Burns v. Mayor of Rockville

ROSALYN B. BELL, Judge. Marcia Burns and her husband, appellants, challenge the award of summary judgment against them in favor of the Mayor and City Council of Rockville (Rockville), appellees. Specifically, the Burnses contend: “I. The Circuit Court erred in granting [the] Motion for Summary Judgment because there existed a genuine dispute as to material facts between the parties. “II. The Circuit Court erred in granting [the] Motion for Summary Judgment because the [appellee] was engaged in a ‘proprietary function,’ and, therefore the defense of sovereign immunity does not lie. “HI.

The Circuit Court erred in granting [the] Motion for Summary Judgment because, to the extent applicable, the defense of sovereign immunity has been waived by the [appellee]. “IV. The Circuit Court erred in granting [the] Motion for Summary Judgment because the doctrine of sovereign immunity, as applied to municipal corporations and the distinction between governmental and proprietary functions is unconstitutional.” The underlying facts are essentially undisputed. Marcia Burns arrived at a performance to be given by The Rock-ville Civic Ballet on December 13, 1981 at the F. Scott Fitzgerald Theater located in the Rockville Civic Center. Burns entered the small theater on the left side but was unable to locate available seats.

Observing open seats on the right side of the theater, Burns chose to walk directly in front of the stage area rather than retreat up the left aisle, through the exit doors, and down the right or center aisle. ²⁹⁶ As she was crossing from the left aisle to the right aisle, she stepped into the orchestra area, which was depressed 10 to 12 inches. Burns misgauged the depth of the step and fell, suffering ankle and leg injuries. Burns and her husband filed suit in the Circuit Court for Montgomery County against Rockville alleging that the orchestra “pit,” as they referred to it, was a dangerous condition which Rockville knew or should have known about and that Rockville was negligent in failing to provide warning signs, steps, barriers or contrasting colored carpet to warn business invitees of the lowered area. Rockville answered the complaint by pleading that it was not negligent and that Marcia Burns was contributorily negligent and assumed the risk of injury.

Rockville subsequently filed a Motion for Summary Judgment alleging it was immune from suit under the doctrine of governmental immunity. The court agreed and judgment was entered accordingly. In reviewing an award of summary judgment, the movant must have clearly demonstrated the absence of any genuine issue of material fact and must also have demonstrated that he or she is entitled to summary judgment as a matter of law. Castiglione v. Johns Hopkins Hospital, 69 Md.App. 325, 332 , 517 A.2d 786 (1986).

The purpose of a summary judgment hearing is not to determine disputed facts but to determine whether a genuine dispute as to any material fact exists. Moreover, the court may not attempt to decide any issue of credibility. Coffey v. Derby Steel Co., 291 Md. 241, 247 , 434 A.2d 564 (1981). In determining whether a factual dispute exists, all inferences to be drawn from the pleadings, affidavits and admissions must be resolved against the moving party.

Delia v. Berkey, 41 Md.App. 47, 51 , 395 A.2d 1189 (1978), aff'd, 287 Md. 302 , 413 A.2d 170 (1980). “[E]ven where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact.” Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 , 265 A.2d 256 (1970). Even if it is found unlikely that ²⁹⁷ the party opposing the motion will prevail at trial, the motion should not necessarily be granted against that party. Delia, 41 Md.App. at 51 , 395 A.2d 1189 . The summary judgment was based on the conclusion that when the Rockville Civic Ballet performed on December 13, 1981, Rockville was engaged in a governmental as opposed to a proprietary function and thus the doctrine of immunity barred the Burnses’ recovery.

Recently, the Court of Appeals discussed immunity available to the State and to municipalities in Maryland-National Capital Park and Planning Commission v. Kranz, 308 Md. 618 , 521 A.2d 729 (1987). We quote: “As this Court has often pointed out, the doctrine that the State of Maryland and state agencies are generally immune from suits, unless the immunity has been waived by the General Assembly, ‘ “is firmly embedded in the law of Maryland.” ’ Austin v. City of Baltimore, 286 Md. 51, 53 , 405 A.2d 255 (1979), quoting Katz v. Wash. Suburban Sanitary Comm’n, 284 Md. 503, 507 , 397 A.2d 1027 (1979). On the other hand, counties and municipalities do not possess this general immunity.

