Cooper v. Rodriguez

WATTS, J. Gross negligence has been defined as, among things, “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them.” Barbre v. Pope, 402 Md. 157, 187 , 935 A.2d 699, 717 (2007) (citations omitted). This case concerns the brutal murder of an inmate by another inmate during a ride on a prison transport bus that was staffed by five correctional officers. At core, the issue is whether the correctional officer who was in charge of the bus was grossly negligent and, if so, whether he is entitled to common law public official immunity. We hold that: (I) the trial court erred in striking the jury’s finding of gross negligence by the correctional officer and in concluding that the correctional officer was entitled to immunity under the Maryland Tort Claims Act (“the MTCA”), Md. Code Ann., State Gov’t (1984, 2014 Repl.

Vol.) (“SG”) § 12-101 to 12-110; and (II) the correctional officer was not entitled to common law public official immunity, not because the correctional officer owed a duty arising out of a special relationship with the inmates in his custody, but instead because entitlement to common law public official immunity is limited by gross negligence; ie., gross negligence is an exception to common law public official immunity. Thus, here, having acted with gross negligence, the correctional officer is not ⁶⁸⁷ entitled to immunity under the MTCA or common law public official immunity. BACKGROUND In the early morning hours of February 2, 2005, inmate Kevin G. Johns, Jr. (“Johns”) murdered fellow inmate Philip E. Parker, Jr. (“Parker”), in plain sight of other inmates and correctional officers, while the two were traveling together on a prison transport bus with thirty-four other inmates and five correctional officers. The Lawsuit On May 15, 2006, in the Circuit Court for Baltimore City (“the circuit court”), Melissa Rodriguez and Philip E. Parker, Sr., Parker’s parents (together, “Respondents”) sued: the State of Maryland; the Secretary of the Maryland Department of Public Safety and Correctional Services (“DPSCS”); the Commissioner of the Division of Correction; the Warden of the Maryland Correctional Adjustment Center (“Super-max”); 1 and the five individual correctional officers who staffed the prison transport bus on February 2, 2005 — Larry Cooper (“Cooper”), Petitioner, Robert Scott (“Scott”), Kenyatta Surgeon (“Surgeon”), Earl Generette (“Generette”), and Charles Gaither (“Gaither”).

The complaint contained six counts: (1) a claim under 42 U.S.C. § 1983 for violating Parker’s rights under the Eighth and Fourteenth Amendments to the United States Constitution; (2) a claim for violating Parker’s rights under Articles 24 and 26 of the Maryland Declaration of Rights; (3) wrongful death; (4) survival action; (5) assault and battery against the five indi ⁶⁸⁸ vidual correctional officers concerning their actions after the prison transport bus arrived back at Supermax; and (6) funeral expenses. 2 On October 11-14, 17-21, and 24, 2011, the circuit court conducted a jury trial. At trial, evidence of the following facts was adduced. Initial Transport and Johns’s Sentencing Before murdering Parker, Johns had been convicted of murdering his uncle; 3 sentenced to life imprisonment, with all but thirty-five years suspended; and sent to the Maryland Correctional Institution in Hagerstown, Maryland (“Hagerstown Correctional Institution”). Later, while incarcerated at Hagerstown Correctional Institution, Johns murdered a cellmate, 4 and was transferred from Hagerstown Correctional Institution to Supermax.

On February 1, 2005, four inmates who were incarcerated at Supermax — including Parker, Johns, Bradford Diggs (“Diggs”), and James Folk (“Folk”) — were transported by bus to the Circuit Court for Washington County to participate in the hearing on Johns’s sentencing. Parker, Diggs, and Folk testified on Johns’s behalf. At the sentencing hearing, Parker testified that Johns was “paranoid!,]” had “a really, really short temper,” and became “very easily irritated and agitated!.]” The Circuit Court for Washington County sentenced Johns to life imprisonment, without the possibility of parole. ⁶⁸⁹ Two guards from Hagerstown Correctional Institution, Bradley Hott (“Hott”) and Hunter Vest (“Vest”), submitted reports in connection with an internal investigation conducted after Parker was murdered, detailing Johns’s conduct before, during, and after the sentencing hearing. Hott and Vest had transported the four Supermax inmates between Hagerstown Correctional Institution and the Circuit Court for Washington County for Johns’s sentencing hearing.

According to Hott, after being sentenced, Johns “began to laugh[,]” and later commented that “the killing had just begun.” According to Vest, upon being sentenced, Johns said: “ ‘Gonna be trouble when I get back to Baltimore. They think it[’]s bad now, the killing has just begun. I’ll be back in court for these charges the rest of my life. They will have to put me to death to end this.’ ” Prior to Parker’s murder, neither Hott nor Vest reported Johns’s comments to their supervisor because both believed that such comments were not “uncommon for an inmate in [Johns’s] situation.” Nor were Johns’s comments reported to the transportation team from Baltimore when it arrived to transport the Supermax inmates back to Baltimore.

The Bus and Transport back to Supermax After Johns’s sentencing, Johns, Parker, Folk, and Diggs were transported to the Hagerstown Correctional Institution to await transport to Supermax on the Maryland Reception, Diagnostic and Classification Center (“MRDCC”)’s Central Transportation Unit Bus # 2809 (“the bus”). The bus was a “relatively new” Bluebird bus, modified to be a “mobile prison” for the transport of prisoners. The bus consisted of three locked compartments that were separated by steel grillwork and Plexiglas. Three secured passenger sections were in the middle of the bus.

