Tillman v. Wheaton-Haven Recreation Association, Inc.

• Court: U.S. District Court — District of Maryland
• Writing for the Court: NORTHROP
• Citation: Tillman v. Wheaton-Haven Recreation Association, Inc., 367 F.Supp. 860 (D. Md. 1973)
• Decision Date: 05 December 1973
• Docket Number: Civ. A. No. 21294-N.
• Parties: Murray TILLMAN et al. v. WHEATON-HAVEN RECREATION ASSOCIATION, INC., et al.

367 F. Supp. 860

Murray TILLMAN et al. v. WHEATON-HAVEN RECREATION ASSOCIATION, INC., et al.¹

Civ. A. No. 21294-N.

United States District Court, D. Maryland.

December 5, 1973.

COPYRIGHT MATERIAL OMITTED

Allison W. Brown, Jr., Washington, D. C., for plaintiffs.

Henry J. Noyes, Rockville, Md., for defendants, Wheaton-Haven Recreation Assn., Inc., Bernard Katz, Philip S. Trusso, Sidney M. Plitman, Anthony J. DeSimone, Brian Carroll, Albert Friedland, Mrs. Robert Bennington, Mrs. Anthony Abate, James V. Welch, Mrs. Ellen Fenstermaker, Walter F. Smith, Jr., and James M. Whittles.

John H. Mudd and H. Thomas Howell, Baltimore, Md., for defendant E. Richard McIntyre.

NORTHROP, Chief Judge.

Upon remand from the United States Supreme Court, the following issues are presented to this Court:

1. What kind of damages, if any, are the plaintiffs entitled to recover?

2. Assuming the plaintiffs are entitled to recover damages, to what extent are the directors of defendant Wheaton-Haven Recreation Association, Inc. (Wheaton-Haven) individually liable?

3. Should the plaintiffs be awarded attorney fees?

SUMMARY OF FACTS

Defendant Wheaton-Haven, a non-profit Maryland corporation, was organized in 1958 for the purpose of operating a "community swimming pool." Membership is limited to 325 families and is keyed to a geographical area three quarters of a mile in radius from the pool facility. A person residing within this area receives a preferential place on the waiting list for membership if he applies when the membership is full. Further, the resident-member, who is a homeowner and who sells his home and turns in his membership, confers on the purchaser a first option on the vacancy created by his removal and resignation. A person residing outside the three-quarter mile area may apply for membership only upon the recommendation of a member; he receives no preferential place on the waiting list if the membership is full, and he has no way of conferring an option upon the purchaser of his property. Majority approval of those present at a meeting of the board of directors or of the general membership is required before an applicant is admitted as a member.

Only members and their guests are admitted to the pool. No one else may gain admission merely by payment of an entrance fee.

In the spring of 1968 plaintiff, Harry C. Press, a black who had purchased from a non-member a home within the geographical preference area, inquired about membership in Wheaton-Haven. At that time the Association had no black member. In November 1968 the general membership rejected a resolution that would have opened the way for black members. Dr. Press was never given an application form, and defendants concede that he was discouraged from applying because of his race.

In July 1968 plaintiffs, Murray and Rosalind N. Tillman, who were husband and wife and members in good standing, brought plaintiff Grace Rosner, a black, to the pool as their guest. Although Mrs. Rosner was admitted on that occasion, the guest policy was changed by the board of directors, at a special meeting the following day, to limit guests to relatives of members. Defendants concede that one reason for the adoption of this policy was to prevent members from having blacks as guests at the pool. Under this new policy Mrs. Rosner thereafter was refused admission when the Tillmans sought to have her as their guest. In the Fall of 1968 the membership, by resolution, reaffirmed the policy.

In October 1969 plaintiffs (Mr. and Mrs. Tillman, Dr. and Mrs. Press, and Mrs. Rosner) instituted this civil action against the Association and individuals who were its officers or directors, seeking damages and declaratory and injunctive relief, particularly under the Civil Rights Act of 1866, 42 U.S.C. § 1982 (1970), the Civil Rights Act of 1870, 42 U.S.C. § 1981 (1970), and the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. (1970).

DAMAGES

In holding that 42 U.S.C. § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property in the case of Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S. Ct. 2186, 20 L.Ed.2d 1189 (1968), the Supreme Court left open the question of whether damages are recoverable for a violation of § 1982. In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 24 L.Ed.2d 386 (1969), the Court addressed this issue and declared that when legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done. See Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946). The "available remedies" include both federal and state rules on damages whichever better serves the policies expressed in the federal statutes. See 42 U.S.C. § 1988; Sullivan v. Little Hunting Park, Inc., supra, 396 U.S. at 240, 90 S.Ct. 400. Moreover, the remedies available under the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., according to the Supreme Court, in no way limit the remedies provided for under 42 U.S.C. § 1982. This means that when a case like the instant one is grounded in §§ 1981, 1982, and Title II of the 1964 Civil Rights Act, the congressional refusal to permit recovery of damages under Title II (see Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)), does not preclude a victorious plaintiff from recovering damages under 42 U.S.C. § 1982. Consequently, the plaintiffs in the instant case are entitled to damages.

