Ashburn v. Anne Arundel County
| Decision Date | 01 September 1985 |
| Docket Number | No. 10,10 |
| Parties | William F. ASHBURN II v. ANNE ARUNDEL COUNTY, Maryland et al. , |
| Court | Maryland Court of Appeals |
Leonard A. Orman, Baltimore, for appellant.
Karen A. Murphy Jensen, Asst. County Sol. (Stephen R. Beard, County Sol. and Robert C. Wilcox, Deputy County Sol., on brief), Annapolis, for appellee.
Before SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE and JAMES C. MORTON, Jr., (Retired, Specially Assigned), JJ.
In this case, we must determine whether a police officer may be held liable to a person injured by a drunk driver where the officer detected the driver's condition before the accident but failed to stop and detain him.
The parties have agreed to the following facts. On February 18, 1983, Officer Dennis Freeberger of the Anne Arundel County Police Department found John J. Millham in a pickup truck on the parking lot of a 7-11 store. Millham was intoxicated and sitting behind the wheel of the truck with its engine running and lights on. It is agreed that Millham was driving the vehicle and that, under Maryland law, Millham could have been charged with drunk driving.
Apparently noticing Millham's condition, Officer Freeberger told Millham to pull his truck to the side of the lot and to discontinue driving that evening. As soon as Officer Freeberger left the scene, however, Millham drove the truck away from the lot, proceeded a short distance and collided with appellant, John F. Ashburn, II, a pedestrian. Ashburn, who lost his left leg and suffered other injuries, brought suit against Millham, Officer Freeberger, Anne Arundel County and the Police Department in the Circuit Court for Anne Arundel County. He based his claim against the latter three on the theory that the police had a mandatory duty to detain all suspected drunk drivers under Md. Code (1977, 1984 Repl.Vol.), § 16-205.1(b)(2) of the Transportation Article. The circuit court granted appellees' Motion to Dismiss and, in an opinion and order dated October 19, 1984, held that Anne Arundel County Police Department was not a separate legal entity, that Officer Freeberger and Anne Arundel County were immune from civil suit, and that Officer Freeberger owed no special duty to appellant. Appellant filed a timely appeal. We granted certiorari on our own motion before consideration by the intermediate appellate court.
Appellant argues that Officer Freeberger is not immune from suit under the doctrine of public official immunity because Freeberger negligently failed to perform the mandatory (as opposed to discretionary) act of detaining a drunken driver. Appellant also argues that, under the circumstances of this case, a special duty was imposed upon Officer Freeberger to protect appellant. Appellees respond that the doctrine of public official immunity precludes suit by appellant against Officer Freeberger. Furthermore, appellees argue, even if public official immunity is unavailable to Freeberger, the officer owed no special duty to Ashburn to protect him from injuries sustained as a result of the accident caused by defendant Millham. Appellees therefore maintain that the cause of action in negligence must fail.
It was generally held in American courts prior to the mid-part of this century that all public employees were liable for their own torts. See Prosser and Keeton on Torts § 132 (W. Keeton 5th ed. 1984); 63A Am.Jur.2d Public Officers and Employees § 358 (1984). This Court recognized before the turn of the century, however, the importance of shielding a public officer from liability where the officer's alleged negligence arose from the performance of his job in a manner which involved judgment and discretion. Cocking v. Wade, 87 Md. 529, 40 A. 104 (1898).
Cocking arose from a suit against the bond of a sheriff of Charles County for the sheriff's alleged negligence in guarding a prisoner. In the face of danger to the prisoner from mob violence, the sheriff moved the prisoner first to a jail in Baltimore City and then again to a dilapidated building which had been used as a jail in Charles County. While the prisoner was jailed in the Charles County building, a change of venue was granted, which increased unrest among the citizens of Charles County. Although the prisoner and his counsel repeatedly asked the sheriff to move the prisoner to a safer jail, the sheriff refused. Shortly thereafter, the prisoner was taken from the jail by a group of unknown men and hanged. This Court held that no action would lie against the sheriff by the children of the prisoner. The Court explained that the manner in which a sheriff carries forth his job function with regard to a prisoner:
may often be a matter of great difficulty, and one calling for the exercise of much judgment and high degree of courage. He will be required to take careful account of all the circumstances that surround him, estimate in cases of outside attack the forces he must encounter, and compare them with his means of defense, and after due deliberation, determine what course is best for him to pursue. If he does this honestly, with a full purpose to perform his whole duty, even though he make a mistake whereby a prisoner is injured, it would be monstrous to hold him civilly liable for damages to such prisoner.
