Barbre v. Pope

• Decision Date: 13 November 2007
• Docket Number: No. 17, Sept. Term, 2007.,17, Sept. Term, 2007.
• Citation: 402 Md. 157,935 A.2d 699
• Parties: Mark BARBRE v. ANDREW POPE, III.
• Court: Court of Special Appeals of Maryland

935 A.2d 699

402 Md. 157

Mark BARBRE v. ANDREW POPE, III.

No. 17, Sept. Term, 2007.

Court of Appeals of Maryland.

November 13, 2007.

John F. Breads, Jr., Columbia, William F. Brockman, Deputy Solicitor-General (Douglas F. Gansler, Atty. Gen., on brief), for petitioner.

Linda T. Cox, Annapolis (Thomas P. Ellis, III, on brief), for respondent.

James K. MacAlister, Maryland Trial Lawyers Assn., for respondent.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER, (Retired, specially assigned), DALE R. CATHELL, (Retired, specially assigned), JJ.

BATTAGLIA, J.

This case arises under the one year notice provision of the Maryland Tort Claims Act, Section 12-106(b)(1) of the State Government Article, Maryland Code (1984, 1995 Repl.Vol.).¹ We have been asked to determine whether the year notice provision is satisfied when a plaintiff timely delivers notice to a County Commissioner. We also have been asked to determine whether the Maryland Tort Claims Act ("MTCA") notice provision applies to claims against an individual otherwise covered under the Act's strictures, if the civil complaint, thereafter filed, alleges malice or gross negligence.

Two petitions for certiorari, both seeking review of the judgment of the Court of Special Appeals, were filed in this case. The first, filed by Deputy Sheriff Mark Barbre, who was one of the defendants below, posed the following questions:

1) Did the Court of Special Appeals err in holding that MTCA's mandatory notice requirement can be circumvented merely by alleging the existence of "malice or gross negligence" in a pleading filed years after an alleged injury?

2) Does allowing the MTCA's notice requirement to be circumvented simply by alleging that State personnel acted with malice or gross negligence violate one of the essential purposes of the Act by depriving the State of the opportunity for a relatively contemporaneous investigation?

3) Did the Legislature intend that the MTCA's mandatory notice provision should be susceptible to the "pleader's pen"?

Two questions were posed by Andrew Pope, III, the plaintiff below:

1) Did the Court of Special Appeals err in holding that Pope's Notice of Claim to Queen Anne's County did not substantially comply with § 12-106 of the Maryland Tort Claims Act?

2) Is a Trial Court's granting of a Motion to Strike Plaintiff's timely filed Second Amended Complaint improper when the moving party is not prejudiced by Plaintiff's filing, having previously tendered its written defense to claims of the amended pleadings?²

We hold that Pope's notice delivered to the Queen Anne's County Commissioner did not expressly, nor substantially, comply with the MTCA. We conclude, however, that the allegations of Pope's complaints were sufficient to allege malice or gross negligence to preclude summary judgment under the MTCA on behalf of Barbre.

I. Introduction

As alleged in the various complaints filed in the instant matter, on March 17, 2004, at approximately 12:30 p.m., Deputy Sheriff Mark Barbre of the Queen Anne's County Sheriff's Office attempted to stop a truck driven by Andrew Pope, III. When Pope did not stop, Barbre followed him to Pope's home, whereupon Pope got out of his vehicle and raised his hands in surrender. At that point, Barbre approached Pope with his gun drawn and fired a single shot, striking Pope in the neck.

Five months later, on August 12, 2004, Pope's attorney sent Benjamin F. Cassell, Jr., a Queen Anne's County Commissioner, a certified letter, which was to "constitute the requisite 180-day notice under the Local Government Tort Claims Act."³ The letter, which was copied to the Queen Anne's County Attorney, advised that it "will be followed by a law suit against Queen Anne's County alleging that Deputy Barbre acted with malice when he shot my client."

Pope did file a lawsuit on April 19, 2005 in the Circuit Court for Queen Anne's County, naming Barbre, both in his official capacity and in his individual capacity,⁴ and Queen Anne's County as defendants. In the "Facts" portion of the Complaint, Pope stated in relevant part:

12. On or about March 17, 2004, at approximately 12:30 p.m., Defendant Sheriff Barbre attempted to stop a truck driven by Plaintiff Pope in Grasonville, Queen Anne's County, Maryland.

13. As Plaintiff Pope continued driving his truck vehicle [sic] home, Defendant Sheriff Barbre followed Plaintiff Pope's vehicle into the driveway of Plaintiff's home. When Plaintiff Pope got out of the vehicle, raising his hands in surrender, Defendant Sheriff's Deputy Barbre approached him with his gun drawn and shot Plaintiff Pope in the neck.