Lower courts have interpreted uniformly the Court's broad language on damages in Sullivan to warrant the award of both compensatory and punitive damages upon a finding of a violation of § 1982. See, e. g., Tramble v. Converters Ink Co., 343 F.Supp. 1350, 1354-1355 (N.D.Ill.1972); Allen v. Gifford, 368 F.Supp. 317 (Equal Opportunity in Housing) (E.D.Va. May 15, 1973); Seaton v. Sky Realty Co., Inc., (N.D.Ill. Jan. 25, 1972). In the instant case, therefore, upon a proper showing of evidence, the plaintiffs should be granted compensatory damages. These damages may include out-of-pocket expenses and humiliation, embarrassment or emotional injury from 1968 to 1973. See Franklin v. Agostinelli, P-H EOH (Equal Opportunity in Housing) ¶ 13555 (W.D.Wash. Aug. 12, 1971); Steele v. Title Realty Co., 478 F.2d 380 (10th Cir. 1973).

In reference to punitive damages, it is a general principle of the law of damages that to subject a wrongdoer to liability for exemplary damages, it must be found that he acted with actual malice, ill will, or conscious disregard of consequences to others. C. McCormick, Handbook on the Law of Damages § 79 (1935); Davis v. Gordon, 183 Md. 129, 133, 36 A.2d 699, 701 (1944). Since such damages are punitory and are assessed as an example and warning to others, they are not favored in law and are to be allowed only with caution and within narrow limits. Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970); Aladdin Mfg. Co. v. Mantle Lamp Co., 116 F.2d 708 (7th Cir. 1941). Consequently, in those civil rights cases in which punitive damages were denied, the courts declared that such damages cannot be awarded without proof that the defendant acted wilfully and wantonly; Wright v. Kaine Realty Co., 352 F. Supp. 222 (N.D.Ill.1972); and the fact that the defendant was found to have committed unlawful racial discrimination is not sufficient alone or without other "circumstances" to entitle the plaintiff to punitive damages. Lee v. Southern Home Sites Corp., supra, 429 F.2d at 294-295; Steele v. Title Realty Co., supra, 478 F.2d at 384. Concomitantly, those courts awarding punitive damages make a finding of fact, either expressly or impliedly, that the defendant acted with malice, wantonly, or in clear disregard of the statute. See Seaton v. Sky Realty Co., supra; Peoples v. Doughtie, P-H EOH ¶ 13528 (M.D. Ala. Nov. 19, 1971).

The plaintiffs in the instant case, however, urge that this Court award damages on the grounds that inherent in the nature of racial discrimination is an element of "malice" or "wantonness." The plaintiffs do not cite any authority for this proposition, and this Court is unable to find any. Therefore, this Court finds this contention of the plaintiffs to be without merit.

Going to actual evidence of ill will or malice, the plaintiffs claim that malice can be found from the fact that the defendants' actions were in clear violation of 42 U.S.C. § 1982 as construed by the Supreme Court in Sullivan v. Little Hunting Park, Inc., supra. In support of this proposition, the plaintiffs refer to the unanimous Supreme Court decision in this case and that Court's statement that Sullivan controlled the instant case. The plaintiffs are correct in stating that courts have readily discerned sufficient recklessness or wantonness to justify imposition of punitive damages when the defendant racially discriminates in clear violation of the civil rights statutes. Peoples v. Doughtie, supra, ¶ 13528 at 13576; Allen v. Gifford, supra, ¶ 13599 at 13946. When, however, the defendant has reasonable grounds to believe that his conduct is not forbidden by the civil rights statutes, it cannot be said that he acts recklessly or maliciously to pursue that course of action. Philadelphia W. & B. R.R. Co. v. Hoeflich, 62 Md. 300, 307 (1884); see Gonzales v. Fairfax-Brewster School, Inc., 363 F.Supp. 1200, at p. 1205 n. 5 (E.D.Va. July 27, 1973); Sullivan v. Little Hunting Park, Inc., Chancery No. 22751 (Cir.Ct. Fairfax County, May 27, 1970) (Judgment order —no punitive damages awarded). In the instant case the defendants had more than a reasonable basis to believe that their conduct was not proscribed by 42 U.S.C. § 1982 or 42 U.S.C. § 2000a et seq. In fact, the defendants believed that the statute expressly permitted their discriminatory activity by exempting private clubs from its purview. See 42 U. S.C. § 2000a(e). Furthermore, this Court...