Muthukumarana v. Montgomery County

• Decision Date: 26 August 2002
• Docket Number: No. 83, No. 84
• Citation: 370 Md. 447,805 A.2d 372
• Parties: Sriyani MUTHUKUMARANA, Individually, etc, v. MONTGOMERY COUNTY, Maryland, et al. Sarah Fried, et al., v. Kim Archer, et al.
• Court: Maryland Court of Appeals

805 A.2d 372

370 Md. 447

Sriyani MUTHUKUMARANA, Individually, etc, v. MONTGOMERY COUNTY, Maryland, et al.

Sarah Fried, et al., v. Kim Archer, et al.

Nos. 83, 84, Sept. Term, 2001.

Court of Appeals of Maryland.

August 26, 2002.

Daniel A. Brown (Brown & Gould, LLP, on brief), Bethesda, for appellant.

Sharon V. Burrell, Principal Counsel for Self-Insurance Appeals (Charles W. Thompson, Jr., County Attorney, and Joann Robertson, Chief, Division of Litigation, on brief), Rockville, for appellees.

Linda W. Buckel, Asst. County Atty., Cumberland, County Com'rs of Allegany County, Maryland, Linda M. Schuett, County Atty., Annapolis, Anne Arundel County, Maryland, Thurman W. Zollicoffer, Jr., City Solicitor, Baltimore, Mayor and City Council of Baltimore, Edward J. Gilliss, County Atty., William J. Wiseman, III, Asst. County Atty., Towson, Baltimore County, Maryland, Emanuel Demedis, County Atty., Prince Frederick, County Com'rs for Calvert County, Maryland, Kimberly A. Millender, Acting County Atty., Westminster, County Com'rs for Carroll County, Maryland, Barbara M. Cook, County Solicitor, Rebecca A. Laws, Sr. Asst. County Solicitor, Louis P. Ruzzi, Sr. Asst. County Solicitor, Ellicott City, Howard County, Maryland, Ernest S. Cookerly, County Atty., Chestertown, County Com'rs for Kent County, Maryland, Guy R. Ayres, III, City Solicitor, Ocean City, Mayor and City Council of Ocean City, Sean D. Wallace, County Atty., John A. Bielec, Deputy County Atty., Upper Marlboro, Prince George's County, Maryland, Patrick E. Thompson, County Atty., Stevensville, County Com'rs for Queen Anne's County, Maryland, Richard W. Douglas, County Atty., Hagerstown, County Com'rs for Washington County, Maryland, Edgar A. Baker, Jr., County Atty., Salisbury, Wicomico County, Maryland, Edward H. Hammond, Jr., County Atty., Ocean City, County Com'rs for Worcester County, Maryland, Kurt T. Rumsfeld, Legal Counsel, Intern. Ass'n of Fire Fighters, Washington, DC, Henry W. Underhill, Jr., General Counsel & Executive Director, Intern. Mun. Lawyers Ass'n, Washington, DC, Mark G. Spurrier, Counsel, Maryland Chiefs of Police Ass'n, Inc., Largo, Sue Cusick Greer, Counsel, Maryland Sheriffs Ass'n, Inc., Annapolis, Roger Lee Fink, County Atty., LaPlata, County Com'rs for Charles County, Maryland, brief of amici curiae, for appellees, amicus curiae.

Clifford L. Hardwick (Hardwick & Harris, LLP, on brief), Baltimore, for petitioners.

Philip S. Roberts, Asst. County Atty. (A. Frank Carven, III, County Atty., on brief), Bel Air, for respondents.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. HARRELL, Judge.

These two cases, Fried v. Archer, No. 84, September Term, 2001, and Muthukumarana v. Montgomery County, No. 83, September Term, 2001, share a common issue: whether local government emergency telephone system employees (specifically operators, dispatchers, and managers) owe an individual tort duty to persons in need of their services, and, if so, under what circumstances the employees may be held liable for the negligent performance of that duty.¹ These cases also present other issues which we shall address, but at the core of both is this shared issue.

Following our examination of the separate factual and procedural backgrounds in both cases, we shall rephrase and consolidate the questions presented for our review. We will consider separately, however, the issues unique to each case. Our general review of the law applicable to 911 employees will then be applied specifically to both cases at hand.

I.

A. Fried

On 11 November 1995, Tiffany Fouts, the daughter of Petitioner, Ms. Sarah Fried, arranged to spend the night at the home of her friend, Melanie Meadowcroft. That evening, Tiffany and Melanie visited the home of one of Melanie's acquaintances, Eric F., located at 1443 Charleston Drive, K Court, in Edgewood, Maryland. Three other boys also were present that evening at Eric's home, Donte W., Ricky W., and Louis D., along with Eric's mother, Ms. Tresa F.²

Shortly after Tiffany and Melanie arrived, "alcoholic beverages were made available and consumed by all of" the minors at the home. Within one hour, Tiffany began to vomit and "became semiconscious." At that time, "certain guests engaged in non consensual sexual acts with Tiffany," dropped "heavy objects" on her head, and "urinated upon her." In an effort to conceal Tiffany's condition, Eric F. and Donte W. dragged her outside of the home through the basement. They "left Tiffany, wearing only a tee shirt, skirt, socks, and shoes, in an area of woods located directly behind the townhome." Fried v. Archer, 139 Md.App. 229, 238, 775 A.2d 430, 435,cert. granted,366 Md. 246,783 A.2d 221 (2001). The weather at that time "was cold and wet" with a "forecast[ed] winter storm, including snow, approaching the area." Id.

