Burns v. Mayor and City Council of Rockville

• Court: Maryland Court of Appeals
• Writing for the Court: ROSALYN B. BELL
• Citation: Burns v. Mayor and City Council of Rockville, 525 A.2d 255, 71 Md.App. 293 (Md. App. 1986)
• Decision Date: 01 September 1986
• Docket Number: No. 947,947
• Parties: Marcia A. BURNS, et vir. v. MAYOR AND CITY COUNCIL OF ROCKVILLE, Maryland. ,

Page 293

71 Md.App. 293

525 A.2d 255

Marcia A. BURNS, et vir. v. MAYOR AND CITY COUNCIL OF ROCKVILLE, Maryland.

No. 947, Sept. Term, 1986.

Court of Special Appeals of Maryland.

May 11, 1987.

Robert Earl Wilson, Upper Marlboro, for appellants.

Joann Robertson, Sr. Asst. Co. Atty., Rockville (Paul A. McGuckian, Co. Atty., Rockville, on the brief), for appellee.

Argued Before WEANT, ROSALYN B. BELL and ROBERT M. BELL, JJ.

ROSALYN B. BELL, Judge.

Marcia Burns and her husband, appellants, challenge the award of summary judgment against them in favor of the Mayor and City Council of Rockville (Rockville), appellees. Specifically, the Burnses contend:

"I. The Circuit Court erred in granting [the] Motion for Summary Judgment because there existed a genuine dispute as to material facts between the parties.

"II. The Circuit Court erred in granting [the] Motion for Summary Judgment because the [appellee] was engaged in a 'proprietary function,' and, therefore the defense of sovereign immunity does not lie.

"III. The Circuit Court erred in granting [the] Motion for Summary Judgment because, to the extent applicable, the defense of sovereign immunity has been waived by the [appellee].

"IV. The Circuit Court erred in granting [the] Motion for Summary Judgment because the doctrine of sovereign immunity, as applied to municipal corporations and the distinction between governmental and proprietary functions is unconstitutional."

The underlying facts are essentially undisputed. Marcia Burns arrived at a performance to be given by The Rockville Civic Ballet on December 13, 1981 at the F. Scott Fitzgerald Theater located in the Rockville Civic Center. Burns entered the small theater on the left side but was unable to locate available seats. Observing open seats on the right side of the theater, Burns chose to walk directly in front of the stage area rather than retreat up the left aisle, through the exit doors, and down the right or center aisle. As she was crossing from the left aisle to the right aisle, she stepped into the orchestra area, which was depressed 10 to 12 inches. Burns misgauged the depth of the step and fell, suffering ankle and leg injuries.

Burns and her husband filed suit in the Circuit Court for Montgomery County against Rockville alleging that the orchestra "pit," as they referred to it, was a dangerous condition which Rockville knew or should have known about and that Rockville was negligent in failing to provide warning signs, steps, barriers or contrasting colored carpet to warn business invitees of the lowered area. Rockville answered the complaint by pleading that it was not negligent and that Marcia Burns was contributorily negligent and assumed the risk of injury. Rockville subsequently filed a Motion for Summary Judgment alleging it was immune from suit under the doctrine of governmental immunity. The court agreed and judgment was entered accordingly.

In reviewing an award of summary judgment, the movant must have clearly demonstrated the absence of any genuine issue of material fact and must also have demonstrated that he or she is entitled to summary judgment as a matter of law. Castiglione v. Johns Hopkins Hospital, 69 Md.App. 325, 332, 517 A.2d 786 (1986). The purpose of a summary judgment hearing is not to determine disputed facts but to determine whether a genuine dispute as to any material fact exists. Moreover, the court may not attempt to decide any issue of credibility. Coffey v. Derby Steel Co., 291 Md. 241, 247, 434 A.2d 564 (1981). In determining whether a factual dispute exists, all inferences to be drawn from the pleadings, affidavits and admissions must be resolved against the moving party. Delia v. Berkey, 41 Md.App. 47, 51, 395 A.2d 1189 (1978), aff'd, 287 Md. 302, 413 A.2d 170 (1980). "[E]ven where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact." Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256 (1970). Even if it is found unlikely that the party opposing the motion will prevail at trial, the motion should not necessarily be granted against that party. Delia, 41 Md.App. at 51, 395 A.2d 1189.

The summary judgment was based on the conclusion that when the Rockville Civic Ballet performed on December 13, 1981, Rockville was engaged in a governmental as opposed to a proprietary function and thus the doctrine of immunity barred the Burnses' recovery.

