Housing Authority v. Bennett

• Decision Date: 06 June 2000
• Docket Number: No. 96,96
• Citation: 359 Md. 356,754 A.2d 367
• Parties: HOUSING AUTHORITY OF BALTIMORE CITY v. Crystal BENNETT.
• Court: Maryland Court of Appeals

754 A.2d 367

359 Md. 356

HOUSING AUTHORITY OF BALTIMORE CITY v. Crystal BENNETT.

No. 96, Sept. Term, 1998.

Court of Appeals of Maryland.

June 6, 2000.

Reconsideration Denied July 21, 2000.

J. Marks Moore, III (Charles M. Delacruz, Kathleen E. Wherthey, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, on brief), Baltimore, for Housing Authority of Baltimore City.

Scott E. Nevin (Saul E. Kerpelman, on brief), Baltimore, for respondents.

David M. Funk, Charles D. MacLeod, Funk & Bolton, P.A., Baltimore, amicus curiae for Local Government Ins. Trust.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW¹, RAKER, WILNER and CATHELL, JJ.

ELDRIDGE, Judge.

The Local Government Tort Claims Act (LGTCA), Maryland Code (1974, 1998 Repl.Vol., 1999 Supp.), §§ 5-301 through 5-304 of the Courts and Judicial Proceedings Article, makes all entities defined therein as "local governments" responsible for the legal defense of their employees, and liable for judgments for compensatory damages rendered against their employees, in suits against the employees based on tortious acts committed in the scope of their governmental employment. In addition, the LGTCA prohibits local governments from asserting the defense of governmental immunity to avoid this responsibility and liability, and it establishes monetary caps per individual claim and occurrence on the recoverable damages.

This case concerns the scope of the LGTCA's caps on damages. In particular, the case at bar requires us to decide whether the damages cap provision applies to a judgment against a local government agency in a tort action which is authorized by another statute enacted by the General Assembly prior to the LGTCA and reenacted after the LGTCA.²

I.

To understand the underlying issue in this case, namely to what extent the LGTCA's caps on damages affect local government tort liability under other law, and the tort liability of housing authorities in particular, it would be useful to summarize the status of local governmental immunity from suit up to and including the enactment of the LGTCA and its amendment pertaining to housing authorities.

A.

Unlike the sovereign immunity of the State and its agencies, which has been addressed by the General Assembly at various times in the history of Maryland, the matter of local government immunity prior to enactment of the LGTCA was shaped largely by judicial decisions and by statutes dealing with specific agencies or specific matters. See Austin v. City of Baltimore, 286 Md. 51, 69-72, 405 A.2d 255, 264-266 (1979) (concurring and dissenting opinion)

. Until the twentieth century, local governments generally had no immunity under Maryland common law in either tort or contract actions. Austin, 286 Md. at 71-78,

405 A.2d at 265-269. There is still no common law local governmental immunity in contract actions. See Harford County v. Bel Air, 348 Md. 363, 372-373, 704 A.2d 421, 425-426 (1998), and cases there cited.

In the early twentieth century, however, this Court adopted a distinction that had been developed earlier in other jurisdictions, and held that local governments enjoyed immunity in certain types of tort actions based on activity categorized as "governmental" but had no immunity in tort actions based on activity categorized as "private" or "corporate" or "proprietary." See Austin, 286 Md. at 71-78,

405 A.2d at 265-269 (concurring and dissenting opinion), and cases there cited. See also DiPino v. Davis, 354 Md. 18, 47, 729 A.2d 354, 369-370 (1999) ("A local governmental entity is liable for its torts if the tortious conduct occurs while the entity is acting in a private or proprietary capacity, but, unless its immunity is legislatively waived, it is immune from liability for tortious conduct committed while the entity is acting in a governmental capacity"); Harford County v. Bel Air, supra, 348 Md. at 373, 704 A.2d at 426; Ashton v. Brown, 339 Md. 70, 101, 660 A.2d 447, 462-463 (1995); Board v. Town of Riverdale, 320 Md. 384, 389-390, 578 A.2d 207, 210 (1990), and cases there cited.

