Ashburn v. Anne Arundel County

COLE, Judge. In this case, we must determine whether a police officer may be held liable to a person injured by a drunk driver where the officer detected the driver’s condition before the accident but failed to stop and detain him. The parties have agreed to the following facts. On February 18, 1983, Officer Dennis Freeberger of the Anne Arundel County Police Department found John J. Millham in a pickup truck on the parking lot of a 7-11 store.

Millham was intoxicated and sitting behind the wheel of the truck with its engine running and lights on. It is agreed ⁶²⁰ that Millham was driving the vehicle and that, under Maryland law, Millham could have been charged with drunk driving. Apparently noticing Millham’s condition, Officer Freeberger told Millham to pull his truck to the side of the lot and to discontinue driving that evening. As soon as Officer Freeberger left the scene, however, Millham drove the truck away from the lot, proceeded a short distance and collided with appellant, John F. Ashburn, II, a pedestrian.

Ashburn, who lost his left leg and suffered other injuries, brought suit against Millham, Officer Freeberger, Anne Arundel County and the Police Department in the Circuit Court for Anne Arundel County. He based his claim against the latter three on the theory that the police had a mandatory duty to detain all suspected drunk drivers under Md. Code (1977, 1984 Repl.Vol.), § 16-205.1(b)(2) of the Transportation Article. The circuit court granted appellees’ Motion to Dismiss and, in an opinion and order dated October 19, 1984, held that Anne Arundel County Police Department was not a separate legal entity, that Officer Freeberger and Anne Arundel County were immune from civil suit, and that Officer Freeberger owed no special duty to appellant. Appellant filed a timely appeal.

We granted certiorari on our own motion before consideration by the intermediate appellate court. Appellant argues that Officer Freeberger is not immune from suit under the doctrine of public official immunity because Freeberger negligently failed to perform the mandatory (as opposed to discretionary) act of detaining a drunken driver. Appellant also argues that, under the circumstances of this case, a special duty was imposed upon Officer Freeberger to protect appellant. Appellees respond that the doctrine of public official immunity precludes suit by appellant against Officer Freeberger.

Furthermore, appellees argue, even if public official immunity is unavailable to Freeberger, the officer owed no special duty to Ashburn to protect him from injuries sustained as a result of the ⁶²¹ accident caused by defendant Millham. Appellees therefore maintain that the cause of action in negligence must fail. I It was generally held in American courts prior to the mid-part of this century that all public employees were liable for their own torts. See Prosser and Keeton on Torts § 132 (W. Keeton 5th ed. 1984); 63A Am.Jur.2d Public Officers and Employees § 358 (1984).

This Court recognized before the turn of the century, however, the importance of shielding a public officer from liability where the officer’s alleged negligence arose from the performance of his job in a manner which involved judgment and discretion. Cocking v. Wade, 87 Md. 529, 40 A. 104 (1898). Cocking arose from a suit against the bond of a sheriff of Charles County for the sheriff’s alleged negligence in guarding a prisoner. In the face of danger to the prisoner from mob violence, the sheriff moved the prisoner first to a jail in Baltimore City and then again to a dilapidated building which had been used as a jail in Charles County.

While the prisoner was jailed in the Charles County building, a change of venue was granted, which increased unrest among the citizens of Charles County. Although the prisoner and his counsel repeatedly asked the sheriff to move the prisoner to a safer jail, the sheriff refused. Shortly thereafter, the prisoner was taken from the jail by a group of unknown men and hanged. This Court held that no action would lie against the sheriff by the children of the prisoner.

The Court explained that the manner in which a sheriff carries forth his job function with regard to a prisoner: may often be a matter of great difficulty, and one calling for the exercise of much judgment and high degree of courage. He will be required to take careful account of all the circumstances that surround him, estimate in cases of outside attack the forces he must encounter, and compare them with his means of defense, and after due deliberation, determine what course is best for him to ⁶²² pursue. If he does this honestly, with a full purpose to perform his whole duty, even though he make a mistake whereby a prisoner is injured, it would be monstrous to hold him civilly liable for damages to such prisoner. “A public officer is not liable to an action, if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake. A contrary principle would, indeed, be pregnant with the greatest mischief.” Id. at 541 , 40 A. at 106 (citations omitted, emphasis supplied).

