Hines v. French

DAVIS, Judge. August 29, 2001, appellants 1 Mary Ann Hines and her husband Leon Hines filed an eight-count complaint in the Circuit Court for Harford County against appellees Deputy Sheriff John French, Sheriff Joseph Meadows, and Sergeant Gary Vernon of the Harford County Sheriffs Department, the Harford County Sheriffs Department, Harford County, the State of Maryland, Baltimore County 911 Dispatcher Jane Doe, Chief Terrence Sheridan of the Baltimore County Police Department, the Baltimore County Police Department (BCPD), and Baltimore County. Appellants alleged assault, battery, false imprisonment, false arrest, malicious prosecution, intentional infliction of emotional distress, negligence, and loss of consortium. ⁵⁴⁵ The BCPD, Baltimore County, and Chief Terrence Sheridan filed a Motion to Dismiss on September 18, September 24, and October 3, 2001, respectively. By orders dated October 16, 2001, the trial court granted the motions to dismiss of Baltimore County and Chief Terrence Sheridan.

Additionally, on October 31, 2001, the State of Maryland filed a Motion to Dismiss and Sheriff Meadows, Deputy French, Sergeant Vernon, the Harford County Sheriffs Department, and Harford County collectively filed a Motion to Dismiss and/or For Summary Judgment. The circuit court eventually ruled on the outstanding motions in a memorandum opinion and order filed on September 30, 2003, wherein the court granted the motion to dismiss of the BCPD and the State of Maryland. The court also granted the collective Motions to Dismiss and/or For Summary Judgment of Sheriff Meadows, Deputy French, Sergeant Vernon, the Harford County Sheriffs Department, and Harford County. Appellants filed their timely notice of appeal on October 29, 2003, presenting two questions for our review, which we combine into one question and rephrase as follows: Did the trial court err by granting appellees’ motions to dismiss and/or motion for summary judgment?

We answer appellants’ question in the affirmative and, therefore, reverse in part, and affirm, in part, the judgment of the circuit court. FACTUAL BACKGROUND On the evening of August 29, 1998, appellant was returning to her home in Harford County from a party in Baltimore City. She was traveling alone in a 1998 Dodge truck bearing Maryland license tag 17F118. As she proceeded eastbound on Route 40, Baltimore County 911 dispatch issued a “be on the lookout” for a green Dodge truck with Maryland license 17F118.

The report noted that the vehicle had been involved in a hit-and-run accident at the intersection of Mohrs Lane and Route 40 in Baltimore County—an intersection appellant would have crossed en route to Harford County. At approxi ⁵⁴⁶ mately 8:15 p.m., Deputy French, who had received the dispatch call, observed appellant traveling on Route 40 in Harford County and, consequently, he began to pursue her. At this point, the parties’ version of the events diverge into two conflicting accounts of appellant’s traffic stop and subsequent arrest. According to appellant, as she traveled in the right lane of the two eastbound lanes, she observed a police vehicle with flashing lights approach from the rear.

The vehicle pulled along side her truck and the police officer motioned for her to pull over, which appellant claims she “did as promptly as was possible, given the speed of the traffic and the need to pull off onto the right shoulder of the road.” After appellant pulled over, Deputy French, who was not in uniform, rapidly approached appellant’s vehicle with his gun pointed at her and ordered her to exit the truck. Appellant claims that, as she exited the vehicle, Deputy French “noted that she had TMJ scarst[ 2 ] on her right jaw, and that she must be in pain, as they were so fresh.” He then “grabbed her and threw her up against the side of the truck” and, “[ajfter slamming her head into the side of the truck, while laughing, [Deputy French] told [appellant] that it must have really hurt when her face hit the side of the truck.” Deputy French then “pulled her crippled left arm up behind her back and handcuffed her hands so tightly” that appellant suffered lacerations on her wrists and hands. It was not until after the handcuffs were secured that Deputy French told appellant that she was a suspect in a hit-and-run accident. Appellant asserts that she was subsequently placed in a police vehicle while Deputy French inspected her truck for damage.

She maintains that Deputy French became visibly irritated when he did not discover damage to her vehicle and that he refused to loosen her handcuffs despite her protests that they were too tight. Afterward, other officers from the Harford County Sheriffs Department arrived and appellant ⁵⁴⁷ was asked to submit to a breath test. She consented and several breath tests were performed but none indicated the presence of alcohol. Appellees present a dramatically different version of events concerning appellant’s traffic stop and arrest.