Moreover, this governmental-proprietary distinction has no application to certain types of tort actions, and local governments have no immunity in those actions. Thus, local governments have no immunity from liability in nuisance actions. See Board v. Town of Riverdale, supra, 320 Md. at 388, 578 A.2d at 209,

citing Tadjer v. Montgomery County, 300 Md. 539, 550, 479 A.2d 1321, 1326 (1984) ("In Maryland, counties and municipalities have never been accorded immunity from nuisance suits"). See also Harford County v. Bel Air, supra, 348 Md. at 373, 704 A.2d at 425-426. In addition, local governments have no immunity in tort actions based on violations of the Maryland Constitution. See DiPino v. Davis, supra, 354 Md. at 50-51, 729 A.2d at 371; Harford County v. Bel Air, supra, 348 Md. at 373, 704 A.2d at 426; Ashton v. Brown, supra, 339 Md. at 101-102, 106, 660 A.2d at 462-463, 465; Board v. Town of Riverdale, supra, 320 Md. at 389, 578 A.2d at 210; Clea v. City of Baltimore, 312 Md. 662, 667-668 n. 3, 541 A.2d 1303, 1305 n. 3 (1988), and cases there cited. Local governments also lack immunity from tort liability for violations of federal constitutional or statutory rights. Under 42 U.S.C. § 1983, local governments, unlike state governments, may be sued when a local governmental statute, regulation, policy, or custom causes the alleged deprivation of federal rights. See DiPino, 354 Md. at 45-47,

729 A.2d at 368-369, and cases there cited; Ashton, 339 Md. at 110-113,

660 A.2d at 467-468, and cases there cited.

Prior to enactment of the LGTCA, the common law governmental immunity of local governments, based on activity categorized as "governmental," was waived under specific circumstances by various enactments of the General Assembly. One example of such a statute is Code (1957, 1998 Repl.Vol.), Article 44A, wherein the General Assembly authorized the creation of housing authorities, including the petitioner in the case at bar, the Housing Authority of Baltimore City. In Jackson v. Housing Opp. Comm'n, 289 Md. 118, 422 A.2d 376 (1980), this Court considered the viability of a personal injury action brought against the Housing Opportunities Commission of Montgomery County for negligence in failing to maintain safely the premises of a housing project. In determining whether the housing authority in that case was entitled to the defense of governmental immunity, we construed various sections of Art. 44A as effecting a limited waiver of any governmental immunity which the housing authority might otherwise enjoy. Separate provisions of Article 44A authorized housing authorities to sue and to be sued, mandated that no judgments against housing authorities could be executed against real property owned by the authorities, required the authorities to purchase liability insurance coverage for their operations against any risks or hazards, and directed the authorities to include the cost of such liability insurance in their operating costs to be covered by the rents they charged. Considering these statutory provisions together, this Court held that, "by necessary and compelling implication," Art. 44A effected a waiver of the defense of governmental immunity, but only to the extent of the "applicable limits" of a housing authority's liability insurance policy. Jackson, 289 Md. at 130, 422 A.2d at 382. In other words, Art. 44A both waived any governmental immunity which a housing authority might otherwise enjoy and capped its liability at the extent of its liability insurance.

Also prior to the enactment of the LGTCA, local governments occasionally waived any governmental immunity which they might otherwise enjoy under the common law. For example, the Express Powers Act, Code (1957, 1998 Repl.Vol.), Art. 25A, § 5(S), as construed in Bradshaw v. Prince George's County, 284 Md. 294, 297-299, 396 A.2d 255, 258-259 (1979),³ authorizes charter counties to waive governmental immunity. The now repealed § 5(CC) of Art. 25A limited such waivers of governmental immunity to the greater of $250,000 or the amount of insurance coverage.⁴ Prince George's County, in § 1013 of its first charter, adopted in 1970, waived its governmental immunity pursuant to § 5(S) of the Express Powers Act. See Bradshaw v. Prince George's County, supra.

Therefore, prior to the enactment of the LGTCA, local governments enjoyed immunity from tort liability only with respect to nonconstitutional torts based on activity categorized as "governmental." Moreover, such immunity could be waived by enactments of the General Assembly or by local enactments.

B.

In 1987 the General Assembly enacted Ch. 594 of the Acts of 1987 which affected the tort liability of local governments in several ways. As previously noted, supra n. 3, § 1 of Ch. 594 repealed § 5(CC) of Art. 25A, which had placed monetary caps upon waivers of governmental immunity by charter counties. Section 1 of Ch. 594 also repealed Code (1974, 1984 Repl.Vol., 1986 Cum.Supp.), § 5-306 of the Courts and Judicial Proceedings Article, which had set forth notice requirements pertaining to any claim for unliquidated damages in an action for personal injury or property damage brought against a county or municipal corporation. In addition, § 1 of Ch. 594 enacted the LGTCA.

The first section of the LGTCA, inter alia, defines "local government" very broadly to include, not only counties and municipalities, but also such entities as the Maryland-National Capital Park and Planning Commission, the Washington Suburban Sanitary Commission, special taxing districts, public libraries, the Enoch Pratt Free Library, and community colleges and their boards of trustees. See Code (1974, 1998 Repl.Vol., 1999 Suppl.), § 5-301(d) of the Courts and Judicial Proceedings Article. The second section of the LGTCA requires all entities defined as "local governments" to provide a legal defense for employees in tort actions alleging tortious conduct...