Lovelace v. Anderson

• Decision Date: 03 December 2001
• Docket Number: No. 70,70
• Citation: 366 Md. 690,785 A.2d 726
• Parties: James LOVELACE, Individually, etc., v. Kenneth ANDERSON, et al.
• Court: Maryland Court of Appeals

785 A.2d 726

366 Md. 690

James LOVELACE, Individually, etc., v. Kenneth ANDERSON, et al.

No. 70, Sept. Term, 1999.

Court of Appeals of Maryland.

December 3, 2001.

Stanley H. Katz (John N. Spector, P.A., on brief,) Baltimore, for petitioner.

Sara E. Angeletti, Assistant City Solicitor, and argued by Mark T. Mixter (John M. Oliveri, Law Offices of Mark T. Mixter, on brief,) Frank C. Derr, Deputy City Solicitor (William R. Phelan, Jr., Principal Counsel, on brief,) Gary Charles May, Chief Solicitor, on brief, Baltimore, David B. Stratton (Jordan, Coyne & Savits, L.L.P., on brief,) Washington, D.C., for respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY,¹ RAKER, WILNER, CATHELL, and KARWACKI, ROBERT L. (retired, specially assigned), JJ.

ELDRIDGE, J.

In this tort case, an off-duty Baltimore City police officer, Kenneth Anderson, was employed by a hotel as a private security guard. While Anderson was on duty as a security guard at the hotel, two men entered the hotel lobby and pointed a sawed-off shotgun at the desk clerk, attempting a robbery. Anderson, who was in the hotel lobby at the time, took out his police service handgun, and a gun battle ensued between Anderson and the robbers. The plaintiff James Lovelace, a guest of the hotel who happened to be in the lobby at the time, was struck and injured by a bullet fired from Anderson's handgun.

In Lovelace's tort action against Anderson and the hotel owners and operators, the trial court granted summary judgment in favor of Anderson and the hotel owners and operators, and the Court of Special Appeals affirmed. We granted Lovelace's petition for a writ of certiorari to consider the tort liability, if any, of Anderson and the hotel owners and operators for Anderson's allegedly negligent shooting of Lovelace. We shall reverse the grant of summary judgment.

I.

A.

The trial court's grant of summary judgment was based on numerous depositions, affidavits, and exhibits. The testimony on several matters was conflicting, and we shall in our review of the facts note some of those conflicts. Nevertheless, as the tort action against the defendants Anderson and the hotel owners and operators was decided by a grant of the defendants' motions for summary judgment, we must review the facts, and all inferences therefrom, in the light most favorable to the plaintiffs. See, e.g., Taylor v. Nations-Bank, 365 Md. 166, 173-174, 776 A.2d 645, 650 (2001)

(in reviewing "the propriety of the court's grant of summary judgment * * *, the evidence, and all inferences therefrom, are viewed in the light most favorable to the nonmoving party"); Jones v. Mid-Atlantic Funding, 362 Md. 661, 679, 766 A.2d 617, 626 (2001) ("when considering the granting of summary judgment we examine the facts and the inferences derived from the evidence in the light most favorable to the nonmoving party"); Walpert v. Katz, 361 Md. 645, 650 n. 2, 762 A.2d 582, 584 n. 2 (2000); Okwa v. Harper, 360 Md. 161, 178, 187, 757 A.2d 118, 127, 132 (2000); Williams v. Baltimore, 359 Md. 101, 113-115, 753 A.2d 41, 47-48 (2000); Ashton v. Brown, 339 Md. 70, 79-80, 660 A.2d 447, 451-452 (1995), and cases there cited.

Furthermore, it is an established rule of Maryland procedure that, "[i]n appeals from grants of summary judgment, Maryland appellate courts, as a general rule, will consider only the grounds upon which the [trial] court relied in granting summary judgment." PaineWebber v. East, 363 Md. 408, 422, 768 A.2d 1029, 1036 (2001). Judge Rodowsky for the Court in the PaineWebber opinion, 363 Md. at 422-423, 768 A.2d at 1036-1037, went on to set forth the reasons for this principle, quoting from Gresser v. Anne Arundel County, 349 Md. 542, 709 A.2d 740 (1998), and Geisz v. Greater Baltimore Med. Ctr., 313 Md. 301, 545 A.2d 658 (1988), as follows:

"`[W]e will not speculate that summary judgment might have been granted on other grounds not reached by the trial court.'" Gresser, 349 Md. at 552, 709 A.2d at 745. In Geisz v. Greater Baltimore Med. Ctr., 313 Md. 301, 314, n. 5, 545 A.2d 658, 664 n. 5 (1988), we stated the rule as follows:

"`On an appeal from the grant of a summary judgment which is reversible because of error in the grounds relied upon by the trial court the appellate court will not ordinarily undertake to sustain the judgment by ruling on another ground, not ruled upon the trial court, if the alternative ground is one as to which the trial court had a discretion to deny summary judgment. For example, a motion might be denied in order to allow the party opposing the motion a further opportunity through discovery to present a triable issue of fact. See Metropolitan Mtg. Fund v. Basiliko, 288 Md. 25, 415 A.2d 582 (1980)

. Thus, in Henley v. Prince George's County, 305 Md. 320, 503 A.2d 1333 (1986), a case of alleged negligent hiring, we reversed a summary judgment for a defendant because, contrary to the trial court's conclusion, we found a triable issue of hiring. We would not, however, consider if a lack of proximate cause was an alternative support for the judgment because `[t]he effect of our ruling on the issue of proximate cause, or any other issue not considered by the trial judge would be to deprive the trial judge of discretion to deny or to defer until trial on the merits the entry of judgment on such issues.' Id. at 333, 503 A.2d at 1340.'"

