Foor v. Juvenile Services Administration

WILNER, Judge. This case arises out of a tragedy — the murder of 15-year old Anthony Foor by Gregory Reiter, a foster child living in the Foor family home. In the early morning of February 20, 1983, Reiter, then 16, entered Anthony’s bedroom and slit his throat with a hunting knife as he lay in bed. As Anthony’s family rushed futilely to the aid of their dying child, Reiter adjourned to another part of the house where he attempted, unsuccessfully, to commit suicide by shooting himself in the face.

In an attempt to hold someone other than Reiter responsible for what occurred, Anthony’s parents and his estate filed suit in the Circuit Court for Baltimore County against: (1) The State Juvenile Services Administration (JSA) and three of its employees — Gary Holmes, Joseph Lochary, and Kenneth Smoot; (2) The Baltimore County Board of Education and two of its employees — Nancy Foulk and James Sydnor; (3) The Baltimore County Police Department and one of its employees — Thirkfield Guy; and (4) Psychology Consultants Associates (PCA), the four partners of that entity, and one employee, Gail Bartkovich. The thrust of the plaintiffs’ complaint, which we shall describe in more detail shortly, was that, in agreeing to participate in the foster care program, the Foors had made clear to JSA that they did not want a child who had a history of drug abuse, that Reiter in fact had a history of both drug abuse and criminal behavior, that JSA knew of that history but placed the child in the Foor home nevertheless without informing the Foors of Reiter’s history, and that Reiter was under the influence of drugs when he killed Anthony. The various defendants were charged with negligence and intentional infliction of emotional distress. ¹⁵⁶ From the beginning, the plaintiffs seemed to have great difficulty in complying with elementary rules of pleading and setting forth a clear and precise statement of their case. The initial complaint was dismissed by Judge Hinkel because it failed to contain “separately numbered paragraphs and counts” as required by Md.Rule 2-303. 1 That, we might add, was not the only defect in the pleading; it was, in the vernacular, a mishmash.

A first amended complaint, followed quickly by a second amended complaint, was then filed. They too attracted motions to dismiss or for summary judgment. Those motions came before Judge Fader who, on an initial review, was sufficiently perplexed as to require the plaintiffs to submit an outline of what the complaint was about. Even after receiving the outline, he noted that he had “never seen a pleading like this” and that “[i]t will have to be restated again in an amended complaint.” The net result of that hearing was (1) a dismissal of the county police department and its employee from the case and (2) a direction to file a third amended complaint against the other defendants.

Judge Fader’s near-parting comment was, “This pleading has to be cleaned up.” The plaintiffs tried two more times, with a third amended complaint and a subsequent amendment by interlineation to that complaint. That last complaint, as amended, was also dismissed, this time without leave to amend. Once again, the court found “vague language” but concluded that, “[tjroublesome though the inartful pleading may be to a Judge trying to sort out pleading requirements and to defense attorneys who must plead specifically to the allegations made, it represents the best that the Plaintiffs have to offer. And it is not enough.” The action was dismissed on the ground that the plaintiffs had failed to state a cause of ¹⁵⁷ action, for either negligence or intentional infliction of emotional distress, against any of the remaining defendants.

In this appeal, the plaintiffs urge that Judge Fader erred in his conclusions. Because some of the defendants stand in different positions, because the allegations against them are not uniform, and because some purport to enjoy defenses not available to others, we need to address them in separate groupings. I. JSA And Its Employees — Negligence Counts JSA and its three employees (Holmes, Smoot, and Lo-chary) were sued in Counts 1, 2, 3, and 10 of the final complaint. Gail Bartkovich, who, as we shall see, was apparently an employee of PCA, was also sued in those counts as well as in the counts addressed to PCA (Counts 7, 8, and 9).