According to Deputy French, he followed appellant with his lights and siren on for approximately one mile, during which time he observed her erratically drive hallway onto the shoulder of the road three times. Trooper John Cook of the Maryland State Police joined the pursuit and, with his siren and lights activated, he pulled along side appellant, motioning for her to pull over. Appellant shook her head to indicate a negative response and continued driving. Shortly thereafter, however, appellant pulled over but would not exit the vehicle or place her hands out the window in view of the officers when prompted to do so by Deputy French.

As Deputy French approached appellant’s track, he noticed her reaching down on the inside of the truck door and, consequently, he drew his firearm and ordered her out of the vehicle. Appellant then complied with Deputy French’s orders and she was subsequently placed under arrest. Although preliminary breath tests administered at the scene did not produce any positive results, appellant admitted to Deputy French that she was taking pain medication for chronic pain associated with recent surgery. Appellant was transported to the Harford County Sheriff’s Department where she was issued three citations, charging her with failure to drive in designated lane, eluding police, and negligent driving.

She was released later that evening, after it was determined that she was not involved in a hit-and-run accident. Appellants returned to the sheriffs department four days later, on September 2, 1998, in an attempt to lodge an internal complaint against Deputy French. They spoke with Sergeant Vernon, assigned to the Harford County Sheriff Department’s Internal Affairs Division, but appellants assert that he refused to take their claim. Sergeant Vernon reportedly stated that they “should be thankful that the police officer pulled [appellant] over that night[ ] because she was in no condition to drive.” ⁵⁴⁸ On December 14, 1998, proceedings were conducted in the District Court of Maryland for Harford County regarding appellant’s three traffic citations.

Pursuant to an agreement between appellant and the prosecutor, the charge of eluding police was placed on the stet docket, a nolle prosequi was entered on the negligent driving charge, and a not guilty agreed statement of facts was presented on the charge of failure to drive in designated lane. Based on the not guilty agreed statement of facts, the district court found appellant guilty of failure to drive in designated lane. As noted, supra, appellants subsequently filed their complaint in the Circuit Court for Harford County on August 29, 2001. Following the trial court’s granting of appellees’ various motions to dismiss and for summary judgment, appellants filed an appeal.

LEGAL ANALYSIS Appellants contend that the trial court erred by granting appellees’ motions to dismiss and/or for summary judgment. Concerning the motions to dismiss, they aver that their complaint successfully stated causes of action for which relief could be granted in regard to all the counts alleged and appellees named in the complaint. Likewise, the court also erred by granting summary judgment of the remaining counts, maintain appellants, because there were disputes of material facts that were either disregarded or decided in favor of appellees. “In reviewing a motion to dismiss for failure to state a claim under Maryland Rule 2-322(b), trial and appellate courts must assume the truth of all well-pleaded, relevant, and material facts in the complaint and any reasonable inferences that can be drawn therefrom.” Allied Inv. Corp. v. Jasen, 354 Md. 547, 555 , 731 A.2d 957 (1999) (citing Bobo v. State, 346 Md. 706, 708 , 697 A.2d 1371 (1997)). “Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.” Bobo, 346 Md. at 709 , 697 A.2d 1371 .

Thus, we will ⁵⁴⁹ affirm the trial court only if the dismissal was legally correct. Jasen, 354 Md. at 555 , 731 A.2d 957 ; Bobo, 346 Md. at 709 , 697 A.2d 1371 . The trial court may grant summary judgment only when “there is no genuine dispute of material fact” and “the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(e); Bagwell v. Peninsula Regional Med. Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995). “ ‘In reviewing a grant of a summary judgment, we are first concerned with whether a genuine dispute of material fact exists’ and then whether the movant is entitled to summary judgment as a matter of law.” Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 71 , 782 A.2d 807 (2001) (quoting Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 113 , 753 A.2d 41 (2000)).

The purpose of summary judgment is to determine whether there are facts in dispute that must be resolved through a more formal resolution process, such as a trial on the merits. Eng’g Mgmt. Servs. v. Md. State Highway Admin., 375 Md. 211, 229 , 825 A.2d 966 (2003). Thus, in order to defeat a motion for summary judgment, the party opposing the motion must present admissible evidence demonstrating the existence of a dispute of material fact.

Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 386 , 693 A.2d 370 (1997). “ ‘A material fact is a fact the resolution of which will somehow affect the outcome of the case.’ ” Grimes, 366 Md. at 72 , 782 A.2d 807 (quoting King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985)). Moreover, “[i]n determining whether a summary judgment has properly been granted, an appellate court must consider the facts stated, and the proper inferences to be drawn therefrom, in the light most favorable to the party against whom the motion is made.” Burwell v. Easton Memorial Hospital, 83 Md.App. 684, 687 , 577 A.2d 394 (1990). If there is no dispute of material facts, then our role is to determine whether the trial court was correct in granting summary judgment as a matter of law. Tennant, 115 Md. ⁵⁵⁰ App. at 386, 693 A.2d 370 ; Beatty v. Trailmaster Products Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993).

Whether summary judgment is properly granted as a matter of law is a question of law and therefore review of the granting of summary judgment is de novo. Eng’g Mgmt. Servs., 375 Md. at 229-30 , 825 A.2d 966 . “The standard of appellate review of a summary judgment is whether it is ‘legally correct.’ ” Id. at 229 , 825 A.2d 966 . Assault The trial court granted appellees’ motion to dismiss appellants’ assault count against Deputy French and Sheriff Meadows ruling that the claim was barred because the statute of limitations had expired prior to the filing of their complaint.

Under Md.Code (2002 RepLVol.), Cts. & Jud. Proc. (C.J.) § 5-105, “[a]n action for assault, libel, or slander shall be filed within one year from the date it accrues.” The incident in question occurred on August 29, 1998 and appellants did not file their complaint until August 29, 2001—three years later. The trial court, therefore, was correct in granting appellees’ motion to dismiss the assault count.

Appellants’ assault claim was time-barred and, thus, even if the facts alleged could be established at trial, the assault claim was properly dismissed. 3 Battery, False Imprisonment, and False Arrest Deputy French and Sheriff Meadows were also named as the defendants in appellants’ counts for battery, false imprisonment, and false arrest. The trial court granted summary judgment in regard to all three counts after finding that Deputy French had legal justification to arrest appellant. In their brief, appellants assert that the court resolved factual disputes in reaching its conclusion that Deputy French had legal justification to arrest and, therefore, they aver that summary judgment was inappropriate. ⁵⁵¹ False imprisonment, false arrest, and assault and battery “can only occur when there is no legal authority or justification for the arresting officer’s actions.” Williams v. Prince George’s County, 112 Md.App. 526, 554 , 685 A.2d 884 (1996); see also Ashton v. Brown, 339 Md. 70, 119-21 , 660 A.2d 447 (1995). 4 Legal justification was defined in Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 655 , 261 A.2d 731 (1970), wherein the Court of Appeals stated: When the cases speak of legal justification we read this as equivalent to legal authority....

Whatever technical distinction there may be between an “arrest” and a “detention” the test whether legal justification existed in a particular case has been judged by the principles applicable to the law of arrest. Relying on her version—which is disputed by Deputy French—of what transpired on August 29, 1998, appellant, in essence, argues that Deputy French’s sole legal justification to arrest was based on the charges of failure to drive in designated lane, eluding police, and negligent driving. Appellants’ rendition of the facts indicate that appellant was unimpaired, stayed in her lane of traffic, promptly pulled over upon seeing Deputy French’s motioning, and immediately complied with all of his commands. Deputy French’s recounting of the incident, however, suggests that he pursued appellant for over one mile with his emergency lights and siren activated.