Instead, counties and muncipalities have never been given immunity in contract actions, and, in tort actions, they are not immune with regard to those matters categorized as ‘proprietary’ but are immune with regard to those matters categorized as ‘governmental.’ See generally, e.g., Tadjer v. Montgomery County, 300 Md. 539, 546-550 , 479 A.2d 1321 (1984); Austin v. City of Baltimore, supra, 286 Md. at 58-61, 63-66 (majority opinion), 70-78 (concurring and dissenting opinion), 83-84 [ 405 A.2d 255 ] (dissenting opinion); Katz v. Washington Sub. San. Comm’n supra, 284 Md. at 507-512 , 397 A.2d 1027 ]; Bradshaw v. Prince George’s County, supra, 284 Md. [294] at 300 [ 396 A.2d 255 ] [(1979)]; American Structures v. City of Baltimore, 278 Md. ,356, 358-360, 364 A.2d 55 (1976); Cox v. Anne Arundel County, 181 Md. 428, 431-433 , 31 A.2d 179 (1943).” Traditionally, the immunity attaching to the State was referred to as sovereign immunity while that available to ²⁹⁸ municipalities was referred to as governmental immunity. In Kranz , the Court, however, emasculated the semantic distinction between the terms, noting that the cases more often than not used the terms interchangeably.

As stated, municipal immunity is not automatic, but when the municipality or county is engaged in a governmental function, immunity attaches. Mayor of Baltimore v. State, ex rel. Blueford, 173 Md. 267, 271-72 , 195 A. 571 (1937). The Court of Appeals in Blueford, 173 Md. at 276 , 195 A. 571 , outlined the test for determining whether a municipality is engaged in a governmental function as follows: “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.” Further clarifying this test in Tadjer v. Montgomery County, 300 Md. 539, 547 , 479 A.2d 1321 (1984), the Court of Appeals explained: “Another way of expressing the test ... is whether the act performed is for the common good of all or for the special benefit or profit of the corporate entity.” Thus, the essential question presented before the circuit court was whether Rockville was performing a governmental function when Marcia Burns was injured.

To support its position that the presentation of a ballet was governmental, Rockville submitted the affidavit of Betty Cheslowsky Wisda, supervisor of the Arts and Special Programs Division of the Department of Recreation and Parks of the City of Rockville. She indicated that the Rockville Civic Ballet was a part of her division. She also stated that the fee and ticket pricing policy of Rockville regarding the Ballet “neither anticipated to, nor [did] they, ²⁹⁹ cover the cost of running the Ballet.” 1 She set forth the receipts and expenses of the Ballet for fiscal years 1982-1985 which showed a net loss of between $1,193 and $1,799 a year. Rockville also submitted the affidavit of Mary Parker, Director of Finance for the City of Rockville, in which she indicated that for fiscal year 1982, in the general fund, there were funds appropriated to run the Rockville Civic Ballet and that therefore, the Ballet was an authorized city expenditure.

Applying the tests set out in Blueford and Tadjer , the circuit court agreed with Rockville that the Ballet was legislatively authorized, was solely for public enjoyment and was not a profit-making enterprise for the city, benefited the public welfare and had no element of private interest. Accordingly, the court ruled that Rockville was protected by municipal immunity. L FACTUAL DISPUTE Focusing on the profit element set out in Blueford , the Burnses first assert the court erred in granting summary judgment because a genuine dispute as to a material fact existed. 2 Referring to Wisda’s affidavit, they argue that several items of expense should not have been included in determining the Ballet’s profitability and thus whether the Ballet made a profit was a material factual question in dispute. ³⁰⁰ We note that the Burnses presented this issue in their written motion opposing summary judgment, but at the hearing, counsel did not address this issue except for a passing reference to it as a “minor” factual dispute concerning profitability. Somehow, this “minor” factual dispute has been transformed into a material factual dispute on appeal.

Included in Wisda’s affidavit were expenses for “[facilities [r]ental of [r]ehearsal [s]pace”; “[sjtorage [a]rea/[t]ech [q]uarters”; and [facility [rjental of [tjheatre.” The affidavit then stated with respect to these items: “7. That the valuation of the facility rental and storage/technical quarters is based upon a comparison of fees charged to other users of these facilities. There is no actual charge to the Civic Ballet for the use of these facilities, but, instead, the cost to the City of Rockville has been determined using this comparison method.” The Burnses assert that without inclusion of those expenses, the Ballet operated at a profit. This argument failed to convince the trial judge and fails to convince this Court of the existence of a material fact for several reasons.

