Sawyer v. Humphries

• Decision Date: 22 March 1991
• Docket Number: No. 44,44
• Citation: 587 A.2d 467,322 Md. 247
• Parties: Robert Andrew SAWYER, et al. v. Edwin N. HUMPHRIES. Sept. Term 1990.
• Court: Maryland Court of Appeals

Page 247

322 Md. 247

587 A.2d 467

Robert Andrew SAWYER, et al. v. Edwin N. HUMPHRIES.

No. 44 Sept. Term 1990.

Court of Appeals of Maryland.

March 22, 1991.

Stephen P. Bourexis and Judith S. Stainbrook, Westminster, for petitioners.

Millicent Edwards Gordon, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Pikesville, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE and CHASANOW, JJ.

ELDRIDGE, Judge.

This case concerns a police officer's immunity from suit under the Maryland Tort Claims Act, Maryland Code (1984, 1989 Cum.Supp.), §§ 12-101 through 12-110 of the State Government Article.

As the circuit court dismissed the plaintiffs' complaint, for purposes of these appellate proceedings the facts are those alleged by the plaintiffs. On June 10, 1988, Robert Andrew Sawyer, one of the plaintiffs, was driving on Route 31 in Carroll County. Dean Hundley, the other plaintiff, was a passenger. Mr. Sawyer and Mr. Hundley were traveling behind another car driven by the defendant Mr. Humphries. Unknown to the plaintiffs, Mr. Humphries, who was wearing civilian clothing and driving his personal car, was an off duty State police officer. ¹ While driving behind Mr. Humphries, Mr. Sawyer and Mr. Hundley noticed him making some hand signals towards them. He then pulled to the shoulder of the road, allowing them to pass. The plaintiffs allege that they then turned down a side road to investigate a construction site where they hoped to obtain work and that, upon returning to Route 31, the car that had allowed them to pass was parked on the side of the road. Mr. Humphries was leaning up against his car motioning to Mr. Sawyer and Mr. Hundley to approach him.

According to the plaintiffs, as they slowly drove toward Mr. Humphries's car to see what he wanted, Humphries picked up some rocks and threw one at their car. Although they tried to avoid the rock by swerving back onto the road, it hit the passenger side of their car, leaving a large dent.

At this point Mr. Sawyer made a U-turn, parked his car on the side of the road opposite Mr. Humphries and got out, allegedly with the intention of talking about the damage to his car. Mr. Sawyer claims that Mr. Humphries picked up more rocks and that, in response, Mr. Sawyer grabbed an empty beer bottle from the side of the road to defend himself. Mr. Humphries then allegedly attacked Mr. Sawyer, grabbing him by the hair, beating him about the face and threatening to kill him. When Mr. Hundley stepped out of the car to assist Mr. Sawyer, Mr. Humphries released Mr. Sawyer and stepped toward Mr. Hundley, saying, "unless you want some too, boy, you better get back in the car." Mr. Hundley got back in the car. Mr. Sawyer was then apparently able to get away from Mr. Humphries and got into the passenger seat of his car as he was too badly injured to drive. At this point, Mr. Humphries approached the plaintiffs' vehicle and offered to exchange information. Mr. Sawyer refused, and he and Mr. Hundley drove away toward the town of New Windsor.

The plaintiffs further allege that, at one point, they saw Mr. Humphries driving his automobile in front of them while they were driving toward New Windsor, but that Mr. Humphries turned down a side street and then began following them. As the plaintiffs were waiting at a stop sign in New Windsor, Mr. Humphries got out of his car and again approached Mr. Sawyer as he was seated on the passenger side of the plaintiffs' car. Mr. Humphries allegedly slapped Mr. Sawyer across the chest, stated that he was a Maryland State Police Officer, and that he was arresting Mr. Sawyer. Mr. Humphries tried to physically remove Mr. Sawyer from the car but was unable to do so because Mr. Sawyer's seat belt was fastened. Mr. Sawyer and Mr. Hundley claim that they did not believe Mr. Humphries was a police officer and asked him repeatedly for identification. Mr. Humphries, however, refused to provide either plaintiff with any identification. Other police officers eventually arrived and arrested Mr. Sawyer. The record does not disclose whether Mr. Sawyer was ever charged with an offense.

On June 9, 1989, Mr. Sawyer and Mr. Hundley filed in the Circuit Court for Carroll County the complaint against Mr. Humphries which commenced this action. Counts one and two charged assault based on the defendant's throwing a rock at the plaintiffs' car. Count three charged a battery based on the defendant's physical attack upon Mr. Sawyer on Route 31. Counts four and five claimed that the threats and threatening conduct made toward Mr. Sawyer and Mr. Hundley constituted assault. Counts six and seven asserted battery in light of Mr. Humphries's alleged physical abuse of Mr. Sawyer in New Windsor. The plaintiffs did not name the State of Maryland as a defendant, and they did not notify the State Treasurer of the action.

