to make, not this Court s. In my view, the statute mandates an inspection when a report is made, not continual inspections ad infinitum when the same person makes continu al com plaints a bout th e same alleged course of abu sive co nduct. Perhaps my most stren uous obje ction to what the majority is doing with the opinion in this case concerns the broade r effects of the decision . There are a multitude o f state and local governmental and administrative entities in this State, upon which are imposed by statute and regulation a myriad of responsibilities to the people of the State. The responsibilities of these agencies, for the most part, are performed by persons as imperfect as are we. Reg retta bly, but inevitably, they are, when exercising discretion, going to make mistakes . Often, a s in th is case, th ose m istak es may lea d to trage dy. A very s imila r statute to the o ne th e ma jority n ow s tates crea tes a duty, out of which under the majority s holding in this case, negligence actions against state agencies can now arise, is found at Health-G eneral Article, Title 19, Health C are Facilities, Subtitle 3. Hospitals and Related In stitutions, Part V I. Right s of Ind ividuals , § 19-3 47, Abuse -16- prohibited. In that section, reports of abuse are to be made to an appropriate law enforcement agency, the Secretary [of Health and Mental Hygiene], or the Department of Aging . The statu te the n req uires that the law enfo rcem ent a gency, with the assistance of the Secreta ry, shall: (i) Investigate thorough ly each report o f an alleged abuse; and (ii) Attempt to insure the pro tection o f the alle ged vic tim. The statute then contains an extensive assemblage of requirements, based upon the exercise of discretion by various entities, for reporting allegations, inv estigations etc. If, at any stag e of su ch proc esses, a mistake is made, w ith the major ity s decision today, a potential lawsuit has been created where none b efore e xisted. Another example is Health-General Article (dealing with th e develop mentally disabled), § 7-1005 (c) Duties of law-enforcement agencies, that requires a law enforcement agency that receives a report of abuse to (i) Investigate thoroughly each report . . . and (ii) Attem pt to ensure the protection of the alleged victim. With the Court s opinion in the present case, if a police agency conducts an investigation and mistakenly makes a determination that no abu se has occ urred, it will have subjected itse lf (or the gov erning entity of which it is a part - or both) to tort liability. Interestingly, the Legislature has, in another section relating to other requirements, shown in this Title that when it w ants to create civil liability in respect to health issues it knows how to do so. In Subtitle 11. Prohibite d Acts; Penalties; C ivil Liability, § 7-1101 (d) the L egislatur e pro vide d spe cific ally: (d) Civil damages. In addition to any other pena lties specified in this section, an individu al who is a dmitted or h eld against the individual s will by -17- a person w ho is provid ing services w ithout a licens e may recov er civil damages from that person and from any other perso n who k nowing ly particip ates in th e adm ission o r detenti on. The inclusion of this section certainly establishes that the General Assemb ly knows ho w to create civil liability when it establishes programs for the protection of the general population. Section 10-705 of the Health-General Article contains almost exactly the same provisions as Title 7, requiring law enforcement entities who receive reports of abuse of another broad class of persons (mentally ill individuals) to investigate and secure protection for them. As with the case at bar, if the agency in the exercise of its discretionary function of investigation makes a mistake, civil tort liability, as a result of the majority s position in this case , will attac h. Health-General Article, § 14 -407 requ ires The D epartmen t to: (1) Investigate complain ts received regarding the youth camp; and (2) Require appropriate training, including knowledge of outdoor camping, for a cam p inspector. With the m ajority s opinion in the case a t bar, the doo r to civil tort liability against the governing entity charged with inspecting is opened, where a camper is injured in a youth camp, based upon a claim of inadequa te inspections or a mistake in inspection, or even based upon a claim by a person injured in a youth camp that the inspectors were not adequately trained. The Health-General Article also requires all medical and cytology lab oratories to be initially inspec ted and to therea fter be p eriodica lly inspecte d. See § 17-202 (b) of the Health-General Article. With the Court s opinion today, if an inspection is not conducted -18- on a sufficiently periodic basis, or if it is and existing problems are not discovered during the inspection, and the o vers ight resu lts in injury to a person, civil tort liability, under the reason ing of th e majo rity s opinio n, migh t well atta ch. Health-General Article, § 18-208 requires a county health officer to: 1. investiga te the suspected disease; and 2. Act properly to prevent the spread of the disease. Under the holding of today, if that h ealth office r s investigation , albeit in good faith , is flawed, or the actions he takes to prevent the spread of the disease are not as adequate as they might conceiva bly be, all those perso ns who might sub sequently contract the disease will be citing Horridge as their legions march to th e court hou ses and file s uits against (in e ffect) their respective countie s. See also Health-G eneral Artic le, § 19-407 (requiring T he Dep artment to Inspect the operations of each h ome hea lth agency to determine whether it is meeting the require ments . . . ). Section 20-302 of the Health-General Article states that the Secretary may investigate all nuisances that affect the public health and devise means for the control of these nuisances. If a public nuisance also constitute