Farrell v. Theurer

ROBERT F. FISCHER, Judge, Retired, Specially Assigned. This appeal is from an interlocutory order of the Circuit Court for Prince George’s County denying appellants’ motion for summary judgment. The order appealed from is an exception to the general rule barring appellate review of the denial of a motion for summary judgment. Since appellants have interposed a plea of immunity, the instant appeal is properly taken.

Mandel v. O’Hara, 320 Md. 103, 134 , 576 A.2d 766 (1990). ⁴²⁶ Appellants are Prince George’s County Police Officers who were sued for their role in conducting an alcohol workshop training program. Appellees brought suit in their individual capacities as personal representatives of the estate of Daniel Lee Theurer, deceased, who died some time after participating in the training program. Appellants have raised three issues for our consideration. I. Are appellants entitled to public official immunity?

II

Were appellants’ actions the proximate cause of appellee’s injuries?

III

Did the decedent assume the risk of injury when he drove a motorcycle after voluntarily becoming intoxicated? Since we hold that appellants are entitled to public official immunity, we need not consider issues two and three. FACTS On September 10, 1998, the decedent, Daniel Lee Theurer, volunteered to participate in the Prince George’s County Police Department’s alcohol workshop training program for recruits. The volunteers are administered measured doses of an alcoholic beverage and their blood alcohol levels are monitored and recorded.

At various times during the alcohol consumption period, the police recruits practice upon the volunteers sobriety tests and blood alcohol concentration tests. The volunteers are chosen primarily from officers’ spouses and friends, other police department personnel, and occasionally firefighters. The decedent, Daniel Theurer, agreed to participate as a volunteer when he observed a police officer obtaining ice for the workshop program at the firehouse where Theurer was a volunteer firefighter lieutenant. Scott Ainsworth, the police officer who recruited Theurer for the workshop, had known Thuerer for eighteen months prior to September 10, 1998.

Officer Ainsworth knew Theurer to be a responsible person. ⁴²⁷ Daniel Theurer signed a Statement of Informed Consent in which he acknowledged that he understood he would consume alcohol and might become impaired or intoxicated. He further specifically agreed he would not drive a motor vehicle for at least twelve hours following completion of the program. At the conclusion of the training program, Officer Ainsworth drove Theurer back to the Upper Marlboro firehouse where he had, prior to the workshop, met Theurer. The return to the firehouse was in accordance with Daniel Theurer’s request.

He had apparently expected to meet a girlfriend there who was to drive him home. Theurer, however, drove himself home. Unfortunately, arriving at his home, Theurer continued to consume alcoholic beverages. By way of affidavit, Jamie Lynn Pritchard testified that he observed Theurer drink at least eight cans of beer the evening of September 10, 1998.

Theurer then, inexplicably, took a motorcycle, after having been told not to do so, and drove off at a high rate of speed. He subsequently lost control of the vehicle, crashed and suffered fatal injuries. STANDARD OF REVIEW The standard for appellate review of a trial court’s grant or denial of a Motion for Summary Judgment is whether the trial court was legally correct, since in considering a Motion for Summary Judgment the trial court decides questions of law, not fact. Heat and Power Corp. v. Air Products & Chemicals, Inc., 320 Md. 584, 591-92 , 578 A.2d 1202 (1990).

ARGUMENT Appellants contend they are entitled to summary judgment in their favor, because they, as police officers, are entitled to public official immunity. The immunity granted to public officials in Maryland is codified at Md.Code (1974, 2002 Repl.Vol.), § 5-507(b)(l) of the Courts & Judicial Proceedings Article, as follows: An official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope ⁴²⁸ of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action. Appellees disagree on the basis that appellants’ actions, as applied to this case, were ministerial duties and not discretionary functions. Appellees cite James v. Prince George’s County, 288 Md. 315, 326-27 , 418 A.2d 1173 (1980) (quoting Doeg v. Cook, 126 Cal. 213 , 58 P. 707, 708 (1899)), as follows: “Where [a public officer’s] duty is absolute, certain, and imperative, involving merely the execution of a set task—in other words, is simply ministerial—he is liable in damages to anyone specifically injured either by his omitting to perform the task, or by performing it