Austin v. City of Baltimore

Decision Date13 September 1979
Docket NumberNo. 132,132
Citation405 A.2d 255,286 Md. 51
PartiesMartha AUSTIN v. Mayor and CITY Council OF BALTIMORE.
CourtMaryland Court of Appeals

Paul D. Bekman and William H. Engelman, Baltimore (Harriet E. Cooperman and Kaplan, Heyman, Greenberg, Engelman & Belgrade, P. A., Baltimore, on the brief), for appellant.

Maryland Trial Lawyers' Ass'n, Inc., Leo A. Hughes, Jr. and David E. Furrer, Baltimore, on amicus curiae brief.

William R. Pheland, Jr., Asst. City Sol. (Benjamin L. Brown, City Sol., William Hughes, Assoc. City Sol. and Otho M. Thompson, Chief Sol., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

ORTH, Judge.

" The doctrine of sovereign immunity from suit, rooted in the ancient common law, is firmly embedded in the law of Maryland." 1 Katz v. Wash. Suburban Sanitary Com'n, 284 Md. 503, 507, 397 A.2d 1027 (, 1030) (1979). The doctrine today is, perhaps, more accurately characterized as "governmental immunity," for, by judicial decision, it is not only applicable to the State itself, but also applies generally to a county of the State and to the State's municipal political subdivisions and local agencies, unless the General Assembly either directly or by necessary implication has waived the immunity. Godwin v. County Comm'rs, 256 Md. 326, 334, 260 A.2d 295 (1970). Unlike the total immunity from tort liability which the State and its agencies possess, the immunity of counties, municipalities and local agencies is limited to tortious conduct which occurred in the exercise of a "governmental" rather than a "proprietary" function. 2 Katz, 284 Md. at 508, n. 3 (, 379 A.2d at 1010, n. 3); O & B, Inc. v. Md.-Nat'l Cap. P. & P., 279 Md. 459, 462, 369 A.2d 553 (1977) and cases therein cited. That is

a municipality or county (or local agency) is liable for its torts if it acts in a private or proprietary capacity, while it is immune if acting in a governmental capacity. To the extent that a (municipality,) county (or local agency) is liable in tort actions, it is also responsible under the doctrine of Respondeat superior for the tortious conduct of its employees which occurs in the scope of their employment. However, the nature of (the) liability under this doctrine is derivative so that nonliability, immunity, or release of the employee precludes recovery from the principal-(employer). (Bradshaw v. Prince George's County, 284 Md. 294, 300, 396 A.2d 255, 259 (1979).)

This case provides occasion to mount yet another attack on the doctrine as applied in this State. Martha Austin, as mother and next friend of Camille Austin, deceased, and as personal representative of the estate of her daughter, instituted an Ex delicto action in the Superior Court of Baltimore City against the Mayor and City Council of Baltimore. A jury rendered verdicts in her favor as mother and next friend (1st count) in the amount of $1,435.10, and as personal representative (2nd count) in the amount of $150,000. See note 4 Infra. Upon direct appeal by the City, the Court of Special Appeals reversed the judgments. City of Baltimore v. Austin, 40 Md.App. 557, 392 A.2d 1140 (1978). We granted the mother's petition for the issuance of a writ of certiorari.

Mrs. Austin requests that we "judicially abrogate the doctrine of municipal immunity from tort liability." We decline to do so.

If such doctrine is to remain in effect, however, she would have us establish a new standard for determining whether a municipality, when committing a tort, was exercising a governmental function or a proprietary function. We are not persuaded to alter the existing law in this respect.

She then claims that even under the present governmental-proprietary test, the Court of Special Appeals improperly concluded that in the circumstances here the City was exercising a governmental function. Therefore, she urges, the intermediate appellate court was wrong in holding that the trial court erred in finding that the function exercised by the City was proprietary and in refusing to grant the City's motion raising a preliminary objection based upon sovereign immunity. Austin, 40 Md.App. at 572, 392 A.2d 1140.

I

We set out our position regarding sovereign immunity in Board v. John K. Ruff, Inc., 278 Md. 580, 366 A.2d 360 (1976):

Once venerated, recently vilified, and presently substantially limited, the doctrine of sovereign immunity has been long recognized by this Court. We have applied the doctrine for over a century, and a compendium of our discussions regarding it, from State v. B. & O. R. R. Co., 34 Md. 344 (1871), Aff'd, 21 Wall. (88 U.S.) 456, 22 L.Ed. 678 (1875) to Calvert Associates v. Department, 277 Md. 372, 357 A.2d 839 (1976), was set out in American Structures v. City of Balto., 278 Md. 356, 359, 364 A.2d 55, 56 (1976) . . . .