s a priva te nuisa nce, e.g., sewage leaking from faile d septic systems, is the Sta te liable under the majority s reasoning of the day, to a specific adjacent landowner whose p roperty is overru n by the sew age if the S tate does inspect and makes a mistake? Is the State going to be liable if the health of numerous citizens is impaired? Other provisions of Title 20 require the Secretary, upon receiving certain complaints, to investigate whether certain conditions are likely to injure any adjacent -19- prop erty. . . . If the Secretary does not act promptly, or if he acts and mistakenly determines that the condition will not injure adjacent property or persons, and then it d oes, will the S tate be liable in individual actions? Subsequent to Horrid ge, a strong argument can be made that the specific pro perty or the person, are just such types of properties ( adjacent ) or persons that statute was designed to protect. I fail to see how such a situation could be distinguished (except perhaps as to the severity of the result bu t, of course, c ourt decision s are not to be result-driven). While the general provisions of the regulation of food establish ments, i.e., restaurants etc., provide for permissive inspections, and, presumab ly, the State or a loc al health department could argue that illnesses relating to food do not result from the failure of a required inspection, some areas of food regu lation require mandatory inspections. HealthGeneral Article, § 21-413, requires initial and periodic inspection of facilities involved in the production of milk. Under Horridge, it will be argued, for example, that the litigant sickened by bad milk products was injured as a result of a deficient investigation or inspection. Section 21-809 of the Health-Genera l Article also requires manda tory inspections in respect to froze n food facilities . Health-General Article, Title 24, Miscellaneous Provisions, Subtitle 4. Bedding, which in large part is concerned with the disinfecting of used bedding, permits, in Part III, § 24-416, the inspection by the Secretary of all places where bedding is made, renovated or sold. Though perhaps an extreme example (except to the person being bitten), under Horridge an -20- argument could be m ade that the S tate is liable to a person who has been subject to bedbug infestations after purchasin g a used m attress with a d isinfected tag affixed b y an entity inspected by the Secretary. Certainly, the class of persons that statute purports to protect includes the purchasers of disinfected mattresses. Health-Occupation Article, § 9-314, Investigations; grounds for reprimands, suspensions, and revocations, provides that the [State] Bo ard [of Exam iners of Nursing Home Administrators] shall investigate and take appropriate action as to any co mplain t . . . that a licensee has failed to meet any standard of the Board. After the majority s opinion becomes the law in Maryland, if the Board investigates, but mistakenly determines that standards are being m et (when actually a standa rd is not being met), and a person is injured as a result, a n action will lie ag ainst the Board , i.e., the State . Section 14-303 of the Family Law Article, in resp ect to vulne rable ad ult[s], requires a local departme nt upon a report to begin a thoro ugh inv estigatio n. In that investigation the local department is to determine whether the adult is vulnerable and whether there has been abuse, neglect . . . or exploita tion. Ultimately, it must make a determination whether the adult is in need of protective services. With the Court s opinion in the present case, all administrative departmen ts (whether of State or local governments) become liable in tort if they make a mistake in any of their disc retionar y determi nations . Public Safety Article, Title 5, Firearm s, Subtitle 3. Handg un Perm its, § 5-306, among many other things , requires the S ecretary to cond uct an inve stigation into a n applican t s -21- propen sity for violence or instability. Such an investigation and determination are necessarily subjective, and the Secretary s performance of such an investigation involves the exercise of discretion. Subsequent to the case at bar, it will be argued that the S ecretary should be liable to those injured by such a p ermit holder, because the act of injury itself is proof that the wrongdoer had a propensity for violence or was unstable, and thus the exercise of discretion was wrong, and the State should be liable. The same could be said of firefighting officia ls. Title 6 , Subtitle 3, § 6-303, requires every fire department or volunteer squad to run a criminal records ch eck of ap plicants and permits them to exercise discretion in the hiring of persons w ith crimina l record s. Und er § 6-3 07, Inspections, the State Fire Marsha ll is required to inspect a la rge classifica tion of pub lic and non -dwelling p rivate buildings for fire exits and safety standards. If an inspection is defe ctive, a fire occurs, and injuries and/or dea ths occur, w ill the State be liable for tort damages, based solely upon the defective inspection? Under Title 12 , Subtitle 2. Statewide Building and Housing Codes, § 12-202 (e) of the Public Safety Article, the Department of Housing and Community Development shall investigate [any alleged v iolation of the Maryland Accessib ility Code (a code to make buildings accessible to persons w ith physical disabilities)] to determ ine if a v iolation exists. Pres uma bly, if the Department makes a mistake in determinin g wheth er a building is acces sible, and as a res ult a disabled person is inju red attemp ting to access a building, the State will no w be lia ble. This statutory pr ovision as to the subjects it is designed to protect -22- is at least as spec ific as the statute the majority bases the creation of this new liab ility on in the case at bar. Agricultural Article, § 3-104, Local health authorities and veterinarians required to report contagious and infectious diseases, states every local he