Burris v. State

• Decision Date: 14 September 2000
• Docket Number: No. 130,130
• Parties: The ESTATE OF Andrew BURRIS, et al. v. The STATE of Maryland, et al.
• Court: Maryland Court of Appeals

759 A.2d 802

360 Md. 721

The ESTATE OF Andrew BURRIS, et al. v. The STATE of Maryland, et al.

No. 130, Sept. Term, 1999.

Court of Appeals of Maryland.

September 14, 2000.

Timothy B. Hyland (Leffler & Hyland, P.C., on brief), Fairfax, VA, Philip M. Andrews (Kramon & Graham, P.A., on brief), Baltimore, for appellants.

Stephen M. Doyle, Lieutenant Colonel, Judge Advocate General's Corps Maryland Army National Guard, Baltimore; (J. Joseph Curran, Jr., Atty. Gen. and Laura C. McWeeney, Asst. Atty. Gen., on brief), Annapolis, for appellees.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

WILNER, Judge.

In the early morning hours of June 13, 1997, Major Andrew Burris died after being run over by a 2½ ton truck operated by Gregory Headly and his assistant driver, Submas Singh, both members of the Maryland Army National Guard (MANG). The accident occurred at Camp Blanding, Florida, where units of MANG were participating in 15 days of annual summer training. The issue before us is whether the State of Maryland is liable to the Estate and family of Major Burris, which sued the State for negligence. The Circuit Court for Montgomery County, in granting the State's motion to dismiss or, in the alternative, for summary judgment, determined that there was no liability. We agree and shall affirm the Circuit Court's judgment.

BACKGROUND

The training session that led to the accident required the MANG soldiers to attack a unit of the Florida Army National Guard. Members of the 82 nd Airborne Division, an active duty unit of the U.S. Army of which Major Burris was a member, participated as evaluators in several of the training exercises being conducted at Camp Blanding. The accident occurred as Headly and Singh, just after midnight, were driving the truck along a dirt road en route to pick up a patrol. Major Burris had been in the roadway evaluating another exercise. Even after the soldiers involved in the other exercise moved off the road, Major Burris remained seated in the roadway. There was some evidence that he may have fallen asleep, as he made no apparent effort to move as the truck approached from his rear.

The exact speed of the truck at the moment of impact was never determined, but evidence was presented that, at some point prior to the accident, the truck was observed going between 25 and 30 miles per hour and that Camp Blanding imposed a speed limit of five miles per hour. Although the truck was proceeding in "blackout conditions," which meant that no headlights were allowed to be on, neither Headly nor Singh were wearing night vision goggles. Headly did not even have such goggles; Singh had a pair but was not wearing them. Neither soldier had received any training in the use of night vision goggles. Neither Headly nor Singh saw Major Burris in the roadway prior to the accident.

The injuries suffered by Major Burris as a result of the collision were serious. The truck ran over his midsection, crushing his pelvis and lacerating his liver, which, in turn, led to internal bleeding. Exacerbating the problem were a dreadful series of missteps after the accident that significantly delayed his evacuation to receive treatment. The medics, who did not arrive until 15 minutes after the accident, came in an ambulance that was not equipped with a cervical collar or litter straps, which were necessary to secure the patient who, perhaps as a result of his injuries, was physically resisting the medics; a second ambulance, also inadequately stocked, arrived five minutes later and, using supplies from both ambulances, the medics were able to secure Major Burris and transport him to the Troop Medical Clinic, some 45 minutes after he was struck. The clinic was unable to deal with his injuries, however, and, after a further series of mishaps, during which he was transported to the wrong hospital, he was eventually taken by helicopter to a proper hospital, about two hours after the collision, where he was declared dead on arrival.

