Clark v. Prince George's County

EYLER, J. On January 24, 2007, Keith Washington, at the time a member of the Department of Homeland Security of the Prince George’s County Police Department, used his service weapon to shoot Brandon Clark and Robert White, while they were inside his house on a scheduled delivery of bed rails from a furniture store. Clark died at the scene and White sustained permanent physical injuries. In the Circuit Court for Prince George’s County, Marilyn Clark and Chris Furbush, individually and as co-personal representatives of Clark’s estate, and White, the appellants, sued Prince George’s County (“County”), the appellee, and Washington alleging numerous tort claims and seeking damages for Clark’s wrongful death and White’s injuries. The only claims that are relevant to this appeal are the common law tort claims against the County, directly, for negligent hiring, retention, and entrustment; a vicarious liability claim against the County for certain common law torts committed by Washington against Clark and White; and a Maryland constitutional tort claim against the County. 1 The circuit court dismissed the direct common law tort claims against the County on the ground of governmental ⁵⁵⁴ immunity and bifurcated the case for trial.

In a trial against the County for vicarious liability for the common law torts of Washington, who by then was no longer a party, the court granted judgment in favor of the County on the ground that Washington was not acting within the scope of his employment when he shot White and Clark, as a matter of law. Before the trial on the constitutional tort claim against the County, the court granted a motion in limine to exclude certain evidence regarding Washington’s mental health history and alleged prior acts of violence. Ultimately, the court granted summary judgment in favor of the County on that claim as both parties agreed that without the excluded evidence the appellants could not make out a prima facie case. The appellants present four questions for review, which we have reworded: I. Did the circuit court err in dismissing the direct common law tort claims against the County, for negligent hiring, retention, and entrustment, on the ground of governmental immunity?

II

Did the circuit court err in granting judgment in favor of the County on the vicarious liability common law tort claim against it, on the ground that as a matter of law Washington was not acting within the scope of his employment at the time of the shooting?

III

Did the circuit court err in ruling that the doctrine of collateral estoppel did not operate to preclude the County from disputing certain underlying alleged facts?

IV

Did the circuit court err in granting the County’s motion in limine to exclude evidence of Washington’s prior mental history and allegedly violent behavior? For the following reasons, we shall affirm the judgments of the circuit court. FACTS AND PROCEEDINGS On January 24, 2007, Clark and White were working for a trucking subcontractor making deliveries for Mario’s Furniture Store. One of their assignments that day was to deliver replacement bed rails to Washington’s house in Accokeek, ⁵⁵⁵ Prince George’s County.

Washington had purchased a bed for his master bedroom from Mario’s, but the bed rails were defective. Clark and White were supposed to deliver the replacement bed rails between 2:30 p.m. and 5:30 p.m., set them up, and take the defective rails. Washington had taken part of the day off from work so he could be home for the delivery. At the time, Washington worked at the Department of Homeland Security Office of the Prince George’s County Police Department, as the Deputy Chief Administrator.

He was responsible for the day-to-day operations of that department, which coordinated the various public safety agencies in Prince George’s County. He was a sworn police officer, and in the past had functioned in a police role, but did not do so in his position with the Department of Homeland Security. He had been detailed to that department since 2004. White and Clark arrived late to Washington’s house, at 7:30 p.m.

By then, Washington was eating dinner with his wife and six-year-old daughter. He answered the door and accompanied Clark and White, who were carrying the box containing the new bed rails, to the master bedroom on the second floor of the house. Washington’s wife and daughter stayed in the kitchen. A few minutes after the three men entered the master bedroom, Washington shot Clark and White.

Neither Clark nor White had known that Washington was a police officer. On January 24, 2008, the appellants filed a 14-count complaint against the County and Washington. It set forth a constitutional tort claim against the County for deliberate indifference to the rights of Clark and White; several common law tort claims against Washington; common law tort claims for negligent hiring, retention, and entrustment against the County; and a vicarious liability claim against the County for the common law torts of Washington. As noted, the common law tort claims against the County, including the negligent hiring, retention, and entrustment claims, were dismissed on the basis that the County was protected from liability by governmental immunity.

