Abrams v. City of Rockville

WILNER, Chief Judge. During the school years 1986-1988, the City of Rockville, through its Department of Recreation and Parks, operated what it called the Student Total Enrichment Program (STEP), designed to provide a variety of after-school activities to elementary school children of working parents. Jenifer Flannery and Steve Chriqui were employed to operate the program at the Fallsmead Elementary School. It was customary at the Fallsmead program to show a video-tape movie to the children on Friday afternoons.

On Friday, May 13, 1988, Flannery and Chriqui selected the movie Poltergeist, which they obtained from the local Erol’s video store, to show to the children. Poltergeist is a ghost ⁵⁹³ story; indeed, it was chosen because that day was Friday, the 13th. One of the children in the program was seven-year-old Andrea Abrams who, according to her parents, became so traumatized by the movie that she began and continued to suffer great anxiety and psychological distress, manifested by sleeplessness, nightmares, and a fear of being left alone. On January 26, 1990, Andrea and her parents filed a four-count complaint against Flannery, Chriqui, and the City in the Circuit Court for Montgomery County.

Alleging that the movie was rated PG-13 and thus was suitable only for children over 13, they charged all three defendants with negligence (Count I), negligent infliction of emotional distress (Count II), and intentional infliction of emotional distress (Count III). In addition, Susan Abrams, Andrea’s mother, charged the City with breach of contract (Count IV). After the completion of certain discovery, the defendants moved to dismiss the complaint or, in the alternative, for summary judgment. In an opinion and order filed September 20, 1990, the court granted the motion.

Because it relied on evidence outside the complaint itself, the order, though purporting to dismiss the complaint, was actually in the nature of a summary judgment and will be treated by us as such. See Md. Rule 2-322(c). Count II was dismissed on the ground that Maryland does not recognize negligent infliction of emotional distress as an independent tort. Hamilton v. Ford Motor Credit Co., 66 Md.App. 46 , 502 A.2d 1057 (1986).

Count I, purporting to charge negligence, was dismissed because the court viewed it as “indistinguishable from Count II,” and thus suffering from the same defect. Count IV, the breach of contract claim, was dismissed as time-barred by the special one-year statute of limitations imposed by Md.Ann.Code art. 23A, § lA(c). Count III was dismissed on the ground that the operation of the STEP program was a governmental function and that the defendants therefore enjoyed sovereign immunity. This immunity was also assigned as an alternative ground for dismissing Counts I and II. ⁵⁹⁴ Although they now concede that Count II was properly dismissed, the plaintiffs complain in this appeal about the dismissal of each of the other counts.

We believe that the court erred in dismissing Count I against the individual defendants, Flannery and Chriqui, but shall affirm the other parts of the judgment. For convenience, we shall consider the four counts in a somewhat different order than presented in the complaint. Count II (Negligent Infliction of Emotional Distress) As we observed, Count II was dismissed principally because it did not present a cognizable claim under Maryland law. The court was entirely correct in so concluding.

Hamilton, supra. Whether the defendants enjoy sovereign or governmental immunity is therefore irrelevant as to that count. Count IV (Breach of Contract) Count IV was premised on the assertion that Susan Abrams had “contracted with [the City] through its S.T.E.P. program for an after-school program which would provide her daughter with a good socialization and educational experience through participation in supervised activities, games, field trips, educational programs and arts and crafts,” for which Ms. Abrams paid a fee, and that the City breached that contract by showing Andrea the movie Poltergeist. In her answers to interrogatories, Ms. Abrams made clear that the alleged contract was written rather than oral, consisting of a written application prepared by the City that was filled out, signed, and returned by Ms. Abrams, along with her check for the tuition charge.

Md.Ann.Code art. 23A, § 1A precludes a municipal corporation such as the City from raising the defense of sovereign immunity in an action for breach of a written contract. Subsection (c) of that section, however, provides that “[a] claim is barred unless the claimant files suit within one year from the date on which the claim arose or within one year ⁵⁹⁵ after completion of the contract giving rise to the claim, whichever is later.” The contract sued upon provided for Andrea’s participation in the STEP program during the 1988 spring semester, which ended no later than June, 1988. The actual breach, according to the complaint and the answers to interrogatories, occurred on May 13, 1988, when the movie was shown. Thus, the latest date, under the statute, for filing suit would have been in June, 1989.

