Pendleton v. State

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Corey Pen dleton v. Sta te of Ma ryland, No. 31 , Septemb er Term, 2 005. Op inion by Bell, C.J. PLEADINGS - NEGLIGENCE For a plead ing to be su fficient in the context of a negligen ce action, it m ust allege w ith certainty and definiteness facts to show a duty on the part of the defendant to the plaintiff . Whet her a leg al duty ex ists is a qu estion o f law, to be dec ided by th e court. Stating that, upon inform ation and belief, a party knew or should have kn ow about a third party s alleged propensity for violence, without more, is not a sufficient factual allegation from which a duty may arise. IN THE COURT OF APPEALS OF MARYLAND No. 31 September Term, 2005 Corey Pendleton v. State of Maryland Bell, C. J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C.J. Filed: April 13, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active membe r of this Co urt; after bein g recalled pursuant to the Cons titution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. This case arises f rom the gr anting of a motion to d ismiss by the C ircuit Court for Baltimore City. On De cember 1 2, 2002, C orey Pendleto n, the appe llant, by and throu gh his next friend and father, Randy Pendleton, filed in that court a complaint against the State of Maryland and the B altimore C ity Department of Social Services (DSS), an agency of the State, (collectively the appellees, hereinafter referred to as the State or the Sta te Defendants ), and Barnett and Cecelia Carroll, d/b/a Finding Direction, Inc., alleging their negligence. The complaint also alleged battery with respect to James Wratchford, the appellant s roomm ate. The ap pellant subs equently amende d his com pliant to add Finding Directio n, Inc., as a defe ndant. The gravamen of the complaint was that the appellant was sexually and physically ab used and battered by his ro ommate while he w as residing in a group home licensed by the Sta te. On May 23, 2003, the State filed a motion to dismiss the amended complaint for failure to state a claim.1 That mo tion was g ranted as to the State Defendants, the State of Maryland and DSS, but not as to the other defendants. When they failed to answe r the complain t, the Circuit Court entered a default judgment against them and subsequently, after an inquisition hearing on damages, assessed damages at $597,000.00. Judgment in that 1 Maryland R ule 2-322 provides, in r elevant par t: (b) Permissive. The following defenses m ay be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the subject matter, (2) failure to state a claim upon which relief can be granted, (3) f ailure to join a p arty under Ru le 2-211, (4) discharge in bankruptcy, and (5) governmental immunity. If not so made, these defenses and objections may be made in the answer, or in any other appropriate manner after an swer is filed. amount was entered in favor of the appellant against the defendants Barnett and Cecelia Carroll, d/b/a Finding Direction, Inc., and Finding Direction, Inc. The appellant appealed the Circuit Court s judgment dismissing the State Defendants from the case. This Court, on its own initiative and before proceedings in the Court of Special Appeals, issued a writ of certiorari, Pendleton v. State, 387 Md. 465, 875 A.2d 76 9 (2005), to address the single issue posed by the appellant: Whether the trial court e rred in grantin g the State D efendan ts Motion to Dismiss, finding that the State had only a public duty of care, rather than a special or statutory duty to pro tect a child rem oved fro m the custo dy of his parents and placed in the custody of a foster group home from the intentional acts of a third party[] We shall hold that the trial court did not err in d ismissing the appellant s a mended complain t, which insufficiently alleged a duty on the part of the State. I. In October 1999, the a ppellant an d his mother, Cynthia Ma son, being home less, were placed in a temporary shelter by DSS. Subsequently, in early January 2000, when he was ten years old, the appellant was removed from his mother s custody and placed in foste r care. His placem ent wa s with F inding Directio n, Inc., a licensed residential ch ildcare prov ider in Baltimore City, oper ated by B arnett an d Cec elia Ca rroll. The appellant was assigned to share a room in the residential group home with James Wratchford, then sixteen years old, another resident in the group home. The appellant alleges that he was sexually and physically abused and ba ttered by W ratchfo rd wh ile they sha red that r oom. -2- The appellant d id not repor t the alleged a buse imm ediately, as he testif ied at the inquisition hearing on damages. According to the appellant s testimony at that hearing, he first reported the alleged abuse to a friend, who also lived in the group home. He then explained: Q A Q A Q A Q A Q A Q A Q A Q A Q A. When you told your friend and your friend told the foster care folks Yes. what did they do? They took m e down stairs and talke d to me alo ne about it. Did you tell them the truth? Yes, I told them the truth. And then what did they do? Then the police cam e. They wro te up a repo rt. How much time went by how much time w ent by between the start of the sexual assault and the time you told? I have to think o n that on e. I m not going to truly say I really know, but I m going to say around like a month or something. Did it seem to you like it was a long time? Yes. Did it seem like it was sh ort? It seemed like a little long. But you think maybe about a month? Yeah. And then after you told and the police cam e, it didn t happen anymore. No. Once the operators of th e group h ome w ere notified o f the situation , they acted to assure that there was no further contact between the appellant and Wratchford. The appellant was remove d from the group home in Febru ary 2000 and reunited w ith his mother. The appellant s mother, pursuant to the M aryland Tort Claims Act, Maryland Code (1984, 2004 R epl. Vol.), § 1 2-107 of the State Government Article, timely filed notice of the appellant s claim with the State. It w as denied. B y this time, the appellant s mother had -3- passed away and Randy Pendleton, the appellant s father, had custody of the appellant. He filed, as next friend and father, a complaint on behalf of the appellant, which he later amen ded to a dd Fin ding D irection s, Inc., as a defen dant. The complain t sounded in negligence. As relevant to the State Defendants, it alleged that the State owed a duty to [the appellant] to keep him safe from harm while he was housed at Finding Direction an d to make certain the po licies designed to protect him w ere follow ed, but that the State Defendants breached their duties of care by: (1) placing Wratchford, a sixteen year old, in the same room with the appellant, a ten year old, (2) failing properly to supervise Wratchford, (3) failing to protect the appellant from being sexually and physically assaulted by Wratchford, (4) failing to provide adequate staffing for proper supervision of the appellant, (5) failing prope rly to train staff person s, and (6) fa iling to protect the appellant from the f oreseeable risk of harm associated w ith being pla ced in the group home run by Finding Directions, Inc. As a result of the State Defendants alleged breach of duty, the appellant claimed that he suffered humiliation, shame, embarras sment, anger, physical and emotional pain, suffering, inconvenience, mental anguish, loss of emotional enjoyment of life, severe and extreme emotional distress, and incurred medical expense . Th e Sta te Defen dants br each of duty, he maintained, was the proximate cause of his injuries and damages. The only allegation of fact the a ppellant m ade with re gard to the k nowled ge the State Defendants had of the situation or with which it was charged was: -4- Upon information and belief, the State and its Foster Care Program officials as well as Defend ants Barn ett Carroll and Cece lia Carroll were awa re of (or sho uld hav e been aware of) the s exual te ndenc ies, deviousness and history of sexual assaults of Wratchford, and taken care not to place [appe llant] in d anger o f being sexual ly assaulte d by him . He did not allege that Wratchford had committed assaults prior to those alleged by the appellant or that the State had knowledge of any sexual tendencies Wratchford may have had or that he had a history of sexual as saults. There was, in sho rt, no factual a llegation as to the basis for the know ledge attribute d to the State or that related why the State should have been aware of any deviant tendencies that Wratchford may have had, or even tha t he, in fact, had such tendencies prior to the alleg ed inciden ts that occurre d with the a ppellant. On May 23, 2003, the State filed a motion to dismiss the appellant s amended complain t, arguing that it failed to state a claim. The Circuit Court granted the motion and, therefore, dismissed the negligence claims against the State. His motion for reconsideration of the Circuit Court s judgment having been denied and judgment having been entered agains t the rem aining d efend ants, the appella nt noted this app eal. II. The appellant s claim against the State is, as we have seen , a simple negligence claim. Specifically, the appellant argues that the State h ad a non- delegable duty, imposed both by statute and the special relationship established by the State s placement of him in foster care and the group home, to protect the appellant from sexual and physical abuse and battery by Mr. Wratchford. The State breached that duty, and that the breach was the proximate cause -5- of the appellant s injuries, he concludes. C onversely, the State argues that the app ellant s amended complaint does not allege the facts necessary to show that the State had