Artis v. Cyphers

WILNER, Chief Judge. This case arises from the alleged negligence of two ambulance crews in their emergency treatment of James R. Cyphers. On June 22, 1989, Mr. Cyphers was driving along Northern Parkway in Baltimore City when he suffered an asthma attack. He was able to enlist the temporary assistance of a passing motorist who, after driving a few blocks, spotted a private ambulance owned by Metropolitan Ambulance Service, Inc. The private ambulance crew rendered further assistance but, at some point, summoned a City ambulance.

The City Medic Unit, operated by James W. Artis, Jr., appellant, and Steven Patrick, arrived at 3:09 p.m. Because of his certification as a cardiac rescue technician, Artis took charge of Cyphers’s treatment. There is some dispute as to Cyphers’s precise condition upon Artis’s arrival—even as to whether he was conscious or unconscious—and also as to exactly what Artis did to assist him. At some point after his removal to the City ambulance, Mr. Cyphers went into cardiopulmonary arrest.

There is a dispute whether, at that time, Artis inserted an esophageal airway; he claims that he did, but other evidence suggests that he did not. Although they were then only a mile or two from Good Samaritan Hospital—a five minute trip—Artis continued to work with Cyphers at the scene, establishing radio contact with the hospital at 3:33 p.m. He and Patrick finally transported Cyphers to the hospital at 3:50 p.m., by which time Mr. Cyphers was in full cardiac arrest, had no pulse, and could not be resuscitated. He was formally pronounced dead at 4:56 p.m. ⁶³⁷ Cyphers’s widow, for herself and her minor children and as personal representative of her husband’s estate, filed a claim with the Health Claims Arbitration Office and also a wrongful death and survivor’s action complaint in the Circuit Court for Baltimore City.

Both actions named as defendants Metropolitan Ambulance Service, Inc., the crew operating Metropolitan’s ambulance, the City, and Artis and Patrick. When the health claims were dismissed for want of jurisdiction, Ms. Cyphers filed an action to nullify that award, and the two actions, which rested on the same facts and sought essentially the same relief, were consolidated in the circuit court. All defendants, it appears, moved for summary judgment. The motion filed on behalf of Metropolitan and its employees was denied, and, as of the date this appeal was noted, the case against them remained alive in the circuit court.

Patrick’s motion for summary judgment was granted, but the motion of Artis, which included the defenses of public official and good Samaritan immunity, was denied. This appeal, by Artis, challenges only the court’s ruling that he did not possess either public official or good Samaritan immunity. Ms. Cyphers and her children have moved to dismiss the appeal as premature. We shall grant that motion.

Discussion It is undisputed that there is not yet a final judgment in the circuit court. Nor is there any claim by appellant that the order denying his motion is immediately appealable under Md. Code Cts. & Jud.Proc. art., § 12-303. The sole basis for the appeal is that the denial of Artis’s claim of immunity is appealable under the collateral order doctrine. Before discussing the elements of that doctrine, it would be well, we think, to consider the nature of the immunity asserted by Mr. Artis.

As we indicated, there are two independent kinds of immunity claimed-—public official immunity and “good Samaritan” immunity. The nature of public official immunity, under Maryland common law, was explained in James v. Prince George’s ⁶³⁸ County, 288 Md. 315 , 418 A.2d 1173 (1980). At 323-24, 418 A.2d 1173 , the Court stated: “Before a governmental representative in this State is relieved of liability for his negligent acts, it must be determined that the following independent factors simultaneously exist: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties [citations omitted]. Once it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual is free from liability [citations omitted].

