Holson v. State, 814

• Decision Date: 01 September 1993
• Docket Number: No. 814,814
• Citation: 637 A.2d 871,99 Md.App. 411
• Parties: Daniel F. HOLSON et al. v. STATE of Maryland et al. ,
• Court: Court of Special Appeals of Maryland

Page 411

99 Md.App. 411

637 A.2d 871

Daniel F. HOLSON et al. v. STATE of Maryland et al.

No. 814, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Feb. 28, 1994.

E. Gregory Lardieri (Thomas Patrick O'Reilly, on the brief), Greenbelt, for appellants.

Mark H. Bowen, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Pikesville, for appellee.

Argued before WENNER, CATHELL and MOTZ, JJ.

CATHELL, Judge.

Daniel F. Holson, appellant, appeals from an order by the Circuit Court for Prince George's County dismissing his negligence suit. He presents two issues:

1. Whether Defendant State of Maryland and its agent, Gerald R. Turano, owed a duty of care to protect Plaintiff from the actions of a third party.

2. Whether the alleged facts of the case were sufficient to present a question of fact as to whether Defendant's agent owed a duty of care to protect Plaintiff from the actions of a third party.

The Facts

Appellant, who alleges he was intoxicated, was a passenger in a car operated by another person who was stopped and arrested for an alcohol-related driving offense. The arresting state trooper took the driver into custody and, according to appellant, left him at the scene of the stop. ¹ Appellant apparently walked into the path of a vehicle and was struck. He sued the State of Maryland, appellee, and others, alleging that the State's agent (the trooper) was negligent in leaving an intoxicated person, himself, without means of transportation. In granting the motion to dismiss, Judge Femia opined:

So, the second issue, and I'm being very honest, I can't find any duty on the part of the State.... I'm going to grant that motion [to dismiss] and I'm going to grant it without leave to amend so you can immediately appeal my decision....

....

... [B]eing intoxicated ... does not create a special relationship....

We shall uphold Judge Femia and affirm. Generally, there is no duty, or special relationship creating any such duty, requiring police officers to transport intoxicated passengers of arrested drivers to their ultimate destination, or any destination. This case is primarily controlled by our decision in Jones v. Maryland-Nat'l Capital Park and Planning Comm'n, 82 Md.App. 314, 571 A.2d 859 (1990). In Jones, we explained:

Three basic elements are necessary to state a cause of action in negligence. First, the defendant must be under a duty to protect the plaintiff from injury. Second, the defendant must fail to discharge that duty. Third, the plaintiff must suffer actual loss or injury proximately resulting from that failure.

Id. at 320, 571 A.2d 859. It is the first of these elements--duty--that Judge Femia found lacking. Appellant's sole claim ² is that Trooper Turano owed a duty to protect appellant "against the actions of a third party, in this case the driver of a vehicle which struck" appellant.

It is well established that "there is no duty to control a third person's conduct so as to prevent personal harm to another, unless a 'special relationship' exists either between the actor and the third person or between the actor and the person injured." Ashburn v. Anne Arundel County, 306 Md. 617, 628, 510 A.2d 1078 (1986). Furthermore,

[i]n order for a special relationship between police officer and victim to be found, it must be shown that the local government or the police officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim's specific reliance upon the police protection.

Id. at 631, 510 A.2d 1078. Appellant does not claim to the contrary or assert that this is an inaccurate statement of Maryland law. Rather, he concedes that in order to prevail here he must show a special relationship between the police officer and himself and in order to prove that relationship, it must be shown, in appellant's words, that " the officer affirmatively acted to protect the specific victim [appellant]--thereby inducing the victim's [appellant's] specific reliance upon police protection."

