Fried v. Archer

• Decision Date: 03 July 2001
• Docket Number: No. 0912,0912
• Citation: 139 Md. App. 229,775 A.2d 430
• Parties: Sarah FRIED, et al., v. Kim ARCHER, et al.
• Court: Court of Special Appeals of Maryland

775 A.2d 430

139 Md. App. 229

Sarah FRIED, et al., v. Kim ARCHER, et al.

No. 0912, Sept. Term, 2000.

Court of Special Appeals of Maryland.

July 3, 2001.

Clifford L. Hardwick (Hardwick & Harris, LLP, on the brief), Baltimore, for appellants.

Philip S. Roberts (A. Frank Craven, III, on the brief), Bel Air, for appellees.

Argued before ADKINS and CHARLES E. MOYLAN, Jr. (Retired, Specially Assigned), JAMES, S. GETTY (Retired, Specially Assigned), JJ. ADKINS, Judge.

Fifteen year old Tiffany Fouts, daughter of Sarah Fried, appellant, paid far too high a price for drinking alcohol. At a residence she was visiting for the first time, Tiffany got drunk in the company of her girlfriend and four underage boys she had just met. Tiffany became ill and semi-conscious. Some of the guests sexually assaulted Tiffany, then dragged her outside in the freezing rain. In an effort to avoid legal trouble but summon a rescuer, three of them called the Harford County Sheriff's Department. They reported to police communications officer Kim Archer, appellee, that there was a girl who had been "over here drinking" laying in the woods to the rear of "1436" Harford Square, "K Court." Archer replied that she would "send someone out."

Unfortunately, in order to prevent police officers from coming to their residence at 1443 Charleston Drive, K Court, the assailants hastily invented a street number, and insisted on anonymity. Unfortunately, there is no 1436 K Court, because K Court only has odd-numbered addresses. Unfortunately, the dispatcher directed the responding police officers to "1436 .... J Court," an address that does exist. Unfortunately, despite searching behind that address and the entire row of townhomes along J Court, the officers did not find Tiffany, and discontinued their search. Unfortunately, no search was conducted in the woods behind the K Court townhomes, where Tiffany lay until she was found the next day, dead from hypothermia. In this appeal, we address an issue of first impression in Maryland—the negligence liability of a police dispatcher. We conclude that the tort duty owed by police dispatchers must be determined by applying the same "special duty rule" that governs the tort liability of other public and private defendants. Applying that rule, we hold that Archer did not have a special duty to rescue Tiffany, because Tiffany, who was unconscious, did not specifically rely on Archer's promise to "send someone out," and because the assailants who called on her behalf did not justifiably rely on that promise. Thus, Archer did not have a "special relationship" with Tiffany, or a special duty to aid, protect, or rescue Tiffany. Because appellant cannot establish that Archer had a private duty to Tiffany, the trial court properly dismissed appellant's negligence claims against Archer. For substantially similar reasons, we also affirm the dismissal of appellant's negligent training claims against James Terrell, appellee, who is chief of Harford County's Emergency Management and Operations Division.

FACTS AND LEGAL PROCEEDINGS

We review the allegations in the complaint, and accept them as true for purposes of reviewing this dismissal. See Valentine v. On Target, Inc., 353 Md. 544, 548, 727 A.2d 947 (1999)

. On November 11, 1995, Tiffany Fouts made plans to spend the night with her school friend, Melanie M. Early in the evening, the two girls went to 1443 Charleston Drive, K Court, located in the Harford Square townhome development in Edgewood. This was the home of Melanie's acquaintance, Eric F., and his mother, Ms. F. Tiffany, Melanie, and Eric were joined by three of Eric's friends, Donte, Ricky, and Louis. Tiffany had never met Eric or any of his friends.

The complaint alleges that Ms. F. and Louis supplied alcohol to the minors, who "partied" in the basement of Ms. F.'s home. Within an hour of her arrival, Tiffany began to vomit and lapsed into semi-consciousness. Some of the guests then assaulted and abused Tiffany. They "engaged in nonconsensual sexual acts with [her], heavy objects were dropped upon her head and certain guests urinated upon her as well."

To conceal Tiffany's condition, Eric F. and Ricky dragged her out a back door. They left Tiffany, wearing only a tee shirt, skirt, socks, and shoes, in an area of woods located directly behind the townhome. The weather was cold and rainy, and a snowy winter storm had been forecast.

Melanie and Louis then left the Fox residence. Ricky and Donte were staying the night with Eric. Aware that Tiffany was in danger from exposure, Donte, in the presence of Eric and Ricky, called the Harford County Sheriff's Department ("HCSO"). His report to Kim Archer, the police communications officer who answered the phone, was as follows:

HCSO DISPATCHER [ARCHER]: Harford County Sheriff's Office, PCO Archer.