As noted, the complaint was not filed until January, 1990. Ms. Abrams’ action was therefore clearly time-barred. In an attempt to avoid this bar, the plaintiffs claim in their brief that Andrea herself also had a contract with the City “either as a direct contracting party or as a third party beneficiary,” and that, because she remains a minor, the limitations period has not yet begun to run against her. There are two problems with this argument.

First, Andrea did not sue on the contract, in any capacity. Count IV alleges that Susan was the contracting party and it seeks recovery for damage suffered by her, not by Andrea. Paragraph 47 of the complaint alleges that Susan suffered damage as a result of the breach “by being forced to expend large sums of money for medical and psychological counseling and treatment for her daughter’s mental health.” Although the ad damnum clause in Count IV sought judgment in favor of both Susan and her husband, Glenn, no recovery was sought by or on behalf of Andrea. Thus, even if a claim by or on behalf of Andrea would not be barred by the statute, the claim here was made by Susan (and possibly Glenn) to recover for their own losses.

Equally dispositive is the fact that the protection given to minors and others under disability does not apply to art. 23A, § lA(c). That protection arises from Md.Ann. Code Cts. & Jud.Proc. art., § 5-201(a), which provides that, “[w]hen a cause of action subject to a limitation under Subtitle 1 of this title accrues in favor of a minor or mental incompetent, that person shall file his action within the ⁵⁹⁶ lesser of three years or the applicable period of limitations after the date the disability is removed.” (Emphasis added.) The limitations periods provided for in Subtitle 1 of title 5, to which § 5-201 makes reference, are the general 3-year statute of limitations (§ 5-101), those dealing with “specialties” (§ 5-102), and those dealing with certain other specific kinds of civil or criminal actions (§§ 5-103 through 5-114). The limitations provision embodied in § lA(c) was enacted as part of the Act that precluded municipal corporations from interposing the defense of sovereign immunity in contract actions. See 1976 Md.Laws, ch. 450.

That Act applied not only to municipal corporations but to the State and its counties as well. Identical provisions, as to both the waiver of immunity and the limitations period for filing claims against the governmental entity, were inserted in art. 41, dealing with the State, and in articles 25, 25A, and 25B, dealing with the counties. Previously, in Redfern v. Holtite Mfg. Co., 209 Md. 106, 111 , 120 A.2d 370 (1956), the Court had made clear that the statutory protection for persons under disability, then codified in art. 57, § 2 (1951 Md.Code), was limited to the causes of action specified in art. 57 and did not apply to the special limitations provision applicable to worker’s compensation claims.

We must assume that the General Assembly was aware of the limited scope of that protection when it enacted ch. 450 and that, in placing the special one-year limitations provisions in the various articles dealing with the respective governmental entities rather than in title 5, subt. 1 of the Cts. & Jud.Proc. art., to which the material in art. 57 had been transferred, it made the conscious and deliberate choice not to have them subject to that protection. This assumption is bolstered by the fact that ch. 450 was a carefully considered and drawn statute. The legislature had attempted twice before to abrogate the defense of sovereign immunity in contract actions, but on both occasions the bill that passed was vetoed by the Governor. See 1974 Md.Laws 3087, veto of House Bill 5 (1974), and 1975 ⁵⁹⁷ Md.Laws 4067, veto of House Bill 1672 (1975).

Neither of those bills contained a limitations clause, and, although that deficiency was not expressly mentioned in the veto messages, the Governor did express concern over the uncertain fiscal impact of the bills. Ch. 450 not only attempted to address the Governor’s reservations but was, in part, shaped and influenced by an Interim Report of a resuscitated gubernatorial Commission to Study Sovereign Immunity. See Report of that Commission, 100-01 and J-l — J-4 (November, 1976). Under the circumstances, we do not believe that either the wording or the placement of those provisions was inadvertent.