any duty to the appellant. More specifically, the State rejoins that the amen ded com plaint is devoid of any factual alleg ation that the State was negligent in licensing or monitoring Finding Direction and contains no facts to support the allegations regarding Wratchford s alleged history, or that the Sta te failed to follow statutory procedures in placing the appellant with Finding Directions . Furthermo re, it submits, the amended complaint contains no allegation that the State received and failed to act upon any report of abuse allegedly inflicted by Wratchford or anyone else against Appellant or any other resident of Finding Direction prior to the injuries alleged in the Complaint, and there is no allegation that the State fa iled to respond appropriately once the alleged actions of Wratchford were made known. Maryland s child welfare services as relevant to this case, what is termed both foster care and out-of-home placement2 are governed by Title 5, Subtitle 5, Part III of the Fa mily Law Article, §§ 5-524 through 5-534. Section 5-501(m) of the Family Law Article defines out-of-home placement as placement of a child into foster care, kinship care, group care, or residen tial treatm ent care . Maryland Code (1984, 1999 Repl. Vol.), § 5-501(m) of the Family Law Article. Section 5-526 provides that group hom es may be operated b y forprofit or nonprofit charitable corp orations, subsection (a)(1), and mus t comply with State 2 Chapter 539 of the Acts of 1998 indicates that the term foster care was replaced throug hout po rtions of the cod e with th e term out-of -home placem ent. -6- licensing laws as set forth in §§ 5-507 through 5-509 of the Family Law Article. Subsection (a)(2). Regulations for the State s out-of-ho me placement program, promulgated by the Secretary of Human Resources, are codified in the Code of Maryland Regulations (COMAR) 07.02.11.01 through 07.02.11.34. Group home placement is one option for providing care for displaced children. COMAR states that the purpose of the State s out-of-home placement program is to provide care for children that have been abused, abandoned, neglected, or [are] dependent, or . . . [are] at imminent risk of serious harm. COMAR 07.02.11.01A. After a court has determined that continued residence in the child s home is contrary to the child s welfare and has [c]ommitted the child to the custody or guardianship of the local departme nt (DSS), the departme nt shall initiate ou t-of-ho me pla cemen t for [th e] child. COMAR 07.02.11.04. In order of preference, a child shall be placed with a relative caregiver, in a foster home , or in a group care setting. COMAR 07.02.11.11A. COMAR also requires that [a]ny residential treatment facility used by the local department shall meet the requirements for licensure for the facilities established in COMAR 01.04.04 . . . . 3 COMAR 07.02.11.11F. The regulations state that local DSS caseworkers are to have regular contact with children in the out-of-home placement program. COMAR 07.02.11.17A. For children placed in group homes, a caseworker shall have a face-to-face interview with the 3 Effective June 30, 2005, subtitle 01.04.04 was revised and recodified as COMAR 14.31.0 5. We s hall refe r to the re gulation s in effe ct at the tim e of the comp laint. -7- child within 1 week of placement, and subsequently at least once a month . . . . COMAR 07.02.1 1.17B (1). III. In Scott v. Jenkins, 345 Md. 21, 69 0 A.2d 1000 (1997), Judge K arwacki, writing for the Court, addressed the requisites of a sufficient pleading in a negligence action: In the context of a neglig ence action , we have previously he ld that a sufficient pleading must allege, with certainty and definiteness, facts and circumstances sufficient to set forth (a) a duty owe d by the defendant to the plaintiff, (b) a breach of th at du ty and (c) in jury proximate ly resulting from that breach. Read Drug and Chemical Co. v. Colwill Constr. Co., 250 Md. 406, 41 2, 243 A .2d 548 , 553 (1 968) (e mpha sis in orig inal). Id. at 28, 690 A.2d at 1003.4 See also Horridge v. St. Mary s County Dep t of Social Services, 382 Md. 170, 182, 854 A.2d 1232, 1238 (2004) ( Merely stating that a duty existed, or that it was bre ached, or th at the brea ch cau sed the injury doe s not su ffice . . . . ). When reviewing the propriety of the dismissal of a complaint, therefore, we have held 4 See also Jackson v. Pennsylvania R. R. Co., 176 Md. 1, 5, 3 A.2d 719, 721 (1939) (and cases cited therein): In order for a plaintiff to have a right of action in negligence against a defendant there must exist a duty which is owed by the defendant to the plaintiff to observe that care which the law prescribes in the given circumstances, a breach by the de fenda nt of tha t duty, damages and injury suffered by the plaintiff as the demonstrable effect of the breach of duty. Negligence is, therefore, the absenc e of care a ccording to the circumstances. So, an action for negligence involves the certain and definite allegation of the circumstances, and the failure of the defendant to exercise the care which the law required according to these circumstances. If the allegations should be insufficient to show a duty breache d which was the efficient cause of the injury, the declaration is bad on demu rrer. (Em phasis a dded.) -8- that the court m ust assume the truth of a ll well-pled f actual allega tions in the comp laint, as well as any reasonable inferences that may be drawn from those allegations. W e recently elucidated: As we made clear in Afamefune ex rel. Afamefune v. Suburban Hosp., Inc., 385 Md. 67 7, 683 n.4, 870 A .2d 592, 595 n.4 (20 05), A motion to dismiss for failure to state a claim tests the sufficiency of the plea dings. M d. Rule 2-3 22(b)(2); see Converge Services Group, LLC v. Curran, 383 Md. 462, 475, 860 A.2d 871, 878-79 (2004) ( consideration of the universe of facts pertinent to th e court s an alysis of the motion are limited generally to the four c orners of th e compla int and its incorporated supporting exhibits, if any ); Paul V. Niemeyer & Linda M. Schuett, Maryland Rules C ommentary, 206 (3d ed. 2003) ( [t]he object of the motion is to argue that as a matter of law relie f cann ot be gr anted o n the fa cts alleg ed ). Thus, when reviewing the grant of such a motion, a court must assume the truth of all well-p led facts in the complaint as well as the reasonable inferences that may be drawn from those relevant and material facts. Porterfield v. Mascari II, Inc., 374 Md. 402, 414, 823 A.2d 590, 597 (2003) (indicating that [] we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most fa vorabl e to the n on-mo ving pa rty). See Benson v. State, 389 M d. 615, 626 , 887 A.2d 525, 531 (2005); Bobo v. State, 346 Md. 706, 707-708, 697 A.2 d 1371, 1 372-137 3 (1997) . . . . D ismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the pla intiff. Allied Invest. Corp. v. Jasen, 354 Md. [547,] 555, 731 A.2d [957,] 961 [(1999)]; Bobo v . State, 346 Md. at 709, 697 A.2d at 1373; Morris v. Osmose Wood Preserving, 340 Md. 519, 531, 667 A.2d 624, 630 (1995). On appeal, a reviewing court must determine whether the trial court was legally correct, examining solely the sufficiency of the pleading. Benson v. State, 389 Md. at 626, 887 A.2d at 531. Ricketts v. R icketts, 393 M d. 479, 4 91-92 , 903 A .2d 857 , 864-6 5 (200 6). It is not enough that the plaintiff s allegations and the reasonable inferences from them are consistent and supporting, however. A trial court s dismissal of a complain t will -9- be affirmed if that comp laint nevertheless fa ils to state a claim . As this Co urt opined in Patton v. USA Rugby, 381 Md. 627, 635, 851 A.2d 566, 570 (2004) (quoting Valentine v. On Target, Inc., 353 Md. 544 , 548-49, 727 A .2d 947, 949 (199 9) (citations omitted)): The granting of a motion to dismiss is proper whe n, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted . . . . [I]t will be affirmed if the record reveals any legally sound reason for the decision. A valid ne gligenc e claim , we reite rate, must allege: (1) that the defendant had a duty to protect the plaintiff from inju ry, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) th at the defen dant s brea ch of duty proximate ly caused the loss o r injury. Rhaney v. Univ. of M aryland Eastern Shore, 388 Md. 585, 596, 880 A.2d 357, 363-64 ( 2005); Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 414, 879 A.2d 1088, 10 92 (2005 ); Dehn v. Edgecombe, 384 Md. 606, 619, 865 A.2d 60 3, 611 (2005); Horridge, 382 Md. at 182, 854 A.2d at 1238 ; Patton, 381 Md. at 635-36, 851 A.2d at 570. In West Virginia Cent. & P. Ry. Co. v. Fuller, 96 Md. 652, 54 A. 669 (1903 ), this Court expressed why the element of duty is key to negligence claims: [T]here can be no negligence where there is no duty that is due; for negligence is the breach of som e du ty that one pe rson ow es to anothe r. It is consequ ently relative and c an have n o existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act mu st be sough t and foun d a duty to the individual complaining, the observance of which duty would have averted or avoided the injury. . . . As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligenc e varies, and the act com plained of never am ounts to negligence in law or i n fact; if there ha s been n o breac h of du ty. -10- 96 Md. at 666, 54 A. at 67 1-72. See Doe, 388 Md. at 414-15, 879 A.2d at 10 92; Patton, 381 Md. at 636, 851 A.2d at 57 0-71; Bobo, 346 M d. at 714, 69 7 A.2d a t 1375; Ashburn v. Anne Arundel County, 306 Md. 617, 626-27, 510 A.2d 1078, 1083 (1986). Thus, when analyzing a negligen ce ac tion it is cu stom ary to begin with w heth er a le gally cognizable duty exists. Doe, 388 M d. at 414, 87 9 A.2d a t 1092; Patton, 381 Md. at 636, 851 A.2d at 571. Whether a legal duty exists is a question of law, to b e decid ed by the court. Doe, 388 Md. at 414, 879 A.2d at 1092; Dehn, 384 Md. at 619-20, 865 A.2d at 61 1; Patton, 381 Md. at 636, 851 A.2d at 57 0; Remsburg v . Montgom ery, 376 Md. 568, 581, 83 1 A.2 d 18, 25 (2003); Bobo, 346 Md. at 716, 697 A.2d at 1376 ( The existence of a duty is a matter of law to be determined by the court and, therefore, is an appropriate issue to be disposed of on motion for dism issal. ). We have held that duty is an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. See Doe, 388 Md. at 415, 879 A.2d at 1092 (quoting Dehn, 384 Md. at 619, 865 A.2d at 611 (quoting W. Page Keeto n et al., Prosser and Keeton on the Law of Torts § 53 (5th ed . 