Charles County Commissioners v. Johnson

²⁵⁰ HARRELL, J. We granted ( 390 Md. 284 , 888 A.2d 341 (2005)) the Petition for Writ of Certiorari filed by the Board of County Commissioners for Charles County, Maryland (denominated as the Charles County Commissioners below and elsewhere in this opinion), the Office of the Sheriff of Charles County, and the State of Maryland (“Petitioners”), to consider whether the Court of Special Appeals erred when it vacated summary judgment granted to Petitioners on a complaint brought against them in the Circuit Court for Charles County by Anne Marie Johnson and Jolene Johnson, Respondents, alleging causes of action under §§ 19-101 and 102 of the Transportation Article of the Maryland Code. 1 The intermediate appellate ²⁵¹ court concluded that, under the totality of the factual circumstances reflected in the pleadings, discovery responses, and reasonable inferences able to be drawn therefrom in a light most favorable to the non-moving party (Respondents here, who were plaintiffs in the trial court), there existed material factual disputes sufficient to require a jury determination of whether a police officer or officers “directed” decedent civilian, Joseph Johnson (Respondent Anne Marie Johnson’s husband and Respondent Jolene Johnson’s father), to assist in the apprehension of a fleeing suspect and/or “directed” him to participate in a roadblock for that purpose in the course of which he was injured and ultimately died. I. The prefatory facts leading to the denouement at the intersection of Route 301 and Smallwood Drive are undisputed. At approximately 8:54 a.m. on the morning of 25 August 1999, Corporal Wayne Boarman of the Maryland Transportation Authority Police observed, from his post at the Governor Harry Nice Bridge on the Maryland side of the Potomac River at its border with Virginia, a green Chevrolet sports utility vehicle (“SUV”) traveling northbound in the southbound lanes of Interstate Route 301 at a speed of approximately 60 miles per hour. Corporal Boarman noted that as the SUV passed in the wrong direction through the southbound-only toll plaza, it swayed as it proceeded between the concrete toll abutments, accelerating at a high rate of speed after it did so.

The SUV continued traveling northbound on Route 301 in the southbound lanes. Corporal Boarman immediately used his radio to contact Officer Lawrence M. Collins, a Maryland Transportation Authority Patrol Officer, to watch for the green SUV, traveling northbound in the southbound lanes. At 9:02 a.m., Corporal Boarman also contacted by radio the Charles County Sheriffs Office to advise that a “dark green Blazer,” driven by a white male, passed through “the tolls at approximately 100 miles per hour,” and “was going northbound in the southbound lanes of Route 301.” Three minutes ²⁵² later, the Charles County Sheriffs Office Communications Officer for District 1 broadcasted a lookout. Shortly after the lookout broadcasted, several Deputy Sheriffs, who heard the radio lookout for the green SUV, observed the vehicle driving northbound in the southbound lanes on Route 301 at speeds ranging from 60 to 100 miles per hour, using the shoulder and grass median to pass other vehicles in its path.

Corporal Donald Belfield, Corporal Joseph Gibson, and an Officer Burroughs all activated emergency equipment in their respective marked cruisers and engaged in pursuit of the vehicle. Due to the high rate of speed of the SUV, however, they were unable to overtake it. Corporal Belfield and Officer Burroughs abandoned their pursuit. Corporal Gibson continued the chase.

Corporal Gibson observed the SUV pass through a red traffic signal at the intersection of Route 301 and Billingsley Road/Route 225 at a speed in excess of 90 miles per hour. He passed along that observation over his radio. Just prior to the vehicle passing through the intersection, Sergeant Daniel Gilmer of the Charles County Sheriffs Office broadcast that he would attempt to halt the vehicle using stop sticks. 2 This attempt failed. Sergeant Gilmer notified at 9:07 a.m. all units listening of the failed attempt and canceled the participation of all LaPlata-based units, with the exception of Corporal Gibson, who was now approximately 900 to 1200 feet behind the speeding SUV.

The SUV was now traveling between 75 and 100 miles per hour. It continued using the grass median to swerve past ²⁵³ traffic on Route 301. At 9:10 a.m., Corporal Gibson inquired over the police radio if “stop sticks” were available in Waldorf. The dispatcher advised him that the State Police would attempt to deploy stop sticks at the intersection of Route 301 and Smallwood Drive, an entrance to the St. Charles community in Waldorf, Maryland, approximately 1.25 miles north of the intersection of Route 301 and Billingsley Road/Route 225.

