Dean v. Board of Educ. of Cecil Co.

WILNER, Judge. Md. Code Ann. Cts. & Jud.Proc. art., § 5-306(a) provides, generally, that “no action for unliquidated damages for an injury to a person or his property may be brought against a county or municipal corporation unless the notice of the claim required by this section is given within 180 days after the injury.” (Emphasis supplied.) The form, content, recipient, and manner of giving the notice is specified in subsection (b). The principal questions before us in this appeal are whether (1) § 5-306(a) applies to an action against a county board of education, (2) it applies to an action by a minor, ⁹⁴ and (3) the Circuit Court for Cecil County applied the proper evidentiary standard in dismissing the plaintiffs’ action for failure to give the notice required by § 5-306. Because we answer the first question in the negative, we need not and do not address the other two.

On May 3,1985, the plaintiffs filed a two-count Complaint against the Cecil County Board of Education, alleging that, on May 21, 1982, while lawfully playing on a playground at the Rising Sun School, the minor plaintiff, Guy Dean, was injured when he fell into a hole that was “cluttered with glass, rubbish, trash and other debris.” The basis of the action was negligence on the part of the county school board in creating a dangerous condition on its property, allowing the condition to exist, and failing to give warning of the condition. Count I was brought on behalf of Guy by his father and sought general compensatory damages for the child’s injuries. Count II was brought by Guy’s parents in their own right; they sought recompense for loss of Guy’s services and for medical expenses paid on account of Guy’s injuries. The board moved to dismiss the Complaint solely on the basis that the plaintiffs had failed to give the 180-day notice required by § 5-306 and to aver any good cause for that failure.

In response, the plaintiffs conceded that they had not given the required notice but urged that, in light of subsequent notice given by them (in October, 1983 — 18 months after the event), no prejudice had accrued to the board. 1 After hearing argument on the motion, the court concluded that § 5-306 was applicable, that the parents, with respect to Count II, were bound by it and had failed to show good cause for their failure to give the required notice, but that Guy, as to Count I, “was not bound by the limitations ⁹⁵ of Section 5-306 during his minority.” Upon these conclusions, the court initially granted the board’s motion as to Count II but denied it as to Count I. On reconsideration, however, the court changed its view as to Count I and dismissed that count as well, concluding that all plaintiffs were subject either to the notice requirement of § 5-306 or to a similar 180-day notice requirement specified in the State Tort Claims Act (Md. Code Ann. State Gov’t art., § 12-106). This appeal followed. We believe that § 5-306 is not applicable to county boards of education, that the notice requirement of the Tort Claims Act is not applicable to this action, and that the Complaint should not have been dismissed for failure to give the notice required under either statute. On the other hand, we conclude that, by virtue of Md. Code Ann. Educ. § 4-105(d), the defense of sovereign immunity may have been available to the board for part of the plaintiffs’ claim.

(1) Applicability Of § 5-306 The seeds of § 5-306 were sown with the enactment of a public local law, applicable only to Montgomery County, in 1941. By 1941 Md. Laws, ch. 405, the Legislature provided that no action could be maintained against “the Board of Commissioners of Montgomery County” for unliquidated damages for any injury or damage to person or property unless (1) within 90 days after the injury or damage, the claimant gave written notice to the County Commissioners of the time, place, and circumstances of the injury or damage, or (2) a written report concerning the event was made by a State or county police officer. Two years later, the Legislature expanded that provision. By 1943 Md. Laws, ch. 809, it repealed the public local law and enacted a new § 18 to then-art. 57 of the Code, providing that an action could not be maintained or claim allowed “against any county or municipal corporation of Maryland” for unliquidated damages for personal injury or property damage unless, within 90 days, written notice was given “to ⁹⁶ the City Solicitor of Baltimore City, the County Commissioners, or the corporate authorities of the municipal corporation, as the case may be.” See Bartens v. City of Baltimore, 293 Md. 620, 624-26 , 446 A.2d 1136 (1982), describing the origin and intent of the statute.

Despite the seemingly broad sweep of the Act — “any county or municipal corporation of Maryland” — it was initially limited to Caroline, Montgomery, and Prince George’s Counties. By piecemeal amendments over the years, however, the statute was eventually made applicable throughout the State, although its provisions were not uniform. Until 1972, a 180-day notice was required in some counties, a 90-day notice in others; in some charter-government counties, the notice had to be given to the County Executive, in others, it had to be given to the County Council. In Cotham and Maldonado v. Board, 260 Md. 556, 565 , 273 A.2d 115 (1971), the Court of Appeals commented on the variations then embedded in the statute, charitably characterizing them as “mildly confusing,” and invited the Legislature to address the problem.

It did so at the next session, making the 180-day notice requirement uniform and allowing a court, for good cause shown and in the absence of prejudice to the defendant, to entertain an action even if the required notice was not given. See 1972 Md. Laws, ch. 519; Rich v. Mayor and City Council, 265 Md. 647 , 290 A.2d 777 (1972). In 1973, the Cts. & Jud.Proc. art. was adopted as part of the Code Revision process and all remaining sections of art. 57 except this one — § 18 — were moved into the new article. In 1978, § 18 also was transferred, becoming, with a few amendments, § 5-306.

At no time since the original enactment in 1941 has the statute ever mentioned county boards of education; it has referred to counties, county commissioners, municipal corporations, and corporate authorities of municipal corporations, but never to county boards of education. To our ⁹⁷ knowledge, the statute has never, until now, been construed as applying to county boards of education. 2 The board seeks to include itself within the ambit of § 5-306 on two bases. First, it claims that, under the principles or criteria enunciated in Neuenschwander v. Wash. San.

Com., 187 Md. 67 , 48 A.2d 593 (1946), it is a “municipal corporation”; alternatively, it contends that it is a county agency. We are not persuaded by either argument. As has been said so many times, “[t]he cardinal rule of statutory construction is to ascertain the actual intent of the Legislature.” Scott v. State, 297 Md. 235, 245 , 465 A.2d 1126 (1983). The primary source for doing that “is the language of the statute itself which should be construed according to its ordinary and natural import.” Comptroller v. Fairchild Industries, 303 Md. 280, 284 , 493 A.2d 341 (1985).

A statute “should not be construed by forced or subtle interpretations designed to extend or limit the scope of its operation.” Id. What is there in § 5-306, or indeed in any of its predecessors, to indicate an intention on the part of the Legislature to include within it county boards of education? We look in vain. There is nothing.

Surely, the Legislature was aware of the status of these boards. They are, and always have been, creatures of the Legislature. Their ⁹⁸ organization and their special relationship both to the county government and to the State Department of Education has long been set out in the Code. They are unusual creatures, having an existence independent of the county government, authorized to exercise, on their own, such sovereign power as eminent domain, but yet dependent upon the county government for much of their budget.

See Md. Code Ann. Educ., §§ 5-101 — 5-110. Although in Clauss v. Board of Education, 181 Md. 513 , 30 A.2d 779 (1943), the Court concluded that for some purposes the board may be regarded as an agency of the county and for others an agency of the State, later decisions seem rather clearly to favor the view