Heffner v. Montgomery County

³³⁰ GARRITY, Judge. This appeal presents us with the question of whether Montgomery County (appellee) may successfully assert a defense of governmental immunity to a claim for injuries sustained by Janice E. Heffner (appellant) 1 when she slipped and fell on the lobby floor of the Montgomery County Judicial Center (courthouse). In the Circuit Court for Montgomery County, appellant argued that appellee implicitly waived its immunity relative to the courthouse by its enactment of the Montgomery County Building Code. Mont.

County Code, § 8 ei seq. Appellee, of course, contended that the enactment of the building code in no way effected a waiver of its governmental immunity. The trial ■ court concurred with appellee’s position and dismissed with prejudice appellant’s complaint against the appellee. From that dismissal, appellant noted this timely appeal asserting: 1.

That the circuit court erred in ruling, as a matter of law, that the courthouse was a governmental function; and 2. That the circuit court erred in not ruling that appellee waived its immunity relative to the courthouse by virtue of its enactment of the building code. Facts 2 On 29 November 1984, appellant was in the employ of the State of Maryland working as a Support Enforcement Officer in the Montgomery County Courthouse. At approximately 8:15 a.m. appellant slipped and fell on the court ³³¹ house’s lobby floor, sustaining serious and permanent injuries primarily to her back, for which she has required extensive and costly medical attention.

Her injuries also left her unable to work, resulting in a loss of income. 3 Appellant filed a complaint in the Circuit Court for Montgomery County against appellee, the owner of the courthouse; Blake Construction, Inc., the builder of the courthouse; and Rockville Glass Service, Inc., the maintenance company responsible for the repair of the courthouse’s skylights. The complaint asserted that appellant slipped and fell because all three defendants were negligent in permitting a skylight in the roof over the courthouse lobby to leak water, thereby causing the lobby floor to be wet and dangerous. The complaint against appellee consisted of three counts: count one—appellant, on her own behalf, claimed damages of two million dollars for the injuries she sustained; count two—appellant and her husband, individually and as husband and wife, sought damages of one million dollars for loss of consortium; count three—appellant’s children, individually and by guardians and next friends, asked for one million dollars in damages for loss of maternal services. Appellee answered the appellant’s complaint asserting its governmental immunity as to counts 1 and 2.

As to count 3, the appellee moved for its dismissal. On 9 July 1986 the circuit court granted the appellee’s motion and dismissed count 3 with prejudice. Following that dismissal, the circuit court held two hearings relative to the appellee’s assertion that counts 1 and 2 should be dismissed on governmental immunity grounds. On 10 July 1987, the circuit court granted the appellee’s motion and dismissed with prejudice counts 1 and 2.

As a result of that dismissal, the appellee was no longer a party to the case as all the counts against it ³³² had been dismissed with prejudice. All counts against the appellee having been dismissed, the circuit court ordered that a final judgment be entered in favor of the appellee against the appellant pursuant to Md. Rule 2-602(b) thereby permitting this appeal to be brought despite the fact that the appellant’s claims against the other defendants are still unresolved. See, Hatzinicolas v. Protopapas, 73 Md.App. 271, 273-74 , 533 A.2d 1311 (1987), cert. granted, 312 Md. 196 , 539 A.2d 230 (1988). Law I. Appellant asserts that the circuit court erred when it ruled, as a matter of law, that operation and maintenance of the courthouse was a governmental function.

Appellant contends that the determination of whether operating the courthouse is to be deemed a governmental or a proprietary function is a factual one. Specifically, appellant argues that this factual determination required an evidentiary hearing to determine whether appellee derived a profit from its operation of the courthouse. We disagree with appellant’s position and shall explain. “The king can do nothing wrong.” Browne’s Blackstone’s Commentaries, p. 78. It is from this premise that England created the common law doctrine of sovereign immunity, from whence Maryland imported its concept of governmental immunity.