Sergeant Michael McGuigan of the Charles County Sheriffs Office initially was located at the District III Station in Waldorf when he heard radio calls about the high speed chase of a vehicle traveling northbound on Route 301. Knowing that he had stop sticks in the trunk of his marked police vehicle, he activated the emergency equipment of his vehicle and proceeded westbound on Smallwood Drive towards its intersection with Route 301. As he reached the intersection, he noticed that the light controlling traffic westbound on Smallwood Drive turned from red to green. At 9:10 a.m., as he entered the intersection, he asked the dispatcher in what lanes of traffic on Route 301 the suspect’s vehicle was approaching.

Eight seconds later, the dispatcher advised that the suspect’s vehicle was “passing Billingsley [Road] at this time.” Twenty seconds later, Sergeant McGuigan asked, “Is it northbound or southbound coming into Waldorf?” One second passed before the dispatcher responded, “That’s correct. It’s coming into Waldorf.” Unsure of in which lane of traffic the suspect was traveling, Sergeant McGuigan later would explain that he positioned his marked police vehicle, emergency lights still flashing, in the center of the intersection, past all northbound lanes, stopping close to the turn lanes from southbound Route 301. By doing so, he prevented traffic from eastbound Small-wood Drive from entering the intersection. Just after he so positioned his vehicle, an unmarked burgundy State Police vehicle (operated by Maryland State Trooper First Class Thomas Ford) entered the intersection from southbound Route 301 and pulled up next to him.

At 9:11 a.m., twenty seconds after transmitting the last previous radio messages, the dispatcher advised Sergeant McGuigan that the suspect’s vehicle now was traveling in the ²⁵⁴ grass median of Route 301. Looking south toward the oncoming northbound lanes, the Sergeant saw the emergency lights of a police car in the distance. He then focused on the scene immediately around him, noting that approximately 10 cars in the five lanes of northbound Route 301 were stopped at the red traffic light. Sergeant McGuigan got out his car, ran to the trunk, and grabbed the stop sticks.

He ran with them towards the northbound lanes of Route 301. Looking south, he saw the oncoming suspect vehicle approaching at a high rate of speed. He guessed that the suspect would either turn onto eastbound Smallwood Drive or proceed north by using the unobstructed right shoulder, across the northbound lanes of Route 301. Intending to deploy his stop sticks there, he continued to run towards the shoulder of Route 301.

Contemporaneously with Sergeant McGuigan’s activities, Private First Class William Donley and Probationary Officer Donald Raby entered the intersection, each in their marked police cruisers. Officer Donley noticed that cars in the northbound lane of Route 301 were stopping at the red traffic light. He also noticed Sergeant McGuigan’s vehicle, with emergency equipment activated, proceed to the center of the intersection. Officer Donley later would attest that he directed Officer Raby to activate the emergency equipment on his vehicle and position his cruiser in front of, and perpendicular to, traffic on westbound Smallwood Drive in order to prevent that traffic, which now had a green signal, from entering the intersection with Route 301.

Officer Donley did likewise with his vehicle. Shortly thereafter, Officer Donley looked south on Route 301 and observed the suspect’s vehicle traveling north at an extremely high rate of speed, dodging other northbound cars as they slowed in apparent anticipation of arriving at the Route 301/Smallwood Drive intersection. At about that time, Trooper Ford reached the intersection of Route 301 and Smallwood Drive in his unmarked cruiser. He observed two Sheriffs Office vehicles, with emergency lights activated, in or near the intersection.

He later would state that he positioned his vehicle adjacent to Sergeant McGuigan’s vehicle. Trooper Ford also represented that he ²⁵⁵ did not believe that either vehicle was positioned near, or impeded traffic from, the northbound lanes of Route 301. After asking Sergeant McGuigan about the suspect’s location, Trooper Ford also sought out stop sticks from his cruiser. As he did so, he saw the suspect’s vehicle imminently in the northbound lanes of Route 301 at the intersection.

As Corporal Gibson, while following in pursuit of the suspect, approached the intersection of Route 301 and Smallwood Drive, he saw police activity that appeared to him to be an effort to clear the intersection of traffic. He noticed that the right shoulder of northbound Route 301 was unobstructed. He was now approximately 1500 to 1800 feet behind the suspect’s vehicle, which repeatedly changed lanes and rocked back and forth as it closed on the intersection. Gibson noticed that the traffic light for northbound traffic was red.

He watched the SUV enter the far right lane next to the shoulder and collide with the stopped civilian cars. The SUV became airborne. It passed directly over Sergeant McGuigan’s head, landing in the center of the intersection, on the northbound side. Because the right shoulder had been clear of traffic, Corporal Gibson concluded that the suspect purposely rammed the stopped cars.

Immediately after the collision, Sergeant McGuigan ran to the vehicles struck by the suspect’s SUV and asked the occupants to stay in their cars until help arrived. Several officers advised the police radio dispatcher of the collision and requested emergency medical units. Trooper Ford ran to the car occupied by Joseph Johnson, which had been struck by the suspect. Trooper Ford attempted to comfort the driver, called for medical assistance, and then ran to assist other officers who were attempting to secure the suspect.