See also, e.g., Bishop v. State Farm, 360 Md. 225, 234, 757 A.2d 783, 787 (2000)

("it is a settled principle of Maryland appellate procedure that ordinarily an appellate court will review a grant of summary judgment only upon the grounds relied upon by the trial court"); Ashton v. Brown, supra, 339 Md. at 80, 119, 660 A.2d at 452, 471; Gross v. Sussex, 332 Md. 247, 254 n. 3, 630 A.2d 1156, 1159 n. 3 (1993); T.H.E. Ins. v. P.T.P., Inc., 331 Md. 406, 409 n. 2, 628 A.2d 223, 224 n. 2 (1993); Boyer v. State, 323 Md. 558, 588, 594 A.2d 121, 136 (1991).

B.

In December 1993, Kenneth Anderson was employed by the Baltimore City Police Department, working 40 hours per week as an "administrative sergeant" in the southwest district of Baltimore City. Anderson's duties for the Baltimore City Police Department at that time consisted of "administrative stuff that ... came across my desk, with reference to photographs, vehicles, vehicle maintenance, ... medical." He was not, at the time, "on the streets" for the Police Department.

Also in December 1993, during his off-duty hours as a Baltimore City policeman, Anderson was employed as a security guard at a hotel outside of Baltimore City. The hotel was then called the Days Inn, and it was located on Security Boulevard in Baltimore County. According to Anderson's deposition testimony, he worked 24 or 25 hours per week for the Days Inn. Anderson further testified that, at the time he and other security guards were hired by the Days Inn, the person who hired them "wanted us to work security. She had special, you know, assignments for us that she wanted, and one of them was to prevent robberies if we could...." When on duty as a security guard for the Days Inn, Anderson would not wear his police uniform but would dress in "just regular everyday plain clothes." Anderson further testified that, when he and others were on duty as security guards, the management of the Days Inn "did not want our guns to show." Anderson's police service handgun was a Glock 17 nine millimeter semi-automatic pistol which, when fully loaded, would hold seventeen bullets. He carried this handgun, concealed, when acting as a security guard for the hotel. Anderson had not obtained from the Maryland State Police a permit to carry a handgun when employed as a security guard at the Days Inn in Baltimore County.

During the late afternoon and evening of December 2, 1993, Anderson was not on duty in Baltimore City as a policeman. Instead, he was on duty as a security guard at the Days Inn, working the 4:00 p.m. to midnight shift. He was paid by the owners and operators of the Days Inn for the 4:00 p.m. to midnight period on December 2, 1993.

On the evening of December 2, 1993, James Lovelace was a guest at the Days Inn on Security Boulevard, and he had been a guest at the hotel for the previous five or six days. Prior to the evening of December 2, 1993, Lovelace had been introduced to Anderson, and he knew that Anderson was one of the security guards at the Days Inn. Michael Gordon was employed as a desk clerk at the Days Inn, and he was on duty behind the desk during the evening of December 2, 1993.

At about 8:10 p.m. on December 2, 1993, Lovelace walked into the lobby at the Days Inn and stood at one end of the front desk which was about ten feet in length. Gordon was behind the front desk, and Anderson was sitting on a sofa in the lobby. A few seconds after Lovelace entered the hotel lobby, two men, later identified as Earl Jennings and Randy Terry, and both "dressed in a scrubby fashion," entered the hotel lobby and walked to the front desk. The testimony as to where Jennings and Terry were standing at the front desk was conflicting. Terry removed a sawed-off shotgun from under his coat, pointed it at the desk clerk Gordon, and yelled "hold up." Jennings immediately thereafter took out a bag, handed it to Gordon, and Gordon started toward the cash register.

Anderson testified that when Terry pointed the shotgun at Gordon and yelled "hold up," Anderson stood up, unzipped his jacket, got out his pistol, and announced "police." According to Anderson, Terry turned around and fired at Anderson. Anderson stated that he returned the fire, that he was shooting with "tunnel vision," that the "only thing I could see was that shotgun and the two suspects," and that he lost "sight of Mr. Lovelace." Anderson discharged twelve rounds of ammunition in "about three seconds."

Jennings was killed by a shot to his head. Terry was shot in the back, but he was able to flee. Terry was later apprehended, convicted of attempted robbery and attempted murder,...