The U.S. Army and MANG had somewhat different views regarding culpability for the incident. Responding to the investigation conducted by the 82 nd Airborne Division, the Maryland Adjutant General determined that (1) Major Burris's death resulted most directly from "his lack of situational awareness during night vehicle maneuvers," and (2) declining resources diminished the ability of MANG to provide and train troops with respect to night vision goggles. As to the first point, the Adjutant General noted that there was no credible evidence that the MANG truck was proceeding at an excessive rate of speed at the time of the accident and that, if Major Burris had been alert, he would have heard the truck in sufficient time to remove himself from the road. As to the second, the Adjutant General stated that the MANG soldiers did not train with night vision goggles because they did not have them, and, although some were available from the Florida Army National Guard for purposes of the exercise, the MANG drivers did not use them because they had not been trained in their use. The Army took issue, at least in part, with those conclusions. It rejected both "resourcing" and lack of training as reasons for the drivers not having and using night vision goggles and, although conceding that Major Burris "may have been inattentive," it concluded that the drivers were also inattentive and were likely speeding.

In January, 1999, the Estate and widow of Major Burris filed suit against the State, the Military Department of the State, the Maryland National Guard, and the Maryland Army National Guard. Their complaint alleged negligence (1) on the part of the drivers of the truck in speeding, being sleep-deprived, and failing to use night vision goggles, and (2) on the part of the State and the Maryland National Guard in lacking sufficient supplies of night vision goggles to provide them to all members during blackout conditions, failing to provide training to the drivers in the use of night vision goggles, and failing to have in place an adequate medical evacuation plan for its exercises. The State responded with a motion to dismiss or, in the alternative, for summary judgment, in which it raised three defenses: (1) sovereign immunity, which, because the drivers were not "State personnel," was not waived by the Maryland Tort Claims Act (MTCA); (2) the complaint sought to predicate liability on "nonjusticiable military issues"; and (3) suit was barred by the doctrine of intra-military immunity. The court credited all three defenses and, for those reasons, granted the motion and dismissed the complaint.¹ Upon the plaintiffs' appeal, we granted certiorari on our own initiative, prior to proceedings in the Court of Special Appeals, to review the court's conclusions.

DISCUSSION

The National Guard

The men and women who serve as soldiers in the Maryland Army (or Air) National Guard are members of three distinct organizations—the Maryland Army (or Air) National Guard (MANG), the National Guard, and the Army (or Air) National Guard of the United States.² Each of these entities emanates from the colonial and early Statehood Militias—the unorganized body of citizen-soldiers that, for the first part of our national history, constituted a major, though largely illusory and often unreliable, part of the nation's and the States' military defense force.

The Maryland militia dates back to the earliest days of our history. Its existence reflected, from the beginning, the fear of large standing armies and the desire to rely, as much as possible, on the general able-bodied citizenry for defense. In 1654, the Provincial Assembly directed that there be a captain and officers in every county

"to take view of Armes in Every family and that all persons from 16 yeares of age to Sixty shall be provided with Serviceable Armes & Sufficient Amunition of Powder and Shott ready upon all Occasions and that Every master of families provid Armnes & amunition as aforesaid for Every such Servant, And that the sd. Capt. so Chosen or appointed shall have power by [Commission] Granted him for the Exerciseing of such persons as Aforesd. and Imploying them for the Service of the Commonwealth."

Assembly Proceedings, Oct. 1654, 1 Archives of Maryland 347 (Md. Historical Society 1883).

On the eve of the Revolution 120 years later, the third Provincial Convention, meeting in December, 1774, resolved that all men in the Province between the ages of 16 and 50 be enrolled in militia companies. That direction was based on the asserted premise that "a well regulated militia ... is the natural strength and only stable security of a free government," that such a militia "will relieve our mother country from any expense in our protection and defence," and that it would "obviate the pretence of a necessity for taxing us on that account, and render it unnecessary to keep any standing army (ever dangerous to liberty,) in this province." Proceedings of the Convention, Dec. 1774, 78 Archives of Maryland 8. The vain effort, of course, was to convince Parliament that the people of the province could defend themselves and that it was unnecessary for them to be burdened by English (or English-purchased) troops and by the taxes levied to pay for those troops.

When Maryland declared independence from Great Britain and adopted its first Constitution, it embodied some of those sentiments in its first (1776) Constitutional Declaration of Rights, where they remain to this day. Articles 25 and 26 (current Articles 28 and 29) provided that "a well regulated militia is the proper and natural defence of a free government" and that "standing armies are dangerous to liberty, and ought not to be raised or kept up without consent of the legislature." In Article 33 of the Constitution itself, the Governor, with the advice of his Council, was authorized to "embody the militia" and "have the direction thereof."

The militia established in 1774...