Mr. Humphries did not file an answer to the complaint. Instead Mr. Humphries filed a motion to dismiss, arguing that, because he was employed as a Maryland State police officer and was acting within the scope of his employment with the State at the time of the alleged tortious conduct, and because he acted without malice, the Maryland Tort Claims Act applied and granted him immunity. ² Therefore, Mr. Humphries contended, the action against him personally should be dismissed. The motion to dismiss also asserted that, because the plaintiffs failed to satisfy the prerequisites of the Tort Claims Act for bringing a tort suit under that Act, specifically the notice provision, the present tort action could not be maintained with the State or a state agency substituted as a party. ³

The circuit court, without explanation, granted the motion to dismiss.

Mr. Sawyer and Mr. Hundley appealed to the Court of Special Appeals which affirmed. Sawyer v. Humphries, 82 Md.App. 72, 570 A.2d 341 (1990). The Court of Special Appeals held that because "an employee of the Maryland State Police, who is sworn as a police officer, is for police purposes on duty twenty-four hours a day, seven days a week, fifty-two weeks a year" and that because Mr. Humphries "acted as a law enforcement officer, at the time of the incident," his conduct fell within "the scope of [his] public duties" within the meaning of the Maryland Tort Claims Act. 82 Md.App. at 83-84, 570 A.2d at 347. In addition, the intermediate appellate court held that, as a matter of law, the plaintiffs' complaint did not sufficiently allege that Mr. Humphries acted with malice. Consequently, according to the Court of Special Appeals, Mr. Humphries was entitled to the immunity granted by the Tort Claims Act. The plaintiffs filed a petition for a writ of certiorari which we granted.

It is clear from the language of § 12-105 of the Maryland Tort Claims Act that, in order for a State employee to be granted immunity from suit by that statute, he must act "within the scope of [his] public duties" and "without malice or gross negligence." Therefore the overall issue in the case before us is whether the plaintiffs' complaint alleged facts sufficient to show conduct by Mr. Humphries which either was outside the scope of his "public duties" or was malicious. ⁴

(1)

Although this Court has never discussed in detail whether the phrase "scope of the public duties" in the Tort Claims Act is coextensive with the common law concept of "scope of employment" under the doctrine of respondeat superior, we have treated them as the same. See Rucker v. Harford County, 316 Md. 275, 302, 558 A.2d 399, 412 (1989) (Tort Claims Act applicable to "tortious acts of a sheriff or deputy sheriff committed in the scope of employment"); State v. Jett, 316 Md. 248, 252, 558 A.2d 385, 386 (1989) (test under the Tort Claims Act is "respondeat superior liability ... under agency law"); Clea v. City of Baltimore, 312 Md. 662, 671 n. 6, 541 A.2d 1303, 1307 n. 6 (1988) ("under a provision in the Tort Claims Act, ... state personnel, acting within the scope of their employment, and without malice or gross negligence, are granted immunity for acts with respect to which the State or its units have waived immunity in the Act"). See also Wolf v. Liberis, 153 Ill.App.3d 488, 106 Ill.Dec. 411, 505 N.E.2d 1202, appeal denied, 115 Ill.2d 552, 110 Ill.Dec. 466, 511 N.E.2d 438 (1987); Maryland Cas. Co. v. Huger, 728 S.W.2d 574, 579 (Mo.App.1987).

This interpretation of the language "scope of public duties" as synonymous with "scope of employment" for purposes of respondeat superior liability is in accord with the purpose of the Tort Claims Act. The legislative history of the Act shows that the General Assembly intended to render the State liable, in those areas where it has waived its immunity for tort claims, in the same manner and to the same extent as a private party. See the Department of Legislative Reference's file on Senate Bill 585 of the 1985 Session of the General Assembly. ⁵

The general test set forth in numerous Maryland cases for determining if an employee's tortious acts were within the scope of his employment is whether they were in furtherance of the employer's business and were "authorized" by the employer. In an often-quoted passage, the Court in Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 214, 92 A. 478, 479-480 (1914), explained:

" 'The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master's business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By "authorized" is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.' " (quoting from Wood on Master and Servant § 279 (1877)).

Accord, e.g., Wood v. Abell, 268 Md. 214, 227, 300 A.2d 665, 671-672 (1973); Drug Fair v. Smith, 263 Md. 341, 350...