James v. Prince George's County, 158

CourtCourt of Appeals of Maryland
Citation418 A.2d 1173,288 Md. 315
Docket NumberNo. 158,158
PartiesKenneth JAMES et ux. v. PRINCE GEORGE'S COUNTY, Maryland. Douglas Arthur DAWSON v. PRINCE GEORGE'S COUNTY, Maryland, et al.
Decision Date03 September 1980

James W. Taglieri, Washington, D. C. (Robert Cadeaux, Washington D. C., on brief), for Kenneth James et ux.

John J. Pyne, Chevy Chase (William P. Dale, Chevy Chase, on brief), for Douglas Arthur Dawson.

David S. Bliden, Associate County Atty., Upper Marlboro (Robert B. Ostrom, Co. Atty. and Michael O. Connaughton, Deputy Co. Atty., Upper Marlboro, Md. on brief), for Prince George's County.

Karl G. Feissner, Langley Park, (Eric S. Slatkin and Feissner & Beckman, Langley Park, Md., on brief), for West Lanham Volunteer Fire Dept., Inc.


DIGGES, Judge.

These two actions, which have been consolidated and are here on certiorari before their consideration by the Court of Special Appeals, present primarily for decision the same question-the general extent to which a charter county may, and Prince George's County did as it affects the present cases, waive governmental immunity so as to make it liable for damages caused by the negligent acts of its officials or agents. Since we conclude both that there are situations, and they exist here, which can result in liability being imposed upon counties positioned as Prince George's is in the present cases, we will reverse the judgments entered by the circuit court of that county dismissing, on immunity grounds, appellants' causes of action prior to trial.

The factual background of each of these cases comes basically from the appellants' declarations filed in these actions and may be briefly related. In the first case, appellant Douglas Arthur Dawson seeks damages of $2,000,000 from appellees, Prince George's County and the Volunteer Fire Department of West Lanham Hills, Maryland, Inc., for personal injuries sustained in March 1976 when a fire truck, operated by a member of the volunteer fire company in response to a call for assistance, was alleged to have been negligently driven into the intersection of Good Luck Road and Cipriano Road in Prince George's County, where it struck Dawson's automobile and propelled it across the intersection into an electric pole. The second case before us also involves a motor vehicle accident-a collision between an automobile owned and operated by appellant Kenneth James and an ambulance owned by Prince George's County. The declaration which was filed by appellant and his wife Elizabeth (also an appellant before this Court) only against Prince George's County, asserts that, in November 1978, a county ambulance was negligently driven by an agent or employee of the county into the intersection of Marlboro Pike and Brooks Drive in Suitland, Maryland, where it collided with the James vehicle. 1 As a result of this allegedly negligent act, Mr. James individually claimed personal and property damages of $1,000,000, while he and his wife jointly requested damages of $25,000 for loss of consortium.

Prior to filing pleas, each appellee asserted, by way of a Motion Raising Preliminary Objection, that it was immune from liability for the type of tortious conduct alleged by Dawson and James. The volunteer fire company, on the one hand, argued that it was entitled to charitable immunity due to its nonprofit, charitable status. The county, on the other, contended that, even though the Prince George's County Charter waived the governmental immunity which it had previously enjoyed, it nonetheless was still not liable for any damages caused by the negligent acts of its agents since these individuals were "public officials" cloaked with a qualified personal immunity for their conduct. This was so, asserted the county, because under the doctrine of respondeat superior, upon which each suit was based, 2 it, as principal, may not be held derivatively liable for the damages the plaintiffs incurred, when the actual tortfeasor would not also be responsible. By separate rulings, the Circuit Court for Prince George's County agreed with the position of each appellee, and accordingly, dismissed the damage actions of both Dawson and James. This appeal then followed; and, as the county's claim of nonliability is central to each case, we shall first address that issue.