In the front and rear of the bus, there were two securable officer compartments. At the front of the bus, there were three seats — one for the driver, an adjacent front passenger seat, and one seat behind the driver’s seat. Behind those three seats were two protective custody cages, one directly behind the driver and one directly across the aisle from the driver’s side cage behind the front passenger seat. ⁶⁹⁰ At the rear of the bus, directly behind the last secured passenger section, there was an elevated cage containing two seats for officers, to permit a good view of the interior of the bus. The elevated cage was separated from the passenger section by Plexiglas and wire mesh caging, which was porous to permit sight and sound.

The two officer compartments were separated from the passenger compartment by padlocked doors; the locks on the compartments were designed so that officers in the rear elevated cage could enter the passenger compartment during an emergency. The bus was staffed by five correctional officers. Cooper was the Officer in Charge. Gaither was the driver.

Surgeon and Generette sat in the front of the bus. Scott and Cooper sat in the rear elevated cage, approximately seven and one-quarter feet from Parker, who was sitting next to the window in the second-to-last bench in front of the elevated cage. As the Officer in Charge, Cooper was required to sit at the front of the bus and was disallowed from being the bus driver; Cooper later stated that he “never knew” that, as the Officer in Charge, he was required to ride in the front of the bus. Under a Division of Correction policy concerning “Post Orders: Escort and Transportation Procedures” — applicable to MRDCC, the post to which the five correctional officers were assigned — the correctional officers were to be “alert and observant at all times” and to “display initiative [and] good judgment^]” And, under a Division of Correction policy concerning “Escort and Transportation of DOC Inmates,” applicable to MRDCC, the correctional officers were to report any unusual occurrences to the Officer in Charge.

On the morning of February 2, 2005, Johns, Parker, and thirty-four other inmates, boarded the bus. Although DPSCS policy required that there be “[a]t least two armed escort officers [ ] assigned to transport each” Supermax inmate, and although there were four Supermax inmates on the bus, only five correctional officers staffed the bus. Before boarding the bus, the inmates were strip searched and secured in three-point restraints, which consisted of handcuffs, leg irons, and a waist restraint chain, secured by a metal box and a padlock; ⁶⁹¹ the waist chain was to be wrapped snugly around an inmate’s torso and secured by the metal box and padlock, resulting in the inmate’s hands and forearms being unable to be moved from the inmate’s upper abdomen and lower chest. One of Surgeon’s responsibilities was to apply the three-point restraints on Johns.

It was later discovered that Surgeon improperly placed the three-point restraint device on Johns, such that it was loose; Johns’s waist chain was loose and hanging down, permitting Johns to move his hands and forearms away from his upper abdomen and lower chest. As the Officer in Charge, Cooper was responsible for ensuring the three-point restraints were properly secured; 5 Cooper, however, was not aware that he was supposed to check the restraints, and he failed to do so. Once on the bus, the four Supermax inmates seated themselves on two benches at the rear of the bus, directly in front of the elevated officers’ cage. Johns and Folk sat on the last bench directly in front of the elevated officers’ cage, and Parker and Diggs sat directly in front of Johns and Folk.

Both Johns and Parker were in window seats; thus, Johns sat directly behind Parker. This seating arrangement violated DPSCS policy, under which Supermax inmates were to ride in the protective custody cages located at the front of the bus, or, absent space in a protective custody cage, Supermax inmates were to be placed in the front of the bus. The two protective custody cages at the front of the bus were otherwise occupied^ — one by an immigration detainee who was required to ride separately from the State prisoners, and the other by an inmate who had requested to be segregated from the four Supermax inmates because he was afraid of them. In a deposition excerpt read to the jury, when asked about the seating arrangements on the bus, Cooper testified that he “did the best [he] could with what [he] had.” ⁶⁹² Parker’s Murder At approximately 2:48 a.m., the bus departed for Supermax.

At some point during the trip, Johns got up from his seat, reached over the seat in front of him, hooked his arm around Parker’s head from behind, pulled Parker’s head over the back of the seat, and began choking Parker with his arm. Eventually, Johns released Parker, thinking that Parker was dead. At some point, Diggs, who was sitting next to Parker, got up from his seat and moved to a vacant seat across the aisle, leaving the space next to Parker empty. Although it was a violation of policy for inmates to get up and move around the bus, none of five correctional officers took any action.

After the initial choking, Parker started to move and snore or breathe heavily. Johns got up, moved into the seat next to Parker (which had been vacated by Diggs), and began choking Parker again. During the attack, Johns pulled down on Parker’s head while Parker tried to push up, and Johns held Parker’s head while turning his body toward the aisle of the bus, “trying to snap [Parker’s] neck off.” Johns said, among other things, “this is what I do best.” Johns cut Parker’s neck with a razor blade that had been smuggled onto the bus, and Parker yelled loudly. After the second round of choking, Johns stuffed Parker’s limp body between the two seats.

