Jones v. Maryland-National Capital Park & Planning Com'n

• Decision Date: 30 March 1990
• Docket Number: MARYLAND-NATIONAL,No. 1112,1112
• Citation: 82 Md.App. 314,571 A.2d 859
• Parties: Robert F. JONES et ux. v.CAPITAL PARK & PLANNING COMMISSION et al. Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 314

82 Md.App. 314

571 A.2d 859

Robert F. JONES et ux. v. MARYLAND-NATIONAL CAPITAL PARK & PLANNING COMMISSION et al.

No. 1112 Sept. Term 1989.

Court of Special Appeals of Maryland.

March 30, 1990.

Jay P. Holland (Steven M. Pavsner and Joseph, Greenwald & Laake, P.A., on the brief), Greenbelt, for appellants.

Joann Robertson, Sr. Asst. County Atty. (James J. Cagley, Asst. County Atty., on the brief), Rockville, for appellees.

Argued before BLOOM, WENNER, and CATHELL, JJ.

CATHELL, Judge.

Officer Barry Bratburd, of Maryland-National Capital Park Planning Commission, while traveling between two facilities of that agency, was stopped at the intersection of Route 1 and Rhode Island Avenue in Prince George's County in the early hours of January 18, 1985. While there, he observed an automobile operated by Michael Carr stopped at a traffic light. The Carr vehicle, while at the traffic light, was rear-ended in an apparently minor collision by an automobile driven by Mary Hope Pinkney. There was no damage evident to the Carr vehicle, and only minor damage to the Pinkney vehicle.

Officer Bratburd approached the accident scene. According to his deposition, the following then occurred:

Q You yourself had never, not ever had occasion to deal with a person suspected of being intoxicated?

A That is correct.

Q [W]hatever the exact interval between your question and her response, in seconds or mili-seconds, would it be fair to say, Officer Bratburd, that Mary Pinkney was rather slow to respond to your instructions?

A Yes.

Q Now, when she did respond, as I understand it, basically all she said was yes or sure or something like that, is that correct?

A Correct.

Q When she opened her mouth were you able to detect some alcohol?

A I detected a slight odor of what may have been an alcoholic beverage. Alcohol has no odor itself, it is the ingredients that give it its odor.

* * * * * *

Q [I]mmediately following the time when you noticed this definite odor of what may have been an alcoholic beverage on Ms. Pinkney's breath, did you ask her to turn off her car?

A That was all done in the one speech while she was acknowledging what I was saying, that is when I noticed at the same time while I was talking. I didn't stop, notice, then start talking. It was all in our exchange. I just finished up by telling her to put the car in park and turn the ignition off. At that time I turned sideways. [emphasis added]

During his deposition, in response to questioning, Officer Bratburd described his official duties as follows:

A To routinely patrol the parks and other buildings owned by the Park and Planning Commission and to respond to all calls for service relating to Park and Planning Commission property in those designated areas.

* * * * * *

It is my understanding that we have no police jurisdiction or powers in areas that aren't either owned or maintained by the Park and Planning Commission, where we have powers. We do have a Mutual Aid Agreement with the Prince George's County Police where we can act with authority for instances and incidents that we firsthand see involving criminal actions where if we do not take action it could cause grievously [sic] bodily injury or another criminal action to occur, things if we don't handle immediately the situation would get worse.

* * * * * *

Q Were you given any instruction with respect to what sort of action constituted an emergency within the meaning of your authority to exercise the police powers?

A Like I said before, it was left up to the individual officer's interpretation. We weren't given any instruction as to what would be clearly defined as being an emergency situation. They left that up to our discretion.

* * * * * *

Q [I]f you believed that she was under the influence of alcohol it would have been an emergency situation, would it not?

A Possibly.

Q Having seen her driving up the road with no headlights on and being involved in a motor vehicle accident, if you believed that she was then under the influence of alcohol it would have been an emergency situation, correct?

