Lovelace v. Anderson

• Decision Date: 03 June 1999
• Docket Number: No. 1249,1249
• Citation: 730 A.2d 774,126 Md. App. 667
• Parties: James LOVELACE, Individually, etc. v. Kenneth ANDERSON, et al.
• Court: Court of Special Appeals of Maryland

730 A.2d 774

126 Md. App. 667

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

No. 1249, Sept. Term, 1998.

Court of Special Appeals of Maryland.

June 3, 1999.

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

Sara Angeletti, Asst. City Solicitor, Baltimore, for appellee, Anderson.

Bernard Ilkhanoff, Asst. City Solicitor, Baltimore, for appellees, Frazier, State of Maryland, and Baltimore City Police Dept.

Mark T. Mixter (Debra B. Cruz, on the brief), Baltimore, for appellee, Sterling Hotel.

William R. Phelan, Jr., Principal Counsel (Frank C. Derr, Deputy City Solicitor, on the brief), Baltimore, for appellee, Mayor and City Co.

James J. Bresnicky (Jordan, Coyne and Savits, L.L.P., on the brief), Washington, DC, for appellee, Sage Hospitality.

Argued before HARRELL, EYLER and ADKINS, JJ.

ADKINS, Judge.

This is an appeal by James Lovelace, appellant, from adverse judgments entered by the Circuit Court for Baltimore County (Fader, J.) granting motions for summary judgment in favor of Kenneth Anderson, Sterling Hotel, Inc., d/b/a Days Inn West Baltimore (Sterling), and Sage Hospitality Resources, Inc., d/b/a Days Inn West Baltimore (Sage), and granting motions to dismiss in favor of the State of Maryland, the Mayor and City Council of Baltimore (MCCB), Police Commissioner Thomas C. Frazier, and the Baltimore City Police Department (BCPD). Appellant timely noted this appeal.

Because the issues presented can be best understood in their factual contexts, we begin with a statement of the essential facts.

FACTS AND LEGAL PROCEEDINGS

On December 2, 1993, at approximately 8:00 p.m., a shooting occurred at the Days Inn West Baltimore hotel located on Security Boulevard in Baltimore County, Maryland. At that time, Anderson, an off-duty Baltimore City police officer hired by the hotel management company, Sage, was working as a security guard for the hotel. Anderson was dressed in plain clothes and carried a handgun issued by BCPD, his BCPD badge, and a BCPD identification card. Anderson had previously been approved for this secondary employment. By virtue of deposition testimony and a surveillance videotape that captured the events,¹ many of the facts about what occurred on the evening of the shooting are undisputed. In our summary below, all facts were undisputed, unless we specifically state otherwise.

While seated in the hotel lobby, Anderson observed two men, later identified as Randy Terry and John Earl Jennings,² enter the lobby of the hotel. Upon entering, the two men proceeded to the front desk and attempted to rob the hotel desk clerk, Michael Gordon. Lovelace, an elderly man who was a guest at the hotel, was standing at the opposite end of the front desk. The two suspects were facing the desk clerk with their backs to the lobby seating area. One of the men pulled a sawed-off shotgun from under his coat and pointed it at Gordon. It is disputed as to whether the suspects announced a holdup. Anderson began to rise and draw his departmental service weapon.

At this point, because the video is unclear³ and does not have audio, there is conflicting evidence as to the exact sequence of events culminating in the gun battle.⁴ Anderson says that he shouted, "Police!" as he drew his weapon. Next, Anderson says he was fired upon by Terry, causing the loss of fingers from his left hand. Anderson returned the fire. Terry and Lovelace say that they did not hear Anderson yell, "Police!" They also say that the gun battle began as a result of Anderson firing upon Terry first.

It is undisputed that Jennings, who was injured at the time, and Lovelace, who was uninjured at the time, both fell to the ground. Terry testified, without dispute, that he fired at Anderson with a .357 Magnum handgun six times, and when Jennings fell down, Terry retrieved his shotgun and fired that at Anderson twice. According to Terry, the gun battle lasted approximately five to six minutes. Terry then staggered out of the front door. Anderson shot Jennings in the head, killing him.

At some point during the battle, prior to the shot that killed Jennings, a bullet from Anderson's gun ricocheted and injured Lovelace. The bullet traveled through his big toe and into his ankle on the other leg. Lovelace stated in his deposition that when he fell to the ground, his foot was approximately twelve inches from Jennings's head. Anderson discharged twelve rounds in less than three seconds and stated he was shooting with "tunnel vision" and lost sight of Lovelace. The only things he could see were the shotgun and the two suspects.