For the ⁵⁵⁶ County, that left the vicarious liability claim and the constitutional tort claim. The court bifurcated the vicarious liability and constitutional tort claims for trial. On March 23, 2009, a jury trial against Washington for certain common law torts and against the County for vicarious liability for Washington’s common law torts commenced. It ended in a hung jury, which prompted the court to declare a mistrial.

Before re-trial, the appellants voluntarily dismissed the claims against Washington, without prejudice. Beginning January 25, 2010, the trial went forward against the County on the sole theory that it was vicariously liable for Washington’s torts. At the close of the appellants’ case-in-chief, the trial court granted judgment in favor of the County on the ground that, on the evidence adduced, Washington was not acting within the scope of his employment as a police officer, as a matter of law, when he shot Clark and White. Also as noted, before the separate trial against the County on the constitutional tort claim, the County filed a motion in limine seeking to exclude evidence of Washington’s mental health history and prior allegedly violent acts.

At a hearing on November 14, 2011, the court granted the motion on the basis of relevancy, ruling that the evidence was too attenuated to be probative of whether the County was on notice that Washington likely would cause physical harm to people delivering furniture inside his house. The appellants agreed that, with that evidence excluded, they could not prove their constitutional tort claim against the County. Accordingly, summary judgment was granted to the County. We shall include additional information as necessary to our discussion of the issues.

DISCUSSION I. Dismissal of The Direct Claims Against The County for Negligent Hiring, Retention, and Entrustment The appellants contend the circuit court erred in dismissing the direct common law tort claims against the County ⁵⁵⁷ for negligent hiring, retention, and entrustment. The essence of those claims was that the Prince George’s County Police Department, a law enforcement agency of the County, breached a duty of care in hiring Washington as a police officer, retaining him as a police officer, and entrusting him with a service revolver; and that the breaches proximately caused Clark’s death and White’s injuries at Washington’s hands. Those tort claims against the County were dismissed for failure to state a claim for which relief may be granted, based on governmental immunity. The County’s primary response to the appellants’ contention is that the circuit court’s ruling was legally correct.

In the alternative, it responds that, even if the ruling was not correct, the tort claims would not have survived summary judgment in any event because the evidence on which they were based was the same evidence that was ruled inadmissible prior to trial on the constitutional tort claim, and would have been ruled inadmissible for the same reasons in this trial. The standard of review of the grant of a motion to dismiss for failure to state a claim for which relief can be granted is de novo. Fioretti v. Maryland State Bd. of Dental Exam’rs, 351 Md. 66, 71-72 , 716 A.2d 258 (1998). “In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action. An appellate court should presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom.” Id. at 72 , 716 A.2d 258 (citations omitted); see also Sehisler v. State, 177 Md.App. 731, 742 , 938 A.2d 57 (2007) (explaining that “[t]he standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct.”).

Maryland law is well settled that a county (or municipality) generally enjoys immunity against common law tort liability arising out of acts that are governmental, as opposed to acts that are private or proprietary. DiPino v. Davis, 354 Md. 18, 47 , 729 A.2d 354 (1999) (“A local government entity is liable for its [common law] torts if the tortious conduct occurs ⁵⁵⁸ while the entity is acting in a private or proprietary capacity, but, unless its immunity is legislatively waived, it is immune from liability for tortious conduct committed while the entity is acting in a governmental capacity.”); see also Ashton v. Brown, 339 Md. 70, 101 , 660 A.2d 447 (1995) (citing Clea v. City of Baltimore, 312 Md. 662, 667 , 541 A.2d 1303 (1988), superseded by statute, Md.Code (1984, 2004 Repl.Vol.), § 12-101(a) of the State Government Article, as recognized in D'Aoust v. Diamond, 424 Md. 549, 586 , 36 A.3d 941 (2012)). In Williams v. Prince George’s County, 112 Md.App. 526, 553 , 685 A.2d 884 (1996), a case arising out of the actions of police officers, common law tort claims were brought against Prince George’s County. This Court explained that “[c]ounties are shielded from tort liability for governmental actions unless the General Assembly has specifically waived the immunity of the municipality.” Id. at 553 , 685 A.2d 884 (footnote omitted and citing Md.-National Capital Park and Planning Comm. v. Kranz, 308 Md. 618, 622 , 521 A.2d 729 (1987)).

