Tadjer v. Montgomery County, 43

• Decision Date: 01 September 1983
• Docket Number: No. 43,43
• Citation: 300 Md. 539,479 A.2d 1321
• Parties: Dick T. TADJER et al. v. MONTGOMERY COUNTY, Maryland et al. ,
• Court: Maryland Court of Appeals

Page 539

300 Md. 539

479 A.2d 1321

Dick T. TADJER et al. v. MONTGOMERY COUNTY, Maryland et al.

No. 43, Sept. Term, 1983.

Court of Appeals of Maryland.

Aug. 22, 1984.

William J. Carter, Washington, D.C. (Joel M. Savits and Carr, Jordan, Coyne & Savits, Rockville, for appellants, AFA Corporation and Guy M. Ammatucci; Read K. McCaffrey and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, for appellants, Dick J. Tadjer, Sol Saul Cooper, TCSB, Inc. and Tadjer-Cohen Associates Inspection Company, Ltd., on brief).

A. Katherine Hart, Asst. County Atty., Rockville (Paul A. McGuckian, County Atty., Robert G. Tobin, Jr., Deputy County Atty., and Clyde H. Sorrell, Asst. County Atty., Rockville, on the brief), for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

SMITH, Judge.

We shall here hold that a trial judge was only partially correct when he sustained on the grounds of governmental immunity a demurrer of Montgomery County to third-party claims arising out of injuries sustained on a landfill formerly operated by the County.

I

As indicated, this case reaches us on demurrer. ¹ In considering the sufficiency of a declaration on demurrer we are required to assume the truth of all material and relevant facts that are well pleaded as well as all inferences which can be reasonably drawn from those well pleaded facts. Schwartz v. Merchants Mort. Co., 272 Md. 305, 308, 322 A.2d 544, 546 (1974); Desser v. Woods, 266 Md. 696, 698-99, 296 A.2d 586, 588 (1972).

Michael S. Wodoslawsky sued nine defendants as a result of injuries sustained by him on April 14, 1980, in an explosion of methane gas at his place of employment, an auto body shop, owned by one of the litigants in this case.

Defendants Dick J. Tadjer, Sol Saul Cooper, TCSB, Inc., and Tadjer-Cohen Associates Inspection Company, Ltd., filed one third-party claim against the County. Defendants AFA Corporation and Guy M. Amatucci filed another third-party claim against the County, certain of its employees, and others who are not parties to the proceeding in this Court.

The Court of Special Appeals quoted from the summary by the trial judge of the various third-party complaints "Defendants and third-party plaintiffs Sinicropi ² and Tadjer in their Amended Third-[P]arty claims seek indemnification or contribution from Montgomery County as a result of the County's negligent creation of a dangerous condition by virtue of its operation of a landfill at that property which is presently designated as 801 East Gude Drive, and its subsequent failure to take necessary safeguards to protect the public from the dangers associated with property that has formerly been used as a landfill. AFA in its Second Amended Third-Party Declaration has filed three counts which the County through various procedural vehicles assails. In Count One AFA seeks indemnification or contribution from the County for the same negligent conduct complained of in the Tadjer and Sinicropi third-party claims referenced above. In Count Two AFA alleges liability on the part of the County as a result of its creation and maintenance of a continuing nuisance on the property presently designated as 801 East Gude Drive. Count Three of AFA's Second Amended Third-Party Declaration seeks indemnification or contribution as a result of the negligent conduct of six Montgomery County employees."

The trial judge and the Court of Special Appeals said that for the purpose of the motion raising preliminary objection and demurrer the County did not contest the following facts which may be gleaned from the declarations:

"1. During that period from 1950 to approximately 1962 Montgomery County leased property located at what is presently designated as 801 East Gude Drive from a person not a party to this lawsuit. It is on this same property at what is presently designated as 801 East Gude Drive that the incident which forms the basis of this lawsuit occurred.

"2. During the period of the lease described above Montgomery County operated and maintained a landfill.

"3. During this period of time Montgomery County engaged in excavation and trench digging on said property, and buried the accumulated trash therein.

"4. During the year 1962 Montgomery County terminated its operation of the public landfill, and ceased to be a tenant on this property.