The collision caused severe injuries to Mr. Johnson. 3 Captain Joseph Montiminy, the Commander of the Patrol Division of the Sheriffs Office, arrived later at the scene of ²⁵⁶ the collision. Although he played no part in the chase, he learned of its details through questioning the various officers involved. Later that day, he conducted a “Critical Incident Critique” with most of the officers involved. Based on information gleaned from that meeting, Captain Montminy determined that no “roadblock,” “barricade,” or “blockade” had been conceived or used on Route 301 at the Route 301/Small-wood Drive intersection in an attempt to halt the suspect’s vehicle.

In contrast to the conclusions of Captain Montiminy, Corporal Boarman wrote later that day in a report: AND AN ATTEMPT TO STOP THE VEHICLE WAS MADE AT THE INTERSECTION OF U.S. RT. 301 AND SMALLWOOD DRIVE IN WALDORF; MD, BY BLOCKING THE INTERSECTION IN AN ATTEMPT TO FORCE THE VEHICLE INTO THE RIGHT TURN LANE. THE VEHICLE ATTEMPTED TO PLOW THROUGH THE ROADBLOCK WHICH RESULTED IN A NEAR FATAL TRAFFIC ACCIDENT AND THE APPREHENSION OF THE SUBJECT. Gloria Colburn, a civilian, was a driver of one of the cars that approached on Route 301 northbound at the intersection of Route 301 and Smallwood Avenue. She stopped her car in the far right lane of northbound Route 301 as police were pulling into the intersection.

At the same time that she noticed the police activity in the intersection, she noticed that the traffic light facing her northbound direction of travel was green. She testified to the following at her deposition in this case: A Okay. I was driving on Route 301 going north and a little—a distance away I saw the light was green and— but then at the same time I noticed that there were some police ears under the intersection. So I was aware of—I knew I was going to be stopping because they were more or less right—they were right across the road, and I knew I’d stop whether the light was green or red, but by the time I got to the light, the light had changed to red.

Q Okay. And then what happened? ²⁵⁷ A I was correct. There were three police cars across the intersection of the road, and I just sat there, and they were sitting also in their car. And 1 waited and waited because I thought they would direct me on what to do, but they seemed very calm sitting in the car, so I just sat there and was curious as to why we were there.

And I kind of assumed at that time maybe we were waiting for a funeral to pass or something of that nature because nothing seemed out of order. Ms. Colburn also stated, making use of a visual aid in an attempt to demonstrate the positions of the various vehicles, that three police cars were parked in the intersection in such a way as to make it physically impossible to move her vehicle, there being “no opening.” John Weyrich, another civilian driver who was positioned in the far light northbound lane of Route 801 at the intersection, testified that three police vehicles were parked at the intersection, two with their emergency lights flashing. 4 Corporal Belfield, in his deposition, stated that he interviewed a witness, Mr. Sadaka, another motorist stopped at the intersection. Mr. Sadaka told Corporal Belfield that police officers had stopped traffic from crossing Route 301 prior to the collision. On 23 August 2000, Anne Marie Johnson, individually and as proposed guardian for her injured, but still living, husband, Joseph Johnson, filed the present action in the Circuit Court for Charles County. 5 The Complaint named David Glenn ²⁵⁸ Hicks (the driver of the SUV), the Charles County Commissioners, the State of Maryland, and the “Office of the Sheriff of Charles County, Maryland,” 6 as defendants.

The Complaint set forth claims of negligence in five separate counts, all arising from the pursuit of Hicks’s SUV and its collision with the vehicle driven by Joseph Johnson on 25 August 1999. Mrs. Johnson amended the complaint on four occasions to reflect the death of Mr. Johnson in January 2001 and added causes of action, a request for punitive damages, and her daughter, Jolene Johnson, as a plaintiff. In the Fourth Amended Complaint, filed 19 February 2002, the Johnsons alleged claims under §§ 19-101 and 19-102 of the Transportation Article, among other claims, asserting that, immediately prior to the collision, Charles County police officers and/or Maryland State Troopers: (1) did not make any effort to move the observed civilian vehicles from the scene when they knew that the chase was approaching the intersection, (2) pursued Hicks negligently and/or recklessly, (3) created a roadblock using Mr. Johnson’s vehicle as a means of enforcing the law and/or apprehending Hicks, and (4) directed Mr. Johnson to assist them in enforcing the law and/or apprehending Hicks. 7 Following discovery, Petitioners moved for summary judgment on 18 August 2003. A hearing on the motion was held on 16 October 2003.