We concluded that there had been no waiver of such immunity for Prince George’s County, and that the Local Government Tort Claims Act of the Courts and Judicial Proceedings Article (“CJP”), does not specifically waive immunity for common law tort claims against a County or municipality in its own capacity, for governmental actions. Id. at 554, 685 A.2d 884 . 2 The operation by a county of its police department is quintessentially governmental. See Wynkoop v. Hagerstown, 159 Md. 194, 201 , 150 A. 447 (1930) (“The protection of the citizen against pestilence, disease, violence, or disorder, is essentially a governmental function to be exercised by the state under its police power.”). Accordingly, the circuit court correctly ruled that the County could not be sued in its own ⁵⁵⁹ capacity for common law tort liability, including for the torts of negligent hiring, retention, or entrustment regarding Washington.

The alleged acts or omissions of the County in that regard were governmental, and therefore the county was shielded from tort liability for them by governmental immunity. The appellants argue that Jones v. State, 425 Md. 1 , 38 A.3d 333 (2012), changed the law of immunities regarding common law tort claims for negligent hiring, retention, and supervision. They are incorrect. Jones did not involve allegations of common law tort liability against a local government.

It involved allegations of common law tort liability against the State of Maryland. In Jones , two deputy sheriffs employed by the State knocked on Jones’s apartment door, waking her from sleep. She put on a robe and opened the door slightly. The deputies, who were not dressed in recognizable sheriffs uniforms, identified themselves, and one of them put his foot in the door, to keep it open.

The deputies said they were there to serve an arrest warrant on a particular man. Jones responded that the man did not live in her apartment and was not there. The deputies did not have the arrest warrant with them. One of them barged into Jones’s apartment through the door and the other broke a large glass picture window of the apartment.

Thinking the men were imposters, Jones fought them. They beat her, pulled out part of her hair, and doused her with pepper spray. She tried to get away from them to get help from her neighbors, but because the pepper spray had temporarily blinded her, she could not get far. The deputies arrested her for assaulting police officers and resisting arrest.

They retrieved some clothes from her apartment and then forced her to get dressed in the apartment complex parking lot, in full view of the public during daylight hours. Jones sued the State and the deputies. She alleged negligent training against the State, claiming that it had failed to train the deputies in the legally proper, ie., constitutional, way to serve or attempt to serve an arrest warrant. She further ⁵⁶⁰ alleged that the State negligently supervised the deputies in a way to ensure that they did not commit constitutional violations in serving or attempting to serve arrest warrants.

There was no issue of immunity in that case. That is because the State, although cloaked with sovereign immunity, has waived its immunity in tort under the terms of the Maryland Tort Claims Act (“MTCA”), Md.Code (1984, 2009 Repl.Vol.), sections 12-101 et seq. of the State Government Article (“SG”). The MTCA explains that “[w]here ‘state personnel’ are negligent, ‘the statute generally waives sovereign or governmental immunity and substitutes the liability of the State for the liability of the state employee committing the tort.’ ” Menefee v. State, 417 Md. 740, 752 , 12 A.3d 153 (2011) (quoting Lee v. Cline, 384 Md. 245, 262 , 863 A.2d 297 (2004)). Under SG section 12-101(a)(6), “[a] sheriff or deputy sheriff of a county or Baltimore City” is a “State personnel.” Therefore, the issue of governmental immunity was not raised in Jones .