CALLER: Hello.

HCSO DISPATCHER: Yes.

CALLER: Um, there's a girl in the back of the woods like.

HCSO DISPACTHER: Back of what woods.

CALLER: Um, Harford Square.

HCSO DISPATCHER: Okay. What's the exact address?

CALLER: There ain't no exact address where she's at.

HCSO DISPATCHER: Okay. What's the residence where she is? Can you give me the residence in front of where she's to the rear of?

CALLER: What's the address to those people over there? Cause she's further that way. 1436? (Inaudible.) 1436.

HCSO DISPATCHER: Okay. Harford Square?

CALLER: Yes, K Court.

HCSO DISPATCHER: Okay. And what's she doing, sir?

CALLER: Just laying there.

HCSO DISPATCHER: Okay. She's just laying to the rear of the house?

CALLER: Yes, she was. She was over a—. She was over here drinking and she was laying there.

HCSO DISPATCHER: Okay. Is she a white female? Black female?

CALLER: Yeah.

HCSO DISPATCHER: Which one?

CALLER: White female.

HSCO DISPATCHER: Okay. White female. Okay. And your last name, sir?

CALLER: I'd just say anonymous.

HCSO DISPATCHER: Okay. We'll send someone out.

CALLER: Thanks.

The complaint acknowledged that the boys, "[i]ntending for the emergency personnel to locate Tiffany Fouts, but attempting to avoid potential problems related to underaged drinking, ... provided... a fictitious street address of `1436'," but asserted that they "provided a factually accurate street identification indicating [that Tiffany was] `in the back of the woods' on `K Court'...." It asserted that Archer failed "to obtain further substantive information ... which would have been instrumental in successfully locating and rescuing Tiffany Fouts," and "misinformed the [HCSO] and/or Deputy Sheriff Kevin L. Thomas as to the proper location of the semiconscious girl...." The dispatcher directed responding officers to investigate "the well-being of a number 2 female ... lying to the rear of" "1436 Harford Square Drive.... J—John— Court," instead of "K Court."

These mistakes, appellant asserted, had fatal consequences. "The area behind J Court is separate and apart from K Court and located in a different section of the Harford Square townhome development." Appellant alleged that, unlike the area behind K Court, the area behind J Court "had no ... forested area." Officer Thomas walked the area behind the J Court townhomes, including number 1436, but did not find Tiffany. "[N]o further effort of any nature was made to review or request further information that had been provided to the dispatch office notwithstanding... the pouring rain and approaching winter storm...." In the early morning hours of November 12, Tiffany Fouts froze to death.

Appellant filed a wrongful death and survival action against Ms. F., PCO Archer, "unidentified dispatch or emergency service employees of Harford County Emergency Operations Division" (the "Doe defendants"), Officer Thomas, Chief Terrell, the HCSO, and the State.¹ She alleged that "Archer [negligently] breached her duty of care by failing to make basic inquiries of Donte W." by "reporting that Tiffany ... was behind `J' Court when in fact she was reported to be and was in fact behind `K' Court," and by "failing to report that Tiffany ... was behind townhomes near a forested area, ... [a] crucial piece of initial information [that] would have assisted in the determination that an improper address had been provided by Archer [and prompted] .... [a] review of the recorded telephone call...." The negligence claims against Terrell were based on allegations of improper procedures and training for emergency dispatchers.

After appellant voluntarily dismissed Ms. F., all of the governmental defendants moved to dismiss the negligence claims against them. In support, they offered transcripts from the juvenile criminal proceedings against Eric F., which included a transcript of Donte's call to Archer.

Donte testified that he knew Tiffany "was cold," and suggested calling the police on her behalf. That suggestion and other suggestions to call for an ambulance and to call 911 were overruled, in favor of calling the HCSO directly. The three looked up HCSO's number in a local telephone directory, and Donte placed the call. Eric supplied him with the house number "1436." Donte requested anonymity because he "didn't ... want them to come to the house." After the call, they "hit the lights .... [so] they won't come to the house." They briefly peeked out the window blinds, looking "for flashlights," but then returned to the basement.

Eric testified that he vetoed Donte's suggestion to call 911, because he "knew it would be a whole bunch of like police cars and stuff, and I didn't want them coming to the house." He admitted that for the same reasons, he invented a street address: "I didn't want to give [Donte] the address to this house .... so I thought of an address I thought it was close to ... where she was at." After calling HCSO, Eric went back outside to check on Tiffany only "[o]nce." Although he and Ricky Washington planned to go outside a second time, and to bring Tiffany "back into the house and let her stay in the basement," his mother stopped them as th...