Keesling v. State

• Citation: 288 Md. 579,420 A.2d 261
• Decision Date: 02 October 1980
• Docket Number: No. 92,92
• Parties: , 19 A.L.R.4th 923 Elza L. KEESLING v. STATE of Maryland.
• Court: Court of Appeals of Maryland

Page 579

288 Md. 579

420 A.2d 261, 19 A.L.R.4th 923

Elza L. KEESLING v. STATE of Maryland.

No. 92.

Court of Appeals of Maryland.

Oct. 2, 1980.

Weldon Leroy Maddox, Baltimore, for appellant.

Glenn W. Bell, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

We shall decide in this case whether the Court of Special Appeals erred when it affirmed the Circuit Court for Anne Arundel County which granted the State's motion for summary judgment on the ground that the appellant had failed to allege a violation of Maryland Code (1957, 1970 Repl. Vol.), Art. 66 1/2, § 9-102, ¹ which provided, under certain circumstances, for damages to a citizen who is injured as a consequence of the police having commandeered his motor vehicle to apprehend suspected criminals.

The events which give rise to this high speed chase on the Maryland highways occurred on August 1, 1972. Officers Todd and Lacson of the Friendship Airport Police Department received a call that a man and woman were attempting to depart from the Friendship International Hotel without paying their bill. The officers proceeded to investigate the call and, after receiving a description of the suspects, intercepted Richard Dale and Laura Gray walking toward the airport. The officers stopped the suspects and began to talk to them about the hotel incident. At this point Dale brandished a gun and ordered Lacson to unlock the rear door which he did. Dale disarmed the officers, got into the police car and ordered the officers to drive them to Washington, D.C. The officers attempted to persuade Dale that he should return to the hotel but Dale refused, informing the officers that he was in "bad trouble" because he had just shot a man at the hotel. Lacson then convinced Dale that they needed gas to make the trip and pulled into a gas station. At this time a report was received over the police car radio regarding the shooting and requesting the officers to respond. Lacson convinced Dale that he should answer and advised the dispatcher that he was unable to respond and that he was enroute to Washington, D.C. In the process, he was able to depress the button on the microphone, thereby enabling continued transmission of the conversation occurring within the police car.

The officers and their captors then proceeded along the Baltimore-Washington Parkway toward Washington. Again Officer Lacson attempted to dissuade the suspects from continuing and stated that the parkway would be covered with police vehicles from various jurisdictions. The affidavits of Officers Todd and Lacson, as well as other papers in the court file, suggest that Dale ordered Officer Lacson to stop a blue Rambler which was proceeding in front of the police car, that the idea to stop the Rambler was solely that of Dale, and that Officer Lacson tried to persuade Dale not to follow through with this plan.

In stark contrast, Laura Gray, in her affidavit, maintains that the idea to stop the citizen's auto was suggested by the officers. According to her, the officers said: "It's foolish to try to get away in a marked police car. It'll draw too much attention. You should be in an unmarked car."

Officer Lacson in his affidavit admitted that he utilized his beacon light and siren to stop the vehicle. He further stated:

The vehicle pulled over and I pulled in behind him. I asked him if I could approach the vehicle before he did so the man would not panic and he agreed to this but followed me. I went up to the vehicle and explained to the gentleman what was going to happen. I then asked the subject not to hurt the man. He said "alright, get the hell out of here ...."

Dale and Gray entered the vehicle and ordered Elza Keesling, the plaintiff in this case, to drive. Officer Lacson got into a State police vehicle which had come onto the scene and Officer Todd got back into his own vehicle. A prolonged chase ensued involving police cars and helicopters from several jurisdictions. After avoiding two roadblocks, the Keesling vehicle was finally boxed in by a third moving roadblock and brought to a halt. During the chase, Dale had threatened to shoot the plaintiff; however, when his capture was imminent, he shot himself instead. Keesling claims to have suffered serious and permanent injuries as a result of the incident.