Rather, the issue in Jones was whether the State owed any duty to Jones and, if so, whether the evidence at trial was legally sufficient to prove a breach of that duty. In particular, the Court addressed the “public duty doctrine,” which “provides that, ‘when a statute or common law “imposes upon a public entity a duty to the public at large, and not a duty to a particular class of individuals, the duty is not one enforceable in tort.” ’ ” 425 Md. at 20 , 38 A.3d 333 (quoting Muthukumarana v. Montgomery Cnty., 370 Md. 447, 486 , 805 A.2d 372 (2002), in turn quoting Dan B. Dobbs, The Law of Torts § 271 (2000)). The Court held that, although the public duty doctrine often had been applied in common law tort cases founded upon the actions or inactions of police officers, it was not applicable in that case: [T]he public duty doctrine does not apply if law enforcement is not engaged in protecting the public from an injurious force caused by a member of the public, but rather is itself the alleged injurious force. [Jones’s] claim ... alleges harm from the State’s negligent training of [the deputies] in what were alleged to be unconstitutional arrest procedures. ⁵⁶¹ The public duty doctrine does not foreclose liability on that claim. Id. at 25-26, 38 A.3d 333 .

The Court also held that expert testimony was not needed to prove the constitutionally correct way to serve an arrest warrant, as the trial court was presumed to know the law and indeed had properly instructed the jury on the law. The holding in Jones is not relevant to the issue of immunity of a local government against common law tort claims brought against it directly, in its own capacity, for governmental acts or omissions, including allegations of negligent hiring, training, or entrustment.

II

Grant of Motion for Judgment in Favor of the County for Vicarious Liability for the Torts of Washington: Scope of Employment In the trial against the County on the vicarious liability claim against it for the common law torts committed by Washington, the court granted judgment in favor of the County at the conclusion of the appellants’ case-in-chief, ruling that the evidence adduced could not support a reasonable finding that Washington was acting within the scope of his employment when he shot Clark and White. We “review the trial court’s grant of [a] motion for judgment de novo, considering the evidence and reasonable inferences drawn from the evidence in the light most favorable to the non-moving party.” Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 393 , 31 A.3d 583 (2011) (citing Rule 2-519; C&M Builders, LLC v. Strub, 420 Md. 268, 290 , 22 A.3d 867 (2011); Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503 , 16 A.3d 159 (2011)). The parties acknowledge that the County only could be found vicariously liable for the common law torts of Washington if his actions were taken within the scope of his employment. The appellants contend the evidence at trial generated ⁵⁶² a dispute of material fact as to whether Washington was acting within the scope of his employment when he shot Clark and White, and therefore scope of employment was a jury question.

They argue that police officers are trained to react when confronting a threat, and the location of the threat is irrelevant. They maintain that reasonable jurors could have found that Washington was acting within the scope of his employment because he was engaged in the kind of conduct he was employed to perform—protection—right after work, in a place not unreasonably distant from his authorized area of employment, and that his conduct was actuated at least in part to serve the County. The County responds that the trial court’s ruling was legally correct. The evidence adduced by the appellants showed that Washington had taken off from work on the day of the shooting and his motive in shooting Clark and White was not driven by service to the County, whether he was protecting his home or himself.

The County was not served by and did not derive any benefit from Washington’s actions in shooting Clark and White, even if he did so in the course of a physical fight instigated by the two men. To determine whether the court’s ruling was correct, we must view the evidence adduced on the issue of scope of employment in the light most favorable to the appellants. The evidence was as follows. The appellants called Washington as a witness in their case.

They did not ask him for his version of the shooting (which was not supportive of their theory of the case) but, focusing on the issue of scope of employment, asked him only about his actions after the shooting. For the sake of clarity, we shall recite Washington’s testimony on cross-examination first (when he was questioned about the shooting by counsel for the County) and then his testimony on direct and rebuttal (when he was questioned about the aftermath of the shooting by counsel for the appellants). On cross-examination, Washington stated that when Clark arrived at his front door he told Clark to leave the new bed ⁵⁶³ rails in the foyer of the house. Clark left the house and went to the truck to get the bed rails, taking about five or ten minutes to do so.

