Clark v. Prince George's Cnty.

Decision Date02 May 2013
Docket NumberSept. Term, 2011.,No. 2372,2372
Citation65 A.3d 785,211 Md.App. 548
PartiesMarilyn CLARK, et al. v. PRINCE GEORGE'S COUNTY, Maryland, et al.
CourtCourt of Special Appeals of Maryland

OPINION TEXT STARTS HERE

Michael J. Winkelman, (McCarthy, Winkelman & Morrow, LLP, Bowie, MD, David Haynes, Cochran Firm, Washington, D.C.), on brief, for Appellant.

William A. Snoddy, (M. Andree Green, County Attorney, on the brief), Upper Marlboro, MD, for Appellee.

Panel: EYLER, DEBORAH S., KEHOE, FREDERICK J. SHARER, (Retired, Specially Assigned), JJ.

EYLER, J.

On January 24, 2007, Keith Washington, at the time a member of the Department of Homeland Security of the Prince George's County Police Department, used his service weapon to shoot Brandon Clark and Robert White, while they were inside his house on a scheduled delivery of bed rails from a furniture store. Clark died at the scene and White sustained permanent physical injuries.

In the Circuit Court for Prince George's County, Marilyn Clark and Chris Furbush, individually and as co-personal representatives of Clark's estate, and White, the appellants, sued Prince George's County (“County”), the appellee, and Washington alleging numerous tort claims and seeking damages for Clark's wrongful death and White's injuries. The only claims that are relevant to this appeal are the common law tort claims against the County, directly, for negligent hiring, retention, and entrustment; a vicarious liability claim against the County for certain common law torts committed by Washington against Clark and White; and a Maryland constitutional tort claim against the County. 1

The circuit court dismissed the direct common law tort claims against the County on the ground of governmental immunity and bifurcated the case for trial. In a trial against the County for vicarious liability for the common law torts of Washington, who by then was no longer a party, the court granted judgment in favor of the County on the ground that Washington was not acting within the scope of his employment when he shot White and Clark, as a matter of law. Before the trial on the constitutional tort claim against the County, the court granted a motion in limine to exclude certain evidence regarding Washington's mental health history and alleged prior acts of violence. Ultimately, the court granted summary judgment in favor of the County on that claim as both parties agreed that without the excluded evidence the appellants could not make out a prima facie case.

The appellants present four questions for review, which we have reworded:

I. Did the circuit court err in dismissing the direct common law tort claims against the County, for negligent hiring, retention, and entrustment, on the ground of governmental immunity?

II. Did the circuit court err in granting judgment in favor of the County on the vicarious liability common law tort claim against it, on the ground that as a matter of law Washington was not acting within the scope of his employment at the time of the shooting?

III. Did the circuit court err in ruling that the doctrine of collateral estoppel did not operate to preclude the County from disputing certain underlying alleged facts?

IV. Did the circuit court err in granting the County's motion in limine to exclude evidence of Washington's prior mental history and allegedly violent behavior?

For the following reasons, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

On January 24, 2007, Clark and White were working for a trucking subcontractor making deliveries for Marlo's Furniture Store. One of their assignments that day was to deliver replacement bed rails to Washington's house in Accokeek, Prince George's County. Washington had purchased a bed for his master bedroom from Marlo's, but the bed rails were defective. Clark and White were supposed to deliver the replacement bed rails between 2:30 p.m. and 5:30 p.m., set them up, and take the defective rails.

Washington had taken part of the day off from work so he could be home for the delivery. At the time, Washington worked at the Department of Homeland Security Office of the Prince George's County Police Department, as the Deputy Chief Administrator. He was responsible for the day-to-day operations of that department, which coordinated the various public safety agencies in Prince George's County. He was a sworn police officer, and in the past had functioned in a police role, but did not do so in his position with the Department of Homeland Security. He had been detailed to that department since 2004.

