Baltimore v. Whalen

• Decision Date: 19 October 2006
• Docket Number: No. 101, Sept. Term, 2005.,101, Sept. Term, 2005.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. Suzanne WHALEN.
• Court: Court of Special Appeals of Maryland

909 A.2d 683

395 Md. 154

MAYOR AND CITY COUNCIL OF BALTIMORE v. Suzanne WHALEN.

No. 101, Sept. Term, 2005.

Court of Appeals of Maryland.

October 19, 2006.

COPYRIGHT MATERIAL OMITTED

Justin J. King, Deputy Chief, Litigation (Ralph S. Tyler, City Solicitor, Baltimore City Department of Law, Baltimore), on brief, for petitioner.

Robert S. McCord, County Atty., Karen J. Kruger, Senior Asst. County Atty., Bel Air, Edward H. Hammond, Jr., County Atty., Worcester County, Snow Hill, Barbara M. Cook, County Atty., Howard County, Ellicott City, brief of Counties of Harford, Howard and Worcester for petitioner, amici curiae.

Simon Walton (Schultheis & Walton, P.A., Baltimore), on brief, for respondent.

James K. MacAlister, Baltimore, David M. Kopstein, Seabrook, brief of the Maryland Trial Lawyers Assoc., for respondent, amicus curiae.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

CATHELL, J.

Suzanne Whalen, respondent, who is legally blind, was injured when she fell into a utility hole while her guide dog was doing his business within the legal boundaries of Leone Riverside Park. She filed suit against the Mayor and City Council of Baltimore, petitioner, claiming that Baltimore City, which owns and maintains Leone Riverside Park, was negligent by failing to ensure that the utility hole was safely covered. Petitioner moved for summary judgment and asserted the defenses of governmental immunity, statutory immunity under a recreational use statute, and lack of actual or constructive notice of the danger posed by the uncovered utility hole.¹ The Circuit Court for Baltimore City granted petitioner's motion for summary judgment in an Order dated June 9, 2004. The Court of Special Appeals vacated that judgment. Whalen v. Mayor & City Council of Baltimore, 164 Md.App. 292, 883 A.2d 228 (2005). The Mayor and City Council of Baltimore filed a petition for a writ of certiorari, which this Court granted on December 19, 2005. Baltimore v. Whalen, 390 Md. 284, 888 A.2d 341 (2005).

The following question is presented for review: "Is a municipality entitled to governmental immunity from a Plaintiff's tort claim that the municipality negligently maintained a public park?" We hold that a municipality is entitled to governmental immunity with respect to tort claims arising from the municipality's alleged negligence in the maintenance of public parks when the injury takes place within the boundaries of a public park but outside the boundaries of a public way.

I. Facts and Procedural History

Respondent came to Baltimore, Maryland, from Texas to attend a meeting at the National Center for the Blind ("NCB"). On February 12, 2000, at approximately noon, respondent took her guide dog into the Leone Riverside Park (the "Park") so that the dog could relieve itself. The Park, which is owned and operated by Baltimore City (the "City"), is located directly across from NCB on Johnson Street.² While respondent and her guide dog were making the necessary leash adjustments so that the dog could have room to void,³ respondent took one step and fell into an "uncovered, cement-lined pit, approximately 19"x19" and 41" deep." She sustained injuries to her back and ankle and, as a result, was permanently disabled.

On February 11, 2003, respondent filed suit against the City claiming that the City "failed to use reasonable care, in that their agents and/or employees failed to ensure that the abandoned pit or hole immediately adjacent to a public sidewalk, in a grassy are [sic] where the public and their pets could be expected to walk, was securely covered or filled in."⁴ On April 13, 2004, after various other motions were filed and discovery was conducted, the City moved for summary judgment on three grounds: 1) as a matter of law, the City was immune from suits arising from the operation and maintenance of public parks; 2) the City did not owe a duty to respondent under Maryland Code (1973, 2000 Repl.Vol.), § 5-1103 of the Natural Resources Article;⁵ and 3) there was no evidence that the City had active or constructive notice of the existence of the uncovered utility hole.⁶

In the City's motion for summary judgment and the respondent's opposition, reference was made to a plat prepared by J. Allen Jones of the City's Survey Control Section entitled: "SHOWING THE LOCATION OF A CONCRETE BASE WITH A 1.6 FOOT BY 1.6 FOOT OPENING ON THE WEST SIDE OF RIVERSIDE PARK ACROSS FROM 1746 JOHNSON STREET." In its motion, the City pointed out that the plat confirmed that the "hole is within the park property. The edge of the opening was 3.6 feet east of the [Johnson Street] right of way and well within the park." (Emphasis added). Respondent did not dispute the accuracy of the plat and conceded in its opposition that the "edge of the hole into which the [respondent] fell lies a little more than an arm's length, 42 inches (3.6 feet), beyond the Johnson Street right of way, just marginally within the boundary of Riverside Park. . . ." (Emphasis added).