There was blood on top of the back of the seat and Johns was covered in a large amount of blood. This brutal two-part attack occurred approximately seven and one-quarter feet from where Cooper was seated in the rear elevated cage, yet Cooper — who was required to be “alert and observant at all times” — claimed not to have witnessed the occurrence. Accounts of Parker’s Murder Patrick Cook (“Cook”), an inmate who was sitting in the last seat on the left-hand side of the bus directly in front of Scott and Cooper, testified at a motions hearing in the criminal case against Johns for Parker’s murder that he could see the attack. Excerpts of the transcript of Cook’s testimony, admitted into evidence at trial, provided the following description of the murder: ⁶⁹³ [PROSECUTOR:] How could you see what happened if it was dark? [COOK:] Because I could see by the, you know, it wasn’t really cloudy out or anything.

It was just, you know, if I remember correctly, the skies were fairly clear and it was starry. And at certain overpasses there’s, you know, lights that shine in the bus windows. [PROSECUTOR:] Okay. Can you explain to me what you observed [Johns] do and where those acts occurred? [COOK:] As we were coming down Route 70, right as we got past where Route 40 splits off of Route 70 coming in Marriottsville — where Marriottsville Road is, [Johns] and [Parker] were — they were talking all the way down the road. When we got to where Marriottsville Road is, there’s a bridge right between where Route 40 splits off and Marriottsville Road is and there’s a slight bend there. [Johns] stood up and used his arm to hook [Parker] and pull his head back over the seat in front of him and kept pressure on him the whole time, and choking him out.

He held him until we got roughly to where Route 29 is, when [Parker] stopped moving around. Once we crossed over the bridge at the Patapsco River, [Johns] got up out of the seat that was in front of me and moved up into the same with [Parker] and grabbed ahold of him again, because [Parker] started to move. And, again, clutched him with his arm and choked him out. By the time we reached the Baltimore Beltway, [Parker] wasn’t moving anymore, and when we got down to the park and ride, [Parker] wasn’t moving at all.

I saw that when [Johns] got up out of the seat to move up into the seat with [Parker], the man that was sitting in the seat with [Parker] got up and slid back to the seat that’s directly across from me, because there was only one inmate in that seat. ⁶⁹⁴ As [Johns] was getting up, the boy that was sitting in the seat with [Johns] handed him razor blades. He spit them out of his mouth and handed them to [Johns]. And then, as I said, as [Johns] got up and got in the seat with the victim, he was choking him out, he used the razor blades to cut his neck. And the whole time all of this was going on, he was saying, this is what I do best.

This makes my d[* * *] hard. By the time we come around out of the park and ride on to the exit to go on to Cooks Lane, the [Division of Correction] officers flipped the lights on in the bus to see what was going on. At that time [Johns] had [Parker] pushed down in between the seats where he couldn’t be seen and he — the boy that was sitting directly in front of me slid to the middle of the seat to block the view of the [ ] officers in the back of the bus. In an interview with law enforcement officers one week after the murder, Johns confessed to the murder; his confession corroborated Cook’s account of the murder and excerpts of the interview were admitted into evidence.

According to Johns, he choked Parker with his arm, but let Parker go because he thought Parker was dead. Johns acknowledged that when he started choking Parker, Parker tried to yell for help, but “[i]t was pointless.” Johns heard Parker snoring or breathing heavily, and he “went around[,]” and cut Parker’s neck with a razor. At that point, Parker “yelled real loud[.]” Johns held Parker’s head in his arm and was holding Parker while turning his body toward the aisle, “trying to snap [Parker’s] neck off.” According to Johns, during the attack, Parker tried to wiggle around and “push up” while he was “pulling down[.]” Johns stated that he knew Parker “was trying to push his head up, which was stupid now that [he] th[ought] about it.” In an expert witness report, Dr. John E. Adams described the method in which Johns accomplished Parker’s murder: ⁶⁹⁵ The strangulation was accomplished with a ‘choke hold,’ by placing the left arm around [ ] Parker’s neck from behind and compressing the larynx and/or trachea. The pressure could be increased by pulling the left arm to the rear with the right hand grasping the left wrist....

If the choke hold is released prematurely, allowing the victim to resume breathing, he may regain partial consciousness before the heart succumbs to a lack of oxygen and cardiac arrhythmia or arrest occurs. Apparently, this happened, because it was reported that when [ ] Parker was released, he began to make snoring noises, the result of breathing through a damaged airway. This prompted [Johns] to change his position and reapply pressure on the neck in an unknown manner. The Correctional Officers’ Accounts In contrast to Cook’s testimony, all five correctional officers — including Cooper, who was approximately seven feet from where the attack occurred — alleged that they did not see Johns’s attack on Parker.

Scott, who was sitting in the rear elevated cage next to Cooper, testified as follows. Scott saw Johns move to the seat in front of him. Scott knew that inmates were not allowed to change seats, but did not think that he could do anything about it. Scott saw Johns lean towards the window, but could not see what Johns was doing.

Scott used the bus telephone to contact Generette, who was at the front of the bus. Scott, Cooper, and Generette shone their flashlights, but Scott still could not see what Johns was doing. Although he could not see anything, Scott told Generette that the officers should “go into the back [of the bus] as a team” when they arrived at Supermax “[b]ecause [he] didn’t know if the inmates back there were planning something or if they were already doing something in the back.” At a deposition, excerpts of which were read to the jury, Scott testified that he could not “remember what [Cooper] was doing” prior to Johns standing up, but stated that Cooper “might have been eating” or “could have been” sleeping. ⁶⁹⁶ Generette testified as follows. Generette was sitting in the front of the bus.

