Holloway-Johnson v. Beall

• Decision Date: 25 November 2014
• Docket Number: No. 2338, Sept. Term, 2012.,2338, Sept. Term, 2012.
• Citation: 103 A.3d 720,220 Md.App. 195
• Parties: Connie HOLLOWAY–JOHNSON v. Timothy Everett BEALL.
• Court: Court of Special Appeals of Maryland

220 Md.App. 195

103 A.3d 720

Connie HOLLOWAY–JOHNSON

v.Timothy Everett BEALL.

No. 2338, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Nov. 25, 2014.

Andrew K. O'Connell (William H. Murphy, Jr., Murphy, Falcon & Murphy, on the brief), Baltimore, MD, for appellant.

William R. Phelan, Jr. (Amy Beth Leasure, Baltimore City Dept. of Law, on the brief), Baltimore, MD, for appellee.

Panel DEBORAH S. EYLER, WOODWARD, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.^*

Opinion

MOYLAN, J.

By virtue of an at least partially successful suit on the merits, the appellant is in position to recover $200,000 in damages. The appellant's aspiration, however, is to recover three and a half million dollars in damages. What stands between the already captured bird in the hand and the still elusive second bird in the bush is a statutory damages cap. The dominant issue on this appeal concerns the appellant's effort to dissolve that statutory barrier by persuading us that it has somehow been waived. That effort, however, is undermined by a misdirected focus on the wrong question. The appellant directs our attention to the procedural modality of how a protection may be waived. May it be deemed to have been waived by a failure timely to assert it? The very different and overarching issue, however, she totally ignores. Trumping the question of “HOW is something waived?” is the superseding question of “WHO may waive?” The appellant takes the identity of WHO for granted. This she may not do.

The Present Case

This appeal arises out of a wrongful death suit filed by the appellant, Connie Holloway–Johnson, on her own behalf and as personal representative of the estate of her son, Haines E. Holloway–Lilliston, against the appellee, Timothy Everett Beall, a Baltimore City police officer, in the Circuit Court for Baltimore City.¹ Officer Beall was involved in a July 25, 2010 motor vehicle collision that resulted in Holloway–Lilliston's death. The appellant alleged negligence, gross negligence, battery, and violation of Article 24 of the Maryland Declaration of Rights, and sought compensatory and punitive damages of $20 million. Before bringing suit, the appellant provided timely notice of her claim to the Baltimore City Solicitor and the Maryland State Treasurer.

The case was tried to a jury between July 24, 2012 and August 3, 2012. At the close of the appellant's case-in-chief, the court entered judgment in favor of Off. Beall on the gross negligence, battery, constitutional, and punitive damages claims. The negligence claim was submitted to the jury and the jury returned a verdict in favor of the appellant in the amount of $3,505,000. Judgment was entered on August 8, 2012. On August 20, 2012, Off. Beall moved for a new trial or, in the alternative, to revise the judgment. By order of December 14, 2012, the court granted his motion, ordering “that [Off. Beall] is entitled to a new trial” and, “[a]lternatively,” ordering “that the judgment entered in this case is revised by reducing it to $200,000.00 in accordance with the Local Government Tort Claims Act.”²

The Contentions

On this appeal, the appellant contends:

1) that Off. Beall waived the protections afforded by the Local Government Tort Claims Act (“LGTCA”) by failing to raise the issue until after the verdict and judgment were entered; and

2) that the court erred in granting Off. Beall's motions for judgment on her claims for gross negligence, battery, violation of Article 24 of the Maryland Declaration of Rights, and punitive damages.

Off. Beall has noted a cross-appeal and contends:

3) that the court erred by denying his motion for judgment on the negligence claim because he was entitled to statutory immunity as the operator of an emergency vehicle in emergency service.

A Post–Midnight Chase

On the early morning of July 25, 2010, Off. Beall was on duty, working the midnight patrol shift in the Northern District of Baltimore City in a marked police cruiser. He heard a radio transmission from an off-duty officer reporting a black Mercedes convertible and a motorcycle traveling northbound on the Jones Falls Expressway, I–83, near 25th Street, at speeds of approximately 100 miles per hour. Other officers were able to stop the vehicle, which turned out to be a black Toyota, but could not stop the motorcycle.