The proper place to begin our analysis of the county's claim of immunity is with the provision of the county's own organic law-section 1013 of the Prince George's County Charter-which, as this Court recently observed, expresses the county's voluntary determination "to waive the immunity it would otherwise enjoy at common law for its acts . . . ." Bradshaw v. Prince George's County, 284 Md. 294, 301, 396 A.2d 255, 259-60 (1979). Section 1013 was first enacted as part of the original charter, effective February 1971, by the people of Prince George's County pursuant to Article XI-A of the Maryland Constitution. 3 At the time of the accident involving appellant Dawson (March 1976), the provision, as it had from its inception, read:


The County may be sued in actions sounding in tort in the same manner and to the same extent that any private person may be sued. The County shall carry liability insurance with adequate limits to compensate for injury to persons or damage to property resulting from negligence and other wrongdoings of its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program. 4

Section 1013 was amended, however, in November 1976 in order to have it conform to an addition, made by the General Assembly earlier in that year, to the Express Powers Act. Md. Code (1957, 1973 Repl. Vol., 1979 Cum.Supp.), Art. 25A, § 5(CC) 5 The section now reads Section 1013. GOVERNMENTAL LIABILITY.

The County may be sued in actions sounding in tort by actions filed in the courts of the State of Maryland, or in the United States District Court for the District of Maryland, with a maximum liability of Two-Hundred Fifty Thousand Dollars ($250,000) per individual, per occurrence, to the extent of its insurance coverage, whichever may be greater. The County shall carry liability insurance to protect itself, its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program, and nothing herein shall be deemed to be a waiver of any charitable, governmental or sovereign immunity which any officer, agent, or employee shall otherwise have, by reason of any Statute of the United States of America, public general law of the State of Maryland, or common law as determined by the Courts of the State of Maryland. ( 6

It is clear that the amended Prince George's County Charter provision pertains to the James' cause of action since the alleged negligent conduct occurred after the effective date of that change; whether the monetary limitation contained in that charter modification applies to appellant Dawson's already accrued cause of action is a question which is not now before us on this appeal. 7 This results from the fact that both the amendment and its predecessor provision have the same effect on the issue presently before us, i. e., they both purport to waive the county's own governmental immunity.

The scope of section 1013's initial waiver of immunity was first examined by this Court in Bradshaw v. Prince George's County, supra. There we held that when the county consented, in its original charter, to be sued "in the same manner and to the same extent (as) any private person," it accepted responsibility for those torts for which any private person could be held liable, either directly or derivatively. Id. at 301, 396 A.2d at 259-60. Moreover, we concluded in Bradshaw that the people of Prince George's County did not intend, by the enactment of section 1013, to eliminate the individual immunity which is available in certain instances to this county's public officials. 8 Id. at 303-04, 396 A.2d at 261. Such intent is now expressly stated in the amended charter: "nothing herein shall be deemed to be a waiver of any charitable, governmental, or sovereign immunity which any officer, agent or employee shall otherwise have . . . ." Having further observed that private persons in this State could not be held liable for the torts of an agent, who by reason of his relationship to the tort victim (. e., spouse, parent or child) was personally immune, this Court reasoned in Bradshaw that a similar principle should prevent the county from being held liable for the actions of its agents who have public-official immunity. Id. at 305, 396 A.2d at 262.

Accepting the continuing integrity of our decision in Bradshaw -that the county remains without liability if the tortious conduct on which the suit is based is the act of an individual who is personally immune-the central issue before this Court in the present case now is whether the drivers of the emergency vehicles were "public officials"; and if so, whether official immunity would protect these agents from liability for their negligent acts. Relying exclusively on this Court's decision in Bradshaw that a police officer is a "public official" who is immune from liability for nonmalicious acts committed during the performance of his duties, the circuit court determined that the drivers of all authorized emergency vehicles are, as are police, engaged in the exercise of discretion in responding to a call. Thus, it reasoned that they are public officials and immune. Specifically, the trial court pointed to the fact that in response to an alarm, the driver had to decide whether to use his emergency signals and sirens, the route to be taken, how fast to proceed through traffic and which rules of the road to disregard. While we agree that the driver of an...

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