White and Clark arrived late to Washington's house, at 7:30 p.m. By then, Washington was eating dinner with his wife and six-year-old daughter. He answered the door and accompanied Clark and White, who were carrying the box containing the new bed rails, to the master bedroom on the second floor of the house. Washington's wife and daughter stayed in the kitchen. A few minutes after the three men entered the master bedroom, Washington shot Clark and White. Neither Clark nor White had known that Washington was a police officer.

On January 24, 2008, the appellants filed a 14–count complaint against the County and Washington. It set forth a constitutional tort claim against the County for deliberate indifference to the rights of Clark and White; several common law tort claims against Washington; common law tort claims for negligent hiring, retention, and entrustment against the County; and a vicarious liability claim against the County for the common law torts of Washington.

As noted, the common law tort claims against the County, including the negligent hiring, retention, and entrustment claims, were dismissed on the basis that the County was protected from liability by governmental immunity. For the County, that left the vicarious liability claim and the constitutional tort claim. The court bifurcated the vicarious liability and constitutional tort claims for trial.

On March 23, 2009, a jury trial against Washington for certain common law torts and against the County for vicarious liability for Washington's common law torts commenced. It ended in a hung jury, which prompted the court to declare a mistrial. Before re-trial, the appellants voluntarily dismissed the claims against Washington, without prejudice. Beginning January 25, 2010, the trial went forward against the County on the sole theory that it was vicariously liable for Washington's torts. At the close of the appellants' case-in-chief, the trial court granted judgment in favor of the County on the ground that, on the evidence adduced, Washington was not acting within the scope of his employment as a police officer, as a matter of law, when he shot Clark and White.

Also as noted, before the separate trial against the County on the constitutional tort claim, the County filed a motion in limine seeking to exclude evidence of Washington's mental health history and prior allegedly violent acts. At a hearing on November 14, 2011, the court granted the motion on the basis of relevancy, ruling that the evidence was too attenuated to be probative of whether the County was on notice that Washington likely would cause physical harm to people delivering furniture inside his house. The appellants agreed that, with that evidence excluded, they could not prove their constitutional tort claim against the County. Accordingly, summary judgment was granted to the County.

We shall include additional information as necessary to our discussion of the issues.

DISCUSSION
I.Dismissal of The Direct Claims Against The County for Negligent Hiring, Retention, and Entrustment

The appellants contend the circuit court erred in dismissing the direct common law tort claims against the County for negligent hiring, retention, and entrustment. The essence of those claims was that the Prince George's County Police Department, a law enforcement agency of the County, breached a duty of care in hiring Washington as a police officer, retaining him as a police officer, and entrusting him with a service revolver; and that the breaches proximately caused Clark's death and White's injuries at Washington's hands. Those tort claims against the County were dismissed for failure to state a claim for which relief may be granted, based on governmental immunity.

The County's primary response to the appellants' contention is that the circuit court's ruling was legally correct. In the alternative, it responds that, even if the ruling was not correct, the tort claims would not have survived summary judgment in any event because the evidence on which they were based was the same evidence that was ruled inadmissible prior to trial on the constitutional tort claim, and would have been ruled inadmissible for the same reasons in this trial.

The standard of review of the grant of a motion to dismiss for failure to state a claim for which relief can be granted is de novo. Fioretti v. Maryland State Bd. of Dental Exam'rs, 351 Md. 66, 71–72, 716 A.2d 258 (1998). “In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action. An appellate court should presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom.” Id. at 72, 716 A.2d 258 (citations omitted); see also Schisler v. State, 177 Md.App. 731, 742, 938 A.2d 57 (2007) (explaining that [t]he standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct.”).

Maryland law is well settled that a county (or municipality) generally enjoys immunity against common law tort liability arising out of acts that are governmental, as opposed to acts that are private or proprietary. DiPino v. Davis, 354 Md. 18, 47, 729 A.2d 354 (1999) (“A local government entity is liable for its [common law] torts if the tortious conduct occurs while the entity is acting in a private or proprietary capacity, but, unless its immunity is legislatively...

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