Gardner v. State

• Citation: 549 A.2d 1171,77 Md.App. 237
• Decision Date: 01 September 1988
• Docket Number: No. 283,283
• Parties: Melvin Edward GARDNER, Jr., et al. v. STATE of Maryland, et al. ,
• Court: Court of Special Appeals of Maryland

Page 237

77 Md.App. 237

549 A.2d 1171

Melvin Edward GARDNER, Jr., et al. v. STATE of Maryland, et al.

No. 283, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Nov. 14, 1988.

Robert W. Guth (Phillips P. O'Shaughnessy, Sandbower, Gabler & O'Shaughnessy, P.A., Baltimore, and Joseph A. Miklasz, Glen Burnie, on the brief), for appellants.

Elena Langrill, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Evelyn O. Cannon, Asst. Atty. Gen., on the brief), Airport, for appellee, State of Md.

Benjamin R. Goertemiller, Susan M. Marzetta, and Semmes, Bowen & Semmes, on the brief, Baltimore, for appellee, Constitution State Ins. Co. Francis J. Ford and Ford & O'Neill, on the brief, Rockville, for appellee, Planet Ins. Co.

Argued before MOYLAN, WILNER and KARWACKI, JJ.

WILNER, Judge.

This case involves a construction of the State Tort Claims Act, now codified in Md.State Gov't Code Ann., §§ 12-101--12-109.

Until 1981, the State jealously guarded its sovereign immunity against liability for tort. The Court of Appeals had repeatedly held that the State could not be sued for the tortious conduct of its agencies, instrumentalities, officials, or employees unless the Legislature (1) authorized such a suit and (2) provided the funds or enabled the agency sued to obtain the funds necessary to satisfy any resulting judgment. See, for example, University of Maryland v. Maas, 173 Md. 554, 197 A. 123 (1938). Except in some very limited circumstances, the General Assembly declined to do either of those things. Board v. John K. Ruff, Inc., 278 Md. 580, 366 A.2d 360 (1976); Austin v. City of Baltimore, 286 Md. 51, 405 A.2d 255 (1979).

After several years of study and a few unsuccessful attempts, ¹ however, the Legislature enacted 1981 Md.Laws, ch. 298--the Maryland Tort Claims Act--in which it provided a more general waiver of sovereign immunity against tort liability. Though more comprehensive than anything that had preceded it, this waiver, too, was a limited one; it applied only to certain categories of tort actions, it did not cover certain kinds and levels of damages, and it was subject to certain conditions. See Kee v. State Highway Admin., 313 Md. 445, 545 A.2d 1312 (1988).

Over the years--indeed in nearly every session of the General Assembly since 1981--the Tort Claims Act has been amended in one fashion or another. One of the provisions that has remained substantively intact, however--though it too has been the subject of some tinkering and refinement-- is the requirement that, before any tort action against the State could be instituted in court, the plaintiff must have submitted his or her claim to the State Treasurer and had that claim denied by the Treasurer. This appeal focuses principally upon that provision.

To put the issues now before us in a proper perspective, however, we need to consider all or parts of three sections of the Act--ss 12-104, 12-106, and 12-107. In particular:

(1) Section 12-104(a) provides:

"Subject to the exclusions and limitations in this subtitle, the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent of insurance coverage under Title 9 of the State Finance and Procurement Article."

(2) Section 12-106(b) provides:

"A claimant may not institute an action under this subtitle unless:

(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim;

(2) the Treasurer or designee denies the claim finally; and

(3) the action is filed within 1 year after the claim is denied finally or 3 years after the cause of action arises, whichever is later."

(3) Section 12-107(d) provides:

"A claim under this subtitle is denied finally:

(1) if, by certified mail, return receipt requested, under a postmark of the United States Postal Service, the Treasurer or designee sends the claimant, or the legal representative or counsel for the claimant written notice of denial; or

(2) if the Treasurer or designee fails to give notice of a final decision within 6 months after the filing of the claim."

On June 30, 1986, ten families living in close proximity to Baltimore-Washington International Airport filed suit against the State of Maryland seeking money damages for injuries caused to them by low-flying aircraft using the airport, the operation of the airport in general, and noise and "repellant odors" from two public highways in their neighborhood.

