Bradshaw v. Prince George's County

Decision Date18 January 1979
Docket NumberNo. 64,64
Citation396 A.2d 255,284 Md. 294
PartiesMary F. BRADSHAW v. PRINCE GEORGE'S COUNTY, Maryland et al.
CourtMaryland Court of Appeals

Ronald A. Karp, Washington, D.C. (Donald J. Chaikin, Washington, D.C., Arthur M. Ahalt, College Park, and Allen M. Hutter, Washington, D.C., on the brief), for appellant.

Michael O. Connaughton, Deputy County Atty., Upper Marlboro (James C. Chapin, County Atty., Upper Marlboro, on the brief), for appellees.

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

MURPHY, Chief Judge.

Whether the provisions of § 1013 of the Prince George's County Charter constitute a waiver of governmental immunity of sworn officers of the County's police department for negligent acts in the scope of their employment, thereby subjecting the County to liability under the doctrine of Respondeat superior, is the principal issue before us for determination.

At the time of the incident involved in this case § 1013 provided:

"Governmental Liability. The County may be sued in actions sounding in tort in the same manner and to the same extent that any private person may be sued. The County shall carry liability insurance with adequate limits to compensate for injury to persons or damage to property resulting from negligence and other wrongdoings of its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program."

The relevant facts are these: While on routine patrol, on January 26, 1975, county police officers Maynard and Chertok were summoned to a trash dumpster from which a child, Anthony Bradshaw, was hanging. The child was motionless and had no detectable heartbeat or pulse. It appeared to the officers that the child may have been the victim of a crime. Accordingly, to preserve what they deemed to be the crime scene, they did not immediately remove the child from the dumpster.

The child's mother, Mary Bradshaw, arrived at the scene shortly after the officers. Assisted by one of the officers, Mrs. Bradshaw removed the child from the dumpster. A practical nurse, Patricia Phumphreys, administered pulmonary resuscitation; she said that she revived the child and kept him alive until the ambulance arrived. The ambulance attendant refuted this claim. Anthony was dead on arrival at the hospital.

Mrs. Bradshaw sued the police officers in the Circuit Court for Prince George's County on the ground that they had acted negligently in failing to properly care for the child upon their arrival at the scene. She also sued the County for the alleged tortious activity attributable to its police officers.

The court (Blackwell, J.) granted motions for summary judgment filed by the officers and the County. It concluded that the officers were immune from liability, that § 1013 did not waive their governmental immunity for non-malicious torts, and that consequently their negligent acts were not imputable to the County under the doctrine of Respondeat superior. Specifically, the court held that (a) the police officers are "public officials . . . immune from liability for any non-malicious acts they perform while acting in a discretionary capacity and within the scope of their employment"; (b) the doctrine of Respondeat superior "will not apply to a fact situation in which an agent who is primarily negligent has been legally determined to be free from liability"; and (c) "the waiver provision contained in § 1013 of the Prince George's County Charter was not designed to strip county officers, agents, and employees, as individuals, of their personal partial immunity from legal redress for tortious conduct." Holding that § 1013 waived only the County's immunity as to itself and not as to individuals in its employ, the court deemed it unnecessary to determine whether the officers' actions had been negligent as a matter of law. This appeal followed; we granted certiorari prior to decision by the Court of Special Appeals to consider the important issues raised in the case.

The appellant contends that the negligence of the police officers caused the death of her son. She argues that the trial judge ignored the plain meaning of § 1013 of the charter when he concluded that it waived only the County's immunity as to itself and not as to its police officers. Arguing that the trial court's decision denies "the plain import of the charter to make the County liable for the torts of its public officials," appellant relies primarily upon Dicta in Robinson v. Board of County Comm'rs, 262 Md. 342, 278 A.2d 71 (1971) and Taylor v. Prince George's County, Maryland, 377 F.Supp. 1004 (D.Md.1974).