Generette received a call from Scott on the bus telephone telling him that Johns had gotten up and moved around. Generette had Gaither turn on the bus’s lights. Generette saw Johns sitting and looking up at the ceiling. According to Generette, once the officers “found out that something might have happened [they] speeded up the process.” Indeed, Generette acknowledged later telling the internal investigator that “we just put the pedal to the metal and we tried to get to [Supermax] as fast as we could.” Gaither, the driver, testified that during the drive back to Supermax, he received a message from Generette to turn the bus’s lights on because “Scott said he saw something going on in the back of the” bus.

Gaither turned the lights on, but Generette said that he could not see anything, and Gaither turned the lights back off. Gaither then “picked the pace up a little bit” and continued driving to Supermax. Cooper, who was seated next to Scott in the rear elevated cage and who was the Officer in Charge during that trip, testified that he did not see anything unusual and was unable to explain why he did not see anything. On direct examination, the following exchange occurred: [THE STATE’S COUNSEL:] Now at that time, early February of 2005, was it the practice to drive to Baltimore with interior lights on or off? [COOPER:] No, it was never the practice to drive back with — with the lights on.

It was always off unless you had reason to turn them on they stayed off. [THE STATE’S COUNSEL:] With the lights off were you able to see into the rear compartment? [COOPER:] You could not see clearly, but you could just see images of people. You couldn’t see exactly who it was or, you know, pretty much what was going on. * * * [THE STATE’S COUNSEL:] ... [I]n looking into the rear compartment of the bus, were you able to see silhouettes of persons? ⁶⁹⁷ [COOPER:] Yes. [THE STATE’S COUNSEL:] Were you able to see person’s movements? [COOPER:] It’s — sometimes. It depends on actually where you were on Route 70 coming back down because it’s— there’s no lights on the highway there and it’s — when it’s pitch black it’s dark. [THE STATE’S COUNSEL:] Did you have flashlights? [COOPER:] Yes, we did carry flashlights. On cross-examination, Cooper was questioned about his observations on the bus ride, and the following colloquy occurred: [RESPONDENTS’ COUNSEL:] ...

Were you aware that the officers on the bus, including yourself were to remain alert and observant at all times and report any unusual occurrences to the 0[fflcer in Charge]? [COOPER:] Yes. [RESPONDENTS’ COUNSEL:] And Officer Scott reported to you that something had happened; did he not? [COOPER:] He reported that he saw something. [RESPONDENTS’ COUNSEL:] Unusual? [COOPER:] Yes. [RESPONDENTS’ COUNSEL:] Did you ask him what he saw? [COOPER:] I believe I did. Whatever was in my report. [RESPONDENTS’ COUNSEL:] What did he tell you that he saw? [COOPER:] I don’t remember at this time. [RESPONDENTS’ COUNSEL:] What did you do as a result of him telling you that he saw something? [COOPER:] I think we turned — whatever he told me I think we turned the lights on and checked. [RESPONDENTS’ COUNSEL:] And at that point you now know the person to be [ ] Johns had his head over the seat? ⁶⁹⁸ [COOPER:] I’m not understanding what you’re asking me. [RESPONDENTS’ COUNSEL:] When you turned the lights on, I believe you also indicated you shined your flashlight? [COOPER:] Yes. [RESPONDENTS’ COUNSEL:] And you shined it on the top of the seat? [COOPER:] I shined it inside the back of the bus. I don’t— I don’t — I can’t say whether it was on top of the seat or— [RESPONDENTS’ COUNSEL:] Did you see [] Johns, now you know to be [ ] Johns with his head over the seat? [COOPER:] Yes, looking up. [RESPONDENTS’ COUNSEL:] Looking at the ceiling? [COOPER:] Yes. [RESPONDENTS’ COUNSEL:] So that you would have had your flashlight where you could see his head; was that correct? [COOPER:] I saw one — I saw a person with their head back up in the air, yes. [RESPONDENTS’ COUNSEL:] Leaning on the seat? [COOPER:] Yes. [RESPONDENTS’ COUNSEL:] And did you see any blood on the top of the seat, sir? [COOPER:] No. [RESPONDENTS’ COUNSEL:] Let me ask you this, can you tell me, how far were you from the nearest inmate to you when you were seated in the cage? This close? [COOPER:] There was some inmates sitting in a seat that was to the right of me or right in front of me to the right, I know that.