A Possibly.

Q Under the Mutual Aid Agreement it would have been your obligation as well as your right to make an immediate investigation, correct?

A Correct, in as much as the alcohol, I still don't think I had any authorization or jurisdiction to investigate the accident, as far as the collision.

Q But at least as far as the fact that you--

A I could have detained her physically for the responding jurisdiction, and be a witness. [emphasis added]

Bratburd directed Pinkney to park the car and turn the ignition off. Instead, as Bratburd turned away to call for the police agency in whose jurisdiction the accident had occurred, Pinkney sped away in a northbound direction on Route 1. Bratburd attempted to follow her without using any emergency sirens or lights. He lost her, but returned to the scene of the accident, where he met later with Trooper Crawford of the jurisdiction in question. While Trooper Crawford was investigating the first accident, he received a radio transmission of another accident on Route 1.

Upon his arrival at the scene of the second accident, Crawford discovered that Pinkney, then going southbound, had crashed head-on into the vehicle of Robert F. Jones and Linda B. Jones, the appellants. As a result of this accident, the Joneses filed suit against Pinkney, the Maryland-National Capital Park & Planning Commission and Officer Bratburd. The trial court granted defendants Bratburd and Maryland-National Capital Park & Planning Commission's motion for judgment at the close of plaintiff's case. We list and address the questions presented on appeal in the reverse order from which they were presented to us.

1. Whether the trial court erred in ruling that Officer Bratburd was entitled to public official immunity?

2. Whether the trial court erred in ruling that the defendant Maryland-National Capital Park & Planning Commission was not liable for the negligent acts of its servant, Officer Bratburd?

1.

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. Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985).

As we hold that appellee Bratburd was under no duty to protect the plaintiffs, we will not address the performance of any such duty, nor will we address the issue of whether any failure to discharge a duty owed was the proximate cause of appellants' loss or injuries. We explain.

Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985), involved the issue of whether a probation officer who fails to report a probationer's violations owes a duty to an individual injured by the negligence of the probationer. The probationer in Lamb was convicted of driving while suspended, driving while intoxicated and other offenses while on probation. The probation agents did not petition the supervising court to incarcerate the probationer for the alleged violations. Subsequently, while driving under the influence, the probationer caused an accident which resulted in serious injuries to Mr. and Mrs. Lamb's minor daughter.

The Lambs filed suit, alleging negligence against the probationer, the Director of the Department of Parole and Probation and various employees of the Department. The trial court sustained a demurrer ¹ to the complaint, without leave to amend, on the ground that the statute requiring probation officers to report to the court did not create a duty running to appellant.

The Court of Appeals in Lamb discussed the Restatement (Second) of Torts § 319 (1965). That section provides One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

Lamb, 303 Md. at 243, 492 A.2d 1297. In commenting upon the language used in the section, the Court noted that, "the operative words of this section, such as 'takes charge' and 'control,' are obviously vague, and the Restatement makes no formal attempt to define them." Lamb, 303 Md. at 243, 492 A.2d 1297. The Court went on to say that the comment to Section 319 indicates that the section applies in two situations:

First, § 319 applies to those situations where the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. Second, § 319 applies to those situations where the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know.

Lamb, 303 Md. at 243, 492 A.2d 1297.

After giving certain examples, the Court stated: "Because there are degrees of being 'in charge' and having 'control,' these illustrations are obviously not by way of limitation. These illustrations suggest, however, that Section 319 has peculiar application to custodial situations." Lamb, 303 Md. at 244, 492 A.2d 1297 (citation omitted).

The Court stated, in discussing custody, that "The more traditional and obvious examples [of taking charge of a person] include a correctional institution incarcerating a dangerous criminal, or a mental institution confining a dangerous patient." Lamb, 303 Md. at 246, 492 A.2d 1297 (citations omitted). 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. 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.

The Joneses, in the case at hand, argue that the facts and opinions in...