Relying on Tadjer , the Burnses argue that whether an activity operates at a profit is a question that can only be resolved by a trial on the merits. It is true in Tadjer, 300 Md. at 549-50 , 479 A.2d 1321 , the Court of Appeals ruled that whether expenses for a county landfill were in excess of the revenues derived was a factual question: “If, as in Austin [v. Mayor of Baltimore, 286 Md. 51 , 405 A.2d 255 (1979)] and [.Blueford ], the income was not adequate to maintain the landfill or if this income were barely adequate to cover expenses, we would agree that this landfill operation was a governmental function. On the other hand, if the income derived was in an amount substantially in excess of the County’s expenses for rent, operation and the like, so that the landfill was a real moneymaking proposition, it would be a proprietary func ³⁰¹ tion. Only a trial on its merits can make this determination.” (Emphasis supplied).

In this regard, we find Tadjer distinguishable from the case sub judice. In Tadjer , the trial court granted a demurrer to a plaintiffs claim for negligence against Montgomery County based on immunity. The Tadjer Court reversed the trial court and this Court because there was no evidence before either court about the amount of expenses and revenues derived from the landfill: “All we have is the fact set forth in the declarations that the County derived ‘substantial income’ from this operation. We, of course, have no way of knowing the amount of this income.

It may be great or small.” Tadjer, 300 Md. at 549 , 479 A.2d 1321 . Unlike Tadjer , this Court has before it the expense and income figures for the Ballet, and thus this case is governed by the holding in Blueford where the Court was able to determine that the operation of a swimming pool was not a profit-making proposition. See also Wright v. Rever, 151 Md. 558, 568 , 136 A. 61 (1926). More important, the issue challenged in the case at bar is not a factual question.

The Burnses do not dispute the numerical expense and revenue calculations provided in Wisda’s affidavit. Of utmost importance to the case sub judice, they do not contest that the figures provided were not the actual costs to Rockville for providing the space used by the Ballet. In an unverified opposition to the motion for summary judgment, the Burnses merely alleged that the challenged expenses were “not actually paid or incurred by the City of Rockville and therefore should not be considered in determining the ballet’s profitability.” No affidavit was filed to support this claim. Cf.

Frush v. Brooks, 204 Md. 315, 320-22 , 104 A.2d 624 (1954) (mere denial of a claim is conclusory and ineffectual to bar motion for summary judgment supported by valid affidavit). Had the Burnses challenged the figures and/or produced an affidavit which stated that the challenged expenses were not charged to other users or were not proper accounting ³⁰² expenses, a material factual issue may have been generated. Instead, they have merely presented the trial court with a conclusion. The Burnses did not generate a factual question about whether the expenses should be utilized.

They raised no issue of credibility. In any event, even if we accepted their argument that the rental and storage fees should not be used in calculating expenses, there still is no question but that the Ballet was not a moneymaking proposition. If we omit the challenged expenses from the expense calculation as the Burnses desire, the Ballet still operated either at a loss or a slight gain for all four years noted in Wisda’s affidavit. In an effort to alleviate its losses, the Ballet held bake and craft sales.

The holding of bake and craft sales to generate sufficient income to allow the Ballet to “break even” does not convert an otherwise losing proposition into a profit-making one. Moreover, bake and craft sales are not activities generally engaged in by organizations that are designed to and anticipate making a profit. Moreover, the fact that the Ballet may have received some revenue gain for some of the years of its operation from a balance sheet point of view does not automatically mean it was designed as, and operates as, a profit-making activity. We find this situation governed under the rationale set out in Austin, 286 Md. at 66 , 405 A.2d 255 : “Although the fees projected when the Camp Cahill budget was proposed may have generated sufficient funds to cover day-to-day expenses of the camp, it is ‘obvious’, as the Court of Special Appeals ascertained, ‘that the City had a substantial capital investment in the Camp Cahill Recreation Center, and that it was required to subsidize the day-to-day operation of the Center and the day camp.’ We believe, as the intermediate appellate court believed, that the fees here did not result in a profit or emolument inuring to the City within the contemplation of the Blue-ford guidelines.” (Citation omitted.) Wisda’s affidavit further stated that the Ballet also received, without an allocation of costs from Rockville, admin ³⁰³ istrative support including “publicity, graphic requests, advanced ticket sales, and budget items”; “[technical support from the City’s technical director/electrician in the areas of light design/execution, set designs/construction and sound execution”; “[secretarial staff, custodial staff, and the services of the civic center supervisor and the graphics department.” No figures were provided for the cost to Rockville for these items and they were not figured into the fiscal years’ expense calculations.