Counts 1, 2, and 3 were based on negligence; Count 10 purported to charge intentional infliction of emotional distress; we shall consider that count later. Count 1 was a “survival” action brought by Anthony’s estate. See Md. Est. & Trusts Code Ann. § 7-401. In it, the estate charged that: (1) The Foors had made clear to Holmes, a JSA “representative,” that “the only condition they had for participation in the [foster care] program was that no child with a drug problem, past or present, should be placed in their home” and that Holmes, “the agent of JSA,” agreed to that condition; (2) In September, 1982, JSA caused Reiter to be placed in the Foor home; (3) Reiter had a “specific history of substance abuse including the ingestion of PCP, amphetamines, LSD, cocaine, qualudes, as well as the daily use of marijuana” and had “further exhibited criminal behavior which required his appearance before the Juvenile Court”; (4) “JSA, and its employees and agents, were aware of REITER’S drug abuse problem”; ¹⁵⁸ (5) The Foors “had no expertise or ability to deal with or recognize persons ingesting controlled dangerous substances” and “were not told of Reiter’s drug problem”; (6) Bartkovich, “a psychology consultant under contract with JSA,” who knew or should have known of Reiter’s substance abuse problem, “encouraged” the Foors to accept Reiter into their home; (7) Smoot, an employee of JSA, “negligently obtained REITER’S release from the Maryland Training School for placement in foster care”; Lochary “was REITER’S counselor with JSA”; (8) As a result of the defendants’ negligence, Reiter, while under the influence of “alcohol and/or controlled dangerous substances” killed Anthony on February 20, 1983; (9) That negligence consisted of: (i) Removing Reiter from a detention facility and placing him in the community when it was unsafe to do so; (ii) Placing Reiter with the Foors in contravention of the condition they imposed; (iii) Failing to warn the Foors that Reiter had a drug problem and that “the threat of a serious danger of violence to them may exist”; (iv) Failing to supervise and treat Reiter “in a meaningful manner,” to “competently render services” to Reiter, and to render “proper medical and support services pursuant to a contract, with the FOORS as beneficiaries of the contract”; and (10) JSA did not enjoy sovereign immunity in that (i) Sovereign immunity was waived through the enactment of the Tort Claims Act, citing to Md. State Gov’t Code Ann. § 12 — 104(a); (11) A claim had been made to and denied by the State Treasurer; and (iii) “[A]ll Defendants heretofore mentioned were either healthcare or healthcare related employees of or agents of ¹⁵⁹ or under contract with JSA, for healthcare services and were being paid in whole or in part by State funds.” In Counts 2 and 3, Anthony’s parents were the plaintiffs.

Count 2 was a “wrongful death” action (Md.Cts. & Jud. Proc.Code Ann. § 3-904); in Count 3, the parents sought recovery for their own injuries and damages flowing from Anthony’s death. No new substantive allegations were made in those counts; the allegations of Count 1 were incorporated by reference. A. Sovereign Immunity — JSA JSA, Holmes, Smoot, and Lochary moved to dismiss Counts 1, 2, and 3 of the complaint on the ground that those counts failed to state a cause of action.

As noted, the Foors specifically alleged that any sovereign immunity possessed by JSA had been waived by the enactment of the Tort Claims Act, in particular Md. State Gov’t Code Ann. § 12-104(a), and neither JSA nor its employees took issue with that averment. None of them raised the issue of sovereign or governmental immunity in the Circuit Court, and the court, though observing that the naming of State and local agencies “raises issues of governmental immunity,” decided that, in light of the fact that it was dismissing the complaint on the merits, it need not address the immunity issues. In this appeal, JSA and its employees have decided to press the issue of immunity. They urge that, as whatever cause of action the estate and the Foors may have arose, at the latest, in 1983, the question of immunity must be determined in accordance with the law then in effect.