1984))); Horridge, 382 Md. at 182, 854 A.2d at 1239; Patton, 381 Md. at 636-37, 851 A.2d at 57 1. Wheth er a duty exists depends upon w hether one party is entitled to the protection of, or is under an obligation to, the othe r party. Doe, 388 M d. at 415, 87 9 A.2d a t 1093. Th us, this Court stated in Rosenb latt v. Exxon Co., 335 Md. 58, 77, 642 A.2d 180, 189 (1994), that ultimately, the determination of whether a duty should be imposed is made by weighing the various policy -11- considerations and reaching a conclusion that the plaintiff s interests are, or are not, entitled to legal protection against the conduct of the defendant. The balancing of policy considerations to determine whe ther a duty exists involves consideration of a number of factors: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant s conduct and the injury suffered, the moral blame attached to the defendant s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk inv olved. Ashburn, 306 Md. at 627, 510 A.2d at 1083 (quoting Tarasoff v. Regents of University of California , 17 Cal.3d 425, 43 4, 131 Cal.Rptr. 14, 22, 551 P.2d 3 34, 342 (1976 )). See Doe, 388 Md. at 416, 879 A.2d at 1093; Horridge, 382 Md. at 183, 854 A.2d at 1239; Patton, 381 Md. at 637, 851 A.2d at 571. In Patton, Judge Harrell, writing for the Court, explicated the importance of the foreseeability of harm factor: Where the failure to exercise due care creates risks of personal injury, the principal determinant of duty becomes foreseeability. Jacques v. First Nat l Bank of Maryland, 307 Md. 527, 535, 515 A.2d 756, 760 (1986) (citations omitted). The foreseeability test is simply intended to reflect current societal standards with respe ct to an acce ptable nex us betwe en the neg ligent act and the ensuing harm. Dobbins v. Washington Suburban Sa nitary Comm n , 338 Md. 341, 348, 658 A.2d 675, 678 (1995) (quoting Henley v. Prince George s County, 305 Md. 320, 333, 503 A.2d 1333, 1340 (1986)). In determining whether a duty exists, it is important to consider the policy reasons supporting a cause of action in negligence. The purpose is to discourage or encourage specific types of beha vior by one p arty to the benefit of ano ther par ty. Valentine, 353 M d. at 550, 72 7 A.2d a t 950. Wh ile foreseea bility is often -12- considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law. Remsburg, 376 Md. at 583, 831 A.2d at 26. As we clarified in Ashburn: [t]he fact that a result may be f oreseeable does not itself impose a duty in neglige nce terms. T his principle is a pparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person s conduct so as to prevent personal harm to another, unless a special relationship exists either between the actor and the third person or betw een the actor an d the pe rson inju red. Ashburn, 306 M d. at 628 , 510 A .2d at 10 83 (citat ions om itted). Patton, 381 Md. at 637-38, 851 A.2d at 571-72. III. The appellant asserts that the State had a duty to protect Appellant from the criminal acts of his attacker because of the duty imposed by statute and because of the special relation ship be tween the Ap pellant a nd Ap pellee. The S tate doe s not ag ree. With regard to the statutory duty argument, it contends that [i]n placing Appellant at Finding Direction, the State was merely executing its statutory responsibility to provide an out-of-home placement for Appellant in a home that was operating in complia nce with a pplicable licensing laws, and that was o therwise ca pable of p roviding ap propriate care to A ppellan t. Moreover, the State denies that a special relationship arose, under the specific circumstances of the case sub judice, out of the interaction between the appellant and the State. This Court discussing the public duty doctrine, has stated: 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 enforceable in tort. Muthukumarana v. -13- Montgom ery County, 370 Md. 447, 486, 805 A.2d 372, 395 (2002) (quoting Dan B. Dobbs, The Law of Torts § 271 (2000) (footnote omitted)). An example, is the duty owed by the police by virtue of their positions as officers is a duty to protect the public. Ashburn, 306 Md. at 628, 510 A.2d at 10 84; Muthukumarana, 370 M d. at 486 , 805 A.2d at 39 5. In Muthukumarana, we explained: P ursuant to the doctrine, therefore, po lice officers ordinarily may not be held liable for failure to protect specific persons because they owe no duty, as the first element of a negligence action requires, to those individuals. 370 Md. at 486-87, 805 A .2d at 39 5. It is clear, howev er, that there are limitations to the public duty doctrine, [s]pecifically, it has no application when the court concludes that a statute or court order has created a special duty or specific obligation to a particular class of persons rather than to the p ublic at large. Id. at 487, 805 A.2d at 396 (quoting Dobbs, supra, § 271 (emph asis add ed)). A special relationship may arise between two parties , constituting an exception to the public d uty doctrin e. Ashburn, 306 Md. at 628, 510 A.2d at 1083. Thus, in the context of a police of ficer, if it can b e shown that the local government or the police officer affirmative ly acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim s specific reliance upon the police protection, then a special relationship exists w hich sa tisfies the duty elem ent of a neglige nce cla im. Ashburn , 306 Md. at 63 1, 510 A .2d at 1085 (citations om itted); Muthukumarana, 370 Md. at 488, 805 A.2d at 396. -14- At the hearing on the appellant s motion for reconsideration, the trial judge ruled: In this court s view, licensing is a governmental function and creates no legal duty. And ab sence [sic] e vidence to the contrary, the duties to licen se or to supervise the licensed foster care p rogram af ter licensing is a duty owed to the public gen erally, the breach of which is not actionable on behalf of a private person who suffers damage. Because no such d uty exists against a private pa rty, there is no duty against a private party and, thus, no actionable negligence. So, I will deny Plaintif f s mo tion to re consid er. The appellant challenges the trial judge s application of the public duty doctrine in this case. The trial court based its decision on Willow Tree Learning Center, Inc. v. Prince George s County, 85 M d. App . 508, 584 A.2d 157 (1991). In Willow Tree, a child was fatally injured while using playground equipme nt at a day-care cen ter. The child s parents brought an action against the day-care center, which, in turn, sought contribution or indemnification from Prin ce Georg e s Coun ty and its inspector. The question on appeal was whether there was a statutory duty on the part of the County to discover, and report, the allegedly unsafe playground equipment from which the child s injury resulted. The pertinent COMAR regulations and County ordinances provided that the playground was to be maintained free from hazards and free from conditions likely to endanger the life or health of children. Willow Tree, 85 Md. App. at 514, 584 A.2d at 160. The intermediate appellate court held that the State or the County does not owe any individual duty of care merely by the enactment of a general ordinance re quiring saf ety inspections, n or by the fact tha t it undertook inspections for safety violations. The duty created by the statute and ordinance was one owed to the public generally. Id. at 515, 584 A.2d at 160-61. The court concluded -15- that [t]here is a complete lack of any intention on the part of the Le gislature w hich wo uld indicate that it was cre ating a duty to ind ividual members of the public, and we will not create one. Id. at 515-16, 584 A.2d at 161. The appellants in Willow Tree argued, in addition, that a special relationship existed between them and the County, an argument that the intermediate appellate court also rejected. It reasoned: (1) the County did not affirmatively and specifically act to protect individual children, but rather, children and oth ers generally, (2) the ordinance there at issue did not contain requirements for mandatory acts for the specific protection of a particular class of persons, and (3) by adopting an inspection progra m, the Co unty was m andatorily complying w ith relevant statu tory law, not vo luntarily assuming a special r elations hip. Id. at 518- 19, 584 A.2d a t 162-6 3. The appellant distinguishes Willow Tree from the case at bar on the basis that, unlike this case, where the State removed the child from parental custody and placed him in the custody of a foster home, in Willow Tree, neither the State of Maryland nor a State agency was the actor who pla ced the ch ild at the scene of the injury. It is this affirmative act on the part of the State in this case which renders the public duty doctrine argument inapplicable, the appellant concludes. We do not agree. The State s removal of the appellant from parental care was done pursuant to a statutory mandate. As we shall explain infra, that act is not the kind of affirmative act that gives rise to a special relationship that would impos e a duty o n the St ate for th e bene fit of the appella nt. -16- A. Statutory D uty The appellan t