The County employs a three-step analysis to support its claim of governmental immunity. Reasoning that police officers as "public officials" are immune from tort liability for nonmalicious acts, and that § 1013 has not stripped public officials of their immunity, the County concludes that it cannot be liable as a principal on the theory of Respondeat superior for the tort of a non-liable agent. In addition, the County maintains that § 1013 was void from its inception, since counties had no power in 1970 to waive their governmental immunity. 1

I

Section 1013 was approved with the enactment of the Prince George's County Charter on November 3, 1970 and became effective on February 8, 1971. Pursuant to Art. 11-A, § 2 of the Constitution of Maryland, the General Assembly in Code, Art. 25A, § 5, enumerated the express powers granted to counties which adopted charters. Although this statute does not expressly mention a power to waive sovereign immunity, we think that the County possessed such a power in 1970 under § 5(S) of Art. 25A which provides that a chartered county may pass "such ordinances as may be deemed expedient in maintaining the peace, good government, health and welfare of the county." 2

While chartered counties have only those powers expressly delegated and necessarily implied, they possess in § 5(S) a general grant of power to legislate on matters not specifically enumerated in Article 25A. In upholding a county's power to pass a fair housing law, we said that § 5(S) "empower(s) legislative action designed to carry out, exercise and implement enumerated powers, (and) it goes further to add that power is given 'as well' to ordain for the maintenance of peace, good government, health and welfare of the County." Mont. Citizens League v. Greenhalgh, 253 Md. 151, 161, 252 A.2d 242, 247 (1969). See Steimel v. Board, 278 Md. 1, 8, 357 A.2d 386 (1976), where we reaffirmed our interpretation of § 5(S) as a broad grant of power to counties to legislate beyond the powers expressly enumerated in the statute. However, in Steimel we found that "the consistent and unchallenged enactment . . . of Sunday closing legislation by the General Assembly on a local-law basis is persuasive evidence that it never intended to grant to charter counties the power to legislate in this area." 278 Md. at 10, 357 A.2d at 391. See also Quecedo v. Montgomery County, 264 Md. 590, 594, 287 A.2d 257 (1972), where we said that a chartered county may waive sovereign immunity by statute, but that merely carrying liability insurance will not effect such waiver.

Construing § 5(S) as a broad grant of power to the County to legislate for the general welfare of its citizens, and viewing § 1013 of the charter as a reasonable exercise of this power, we find no merit in the County's contention that § 1013 was void from its inception.

II

Appellant contends that the plain meaning of § 1013 is to create a blanket waiver of all sovereign immunity. The County urges, as the trial court found, that § 1013 is a limited, rather than a blanket waiver of immunity.

In Godwin v. County Comm'rs, 256 Md. 326, 334-335, 260 A.2d 295, 299 (1970), the Court discussed the extent of a county's governmental immunity:

"As applied in Maryland, the doctrine of sovereign immunity is not only applicable to the State, itself, as a governmental agency, but is also applicable to its agencies and instrumentalities, including its municipal political sub-divisions, if engaged in a governmental function as an agent of the State, unless the General Assembly either directly or by necessary implication has waived the immunity. . . . The immunity also generally applies to a county of the State when exercising a governmental function as an agent of the State, . . . Cox v. Anne Arundel County, 181 Md. 428, 31 A.2d 179 (1943). In the Cox case, Judge (later Chief Judge) Marbury, for the Court, stated:

'Governments are immune from suit by individual citizens, unless the right is expressly given. . . . When the state gives a city or county part of its police power to exercise, the city or county to that extent is the state.' "

Thus, a municipality or county 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 county 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 a county's liability under this doctrine is derivative so that nonliability, immunity, or release of the employee precludes recovery from the principal-county. See Stokes v. Taxi Operators Ass'n, 248 Md. 690, 692, 237 A.2d 762 (1968); Riegger v. Brewing Company, 178 Md. 518, 523, 16 A.2d 99 (1940). See also Sherby v. Weather Brothers Transport Company, 421 F.2d 1243 (4th Cir. 1970); Baker v. Gaffney, 141 F.Supp. 602 (D.D.C.1956) (applying Maryland law); W. Seavey, Handbook of the Law of Agency at 141 (1964).

We 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. Robinson v. Bd. of County Comm'rs, 262 Md. 342, 345, 278 A.2d 71, 73 (1971). See, e. g., Quecedo, id...

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