Leake v. Johnson

• Decision Date: 30 March 2012
• Docket Number: Sept. Term,No. 2607,2010.,2607
• Parties: Nicole LEAKE, et al. v. Dondi JOHNSON, Jr., et al.
• Court: Court of Special Appeals of Maryland

204 Md.App. 387
40 A.3d 1127

Nicole LEAKE, et al.
v.
Dondi JOHNSON, Jr., et al.

No. 2607

Sept. Term

2010.

Court of Special Appeals of Maryland.

March 30, 2012.

[40 A.3d 1128]

William R. Phelan, Jr. (George A. Nilson, City Solicitor, on the brief), Baltimore, MD, for appellant.

Byron L. Warnken (James M. Nichols, Warnken, LLC, on the brief), Towson, MD, for appellee.

Panel: ZARNOCH, GRAEFF, RAYMOND G. THIEME, JR. (Retired, Specially Assigned), JJ.

GRAEFF, J.

[204 Md.App. 389] This appeal involves litigation arising from the death of Dondi Johnson, Sr., after he was arrested for public urination. Appellees, and cross-appellants, Mr. Johnson's estate and his two sons,¹ filed a wrongful death and survivorship action in the Circuit Court for Baltimore City against appellants, Officers Sendy Ferdinand, Michael Riser, and Nicole Leake. A jury found in favor of appellees, and the circuit court entered judgment in the amount of $416,500.

Both parties appeal from the order of the Circuit Court for Baltimore City. Appellants present two questions for our review,² and appellees present six questions.³

[40 A.3d 1129]

We have consolidated and reworded the questions presented as follows:

[204 Md.App. 390] 1. Did the circuit court properly deny the officers' motions for judgment notwithstanding the verdict?

2. Did the circuit court err in ruling, pursuant to the limitation of liability in the Local Government Tort Claims Act, that the case involved three individual claims and one occurrence?

For the reasons set forth below, we shall answer both questions in the affirmative, and therefore, we will affirm in part, and reverse in part, the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On October 27, 2008, appellees filed a Complaint in the Circuit Court for Baltimore City, naming Officers Sendy Ferdinand, Nicole Leake, and Michael Riser as defendants. In their Complaint, appellees raised multiple claims, including battery, negligence, gross negligence, and two counts of wrongful death. They asserted that Mr. Johnson was arrested for public urination, handcuffed, and placed into a police van, where appellants “maliciously failed to belt [Mr. Johnson] into the paddy wagon/police van's seat so that he was subject to being violently thrown around the back of the vehicle as the Defendant Leake drove in an aggressive fashion, taking turns [204 Md.App. 391] so as to injure [Mr. Johnson] who was helplessly cuffed.” The Complaint further stated:

After having inflicted permanent, serious and life threatening injuries to [Mr. Johnson], these Defendants made no attempts whatsoever to administer first aid or medical care. Specifically, notwithstanding [Mr. Johnson's] complaints of numbness and an inability to move, these Defendants failed to immobilize [Mr. Johnson's] neck, failed to obtain emergency medical assistance, and simply transported [Mr. Johnson] from the back of the paddy wagon/police van to

[40 A.3d 1130]

another police vehicle, unsecured and without adequate stabilization, after he had sustained significant injury. Thereafter, they drove him, unsecured and unstabilized, to the hospital.

On December 8, 2008, Officer Leake filed an answer to the complaint. In her answer, she generally denied liability and asserted a number of affirmative defenses. She claimed that her “allegedly wrongful acts were justified and privileged”; she was “immune from liability”; and she “acted reasonably and with good faith belief that [her] actions were lawful and proper.” She further asserted that “[t]he injuries or damages complained of resulted from acts or omissions of others for which [she] cannot be held legally responsible” and that “[a]ny damages that may be recovered are limited by law.”

On January 9, 2009, Officers Riser and Ferdinand filed answers to the complaint. They asserted, among other things, that as members of the Baltimore City Police Department (the “Department”), they were “entitled to public official immunity.” The officers stated that “[t]he touching of the Plaintiff by the Defendant as alleged in the complaint did not occur.” Each officer stated that he “acted reasonably under the circumstances and in good faith.” Each officer also asserted that “Plaintiff has failed to comply with the required notice provisions of the Local Government Tort Claims Act,” and that “Plaintiffs' claim exceeds the cap on damages under the LGTCA.”

