Baltimore v. Hart

• Decision Date: 02 February 2006
• Docket Number: No. 403, September Term, 2005.,403, September Term, 2005.
• Citation: 891 A.2d 1134,167 Md. App. 106
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. Michael Lee HART.
• Court: Court of Special Appeals of Maryland

891 A.2d 1134

167 Md. App. 106

MAYOR AND CITY COUNCIL OF BALTIMORE v. Michael Lee HART.

No. 403, September Term, 2005.

Court of Special Appeals of Maryland.

February 2, 2006.

Darrell Chambers (Ralph S. Tyler, City Solicitor on the brief), Baltimore, for Appellant.

Irwin E. Weiss (Morris E. Balser on the brief), Baltimore, for Appellee.

Panel: MURPHY, C.J., DAVIS and BARBERA, JJ.

DAVIS, Judge.

On August 20, 2003, Michael Lee Hart, appellee, filed a complaint in the Circuit Court for Baltimore City against the Mayor and City Council of Baltimore, appellant, and Allstate Insurance Company¹ for injuries suffered as a result of an accident on February 16, 2002, involving a Baltimore City police cruiser. On January 14, 2005, appellant filed a motion in limine to prevent appellee from introducing Baltimore Police Department General Order No. 11-90 (General Order 11-90). On March 2, 2005, following a hearing, the court denied appellant's motion.

The case proceeded to trial on March 30, 2005 (Themelis, J., presiding), where appellee was permitted to introduce evidence of General Order 11-90, over appellant's objection. On March 31, 2005, at the conclusion of the presentation of the evidence, the trial court included an instruction regarding General Order 11-90. The jury returned a verdict in favor of appellee, awarding damages in the amount of $46,894.05. The portion of the judgment entered against appellant is $20,000, representing the maximum recovery possible. The remainder of the judgment, $26,894.05 was entered against Allstate Insurance Company. Appellant appeals presenting two questions for our review.

1. Did the lower court err when instructing the jury by including an instruction based on Baltimore Police Department General Order 11-90?

2. Did the lower court err in denying [appellant's] motion in limine to preclude [appellee] from introducing evidence of Baltimore Police Department General Order 11-90?

FACTUAL BACKGROUND

On February 16, 2002, appellee and Officer Mark V. Greff, a Baltimore City Police Officer, were involved in a motor vehicle collision at the intersection of Madison and Wolf Streets in Baltimore City. The intersection of Madison and Wolf Streets is controlled by a traffic signal. Appellee testified that, as he was headed westbound on Madison Street, he stopped for a traffic light at Madison Street and Washington Avenue; thereafter, appellee proceeded on Madison Street to the intersection of Madison and Wolf. Appellee stated that, as he approached the light at the intersection of Madison and Wolf Streets, it turned green for westbound vehicles. He proceeded through the intersection and, at that time, his van was struck by the police cruiser, driven by Officer Greff. Appellee's testimony was that he never heard a police siren. He also did not see any police lights prior to entering the intersection.

Three witnesses, other than appellee and Officer Greff, testified at the hearing. Gregory Ware was in a vehicle on Wolf Street, approximately a city block away from the accident, traveling in the same direction as the officer when he witnessed the accident. Ware testified that Officer Greff had the police lights on as he approached the intersection, but he only heard the siren intermittently, describing the sound as "the little boop, boop, boop." Ware's signed statement from the morning of the accident indicates that Officer Greff's lights and siren were activated. Ware testified that his statement indicating that Officer Greff's siren was activated was incorrect. Ware then refused to authenticate the statement. He also stated that Officer Greff's brake lights were activated, but he did not see the Officer come to a complete stop at the intersection. Ware recalled that the traffic signal controlling the direction of the Officer was red.

At the time of the accident, Jerry Perkins was operating a vehicle directly behind appellee's vehicle on Madison Street. He confirmed that, as he and appellee approached the intersection, the traffic signal turned green. Perkins was driving with his windows slightly open. His testimony, consistent with that of other witnesses, was that the Officer's cruiser entered the intersection and struck appellee's van. Perkins did not recall seeing the police vehicle emergency lights flashing or hearing the siren prior to the accident; he testified, however, that he noticed the police lights were on after the accident and he could hear a faint siren. He was not able to state, with certainty, whether the lights were turned on prior to or following the accident.

