E. Eyring & Sons Co. v. Mayor of Baltimore

Marbury, J., delivered the opinion of the Court. On the cold and snowy morning of February 9, 1967, at 8:10 a.m., the roof of the St. Rose of Lima Roman Catholic Church, located in the Brooklyn area of Baltimore City, collapsed into an assemblage of persons gathered inside for a Lenten Mass. Suits were instituted by some of the injured persons against various defendants including those who caused the church to be built as well as those who participated in its planning, construction, and supervision. In two of the suits, the appellee, Mayor and City Council of Baltimore (City), was named as an original defendant, and the appellant, E. Eyring and Sons Company (Eyring), alleged in the pleadings to be the general contractor, filed a cross claim against the City.

In three other suits, Eyring impleaded the City as a third party defendant. It was asserted in the various claims that the collapse of the roof was, at least in part, due to the City’s Bureau of Building Inspec ³⁸² tion’s failure to see that the building was safely and adequately designed and its failure to properly inspect and supervise its construction to insure compliance with the applicable provisions of the building code. The City responded to these claims by filing motions under Maryland Rule 323 b to dismiss on grounds of governmental immunity in each of the five cases. On June 5, 1968, the Superior Court of Baltimore City delivered a memorandum opinion granting the City’s motions and ordered dismissal of the five cases against it.

From these orders and the judgments rendered thereon, Eyring has appealed to this Court. On appeal, Eyring raises the following two questions: (1) Is the maintenance and operation by the Mayor and City Council of a Bureau of Building Inspection, Department of Public Works, a type of activity wherein the City is immune from tort liability? (2) Has the Mayor and City Council of Baltimore met the burden of proving that its claim of governmental immunity is available to it as an affirmative defense? This Court answers both questions in the affirmative.

As in almost all common law jurisdictions,- the law is well established in Maryland that there can be no recovery against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character. Irvine v. Montgomery County, 239 Md. 113 , 210 A. 2d 359 ; Fowler v. Bd. of Co. Comm’rs, 230 Md. 504 , 187 A. 2d 856 , cert. denied, 375 U. S. 845 , and cases therein cited. On the other hand, where the function performed is a proprietary one, the municipal corporation may be liable for its torts arising out of such activities. Haley v. City of Baltimore, 211 Md. 269 , 127 A. 2d 371 ; Cox v. Anne Arundel County, 181 Md. 428 , 31 A. 2d 179 ; Baltimore v. State, 173 Md. 267 , 195 A. 571 .

The distinction between governmental and proprietary functions is sometimes illusory in practice. As one author has phrased it: “The rules sought to be established [in determining whether a given function is governmental or proprietary] are as logical as those governing French irregular verbs.” Seasongood, Municipal Corporations: Objections To The Governmental Or Proprietary Test, 22 Va. L. Rev. 910 (1936). However, this Court has recognized the difficulty in distinguishing between those functions which are governmental ³⁸³ and those which are not, and has established guidelines in Baltimore v. State, supra: “But in truth there is no universally accepted or all inclusive test to determine whether a given act of a municipality is private or governmental in its nature, but the question is usually determined by the public policy recognized in the jurisdiction where it arises ....

Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature.” Id. at 275 , 195 A. at 576 . It is the appellant’s contention that the enforcement of the building code by the Bureau of Building Inspection is private or proprietary in nature and that the City cannot avail itself of the defense of governmental immunity. Applying the