Since Cocking , the rule which we have applied to tort claims against a governmental representative is that the actor will be relieved of liability for his non-malicious acts where: (1) he “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.” James v. Prince George’s County, 288 Md. 315, 323 , 418 A.2d 1173, 1178 (1980) (emphasis in original). See also Bradshaw v. Prince George’s County, 284 Md. 294, 303 , 396 A.2d 255, 261 (1970), overruled in part on other grounds in James, supra; Robinson v. Bd. of County Comm’rs, 262 Md. 342, 346-47 , 278 A.2d 71, 74 (1971); Duncan v. Koustenis, 260 Md. 98, 104 , 271 A.2d 547, 550 (1970); Clark v. Ferling, 220 Md. 109, 113-14 , 151 A.2d 137, 139 (1959). We now turn to an analysis of the case sub judice. Clearly, Officer Freeberger is a public official when acting within the scope of his law enforcement function.

See Bradshaw, supra, 284 Md. at 302 , 396 A.2d at 261 ; Robinson, supra, 262 Md. at 347 , 278 A.2d at 74 . The question we must resolve, then, is whether Officer Freeberger was acting in a discretionary capacity when he encountered the drunk driver. ⁶²³ In addressing the difference between discretionary and ministerial actions, our predecessors noted in Schneider v. Hawkins, 179 Md. 21, 25 , 16 A.2d 861, 864 (1940): The term “discretion” denotes freedom to act according to one’s judgment in the absence of a hard and fast rule. When applied to public officials, “discretion” is the power conferred upon them by law to act officially under certain circumstances according to the dictates of their own judgment and conscience, and uncontrolled by the judgment or conscience of others. Almost any action, however, may involve the use of discretion.

Thus, we noted in James, supra, 288 Md. at 327 , 418 A.2d at 1180 : When attempting to classify the particular actions of a public official, a court should be careful not to let the mere fact that decisions are made in performing the questioned task be determinative of whether liability attaches to the conduct, for “[i]n a strict sense, every action of a government employee, except perhaps a conditioned reflex action, involves the use of some degree of discretion.” Swanson v. United States, 229 F.Supp. 217, 219-20 (N.D.Cal.1964). Or as has been otherwise expressed: “it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail.” Johnson v. State, 69 Cal.2d 782 , 447 P.2d 352, 357 , 73 CaL.Rptr. 240 (1968) (en banc). Thus, an 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. [Emphasis supplied.] The James Court went on to state that in the case before it, the driving of an emergency vehicle involved only to a “minimal degree, if at all, the exercise of discretion with regard to the State’s sovereignty.” 288 Md. at 327-28 , 418 A.2d at 1180 . Thus, the Court held that the operation of ⁶²⁴ such an emergency vehicle “is not ordinarily a discretionary act for which immunity will shield the driver from liability for negligence.” Id. at 328 , 418 A.2d at 1180-81 .

The driving of an emergency vehicle, as in James , however, is different from making a decision as to whether a citizen shall be apprehended. When a police officer performs this function, he is acting in a discretionary capacity. Robinson v. Bd. of County Comm’rs, supra, 262 Md. at 347 , 278 A.2d at 74 . Appellant argues, nevertheless, that Officer Freeberger was not acting in a discretionary capacity when he encountered the drunk driver because, appellant contends, Freeberger had a mandatory (and thus purely ministerial) duty to detain the drunk driver in accordance with § 16.205.-1(b)(2) of the Transportation Article, which reads: Except as provided in subsection (c) of this section, if a police officer stops or detains any individual who the police officer has reasonable grounds to believe is or has been driving or attempting to drive a motor vehicle while intoxicated or while under the influence of alcohol and who is not unconscious or otherwise incapable of refusing to take a chemical test for alcohol, the police officer shall: (i) Detain the individual; (ii) Request that the individual permit a chemical test to be taken of the individual’s blood or breath to determine the alcohol content of the individual’s blood; (iii) Advise the individual of the administrative penalties that shall be imposed for refusal to take the test; and (iv) If the individual refuses to take the test, send a sworn report to the Administration within 72 hours after the detention, that states____ [Emphasis supplied.] Appellant contends that this section prescribes a mandatory procedure for the handling of drunk drivers and that because Freeberger failed to carry forth this mandatory duty, he is liable for all results which flow from his error. ⁶²⁵ Appellant points to the word “shall” in § 16-205.1(b)(2), and he argues that this word placed a mandatory duty upon Freeberger to stop, detain and administer sobriety tests to Millham.