Keesling sued the State of Maryland alleging a violation of Maryland Code (1957, 1970 Repl.Vol.), Art. 66 1/2, § 9-102(a), (b), and (c). The Circuit Court for Anne Arundel County granted the State's motion for summary judgment, from which judgment an appeal was taken to the Court of Special Appeals. That court affirmed, concluding that, even considering the facts in a light most favorable to the appellant, no violation of § 9-102 had occurred. This Court granted certiorari.

Appellant contends that summary judgment should not have been granted. He maintains that, accepting the Gray affidavit as true, a jury would be entitled to conclude that the police were negligent under subsection (b) in suggesting that the suspects commandeer an unmarked car, thereby bringing about a situation where danger and violence to the plaintiff were highly foreseeable. Appellant also asserts that as a result of police conduct, his car became a device in a roadblock, with resulting injuries compensable under subsections (a) and (c).

The State contends that is was not the police who commandeered plaintiff's vehicle, but the suspects. It also maintains that the Keesling vehicle was not directed to participate in a roadblock, but was instead the subject of a roadblock. The State also raises two other issues. It asserts that the trial court should have granted appellee's motion for summary judgment on the basis of sovereign immunity and on the basis of Md.Rule 541c.

Summary judgment is proper only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Md.Rule 610. Here there is a dispute as to the facts. The affidavits and other matters conflict as to whether the idea to commandeer the Keesling vehicle was solely that of the suspects or whether it originated with the police. The existence of a dispute over a question of fact alone, however, will not preclude summary judgment. The disputed fact takes on significance when it is material to the outcome of the case. The Court of Special Appeals concluded that even accepting the facts in a light most favorable to the appellant, the fact was not material because no violation of § 9-102 had occurred. We disagree.

At the time of the occurrence, Maryland Code (1957, 1970 Repl.Vol.), Art. 66 1/2, § 9-102 provided:

(a) Commandeering vehicle and directing participation in road block prohibited.-No police officer of this State, or of any political subdivision of this State, while acting within the scope of his authority in the enforcement of any law of the State or of the particular political subdivision, shall direct or order any operator, owner, or passenger of any motor vehicle within the limits of this State to assist him by commandeering the vehicle and directing the operator, owner, or passenger to participate in a road block in the apprehension of any person suspected of having committed or known to have committed a violation of law.

(b) Damages or injuries from negligence of police officer.-If any police officer of this State, or of any political subdivision of the State, while acting within the scope of his authority in the enforcement of any law of this State or of the particular political subdivision, directs the operator of any motor vehicle (other than a police vehicle) within the limits of this State to assist him in the enforcement of the law or in apprehending any person suspected of having or known to have committed a violation thereof, the State or the political subdivision, as the case may be, shall be liable for damages or injuries proximately caused by the negligence of the police officer; provided, however, that the defenses of contributory negligence and "last clear chance" shall be available to the State or political subdivision. For purposes of this section, the Baltimore City police shall be considered police officers of Baltimore City, and the term "police officer" shall be deemed to include all persons charged with law enforcement. The fiscal officers of the State or political subdivision, as the case may be, shall forthwith or as soon as possible pay all just claims made or judgments entered pursuant to this section from funds within their control and available for that purpose.

(c) Damages or injuries from participation in road block.-If any police officer of this State, or of any political subdivision of this State, while acting within the scope of his authority in the enforcement of any law of this State or of the particular political subdivision, directs the operator of any motor vehicle (other than a police vehicle) within the limits of this State to participate in a road block to assist him in the enforcement of such law or in apprehending any person, suspected of having or known to have committed a violation thereof, the State or the political subdivision, as the case may be, shall be liable for damages or injuries directly resulting from, or directly attributable to the participation in the road block; provided, however, that the defenses of contributory negligence and "last clear chance" shall be available to the State or political subdivision. For purposes of this section, the Baltimore City police shall be considered police officers of Baltimore City, and the term "police officer" shall be deemed to include all persons charged with law enforcement. The fiscal officers of the State or political subdivision, as the case may be, shall forthwith or as soon as possible pay all just claims made or judgments entered pursuant...