When he returned, White was following him. Washington again told Clark to leave the bed rails in the foyer, but Clark said he would take them upstairs. Washington then led the two men upstairs to the master bedroom. Clark placed the box containing the new bed rails on the floor in that bedroom.

Washington was in that room with Clark, but White was not. Washington heard a “rustling” sound coming from his daughter’s bedroom. [WASHINGTON]: I asked Mr. Clark, where is your man? Where is the guy with you? [APPELLEE’S ATTORNEY]: What did Mr. Clark say in response? [WASHINGTON]: He said don’t worry about it, Shorty, I got him. When he tells me that he backhands me in the chest.

He said don’t worry about it, Shorty, I got him. I could still hear the noise rustling in my daughter’s bedroom. [APPELLEE’S ATTORNEY]: What did you take it to mean don’t worry about it Shorty, I got it? [WASHINGTON]: I took it to mean that, you know, don’t worry about it. I’m like, look, I’m saying to myself I have two young men in my house and he is telling me in my house don’t worry about where the other guy is. That’s what I took it. [COUNTY’S ATTORNEY]: Did there come a time that you found out where Mr. White was? [WASHINGTON]: Yeah, as soon as I said that to him a second time, where’s your man, Mr. White sticks his head out of my daughter’s bedroom like this and I see his head sticking out.

When I see his head sticking out I said, hey, what are you doing in there? Come out of there. [COUNTY’S ATTORNEY]: What did you do after you said that? ⁵⁶⁴ [WASHINGTON]: He just-he did one of them numbers and sticks his head out. I said, yeah, come out of there. [COUNTY’S ATTORNEY]: Let me clarify. What did you do next? [WASHINGTON]: I said, look, man, don’t worry about the rails, you’ll just leave. [COUNTY’S ATTORNEY]: Where were you? [WASHINGTON]: I was still in the master bedroom with Mr. Clark. [COUNTY’S ATTORNEY]: Did there come a time when you came out of the master bedroom? [WASHINGTON]: Yes. [COUNTY’S ATTORNEY]: How soon after you first told him to leave did that happen? [WASHINGTON]: I think I told him to leave at least three or four times, if not more. [COUNTY’S ATTORNEY]: My question is how soon after the first time you told him to come out of the master bedroom? [WASHINGTON]: No more than four or five seconds, six seconds. [COUNTY’S ATTORNEY]: Once you are out of the master bedroom, what happens next? [WASHINGTON]: That guy White, he is standing in my daughter’s bedroom.

He is still right there by the steps in the bedroom. He steps out full body sideways and looks at me. I’m pointing at the steps, I’m saying, look, you get out of my house and just leave, pointing at the steps. I have to walk toward Mr. White because he is in the bedroom by the steps. [COUNTY’S ATTORNEY]: How was your tone at this point when you are saying get out of my house? [WASHINGTON]: I said it three or four times.

Each time I got a little louder. I said, look, just get out of my house. The first time I guess—they didn’t move. He was just looking, the guy there, he is just looking.

He didn’t say ⁵⁶⁵ a word. He is just looking. The other guy is behind me. I’m telling him to get out of my house. [WASHINGTON]: He didn’t move.

Mr. White didn’t move. Mr. Clark is walking behind me and he says you need to watch out how you talk to people. [WASHINGTON]: Mr. White sucker-punches me in the side of the head. After the guy told me I need to watch how I talk to people, in my own house, he sucker-punches me in the side of the head, and Mr. Clark is standing behind me hits me in the back of the head. Washington went on to testify that a physical fight broke out and he had to duck down to cover his head while Clark and White both tried to beat him.

When asked what he was thinking at that time, Washington responded, “I thought that to myself, you know what, I’m with two big guys and these guys could kill me in my own house.” Washington was asked whether and why he had his police issued handgun on his person. He confirmed that he was wearing his handgun, explaining that he was “going out,” and that “[w]henever you go out you are supposed to be armed.” He also testified that “for 17 and a half years [the entire period he had been a police officer] you become accustomed to however you carry your weapon.” He said he was unaware whether Clark or White had a weapon. He also said he was not wearing a police uniform, did not have a police car at his house, and never told Clark or White that he was a police officer. Washington described the shooting as follows: I crouched down, I put my hand over my face.