He maintains that appellant drove erratically on and off the road, that Trooper Cook pulled along side her vehicle and motioned for her to stop but that she refused and, when appellant finally did stop, she was unwilling to exit her vehicle. ⁵⁵² Although appellant relies on her version of what occurred prior to her exiting her vehicle, the critical material fact which she does not dispute is that Deputy French began to pursue appellant in response to information relayed to him from the 911 dispatch—namely, that her Dodge truck, with Maryland license plate number 17F118, had been involved in a hit-and-run accident. Md.Code (2002 Repl.Vol.), Transp. (T.P.) § 26-202, titled, “Power to Arrest,” provides, in pertinent part- ía) In general.—A police officer may arrest without a warrant a person for a violation of the Maryland Vehicle Law, including any rule or regulation adopted under it, or for a violation of any traffic law or ordinance of any local authority of this State, if: (3) The officer has probable cause to believe that the person has committed the violation, and the violation is any of the following offenses: (vi) Any offense that caused or contributed to an accident resulting in bodily injury to or death of any person; Probable cause has been defined as “ ‘facts and circumstances sufficient to warrant a prudent (person) in believing that the (suspect) has committed or was committing an offense.’ ” Okwa v. Harper, 360 Md. 161, 184 , 757 A.2d 118 (2000) (quoting DiPino v. Davis, 354 Md. 18, 32 , 729 A.2d 354 (1999)). Deputy French had legal justification to arrest appellant under T.P. § 26-202(a)(3)(vi) because he had probable cause to believe that she had “caused or contributed to an accident resulting in bodily injury to or death of any person.” It is undisputed that the information issued by the 911 dispatch included the make and model of appellant’s truck, her Maryland license tag number, and her approximate location on Route 40.

Deputy French had no reason to disbelieve the information and, upon observing appellant driving on Route 40 in a Dodge truck with tag number 17F118, he had sufficient probable cause to stop and place her under arrest. Conse ⁵⁵³ quently, we hold that, viewing all facts in a light most favorable to appellants, Deputy French and Sheriff Meadows were entitled to judgment as a matter of law concerning appellants’ counts for battery, false imprisonment, and false arrest. Malicious Prosecution Under count five of their complaint, appellants alleged that Deputy French and Sheriff Meadows instituted a malicious prosecution by issuing the three traffic citations, which as noted, supra, charged appellant with failure to drive in designated lane, eluding police, and negligent driving. The circuit court granted summary judgment on the malicious prosecution count, holding that one of the four elements of the tort had not been alleged in the pleadings.

In order to establish the tort of malicious prosecution, a plaintiff must show: 1) the defendant instituted a criminal proceeding against the plaintiff; 2) the criminal proceeding was resolved in the plaintiffs favor; 3) the defendant did not have probable cause to institute the proceeding; and 4) the defendant acted with malice or a primary purpose other than bringing the plaintiff to justice. Okwa, 360 Md. at 183 , 757 A.2d 118 (citing DiPino, 354 Md. at 54 , 729 A.2d 354 ). It is not contested that Deputy French issued appellant three traffic citations and, thus, that criminal proceedings were instituted against her. The disposition of two of the citations, however, was not resolved in her favor.

Appellant was found guilty of the charge of failure to stay in designated lane and was fined seventy-three dollars. Additionally, pursuant to an agreement with the prosecutor, the charge for eluding police was placed on the stet docket. A stet on a charge resulting from an agreement with the prosecutor is not a verdict in favor of appellant. See State v. ⁵⁵⁴ Meade, 101 Md.App. 512, 531-33 , 647 A.2d 830 (1994).

Because the pleadings and factual documents before the trial court indicated that the second element for malicious prosecution had not been satisfied, the court was correct in granting summary judgment regarding the charges of failure to stay in designated lane and eluding police. The citation for negligent driving, however, had a different outcome—namely, a disposition in appellant’s favor. As discussed, supra, the agreement between appellant and the prosecutor also resulted in a nol pros of the negligent driving charge. A nol pros acts as a dismissal and, thus, the prosecution of appellant for negligent driving ended in her favor.

Therefore the issue in the instant case becomes whether appellant has satisfied the latter two elements of malicious prosecution. Under the third element, appellant may only recover if she demonstrates the absence of probable cause for instituting the prosecution. In deciding whether probable cause was present, the circuit court concluded: Additionally, a nolle pros entered on a charge is not “crystalline[.]” Allen [v. Bethlehem Steel Corp., 76 Md.App. 642, 651 , 547 A.2d 1105 (1988)]. The court must look at the intent of the State’s decision to determine whether probable cause existed.

Id. In the present case, probable cause did exist to charge [appellant] with negligent driving. [Appellant] was found guilty of failure to stay in a designated lane, which would qualify as negligent driving. Therefore, because the prosecution did not terminate in [appellant’s] favor, [s]ummary [j]udgment must be granted for the [defendants on Count V, malicious prosecution. Preliminarily, a nol pros is not a verdict in favor of appellant.