Id. at 541, 40 A. at 106 (citations omitted, emphasis supplied).
Since Cocking, the rule which we have applied to tort claims against a governmental representative is that the actor will be relieved of liability for his non-malicious acts where: (1) he "is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties." James v. Prince George's County, 288 Md. 315, 323, 418 A.2d 1173, 1178 (1980) (emphasis in original). See also Bradshaw v. Prince George's County, 284 Md. 294, 303, 396 A.2d 255, 261 (1970), overruled in part on other grounds in James, supra; Robinson v. Bd. of County Comm'rs, 262 Md. 342, 346-47, 278 A.2d 71, 74 (1971); Duncan v. Koustenis, 260 Md. 98, 104, 271 A.2d 547, 550 (1970); Clark v. Ferling, 220 Md. 109, 113-14, 151 A.2d 137, 139 (1959).
We now turn to an analysis of the case sub judice. Clearly, Officer Freeberger is a public official when acting within the scope of his law enforcement function. See Bradshaw, supra, 284 Md. at 302, 396 A.2d at 261; Robinson, supra, 262 Md. at 347, 278 A.2d at 74. The question we must resolve, then, is whether Officer Freeberger was acting in a discretionary capacity when he encountered the drunk driver.
In addressing the difference between discretionary and ministerial actions, our predecessors noted in Schneider v. Hawkins, 179 Md. 21, 25, 16 A.2d 861, 864 (1940):
The term "discretion" denotes freedom to act according to one's judgment in the absence of a hard and fast rule. When applied to public officials, "discretion" is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience, and uncontrolled by the judgment or conscience of others.
Almost any action, however, may involve the use of discretion. Thus, we noted in James, supra, 288 Md. at 327, 418 A.2d at 1180:
When attempting to classify the particular actions of a public official, a court should be careful not to let the mere fact that decisions are made in performing the questioned task be determinative of whether liability attaches to the conduct, for "[i]n a strict sense, every action of a government employee, except perhaps a conditioned reflex action, involves the use of some degree of discretion." Swanson v. United States, 229 F.Supp. 217, 219-20 (N.D.Cal.1964). Or as has been otherwise expressed: "it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail." Johnson v. State, 69 Cal.2d 782, 447 P.2d 352, 357, 73 Cal.Rptr. 240 (1968) (en banc). Thus, an act falls within the discretionary function of a public official if the decision which involves an exercise of his personal judgment also includes, to more than a minor degree, the manner in which the police power of the State should be utilized. [Emphasis supplied.]
The James Court went on to state that in the case before it, the driving of an emergency vehicle involved only to a "minimal degree, if at all, the exercise of discretion with regard to the State's sovereignty." 288 Md. at 327-28, 418 A.2d at 1180. Thus, the Court held that the operation of such an emergency vehicle "is not ordinarily a discretionary act for which immunity will shield the driver from liability for negligence." Id. at 328, 418 A.2d at 1180-81. The driving of an emergency vehicle, as in James, however, is different from making a decision as to whether a citizen shall be apprehended. When a police officer performs this function, he is acting in a discretionary capacity. Robinson v. Bd. of County Comm'rs, supra, 262 Md. at 347, 278 A.2d at 74.
Appellant argues, nevertheless, that Officer Freeberger was not acting in a discretionary capacity when he encountered the drunk driver because, appellant contends, Freeberger had a mandatory (and thus purely ministerial) duty to detain the drunk driver in accordance with § 16.205.1(b)(2) of the Transportation Article, which reads:
Except as provided in subsection (c) of this section, if a police officer stops or detains any individual who the police officer has...
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