Mr. Clark was here to my left. Mr. White was here to my right immediately on top of me. Mr. Clark starts kicking me because he is punching down, he is a pretty tall guy. He is punching down.

I’m a short ⁵⁶⁶ guy and I’m ducking down. He is punching me. Then he starts kicking me.... I was covering up.

The guys was [sic] like there, I shot just like that, boom, boom, boom, boom, boom. I jumped up and got out from in between both of them. They fell right where they were. When asked why he fired his gun, Washington testified: “I did that to save my life, to protect myself from being beat up in my own home, or possibly severely injured or killed, and two strange men in my home with my wife and daughter.

I did what any homeowner would do.” Prior to the foregoing, Washington testified on direct examination that after the shooting he called 911 and identified himself as a police officer, telling the operator that there had been a “departmental shooting.” He gave his police identification number to the operator and then put on his badge, which until then he had not been wearing. He testified that, in accordance with police procedure, a signal was sent out that an officer needed assistance and that an officer had discharged his weapon. The responding officers confiscated his police issued handgun as part of the procedure for responding to a departmental shooting. According to Washington, he was required to file a “Use of Force Report,” which is a report that an officer must fill out “[a]ny time [he] discharge[s][his] firearm.” Washington explained he did not give any other statement to the police because he filled out a Use of Force Report. 3 Washington further testified on direct examination that when he shot Clark and White he was acting in accordance with “General Orders” under which police officers may use force in self-defense or defense of others.

Although portions of the “General Orders” were referred to and read from during the testimony of Vernon Herron, the Deputy Chief Administrative Officer for Public Safety and the Director of ⁵⁶⁷ Homeland Security, neither the General Orders nor portions of them were offered into evidence. Herron testified after Washington. Counsel for the appellants asked Herron about the General Orders, and the following colloquy ensued: [APPELLANTS’ ATTORNEY]: Let me show you what has been marked as Plaintiffs Exhibit No— [DEPUTY CLERK]: Plaintiffs’ Exhibit No. 18 is marked for identification. [APPELLANTS’ ATTORNEY]: I will give you a moment to look through Plaintiffs Exhibit No. 18 and then ask you a few questions on that (Handed.) [HERRON]: Okay. [APPELLANTS’ ATTORNEY]: I will stand over here, sir, to look over your shoulder a little bit and to work with counsel while I question you, okay? [HERRON]: Okay. [APPELLANTS’ ATTORNEY]: If you would continue to explain to the jury. Am I correct, sir, that the General Orders is a rather voluminous document? [HERRON]: That’s correct. [APPELLANT’S ATTORNEY]: And the use of lethal force, correct? [HERRON]: That’s correct. [APPELLANTS’ ATTORNEY]: And what I have just handed you as Exhibit Number 18 is a portion of those General Orders? [HERRON]: That is correct. [APPELLANTS’ ATTORNEY]: That is not a complete set of the General Orders; is that correct? [HERRON]: No, sir, it’s not. [APPELLANTS’ ATTORNEY]: What I have handed you involves things such as the use of force continuum, correct? [HERRON]: That’s correct. ⁵⁶⁸ [APPELLANTS’ ATTORNEY]: Sir, let me direct your attention to section three, the use of force continuum.

Do you see that, sir? [HERRON]: Ido. [APPELLANTS’ ATTORNEY]: Is that the section of the General Orders that sets forth the force to be used by officers in certain circumstances? [HERRON]: It does. [APPELLANTS’ ATTORNEY]: If you can explain to us upon reviewing that what guidelines the use of force continuum provides to officers under the General Orders? [HERRON]: The use of force continuum talks about the cooperative or compliant. It talks about whether or not the subject is compliant with verbal commands. It talks about the passive or nonresponsive, whether or not the subject is uncooperative when taken in custody and fails to respond to verbal commands or directions. Active resistance is physically evasive movements to get defeat the officer’s attempt to control, to include bracing, tensing, pushing, or verbally signaling an intention not to be taken or retained in custody.

