Herilla v. Mayor and City Council of Baltimore

• Decision Date: 14 October 1977
• Docket Number: No. 1,1
• Citation: 37 Md.App. 481,378 A.2d 162
• Parties: Theodore John HERILLA v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Court of Special Appeals of Maryland

Page 481

37 Md.App. 481

378 A.2d 162

Theodore John HERILLA v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 1.

Court of Special Appeals of Maryland.

Oct. 14, 1977.

[378 A.2d 164] M. R. Rohrback, Baltimore, with whom was Edward A. Derenberger, Baltimore, for appellant.

C. Laurence Jenkins, Jr., Asst. City Sol. for Baltimore City, Baltimore, with whom were Benjamin L. Brown, City Sol., and Richard M. Hartman, Chief City Sol., Baltimore, on the brief, for appellees.

Argued before GILBERT, C. J., and MOYLAN and MASON, JJ.

GILBERT, Chief Judge.

If this opinion were being penned by Sir Arthur Conan Doyle (1859-1930), it probably would be titled, "The Case of the Wrong House."

Were it not for the tragedy that has befallen the appellant, Theodore John Herilla, and his family, the facts from which the matter sub judice arose might be considered humorous, something one would find in a television situation comedy. To the Herillas, however, the extensive damage inflicted upon their property, which rendered it unfit, without extensive repairs, for human habitation, is no laughing matter.

Initially, this appeal asked whether the Mayor and City Council of Baltimore (City), through its agents, acting on the erroneous belief that it had acquired a certain property, may enter upon that property, remove chattels and fixtures therefrom, damage the interior of the property, yet escape liability by invoking the legal concept of governmental immunity.

The Superior Court of Baltimore City answered the question in the affirmative when it dismissed, on preliminary objection, the suit of Herilla against the City.

Subsequent to oral argument in this Court on the question of the City's refuge behind the barrier of governmental immunity, we were advised in a letter from counsel for the City that it had discovered that its reliance upon the defense of governmental immunity was possibly misconceived. The City now states that although it originally believed the damage to the Herilla property was occasioned during the carrying out of an urban renewal project, it now knows that no such project was involved. The City was simply widening a street. Why it took the City over two (2) years to ascertain that the happenings in the instant case did not arise from the scope of an urban renewal or other governmental function is not explained.

The City says:

"These new facts, we believe, place an entirely different aspect upon the City's Motion to Dismiss, upon which . . . (the hearing judge) originally ruled, and, in addition, may well affect the legal outcome of the case.

Although the City's position may still well be that there is immunity in this instance, we believe that these additional facts should have been brought to the attention of . . . (the hearing judge), for his determination.

Therefore, we respectfully request that . . . (the Court of Special Appeals) remand this matter to the lower court, based upon these new facts, for additional pleadings on the subject of immunity, and for a new determination by the lower court."

We shall remand the case, but not for the reasons advanced by the City, as we have an entirely different view on the question of the applicability of the doctrine of governmental immunity.

Before addressing the legal issues involved in this matter, we shall briefly recount the uncommon factual situation from which this litigation arose.

The City acquired a five (5) foot wide strip of Herilla's land in order to widen Hollins Ferry Road. ¹ Sometime between May 29, 1975 and June 28, 1975, a crew of City employees, believing the City had obtained the entire property of Herilla, entered his house and removed several doors, a stained glass window, and a chandelier as well as several storm windows. Herilla alleged that the walls, ceilings, windows and floor were "negligently destroyed" by the City employees, apparently in removing the fixtures. In addition, Herilla claimed that "a radiator, sliding wooden doors, electrical wiring, and a gas stove were damaged."

When the City crew went upon the Herilla property, it was, by a set of fortuitous events, unoccupied. That happenstance occurred because Herilla rented the property to another while Herilla was "overseas." Upon learning of his transfer "back to the (S)tates," he notified the tenant to vacate the property in order that Herilla and his family could move in when they reached Maryland. The hiatus in occupancy occasioned by the tenant's vacating and prior to Herilla's return is when the damage to the property took place.

Herilla's discovery of the damaged property undoubtedly produced surprise coupled with a complete change of plan. Believing the damages to be the result of vandalism, he reported the incident to the Baltimore City Police and moved his family into the home of his in-laws. Thereafter, he purchased another home, thus, obligating himself to make mortgage payments thereon. At the same time, he was required to continue mortgage payments on the damaged property.