asse rts th at the State has a statutory duty, imposed by Maryland Code (1984, 1999 Repl. Vol.), § 5-526(c) of the Family Law Article, not to place children in an abusive g roup hom e. Section 5 -526(c) pro vides, in pertin ent part: (c) Compliance with licensing laws. The Department, or the Department s designee, may not place a child in a residential group home or other facility that is not operating in compliance with applicable State licensing laws. Relying on this statute, the appellant contends that [t]he Legislature, therefore, has created a duty flowing to children spec ifically identified by virtue of prior, affirmative action taken to protect them by removing them from their former, unsuitable custodial circumstance. Furthermore, he submits, placement of a child in a facility that is not operating in accordance with the requirements of the law, therefore, is in and of itself a breach of statutory duty. We stated in Remsburg v . Montgom ery, 376 M d. 568, 831 A.2d 18 (2003), that: Evidence of negligence may be established by the breach of a statutory duty when the plaintiff is a member of the class of persons the statute was designed to protect and the injury was of the type the statute was d esigne d to pre vent. Erie Ins. Co. v. Chops, 322 Md. 79, 84, 585 A.2d 232, 234 (1991) (citing Pahanish v. Western Trails, Inc., 69 Md. App. 342, 362, 517 A.2d 1122[, 1132] (1986)); see also Geo. Byers Sons, Inc. v. East Europe Import Ex port, Inc., 463 F.Supp. 135, 138 (D.Md. 1979) ( To use a statutory duty as a foundation for a negligence claim, the p laintiff mus t show tha t it was within the class of persons the legislation was intended to protect and that the alleged injury was the typ e of harm which the statute wa s intended to prevent ). Furthermore, the statute must set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole. Ashburn, 306 Md. at 635, 510 A.2d at 1087 (quoting Morgan v. District of -17- Columb ia, 468 A .2d 130 6, 1314 (D.C. 1 983))(c itations o mitted). Id. at 584, 8 31 A.2 d at 27 ( emph asis in or iginal). The policy of the State of Maryland with respect to child welfare is enunciated in Maryland Code (1984, 1999 Repl. Vol.), § 5-502 of the Family Law Article, which provides: (a) Declarations. Th e Genera l Assemb ly declares that: (1) minor children are not capable of protecting themselves; and (2) when a parent has r elinquished the care of the parent s m inor child to others, there is a possibility of certain risks to the child that require compensating measures. (b) Policy. It is the policy of th is State: (1) to protect minor children whose care has been relinquished to others by the children s parent; (2) to resolve doubts in favor of the child when there is a conflict between the interests of a mino r child and th e interests of an adult; and (3) to encourage the development of day care services for minor children in a safe, healthy, and homelike environment. (Em phasis added .) One of those policies is to protect minor children in its care. The record in this case does not show, or even sugge st, that the State has done anything in violation of this policy. To be sure, the State placed the app ellant at F inding Directio n, Inc., a duly licensed group home. §§ 5-507 through 5-509 of the Family Law Article; COMAR 01.04.04. But the appellant does not allege in h is amende d compla int that the State was negligent in licensing or monitoring Finding Direction, Inc. And there were no allegations that, when the appellant was placed, Fin ding Dire ction, Inc., wa s not then operating in com pliance w ith applicable State licensing laws. Thus, there is no allegation, never mind evidence, showing that the State violated § 5-526(c) by placing the appellant with Finding Direction, Inc. In the absence -18- of such an allegation, the appellant s amended complaint is insufficient to plead negligence base d up on an alle ged statu tory duty. Before proceedin g to a discussion of the special relationship prong o f the appellant s argumen t, it is important to distinguish Horridge v. Department of Social Services, 382 Md. 170, 854 A .2d 123 2 (200 4). Horridge was a negligence action that had been dismissed for failure to state a claim. The case arose ou t of the abuse, and eventual murder, of a young child. The father of the child, who resided in Texas, alleged that he mad e eight repo rts to the St. Mary s County DSS of physical abuse being inflicted on his nineteen-month-old son Collin by Collin s mother or her boyfriend . . . . Id. at 175, 854 A.2d at 1234. DSS was largely unrespon sive to both th e father s rep orts and to a neigh bor s in depen dent rep ort. DSS employees made visits to the home but decided against taking any action, relying instead on the mothe r s positiv e statem ents co ncernin g the w ell-bein g of the child. Social workers from DSS treated the father s complaints as those of an estranged, custody-deprived father, and told him not to make any further reports. They made no further inspections based upon the father s last repo rt. Tragically, two to three months after the father began m aking repo rts to DSS , the child was b eaten to death. The appellant contends that the Horridge Court determined that there was a special relationship between the State an d the aggrie ved party in tha t case, whic h created a duty applicable here. He substantially relies on that case to argue that several criteria have been identified to determin e whethe r or not a spe cial relationship exists. This a rgumen t, -19- however, is somewhat misplaced. Horridge pled two counts of negligence against DSS, one based upon a statutory duty and the other based upon a duty arising out of a special relationship. The Court addres sed on ly the issue of statu tory duty. Id. at 183, 854 A.2d at 1239 ( [W ]e need deal only with the statutory contex t pled in Count I. ). In relation to that statutory duty, the relevant statutes in Horridge were §§ 5-701 through 5-714 of the Family Law Article, rather than § 5-526 (c), as in this case. Those sections of the Family Law Article require anyone who may have reason to b elieve that a child has been subjected to abuse or neglect to notify the DSS or a law e nforcem ent a gency, see §§ 5-704(c) and 5-705(d), as a result of and in response to which DSS must respond within 24 hou rs. Sectio n 5-70 6(b). This latter section and the corresponding COMAR sections, the Court in Horridge concluded, imposed a duty on DSS: The duties im pose d on DSS by FL § 5-706 and the implementing regulations of the Department of Human Resources are far m ore specific and focused. They require a prompt investigation of each reported incident of child abuse. The duty to act is mandatory; the steps to be ta ken are cle arly delineated; and, most important, the 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 th ose also found in the h ome or in the care or custody of the alleged abuser. This is not an obligation th at runs to everyone in general and no one in p articular . It runs to an identified or identifiable child or discrete group of children. Horridge, 382 Md. at 189-90, 854 A.2d at 1243 (some emphasis added). The statutes with which the Horridge Court was concerned were intended to protect a specific class of children, by requiring a mandatory response by DSS to each reported incident of child abuse. -20- That obligation was owed, therefore, to a specific cla ss of childre n, identified o r identifiable before the fact from statutorily mandated re ports, from a specific kind of harm likely to occur if the statutory duty is ignored. DSS is g iven not just a specific du ty to act in respon se to such a repor t but am ple and detailed author ity to do so . Id. at 192, 854 A.2d at 1244. The Court con cluded tha t: The legislative policy of preventing future harm to children already reported to have been abused is so abundantly clear as to be beyond cavil, and, given the statutory ma ndate to act and the g eneral wa iver of tort im munity when State emp loyees fail to act in a reasonable way and harm ensues, we can see no great burden or consequence to re garding this existing statutory duty as a civil one from which tort liability may arise. We cannot conceive that the Legislature intended, when a child is killed or injured, at least in part because DSS fails to perform the duties clearly cast upon it to m ake 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 social workers to act immediately and aggressive ly when specific reports of abuse or neglect are made, and the best way to assure that i s don e is to find that t hey do have a sp ecial relationship with specific ch ildren identifie d in or, upo n reasona ble effort, ide ntifiable from, facially reliable reports of abuse or neglect and, subject to the State Tort Claims Act, to ma ke them liab le if harm o ccurs beca use they fail in their mand ated du ty. Horridge, 382 Md. at 193, 854 A.2d at 1245. In Horridge, there was n o issue raised as to the suf ficiency of the pleadings, th e State simply having failed satisfactorily to comply with the specific mandates, with the discharge of which one of its agencies was charged. In the case sub judice, on the contrary, there are no well-pled factual allegations that the State failed to comply with a specific statutory requireme nt. The State placed the appellant in the care of Finding Direction, Inc., a du ly -21- licensed group ho me, to be su re. While tha t was prop erly alleged, it was not alleged that the State had not properly licensed or supervised Finding Direction, Inc., or that Finding Direction, Inc., was, in a ny way, in violation of the requ irements of its operating license. Furthermore, once Finding Direction, Inc., was apprized that the appellant had reported that he had been sexually abused and battered, it notified the State, as it was required to