Off. Beall entered I–83 North from the Cold Spring Lane interchange and began following a motorcycle driven by Holloway–Lilliston. The motorcycle was traveling 35 m.p.h. in a 50 m.p.h. zone. Not sure whether this was in fact the offending motorcycle, Off. Beall maintained a distance of three car lengths behind and followed it to the Northern Parkway interchange. At that point, Holloway–Lilliston “popped a wheelie”³ and accelerated to about 75 m.p.h., continuing northbound on I–83. Off. Beall activated his emergency lights and siren and accelerated to keep pace. Off. Beall followed Holloway–Lilliston onto the inner loop of the Baltimore Beltway, I–695 East, still keeping pace with him at a speed of about 75 m.p.h. They continued through the Charles Street interchange, at which point their speed dropped to 50 m.p.h., which was the posted speed limit in what was, at that time, a construction zone.

According to Off. Beall, he was having trouble receiving radio messages while on I–695. He asserted the existence of radio “dead spots” at certain locations in the Northern District in Baltimore City and in Baltimore County where he was unable to receive or to transmit radio messages. Off. Beall denied receiving a radio order from his shift commander that, “[i]f all they're wanted for is traffic, just come back to the district before your radio dies out.” At the York Road interchange, Off. Beall did receive this message from his shift commander:

Yeah, have the officer disregard and come back, notify the state police of his location, the radio is going to die out soon, if there are repeaters out there, so just come on back.

Off. Beall heard the dispatcher then repeat:

And per, ah, state police, he'll send someone out, but if it's just traffic, he recommends you not to follow it.

Off. Beall responded, “10–4,” and turned off his emergency lights and siren. Off. Beall then telephoned the State Police, using his cell phone, advising that he was “following a ... possibly stolen motorcycle eastbound on 695 ... coming up on York Road.” Off. Beall advised that he was at “Dulaney Valley Road South,” and then the call was cut off.

Off. Beall followed Holloway–Lilliston onto the exit ramp for Dulaney Valley Road South. Off. Beall was traveling at between 41 and 44 m.p.h., and Holloway–Lilliston was traveling at between 31 and 33 m.p.h. On the exit ramp, Off. Beall's cruiser made contact with Holloway–Lilliston's motorcycle and Holloway–Lilliston was ejected from the motorcycle. He landed on the hood of Off. Beall's cruiser and then rolled off the left side of it, ultimately landing head first on the pavement. Holloway–Lilliston suffered severe injuries and died, likely immediately, upon impact with the pavement.

A Furiously Contested Moot Question

The first major skirmish on this appeal illustrates how easily a trial can go off the tracks or at least be sidetracked down an immaterial tangent. The parties have flailed away at each other over what Off. Beall did or did not do procedurally. They are both operating, however, within the four corners of their mutual assumption that his actions had a controlling influence on the applicability of the damages cap. Nobody paused to think outside the box. Nobody asked whether Off. Beall's action or inaction actually mattered as far as the cap was concerned. It did not. The skirmish within the box, however, still rages on appeal.

In a tempestuous Punch and Judy exchange of irrelevancies, the appellant leads off with the argument that Off. Beall waived the protections of the LGTCA, Md.Code, §§ 5301, et seq., of the Courts & Judicial Proceedings Article (“CJP”)—specifically, the $200,000 cap on damages—by failing to raise the issue until after the jury verdict was rendered and judgment was entered. She argues that the LGTCA is an affirmative defense that Off. Beall was required to plead specifically before trial and, having failed to do so, thereby waived.

Off. Beall counters by acknowledging that he did not mention the issue of the LGTCA damages cap until his August 20, 2012 motion for new trial or to revise judgment. He nevertheless maintains that the LGTCA damages cap is not an affirmative defense and that he was not, therefore, required to plead it specifically. He insists that the general denial in his answer was sufficient to preserve the defense. In any event, he further argues, the appellant was on notice that her claims were subject to the LGTCA damages cap long before trial because she notified the City of her claim within six months of the accident as required by another section of the LGTCA, CJP § 5–304.

We find it unnecessary to referee that contest. As we shall explain more fully infra, this spirited exchange of contentions is no more than an immaterial sideshow. With respect to the LGTCA's damages cap, what Off. Beall did or failed to do procedurally does not matter. The decision was way beyond his pay grade.

The Local Government Tort Claims Act

Some context is appropriate. The LGTCA first became law in 1987. In Ennis v. Crenca, 322 Md. 285, 291, 587 A.2d 485 (1991), Judge Eldridge explained its purposes.

The Local Government Tort Claims Act was passed in response to a perceived insurance crisis plaguing counties, municipalities and their employees. The legislative history of the Act reflects the General Assembly's concern for the impact of increased law suits on the incentive of public employees and officials to do their jobs to the best of their abilities. See the Department of Legislative Reference's file on Senate Bill 237 of the 1987 Session of the General Assembly.

The LGTCA provides local government employees an “indirect statutory qualified immunity” from...