It talks about aggression: physical assault or active threat of assault, upon the officer or another. It talks about life threatening assault: An attack or a threat to attack wherein an officer reasonably believes that the assault will result in serious physical injury or death. [APPELLANTS’ ATTORNEY]: Sir, am I correct that the General Orders are the rules that Prince George’s Police are to follow when performing their police duties, correct? [HERRON]: That’s correct. [APPELLANTS’ ATTORNEY]: Am I correct that lethal force is permitted under the General Orders when the officer is acting in defense of himself or others? [COUNTY’S ATTORNEY]: Objection. The Court: Overruled. ⁵⁶⁹ [HERRON]: That’s correct. [APPELLANTS’ ATTORNEY]: Sir, the General Orders also talk about other things, such as how an officer is to dress at certain times, correct? [HERRON]: It does. It all depends on what assignment that officer has for that particular assignment. [APPELLANTS’ ATTORNEY]: I guess my general point is the General Orders cover almost every aspect of an officer’s expected or allowable duties as a police officer? [HERRON]: Yes, sir, it does. [APPELLANTS’ATTORNEY]: One moment.

That’s all I have at this time. Thank you, sir. Other than [sic] I would move in Exhibit 18 subject to discussions with counsel. [COUNTY’S ATTORNEY]: That is correct, subject to discussions. THE COURT: Okay.

Why don’t we just reserve on that then. The issue of admitting Exhibit No. 18 was never revisited, and, as noted, neither the General Orders nor any portion of them were admitted into evidence. Ironically, Washington was the only source of testimony that possibly could support the appellants’ assertion that he had been acting within the scope of his employment at the time of the shooting. White’s testimony about how the shooting took place differed dramatically from Washington’s. 4 As ⁵⁷⁰ the trial judge pointed out in making his ruling, for the jurors to credit the evidence that the appellants argued showed that Washington was acting within the scope of his employment at the time of the shooting, they would have to disbelieve the central theory of the appellants’ case, which was that Washington had attacked Clark and White and had done so in self-defense.

In any event, the trial court ruled on the issue of scope of employment by assuming, for the sake of argument, that the jury would credit Washington’s testimony that he shot Clark and White to protect himself, after they attacked him with their fists. If there is a material factual dispute as to whether an employee’s actions were taken within the scope of employment, the question is one of fact. If there is not, the question is one of law. Rusnack v. Giant Food, Inc., 26 Md.App. 250, 265 , 337 A.2d 445 (1975).

Even when the parties’ versions of ⁵⁷¹ events are in conflict, however, if the facts adduced to show that the defendant was acting within the scope of his employment are not legally sufficient to support such a reasonable finding by the trier of fact, any dispute of fact is not material, as it will not affect the outcome of the case. Id. (citing Globe Indemnity Co. v. Victill Corp., 208 Md. 573, 585 , 119 A.2d 423 (1956)) (“Where there is no conflict in the evidence relating to the question [of whether an employee is acting within the scope of employment] and but one inference can be drawn therefrom, the question is one of law for the court.”); Rusnaek, at 266, 337 A.2d 445 (explaining that when a store was sued on the basis of respondeat superior for injuries resulting from a fight, although there were conflicting accounts as to the underlying events leading to the fight, “no matter which version of the circumstances leading to the fight is accepted as true, the evidence was not sufficient in law to permit a jury to find that [the employee’s] presence in the store and his acts with respect to [the injured party] were in any way actuated by a purpose to serve his master.”). There are many considerations relevant to whether an employee’s actions were within the scope of employment. “The general test set forth in numerous Maryland cases for determining if an employee’s tortious acts were within the scope of his employment is whether they were in furtherance of the employer’s business and were ‘authorized’ by the employer,” Sawyer v. Humphries 322 Md. 247, 255 , 587 A.2d 467 (1991).