The Circuit Court granted the Petition ²⁵⁹ ers’ motion on the issue of liability under §§ 19-101 and 19-102. The Circuit Court held that Petitioners were not liable under § 19-102, as a matter of law, because “unequivocal and purely objective evidence clearly established] that no officer directed or commandeered any non-police vehicle so as to utilize a non-police vehicle in a roadblock.” Specifically, the court relied upon the following evidence: [A]udio data recordings demonstrate that Sergeant McGuigan was in the center of the intersection for less than one minute, photographic evidence demonstrated that Trooper Ford’s vehicle in no way blocked or impeded traffic on Route 301, the accident reconstruction of expert witnesses, through application of engineering principles, illustrated that no police vehicle was positioned as Plaintiff Colburn diagramed, and the pertinent documents from the State Highway Administration showed the traffic light sequence at the intersection at the time of the accident. Furthermore, even Gloria Colburn, who initially alleged this roadblock theory of liability, failed to testify during discovery that any officer commandeered or directed that a non-police vehicle be used in a roadblock. (Citations omitted).

The trial court also held that Petitioners were not liable for violation of § 19-101, as a matter of law, because the court concluded that no police officer in this case “directed” Mr. Johnson to assist them in any way. “Rather, the Plaintiffs were stopped at a red traffic signal at the intersection of Route 301 and Smallwood Drive before any officer arrived on the scene, and the Plaintiffs remained stopped for the signal in the seconds prior to the collision,” (citing Ashburn v. Anne Arundel County, 306 Md. 617, 628 , 510 A.2d 1078 (1986), for the proposition that an officer who has no special relationship with a victim has no duty to protect that victim from injury caused by another private citizen). The Johnsons appealed. In an unreported opinion, the Court of Special Appeals vacated the summary judgments granted by the Circuit Court ²⁶⁰ on the Johnsons’ §§ 19-101 and 19-102 claims. 8 The intermediate appellate court claimed that it reviewed the conflicting evidence on the record in a light most favorable to the Johnsons, including the evidence gathered from Ms. Colburn’s deposition, supra, where she stated that she stopped her vehicle at the intersection due to police vehicles blocking northbound Route 301 at the Smallwood Drive intersection. The court noted that “[i]f Gloria Colburn’s testimony at trial is inconsistent with her deposition testimony, her deposition testimony would be ‘substantively’ admissible under Md. Rule 5-802.1(a)(1)” or “[i]f Gloria Colburn is unavailable to testify at trial (and her unavailability was not procured by the appellants), her deposition testimony would be ‘substantively' admissible under Md. Rules 2-419(a)(3) and 5-804(b)(1)” at trial.

The intermediate appellate court concluded that “[ujnder these circumstances, [it was] persuaded that the deposition testimony of Gloria Colburn [was] sufficient to generate a jury determination of whether—under the Keesling [v. State, 288 Md. 579 , 420 A.2d 261 (1980),] 9 ‘totality of the circumstances’ test—Joseph Johnson was directed to assist the officers in apprehending Mr. Hicks.” Petitioners successfully sought our review of this determination. ²⁶¹ II. Petitioners contend that no genuine dispute of material fact exists on this record because the facts admissible in evidence establish that no police officer “directed” Joseph Johnson to assist them in enforcing the law or apprehending any person suspected of violating that law and that no police officer “directed” him to participate in a roadblock. Petitioners posit that our decision in Keesling and the legislative history of §§ 19-101 and 19-102 support the conclusion that, absent an active, affirmative command for assistance from a police officer to a civilian, the statutes do not come into play. Sections 19-101 and 19-102 are “remedial in nature” and, therefore, should be liberally construed.

Yet, Petitioners maintain, under the plain meaning of §§ 19-101 and 19-102, it was improper for the Court of Special Appeals to apply the “totality of the circumstances” test as set forth in Keesling. Petitioners argued too that the “extreme facts” in Keesling, the only heretofor reported opinion construing §§ 19-101 and 19-102, are distinguishable from those of the present case. In addition, Petitioners assert that the trial court’s grant of summary judgment was appropriate because the facts presented in the record established that no police officer gave an active, affirmative, vocal command to Joseph Johnson to participate in a roadblock in the apprehension of Hicks. Thus, Petitioners contend that the Court of Special Appeals incorrectly concluded that the testimony of Ms. Colburn and the police officers created a genuine dispute of material fact regarding whether the police officers “directed” the drivers of the civilian cars to participate in a roadblock or assist in the apprehension of Hicks because the intermediate appellate court overlooked Ms. Colburn’s testimony that she stopped at the intersection as a result of the red traffic light, remained there because of the light, and that no officer signaled to her or commanded her to take, or refrain from taking, any particular action.

Relying primarily on our decision in Keesling, Respondents retort that the Court of Special Appeals properly vacated the ²⁶² summary judgment