De La Puente v. CTY COMM'SR OF FREDERICK COUNTY

HARRELL, J. This litigation began with the filing of a complaint in the Circuit Court for Frederick County by Isabel de la Puente and Mark Willoughby (collectively “Appellants”) pertaining to a sledding accident on Frederick County parkland in which their minor child, Amelia Willoughby, was injured. The third amended complaint, seeking compensatory damages only, alleged simple negligence on the parts of at least seven individuals employed in various capacities by the Frederick County Department of Parks and Recreation. The defendants included: Paul Dial, Director of Parks; “Bob” Failor, Capital Improvement Administrator; Deborah Spalding, Recreation Superintendent; Earl Eyler, Park Superintendent; and James Gist, Safety Inspector (collectively referred to here as “Appellees”). 1 Appellees moved to dismiss, or for summary judgment. One of the grounds argued in support of the motion was public official immunity.

At the conclusion of a hearing on 17 March 2004, the Circuit Court effectively granted summary judgment in favor of Appellees on that ground, 2 which ⁵⁰⁸ judgment was entered the following day. Appellant noted a timely appeal to the Court of Special Appeals. 3 Before the intermediate appellate court could consider the appeal, however, this Court, on its initiative, issued a writ of certiorari to consider whether Appellees are “public officials” entitled to assert the defense of qualified public official immunity. 4 We shall reverse the judgment of the Circuit Court and remand the case to the Circuit Court for further proceedings not inconsistent with this opinion. I. There being no argument tendered here that a genuine dispute of material fact was generated in the Circuit Court on the question of public official immunity, we recite the facts as alleged by Appellants, as the non-moving parties below, giving them the benefit of any reasonable inferences. On 16 January 1999, Amelia was sledding with her father at Pinecliff Park in Frederick, Maryland.

The sledding/toboggan run (“Slope”) at ⁵⁰⁹ Pinecliff Park, including the land and improvements, is owned by Frederick County, Maryland, and maintained by the Frederick County Department of Parks and Recreation for public recreational use. Amelia’s toboggan veered off the Slope and collided with a tree, resulting in significant physical injuries to her. She was flown by helicopter to the Shock Trauma Unit at the University of Maryland School of Medicine where she underwent two major operations, followed by months of physical therapy and rehabilitation. She continues to have permanent physical disabilities as a result of the accident.

In their complaint, Appellants alleged, in separate counts as to each Appellee, respectively, that he or she was negligent in maintaining an inherently dangerous facility, failing to prevent use of the slope, failing to warn the public that the slope was inherently dangerous due to icy conditions, failing to hire competent people to maintain the slope, and failing to assure that the slope was safe for public use, all of which were alleged to be the proximate cause of Amelia’s injuries. As noted earlier, the Circuit Court granted summary judgment in favor of Appellees on the sole ground of public official immunity. 5 Appellants contended that Appellees were mere government employees and, therefore, not entitled to assert this defense. The trial judge, however, stated that “... the Court does find that the [Appellees] ... by their conduct the [Appellants] are alleging that [Appellees] are exercising some portion of the sovereign power of the state. And furthermore, clearly alleges to me that [Appellees] were performing discretionary as opposed to ministerial acts” entitling them to assert public official immunity, as permitted by the Local Government Tort Claims Act (“LGTCA”). 6 ⁵¹⁰ II.

A motion for summary judgment may be granted where “there is no genuine dispute as to any material fact and [the moving] party is entitled to judgment as a matter of law.” Md. Rule 2-501. “An appellate court reviews a trial court’s grant of a motion for summary judgment de novo.” Remsburg v. Montgomery, 376 Md. 568, 579 , 831 A.2d 18, 24 (2003) (citations omitted). “The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law. The standard of appellate review is whether the trial court was legally correct.” Id. When reviewing a grant of summary judgment, this Court first determines whether a genuine dispute of material fact exists. Id.