The simple test is whether they were acts within the scope of [the employee’s] employment; not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By “authorized” is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders. ⁵⁷² Id. (quoting Hopkins C. Co. v. Read, Drug & C. Co., 124 Md. 210, 214 , 92 A. 478 (1914), in turn quoting Wood on Master and Servant § 279 (1877)). “[T]here are few, if any absolutes. Nevertheless, various considerations may be pertinent.” Id.

Four such considerations are that the conduct must be of the kind the servant is employed to perform and must occur during a period not unreasonably disconnected from the authorized period of employment in a locality not unreasonably distant from the authorized area, and actuated at least in part by a purpose to serve the master. Id. (quoting E. Coast Lines v. M & C.C. of Balto., 190 Md. 256, 285 , 58 A.2d 290 (1948), in turn quoting Mechem on Agency, Section 36; Huffcut on Agency, Section 5; American Law Institute, Restatement of Agency, Section 228, comment (b)). In addition, the following considerations should be taken into account: [C]ertain conduct of the servant may be within the scope of his employment, although not intended or consciously authorized by the master, but “(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.

(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:—(a) whether or not the act is one commonly done by such servants; (b) the time, place and purpose of the act; (c) the previous relations between the master and the servant; (d) the extent to which the business of the master is apportioned between different servants; (e) whether the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant; (f) whether or not the master has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant; (i) the extent of ⁵⁷³ departure from the normal method of accomplishing an authorized result, and (j) whether or not the act is seriously criminal.” Sawyer at 256, 587 A.2d 467 (quoting Great A. & P. Tea Co. v. Noppenberger, 171 Md. 378, 390-391 , 189 A. 434 (1937), in turn quoting Restatement of Agency § 229 (1933)) (citations omitted). The Sawyer Court emphasized the importance of foreseeability to the issue of scope of employment. Id. at 256, 587 A.2d 467 (citing Cox v. Prince George’s County, 296 Md. 162, 171 , 460 A.2d 1038 (1983)). When an employee’s “actions are personal, or where they represent a departure from the purpose of furthering the employer’s business, or where the employee is acting to protect his own interests, even if during normal duty hours and at an authorized locality, the employee’s actions are outside the scope of his employment.” Id. at 256-57 , 587 A.2d 467 (citing LePore v. Gulf Oil Corp., 237 Md. 591, 596-598 , 207 A.2d 451 (1965); Carroll v. Hillendale Golf Club, 156 Md. 542, 545-546 , 144 A. 693 (1929); Steinman v. Laundry Co., 109 Md. 62, 67 , 71 A. 517 (1908); Central Railway Co. v. Peacock, 69 Md. 257, 265 , 14 A. 709 (1888)).

The Sawyer case concerned whether, during an encounter with two men, a State Trooper was acting within the scope of his employment within the meaning of the Maryland Tort Claims Act. Humphries, an off-duty State Trooper, was dressed in plainclothes and driving his personal vehicle on a state road in front of a car Sawyer was driving with a passenger, Hundley. Sawyer and Hundley had no way of knowing that the driver of the car in front of them was a State Trooper. Humphries made some hand motions toward Sawyer and Hundley and then pulled his car over to the side of the road, letting them pass him.

Sawyer drove his car down a side road so he and Hundley could look at a potential construction site that might be a job opportunity. When they got back in their car and drove toward the main road, they saw Humphries’s car at the end of the side road, blocking their way, and Humphries standing ⁵⁷⁴ outside by the side of his car, motioning for them to approach. As Sawyer slowly drove to the end of the side road, Humphries picked up a rock and threw is at the side of Sawyer’s car, denting it. Sawyer stopped the car and got out to talk to Humphries about the damage.

Humphries picked up more rocks and threw them at Sawyer’s car. Sawyer picked up a beer bottle from the side of the road, to defend himself. Humphries attacked Sawyer, beating him and threatening to kill him. Hundley exited the car to help Sawyer, but retreated when Humphries threatened him.

Sawyer managed to get away, from Humphries, and he and Hundley drove off, with Hundley at the wheel because Sawyer was too badly injured to drive.