"5. In 1977 AFA Corporation purchased the property presently located at 801 East Gude Drive, and in 1978 applied for a building permit with Montgomery County to construct an auto-body shop on said property. Montgomery County issued the building permit, and inspected the construction of the auto-body shop. Ultimately Montgomery County issued an occupancy permit for the auto-body shop located at 801 East Gude Drive.

"6. The plaintiff in his Declaration seeks damages resulting from an explosion that occurred on said premises on April 14, 1980, which he alleges was caused by the emission of methane gas from the accumulation of trash and garbage below the property."

The trial judge and the Court of Special Appeals further summarized:

"In addition to the above stipulation of facts, the three third-party plaintiffs have alleged that by virtue of its employees' inspection of property during the review of the building permit application and construction process, Montgomery County obtained actual knowledge of the fact that the auto-body shop was being constructed over trash, refuse and garbage. The third-party plaintiffs further contend that despite having actual notice of the fact that the building was being constructed over its former landfill, the County took no steps to halt construction or recommend alternative methods of construction to protect against the dangers of methane gas. It is further alleged that during the lease of its landfill, the County charged a fee for dumping and did derive revenue from this enterprise ³.

"The three third-party plaintiffs allege that the aforesaid ... facts, and allegations of conduct on the part of the County imposed a duty on the part of Montgomery County to take the necessary steps to protect future purchasers and invitees against the possible dangers associated with a methane gas buildup as set forth in the plaintiff-Wodoslawsky's Declaration; i.e., 1) install pipes and ventilating equipment under the ground on the property on Gude Drive, 2) to enact legislation deregulating and controlling construction on 801 East Gude Drive, 3) to alert the public by the appropriate notations on deeds, maps and other public property records that the parcel at 801 East Gude Drive had once been used by the County as a landfill."

The trial judge granted a demurrer as to the third-party claim of Tadjer et al. and the first three counts of the third-party claim of AFA et al. He found that the third-party claims against the County were barred by governmental immunity and the statute of limitations. A specific finding was made that a final judgment should be entered pursuant to the provisions of Maryland Rule 605(a).

The Court of Special Appeals affirmed the trial court's judgment in an unreported opinion. The court found it unnecessary to consider any issue other than that of governmental immunity. The intermediate court quoted liberally from the trial court opinion. We granted a petition for the writ of certiorari. We have no issue before us relative to the third count of AFA et al. against the County employees. The petition for certiorari is limited to the issue of governmental immunity. Thus our consideration here is limited to that issue and the conflict between concepts of governmental and proprietary functions.

II

Montgomery County has not waived governmental immunity. The County claims the landfill and the various actions connected with it are governmental in their nature. The third-party plaintiffs contend that the County was in fact carrying on a proprietary function.

As was pointed out by Judge Eldridge in his concurring and dissenting opinion in Austin v. City of Baltimore, 286 Md. 51, 67-70, 405 A.2d 255, 264-65 (1979), Maryland has more reason, perhaps, than most states to look to the legislative bodies for any change that may be made in the doctrine of governmental immunity since Ch. 53 of the Acts of 1786, which provided for suits against the State, was repealed by Ch. 210 of the Acts of 1820. We, therefore, have continued to recognize the doctrine. Austin, 286 Md. at 54-58, 405 A.2d at 257-59. See also Board v. John K. Ruff, Inc., 278 Md. 580, 584, 366 A.2d 360, 362-63 (1976).

We observed in Austin, 286 Md. at 59, 405 A.2d at 259, in E. Eyring Co. v. City of Baltimore, 253 Md. 380, 382-383 252 A.2d 824, 825 (1969), and in Baltimore v. State, 168 Md. 619, 625, 179 A. 169, 171 (1935), that the distinction between governmental and proprietary functions is sometimes illusory in practice. In Baltimore v. State, 173 Md. 267, 195 A. 571 (1937), Judge Offutt said for the Court:

"But in truth there is no universally accepted or all-inclusive test to determine whether a given act of a municipality is private or governmental in its nature, but the question is usually determined by the public policy recognized in the jurisdiction where it arises.... Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature. And it is better that the adequate performance of such an act be secured by public prosecution and punishment of officials who violate the duties imposed upon them in respect to it than to disburse public funds dedicated to the maintenance of such public conveniences as public parks, playgrounds, hospitals, swimming pools, and beaches maintained at the public expense to private persons who have suffered loss through the...