do, and the State acted immediately to address the situation. Thus, unlike the situation in Horridge, where the pleadings alleged a failure o n the part of the State to res pond as sta tutorily required, the complaint here contained no such sufficient allegation of the State s dereliction in failing to respond, once it was notified of the alleged incident of abuse. B. Special Relationships Regardless of the distinction between Horridge5 and this case, it is evident that the relationship of one pa rty to another may give rise to a duty under certain circum stances. In rationalizing these special relationships, the Court has adopted the reasoning of several 5 Citing Jensen v. Anderson County DSS, 304 S.C. 195, 403 S.E.2d 615 (1991), the appellant states that the Horridge Court rec ently utilized a six-p art anal ytical tool to determine whether a statutory or regula tory re gime ma y crea te a speci al du ty, and therefore a special relationship, between the State and the victim. On the contrary, we determined, in Horridge that [i]t is not n ecessary to ado pt 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 . Montgom ery, supra, 376 Md. 568, 583, 831 A.2d 18, 26. Horridge, 382 M d. at 192, 85 4 A.2d a t 1244. Th us, in this case, we will not address appellant s application of the Jensen six-part test. -22- sections, reflective of our common law, of the Restatem ent (Secon d) of Tor ts,6 or reasoned from the affirmative action of one party, on the basis of which the other party relies to his or her detrime nt. 7 These relationships are often separate and distinct, yet they both involve the same du ty and respon sibility, howeve r the resulting re lationship is forged or develops. As the appellant sees it, the State did an affirmative act when it removed him fro m his mother s care and his parents custody, thus establishing a special relationship with, and a concomitant duty to, him, as one of the children in the State s care. This use of affirmative act, however, blurs the distinction between the application of the common law duty and the reliance duty. We sha ll analyze the du ty that arises out of special relation ships in both contexts. Common Law Restatement (Second ) of Torts discusses special relationships, and the duties that arise therefrom, in seve ral pertin ent secti ons. Restatement (Second ) of Torts §§ 314A, 315, 31920 (1965). 8 Judge Harrell, writing for the Court, in Remsburg v. Montgom ery, 376 Md. 568, 6 See Lamb v. Hopkins, 303 Md. 236 , 245, 492 A.2d 1 297, 1302 (198 5). 7 We have also referred to a special duty or special relationship being created by statute. Horridge, 382 Md. at 193, 854 A.2d at 1245. This creates some confusion in the utilization of the term special relationship. 8 Section 31 4A states in pertinent pa rt: (1) A com mon carrie r is under a d uty to its passeng ers to take rea sonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are (continued...) -23- 831 A.2d 18 (2003), cogently analyzed Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985), where the Court discussed the Restatement s application to negligen ce liability for the actions of third persons: In Lamb . . . , we discussed in detail the inherent nature of the (...continued) ill or injured, and to care for them until they can be cared for by others. ... (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal oppor tunities f or prote ction is u nder a s imilar du ty to the oth er. Section 315 states: There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person s conduct, or (b) a special relation exists between the actor and the oth er which gives to the othe r a right to protecti on. Section 319 states: One who tak es charge o f a third perso n whom he know s or should know to be likely to cause bodily harm to others if not contro lled is under a duty to exercise reasonable care to con trol the third person to prevent him from doing such h arm. Section 320 states: One who is req uired by law to take or w ho volun tarily takes the cus tody o f another under circumstances such as to deprive the other of his normal power of self-protection or to subjec t him to asso ciation with persons like ly to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent th em from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should kn ow of th e necessity and opportunity for exercising such co ntrol. Restatem ent (Secon d) of Tor ts §§ 314 A, 315 , 319-2 0 (196 5). -24- relationship between parties which could give rise to liability for the actions of a third party. In Lamb, we found that the Restatem ent (Secon d) of Tor ts was applicable to analysis of negligence liability for third party actions. Regardin g the Resta tement, w e observe d that: [s]ection 315 is a special app lication of the general rule set forth in § 314. Section 314 states that [t]he fact that the actor realizes or should realize that action on h is part is necessary for another s aid or protection does not of itself impose upon him a duty to take such action. In turn, § 315 articulates the general rule that: [t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person s conduct, or (b) a special relatio n exists between the actor and the other which gives to the other a right to protection. 303 Md. a t 242, 49 2 A.2d at 1300 . In reviewing our history of both citation and reference to § 315, we found that our decision in Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976), suggests that § 315, which reflects the common law of th is Sta te, ou tline s the appropr iate a nalytical framework for determining whether an actor has a du ty to contro l a third p erson. Lamb, 303 Md. at 245, 492 A.2d at 1302. We continued by examining in further detail the class of special relationships giving rise to a duty to control a third person s conduct based on the relationship b etween th e third person and the actor. We found such relat ions wer e des cribed in Restatem ent § § 316-19 , specific ally: [s]ection 316 prov ides that a pa rent has a du ty to control the conduct of his minor child; § 317 esta blishes a m aster s duty to control the conduct of his servant; § 318 sets forth the duty of a possessor of land or chattels to control the conduct of a licensee; and § 319 deals with the duty of those in charge of persons having dangerous propensities. Lamb, 303 Md. at 243, 492 A.2d at 1300-01; see also Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 M d. 135, 1 50, 642 A.2d 219, 226 (1994) ( [a]lthough section 315 of the Restatement states the general rule, section 319 addresses a particular exception to that general rule ). We expressly adopted as Maryland common law § 319, which provides: [o]ne who takes charge of a third person whom he knows or should know to be likely to cau se bodily -25- harm to others if no t controlled is under a d uty to exercise re asonable c are to control the third person to prevent him from doing such harm. Lamb, 303 Md. at 243, 492 A.2d at 1301. Delineating the boundaries of § 319, we stated that: [t]he operative words o f this section, such as takes charge and contro l, are obviously vague, and the Restatement makes no formal attempt to define them. T he commen t to § 319, howev er, indicates that the rule state d in that sectio n applies to two situations. First, § 319 applies to those situations where the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. Second, § 319 applies to those situations where the actor ha s charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or othe rwise k nows or shou ld know . Illustrations appended to § 319, which concern the negligent release of an infectious patient from a private hospital for contagious diseases and the escape of a homicidal maniac patient through th e negligen ce of gua rds emplo yed by a private sanitarium for the insane, provide fu rther guidance regarding the scope of § 319. Because there are degrees of being in charge and having control, these illustrations are obviously not by way of limitation. See McIntosh v. Milano, 168 N.J.Super. 466, 483 n. 11, 403 A.2d 500, 508-09 n. 11 (1979). These illustrations suggest, however, that § 319 has peculiar application to custodial situations. See Prosser and Keeton, supra, § 56 & n. 16, at 383 (indicating that the relationships discussed in § 319 are custodial by nature ). 303 Md. at 243-44, 492 A.2d at 1301 (emphasis added). Remsburg , 376 M d. at 590 -92, 83 1 A.2d at 31-3 2. See Patton, 381 Md. at 639-40, 851 A.2d at 573; Corinaldi v. Columbia Courtyard, Inc., 162 Md. App. 207, 221-20, 873 A.2d 483, 490 (2005). The appellant directs our attention to DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989), for the proposition -26- that the appellant was in the c ustody of the State whe n he was in the gro up home. In DeShaney, a civil rights action (under 42 U.S.C. § 1983), was brought by the mother of a child who had been beaten by his father, against social wo rkers wh o had rece ived com plaints that the child w as being abused by his father, but failed to rem ove him from his father s custody, and their em ployer, the DS S. The Su preme C ourt held th at, after receiving the complain t, the State ha d no con stitutional duty to protect the child from his father. 489 U.S. at 201, 109 S. Ct. at 1006, 103 L. Ed. 2d at 263. Noting that the harms [the child] suffered occurred not while he was in the State s c ustody, but w hile he wa s in the custo dy of his natural father, wh o was in no sense a state actor, DeShaney, 489 U.S. at 201, 109 S. Ct. at 1006, 103 L. Ed. 2d at 262, it explained: [i]n the substantive due process analysis, it is the State s affirmative act of restraining the individual s freedom to act on his own behalf through incarceration, institutionalization, or other similar restraint of personal liberty which is the deprivation of liberty triggering the protections of the Due Process Clause, not its failure to act to protect his lib erty interests against harms inflicted by other means. DeShaney, 489 U.S. at 200, 109 S. Ct. at 1006, 103 L. Ed. 2d at 2 62 (emp hasis adde d); see also Youngbe rg v. Romeo, 457 U.S. 307, 317, 102 S. Ct. 2452, 2459, 73 L.Ed.2d 28 (1982) (duty to provide certain services and care to institutionalized person; but, the State has considerab le discretion in d etermining the nature a nd scope of its respon sibilities ); Estelle v. Gamb le, 429 U .S. 97, 103, 97 S . Ct. 285, 29 0, 50 L. Ed . 