[204 Md.App. 392] Trial commenced on March 25, 2010. Charles J. Key, a former member of the Department, testified as an expert in police policies and procedures. When he worked at the Department, Mr. Key trained officers regarding the use of legal force, and he wrote the General Order regarding the use of force. Mr. Key testified that “[a] General Order is a mandate from the agency that a police officer will act in certain circumstances or situations in a specific way. It mandates their conduct.”

The parties stipulated that General Order K14, which deals with persons in police custody, was related to the case. General Order K–14 states:

Whenever a person is taken into custody, ensure the safety of the arrestee and ensure medical treatment for a prisoner is obtained when necessary at the nearest emergency medical facility.

* * *

[W]henever an arrestee is transported in a police vehicle ensure ... [t]he arrestee is secured with seat restraint belts provided. This procedure should be evaluated on an individual basis so not to place oneself in any danger.

Mr. Key testified that officers transporting a prisoner “have the responsibility of ensuring the safety and well-being of the individual, providing medical care or an access to medical care if necessary. And then the transporting officer has the additional responsibility of seatbelting the individual in.” The only exception to the requirement of belting an arrestee with a seatbelt is officer safety. Mr. Key explained that this exception applies in circumstances where the officer reasonably believes he or she could be placed in danger.

Mr. Key also testified about the term “rough ride.” It is a police term for “an unsanctioned technique” where the driver of a prisoner transport vehicle “would drive in such a manner that caused injury or pain to the individual in the back of the wagon.”

[204 Md.App. 393] Baltimore City police officers are trained as “first responders.” Mr. Key explained that a “[f]irst responder is an individual that's trained to a level in first aid that will allow them to give first aid to

[40 A.3d 1131]

people that are injured,” and that, upon arriving on the scene of an injury, they have a duty “to assess the injury of the individual and provide appropriate first aid for that specific injury until the arrival of medical personnel.” General Order K–14 states that, “upon arresting a person who is ill or seriously injured,” an officer should “administer first aid.” If the first aid that is required is beyond the skill or ability of a first responder, then the officer should “[s]tabilize [the arrestee] to the point that their training would allow them and then call for an ambulance.” Order K–14 also mandates that the officer write a report regarding the injury.

Officer Leake testified that, on November 23, 2005, she received a call to transport an arrestee from the intersection of Pimlico Road and Loyola Southway in Baltimore City. She picked up Mr. Johnson between 4:00 p.m. and 6:00 p.m. His hands were cuffed behind his back. The van she drove had a door in the back and hard plastic benches on both sides, facing each other. Mr. Johnson stepped into the van himself and did not threaten any of the officers. Neither she, nor the other two officers, put a seatbelt on Mr. Johnson. While transporting Mr. Johnson, Officer Leake heard several bangs from the back of the van. At some point during the trip, Mr. Johnson moved toward the plexiglass divider at the front of the van and was “screaming at [Officer Leake] to get him to the bathroom.” She decided to take Mr. Johnson to the Northwest District to use the restroom, and she told the arresting officers, Ferdinand and Riser, to follow her to the District. When she arrived at the District and opened the back door of the van, Mr. Johnson was lying on the floor of the van and could not move.

Officer Leake told the other officers to take Mr. Johnson out of the van. She did not call for medical assistance because Mr. Johnson did not ask for it, and she thought he was lying because “he was banging the whole route in the wagon and [204 Md.App. 394] yelling at the same time to get him to the bathroom.” After Officers Ferdinand and Riser removed Mr. Johnson from the back of the van, Officer Leake got back into the van and drove to pick up another arrestee. She never wrote an incident report as required by Order K14.

During cross-examination, Officer Leake testified that she did not put a seatbelt on Mr. Johnson because he had been arrested for public urination, and Mr. Johnson repeatedly stated that he needed to go to the bathroom. She testified: “I did not seatbelt him in because I acting in good faith felt if I seatbelted him in and his bladder being below his waist would cause more harm to him since he had to go to the bathroom and expressed that to me on more than one occasion.” She denied giving Mr. Johnson a “rough ride.”

Officer Leake told the Internal Investigations Division that it took her approximately three minutes to drive from the arrest scene to the police station. After driving the route multiple times, however, Officer Leake acknowledged that the route takes eight to ten minutes, and to drive it in three to five minutes would require driving in excess of the speed limit.

Dr. Morris Marc Soriano, an expert in neurosurgery with special emphasis on the cervical spine, testified that he had reviewed Mr. Johnson's medical records. When Mr. Johnson arrived at Sinai Hospital, a tube was placed in Mr. Johnson's bladder, and there was no evidence of urine in his bladder. Mr....