On June 9, 2004, the Circuit Court for Baltimore City heard arguments on the motion for summary judgment and issued an Order that same day granting the City's motion "for the reasons enumerated on the record."⁷ It was from this ruling that respondent noted an appeal to the Court of Special Appeals.

In the Court of Special Appeals, the parties were forced to reconstruct the trial court's ruling on the motion for summary judgment from memory and notes due to the lack of a hearing transcript. The parties agreed that the trial court granted the motion for summary judgment on sovereign or governmental immunity grounds and not statutory immunity grounds. The parties were uncertain as to that court's disposition of the notice issue. While the Court of Special Appeals addressed both contained the "enumerated" reasons. the issues of governmental immunity and notice, the issue of notice was not presented to this Court.

The Court of Special Appeals restated the issue before it as: "[W]hether the court below erred in deciding, as a matter of law, that because the accident occurred within the Park, the City is automatically protected by governmental immunity." Whalen, 164 Md.App. at 297, 883 A.2d at 231. The intermediate appellate court focused a great deal on the proximity of the hole to the sidewalk on the east side of Johnson Street. The court found that:

"[T]he [circuit] court erred in deciding, as a matter of law, that the City was engaged in a governmental function in connection with the maintenance of the grassy area. While the municipality's duty to maintain the Park is governmental, the City's maintenance of sidewalks, streets, and contiguous areas is a proprietary function. Here, the grassy area adjacent to the sidewalk arguably served a dual purpose; a jury could reasonably conclude that someone on the sidewalk could meander off, without expecting to fall into an open pit."

Id. at 324, 883 A.2d at 247. For the reasons stated below, we reverse the judgment of the Court of Special Appeals.

II. Standard of Review

When reviewing a trial court's grant of summary judgment, an appellate court reviews the decision de novo. Rockwood Cas. Ins. Co. v. Uninsured Employers' Fund, 385 Md. 99, 106, 867 A.2d 1026, 1030 (2005); see also Walk v. Hartford Cas. Ins. Co., 382 Md. 1, 14, 852 A.2d 98, 105 (2004). Before making a determination as to whether the trial court was correct as a matter of law, the appellate court must first determine whether there is a genuine dispute of material fact. Jurgensen v. New Phoenix Atlantic Condominium Council of Unit Owners, 380 Md. 106, 114, 843 A.2d 865, 869 (2004). All factual disputes and reasonable inferences drawn from the facts of the case, are resolved in favor of the non-moving party. Id. at 114, 843 A.2d at 869. Only when there is an absence of a genuine dispute of material fact, will an appellate court determine whether the trial court was correct as a matter of law. Rockwood, 385 Md. at 106, 867 A.2d at 1030; Jurgensen, 380 Md. at 114, 843 A.2d at 869.

III. Discussion

Petitioner argues that municipalities are not liable in tort for alleged negligence in maintaining public parks because doing so has traditionally been considered a governmental function. Thus, because it is undisputed that the utility hole giving rise to this incident is within the boundaries of the Park, the City contends it is protected by governmental immunity.

Respondent argues that the City is not entitled to governmental immunity because the maintenance of streets, public ways, and the areas contiguous and adjacent to them is a proprietary function of government. Respondent urges this Court to find that the hole in question is contiguous or adjacent to the Johnson Street right of way and as a result, the maintenance of the area where the hole was located falls within the proprietary function of the City. In effect, respondent urges the Court to overlook the fact that the hole is within the boundaries of the Park.

We reiterate that the parties have agreed that the hole is located within the boundaries of the Park and that the hole is not within the boundaries of the Johnson Street right of way. Moreover, the City owns the Park. Thus, there is no dispute of material fact as to where the incident took place and we have only to determine whether the trial court was correct as a matter of law in finding that the City was operating in its governmental capacity and was, therefore, immune to suit.

A.

"The doctrine of sovereign immunity from suit, rooted in the ancient common law, is firmly embedded in the law of Maryland." Katz v. Wash. Suburban Sanitary Comm'n, 284 Md. 503, 507, 397 A.2d 1027, 1030 (1979). In the same year that Katz was decided, Judge Orth wrote for the Court:

"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...