2d 251, 25 9 (1976) (d uty to provid e med ical nee ds to inm ate). To be sure , DeShaney involved a factual situation similar to the case sub judice and -27- even more factually similar to Horridge. It was decided, however, in the context of constitutional due process. Although the Court mentioned the State s duty in that case in the context of neglig ence claim s, stating, [i] t may w ell be that, by volunta rily undertaking to protect [the child] against a danger it concededly played no part in cre ating, the State acquired a duty under state tort law to provide him with adequate protection against that danger[,] id. at 201-02, 109 S. Ct at 10 06, it did so only in dicta. The Cou rt also observed, expressly dec linin g to o pine on its validity: Had the S tate b y the affirmative exercise of its power removed [the child] from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Ap peals h ave he ld, by analogy to Estelle and Youngbe rg, that the State m ay be held liable under th e Due P rocess Cla use for fa iling to protect children in foster homes from mistreatment at the hands of their foster parents. See Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141-142 (CA2 19 81), after remand, 709 F .2d 782 , cert. denied sub nom, Catholic Home Bureau v. Doe, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 , 197-797 (CA11 1987) (en banc), cert. pending Ledbetter v. Taylor, No. 87 -521. We express no view on the validity of this analogy, however, as it is not before us in the present case. DeShaney, 489 U.S. at 201 n.9, 109 S. Ct. at 1006 n.9, 103 L. Ed. 2d at 263 n.9 (emph asis added). Therefore, the Court s holding is only tangentially relevant to the case at hand. As stated supra, the appellant failed to allege facts sufficient to establish that, under the facts and circumstances of this case, the State violated an affirmative duty of care, statutorily created by the Legislature, the benefits of which redounded to the appell ant. Add ition ally, we reiterate that, as discussed infra, the appellan t has not satisf actorily alleged -28- any facts to show that the State took an affirmative act on its own part that would create a common law special relationship from which a duty would arise. Generally unless th ere is a sp ecial rela tionship , [t]here is no duty to control the conduct of a third person as to prevent h im [or her] f rom caus ing physical ha rm to anothe r.... Restatement (Second) of Torts § 315 (19 65). There are two circ umstance s in which a special relatio nship givin g rise to a duty on the part of the State could have been alleged to exist in the case sub judice: (1) the State had control of Wratchford and knowledge of some pro pensity of his to do harm to others (§319) and (2) the State, having custody of the appellant and having placed him in foster care, owed the appellant a duty to exercise reasonab le care in protecting him from other persons under the State s co ntrol, as to whom it knew , or had reason to know, could, and likely would, harm him. § 319 (a party must know or have rea son to know that a third person is likely to cause harm to another); §320 (it is necessary for a party to exercise control over a third person to prevent that person from harming another inte ntionally and tha t the State had knowledge of the necessity to control such third persons). Any duty, if in fact one exists, is then a duty of reasonable care under the circum stances . Albeit in the contex t of a statutory du ty, the prerequisite knowle dge did exist in Horridge and was pled in the complaint in that case. There was, however, no sufficient factual allegation of such knowledge in the amended complaint in the instant case.9 9 The Public Justice Center, a non-profit civil rights and anti-poverty legal services organization, filed an Amicus Curiae brief in support of the appellant s position. It points (continued...) -29- In his reply brief, the appellant argues that he could not provide any additional factual spec ificity. He offe red two re asons: First, what the State knew about Wratchford is a fact solely within the S tate s control. [10] Second, the documents, if any, that would disclose what 9 (...continued) to several cases from foreign jurisdictions that it argues support the proposition that [c]ou rts have recognized that the special relationships between government entities and children under their custody in the child welfare system gives rise to a duty to protect. P.G. v. State, 4 P.3d 326 , 331-332 (Alaska 2 000); Ronald S. v. County of San Diego, 16 Cal. App . 4th 887, 895-899 (1993); Mark G. v. Sabol, 677 N.Y.S.2d 2 92, 301, 247 A .D.2d 15, 30-31 (19 98). These cases are distinguishable from the case sub judice. None of them addressed the situation where th e State place d a child with an ind ependen tly licensed grou p home, a s to whi ch th ere w ere n o alle gatio ns of licen sing impropr iety. The P.G. court found a special relationship between the State and prospective foster parents. 4 P.3d at 331-332. The court concluded that the State had a duty to inform the prospective foster pa rents of a foster ch ild s histo ry so th at the y could make an informed decision as to wheth er to adopt th e child. Id. The Ronald S. court held that a special relationship existed between the County and a foster child with respect to the child s foster care placement. 16 Cal. App. 4th at 895 . That relationship, arising from the ch ild s dependency, i.e., he was entirely in th e Cou nty s con trol, id., imposed a duty on the C ounty to investig ate the q ualifica tions of the pro posed foster p arents. Id. Finally, the Mark G. court only assumed, for argumen t s sake, that DeShaney, supra, signaled tha t a special relatio nship is created between the State and a child when the child is removed from his home and placed into foster c are. Mark G., 677 N.Y .S.2d at 300 , 247 A.D .2d at 21. Th e court did not further elaborate on this, it only found that wh ether a claim of a special relationship or a duty owed by the State existed was a q uestion for the j ury to dec ide. Id. at 301, 247 A.D.2d at 30. Under Maryland law, the existence of a duty is a matter of law to be determ ined by the co urt. Doe, 388 Md. at 414, 879 A.2d at 10 92; Dehn, 384 M d. at 619-62 0, 865 A .2d at 611; Patton, 381 Md. at 63 6, 851 A .2d at 570; Remsburg , 376 Md. at 581, 831 A.2d at 25; Bobo, 346 Md. at 716, 6 97 A.2 d at 137 6. 10 The appellant contends that the statutory scheme governin g child welfare services outlined in §§ 5-524 thro ugh 5-53 4 of the F amily Law Article and the pertinent provisions of COMAR establish procedures that envision that the State will have relevant information regarding a child in its custody or care. Relevant information with respect to out-of-home placemen ts and, in particu lar, group ho me placem ents, wou ld include, as pertinent to th is (continued...) -30- the State knew about Wratchford are confidential and, therefore, [the appellant] w as unable to ascer tain that in forma tion prio r to disco very. [11] The appella nt argu es that th e State h ad, or sh ould ha ve had , knowledge of Wratchford s alleged history of committing abuse, if there was any such history, by virtue of the documents it was required to provide the group home prior to Wratchford s admission 10 (...continued) case, information about any assaultive or abusive conduct in which Wratchford may have engaged. Specific ally, COM AR 01 .04.04.23 p rovides, in rele vant part, that a group home: (4) Shall, except for emergency placements, admit a child only after the licensee has received a t least: (a) A soc ial history or predis position rep ort; (b) An e ducation al his tory; (c) A health history that is not older than 6 months; ... (e) If required by federal or State law, any psychological, psychiatric, or develo pmen tal asses sment th at is not o lder than 12 mo nths; . . . . Moreover, pursuant to COMAR 07.02.11.17, local DSS caseworkers are required to have regular contact with children in the out-of-home placement program, COMAR 07.02.11.17A, and for children placed in gro up homes, a cas eworker shall have a face-to-face interview with the child within 1 wee k of pla cemen t, and subsequen tly at least on ce a mo nth . . . . COM AR 07.02.11 .17B(1). 11 Maryland Code (1973, 2006 Repl. Vol.), § 3-827 of the Courts and Judicial Proceedings Article, provides: All court records under [S ubtitle Eight. Ju venile Causes Children in Need o f Assistanc e] pertaining to a child shall be confidential and their conten ts may not be d ivulged , by subpo ena or o therwi se, except by order of the court on good cause shown. (Emphasis added); Section 3-8A-27 of the Co urts and Judic ial Proceed ings Article provides that a minor s police records are confidential; Maryland Code (1957, 2003 Repl. Vol.), Article 88A, § 6(a) provides: [I]t shall be unlawful for any person or persons to divulge o r make kn own in any manner any information concerning any applicant for or recipient of social services, child welfare services . . . directly or indirectly derived from the records, papers, files, investigations or communications of the State, county or city, or subdivisions or agencies thereof, or acquired in the course of the perfor manc e of of ficial du ties. -31- to the group home, i.e., his social history or predisposition report and any psychological or psychiatric reports, COMAR 01.04.04.23. In addition, it should have had the reports of the social workers who met with him as COMAR 07.02.11.17 required them to do. He also cites Whiteley v. Sc hoenlein, 183 Md. 590 , 596, 39 A.2d 69 2, 695 (1944), for the contention that [t]he rule requiring positiveness of pleading is relaxed so as to permit an allegation on information and belief wh ere the fact is not presumably within the knowledge of plaintiff but is within that of the defendants. 