The law at that time, they point out, was codified in Md.Cts. & Jud.Proc.Code Ann. §§ 5-403 and 5-404. With minor amendments not relevant here, those sections were part of the initial Tort Claims Act enacted by the Legislature in 1981 (1981 Md.Laws, ch. 298). Section 5-403(a) provided that, subject to certain limitations set forth in § 5-403(b), ¹⁶⁰ “the immunity of the State from suit in the courts of this State and liability in tort is waived in the following actions to the extent and in the amount that the State is covered by a program of insurance established by the Treasurer pursuant to § 27 of Article 95.” There followed then six categories of actions to which the waiver applied, only one of which, the parties agree, could have any possible application to the case at bar. That was § 5-403(a)(2) — “[a]n action to recover damages caused by the negligence of a health care employee of a State facility or institution or by a doctor, nurse, dentist, or related health care personnel employed by the State.” JSA insists that, despite the plaintiffs’ averment that the JSA employees were “either healthcare or healthcare related employees,” they in fact were not such employees and that § 5-403(a)(2) therefore doesn’t apply.

On that basis, JSA urges that it is immune from suit. The plaintiffs’ singular response is that JSA is not entitled to raise a sovereign immunity defense for the first time on appeal. They do not otherwise contest JSA’s position on this issue. Both sides are wrong.

A State agency may raise this defense for the first time on appeal, although it is hardly fair, or even “good lawyering” to do so; as we shall see, however, it is not the 1981 law that governs in this case but the expanded waiver of immunity that came about in 1985. The State’s ability to raise this defense for the first time on appeal was made clear in Board v. John K. Ruff Inc., 278 Md. 580 , 366 A.2d 360 (1976). At 583, 366 A.2d 360 , the Court explained: “It is of no moment that the matter of sovereign immunity was not raised below by the pleadings or otherwise. We made clear in Bd. of Education v. Alcrymat Corp., 258 Md. 508, 516 , 266 A.2d 349, 353 (1970) that .. the law is well established that counsel for the State or one of its agencies may not either by affirmative action or by failure to plead the defense, waive the defense of governmental immunity in the absence of express statu ¹⁶¹ tory authorization, or by necessary implication from a statute____’ We must consider whether the doctrine of sovereign immunity is applicable in this case even though it was not previously raised by the parties.” (Footnote omitted.) The question then becomes, what immunity do JSA and its employees have?

As noted, JSA and its employees claim that the 1981 law governs, although they give no reasons and cite no authority for that proposition. It is true that, under any reading of the complaint, the causes of action attempted to be pled arose sometime in 1983. The initial complaint was filed in February, 1986, however; the third amended complaint was filed in April, 1987. By 1985 Md.Laws, ch. 538, the Legislature greatly expanded the Tort Claims Act, and with it the waiver of sovereign immunity.

In place of the six categories of actions for which immunity had been waived in 1981, the 1985 law, codified in Md. State Gov’t Code Ann. § 12-104, 2 waived the immunity of the State and its units “as to a tort action, in a court of the State, to the extent of insurance coverages under Article 95, § 27(d) of the Code [since recodified as Title 9 of the State Finance and Procurement article].” The only limitations on that waiver, aside from the insurance coverage, were those stated in § 12-104(b), the only relevant one, as to JSA, being the retention of sovereign immunity against punitive damages. There is a legitimate question of whether the 1981 law or the 1985 law applies to this action. As is not uncommon, one can find well-venerated rules of statutory construction that pull in opposite directions. See Kaczorowski v. City of Baltimore, 309 Md. 505, 512 , 525 A.2d 628 (1987).

On the one hand, statutes in derogation of the common law, and ¹⁶² especially those in derogation of sovereignty, are usually construed strictly. See Bruce v. Dyer, 309 Md. 421, 431-32 , 524 A.2d 777 (1987); 3 Sutherland, Stat. Const. § 62.01 (4th ed.). On the other hand, the Tort Claims Act, and the waiver of immunity encompassed by it, is in the nature of remedial legislation that the General Assembly itself has declared should be “construed broadly, to ensure that injured parties have a remedy.” Md. State Gov’t.Code Ann. § 12-102. The most cardinal of all the rules of construction, of course, is that which directs that we endeavor to ascertain and then follow the legislative intent.

