Neal v. Balt. City Bd. of Sch. Comm'rs

• Decision Date: 28 February 2020
• Docket Number: No. 21, Sept. Term, 2019,21, Sept. Term, 2019
• Citation: 225 A.3d 66,467 Md. 399
• Parties: Starr NEAL, et al. v. BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS
• Court: Court of Special Appeals of Maryland

467 Md. 399

225 A.3d 66

Starr NEAL, et al.

v.BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS

No. 21, Sept. Term, 2019

Court of Appeals of Maryland.

February 28, 2020

Argued by Jared Jaskot (Jaskot Law, Baltimore, MD), on brief, for Petitioners.

Argued by Tamal A. Banton, Senior Counsel (Amanda L. Costley, Associate Counsel, Office of Legal Counsel - Baltimore City Public Schools, Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Clayton Greene, Jr. (Senior Judge, Specially Assigned), JJ.

Getty, J.

As every bleacher fan and every Monday morning quarterback knows, it is easy to second guess any given situation.

Judge Marvin H. Smith, Wooddy v. Mudd , 258 Md. 234, 251, 265 A.2d 458 (1970).

In executing his trial strategy in a case against the Baltimore City Board of School Commissioners (the "Board") for an incident involving a school police officer, Plaintiffs' counsel made the decision to not appeal the summary judgment dismissal of the Board from the case and to avoid joinder of the Board until after the trial's conclusion. That decision was the result of counsel's misunderstanding of § 5-518 of the Courts and Judicial Proceedings Article ("CJ"), (1990, 2013 Repl. Vol.) and the Maryland Rules of Civil Procedure. Section 5-518 requires joinder of a county school board to an action against a county board employee that alleges damages resulting from a tortious act or omission committed by the employee in the scope of employment. Now, from the post-judgment vantage point of a Monday morning quarterback, the parties dispute whether the school board in this case is liable for a judgment against its employee when the board was dismissed from the case prior to trial.

We hold that even if a board is entitled to substantive dismissal from a case by summary judgment or otherwise, the plaintiffs are required under § 5-518 to keep the board as a party—or request that it be brought back into the case—in order for the board to be required to indemnify an employee. In the event a board is dismissed, the plain language of § 5-518 requires a plaintiff to (1) request that a board be brought back into a case for the purposes of indemnification; or (2) at the appropriate time, appeal a circuit court order that otherwise dismisses a board prior to or during trial. Plaintiffs' counsel below did not properly follow the plain language directives of § 5-518 either by requesting that the Board be brought back in after summary judgment or by appealing the summary judgment ruling. Due to these § 5-518 procedural errors, the Board is not required to satisfy the judgment.

BACKGROUND

A. Courts and Judicial Proceedings Article § 5-518.

This dispute is grounded in a fundamental disagreement about the operation of § 5-518 in the context of mandatory joinder. We start by noting that the discussion in this opinion is limited to the application of § 5-518 to "county board employees." The statute treats differently "board members" and "volunteers" in ways that are beyond the scope of this opinion.

At the relevant time,¹ § 5-518 provided:

(b) A county board of education, described under Title 4, Subtitle 1 of the Education Article, may raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy or, if self-insured or a member of a pool described under § 4-105(c)(1)(ii) of the Education Article, above $100,000.

(c) A county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less.

(d)(1) The county board shall be joined as a party to an action against a county board employee ... that alleges damages resulting from a tortious act or omission committed by the employee in the scope of employment ....

(2) The issue of whether the county board employee acted within the scope of employment may be litigated separately.

* * *

(e) A county board employee acting within the scope of employment, without malice and gross negligence, is not personally liable for damages resulting from a tortious act or omission for which a limitation of liability is provided for the county board under subsection (b) of this section, including damages that exceed the limitation on the county board's liability.

* * *

(h) Except as provided in subsection (e) ... of this section, a judgment in tort for damages against a county board employee acting within the scope of employment ... shall be levied against the county board only and may not be executed against the county board employee, the county board member, or the volunteer personally.

CJ § 5-518.