183 Md. at 596, 39 A.2d at 695 (citing Hendrickson v. Standard Oil Co., 126 M d. 577, 5 88, 95 A . 153, 15 8 (191 5)). Whiteley was not a negligence case, rather it was a contract cas e in which the dispute concerned a provision of that contract relating to the division of the profits due the parties to the business venture. 183 Md. at 596, 39 A.2d at 695. Specifically, as relevant here, the Court stated : As to the contention that the com plainant nowhere states the basis of his belief that the re was a su bstantial prof it and that this is a mere conclusion of the pleader, the bill does allege that the defendants have custody of all the records and have failed to make an accounting. The rule requiring positiveness of pleading is relaxed so as to perm it an allegation on information and belief where the fact is not presumably within the knowledge of the plaintiff but is w ithin tha t of the d efend ants. Id. It was in this re spect, and o nly in this respect, that the Court relaxed the requirement for positiveness of pleading - where there is an allegation of exclusive custody of records and the relief sought depends on what those records show. The Court relied on Hendrickson v. Standard Oil Co., 126 Md. 577, 95 A. 153 , supra. -32- That case also did not concern a negligence claim; the issue, nuisance, involved allegations related to the prospective installation of a large tank, for the storag e of inflam mable an d explosiv e oils, in imm ediate proximity to the pla intiff s h ouses. Hendrickson, 126 Md. at 588, 95 A. at 158. We stated that: This would undoubtedly be a nuisance against which the plaintiff would have a clear right to preventive relief. The allegation as to this branch of the case is not in the form of a spe cific charge, but states only the plaintiff s information and belief in regard to the purpose of the defendant to locate the storage tank in the position indicated. It is objected that this form of averment is not sufficiently definite; but it is to be observed that the bill was refe rring in this instance to the defendant s intention, and, as said in 16 Cyc. 230, the r ule requiring positiveness of pleading is relaxed so as to permit an allegation on information and belief where the fact is not pre sumably w ithin the knowledge of plaintiff, but is within that of def endant. Hendrickson, 126 M d. at 588 , 95 A. a t 158. These cases, and th e allegations th ey addressed , are distinguis hable from the allegations in the case sub judice. There is a real difference between the allegations required to plead an accounting and those necessary to plead negligence. The facts in the former situation are often exclusively within the defendant s knowledge and possession, including, most particularly, the thought process critical to the resolution o f the issue. Sim ilarly, generally, intention is different from a concrete fact that is discoverable by, and during, investig ation. Different situations and causes of action may require different, varying levels of factual specificity for pleading purposes. We stated in Read Drug and Chemical Co. v. Colwill Construction Co., that: -33- It is obvious that the nece ssary allegations o f fact suff icient to state a cause of action for negligence in a simple factual situation vary from those in mo re complex factual situations and a form of declaration useful in the former situation may not be sufficient as a guide in preparing a declaration for the more complex case. 250 Md. 40 6, 413, 243 A.2d 54 8, 553 (19 68). Discu ssing the ple ading stand ard in negligence actions, the Court quoted, with approval, from Joseph O. Ka iser, Pleading Negligence in Maryland Res Ipsa Loquitur as a Rule of Pleading, 11 Md. L. Rev. 102, 10304 (1950 ): Thus, a rather flexible standard is presented to the Maryland practitioner for his u se in statin g a cau se of ac tion for neglige nce. A survey of the Maryland statutory forms and the Maryland cases will demonstrate that where the plaintiff s right and the defenda nt s correspo nding du ty are simple and easily perceived, a simple factual statement of the defendant s act or omission in breach thereof, coupled with the general characterization of the defendant s act or om ission as neglige nt, will su ffice. O n the oth er hand , the less apparent the plaintiff s right and the defendant s duty, the more likely the pleader will be required to specify the acts o r omissions relied upon to constitute the negligent conduct. Otherwise stated, in simple situations involving an easily recognized breach of duty, a general averment of negligence following a simple statement of the defendant s act or omission will be regarded as an ultimate fact; while in more complex situations where the breach of duty is not rea dily apparent, such an averment will be regarded as a mere legal conclusion. (Em phasis a dded.) ( Footn ote om itted.) See Read Drug, 250 M d. at 413 -14, 24 3 A.2d at 553. As to the latter category of case - the more complex situation - the Court instructed: Except in cases involving such simple and specialized situations as the motor vehicle and carrier-p assenger c ases [respe ctively American Express Company v. Denowitch, 132 Md. 72, 103 A. 96 (1918) and Philadelphia, Baltimore & Washington R. R. Co. v. Allen, 102 Md. 110, 62 A. 24 5 (1905)], th is Court has consistently held that a declaration must, as stated by Judge Alvey, for the Court, in Gent v. C ole, 38 Md. 110, 113 (1873) (quoting in part from an -34- opinion by Mr. Justice Butler in Rex v. L ynne Regis , Doug. 159), have sufficient specificity in its allegations to provide facts * * *, for the purpose of informing the court, whose duty it is to declare the law arising upon these facts, and to app rise the opp osite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it. (Emphasis in original.) Read Drug, 250 Md. at 414, 243 A.2d a t 554. It offered its p rior case law as suppor t for its analysis: This principal of pleading has been applied in many types of cases. In the landmark case of State, use of Jeter v. Schwind Quarry Co., 97 Md. 696, 55 A. 366 (1903), a declaration was held to be insufficient on demurrer which alleged that the defendant operator of a stone quarry negligently directed the decedent of the plaintiff to extract a charge of blasting powder which had been placed in a hole drilled in a rock; that the plaintiff s decedent was not sufficiently skilled for this type of work, was ignorant of the danger involved and was not warned of the danger by the defendant; that in the execution of the work assigned to him, the plaintiff s decedent was killed due to the negligence of the defen dant. The trial court sustained a demurrer to the declaration and the judgment for the defendant for costs was affirmed. This Court held that the declaration w as insufficie nt because it failed to allege specifically enough in what w ay the defend ant violated a ny duty to the plaintiff s deceden t, that is, in what respect the place supplied by the defendant for the plaintiff s decedent to work was not safe; what was the particular danger which was created by the negligence of the def endant; an d how th e alleged ly unsafe condition was connecte d with and caused the accident. In Livingston v. Stewart & Co., Inc., 194 Md. 155, 69 A.2d 900 (1949), the d eclaration alleg ed that wh ile the plaintiff was a business invitee in the defendant s department store, a two-wheel bicycle fell on the plaintiff as a result of which the plaintiff was injured through the negligence of the defendant and witho ut any fault of th e plaintiff. In th e bill of particulars filed by the plaintiff, it was stated that the exact facts of the negligence of the defendant were particularly within the knowledge of the defendant which had sole contro l of the b icycle. This Court held that the low er court pro perly sustained the demurrer to the declaration because it contains only the argumentative conclusion that plaintiff s injuries were caused by defendant s negligence, but states no acts done or left undone by defendant wh ich constitute negligence or a negligent manner of doing anything. (194 Md. at 159, 69 A.2d at 901.) Judge Markell, for the Court, in Livingston quoted w ith -35- approval from Phelps v. Howa rd Coun ty, 117 Md. 175, 177, 82 A. 1058, 1059 [(1912)], that the gen eral characte rization of an act or omiss ion as neg ligent, or of a condition as unsafe is not usually a sufficient statement of the supposed ground of liability. (194 Md. at 15 9, 69 A.2d at 901 .) Read Drug, 250 Md. at 414-15, 243 A.2d at 554. The amended complaint does not address a situation where the plaintiff s right and the defendant s [corresponding] duty are simple and easily perceived , or involve an easily recognized breach of duty. It does not allege in what w ay the [State] vio lated any duty to the [appellant], Read Drug, 250 Md. at 415, 24 3 A. 2d at 554, citing Jeter, 97 Md. at 699, 55 A. at 367, or the acts done or left undone by the [State] which constitute negligence or a neglige nt man ner of d oing an ything. Livingston, 194 M d. at 159 , 69 A., 2 d at 901 . Acc ordingly, the appellant s averments, without more factual specificity as to th e relationship between the State and Wratchford, and thus its knowledge of his potential danger to a