And there was inmates— [RESPONDENTS’ COUNSEL:] How far were they? [COOPER:] They could have — those inmates could have been — I’m really not sure. I’m guessing. ⁶⁹⁹ [RESPONDENTS’ COUNSEL:] If I told you the first seat or the second seat was some five feet away from you, would you disagree? [COOPER:] I couldn’t disagree because I don’t know. [RESPONDENTS’ COUNSEL:] Okay. And if I told you that [ ] Parker was seated seven feet away from you, would you disagree with that? [COOPER:] I couldn’t disagree with that because I don’t know. [RESPONDENTS’ COUNSEL:] What was Officer Scott doing on the trip while you were eating your dinner? [COOPER:] He wasn’t doing anything that I could recollect. [RESPONDENTS’ COUNSEL]: Did you have direct observation, as you understand it, on all four [Supermax] inmates for the entire trip on February 1st and 2nd, return from Hagerstown? [COOPER:] Did I have direct observation as I see it? [RESPONDENTS’ COUNSEL:] As you understand the words to mean. [COOPER:] As I understood it, yes. [RESPONDENTS’ COUNSEL:] So you were directly watching the whole time? [COOPER:] I was watching inside the back of the bus. Whether I was looking at, you know, who I was looking at was not, you know — I don’t know. [RESPONDENTS’ COUNSEL:] Did you see any of the inmates get up? [COOPER:] No, I did not. [RESPONDENTS’ COUNSEL:] Did you see any inmates change their seat? [COOPER:] No, I did not. [RESPONDENTS’ COUNSEL:] Do you now know that inmates got up during the trip? [COOPER:] Yes. ⁷⁰⁰ [RESPONDENTS’ COUNSEL:] Can you explain to the ladies and gentlemen of the jury how you didn’t see that? [COOPER:] You want me to explain how I didn’t? [RESPONDENTS’ COUNSEL:] Yes, sir. [COOPER:] I didn’t see it. [RESPONDENTS’ COUNSEL:] Was it dark? [COOPER:] Yes. [RESPONDENTS’ COUNSEL:] As you returned from Hagerstown, if you couldn’t see all the inmates, did you think you could see better with the lights on in the trip back from Hagerstown, sir? [COOPER:] Possibly.

Arrival at Supermax The bus proceeded to Supermax without stopping or contacting any law enforcement agency for assistance. The bus arrived at Supermax at approximately 4:03 a.m. Once there, Cooper collected and secured the officers’ weapons, and Gaither called the inmates off the bus individually by name, beginning with the Supermax inmates. Diggs and Folk were called and exited the bus.

When Johns, the third inmate called, got out of his seat, the officers saw a large amount of blood on Johns’s shirt and a cut on Johns’s arm. According to Generette, Johns was “covered in blood[,]” with “blood on his shirt, on his arm sleeves.” When Parker’s name was then called, Parker failed to respond. The officers entered the bus, saw blood on Parker’s seat, 6 and found Parker unconscious, wedged between two seats. Because Parker was “too tangled up[,]” the officers were required to remove Parker’s restraints to pull him out from under the seat.

The officers then brought Parker’s body to the front of the bus and laid him down in aisle. Generette testified that Parker had a cut above his eye, a long welt or bruise going down the sides of his neck, ⁷⁰¹ and blood coming out of his nostrils. Gaither checked for signs of life, but detected none, at which point Gaither began administering CPR. 7 Parker was eventually transported by ambulance to a hospital, where he was pronounced dead at 4:57 a.m., without having regained consciousness. The cause of death was strangulation.

Internal Investigation As a result of Parker’s death, the DPSCS Internal Investigation Unit (“HU”) launched an investigation. The investigation revealed that the officers did not follow appropriate procedures in transporting the inmates on the bus. For example, Cooper, as the Officer in Charge, should have had keys to the rear passenger compartment so that he and Scott could enter in the event of an emergency. Cooper, as the Officer in Charge, should have sat in the front of the bus instead of in the rear elevated cage, and Cooper should have notified his superiors of any problems during transport.

Several of the bus’s interior lights were burned out and a two-way radio was not working. Johns’s three-point restraints were not properly secured, and the officers permitted Diggs and Johns to move about on the bus. Cooper knew that the correctional officers had unauthorized personal cell phones on the bus, but did not confiscate the cell phones or report the infractions; such contraband items would have distracted the officers from maintaining direct observation of the inmates on the bus. The IIU reenacted the attack under three lighting conditions: (1) with all of the interior bus lights turned off; (2) with three overhead interior bus lights turned on, two in the front and one in the rear; and (3) with all of the overhead interior bus lights turned on.

In the first scenario, one investigator who sat in the rear elevated officers’ cage in the seat in which Scott had sat documented that he was able to see the silhou ⁷⁰² ette of the person who was playing Johns stand up and move to the seat in front of him, and was able to see the person’s facial features. Another investigator testified that, in this first scenario, the investigators “could see very well” and that “there was no way you could not see what was going on on the bus.” In the second scenario, one investigator documented that he could see “the person’s movements, and some facial features.” In the third scenario, one investigator documented that he “was able to see very well” and could “see all the way to the front of the bus.” According to that investigator, he was able to see the person who was playing Johns reach over the seat and choke the person who was playing Parker, and he also saw the person who was playing Johns stand up, change seats and push the head of the person who was playing Parker down below the seat. One investigator testified that, in each scenario and sitting in the rear elevated officers’ cage, she “could see what was going on.” The reenactments revealed that Scott and Cooper were seated seven and one-quarter feet from where Parker was seated at the time of Johns’s attack. As a result of IIU’s investigation, Gaither and Generette were officially reprimanded, and Generette was suspended for five days without pay.