One indication of that intent is § 12-102, requiring a broad reading of the statute favorable to the claimant. There is another, even more specific, indication, entirely consistent with the approach stated in § 12-102 — a comparison of the “effective date” provision of the 1985 Act with counterpart provisions in earlier waivers of sovereign immunity by the General Assembly. The first broad waiver of sovereign immunity by the Legislature in modern times came about in 1976 when, by 1976 Md.Laws, ch. 450, the Legislature precluded the State and its agencies and political subdivisions from raising the defense in an action based on written contract. 3 In enacting that statute, the Legislature was well aware that it was breaking new ground (see the “Whereas” clauses included in the session law as a prelude to the statute itself), and it therefore carefully added a provision “[t]hat this Act shall not apply to any action based on a contract entered into or executed prior to the effective date of this Act.” 1976 Md.Laws, ch. 450, § 6. It made crystal clear, in other words, that the waiver was to be entirely prospective and ¹⁶³ that the relevant event for that purpose was not the filing of the action but the contract itself.

A similar approach was taken with the initial enactment of the Tort Claims Act in 1981. Not only did the Legislature provide for a delayed effective date of the Act (the bill was passed in the 1981 session of the Legislature and was approved by the Governor in May, 1981, but did not take effect until July 1,1982) but expressly provided that the Act “applies only to causes of action arising on or after July 1, 1982.” 1981 Md.Laws, ch. 298, § 2. Indeed, the Legislature added that provision by amendment to the bill during the legislative process. In sharp contrast to this approach followed in 1976 and 1981, when enacting the 1985 law, the Legislature omitted a provision of that type and simply stated that “this Act shall take effect July 1, 1985.” 1985 Md.Laws, ch. 538, § 3.

It would be difficult for us to conclude that this was the product of inadvertence. The bill was given careful and thorough consideration; it was requested by the State Treasurer, who played a major role in implementing the Tort Claims Act, see Gardner v. State, 77 Md.App. 237 , 549 A.2d 1171 (1988), and was supported by the Attorney General, who is responsible for defending these claims; the proposal was considered by the House Judiciary Committee during the 1984 summer recess at the request of the Legislative Policy Committee and was reviewed and commented on by the Maryland Trial Lawyers’ Association, Inc. We assume that the Legislature was aware of the special provisions that it had added to the 1976 and 1981 bills, that it fully understood that the 1985 bill represented a significant enlargement of the waiver of immunity, in terms of both the kinds of actions to which the waiver would apply and the amount of damages for which the State would become liable, and that it was also aware of its direction, specified in § 12-102, that the Tort Claims Act be given a broad construction favorable to claimants. With that background, and given the fact that a waiver of immunity is more of a remedial than a substantive measure, we con- ¹⁶⁴ elude that the Legislature intended the expansion to apply to actions filed on or after July 1, 1985, and not just to actions accruing after that date. 4 In reaching this conclusion, we are not unaware of Kee v. State Highway Admin., 313 Md. 445 , 545 A.2d 1312 (1988). There, as here, the cause of action arose prior to July 1, 1985, but the complaint was filed after that date, and yet the Court treated the action as governed by the pre-1985 law.

We observe in that regard, however, that (1) the issue presented in Kee was not whether the 1985 law applied to the pre-1985 claim but whether the extent of the State’s insurance was to be judged as of the time the cause of action accrued, the time the action was filed, or the date a judgment was entered; and (2) neither the Court of Appeals nor this Court in its earlier consideration of Kee, 68 Md. App. 473 , 513 A.2d 930 (1986), ruled on whether the 1985 act could or should apply. 5 We therefore do not regard Kee as a precedential holding on this issue. ¹⁶⁵ Application of the 1985 law does clearly preclude any punitive damages against JSA; to that extent, sovereign immunity still exists. § 12-104(b). B. Merits Of The Complaint — JSA We have already recounted some of the Circuit Court’s frustration with the pleadings filed by the plaintiffs. That frustration is understandable; after five tries, the complaint remains, in many respects, fragmented, ambiguous, conclusory, imprecise, and full of gaps. It is not a model to be emulated.

