Grossman v. Richards

• Decision Date: 13 January 1999
• Parties: Jeffrey A. GROSSMAN v. Don E. RICHARDS and the City of Westbrook.
• Court: Maine Supreme Court

722 A.2d 371

1998 ME 9

Jeffrey A. GROSSMAN v. Don E. RICHARDS and the City of Westbrook.

Supreme Judicial Court of Maine.

Argued November 4, 1998.

Decided January 13, 1999.

Robert Edmond Mittel (orally), Mittel, Asen, Hunter & Cary, LLC, Portland, for plaintiff.

Martha C. Gaythwaite (orally), Friedman, Babcock & Gaythwaite, Portland, for Richards.

Michael D. Cooper, Westbrook, for City of Westbrook.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and ALEXANDER, JJ.

RUDMAN, J.

[¶ 1] Jeffrey A. Grossman (Grossman) appeals from a summary judgment entered in the Superior Court (Cumberland County, Cole, J.) in favor of Don E. Richards (Richards). Grossman contends that the court erred by concluding that: (1) Richards was immune from liability under the Maine Tort Claims Act (MTCA);¹ and (2) the City of Westbrook (City) did not waive Richards' immunity by purchasing insurance on his behalf. We disagree and affirm the judgment.

[¶ 2] Grossman served as Administrator for the City of Westbrook until he resigned in June 1996. Grossman commenced this defamation and false light invasion of privacy action against Richards,² based on comments Richards made during a televised Westbrook City Council meeting on August 5, 1996. Richards was acting as a City Alderman and the City Council President at the time he made the allegedly defamatory comments. Richards moved for a summary judgment pursuant to M.R. Civ. P. 56(b) on the ground that no genuine issue of material fact existed and Grossman failed to establish the elements of his claims. After the trial court granted a summary judgment in favor of Richards, this appeal ensued.

[¶ 3] We review a grant of a summary judgment de novo for errors of law. See Rippett v. Bemis, 672 A.2d 82, 85 (Me. 1996). Summary judgment is appropriate when a defendant is immune from tort liability. See Moore v. City of Lewiston, 596 A.2d 612, 614 (Me.1991). We have recognized that "immunity is an issue distinct from liability." Id. (quoting Polley v. Atwell, 581 A.2d 410, 412 (Me.1990)). "Whether a defendant is entitled to governmental immunity is a question of law that may be resolved by a summary judgment in the absence of factual contradiction." Dubail v. Dep't of Transp., 1998 ME 126, ¶ 7, 711 A.2d 1301, 1303. Therefore, the trial court did not erroneously grant a summary judgment if Richards was immune from liability under the MTCA. See id.

[¶ 4] The MTCA grants absolute immunity to governmental employees for "[p]erforming or failing to perform any discretionary function or duty." 14 M.R.S.A. § 8111(1)(C) (1980 & Supp.1998). Such immunity is "applicable whenever a discretionary act is reasonably encompassed by the duties of the governmental employee in question, regardless of whether the exercise of discretion is specifically authorized ...." 14 M.R.S.A. § 8111(1). Since Grossman conceded that Richards' conduct was a "discretionary act," the only issue is whether Richards' duties "reasonably encompassed" his conduct. Id.

[¶ 5] Grossman argues that Richards' discretionary act was not "reasonably encompassed by his duties." The Legislature added the "reasonably encompassed" language to section 8111(1) to clarify that an employee does not need specific written authorization by rule or statute, in order for discretionary immunity to apply. See L.D. No. 2443, 113th Leg., 2d Sess. 16 (1988). The statement of fact accompanying the bill that resulted in the addition of the "reasonably encompassed" language in section 8111(1) states:

[T]he additional language at the end of Title 14, section 8111, subsection 1, paragraph E is intended to overrule the statement in True v. Ladner, 513 A.2d 257 (Me.1986), that discretionary immunity is only available when the exercise of discretion is authorized by a specific statute or rule. To perform their jobs effectively, many government employees are required to exercise their discretion in areas which are not specifically governed by a detailed statute. Accordingly, discretionary immunity should exist whenever the activity in question is in fact discretionary and is important to the functioning of the governmental activity involved.

L.D. No. 2443, 113th Leg., 2d Sess. 16 (1988).

