Cox v. Prince George's County

• Decision Date: 03 June 1983
• Docket Number: No. 172,172
• Citation: 460 A.2d 1038,296 Md. 162
• Parties: Ronald M. COX et al. v. PRINCE GEORGE'S COUNTY, Maryland et al.
• Court: Maryland Court of Appeals

Page 162

296 Md. 162

460 A.2d 1038

Ronald M. COX et al. v. PRINCE GEORGE'S COUNTY, Maryland et al.

No. 172.

Court of Appeals of Maryland.

June 3, 1983.

Louis Fireison, Bethesda (Daniel Blum and Fireison & Olshonsky, P.A., Bethesda, on brief), for appellants.

David S. Bliden, Associate County Atty. and Robert B. Ostrom, County Atty., Upper Marlboro (Michael O. Connaughton, Deputy County Atty., Upper Marlboro, on brief), for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

This case comes to us as an appeal and cross-appeal raising two questions. The first question, raised by the appellant, Cox, is whether Prince George's County police officers are servants of the county so as to render the county liable for their torts committed while performing acts within the scope of their employment. The second question, raised by the cross-appellant, Prince George's County, is whether, as a matter of law, a police officer's malicious and intentional acts are outside the scope of his employment. These issues arise as the result of the circuit court sustaining a demurrer without leave to amend; therefore, the only pertinent facts are those alleged in the declaration.

The declaration filed by the parents of Ronald Melvin Cox as next friend alleged a cause of action in counts 4, 5 and 6 based on false arrest, intentional infliction of emotional harm and false imprisonment. ¹ It alleges that Prince George's County maintains, directs, and is responsible for the actions of the Prince George's County Police Department. According to the declaration, two county police officers, who were working with a police dog, "while acting within the scope of their employment," maliciously and intentionally allowed and encouraged the dog to attack and bite Cox, "in clear and substantial excess of the force needed to restrain and detain" him. The declaration further avers that the two officers subsequently beat and further injured Cox without justification and, again, that the officers were under the control and supervision of the county.

Prince George's County demurred to Cox's declaration on the ground that police officers are the agents of the State, not the local political subdivision which hired them, relying on the holding in Wynkoop v. Hagerstown, 159 Md. 194, 150 A. 447 (1930). The county also claimed that, as a matter of law, the actions of the police officers alleged in Cox's declaration were outside the scope of their employment and, thus, even if the officers could act as agents of the county, the county could not be held liable for their actions. The Circuit Court for Prince George's County sustained the county's demurrer and certified the issue for appeal pursuant to Maryland Rule 605(a). The case was appealed to the Court of Special Appeals, which affirmed the circuit court in a reported opinion, Cox v. Prince George's County, 51 Md.App. 40, 445 A.2d 27 (1981). We granted the petition for certiorari and shall reverse.

It is settled law, and fundamental to the concept of vicarious liability under the doctrine of respondeat superior, that the tortious actor must be the servant or agent of the one sought to be held liable, that is, that a master-servant or principal-agent relationship must exist. Once this first step is established, then the plaintiff must show that the offending conduct occurred within the scope of the employment of the servant or under the express or implied authorization of the master. See Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 584, 119 A.2d 423 (1956). The county argues that Wynkoop is conclusive authority for the proposition that the county is not the master or principal in its relationship vis-a-vis the Prince George's County Police Department. It contends that police officers are agents of the State. Thus, maintains the county, the necessary first step in tracing liability back to the principal has not been met. Since both the Circuit Court for Prince George's County and the Court of Special Appeals consider Wynkoop to be the seminal decision on this point, we shall begin our discussion with an analysis of that case.

In Wynkoop, a resident of the City of Hagerstown brought a three count declaration against Hagerstown, averring that the city failed to abate a public nuisance; that the city created a public nuisance; and that the City failed to enforce an ordinance. The plaintiff alleged that a Hagerstown police officer had returned a loaded revolver to an intoxicated man after the man's wife had given the gun to the officer, fearing that her husband would use it to injure or kill her. The armed and inebriated husband then left his home and entered the home of the plaintiff, Wynkoop, and shot him. The court styled the issue as "whether upon these facts the appellant [Wynkoop] is entitled to recover from the Mayor and Council of Hagerstown compensation for the injuries he suffered at the hands of Lutman [the armed husband]." Id. 159 Md. at 198, 150 A. 447.

The Court began its resolution of the issue before it by noting the "[t]he rule almost universally recognized in common law countries is that there can be no recovery against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character." Id. The Court discussed this concept of governmental immunity as a prelude to determining under what circumstances a municipality may be liable. After referring to an exception to the principles of governmental immunity for municipalities in the case of maintenance of roads, the Court stated that "in no case in this State has it been held that a municipality is answerable for injuries caused by its failure to properly discharge a duty imposed upon it as the direct agent of the State." Id. at 200, 150 A. 447.

It is only after laying the above foundation that the Wynkoop Court begins to discuss the way that police officers fit into this analysis. First, the Court notes that "it is well settled that such officers appointed by a city, are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties." Id. (emphasis supplied). The Court plainly does not say that for all purposes police are not the agents or servants of the municipality for which they work but says that their relationship with the municipality is not such that it renders the municipality liable for their nonfeasance or misfeasance. The italicized clause clearly and unmistakably makes this point. It is only in this context that the Court makes the statement, referred to by the county in the case sub judice, that "police officers['] ... duties are of a public nature, and that whether appointed by it or not they are not municipal servants or agents, and that the municipalities for which they are appointed will not be responsible for their acts or omissions as public officers..." Id. at 201.

Wynkoop is not an exposition on the principles of agency. There is no discussion of the elements of a master-servant relationship; no analysis of control; no reference to the significance of who does the hiring and firing, supervising and training; or who pays whose salary.

Wynkoop is, however, an early case in the development of the governmental immunity doctrine. As such it has been limited by the subsequent evaluation of that concept in the decisions of this Court. Moreover, the scope of governmental immunity is not an issue in this case.

Here the people of Prince George's County, a charter county, have pursuant to the Express Powers Act, Article 25A, § 5(CC) waived their immunity from suit and within defined limits have indicated their intention to be responsible for the tortious acts of their agents and employees. They expressed this intent in § 1013 of their charter as follows:

[t]he County may be sued in actions sounding in tort by actions filed in the courts of the State of Maryland, or in the United States District Court for the District of Maryland, with a maximum liability of Two-Hundred Fifty Thousand dollars ($250,000) per individual, per occurrence, to the extent of its insurance coverage, whichever may be greater. The County shall carry liability insurance to protect itself, its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program, and nothing herein shall be deemed to be a waiver of any charitable, governmental, or sovereign immunity which any officer, agent, or employee shall otherwise have, by reason of any Statute of the United States of America, public general law of the State of Maryland, or common law as determined by the courts of the State of Maryland.

In Bradshaw v. Prince George's County, 284 Md. 294, 301, 396 A.2d 255 (1979), we interpreted § 1013 as waiving the county's immunity and subjecting it "to liability under the same circumstances as if it were a 'private person.' " Id. at 301, 396 A.2d 255. However, we held that under the doctrine of respondeat superior, § 1013 did not provide for the liability of the county for non-malicious actions of its police officers performed within the scope of their authority. We reasoned that pursuant to this doctrine the nature of the county's liability is derivative so that immunity of the employee precludes recovery from the principal county. Noting that police officers as public officials enjoy immunity from liability for non-malicious acts within the scope of their...