Surgeon and Scott were both terminated from employment, and their terminations were upheld on appeal. Cooper, like Surgeon and Scott, was to be terminated, but elected to retire instead; accordingly, Cooper did not appeal his notice of termination. Cooper’s notice of termination was admitted into evidence at trial. 8 The notice explained the reasons for Cooper’s termination as follows: During the entire episode, [ ] Cooper failed to take any actions to investigate or otherwise determine what, if anything, had happened. More importantly, as the Officer-in-Charge, [ ] Cooper had a duty to take the appropriate steps necessary to prevent [ ] Johns’[s] murder of [ ] Parker---The conclusions drawn from the investigative findings were ⁷⁰³ that [ ] Cooper was grossly negligent in the performance of his duties.

After reviewing the investigative findings, it was determined that [ ] Cooper violated several Post Order, Institutional Directives and [DPSCS] policies and procedures____ [] Cooper admitted that he was unfamiliar with the directives pertaining to the transportation bus. [One policy] requires correctional officers to be alert and attentive at all times during their tour of duty---- [] Cooper failed to observe the attack and murder of [ ] Parker or any of the inmate movement that occurred in the area. ... More importantly, his failure to take any steps to notify his superiors that there was a problem during the transportation detail contributed to the failure to timely address [ ] Parker’s medical emergency. The death of [ ] Parker was caused by complacency and neglect. The large amount of blood discovered on the seat and on [ ] Johns’[s] clothing was an obvious indication that a struggle occurred....

Moreover, if [ ] Scott and Cooper, located in the rear of the bus, had been alert and attentive to their assignment, the severity of this incident could have been prevented.... [ ] Cooper’s performance lapses breached the safety and security of [ ] Parker and contributed to his death. Such wantonly careless conduct and intentional misconduct seriously undermined the safety and security of staff and inmates during the transportation detail. His failure to appropriately perform his duties and his false and misleading accounts of the events of February 2, 2005 undermine his credibility and make him unsuitable for continued employment as a correctional officer. The Jury’s Verdicts and Post-Trial Motions The jury returned verdicts in Generette’s favor, finding that he had not been negligent, and in Respondents’ favor against Cooper, Scott, Surgeon, Gaither, and the State.

The jury found Scott, Surgeon, and Gaither were negligent; that Coo ⁷⁰⁴ per was grossly negligent; and that Scott’s, Surgeon’s, and Gaither’s negligence, and Cooper’s gross negligence, were the proximate causes of Parker’s death. The jury awarded $10,000,000 in non-economic damages to Parker’s estate, $1,000,000 in non-economic damages to Parker’s father, $7,500,000 in non-economic damages to Parker’s mother, and $15,000 in funeral expenses. Cooper, Gaither, Scott, and Surgeon filed a motion, seeking judgment notwithstanding the verdict as to the jury’s finding that Cooper had been grossly negligent, and judgment notwithstanding the verdict as to the liability of the individual correctional officers. The circuit court granted the motion for judgment notwithstanding the verdict as to the correctional officers by: (1) striking the jury’s finding of gross negligence as to Cooper and ordering that a finding of negligence be entered; and (2) determining that the correctional officers were immune from liability “under both Public Official Immunity and the” MTCA. 9 Appeals to the Court of Special Appeals Respondents and the State appealed, and the Court of Special Appeals affirmed in part and vacated in part the judgments of the circuit court.

See Rodriguez v. State, 218 Md.App. 573 , 98 A.3d 376 (2014). Specifically, the Court of Special Appeals held that the circuit court erred in striking the jury’s finding of Cooper’s gross negligence and in concluding that Cooper was immune from liability, stating: With respect to the claims against [ ] Cooper, we conclude that, because there was sufficient evidence of gross negligence on the part of [ ] Cooper to have supported the jury’s finding on that issue, the [circuit] court erred in striking ⁷⁰⁵ that part of the jury’s verdict. We further conclude that the [circuit] court erred in ruling that there was no special relationship between [] Cooper and the inmates. Consequently, the [circuit] court also erred in concluding that [ ] Cooper was immune from liability and entering judgment notwithstanding the verdict in favor of [ ] Cooper.

Because [ ] Cooper’s tortious conduct was gross negligence, he was not entitled to immunity under the MTCA; and, because [ ] Cooper owed a duty arising out [of] a special relationship with the inmates in his custody, he was not entitled to common law public official immunity. Rodriguez, 218 Md.App. at 580-81 , 98 A.3d at 380 . 10 Cooper filed a petition for a writ of certiorari, which this Court granted. See Cooper v. Rodriguez, 441 Md. 61 , 105 A.3d 489 (2014). 11 DISCUSSION I. Gross Negligence and Immunity under the MTCA Cooper contends that the circuit court was correct in striking the jury’s finding that his conduct constituted gross negligence. Essentially, Cooper argues that there was no evidence that he intentionally failed to perform a duty or that he exhibited a reckless disregard for Parker’s life.

Cooper asserts that he had no reason to believe that Johns posed a danger to Parker or that he intentionally disregarded danger to Parker. Respondents counter that there was “overwhelming evidence” to support the jury’s finding that Cooper was grossly negligent. According to Respondents, the evidence demon ⁷⁰⁶ strated that Cooper was aware of Johns’s attack on Parker, yet intentionally failed to perform his duty, as the Officer in Charge, to protect Parker. Respondents assert that whether Cooper had prior notice of Johns’s propensity for violence is of no consequence because, once Johns began to attack and choke Parker only seven feet away from Cooper, it was grossly negligent for Cooper not to intervene despite having the duty to do so. “An appellate court reviews the trial court’s decision to allow or deny judgment or [judgment notwithstanding the verdict] to determine whether it was legally correct, while viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party, and determining whether the facts and circumstances only permit one inference with regard to the issue presented.” Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503 , 16 A.3d 159, 163 (2011) (citations, brackets, and internal quotation marks omitted).