The rationale underlying this grant of immunity ‘is that a public purpose is served by protecting officials when they act in an exercise of their discretion.’ ” Confirming principles enunciated in Duncan v. Koustenis, 260 Md. 98 , 271 A.2d 547 (1970), the James Court recounted that there were four “principal guidelines” to be used in determining whether a public employee was a “public official” entitled to this immunity: whether the position was created by law and involves continuing and not occasional duties; whether the holder performs an important public duty; whether the position calls for the exercise of some portion of the sovereign power of the State; and whether the position has a defined term for which a commission is issued and a bond and an oath are required. The Court also noted that these four guidelines “are not conclusive, and the emphasis which may be placed on each varies depending upon the circumstances present in each case.” Id., 288 Md. at 324 , 418 A.2d 1173 . It reminded us as well that there were “at least two well-recognized exceptions to the requirement that the above four factors be present,” namely, “[A]n individual [who] fails to meet most of the above tests, and yet is nevertheless considered to be a public official, [is one] who exercise[s] ‘a large portion of the sovereign power ⁶³⁹ of government’ ... [as well as one] who can be called on to exercise police powers as [a] conservator of the peace.’ ” Id. at 324-25 , 418 A.2d 1173 . The standard for determining whether the conduct of the actor is discretionary, as opposed to ministerial, was set forth by the James Court at 327, 418 A.2d 1173 : “[A]n act falls within the discretionary function of a public official if the decision which involves an exercise of his personal judgment also includes, to more than a minor degree, the manner in which the police power of the State should be utilized.” In this regard, the Court compared the driving of a fire truck, which involves some discretion but which the Court held was essentially ministerial, with the decision of a fire chief to destroy a “specific non-burning building in order to contain a fire in another nearby building,” which the Court regarded as clearly discretionary.

These, then, are the kinds of rulings that must be made in determining whether a public employee is entitled to public official immunity. See also Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986); Clea v. City of Baltimore, 312 Md. 662 , 541 A.2d 1303 (1988); Abrams v. City of Rockville, 88 Md.App. 588 , 596 A.2d 116 (1991). The good Samaritan immunity claimed by Artis is found in Md. Code Cts. & Jud.Proc. art., §§ 5-309 and 5-309.1. Section 5-309(a) provides that a person described in subsection (b) is not civilly liable for any act or omission in giving any assistance or medical care if (1) the act or omission is not one of gross negligence, (2) the assistance is provided without compensation, and (3) the assistance is provided at the scene of an emergency, in transit to a medical facility, or through communications with personnel providing emergency assistance.

Subsection (b) states four categories of persons, including members of a municipal rescue squad, as being entitled to this protection, provided that they possess at least one of three enumerated qualifications. Section 5-309.1 affords rescue company personnel immunity from civil liability for any act or omission in the course of ⁶⁴⁰ performing their duties, other than “any -willful or grossly negligent act” and other than with respect to actions for the negligent operation of a motor vehicle for which insurance coverage exists. Entitlement to the qualified immunity afforded by these sections obviously requires a finding that the defendant satisfies the conditions stated in the statutes, not the least of which is a conclusion that he falls within the enumerated categories of persons protected and that his alleged negligence does not amount to gross negligence. The seminal case in Maryland on the immediate appealability of an order rejecting an immunity defense is State v. Hogg, 311 Md. 446 , 535 A.2d 923 (1988).

In that case, which arose from the savings and loan debacle that struck the State in the mid-1980’s, the Maryland Deposit Insurance Fund Corporation (MDIF), a State agency and successor by statutory merger with the former Maryland Savings-Share Insurance Corporation (MSSIC), sued certain former officers and directors of MSSIC to recover damages for breach of fiduciary duties owed to MSSIC. The defendants filed a counter-claim against MDIF, the State, and the State Division of Savings and Loan Associations, alleging that the harm claimed by MDIF resulted, at least in part, from the negligence of that Division. The counterclaim sought, alternatively, contribution and indemnification. The State counterdefendants moved to dismiss the counterclaim on the ground of sovereign immunity.

Regarding the counterclaim as a defensive maneuver in the nature of a claim for recoupment, the circuit court held that it was not barred by sovereign immunity and therefore denied the motion as to the State and MDIF. Those two entities took an immediate appeal from that ruling, urging that the appeal was permissible under the collateral order doctrine. The Court of Appeals noted the four requirements of the collateral order doctrine as it exists in this State—the order must conclusively determine the disputed question, resolve an important issue, be separate from the merits of the action, and ⁶⁴¹ be effectively unreviewable on appeal from a final judgment. It found no difficulty with the first three requirements and offered little discussion as to them.

