Artis v. Cyphers

• Decision Date: 01 September 1993
• Docket Number: No. 1615,1615
• Citation: 100 Md.App. 633,642 A.2d 298
• Parties: James W. ARTIS, Jr. v. Bonnie Lee CYPHERS, Individually, etc. ,
• Court: Court of Special Appeals of Maryland

Page 633

100 Md.App. 633

642 A.2d 298

James W. ARTIS, Jr. v. Bonnie Lee CYPHERS, Individually, etc.

No. 1615, Sept. Term, 1993.

Court of Special Appeals of Maryland.

June 8, 1994.

William R. Phelan, Jr., Sr. Sol. (Otho M. Thompson, Deputy City Sol. and Frank C. Derr, Associate Sol., on the brief), Baltimore, for appellant.

Kathleen Howard Meredith (David J. Wildberger and Semmes, Bowen & Semmes, on the brief), Baltimore, for appellee.

Argued before WILNER, C.J., CATHELL, J., and JOHN F. McAULIFFE, Judge of the Court of Appeals (retired), Specially Assigned.

WILNER, Chief Judge.

This case arises from the alleged negligence of two ambulance crews in their emergency treatment of James R. Cyphers. On June 22, 1989, Mr. Cyphers was driving along Northern Parkway in Baltimore City when he suffered an asthma attack. He was able to enlist the temporary assistance of a passing motorist who, after driving a few blocks, spotted a private ambulance owned by Metropolitan Ambulance Service, Inc. The private ambulance crew rendered further assistance but, at some point, summoned a City ambulance. The City Medic Unit, operated by James W. Artis, Jr., appellant, and Steven Patrick, arrived at 3:09 p.m.

Because of his certification as a cardiac rescue technician, Artis took charge of Cyphers's treatment. There is some dispute as to Cyphers's precise condition upon Artis's arrival--even as to whether he was conscious or unconscious--and also as to exactly what Artis did to assist him. At some point after his removal to the City ambulance, Mr. Cyphers went into cardiopulmonary arrest. There is a dispute whether, at that time, Artis inserted an esophageal airway; he claims that he did, but other evidence suggests that he did not. Although they were then only a mile or two from Good Samaritan Hospital--a five minute trip--Artis continued to work with Cyphers at the scene, establishing radio contact with the hospital at 3:33 p.m. He and Patrick finally transported Cyphers to the hospital at 3:50 p.m., by which time Mr. Cyphers was in full cardiac arrest, had no pulse, and could not be resuscitated. He was formally pronounced dead at 4:56 p.m Cyphers's widow, for herself and her minor children and as personal representative of her husband's estate, filed a claim with the Health Claims Arbitration Office and also a wrongful death and survivor's action complaint in the Circuit Court for Baltimore City. Both actions named as defendants Metropolitan Ambulance Service, Inc., the crew operating Metropolitan's ambulance, the City, and Artis and Patrick. When the health claims were dismissed for want of jurisdiction, Ms. Cyphers filed an action to nullify that award, and the two actions, which rested on the same facts and sought essentially the same relief, were consolidated in the circuit court.

All defendants, it appears, moved for summary judgment. The motion filed on behalf of Metropolitan and its employees was denied, and, as of the date this appeal was noted, the case against them remained alive in the circuit court. Patrick's motion for summary judgment was granted, but the motion of Artis, which included the defenses of public official and good samaritan immunity, was denied. This appeal, by Artis, challenges only the court's ruling that he did not possess either public official or good samaritan immunity. Ms. Cyphers and her children have moved to dismiss the appeal as premature. We shall grant that motion.

Discussion

It is undisputed that there is not yet a final judgment in the circuit court. Nor is there any claim by appellant that the order denying his motion is immediately appealable under Md. Code Cts. & Jud.Proc. art., § 12-303. The sole basis for the appeal is that the denial of Artis's claim of immunity is appealable under the collateral order doctrine.

Before discussing the elements of that doctrine, it would be well, we think, to consider the nature of the immunity asserted by Mr. Artis. As we indicated, there are two independent kinds of immunity claimed--public official immunity and "good samaritan" immunity.