See also Bradford v. Jai Med. Sys. Managed Care Orgs., Inc., 439 Md. 2, 15 , 93 A.3d 697, 705 (2014) (“In reviewing a trial court’s denial of a motion for judgment notwithstanding the verdict, the appellate court considers whether there is any evidence adduced, however slight[,] from which reasonable jurors, applying the appropriate standard of proof, could find in favor of the plaintiff on the claims presented.” (Citation, internal quotation marks, and ellipses omitted)). “[I]f the nonmoving party offers competent evidence that rises above speculation, hypothesis, and conjecture, the [judgment notwithstanding the verdict] should be denied.” Barnes v. Greater Balt. Med.

Ctr., Inc., 210 Md.App. 457, 480 , 63 A.3d 620, 633-34 (2013) (citations omitted). The MTCA and CJP § 5-522 “[G]enerally[,] under common law, the State enjoys sovereign immunity and is thus protected from suit for both ordinary torts and State constitutional torts. The State, however, has partially waived this immunity by statute.” Ford v. Balt. City Sheriff’s Office, 149 Md.App. 107, 119 , 814 A.2d 127, 133 (2002) (Greene, J.) (citations omitted).

The ⁷⁰⁷ MTCA provides, in pertinent part, as follows concerning waiver of immunity: (a) In general. — (1) Subject to the exclusions and limitations in this subtitle and notwithstanding any other provision of law, the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent provided under paragraph (2) of this subsection. (2) The liability of the State and its units may not exceed $200,000 to a single claimant for injuries arising from a single incident or occurrence. (b) Exclusions and limitations. — Immunity is not waived under this section as described under § 5 — 522(a) of the Courts and Judicial Proceedings Article. SG § 12-104.

SG § 12-105, concerning immunity of State personnel, provides: “State personnel shall have the immunity from liability described under § 5-522(b) of the Courts and Judicial Proceedings Article.” Md. Code Ann., Cts. & Jud. Proc. (1973, 2013 Repl. Vol.) (“CJP”) § 5-522(a) and (b), in turn, provide: (a) Tort liability — Exclusions from waiver under § 12-101 of the State Government Article. — Immunity of the State is not waived under § 12-104 of the State Government Article for: (4) Any tortious act or omission of State personnel that: (i) Is not within the scope of the public duties of the State personnel; or (ii) Is made with malice or gross negligence[.] (b) In general. — State personnel, as defined in § 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived ⁷⁰⁸ immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver.

In Ford, 149 Md.App. at 120 , 814 A.2d at 134 , writing for the Court of Special Appeals, Judge Greene explained that, when the above statutes are read in concert, they “clearly establish^ ] that a party can bring a viable tort action against the State when the tort was committed by a State employee acting within the scope of his or her employment and without malice or gross negligence.” Consistently, the MTCA “provides that a State employee acting within his or her scope of employment and without malice or gross negligence is immune from suit.” Id. at 120 , 814 A.2d at 134 . If “the State employee has acted with malice or gross negligence, ... the State is immune from suit and the injured party may only bring a viable tort claim against the State employee.” Id. at 120-21 , 814 A.2d at 134 . Gross Negligence In Barbre, 402 Md. at 187 , 935 A.2d at 717 , this Court described gross negligence as follows: We have viewed gross negligence ... as something more than simple negligence, and likely more akin to reckless conduct; gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he [or she] inflicts injury intentionally or is so utterly indifferent to the rights of others that he [or she] acts as if such rights did not exist.

(Citations, emphasis, and internal quotation marks omitted). “Whether or not gross negligence exists necessarily depends on the facts and circumstances in each case[,]” and “is usually a question for the jury and is a question of law only when reasonable [people] could not differ as to the rational ⁷⁰⁹ conclusion to be reached.” Romanesk v. Rose, 248 Md. 420, 423 , 237 A.2d 12, 14 (1968) (citations omitted). “Ordinarily, unless the facts are so clear as to permit a conclusion as a matter of law, it is for the trier of fact to determine whether a defendant’s negligent conduct amounts to gross negligence.” Taylor v. Harford Cnty. Dep’t of Social Servs., 384 Md. 213, 229 , 862 A.2d 1026,1034 (2004) (citation and internal quotation marks omitted). In Barbre, 402 Md. at 190, 163 , 935 A.2d at 718-19, 702-03 , this Court held that an unarmed plaintiff had “presented sufficient facts to demonstrate gross negligence on the part of’ the defendant, a deputy sheriff who ordered the unarmed plaintiff to raise his hands, saw the plaintiff comply, approached with his gun drawn, and shot the plaintiff in the neck. Although we held that the trial court had erred in granting summary judgment in the defendant’s favor, we observed: “[T]he evidence at trial may show that [the defendant] was acting without malice or gross negligence.