alth authority of every county shall investigate each reported case of contagious or infectious disease of livestock or poultry in the county. If the autho rity finds a conta gious or inf ectious disea se, it shall report to the Secretary [of Agriculture]. T he Secretary is given a broad range of powers to deal with the disease, including the destruction of any animal exposed to the disease. Under this authority, hundreds of thousands, if not millions, of chickens have been destroyed over the years. Suppo se the health authority fails to investig ate, or does in vestigate but makes a mistake in diagnosing, or failing to diagnose the disease, and millions of chickens are either wrongf ully destroyed, or, if exposed are not destroyed and they infect other chickens. Under the majority s holding, actions in negligence against the State may arise in respect to damages or consequential damages, even where the injury is to a person s livelihood, as oppos ed to his or her h ealth. The Labor and Employment Article, in § 3-206 in respect to work permits, subparagraph (d)(2)(i) permits the Com missioner to issue wor k permits fo r certain occupations not normally permitted to a minor if, after investigation, the Commissioner determines that neither the work nor the work site where the work is to b e perform ed is hazardous to the minor . . . . If a minor is later injured doing the work, it will be argued that -23- the Commissioner, in his required investigation, made a mistake, and that unde r Horridge, the State is liable f or the d amag es to the minor. In the same article, in § 5.5-11 4, Request for inspection, railroad employees may request inspections of railroads. Upon receipt of such requests, if the Commissioner determines that there are reasonable grounds supporting the request, he shall conduct an investigation as soon as practicable to determine whether the danger or threat exists. He or she is then given powers to deal with the findings of the investigation. Now, with the majority s opinion, if the Commissioner receives such a request and does not conduct an investigation as soon as some court fact-finding entity, after the fact, believes was practicable, or if the Commission conducts a prompt investigation, but in the exercise of his or her discretion, determines that no threat exists, but is mistaken, and an accident happens because of a defect, the State will be liable in tort. Obviously, this particular statute is designed to protect a class of persons, which includes passengers. If an Amtrak passenger train derails in Maryland , with hund reds, proba bly thousand s of passen gers, the State will join the railroad companies as defendants - probably as the prime defendant in that the passenger railroads are generally in a state of financial insecurity, whereas the State has the ultimate deep pockets. Business Regulation Article, Subtitle 4, which deals with the regulation of amusement attractions, requires, in § 3-402, Inspections and investigations, that the Commissioner of Labor and Industry shall inspect: (1) each amusement attraction at an amusem ent park -24- annually; (2) each amusem ent attraction, if moved, before it begins operation at another location; and (3) each new or modifie d amuse ment attractio n before it b egins pub lic operation. The Commissioner is also required to investigate complaints or accidents and to reinvestigate the amusement attraction. With the decision in the present case, if the Commission makes a m istake during any of the many (given the frequency with which amusement attractions may be moved) investigations he conducts, and someone is injured by a defective ride, the State will now join the amusement attraction operator as a defenda nt. The Environmen t Article, in § 10-202, requires the S ecretary of the En vironmen t to investigate any complaint made by three or more people in respect to certain alleged conditions that include a condition where there exists [a]ny water in which mosquito larvae breed. The still bodies of fresh wa ter in this State, as well as much of the brackish waters, are susceptible (one who is frequently mosquito-bitten supposes) to inspections by the Secretar y. That includes most of the Eastern Shore. If the Secretary does not make a prompt inspection, and a pers on is bitten as a result of mosquito s hatching from the larvae in waters the Secretary had been informed contain larvae, and th e bitee contra cts malaria, W est Nile or any other mosquito-transmitted disease, is the State going to be liable? Inmates in c orrectional in stitutions, in add ition to the cus tomers of the various State and local health organizations that I have not mentioned (and there may be scores, if not hundreds of them), students an d their paren ts in second ary and highe r education entities, all of them, and more, will n ow look for any statute th at imposes responsibil ities upon -25- administrative agencies (including the Administrative Office of the Courts), and using the majority s opinion go to court anytime they perceive that a State employee has not exercised his discretion appropriately, and they have been damaged as a result. If that is to be the future of litigation ag ainst the State and its local governments, it should be a policy decision by the Legisla ture not by this C ourt. Tod ay, for the first tim e, the majority im poses tort liability against governmental entities arising out of discretionary governmental decisions where the state actor has not acted a ffirma tively to pla ce the a lleged v ictim in d anger. While it will not hap pen right away, un less t he P laintiff s bar is in, a nd st ays in, a state of menta l hibern ation, the rain wi ll come . A deluge of litigation will fall upon (and into) the State s big pockets. The Circuit Co urt correctly app lied the law as it existed prior to this case. I w ould affirm its correc t decisio n. Judge B attaglia has au thorized m e to note tha t she joins in this dissent. -26-

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