The trial court incorrectly applied the principles cited in Allen because that case does not address whether a nol pros is a termination of proceedings in favor of the plaintiff but, instead, concerns whether a nol pros may act as evidence that a defendant lacked probable cause to institute the prosecution. We explain. ⁵⁵⁵ Some forms of termination of proceedings in favor of the accused may be considered as evidence of want of probable cause. Exxon Corp. v. Kelly, 281 Md. 689, 694 , 381 A.2d 1146 (1978). For example, the discharge of an accused at the preliminary hearing of a criminal charge is evidence of lack of probable cause because “ ‘it is the function of (a magistrate) to pass upon the sufficiency of the case against the accused to justify prosecution.’ ” Id.

(quoting Banks v. Montgomery Ward & Co., 212 Md. 31, 40 , 128 A.2d 600 (1957)). The effect of the entry of a nol 'pros, however, is not crystalline and “the court must look at the circumstances surrounding the State’s decision so as to determine whether there was an absence of probable cause.” Allen, 76 Md.App. at 651 , 547 A.2d 1105 (citing Exxon, 281 Md. at 695 , 381 A.2d 1146 ). Applying Exxon and Allen to the case sub judice, we hold that the facts and circumstances surrounding the prosecutor’s decision not to prosecute appellant for negligent driving do not support the entry of the nol pros as evidence of insufficient probable cause. The nol pros was entered as part of an agreement wherein appellant agreed to read a not guilty statement of facts on the charge of failure to stay in designated lane.

In the district court proceedings, the following colloquy occurred: [PROSECUTOR]: Your Honor, it is my understanding that with regard to [appellant], she is going to pay out the [failure to stay in designated lane] charge. I believe she will do that right now. THE COURT: Okay. [PROSECUTOR]: We will stet the fleeing and alluding [sic] charge and nol pros the negligent driving. THE COURT: Okay. [PROSECUTOR]: We would just need verification that she pays out the amount claimed. [APPELLANT’S COUNSEL]: [Prosecutor], your offer was to [PROSECUTOR]: It is what I just said. ⁵⁵⁶ [APPELLANT’S COUNSEL]:—(continuing) do a not guilty on the— [PROSECUTOR]: My understanding was that your client was going to pay it out, so then we weren’t even going to have a not guilty statement of facts. [APPELLANT’S COUNSEL]: I was going to try to appeal to the [c]ourt based on her long driving record to consider a PBJ after the [c]ourt made its determination. [PROSECUTOR]: That’s fine.

THE COURT: Okay. So you are going to stet the negligent driving? [PROSECUTOR]: We are going to stet the fleeing and alluding, [sic] 21-904B, nol pros the negligent driving, and do a not guilty statement of facts on the [failure to stay in designated lane charge]. There is no evidence to suggest that the prosecutor entered a nol pros on the negligent driving charge for any reason other than to reach an agreement with appellant. Consequently, the entry of the nol pros does not act as evidence that probable cause was lacking.

Our inquiry, however, does not end with the discussion of Allen . Although the entry of the nol pros in the instant case does not act as evidence of insufficient probable cause, appellant does provide other evidence which would render summary judgment inappropriate. As explained above, appellants set forth facts that suggested Deputy French did not have probable cause to charge appellant with negligent driving. If a fact finder believed appellant’s version that she was not erratic and that she stayed in her lane of travel at all times, then Deputy French lacked probable cause to charge her and appellant could satisfy the third element of malicious prosecution.

Furthermore, the fourth element of malicious prosecution requires a determination of whether the defendants acted with malice. “[S]ummary judgment is generally ⁵⁵⁷ inappropriate when matters such as knowledge, intent, and rfiotive are at issue.” Okwa, 360 Md. at 178 , 757 A.2d 118 . The credibility of witnesses and their intent or motive are issues to be decided by a fact finder. A jury could reasonably infer from appellant’s version of the events that Deputy French issued the negligent driving citation as a means of insulating himself from liability after not finding damage on appellant’s vehicle and to supply probable cause after it had evaporated by reason of discovering appellant was not involved in the reported hit-and-run. Therefore, we hold that summary judgment was not appropriate in disposing of appellants’ malicious prosecution claim 5 as it related to the negligent driving charge.