We disagree. What appellant fails to note is that the word “shall” is preceded by the wording “if a police officer stops or detains any individual.” We believe that this introductory clause makes clear that Freeberger was not required by § 16-205.1(b)(2) to detain Millham (under subsection (i)) or to request that Millham take a chemical test (under subsections (ii)—(iv)). We have stated time and again that where a statute is plain and unambiguous, we will look no further than the words of the statute to ascertain legislative intent. State v. Berry, 287 Md. 491 , 413 A.2d 557 (1980); Collier v. Connolley, 285 Md. 123 , 400 A.2d 1107 (1979); Mauzy v. Hornbeck, 285 Md. 84 , 400 A.2d 1091 (1979); Massage Parlors v. City of Balto., 284 Md. 490 , 398 A.2d 52 (1979).

By the plain meaning of this statute, its directives are not invoked until the officer “stops or detains any individual.” In Willis v. State, 302 Md. 363, 376 , 488 A.2d 171, 178 (1985), we equated the phrase “stop or detain” in § 16-205.1 with the word “apprehension” (“apprehended” as used in Md. Code (1974, 1980 Repl.Vol.), § 10-303 of the Courts and Judicial Proceedings Article). We held in Willis that “an accused is ‘apprehended’ when a police officer has reasonable grounds to believe that the person is or has been driving a motor vehicle while intoxicated or while under the influence of alcohol and the police officer reasonably acts upon that information by stopping or detaining the person.” Id. Webster’s Third New International Dictionary (1981) defines the verb “detain” as “to hold or keep in or as if in custody ... to restrain especially from proceeding____” 1 ⁶²⁶ The verb “stop” is defined in Webster’s, in relevant part, as “to keep confined ... to hinder or prevent the passage of ... to close up or block off access to ... to make impassable ... to keep from carrying out a proposed action: hold back: RESTRAIN....” Applying the facts of this case to these definitions, it does not appear that Officer Freeberger stopped or detained the drunk driver. Here, Officer Freeberger “found” the drunk driver sitting in a truck and “told” the driver to pull to the side of the lot and to discontinue driving.

Freeberger then left the scene. Freeberger did not confine or restrain Millham. He did not begin an investigation of Millham. Instead, Freeberger told him to drive the car to the side of the parking lot, and then Freeberger left.

Because Freeberger did not “stop or detain” Millham, the requirements of § 16-205.1(b)(2) simply were not invoked. Under these facts, § 16-205.1(b)(2) did not make it mandatory that Freeberger detain Millham. Consequently, because Freeberger was acting in a discretionary capacity, he is immune from suit under the circumstances of this case. II Even if we were to assume that § 16-205.1 required Freeberger to stop or detain Millham, i.e., that the statute made Freeberger’s actions ministerial, and thus nondiscretionary, appellant's cause would still fail because he did not establish that Freeberger owed him a duty in tort.

Judge McSherry stated for this Court over eighty years ago that: there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance, before negligence can be predicated of a given act, back of the act must be ⁶²⁷ sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury____ As the duty varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact, if there has been no breach of duty. W. Va.

Central R. Co. v. Fuller, 96 Md. 652, 666 , 54 A. 669, 671 (1903). Judge McSherry’s comments remain viable today: negligence is a breach of a duty owed to one, and absent that duty, there can be no negligence. “Duty” in negligence has been defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser and Keeton, supra, § 53. There is no set formula for this determination. As Dean Prosser noted, “duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Id.

In broad terms, these policies include: “convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, [and] the moral blame attached to the wrongdoer____” Id. As one court suggested, there are a number of variables to be considered in determining if a duty exists to another, such as: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434 , 131 Cal.Rptr. 14, 22 , 551 P.2d 334, 342 (1976). ⁶²⁸ Perhaps among these the factor deemed most important is foreseeability. See id.

However, “foreseeability” must not be confused with “duty.” The fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person’s conduct so