Aggrieved by the damage to his property and the expense to which he was put in acquiring a new home, Herilla sought redress. He sued the City in a multi-count declaration for "negligence," "trespass," "negligent trespass," ² "nuisance," and "conversion." Placing an obviously inflated value upon the property, Herilla asked $807,500 compensatory and $1,500,000 punitive damages. The declaration was met by a preliminary objection raising the defense of governmental immunity. Md.Rule 323 a9.

At oral argument, we were told that all the fixtures have been returned to Herilla except the stained glass window.

GOVERNMENTAL IMMUNITY

The law is well established in Maryland, as in virtually all other common law jurisdictions, that there can be no recovery against a municipal corporation for injuries occasioned by its negligence in the exercise of functions which are essentially governmental functions. E. Eyring & Sons Co. v. Mayor and City Council of Baltimore, 253 Md. 380, 382, 252 A.2d 824, 825 (1969); Irvine v. Montgomery County, 239 Md. 113, 117, 210 A.2d 359, 361 (1965); Fowler v. Bd. of County Comm'rs, 230 Md. 504, 507, 187 A.2d 856, 858 (1963), cert. denied, 375 U.S. 845, 84 S.Ct. 98, 11 L.Ed.2d 72 (1963), rehearing denied, 375 U.S. 936, 84 S.Ct. 334, 11 L.Ed.2d 268 (1963); Thomas v. Prince George's County, 200 Md. 554, 557-60, 92 A.2d 452, 453-54 (1952); Cox v. Anne Arundel County, 181 Md. 428, 433, 31 A.2d 179, 182 (1943); Mayor and City Council of Baltimore v. Blueford, 173 Md. 267, 271-72, 195 A. 571, 574 (1937).

The reason that governments are immune from suit by individual citizens was set out by the late Justice Oliver Wendell Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834, 836 (1907). Mr. Justice Holmes penned:

"Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. (Leviathan, C. 26, 2.) A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."

While, as Mr. Justice Holmes noted in Polyblank, there is some doubt as to the source of sovereign immunity, that doctrine does appear in D. Pickering, I The Statutes at Large from Magna Carta to The 14th Year of K. Edward III, inclusive (1962). Mr. Pickering has translated 3 Edward I, ch. L (1275) as follows:

"And forasmuch as the King hath ordained these things unto the honour of God and holy church, and for the commonwealth, and for the remedy of such as be grieved, he would not that at any other time it should turn in prejudice of himself, or of his crown; but that such right, as appertains to him, should be saved in all points."

The Parliamentary Act of 1275 was transported to the Province of Maryland by the "Ark" and the "Dove" in the form of numbered paragraph X of the Charter presented by King Charles I to Caecilius Calvert, Baron of Baltimore. Subsequently, when Maryland declared its independence from the British Crown, it preserved to its people the common law of England "and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six . . . ." Constitution of Maryland, Declaration of Rights, art. 5.

The dogma that a municipality, in performing an essentially governmental function, can do no wrong for which it is answerable by way of damages continues with us today as a viable part of our case law in a myriad of decisions by the Court of Appeals. Notwithstanding the multitude of such court opinions, Herilla opines that the governmental immunity doctrine is a judicial creation and should be judicially destroyed and laid to rest. In short, Herilla urges us to bite the bullet and wipe from the judicial slate a doctrine that is at least 702 years old. We decline to do so. If the cloak of governmental immunity is to be removed from the shoulders of the State and its sub-divisions, that action should be taken by the legislature, not the Courts. Board of Trustees of Howard Community College v. Ruff, Inc., 278 Md. 580, 366 A.2d 360 (1976). There is, of course, sound reason why the legislature is the proper division of government to determine whether to abolish sovereign immunity. It is that body that will be called upon, through the imposition of taxes, to pay any judgment rendered against the sovereign.

PROPRIETARY OR CORPORATE FUNCTION

The origin of the proprietary theory does not seem to be as shrouded in historical fog as that of governmental immunity. One may glean from the County Comm'rs of Anne Arundel County v. Duckett, 20 Md. 468, 83 Am.Dec. 557 (1864) that Maryland followed the proprietary rule laid down by Chief Judge Black in Erie City v. Schwingle, 22 Pa.St. 384 (1853) and Chancellor Kent in Bartlett v....