roommate, constitute simply legal conclusions. As we have seen, the appellant argues that the State s removal of the appellant from his mother s c are constitute d an aff irmative act, w hich thereby established a special relationship between the State and the appellant. We do not agree. Affirmative act, as used by the appellan t and as app lied in this con text, is not characteristic of the kind of conduct this Court has found necessary to establish a special relationship. We considered the nature of the conduct necessary to forge a special relation ship in Ashbu rn v. Ann e Arund el County, 306 Md. 617, 510 A.2d 1078 (1986). There, in the context of a police officer s interaction with the public, characterizing the key element as an -36- aff irma tive a ct, the C ourt state d, ge nera lly: A proper plain tiff, howe ver, is not w ithout recourse. If he alleges sufficient facts to show that the defendant policeman created a special relationship with him u pon wh ich he relied, he may maintain h is action in negligence. See Restatem ent (Secon d) of Tor ts § 315(b). T his special duty rule, as it has b een term ed by the courts, is nothing more than a modified application of the princ iple that althou gh gener ally there is no du ty in negligence terms to act for the benefit of any particular person, when one does indeed act for the benefit of another, he must act in a reas onable mann er. See Scott v. Watson, supra, 278 Md. at 170-71, 3 59 A.2d at 555; Penna R.R. Co. v. Yingling, 148 Md. 169 , 129 A. 36 (192 5). In order for a special relation ship between police officer and victim to be found, it must be shown that the local government or the police officer affirmative ly acted to protec t the specific victim or a specific group of individuals lik e the victim , thereby inducing the victim s specifi c relianc e upon the polic e protec tion. Ashburn, 306 M d. at 630-31 , 510 A.2d at 1085 (em phasis add ed) (footn ote omitted); Williams v. Mayor an d City Coun cil of Baltim ore, 359 Md. 101, 144, 753 A.2d 41, 64 (2000). In Ashburn, a police officer noticed an intoxicated man sitting behind the wheel of a car parked , with its e ngine le ft runn ing, outside of a 7-11 convenience store. Rather than arrest the man, as he obviou sly could have done, the officer told him to pull his vehicle to the side of the store a nd not to drive any more that night. Disregarding the officer s admonition, the man drove off after the officer left and, while doing so, hit a pedestrian, who, as a result of the collision, lost his leg. This Court held that a special relationship had not been established in that case. It reasoned that the victim had alleged no facts which show that [the police officer] affirmatively acted specifically for [the victim s] benefit. 306 Md. at 631-3 2, 510 A .2d at 10 85. -37- The Court applied the Ashburn standard in Muthu kumaran a v. Mon tgomery Co unty, 370 Md. 447, 805 A.2d 372.12 The issue in that case was: whether local government emergency telephone system employees (specifically operators, dispatchers, and managers) owe an individual tort duty to persons in need of their services, and, if so, under what circumstances the employees may be held liable for the negligent performance of that duty. Id. at 456, 805 A.2d at 377. Stated differently, the question was wh ether a special relationship existed between 9 -1-1 employees and victim callers. The Court concluded that a 911 em ployee gene rally owes no duty in tort for the negligent performance of his or her duties to an individ ual in need of emergency telephone services. Id. at 492, 805 A.2d at 398-99. It reasoned, absent a special relationship between a 911 employee and an individual in need of emergency services, an employee does not owe such an in dividual a p rivate duty in tort. Id. at 486, 805 A.2d at 395. After reviewing the special relationship jurisprudence of jurisdictions throughout the country, the Court reaffirmed its Ashburn holding: Although we acknowledge that a more fo rmulaic special relation ship test may facilitate gre ater predictab ility, our review o f the man y different special relationship re quiremen ts adopted by other jurisdictions reinforces our choice not to incorporate a mo re regimented appro ach into Maryland s special relationship test. We continue to believe that the intent of the special relationship doctrine is better addressed by our general standard outlined in Ashburn because it p reserves ou r ability to determine whether a special 12 Two cases w ere dec ided an d repor ted toge ther in th at case, Fried v. Archer, No. 84, September Term , 2001, a nd, Mu thuk uma rana v. M ontg ome ry County No. 83, September Term , 2001. -38- relationship exists on a case-by-case basis. Muthukumarana, 370 Md. a t 495, 805 A.2d at 401 (citing Williams v . Mayor and City Counc il of Baltimore, 359 Md. 101, 150, 753 A.2d 41, 67-68 (2000)). Applying Ashburn to 9-1-1 employees, the Court stated: [I]n order for a special relationship between a 911 employee and a person in need of assistance to exist, it must be shown that the 911 employee affirmative ly acted to protect or assist the specific indiv idual, or a spe cific group of individuals like the individual, in need of assistance, thereby often inducing the specific reliance o f the individual on the em ployee[,] Muthukumarana, 370 M d. at 496, 80 5 A.2d a t 401 (emp hasis adde d), and that: In our view, acting to p rotect or assist a s pecific group of indiv iduals, sufficient to create a special relationship, involves more than general actions taken to serve mem bers of the public at large in need of emergency telephone services. To find otherwise, by equating a duty to act with the provision of a general public service, might jeopardize the availability of those services in the first insta nce. Muthukumarana, 370 M d. at 499 -500, 8 05 A.2 d at 403 . This reasoning is applicable to the case sub judice. As in Muthukumarana , in this case, an affirmative act sufficient to create a special relationship involves more than general actions taken to serve members of the public at large. Id. at 499, 805 A.2d at 403. Removing the appellant from the care of his mother and placing him in the foster care program was a statutorily mandated and required act of th e State. It was affirmative in the respect that the State took action to place him in the custody of the child welfare program, but it was not an affirmative act sufficient to create a special relationship g iving rise to a duty out of which a claim based on negligence can result. Without specifically applying -39- the public duty doctrine to the State s actions in this instance, we hold that an affirmative act sufficient to create a spe cial relationship must consist of so mething m ore (as in Horridge, albeit statutorily mand ated) tha n simp ly placing a child in foster c are. See Williams, 359 Md. at 140, 151 , 753 A.2d at 62, 68 (Where a police of ficer told ind ividuals to go into a house an d that he w ould rema in, the office r may have h ad a duty to tell them he was leaving. [A]f firmativ e action s and sp ecific p romise s of pro tection . . . , if in fact they occurr ed, are s ufficie nt to hav e create d a spec ial relatio nship . . . . ). Child welfare services pursuant to statute are services to the general public. The State, by creating a program of such services, available to the general public, does not c reate a special relationship to any particul ar indiv idual. Generally, without factual allegations of some other affirmative act beyond that required under the general program, no common law special relationship to any specific in dividual norm ally will result. As w e said in Muthukumarana, [t]o find otherwise, by equating a duty to act with the provision of a general public service, might jeopardize the availability of those services in the first instanc e. 370 M d. at 499 -500, 8 05 A.2 d at 403 . This decision is consistent with our view of narrowly construing the special relationship exception. Patton, 381 Md. at 642, 851 A.2d at 574. The appellant d id not allege in his amended complaint that the State took any action other than what was mandated statutorily. Therefore, we conclude that there was no affirmative act on the part of the State that created a common law special relationship. -40- Furthermore, in the case sub judice, the appellant did not allege with sufficient sp ecificity facts necessary to es tablish that the S tate had a du ty to the appellan t in this instance. The trial cou rt correc tly granted the State s motio n to dism iss for f ailure to state a cla im. IV. The purpose of child w elfare services is to place children in a p rotective setting. It is for this reason that there are significant statutory guidelines that dictate ho w the State is to operate and m onitor g roup h ome c are pro grams . The appellant did not allege that the State failed adequately to license or monitor Finding Direction, Inc., the gro up hom e in question, nor d id he alleg e tha t the g roup hom e wa s, or w as be ing, o pera ted im prop erly. Moreover, the appellan t did not allege knowledge by the State of the abuser s history of abuse or prop ensity for that kind of con duct. Absent a sufficient factual allegation that the State had knowledge, or reason to know, that Wratchford had some propensity for abuse as well as knowledge that he would be placed in close proximity to the appe llant, a likely target of those propensities, there is no duty giving rise to a cause of action for negligence. The allegations in the ame nded com plaint were factually insuff icient to plead a duty on the part of the S tate. The m otion to dism iss was pro perly granted b y the trial court. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY THE APPELLANT. -41-

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