Recently, the Court of Appeals discussed immunity available to the State and to municipalities in Maryland-National Capital Park and Planning Commission v. Kranz, 308 Md. 618, 521 A.2d 729 (1987). We quote:

"As this Court has often pointed out, the doctrine that the State of Maryland and state agencies are generally immune from suits, unless the immunity has been waived by the General Assembly, ' "is firmly embedded in the law of Maryland." ' Austin v. City of Baltimore, 286 Md. 51, 53, 405 A.2d 255 (1979), quoting Katz v. Wash. Suburban Sanitary Comm'n, 284 Md. 503, 507, 397 A.2d 1027 (1979). On the other hand, counties and municipalities do not possess this general immunity. Instead, counties and muncipalities have never been given immunity in contract actions, and, in tort actions, they are not immune with regard to those matters categorized as 'proprietary' but are immune with regard to those matters categorized as 'governmental.' See generally, e.g., Tadjer v. Montgomery County, 300 Md. 539, 546-550, 479 A.2d 1321 (1984); Austin v. City of Baltimore, supra, 286 Md. at 58-61, 63-66 (majority opinion), 70-78 (concurring and dissenting opinion), 83-84 (dissenting opinion); Katz v. Washington Sub. San. Comm'n supra, 284 Md. at 507-512, 397 A.2d 1027]; Bradshaw v. Prince George's County, supra, 284 Md. at 300 [396 A.2d 255] [ (1979) ]; American Structures v. City of Baltimore, 278 Md. 356, 358-360, 364 A.2d 55 (1976); Cox v. Anne Arundel County, 181 Md. 428, 431-433, 31 A.2d 179 (1943)."

Traditionally, the immunity attaching to the State was referred to as sovereign immunity while that available to municipalities was referred to as governmental immunity. In Kranz, the Court, however, emasculated the semantic distinction between the terms, noting that the cases more often than not used the terms interchangeably.

As stated, municipal immunity is not automatic, but when the municipality or county is engaged in a governmental function, immunity attaches. Mayor of Baltimore v. State, ex rel. Blueford, 173 Md. 267, 271-72, 195 A. 571 (1937). The Court of Appeals in Blueford, 173 Md. at 276, 195 A. 571, outlined the test for determining whether a municipality is engaged in a governmental function as follows:

"Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature."

Further clarifying this test in Tadjer v. Montgomery County, 300 Md. 539, 547, 479 A.2d 1321 (1984), the Court of Appeals explained:

"Another way of expressing the test ... is whether the act performed is for the common good of all or for the special benefit or profit of the corporate entity."

Thus, the essential question presented before the circuit court was whether Rockville was performing a governmental function when Marcia Burns was injured.

To support its position that the presentation of a ballet was governmental, Rockville submitted the affidavit of Betty Cheslowsky Wisda, supervisor of the Arts and Special Programs Division of the Department of Recreation and Parks of the City of Rockville. She indicated that the Rockville Civic Ballet was a part of her division. She also stated that the fee and ticket pricing policy of Rockville regarding the Ballet "neither anticipated to, nor [did] they cover the cost of running the Ballet." ¹ She set forth the receipts and expenses of the Ballet for fiscal years 1982-1985 which showed a net loss of between $1,193 and $1,799 a year. Rockville also submitted the affidavit of Mary Parker, Director of Finance for the City of Rockville, in which she indicated that for fiscal year 1982, in the general fund, there were funds appropriated to run the Rockville Civic Ballet and that therefore, the Ballet was an authorized city expenditure.

Applying the tests set out in Blueford and Tadjer, the circuit court agreed with Rockville that the Ballet was legislatively authorized, was solely for public enjoyment and was not a profit-making enterprise for the city, benefited the public welfare and had no element of private interest. Accordingly, the court ruled that Rockville was protected by municipal immunity.

I. FACTUAL DISPUTE

Focusing on the profit element set out in Blueford, the Burnses first assert the court erred in granting summary judgment because a genuine dispute as to a material fact existed. ² Referring to Wisda's affidavit, they argue that several items of expense should not have been included in determining the Ballet's profitability and thus whether the Ballet made a profit was a material factual question in dispute.

We note that the Burnses presented this issue in their written motion opposing summary judgment, but at the hearing, counsel did not address this issue except for a passing reference to it as a "minor" factual dispute concerning profitability. Somehow, this "minor" factual dispute has been transformed into a material factual dispute on appeal.

Included in Wisda's affidavit were expenses for "[f]acilities [r]ental of [r]ehearsal [s]pace"; "[s]torage [a]rea/[t]ech [q]uarters"; and [f]acility [r]ental of [t]heatre." The affidavit then stated with respect to these items:

"7. That the valuation of the facility rental and storage/technical quarters...