[¶ 6] As we stated in Darling v. Augusta Mental Health Inst., the purpose of the discretionary function immunity is to preserve "independence of action without deterrence or intimidation by the fear of personal liability and vexatious suits." Darling v. Augusta Mental Health Inst., 535 A.2d 421, 425 (Me.1987) (quoting Restatement (Second) of Torts § 895D comment b (1979)). "[T]ort liability should not be imposed for conduct of a type for which the imposition of liability would substantially impair the effective performance of a discretionary function." Id. According to the statement of fact accompanying the aforementioned bill:

[T]he immunities contained in Title 14, section 8111 are intended to serve important governmental purposes. Government officials are frequently required as part of their jobs to take actions that have serious consequences for the individuals affected.. . . If these government officials were faced with the constant possibility of personal liability, the inevitable result would be that they would be hesitant to take necessary enforcement action and the public interest would suffer.

L.D. No. 2443, 113th Leg., 2d Sess. 15 (1988).

[¶ 7] We have identified four factors to consider in determining "whether an action is encompassed within a discretionary function":

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program[,] or objective?

(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective[,] as opposed to one which would not change the course or direction of the policy, program[,] or objective?

(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?

(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?

Berard v. McKinnis, 1997 ME 186, ¶ 9, 699 A.2d 1148, 1151 (quoting Adriance v. Town of Standish, 687 A.2d 238, 240 (Me.1996)).

[¶ 8] The trial court analyzed these four factors as follows:

[(1) Richards'] statements involved a basic governmental objective, namely, the proper custody and distribution of the public's money. [(2)] Questioning whether there was a conflict of interest involved in the distribution of public money is essential to the realization of the function of properly distributing public money. [(3)] Richards's [sic] statements required basic policy evaluation, judgment, and expertise by Richards. [(4)] Finally, Richards possessed the requisite lawful authority, as an alderman voting to approve an appropriation, to question the possible conflict of interest involved in the distribution of public money. Although Richards's [sic] comments appear ill-informed, ill-advised, and otherwise actionable, they do not exceed the permissible bounds of discretion allowed by § 8011(1)(C).

The trial court concluded that "Richards performed a discretionary function" within the meaning of section 8111. Richards' duties "reasonably encompassed" his discretionary act of pointing out a potential conflict of interest regarding the distribution of public money. See 14 M.R.S.A. § 8111(1). Therefore, Richards is entitled to discretionary function immunity under the MTCA.

[¶ 9] Grossman asserts that the trial court erred in concluding that the "bad faith" provision in section 8111(1)(E) does not apply to discretionary act immunity under section 8111(1)(C).³ However, we addressed this exact issue in Dall v. Caron and held that the "bad faith proviso" of subparagraph E does not apply to the remainder of section 8111(1). See Dall v. Caron, 628 A.2d 117, 119 (Me. 1993). We stated:

The proviso contained in subparagraph E that excludes actions in bad faith is limited to that subparagraph's broad grant of immunity for "any intentional act or omission within the course and scope of employment." The immunity granted in the more limited circumstances described in subparagraphs A through D is absolute and not qualified by the bad faith proviso in subparagraph E.

Id. (footnote omitted).

[¶ 10] In Berard v. McKinnis, we recently affirmed the decision in Dall that the "bad faith proviso" in subparagraph E does not apply to the absolute immunity that subparagraphs A through D provide. See Berard, 1997 ME 186, ¶ 11 n. 7,699 A.2d at 1152 n. 7. In rejecting the plaintiff's claim that the "bad faith proviso" prevented discretionary function immunity under subparagraph C, we stated:

[The plaintiff] argues that [MTCA] immunity. . . is not available to [the defendant] because he acted in bad faith . . . . Because we have determined that [the defendant's] conduct is a proper discretionary function, [pursuant to] 14 M.R.S.A. § 8111(1)(C), we need not address [the plaintiff's] bad faith argument. The bad faith exception to sovereign immunity is found in subparagraph E of section 8111. Because [the defendant] is entitled to absolute immunity under subparagraph C, this bad faith proviso does not apply.

Id. (citing Dall, 628 A.2d at 119).

[¶ 11] Grossman argues that we should overturn Dall and Berard, but fails to support his contentions with timely or relevant precedent. "The meaning of statutory language is a question of law." Cook v. Lisbon Sch. Comm., 682 A.2d 672, 676 (Me. 1996). In Cook, we stated:

In construing a statute we look first to the plain meaning of the statutory language to give effect to legislative intent, and if the meaning of the statute is clear on its face, then we need not look beyond the words themselves. Thus, if the text of the statute given its plain meaning answers the interpretative question raised by

...