The nature of public official immunity, under Maryland common law, was explained in James v. Prince George's County, 288 Md. 315, 418 A.2d 1173 (1980). At 323-24, 418 A.2d 1173, the Court stated:

"Before a governmental representative in this State is relieved of liability for his negligent acts, it must be determined that the following independent factors simultaneously exist: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties [citations omitted]. Once it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual is free from liability [citations omitted]. The rationale underlying this grant of immunity 'is that a public purpose is served by protecting officials when they act in an exercise of their discretion.' "

Confirming principles enunciated in Duncan v. Koustenis, 260 Md. 98, 271 A.2d 547 (1970), the James Court recounted that there were four "principal guidelines" to be used in determining whether a public employee was a "public official" entitled to this immunity: whether the position was created by law and involves continuing and not occasional duties; whether the holder performs an important public duty; whether the position calls for the exercise of some portion of the sovereign power of the State; and whether the position has a defined term for which a commission is issued and a bond and an oath are required.

The Court also noted that these four guidelines "are not conclusive, and the emphasis which may be placed on each varies depending upon the circumstances present in each case." Id., 288 Md. at 324, 418 A.2d 1173. It reminded us as well that there were "at least two well-recognized exceptions to the requirement that the above four factors be present," namely, "[A]n individual [who] fails to meet most of the above tests, and yet is nevertheless considered to be a public official, [is one] who exercise[s] 'a large portion of the sovereign power of government' ... [as well as one] who can be called on to exercise police powers as [a] conservator of the peace.' " Id. at 324-25, 418 A.2d 1173.

The standard for determining whether the conduct of the actor is discretionary, as opposed to ministerial, was set forth by the James Court at 327, 418 A.2d 1173: "[A]n 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." In this regard, the Court compared the driving of a fire truck, which involves some discretion but which the Court held was essentially ministerial, with the decision of a fire chief to destroy a "specific non-burning building in order to contain a fire in another nearby building," which the Court regarded as clearly discretionary.

These, then, are the kinds of rulings that must be made in determining whether a public employee is entitled to public official immunity. See also Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986); Clea v. City of Baltimore, 312 Md. 662, 541 A.2d 1303 (1988); Abrams v. City of Rockville, 88 Md.App. 588, 596 A.2d 116 (1991).

The good samaritan immunity claimed by Artis is found in Md. Code Cts. & Jud.Proc. art., §§ 5-309 and 5-309.1. Section 5-309(a) provides that a person described in subsection (b) is not civilly liable for any act or omission in giving any assistance or medical care if (1) the act or omission is not one of gross negligence, (2) the assistance is provided without compensation, and (3) the assistance is provided at the scene of an emergency, in transit to a medical facility, or through communications with personnel providing emergency assistance. Subsection (b) states four categories of persons, including members of a municipal rescue squad, as being entitled to this protection, provided that they possess at least one of three enumerated qualifications.

Section 5-309.1 affords rescue company personnel immunity from civil liability for any act or omission in the course of performing their duties, other than "any willful or grossly negligent act" and other than with respect to actions for the negligent operation of a motor vehicle for which insurance coverage exists.

Entitlement to the qualified immunity afforded by these sections obviously requires a finding that the defendant satisfies the conditions stated in the statutes, not the least of which is a conclusion that he falls within the enumerated categories of persons protected and that his alleged negligence does not amount to gross negligence.

The seminal case in Maryland on the immediate appealability of an order rejecting an immunity defense is State v. Hogg, 311 Md. 446, 535 A.2d 923 (1988). In that case, which arose from the savings and loan debacle that struck the State in the mid-1980's, the Maryland Deposit Insurance Fund Corporation (MDIF), a State agency and successor by statutory merger with the former Maryland Savings-Share Insurance Corporation (MSSIC), sued certain former officers and directors of MSSIC to recover damages for breach of fiduciary duties owed to MSSIC. The defendants filed a counter-claim against MDIF, the State, and the State Division of Savings and Loan Associations, alleging that the harm claimed by MDIF resulted, at least in part, from the negligence of that Division. The counterclaim sought, alternatively, contribution and indemnification.

The State counterdefendants moved to dismiss the counterclaim on the ground of sovereign...