14. At no time during the events described above was Plaintiff Pope intoxicated, incapacitated, a threat to the safety of himself or others, or disorderly.

15. Defendant Barbre had no warrant for the arrest of the Plaintiff and no legal cause or excuse to use excessive force against Plaintiff Pope or shoot Plaintiff in the neck.

In Count I, Pope alleged violations of Articles 24 and 26 of the Maryland Declaration of Rights by Barbre:

19. The shooting by Sheriff Barbre was entirely unjustified, was done intentionally, wantonly, recklessly, with gross negligence, malice and with complete indifference for Andrew Pope's rights and as a result was an unreasonable and excessive use of deadly force. These actions by Defendant Barbre deprived Mr. Pope of his clearly established rights under the Maryland Declaration of Rights to be: (a) free from the use of excessive and unreasonable force; and (b) free from the depravation of life and liberty without due process of law.

20. While acting under color of law and pursuant to his authority in his capacity as a Queen Anne's County Sheriff's Deputy, Deputy Sheriff Barbre shot Mr. Pope. Defendant Barbre failed to carry out proper Sheriff's procedures and protocol, failed to promulgate or enact appropriate Sheriff's procedure or protocol, failed to take reasonable actions to protect Mr. Pope and failed to control his actions in violation of the Maryland Declaration of Rights to be (a) free from the use of excessive and unreasonable force; and (b) from the depravation of life and liberty without due process of law. Defendant Sheriff Barbre had actual knowledge, or in the reasonable and diligent exercise of his duties should have known that he was violating Mr. Pope's clearly established constitutional rights to be free from such deprivations.

* * * * * *

22. Plaintiff Pope claims damages against Defendant Sheriff Barbre for the injuries set forth above for violation of his constitutional rights under color of law under the Maryland Declaration of Rights, in particular, Articles 24 and 26.

In Count II, Pope also alleged battery with respect to Barbre. Count III alleged violations of Articles 24 and 26 of the Maryland Declaration of Rights by Queen Anne's County.

Barbre and the County, collectively, filed a motion to dismiss, or in the alternative, for summary judgment. In essence, the County argued that Barbre was covered by the immunity and non-liability provisions of the MTCA rather than the Local Government Tort Claims Act, such that the County should not have been a defendant. Barbre contended that because he was covered by the immunity and non-liability provisions of the MTCA, Pope had to provide written notice under the Act to the State Treasurer or a designee of the State Treasurer within one year of the injury, and because he failed to do so, Pope could not pursue a MTCA claim against him.⁵

Pope filed an opposition to the Defendants' motion, arguing that even assuming that Barbre were considered "state personnel" and therefore covered under the immunity and non-liability provisions of the MTCA, "the notice provisions of the MTCA are not a condition precedent to bringing an action against an individual State employee." Even if he were required to provide notice under the MTCA in order to recover against the State, Pope also contended that he complied with the notice provision because the State had had notice of the incident as a result of an investigation undertaken by the State Police and the State's Attorney for Queen Anne's County. Additionally, Pope argued that the notice to a County Commissioner complied with the MTCA because the County was providing defense counsel for Pope under the Local Government Insurance Trust,⁶ and because the County would be ultimately responsible for the payment of any claim pursuant to Section 9-108 of the State Finance and Procurement Article.⁷

Pope also filed his First Amended Complaint, omitting the County as a defendant and only pursing his claims against Barbre, both in his official capacity and in his individual capacity, stating the same factual averments. In Count I, Pope again alleged violations of Articles 24 and 26 of the Maryland Declaration of Rights by Barbre; and in Count II, Pope again alleged battery with respect to Barbre.

Barbre then moved to dismiss the First Amended Complaint, or alternatively, for summary judgment, arguing that because Pope failed to comply with the MTCA notice statute, the complaint should be dismissed. Subsequently, Pope amended his complaint for a second time, asserting claims not only against Barbre, both in his official capacity and in his individual capacity, but against the County and the State. In Counts I, IV and V, Pope added that Barbre, Queen Anne's County, and the State violated Article 19 of the Maryland Declaration of Rights, in addition to Articles 24 and 26. In Counts II and III, Pope alleged battery with respect to Barbre.

Barbre, the County, and the State moved to strike the Second Amended Complaint. Barbre argued that the amended pleading should be stricken because of the prejudice he experienced because of Pope's "dilatory tactics" in filing another amended complaint "just days away" from the motions hearing regarding the First Amended Complaint. Barbre also asserted, as did the State, that because Pope...