The question, however, is whether it is legally sufficient. The applicable standard in that regard was succinctly stated in Lamb v. Hopkins, 303 Md. 236, 241 , 492 A.2d 1297 (1985): “Three basic elements are necessary to state a cause of action in negligence. First, the defendant must be under a duty to protect the plaintiff from injury. Second, the defendant must fail to discharge that duty.

Third, the plaintiff must suffer actual loss or injury proximately resulting from that failure.” See also Scott v. Watson, 278 Md. 160, 165 , 359 A.2d 548 (1976); Peroti v. Williams, 258 Md. 663, 669 , 267 A.2d 114 (1970); Prosser and Keeton on Torts § 30 (5th ed. 1984). The plaintiffs assert in Count 1 (and, through incorporation, in Counts 2 and 3 as well) that, as a condition to their participation in the foster care program, the Foors made clear to JSA that no child with a drug problem, past or present, was to be placed in their home. They also aver that JSA agreed to that condition. That, we think, suffices to charge a duty on the part of JSA to the Foors not to place such a child in their home. 6 There can be little doubt ¹⁶⁶ that the complaint charges a breach of that duty — that, despite its agreement, JSA (1) placed Reiter in the Foor home knowing that he had a “specific history of substance abuse, including the ingestion of POP, amphetamines, LSD, cocaine, qualudes,” and marijuana, and knowing also that he had “exhibited criminal behavior which required his appearance before the Juvenile Court,” and (2) concealed Reiter's drug history from the Foors.

Strewn among the allegations in Count 1 also appear embryonic attempts at articulating other duties and breaches as well — a failure to supervise Reiter “in a meaningful manner” or to “competently render services to Reiter” or to render “proper medical and support services pursuant to a ¹⁶⁷ contract, with the Foors as beneficiaries of the contract.” That kind of imprecise, conclusory language does not suffice to allege other, independently actionable duties. We therefore reject any assertion that the plaintiffs have adequately pled an action based on the principles enunciated in Restatement (Second) of Torts § 315 (1977). The only duty, and breach, adequately pled in Counts 1, 2, and 3 was to refrain from placing a child with a history of substance abuse in the Foor home. JSA and its employees concede that the complaint adequately alleges actual injury.

The issue, really, is the required nexus between the duty and breach and that injury. The connecting element, in this context, is that of foreseeability. Some courts and commentators regard foreseeability as an aspect of the “duty” that must be shown; others view it in the context of “probable cause” of the injury. In either case, it boils down to whether the harm that occurred was something that (1) the defendant could have foreseen and had a duty to protect against and (2) resulted from the defendant’s breach of that duty.

See, in general, Henley v. Prince George’s County, 305 Md. 320, 333-37 , 503 A.2d 1333 (1986). JSA maintains that Anthony’s murder was not a foreseeable event — that, even with the knowledge it allegedly possessed about Reiter, it had no reason to expect that he was violent or would kill anyone in the Foor home. That is not what the notion of foreseeability requires, however. Maryland has adopted the principle that “Whether foreseeability is being considered from the standpoint of negligence or proximate cause, the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable.

Rather, the question is whether the actual harm fell within a general field of danger which should have been anticipated.” Segerman v. Jones, 256 Md. 109, 132 , 259 A.2d 794 (1969) (quoting from McLeod v. Grant County School Dist, 42 Wash.2d 316 , 255 P.2d 360 (1953)); see also Moran v. ¹⁶⁸ Faberge, 273 Md. 538, 551 , 332 A.2d 11 (1975) and Dalmo Sales of Wheaton v. Steinberg, 43 Md.App. 659, 672-76 , 407 A.2d 339 , cert. denied 286 Md.