If no such dispute exists, we proceed to review determinations of law. Id. “The facts properly before the court, and any reasonable inferences that may be drawn from them will be construed in the light most favorable to the non-moving party.” Id. at 579-80 , 831 A.2d at 24 . The only issue presented in this case is whether Appellees are public officials, a question of law, which we review de novo. 7 See Muthukumarana v. Montgomery County, 370 Md. 447, 478-80 , 805 A.2d 372, 390-91 (2002).

III

Appellants maintain that the Circuit Court erred in concluding that Appellees were public officials entitled to the benefit ⁵¹¹ of public official immunity for merely negligent performance (or non-performance) of their duties. For the following reasons, we agree with Appellants. In Muthukumarana , we outlined the doctrine of common law public official immunity: At common law, a government actor will enjoy qualified immunity from liability for his or her non-malicious acts where: (1) he is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties. Ashbum v. Anne Arundel County, 306 Md. 617, 622 , 510 A.2d 1078, 1080 (1986) (quoting James v. Prince George’s County, 288 Md. 315, 323 , 418 A.2d 1173, 1178 (1980)) (emphasis omitted).

See also Lovelace v. Anderson, 366 Md. 690, 704-05 , 785 A.2d 726, 734 (2001) (quoting James). Once it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability. Lovelace, 366 Md. at 705 , 785 A.2d at 734 (quoting James). Muthukumarana, 370 Md. at 479 , 805 A.2d at 391 .

In James , this Court established four guidelines to aid in the analysis of whether a particular individual is a public official for purposes of common law immunity: (i) whether the position was created by law and involves continuing and not occasional duties; (ii) whether the holder performs an important public duty; (iii) whether the position calls for the exercise of some portion of the sovereign power of the State; and (iv) whether the position has a definite term for which a commission is issued and a bond or oath are required. James, 288 Md. at 324 , 418 A.2d at 1178 (citing Duncan v. Koustenis, 260 Md. 98, 105 , 271 A.2d 547, 550 (1970)). ⁵¹² These four guidelines are not exclusive, nor do they carry equal weight in the analysis; rather, they are employed using the specific facts and circumstances of each individual’s position. James, 288 Md. at 324 , 418 A.2d at 1178 . Moreover, even if an individual’s position does not satisfy the guidelines, that individual may be “nevertheless considered a public official” if he or she meets one of the two additional scenarios provided in Duncan.

Muthukumarana, 370 Md. at 479-80 , 805 A.2d at 391 (quoting Duncan, 260 Md. at 106 , 271 A.2d at 551 , (citation omitted)). Those scenarios are an individual who exercises “a large portion of the sovereign power of government” or “can be called on to exercise police powers as a conservator of the peace.” Id. (quoting Duncan, 260 Md. at 106 , 271 A.2d at 551 ) (citation omitted) (emphasis omitted). See also James, 288 Md. at 324-25 , 418 A.2d at 1178 -79 (quoting Duncan).

Applying the guidelines to the analysis of the record, such as it is, in the present case, we conclude that Appellees are not public officials. A position “created by law” means that: (a) the office was created by Constitutional or legislative enactment, such as a statute or local ordinance; (b) an oath is generally prescribed; and (c) a commission is issued. See Duncan, 260 Md. at 108 , 271 A.2d at 552 . See also Gary v. Bd. of Trustees of Employees’ Ret.

Sys., 223 Md. 446, 451 , 165 A.2d 475, 478 (1960). There is nothing in this present record to indicate that the positions of Director of Parks, Capital Improvement Administrator, Recreation Superintendent, Park Superintendent and Safety Inspector, respectively, were positions “created by law,” 8 “have a definite term for which a ⁵¹³ commission is issued,” or “require a bond or an oath.” James, 288 Md. at 324 , 418 A.2d at 1178 . The parties concede that the Appellees perform important public duties within the meaning of Duncan. 9 Duncan, 260 Md. at 105 , 271 A.2d at 550 . There is some dispute, however, as to whether the Appellees “exercise some portion of the sovereign power of the State.” Duncan, 260 Md. at 105 , 271 A.2d at 550 .

Appellants contend that Appellees are “mere” local government employees. Appellees, however, argue that Appellees have “each been sued because their job titles reflect policy-making duties (exercising a portion of the State’s sovereignty).” Appellees also argue