Intentional Inñiction of Emotional Distress Under their claim for intentional infliction of emotional distress, appellants listed Deputy French, Sheriff Meadows, Sergeant Vernon, Jane Doe, Chief Sheridan, and Baltimore County as defendants. With regard to Deputy French, Sheriff Meadows, and Sergeant Vernon, the circuit court granted their motion for summary judgment after finding that appellants’ alleged facts did not constitute extreme and outrageous conduct. Jane Doe was dismissed from the case pursuant to Baltimore County’s motion to dismiss. 6 Likewise, Chief Sheri ⁵⁵⁸ dan and Baltimore County were also dismissed from the case pursuant to their respective motions to dismiss. Addressing the tort of intentional infliction of emotional distress, the Court of Appeals said in Kentucky Fried Chicken Nat’l Mgmt.

Co. v. Weathersby, 326 Md. 663, 670-71 , 607 A.2d 8 (1992): The extraordinary feature of the tort ... is its insistence upon “extreme and outrageous conduct.” In fact, this element is, in large respect, the entire tort. It both limits the reach of the tort and dominates the proof of its elements. The outrageous requirement means there is no liability simply for the intentional infliction of emotional distress. If a defendant intends to cause a plaintiff emotional distress and succeeds in doing so, the defendant is nonetheless not liable unless his or her conduct is also extreme and outrageous.

(Citation omitted.) What constitutes extreme and outrageous conduct was explained by the Court as follows: We reemphasized that the tort is to be used sparingly and only for opprobrious behavior that includes truly outrageous conduct.... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Id. at 670 , 607 A.2d 8 (citing Batson v. Shiflett, 325 Md. 684, 734-35 , 602 A.2d 1191 (1992)). Considering the conduct alleged to be intentional, extreme, and outrageous: 1) Deputy French pulled appellant over because he believed she was a suspect in a hit-and-run accident, 2) that he observed scars on her face from a recent ⁵⁵⁹ surgery but disregarded the injuries during the arrest, 3) that he laughed at the pain he inflicted, and 4) that he handcuffed her too tightly and would not loosen the handcuffs when requested by appellant.

Although such behavior, if true, was inappropriate, it is not tantamount to “atrocious[ ] and utterly intolerable” behavior that goes “beyond all possible bounds of decency.” Likewise, assuming Sergeant Vernon refused to take appellants’ internal complaint when they attempted to file it at the sheriffs department, the refusal, although possibly improper, did not rise to the level necessary to trigger liability under the tort of intentional infliction of emotional distress. Turning to allegations against Jane Doe, Chief Sheridan, and Baltimore County, appellants suggested that Jane Doe’s conduct “was intentional, extreme, and outrageous in failing to investigate the veracity of any of the information provided before transmitting it to Harford County with a false report that the Dodge truck driven by [appellant] ... had been involved in a hit-and-run automobile accident.” Chief Sheridan—who the complaint contends was responsible for the “hiring, training, and supervision” of the 911 center personnel—and Baltimore County are apparently included under the theory of respondeat superior. In our opinion, appellants have asserted a negligence claim. “Negligence is the failure to use reasonable care under the circumstances.” Williams, 112 Md.App. at 551 , 685 A.2d 884 . Although appellants make use of the phrase “intentional, extreme, and outrageous,” their claim centers on Jane Doe’s “fail[ure] to investigate the veracity” of the information provided to Deputy French and, thus, the appropriate common law claim is negligence.

Simply including the signature language of an intentional tort does not cause a negligence claim to transform into an intentional tort. Moreover, there are no other averments contained in the complaint which explain how Jane Doe’s conduct constituted an intentional act. Consequently, we shall review the granting of the motions to dismiss of Chief Sheridan and Baltimore County, infra, on the premise that appellants’ cause of action against Jane Doe was for negligence. ⁵⁶⁰ Negligence The defendants identified under count seven of appellants’ complaint included Deputy French, Sheriff Meadows, Sergeant Vernon, Harford County, Jane Doe, Chief Sheridan, BCPD, Baltimore County, and Maryland. 7 Summary judgment was granted for Deputy French, Sheriff Meadows, and Sergeant Meadows because, according to the circuit court, Deputy French and Sergeant Vernon were protected by the umbrella of public official immunity. Also as explained, supra, the court granted the motions to dismiss of Chief Sheridan and Baltimore County, thereby dismissing Jane Doe, Chief Sheridan, and Baltimore County.