Yet appellant has utterly failed to allege that Trooper Turano "affirmatively acted to protect" appellant "specifically" or that any affirmative act of the trooper induced appellant's "specific reliance upon police protection." What appellant alleges is that: (1) at 1:10 a.m. the trooper arrested the drunk driver of the car in which appellant was a passenger on Rt. 193 near 48th Street in College Park; (2) after appellant told the trooper that he "was not in a condition to drive" the trooper replied that appellant "would then have to walk home, since the Trooper was taking [the driver] into custody"; and (3) "[l]eaving [appellant] to walk home alone at 1:00 a.m." was negligent since the trooper "knew or should have known that [appellant] was in an intoxicated state." In other words, appellant's complaint is not that the trooper affirmatively acted to protect him, but that the trooper failed to act to protect him. Assuming the truth of appellant's allegations, as we must at this juncture, ³ the trooper's failure to act may be contrary to some moral obligation, but this failure to act does not create a legal duty and so cannot be the basis for an action in negligence. As the Court of Appeals noted in Davis v. Johns Hopkins Hosp., 330 Md. 53, 64, 622 A.2d 128 (1993), quoting from Jacques v. First Nat'l Bank, 307 Md. 527, 533-34, 515 A.2d 756 (1986):

A tort duty does not always coexist with a moral duty.

Jones, 82 Md.App. 314, 571 A.2d 859, is further instructive. There, a Park Police officer stopped at the scene of a minor automobile accident to render assistance. The officer testified that one of the drivers may have had a slight odor of alcoholic beverages on her breath, but he did not regard her as intoxicated. He told the allegedly intoxicated driver to park her car and turn off the ignition. When the officer turned his back, the driver sped away and soon thereafter hit another car head on. The victims of the second accident were injured and brought suit against the officer's employer. We held that the officer's failure to act, to prevent the allegedly intoxicated driver from speeding away, did not create a special relationship with the driver, or a duty to protect the persons injured in the second accident from the driver.

We note especially the unique circumstances of the case sub judice. Here the officer took the drunk driver into custody. ⁴ It was not the drunk driver (as in Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985)) that ran over the injured party because the driver here was in custody. The officer had taken charge of the "dangerous instrumentality"--the drinking driver. Here the appellant, Holson, was his own dangerous instrumentality--his lack of sobriety caused his injury. He, in essence, argues that the officer should have taken him "into custody" or "taken charge" of him in order to protect him from himself. That is not the officer's duty under the cases. In Jones, 82 Md.App. at 321-22, 571 A.2d 859, discussing Lamb, we noted:

The Court then concluded that "because there was no custodial relationship involved in this case, ... the officers did not take charge of the probationer." Id. [303 Md.] at 249, 492 A.2d 1297. The Court noted that "A minority of courts have challenged the proposition that an actor can take charge of a third person only in a custodial situation." Lamb, 303 Md. at 249, 492 A.2d 1297.

We then explained the language in Jackson v. Clements, 146 Cal.App.3d 983, 194 Cal.Rptr. 553 (1983), that rejected an argument similar to that made by Holson:

They proffer that the Ashburn Court, ⁵ by citing a portion of Jackson v. Clements, 146 Cal.App.3d 983, 194 Cal.Rptr. 553 (1983), involving alteration of risk, implied that if the risk was altered a special relationship would exist. Jackson v. Clements involved officers responding to a party where minors were allegedly drinking. They investigated the matter and temporarily detained one of the minors, who was later permitted to leave the party with two other minors who had also been drinking. An accident occurred, killing one of the minors as well as occupants of another car.

The trial court dismissed the action on demurrer. The plaintiffs had alleged that even though the officers knew that the minors were under the influence, knew they were too intoxicated to drive, and knew the minors intended to drive, the officers failed to take any action to prevent the minors from driving. The plaintiff in Jackson contended that once the officers undertook to investigate the party and made the observations, they had a duty to prevent the minors from driving.

....

... Plaintiffs cite no authority, nor has any been found, to support their claims that a police officer's observation of a citizen's conduct which might foreseeably create a risk of harm to others, or the officer's temporary detention of the citizen, creates a special relationship which imposes on the officer a duty to control the citizen's subsequent behavior. The case law is to the contrary.

Jones, 82 Md.App. at 322-23, 571 A.2d 859 (citation and footnote omitted, emphasis added). In essence, we noted in Jones that in Jackson the court had found that police officers owe no duty to inebriates to protect them from themselves.

Even in the cases where officers have not detained drunken drivers, and those drivers subsequently have injured others, the courts have held that no duty existed to the ones injured because the officers had not taken charge (created a continuing custody) of the drunken driver. Here, appellant asserts he should be able to recover because the officer did not take him into custody or take charge of him and he, because of his intoxication, hurt himself. First, there was no basis for the officer to take Holson into custody, i.e., take charge of him. It is not against the law to be a drunken passenger in an automobile. He was not subject to arrest in the first instance....