It is clear, thus, that Rockville subsidized the Ballet in its day-to-day operations to an extent greater than that reflected in the expense calculations. In conclusion, we hold the trial court did not err in concluding the Ballet did not operate at a profit to Rockville.

II

GOVERNMENTAL OR PROPRIETARY FUNCTION The Burnses next allege that Rockville was engaged in a proprietary function and thus the doctrine of municipal immunity is inapplicable. Focusing on the test set out in Blueford , they argue that the activity did not benefit the public health and promote the public welfare and that it had an element of private interest. The Burnses specifically posit that the activity Rockville engaged in was not the maintenance of a municipal recreation program, but the ownership and maintenance of property: “[Rockville] was sued in its purely proprietary capacity as a land owner.” (Emphasis in original.) To support their position, the Burnses point out that the negligence they complained of was not in the performance of the Ballet, but instead was incident to the maintenance of property, specifically, a dangerously designed and maintained orchestra area. As they continue, “it is not a necessary function of the sovereign to either own theaters or to produce ballet.

One must stretch the common law and the doctrine of sovereign immunity to absurd lengths to find that the ownership of theaters or the production of ballets is a sufficient governmental ³⁰⁴ function to entitle [Rockville] the protection of the doctrine of sovereign immunity.” We disagree. In Austin , the Court of Appeals established that municipal recreation programs were governmental in nature. In that case, the Department of Recreation and Parks of the City of Baltimore operated a day camp, Camp Cahill, for underprivileged inner-city children. The mother of a young girl, who drowned during a camp field trip, sued the City of Baltimore, but was barred by the doctrine of municipal immunity.

The Court stated: “ ‘[P]ublic parks are vitally necessary to the public health and welfare, in the congested centers of population, in affording a temporary escape from the noise and dust and jostling of crowded city streets. So, too, swimming or wading pools and other public facilities for bathing have a direct and necessary relation to the public health in affording to the masses who are unable to go to the seashore or to inland lakes, or ponds or streams beyond the city, some opportunity of lessening the dangers and discomforts which are inseparable from the depressing and exhausting heat of the summer season.’ ” Austin, 286 Md. at 63-64 , 405 A.2d 255 , quoting Blueford, 173 Md. at 274 , 195 A. 571 . The Court concluded: “ ‘The City’s election to furnish the day camp facilities to its citizens was a permitted exercise of its judgment as to the necessity for the program in the interest of the health, welfare and education of its children. To deny the City the protection of its cloak of [municipal] immunity in the operation of an activity necessary to the health, education and welfare of its children must have a chilling effect on the ability and willingness of the City to continue to furnish that vitally needed service in the future.’ ” Austin, 286 Md. at 66 , 405 A.2d 255 , quoting Mayor of Baltimore v. Austin, 40 Md.App. 557, 572 , 392 A.2d 1140 (1978).

The Burnses, in essence, urge this Court to distinguish the ruling in Austin because the maintenance of the civic center for, among other things, the production of a ³⁰⁵ ballet is not socially equivalent to providing a day camp for “underprivileged, poverty-stricken children” and because the compelling need for governmental immunity is absent in the case sub judice. Although a sympathetic argument, we decline to adopt it. While the maintenance of a day camp serves a compelling need, the maintenance of other municipal recreation programs geared to other groups of citizens does so as well. The Burnses are attempting to separate the recreational program of ballet conducted within the civic center building from the maintenance of the building in which the recreational program is conducted.

In other words, they are taking a single municipal activity and dividing it into two components, one governmental and one proprietary. This strategy to