The core of the statutory scheme is § 5-518(c), which makes a county school board potentially liable through a limited waiver of sovereign immunity. The Court recently made clear that a county school board is, in certain contexts, an arm of the State. See Donlon v. Montgomery Cty. Pub. Sch. , 460 Md. 62, 80–82, 188 A.3d 949 (2018). Sovereign immunity is one such context in which a county school board is considered an arm of the State. Id. at 80–81, 86–88, 94, 188 A.3d 949 ; Beka Indus., Inc. v. Worcester Cty. Bd. of Educ. , 419 Md. 194, 210, 18 A.3d 890 (2011). The State and its agents have sovereign immunity from common law tort actions except to the extent that the Legislature has waived that immunity. Estate of Burris v. State , 360 Md. 721, 736, 759 A.2d 802 (2000) (citing Kee v. State Highway Admin. , 313 Md. 445, 455, 545 A.2d 1312 (1988) ). Absent a statutory waiver, therefore, county school boards and their employees and agents have complete immunity from tort claims. Section 5-518(c) provides a statutory waiver for claims up to, at the relevant time, $100,000. Section 5-518(b) provides that county school boards maintain complete sovereign immunity for claims above that amount.

Section 5-518(d) requires joinder of a county school board in an action against any board employee "that alleges damages resulting from a tortious act or omission committed by the employee in the scope of employment." CJ § 5-518(d)(1). In this context, the purpose of mandatory joinder is to place the board on notice that it must satisfy a judgment against an employee. Notably, as to joinder, § 5-518(d)(1) does not have any qualified language—rather it has mandatory language: the board "shall be joined" in any action against a board employee where tortious acts or omissions within the scope of employment allegedly damaged the plaintiff. CJ § 5-518(d)(1) (emphasis added).

Even if the board is properly joined, its responsibility to satisfy a judgment depends on "whether the county board employee acted within the scope of employment." CJ § 5-518(d)(2). Such a question may be litigated separately from the underlying action. Id.

Sections 5-518(e) and (h) proceed to lay out protections for board employees. First, a board employee, acting within the scope of her employment, is shielded from personal liability if she was not acting with malice or gross negligence, regardless of the amount of damages. CJ § 5-518(e). Second, where the employee acted without malice or gross negligence, any judgment against a county board employee acting within the scope of employment "shall be levied against the county board only and may not be executed against the county board employee." CJ § 5-518(h) (emphasis added). Thus, in those circumstances, a judgment may "be entered against both the employee and the county board of education, but the judgment may be levied and executed against the county board of education only." Bd. of Educ. v. Marks-Sloan , 428 Md. 1, 29, 50 A.3d 1137 (2012).

B. The Assaults.

A violent altercation occurred at the Vanguard Collegiate Middle School ("VCMS"), a Baltimore City Public School, on October 28, 2014. The facts presented at trial focused on the conduct of a school police officer at VCMS, Officer Lakeisha Pulley.² The entire encounter was recorded on school security cameras and the video was presented at trial.

During a class change, Officer Pulley verbally and physically assaulted three students, Starr Neal, Ty'llah Neal, and Diamond McCallum (the "Students").³ In the initial encounter, a verbal altercation between Officer Pulley and Starr Neal turned physical. As Starr Neal walked by, Officer Pulley reached out for Starr Neal, grabbed her by the hair and pushed her against a window. Starr Neal struggled with Officer Pulley as Officer Pulley hit her and directed pepper spray at her face. When Ty'llah Neal approached the altercation to intervene, Officer Pulley hit Ty'llah Neal and pushed her into an exterior door. A third student, Diamond McCallum, approached the fray and physically struck Officer Pulley in the head and neck area. Officer Pulley released her grip on Starr Neal's hair and chased Diamond McCallum down the hall. As Diamond McCallum backed away, Officer Pulley struck her three times in the head with an expandable baton. Officer Pulley then retreated and the altercation ended when Diamond McCallum withdrew into an office and a VCMS teacher physically restrained Starr Neal and Ty'llah Neal.

C. The Civil Case.

The parents and guardians of the Students filed three nearly identical complaints in the Circuit Court for Baltimore City against Officer Pulley and the Board.⁴ According to the Students' complaints, there was no provocation by the Students and the entire altercation occurred for "no apparent or viable" reason. The Students brought four intentional tort claims and two constitutional claims: (1) false imprisonment; (2) malicious prosecution; (3) false arrest; (4) intentional infliction of emotional distress; (5) violation of Article 26 of the Maryland Declaration of Rights; and (6) violation of Article 24 of the Maryland Declaration of Rights. The Students also brought claims of assault and battery against Officer Pulley and a claim of negligent hiring, retention, supervision and credentialing against the Board. Upon the Board's motion, the circuit court dismissed with prejudice the intentional infliction of...