For these reasons, we find no error in the dismissal of Count IV. Count III (Intentional Infliction of Emotional Distress) As we observed, the court dismissed Count III against all three defendants on the ground of sovereign immunity. We need not consider here whether that was a valid defense to the action, for it is clear on the record that the count was subject to dismissal for failure to state a claim. 1 Intentional infliction of emotional distress is a cognizable tort in Maryland. In order to recover, however, the ⁵⁹⁸ plaintiff must show four things: (1) that the defendant’s conduct was intentional or reckless; (2) that the conduct was extreme and outrageous; (3) that there was a causal connection between the wrongful conduct and the emotional distress; and (4) that the emotional distress was severe.

Harris v. Jones, 281 Md. 560, 566 , 380 A.2d 611 (1977); Figueiredo-Torres v. Nickel, 321 Md. 642, 653 , 584 A.2d 69 (1991). Failure to allege or prove any one of these elements is fatal; here, there is a clear failure to establish the first two elements. In recognizing this tort, the Harris Court essentially adopted the characteristics and contours of it as set forth in Restatement (Second) of Torts, § 46. It observed, from that source, that “the defendant’s conduct is intentional or reckless where he desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct; or where the defendant acts recklessly in deliberate disregard of a high degree of probability that the emotional distress will follow.” 281 Md. at 567 , 380 A.2d 611 .

As to the second element, the Court, again citing § 46, noted that “[liability has been found only where the conduct had been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. In an attempt to meet these standards, the plaintiffs alleged that the defendants acted “in reckless disregard of the well-known fact that Poltergeist is a very frightening motion picture and would have an adverse effect on some children,” that “[i]t was foreseeable that some children would be damaged by viewing Poltergeist and that said damage would be in the form of emotional distress,” and that “Defendant [singular] had actual knowledge of Andrea’s vulnerability to scary stories.” This last averment presumably was based on the allegation in Count II that “Defendants had been notified that Andrea had been very frightened during a S.T.E.P. program when she heard a ⁵⁹⁹ scary Halloween story in October, 1986” and that they were told that “scary programs were not to be a part of the S.T.E.P. program when Andrea Abrams was involved.” In answers to interrogatories, they added the charge that “[t]he movie’s TG’ rating by the Motion Picture Association (and the proper rating of ‘PG-13’ and the occasional rating of ‘R’) as well as the warning on the package should have been sufficient to forewarn the STEP employees that harm might result from showing this movie to young children.” In response to these averments, the defendants, in their answers to interrogatories, stated, without subsequent contradiction, that (1) Poltergeist “was requested by many of the children in the program since it was Friday the Thirteenth and many indicated they had seen it previously at home”; (2) the movie was rated PG, was contained in the catalog of Erol’s, and “had been shown throughout the world in theatres and on network and cable television”; (8) some parents entered the room while the movie was being-shown but made no comment about it; 2 (4) the children were advised that Poltergeist “is a ghost story that employs special effects to produce unreal situations,” that it was stopped prior to the beginning of the special effects and the children were advised “that it is all Hollywood special effects, e.g., veins are only spaghetti; the blood is only ketchup; toys do not really come alive; none of this can happen in real life”; (5) the children were also told at that point that “if they didn’t like scary movies, they should not watch any more, but should go out and join other children playing outside;” and (6) the defendants could recall no particular reaction from any of the children who watched the movie. On this evidence, reasoning minds could perhaps differ over whether the showing of this movie to a seven-year-old, ⁶⁰⁰ or to Andrea in particular, was a wise or unwise, prudent or negligent thing to do; but a reasoning mind could not properly conclude that the defendants desired to inflict emotional distress on Andrea, or that they knew that such distress was substantially certain to occur, or that they acted in deliberate disregard of a high probability that such distress would follow. Indeed, it demonstrates quite the opposite — that there was some concern over the possible effect of some parts of the movie on the children, but that efforts were made to assure that the young viewers would not be adversely affected, and that there was no indication during the showing of the movie that those efforts were unavailing.

That the child