The one in question was the fourth—whether the order could be effectively reviewed in a later appeal from a final judgment. Relying largely on certain pronouncements in Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982) and Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), the Court observed that the defense of sovereign or public official immunity involves an immunity from suit—a right to avoid trial— not merely a defense to liability, and that “it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell, supra, 472 U.S. at 526 , 105 S.Ct. at 2815 , quoted at 311 Md. 456 , 535 A.2d 923 . Thus, it held that, like a claim of double jeopardy, the erroneous rejection of sovereign immunity “would effectively escape review if the sovereign were forced to stand trial on that claim and await final judgment before obtaining appellate review.” Id. at 456-57 , 535 A.2d 923 . Accordingly, the Court held that the denial of the counterdefendants’ motion to dismiss was immediately appealable under the collateral order doctrine.

Less than four months after deciding Hogg, the Court issued its per curiam Opinion in Bunting v. State, 312 Md. 472 , 540 A.2d 805 (1988). The Court there affirmed the decision of this Court dismissing an immediate appeal from an order of the circuit court declining to dismiss criminal charges against the appellant because of a violation of the “single transfer rule” embodied in the Interstate Agreement on Detainers (Md.Code art. 27, § 616D(d)). That section provides, in relevant part, that, when a prisoner is released to a requesting State pursuant to a detainer, if trial is not held on any indictment prior to the return of the prisoner to the sending State, that indictment shall be of no further effect and the court shall dismiss it. The appellant regarded this provision as a right not to be tried, much the same as the prohibition against double jeopardy, and thus believed he had a right to an immediate appeal to challenge the trial court’s denial of his motion to dismiss. ⁶⁴² The Court found no right of immediate appeal, concluding that the “single transfer rule” was more in the nature of a right to be returned to the sending State than a right to avoid trial in the receiving State.

Id. at 479, 540 A.2d 805 . It noted that there were a number of immunity-type rights that, in a broad sense, could be regarded as trial-avoidance rights but which did not permit interlocutory appeals, mentioning, among others, the States’ right under the Eleventh Amendment to avoid being haled into Federal court as a defendant. It concluded, at 481-82, 540 A.2d 805 : “In sum, the idea that an issue is not effectively reviewable after the termination of the trial because it involves a ‘right’ to avoid the trial itself, should be limited to double jeopardy claims and a very few other extraordinary situations. Otherwise, as previously indicated, there would be a proliferation of appeals under the collateral order doctrine.

This would be flatly inconsistent with the long-established and sound public policy against piecemeal appeals.” In a footnote to that last sentence, the Court stated that Hogg should not be viewed as reflecting a contrary policy, adding that “[wjhile the opinion in that case may contain some broad language relating to assertions of immunity from the trial itself, such language must be read in the context of what was before the Court.” Judge Eldridge, concurring, expressed the belief that the approach taken in Bunting indeed could not be reconciled with that taken in Hogg and that Hogg should be overruled. The fact is, however, that, so far, Hogg has not been overruled and thus remains the law. Within days after the Court of Appeals filed its Opinion in Bunting , this Court decided Board of Trustees v. Fineran, 75 Md.App. 289 , 541 A.2d 170 (1988). A former employee of Salisbury State College who, upon threat of dismissal, resigned his position, sued the college, the president of the college, the then-existing Board of Trustees, and the individual members of the Board for breach of contract, breach of statutory rights, and a variety of Constitutional and common law torts.

All of the defendants moved to dismiss, or for summary judgment, raising among other defenses absolute ⁶⁴³ and qualified immunity. The circuit court denied the motions, and the defendants appealed. Although their right to take an immediate appeal from what clearly were interlocutory rulings was not challenged by the plaintiff, and indeed was conceded by him, we addressed the point briefly, noting at 297, 541 A.2d 170 : “Ordinarily, an immediate appeal does not lie from the denial of a motion to dismiss or for summary judgment. Where the effect of that denial is a rejection of the defendant’s claim of immunity from suit, however, such an appeal does apparently lie under the collateral order doctrine.