Subsequently, Donte W., in the presence of Eric F. and Ricky W., called the Harford County Sheriff's Office ("the HCSO") ostensibly to inform them of the location of Tiffany.³ Ms. Kim Archer, Respondent, a police communications officer, received the call. The conversation unfolded as follows:

[Archer:] Harford County Sheriff's Office, PCO Archer.

[Donte W.:] Hello.

[Archer:] Yes.

[Donte W.:] Um, there's a girl in the back of the woods like.

[Archer:] Back of what woods.

[Donte W.:] Um, Harford Square.

[Archer:] Okay. What's the exact address?

[Donte W.:] There ain't no exact address where she's at.

[Archer:] Okay. What's the residence where she is? Can you give me the residence in front of where she's to the rear of?

[Donte W.:] What's the address to those people over there? Cause she's further that way. 1436? (Inaudible.) 1436.⁴

[Archer:] Okay. Harford Square.

[Donte W.:] Yes, K Court.

[Archer:] Okay. And what's she doing, sir?

[Donte W.:] Just laying there.

[Archer:] Okay. She's just laying to the rear of the house?

[Donte W.:] Yes, she was. She was over a?€”. She was over here drinking and she was laying there.

[Archer:] Okay. Is she a white female? Black female?

[Donte W.:] Yeah.

[Archer:] Which one?

[Donte W.:] White female.

[Archer:] Okay. White female. Okay. And your last name, sir?

[Donte W.:] I'd just say anonymous.

[Archer:] Okay. We'll send someone out.

[Donte W.:] Thanks.

Following the call, Archer dispatched Deputy Sheriff Kevin Thomas ("Deputy Thomas") to investigate. In a transmission to Deputy Thomas, which occurred at approximately 10 p.m., Archer erroneously reported that Tiffany was lying to the rear of a residence on J Court, not K Court.⁵ The content of the transmission was as follows:

10-25 to the rear of 1436 Harford Square Drive?€”1-4-3-6?€”Harford Square. It will be J?€”John?€”Court. Cross street is Charleston. Anonymous male's requesting a check on well being of a number 2 female. She is lying to the rear of this residence. He believes she's 10-56. Unable to give us any further in reference to description.

Upon Deputy Thomas's arrival at 1436 J Court, "`it was raining pretty hard' and was `[v]ery cold.'" Fried, 139 Md.App. at 242, 775 A.2d at 437 (alteration in original). Deputy Thomas exited his car and walked around the rear of the J Court townhomes, but was unable to locate Tiffany. He returned to his car and called Archer to request a recontact. He asked, "[c]ould the complainant come out to the back and point out where this young lady might be?" Archer replied that there was no reconnect information, stating, "[i]t's an anonymous male. He didn't want to give his information." Deputy Thomas then "`walked th[e] whole line of houses on that side of the court and then back around to the front.'" Id. He "encountered a Maryland State trooper who had also responded to the call, but had searched behind J1 Court, another separate court next to J Court." Id. A few minutes later, after finding no one, Deputy Thomas radioed Archer and stated, "10-8, 10-12." According to Deputy Thomas's testimony, "Code 12" indicated his determination that the call was an "unfounded complaint."

Although the precise time frame is unclear, Eric F. testified that after making their report to Archer, the boys went "out back" once and checked on Tiffany. Some time later, Eric F. testified that he and Ricky W. attempted to go outside again, but were prevented by his mother, who "came downstairs [and] told [him that he] had to stay in the house." Neither Eric F. or Ricky W. attempted to go outside again that evening. Unfortunately, in the early hours of 12 November 1995, Tiffany died from hypothermia in the location where Eric F. and Donte W. had left her.

Petitioner Fried, Tiffany's mother, filed a wrongful death and survival action in the Circuit Court for Harford County against Respondent Archer, Mr. James Terrell (the chief of Harford County's Emergency Management and Operations Division), Harford County, Maryland, John/Jane Doe ("unidentified dispatch or emergency service employees of Harford County's Emergency Management and Operations Division"), the HCSO, Deputy Thomas, Ms. Tresa F., and the State of Maryland. Fried alleged that Archer "breached her duty of care by failing to make basis inquiries of Donte W." and was negligent "in reporting that Tiffany ... was behind `J' Court when in fact she was reported to be and was in fact behind `K' Court." Fried also maintained that Archer was "further negligent in failing to report that Tiffany... was behind townhomes [sic] near a forested area." Regarding Terrell, Fried asserted that he negligently "employed improper procedures and/or failed to properly train [Archer]" which was "a proximate cause of the death of Tiffany."

On 28 December 1998, the "county defendants,"⁶ including Archer and Terrell, filed a motion to dismiss the claims against them. According to their motion, Archer enjoyed public official immunity, and Archer and Terrell owed no "duty to protect [Tiffany] from the criminal acts of the teenage boys in whose company she voluntarily placed herself ...."...