In the "Common Operative Facts" part of their complaint, the plaintiffs alleged, among other things, that (1) air traffic using the airport had increased dramatically since the airport was first built in the 1940's, (2) planes flew directly over the plaintiffs' homes "round the clock" at altitudes of under 300 feet, (3) those flights, the routing for which the State bears responsibility, represented a "deliberate (and/or negligent) choice to interfere with plaintiffs['] ... enjoyment of their real property," (4) in addition, the noise and repellant odors from the use of Routes 3 and 100, which surround the neighborhood, in combination with the activities at the airport, "have wrecked [sic] particular havoc upon plaintiffs," (5) the interference "could have been reduced or eliminated by the defendant's taking of reasonable steps, such as condemnation proceedings, which steps the defendant did not do and continue[s] to refuse to do," and (6) the noise, vibration, glare of aircraft lights, and repellant odors "have made it impossible for plaintiffs to live a normal life and to use and enjoy their properties."

Upon these factual allegations, the plaintiffs attempted to plead three causes of action. They charged the State with maintaining a nuisance (Count I), negligence in the use and maintenance of the State-owned airport (Count II), and creation and maintenance of a "patently dangerous public improvement" (Count III). Money damages aggregating $38 million ($1 million for each family member joined as a plaintiff) were sought.

There is some dispute as to whether the plaintiffs had submitted a claim with the State Treasurer pursuant to § 12-106(b) prior to filing their action in court. The Treasurer's office, through an affidavit of the Insurance Manager, maintained that a claim was not "filed" until July 16, 1986, and that, as of September 5, 1986 (the date of the affidavit), it was still under review by the Treasurer. A secretary for plaintiffs' counsel filed a counter-affidavit, however, stating that she mailed the claim to the Treasurer's office on June 24, 1986, and that she "firmly believe[d]" that the Treasurer received it on June 25. In the context in which the case reaches us, this dispute is not important; the trial court, considering the matter for purposes of a motion to dismiss the complaint, gave the plaintiffs the benefit of the doubt, and so shall we. ² Whenever the claim was received by or "submitted to" the Treasurer, it is undisputed that the Treasurer had not acted upon, and certainly had not "finally denied," the claim prior to the filing of the complaint. There was no assertion in the complaint that a claim had even been submitted, much less finally denied.

The State moved to dismiss the complaint, in part based on improper venue and in part for failure to comply with § 12-106(b). The plaintiffs responded to this second defense by contending that they were not obliged to comply with § 12-106(b). Count I, they asserted, is based on the guarantee in the Md. Declaration of Rights "against the unconstitutional taking of their property" and that sovereign immunity is no bar to such a claim. Moreover, because "the State denied [a] petition to the State Treasurer" in another case, plaintiffs claimed that "there is no logical reason to expect a favorable action by the State Treasurer" on their claim.

The court agreed with the State that venue in Baltimore City was inappropriate and therefore transferred the case to Anne Arundel County. See Md.Rule 2-327(b). The more significant defense of failure to comply with § 12-106 was left to the receiving court to resolve. ³

On March 11, 1987, before any further action was taken on the State's motion, the plaintiffs filed an "Amended Complaint By Interlineation," in which they added to their complaint this additional averment:

"This action arises under the Maryland Declaration of Rights, the Maryland Tort Claims Act, Sections 12-101 to 12-109 of the State Government Article of the Maryland Code, and under the common law. Plaintiffs have heretofore complied with all procedural requirements of the Maryland Tort Claims Act, in that no later than July 16, 1986, the State Treasurer received plaintiffs' statement of claim and that more than 7 1/2 months later the State Treasurer has not responded to it, so that, by operation of law, he is deemed to have denied same."

The State moved to strike the amended complaint "in the interest of justice." The fear seemed to be that, if the amended complaint were allowed, it would "relate back to the original Complaint." In that event, the action would be deemed filed June 30, 1986--one day before the law imposing a "cap" of $350,000 on non-economic damages (1986 Md.Laws, ch. 639) took effect. The State seemed to have no objection to the plaintiffs' filing a new complaint, now that the prerequisite of the Tort Claims Act had been satisfied, but argued that it was impermissible and unfair to allow the plaintiffs to proceed by way of amending the initial complaint.

The court granted the State's motion and dismissed the amended complaint. It rejected the argument that Count I was not a tort claim subject to the Tort Claims Act, noting that (1) Count I alleged a nuisance, not an inverse condemnation, (2) the plaintiffs had filed a separate action in Federal court clearly premised on an unconstitutional taking of their property and thus knew how to allege such a cause of action, and (3)...