State v. Hogg, 311 Md. 446 , 535 A.2d 923 (1988), and cases cited therein.” In a footnote to that statement, we expressed concern about the apparent breadth of Hogg , even in light of Bunting . We said, in part: “We would be less than candid if we did not express our concern about the breadth of this aspect of Hogg and the practical difficulties that are involved in allowing immediate appeals whenever the defense of sovereign or governmental immunity is rejected through the denial of a motion to dismiss or for summary judgment under Md. Rule 2-322. In Hogg , and in most (though not all) of the cases allowing these essentially interlocutory appeals, the issues relating to the immunity defense can be resolved without becoming too entangled in the facts and merits of the underlying claim. Indeed, it is that very separation that brings the case under the collateral order doctrine.

That is not the situation here, however. As we shall see, one cannot resolve the immunity questions in this case without effectively deciding the merits as well. This is particularly a problem when the relevant facts, as pled or as shown, are in dispute, for we then have to view the facts in a very partial light and draw inferences and conclusions that the trier of fact ultimately may reject.” Notwithstanding this concern, we concluded that Hogg “articulates no distinctions between entangled and unentangled cases ...” and that, as evidenced by Judge Eldridge’s concur ⁶⁴⁴ ring Opinion in Bunting , while that case limited Hogg “in some undefined way,” it did not overrule the earlier case. Our reading of Hogg , even in light of Bunting , convinced us, most reluctantly, that the appeal, raising issues of both absolute and qualified immunity, was procedurally valid.

The Court of Appeals returned to this issue in State v. Jett, 316 Md. 248 , 558 A.2d 385 (1989). The plaintiff there sued the State because he had allegedly been falsely imprisoned by a local sheriff who, the plaintiff claimed, was a State official. The State moved to dismiss the complaint on the ground that the sheriff was not a State official. The circuit court denied the motion but, in doing so, held not only that the sheriff was a State official but also that, by virtue of the State Tort Claims Act, the State could be sued for the sheriffs conduct.

The State took an immediate appeal from the denial of its motion. The Court of Appeals dismissed the appeal, concluding ultimately that the issue raised was not one of trial avoidance but rather the reach of the Tort Claims Act. The thrust of that Act, which effected a broad waiver of immunity and manifested a consent to suit, was not an emphasis “on protecting state officials and employees from disruption in the performance of their duties by defending against tort claims” but rather was on protecting the public treasury by limiting financial exposure. Id. at 257 , 558 A.2d 385 .

Thus, the Court held, the defense grounded on the Act was not like double jeopardy “and a very few other extraordinary situations” but was effectively reviewable after termination of trial because it did not involve a right to avoid the trial itself. More significant to the present case than the actual holding in Jett is the Court’s discussion of the issue. At 255, 558 A.2d 385 , it characterized Hogg as involving “Maryland common law sovereign immunity in its full, unrestricted vigor” and recounted that: “We analogized the rejection of the sovereign immunity defense to the rejection of public official immunity defenses where the United States Supreme Court has applied the collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. ⁶⁴⁵ 511, 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985) (denial of a claim of qualified immunity, to the extent it turns on an issue of law); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982) (absolute privilege).” (Emphasis added.) In a footnote to that statement, the Court observed that “[a] long line of United States Courts of Appeal decisions have been applying the collateral order doctrine to denial of absolute and qualified immunity defenses asserted by public officials who were sued for alleged torts, either of the federal constitutional variety or based on state law,” citing several Federal and State decisions to that effect.

Following Jett , this Court, in Rice v. Dunn, 81 Md.App. 510 , 568 A.2d 1125 cert. denied, 319 Md. 581, 573 A.2d 1337 (1990), entertained an immediate appeal by a District Court Commissioner from the denial of his motion for summary judgment based on absolute judicial immunity and, in the alternative, qualified immunity. We concluded, at 513, 568 A.2d 1125 , that “the judicial immunity claimed in the case sub judice involves the right to avoid the trial itself____” Judicial immunity, we held, was an absolute immunity. A similar result obtained in Mandel v. O’Hara, 320 Md. 103 , 576 A.2d 766 (1990), where the Court held that the Governor, when exercising his Constitutional power to approve or veto bills passed by the General Assembly, enjoys absolute immunity. On that basis, the Court entertained an immediate appeal by former