The frequent and increasingly vigorous attacks upon the doctrine have been no more persistent than our refusal to abrogate or modify it by judicial fiat. We have consistently adhered to the view that ". . . it is desirable and in the public interest that any change in the doctrine of sovereign immunity should come from the legislative branch of the State Government rather than from the judicial branch inasmuch as there are fiscal considerations, administrative difficulties and other problems in balancing the rights of the State and its agencies with new possible rights of the individual citizens, which can far better be considered and resolved by the legislative branch than by the judiciary of the State." Jekofsky v. State Roads Comm'n, 264 Md. 471, 474, 287 A.2d 40, 42 (1972). (278 Md. at 584, 366 A.2d at 362.)

The General Assembly is certainly aware of the reasons which have been advanced for the abrogation of the doctrine and of its alteration, modification or abolishment in many other states, but it has permitted its tenets with respect to municipal tort liability to stand and has chosen not to act in the face of repeated reminders of its role in the matter in the opinions of this Court. See, for example, State v. Baltimore County, 218 Md. 271, 273, 146 A.2d 28 (1958); Weisner v. Bd. of Education, 237 Md. 391, 395, 206 A.2d 560 (1965); Godwin v. County Comm'rs, 256 Md. at 333, 260 A.2d 295; Duncan v. Koustenis, 260 Md. 98, 104, 271 A.2d 547 (1970); Robinson v. Bd. of County Comm'rs, 262 Md. 342, 345, 278 A.2d 71 (1971); Jekofsky v. State Roads Comm'n, 264 Md. 471, 474, 287 A.2d 40 (1972); Quecedo v. Montgomery County, 264 Md. 590, 595, 287 A.2d 257 (1972); Spriggs v. Levitt & Sons, Inc., 267 Md. 679, 685, 298 A.2d 442 (1973); Bradshaw v. Prince George's County, 284 Md. at 300, 396 A.2d 255. We declared our view this way in Robinson :

Robinson, con brio, importunes us to renounce those tenets "deeply ingrained in the law of Maryland," to enlist in the crusade against sovereign immunity and to join the ranks of those courts already marching under the pennons of the law professors. We shall not do so because we have said quite often that this is a province of the legislative bodies we ought not to invade. (262 Md. at 345, 278 A.2d at 73 (footnotes omitted).)

And in Bradshaw we pointed out that

(w)e have consistently refused to "enlist in the crusade against sovereign immunity and to join the ranks of those courts" which have judicially abrogated the doctrine. . . . We have stated that Any waiver of immunity must emanate from the legislature. (284 Md. at 300, 396 A.2d at 259 (citations omitted; emphasis added).)

It is manifest that our position, long firmly established, that if there is to be further change in the doctrine the legislature should make it, encompasses not only the ancient common law concept but also the engrafting thereon by judicial opinion the aspect of municipal tort liability. 3

At the hub of our persistent refusal to abrogate by judicial decision the doctrine of sovereign immunity followed in this State, even as limited with respect to tort liability of municipalities, counties and local agencies, is our desire to preserve the consistency and stability in this Court's rulings which are necessary for our citizens to know their respective rights and obligations. Herring v. Christensen, 252 Md. 240, 242, 249 A.2d 718 (1969). We are not insensitive to the problems sometimes presented by individual cases. We said long ago in Demuth v. Old Town Bank, 85 Md. 315, 37 A. 266 (1897): "It is often difficult to resist the influence which a palpable hardship is calculated to exert; but," we added, "a rigid adherence to fundamental principles at all times, and a stern insensibility to the results which an unvarying enforcement of those principles may occasionally entail, are the surest, if not the only, means by which stability and certainty in the administration of the law may be secured." Id. at 320, 37 A. at 266. We declared then:

It is for the Legislature, by appropriate enactments, and not for the Courts, by metaphysical refinements, to provide a remedy against the happening of hardships which may result from the consistent application of established legal principles. (Id.)

We observed in Geier v. Merc.-Safe Dep. & Tr. Co., 273 Md. 102, 328 A.2d 311 (1974), rehearing denied (1975), that Stare decisis is usually the wise policy, particularly "in areas where corrective action can be taken prospectively by the legislature . . . ." Id. at 124, 328 A.2d at 323. We have noted that "(t)he doctrine of Stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life." White v. King, 244 Md. 348, 354, 223 A.2d 763, 767 (1966). We cannot say, however, that the doctrine of sovereign or governmental immunity "has become unsound in the circumstances of modern life." There are two sides to the question. "(E)ven though in particular instances serious loss may be thereby inflicted on some individuals," Demuth, 85 Md. at 320, ...

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