Officer Charles Reickel, one of the officers assigned to investigate the accident, also testified at trial, principally to introduce the statement of Gregory Ware into evidence. Officer Reickel authenticated Ware's statement, testifying that he wrote the facts contained in the statement, but Ware then read and signed the statement. He further explained that, if Ware had indicated Officer Greff "chirped" his siren, it would have been entered that way on the report. The report as written, according to Officer Reickel, reflects that the siren was on continuously.

At the time of the accident, Officer Greff was responding to a police emergency, involving another officer struggling with a suspect on Monument Street. Officer Greff testified that he responded to the emergency with the lights and siren on. As he approached the intersection of Madison and Wolf Streets, he slowed his vehicle to clear the intersection, then proceeded through the intersection once it was cleared of vehicles. He stated that he proceeded through the intersection under the impression, however mistakenly, that all vehicles including appellee's van had yielded to his vehicle. Officer Greff did not recall the color of the traffic signal as he approached the intersection, but testified that he was trained to slow down his vehicle at both green and red lights and clear the intersection because pedestrians do not always follow the traffic signals. When asked during direct examination if he was aware of General Order 11-90, Officer Greff stated that he was not aware of that specific General Order, but was aware that there are General Orders issued by the Commissioner. On cross-examination, Officer Greff was handed a copy of General Order 11-90, and was still not able to say whether he had ever seen it.

General Order 11-90 is titled "Departmental Emergency Vehicle Operation." It states the following, in pertinent part:

POLICY

Members of this Department shall operate departmental vehicles with utmost care and caution, comply with all traffic laws and SHALL NOT BECOME ENGAGED IN HIGH-SPEED PURSUIT DRIVING, except under EXIGENT circumstances. Exigent circumstances consist of:

Instances where the officer determines that immediate action is necessary; and

Insufficient time exists to resort to other alternatives; and

Failure to pursue may result in grave injury or death.

The Department recognizes it is better to allow a criminal to temporarily escape apprehension than to jeopardize the safety of citizens and its officers in a high speed pursuit.

General

The City of Baltimore is a highly congested urban area which necessitates driving a motor vehicles [sic] in a safe manner. In order for a departmental vehicle to be considered operating in an EMERGENCY MODE, BOTH ROOF MOUNTED EMERGENCY LIGHTS AND ELECTRIC SIREN MUST BE ACTIVATED. . . .

RESPONSIBILITIES

* * *

4. When assigned as Primary and Secondary Units for dispatched calls and responding in an emergency mode:

a. SLOW DOWN AT ALL INTERSECTIONS, ensure the intersection is safe to enter and then proceed cautiously.

b. When crossing against any traffic control device, BRING YOUR VEHICLE TO A FULL STOP and ensure the intersection is safe to enter before proceeding.

c. Ensure that your VEHICLE SPEED IS BOTH SAFE AND REASONABLE under the prevailing roadway and environmental conditions. * * *

COMMUNICATION OF DIRECTIVE

Commanding officers and supervisors shall communicate the contents of this directive to their subordinates and ensure compliance. This directive is effective on the date of publication.

On March 2, 2005, the court held a hearing on appellant's motion in limine to preclude evidence of General Order 11-90. Appellant, relying on Richardson v. McGriff, 361 Md. 437, 762 A.2d 48 (2000), argued that Baltimore Police Department General Order 11-90 is irrelevant, and use of the General Order would allow appellee to mislead the jury in its determination of whether the officer violated the relevant duty of care. Additionally, appellant argues that Md.Code (2002 Repl.Vol., 2005 Supp.), § 21-106(b)(2) entitled the officer to "[p]ass a red or stop signal, a stop sign, or a yield sign, but only after slowing down as necessary for safety," and the Baltimore City Police Commissioner cannot usurp that privilege.

In his response to appellant's motion, appellee argues that McGriff, supra, is distinguishable; insofar as McGriff was a police brutality case, where the Court of Appeals precluded the use of the guidelines because they were not relevant, subject to interpretation, and required the officer to exercise his/her discretion. In the case sub judice, appellee contends General Order 11-90 is specific, the rules articulated therein do not require the exercise of discretion, and the rules are relevant to the facts of the case. Appellee also argued that the police Commissioner may adopt an enhanced duty of care, officers must follow those orders, and they are subject to sanctions for not following orders.

The court denied the motion in limine, stating, "there's nothing in the rules of the game that says when a statute is more general that a local jurisdiction can't make stricter rules. They can't make more liberal rules, but they can make stricter rules, and that's what they've done here and so the motion in limine is denied."

LEGAL ANALYSIS

I. MOTION IN LIMINE

We address appellant's...