If it does, [the defendant] would be entitled to immunity granted by the MTCA. On the other hand, the evidence may show that [the defendant] was acting either maliciously, or grossly negligent, so that he would not be entitled to immunity under the MTCA.” Id. at 190 , 935 A.2d at 719 . Analysis Here, in complete agreement with the Court of Special Appeals, we conclude that the circuit court erred in striking the jury’s finding that Cooper acted with gross negligence. The record is replete with evidence demonstrating that Cooper was grossly negligent.

It is an unfortunate reality that prison can be dangerous for both inmates and correctional officers. In this instance, however, the circumstances demonstrate that Parker’s murder was accomplished in the face of Cooper’s total disregard for his duty as a correctional officer and indifference to the consequences to Parker. Although any murder is abhorrent, this one was particularly heinous. Cooper, the officer responsible for protecting Parker and all of the inmates on the bus, sat several feet away while ⁷¹⁰ Parker was systematically choked to death and had his throat cut; and Cooper took no action whatsoever.

The sequence of events is well established in the record. Johns, who initially sat behind Parker, rose, pulled Parker’s head back up over the seat between them, and began choking Parker. Cooper did not respond to this occurrence. After “a minute[,]” believing that he had killed Parker, Johns let him go.

Diggs, who was sitting next to Parker, moved to another seat. Cooper did not respond to this event. Parker began making sounds and moving; Johns moved into the seat next to Parker. Cooper did not respond.

Johns began choking Parker again, twisting Parker’s neck while pulling down and Parker pulled up. Cooper did not respond. Johns cut Parker’s throat and Parker yelled out. Cooper took no action.

Cooper was seven and one-quarter feet away in a raised cage that was designed to give him a full view of the bus. Whether Cooper was asleep, or watching and not performing his duty, under the circumstances described above, his failure to perform his duty to protect Parker constituted gross negligence. Although we are loath to belabor the unfortunate circumstances of Parker’s death, the record overflows with facts sufficient to support the finding of gross negligence as to Cooper. Cooper failed to follow basic procedures.

Expert testimony established that, as the Officer in Charge, Cooper was responsible for ensuring that the three-point restraints placed on inmates were properly secured. It is undisputed that Surgeon improperly secured the three-point restraint device on Johns, and Cooper did not check the restraints. Next, although according to DPSCS policy, Supermax inmates such as Johns and Parker were to ride in the protective custody cages located at the front of the bus, or, absent space in a protective custody cage, were to ride in the front of the bus, Cooper violated DPSCS policy by allowing Supermax inmates Johns, Folk, Parker, and Diggs to sit on the two benches at the rear of the bus. According to Cooper, he “did the best [he] could with what [he] had” concerning the seating arrangements on the bus.

And, as the Officer in Charge, ⁷¹¹ Cooper was required to sit at the front of the bus instead of in the rear elevated cage. Evidence adduced at trial leads to the inescapable conclusion that Cooper was in a position to see and hear the murder. Sitting in the rear elevated cage, Cooper was seven and one-quarter feet from where Parker was at the time of Johns’s attack, and was facing Johns and Parker when the attack occurred. Cook, an inmate on the bus who was seated in the last seat on the left-hand side of the bus directly in front of Cooper (in other words, in the seat across the aisle from where Johns originally sat), saw and heard Johns’s attack on Parker.

Johns confessed to the murder and stated that, when he started choking Parker, Parker “tried to yell for help[,]” and that, when he cut Parker’s neck with the razor blade, Parker “yelled real loud[.]” Scott, who was sitting next to Cooper in the rear elevated cage, was so concerned that suspicious activity was occurring when he saw Johns get up and move around that Scott used the bus’s telephone to contact Generette at the front of the bus. For his part, Cooper testified that he did not see or hear anything unusual, and that he did not see Johns changing seats. Nonetheless, the officers on the bus were sufficiently concerned that something unusual was occurring that they formulated a plan and sped up. Generette testified that, once the officers “found out something might have happened [they] speeded up the process” and “put the pedal to the metal and [ ] tried to get to [Supermax] as fast as [they] could.” Scott testified that he told Generette that the officers should “go into the back [of the bus] as a team” when they arrived at Supermax “[b]ecause [he] didn’t know if the inmates back there were planning something of if they were already doing something in the back.” IIU’s investigation confirmed that an officer in Cooper’s location would have been able to see the attack.

IIU’s reenactments of the events of February 2, 2005, demonstrated that, even with all of the bus’s lights turned off, a person seated in the rear elevated cage could see Johns stand up and ⁷¹² move to the seat in front of him, and that the person would have been able to see Johns’s facial features. Another investigator testified that, under each lighting condition and seated in the rear elevated cage, “there was no way you could not see what was going on on the bus.” When viewed in its totality and in the light most favorable to Respondents, the evidence was sufficient to support the conclusion that Cooper, as the Officer in Charge, failed to fulfill the duty to ensure Parker’s safety and acted with reckless disregard for Parker’s life. Indeed, the evidence was sufficient to support the conclusion that Cooper, who claimed to have not seen or heard the attack occurring right in front of him, and who testified that he was unaware of several policies meant to ensure inmates’ safety, was “so utterly indifferent to the rights of others that he act[ed] as if such rights did not exist.” Barbre, 402 Md. at 187 , 935 A.2d at 717 (citations omitted). 12 Whether