See, Godwin v. County Commissioners of St. Mary’s County, 256 Md. 326 , 260 A.2d 295 (1970). The doctrine of sovereign or governmental immunity, 4 in its essence, bars tort litigation against a sovereign, ³³³ i.e., a government. The Maryland doctrine has survived repeated challenges over the years and remains a formidable obstacle to those who attempt to sue a governmental entity. Leese v. Baltimore County, 64 Md.App. 442, 477 , 497 A.2d 159 , cert. denied, 305 Md. 106 , 501 A.2d 845 (1985).

Consequently, the doctrine of governmental immunity is alive and well in Maryland today. See, e.g., Clea v. Mayor and City Council of Baltimore, 312 Md. 662 , 541 A.2d 1303 (1988). The doctrine, however, does not treat all governmental units equally. The doctrine, except for various erosions by statute, see, e.g., Md. State Gov’t Code Ann. § 12-101 et seq., grants the State a near-complete immunity from tort litigation while municipalities and counties have a more limited immunity from such litigation.

See, Maryland-National Capital Park and Planning Commission v. Kranz, 308 Md. 618 , 521 A.2d 729 (1987); Katz v. Washington Suburban Sanitary Commission, 284 Md. 503 , 397 A.2d 1027 (1979) (state immunity); Tadjer v. Montgomery County, 300 Md. 539 , 479 A.2d 1321 (1984); Bradshaw v. Prince George’s County, 284 Md. 294 , 396 A.2d 255 (1979); American Structures v. Mayor and City Council of Baltimore, 278 Md. 356 , 364 A.2d 55 (1976) (county and municipal immunity). In the case sub judice, we are concerned with the law of immunity relative to a county. Counties have never been given immunity from contract actions; in tort actions, they are not immune with regard to those matters categorized as “proprietary” but are immune with regard to those matters categorized as “governmental.” Maryland-National Capital Park and Planning Commission v. Kranz, 308 Md. at 622 , 521 A.2d 729 ; Tadjer v. Montgomery County, 300 Md. at 546-550 , 479 A.2d 1321 ; Burns v. City of Rockville, 71 Md.App. 293, 297 , 525 A.2d 255 (1987). The distinction between “govern ³³⁴ mental” and “proprietary” functions has been described as illusory.

E. Eyring Co. v. City of Baltimore, 253 Md. 380, 382-383 , 252 A.2d 824 (1969); Mayor and City Council of Baltimore v. State, ex rel. Ahrens, 168 Md. 619, 624-625 , 179 A. 169 (1935). Notwithstanding the illusory nature of the distinction, the Court of Appeals has enunciated a test to aid in the determination of whether a function is “governmental” or “proprietary.” In Mayor and City Council of Baltimore v. State, ex rel. Blueford, 173 Md. 267 , 195 A. 571 (1937), the Court stated: Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument muring 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. 173 Md. at 276 , 195 A. 571 .

In Tadjer v. Montgomery County, supra, the Court of Appeals simplified the Baltimore test by stating it as: [W]hether the act performed is for the common good of all or for the special benefit or profit of the corporate entity. 300 Md. at 547 , 479 A.2d 1321 . Seizing upon the appearance of the word “profit” in both expressions of the test, appellant asserts that she should have been given an opportunity, as were the plaintiffs in Tadjer , to develop factually whether the courthouse operated at a profit for appellee. Tadjer is simply not apposite. It dealt with a type of operation, a landfill, that had never been adjudged to be a governmental function and which, depending upon the facts in a given case, might be operated either for profit or strictly for the common good.

Thus, a factual hearing was warranted in Tadjer . In the case sub judice, appellant is confronted with Harford County v. Love, 173 Md. 429 , 196 A. 122 (1938), in which the Court of Appeals stated: ³³⁵ The maintenance of a court house is a distinctive function of government. It is requisite for the convenient administration of public justice. The buildings devoted to that primary purpose in the counties are also customarily used by the county commissioners in the performance of their functions as the governing body of the county, and by other officials who are engaged in rendering essential public services.

The judicial and administrative purposes to which such buildings are devoted necessarily impress them with a governmental character. 173 Md. at 433, 196 A. 122 (emphasis added). The pellucid import of this language is that the function of a courthouse is, as a matter of law, a