Terry testified at a deposition that he walked into the same hotel lobby a month prior to this shooting and robbed a hotel clerk. He said that no weapons were drawn that time because the clerk simply handed over the money. He testified that his intention in entering the second time was to rob the clerk just as he had done on the previous occasion.

To complicate matters, ownership of the hotel changed hands on the day in question. By court order dated December 1, 1993, the Circuit Court for Baltimore County granted a Petition for Substituted Purchaser and ordered that Sterling be substituted as purchaser of the hotel. The Substituted Trustee's Deed was executed on December 2, 1993. Sage managed the hotel property up until some point on December 2. The closing of the transaction took place just hours prior to the shooting, which occurred at approximately 8:10 p.m. Sage claims that its management agreement was to be terminated upon consummation of the sale and transfer of the property, but allowed certain items to be resolved after closing. Anderson punched in two time cards on December 2, and was paid partially by Sage and partially by Sterling for his service on that day.

As a result of the above incident, Lovelace filed a complaint against Anderson alleging that his December 2 conduct was negligent or grossly negligent. Lovelace also sued Sage and Sterling. Lovelace subsequently filed an amended complaint and a second amended complaint adding MCCB, BCPD, Frazier, and the State as defendants. Following transfer of the case to Baltimore County, the court granted MCCB's motion to dismiss on September 3, 1996. On October 15, 1996, the court granted the State's motion to dismiss. On January 7, 1997, the court granted BCPD's motion to dismiss. On February 20, 1997, the court granted Frazier's motion to dismiss.

The remaining defendants were Anderson, Sage, and Sterling. The trial court entered its judgment on June 12, 1998, and determined that Anderson was entitled to immunity as a police officer at the time that he drew his weapon and intervened on behalf of the victims of the armed robbery. The court also determined that there was no genuine dispute as to any material facts. As a result, summary judgment was granted in favor of Anderson.

Additionally, the court granted summary judgment in favor of Sterling and Sage. The court stated that "[n]o facts have been presented in opposition ... to show action by Anderson that was intentional, with malice or gross negligence." With regard to Sage, the court found no evidence to support the existence of an agent, servant and/or employee relationship between Sage and Anderson. With regard to Sterling, the court extended Anderson's immunity to it and granted its motion for summary judgment in part by finding that Sterling was immune from suit. The court, however, denied in part Sterling's motion requesting that the court determine that there was no employment relationship between Sterling and Anderson at the time of the shootings.

Judgment as to all parties was entered on June 12, 1998, and Lovelace timely noted this appeal. Additional facts will be added below as necessary to supplement our discussion.

ISSUES

Appellant asks us to determine whether the trial court incorrectly shifted the burden to him when Anderson failed to show an absence of material facts in dispute and failed to identify the statute on which his immunity was based. Appellant also asks us to determine whether the trial court erred in: 1) deciding the scope of Anderson's employment as a matter of law; 2) determining the issue of immunity prior to trial; 3) failing to find a waiver of immunity; and 4) extending the immunity granted to Anderson to his hotel employer. Cross-appellant Sterling requests that we modify the trial court's order to remove the reference to Anderson "working as a security guard" at the time of the shooting.

Appellees argue that the trial court was correct in disposing of appellant's claims. We agree. With regard to Sterling's cross-appeal, we decline to modify the circuit court order because Sterling did not assert the existence or possibility of any adverse prejudice as a result of the order.

DISCUSSION

I. Standard of Review

First, we set forth our standard of review for summary judgment. Maryland Rule 2-501(e) provides that a court may grant a motion for summary judgment "in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." In considering a motion for summary judgment, the trial court does not determine any disputed facts, but instead rules on the motion as a matter of law. See Southland Corp. v. Griffith, 332 Md. 704, 712, 633 A.2d 84 (1993); White v. Friel, 210 Md. 274, 285, 123 A.2d 303 (1956). The court views the facts, including all inferences, in the light most favorable to the party against whom the court grants the judgment. See Beard v. American Agency Life Ins. Co., 314 Md. 235, 246, 550 A.2d 677 (1988). We are confined ordinarily to the basis relied on by the trial court in our review. See Warner v. German, 100 Md.App. 512, 517, 642 A.2d 239 (1994).

We are also reviewing the granting of motions to dismiss. "In analyzing a motion to dismiss, the trial court...