Finally, the BCPD and Maryland were dismissed pursuant to their motions to dismiss. Under common law immunity, public officials are entitled to qualified immunity from negligence claims. Ashton, 339 Md. at 117-18 , 660 A.2d 447 ; Parker v. State, 337 Md. 271, 285 , 653 A.2d 436 (1995); Williams, 112 Md.App. at 549-50 , 685 A.2d 884 . In Ashton , the requirements for common law qualified immunity were set forth by the Court of Appeals as follows: “Before a government representative in this State is relieved of liability for his [or her] negligent acts, it must be determined that the following independent factors simultaneously exist: (1) the individual actor, whose alleged conduct is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he [or she] was performing discretionary, as opposed to ministerial, acts in furtherance of his [or her] official duties....

Once it is established that the individual is a public officer and the tort was committed while per ⁵⁶¹ forming a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability.” Ashton, 339 Md. at 116-17 , 660 A.2d 447 (quoting James v. Prince George’s County, 288 Md. 315, 323-24 , 418 A.2d 1173 (1980) (emphasis omitted)). In addition to common law immunity, the General Assembly has enacted the Maryland Tort Claims Act (MTCA), which broadened the qualified immunity coverage previously available only to public officials to include all State personnel. Md.Code (2002 RepLVoL), State Gov. (S.G.) § 12-101 8 ; Lee, 149 Md.App. at 70, 814 A.2d 86 .

Moreover, although the MTCA continued to grant qualified immunity to State personnel against negligence claims, it expanded coverage to all types of tort claims, including constitutional and intentional torts. C.J. § 5—522(b); Lee, 149 Md.App. at 83-84 , 814 A.2d 86 ; Ford v. Baltimore City Sheriffs Office, 149 Md.App. 107, 132-35 , 814 A.2d 127 (2002). The MTCA provides in pertinent part: (a) In general.—(1) Subject to the exclusions and limitations in this subtitle and notwithstanding any other provision of law, the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent provided under paragraph (2) of this subsection. (2) The liability of the State and its units may not exceed $200,000 to a single claimant for injuries arising from a single incident or occurrence.

(b) Exclusions and limitations.—Immunity is not waived under this section as described under § 5-522(a) of the Courts and Judicial Proceedings Article. S.G. § 12-104(a). Under S.G. § 12-105, the MTCA further states that “State personnel shall have the immunity from liability described ⁵⁶² under § 5-522(b) of the Courts and Judicial Proceedings Article.” Section 5-522 of the Courts and Judicial Proceedings Article provides, in part: (a) Tort liability—Exclusions from waiver under § 12-101 of the State Government Article.—Immunity of the State is not waived under § 12-104 of the State Government Article for: (1) Punitive damages; (2) Interest before judgment; (3) A claim that arises from the combatant activities of the State Militia during a state of emergency; (I) Any tortious act or omission of State personnel that: (i) Is not uñthin the scope of the public duties of the State personnel; or (ii) Is made with malice or gross negligence; (5) A claim by an individual arising from a single incident or occurrence that exceeds $200,000; or (6) A cause of action that law specifically prohibits. (b) Same—State personnel.—State personnel, as defined in § 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver.

(Emphasis added.) Accordingly, whether under common law qualified immunity or the statutory qualified immunity provided by the MTCA, Deputy French, Sergeant Vernon, and Sheriff Meadows may only avoid liability for a claim of negligence if their conduct was within the scope of the duties of State personnel and each acted without malice or gross negligence. For purposes of public official immunity under the common law or the MTCA, malice is defined as “ ‘an act without legal justifi ⁵⁶³ cation or excuse, but with an evil or rancorous motive influenced by hate,’ the purpose being to deliberately and willfully injure the plaintiff.” Shoemaker v. Smith, 358 Md. 143, 163 , 725 A.2d 549 (1999) (quoting Leese v. Baltimore County, 64 Md.App. 442, 480 , 497 A.2d 159 (1985)). Additionally, “ ‘[ajctual malice does not always have to be shown with specificity; it can be inferred.’ ” Thacker v. Hyattsville, 135 Md.App. 268, 307 , 762 A.2d 172 (2000) (quoting Leese, 64 Md.App. at 480 , 497 A.2d 159 ). We frequently reject, however, attempts to rely on bare allegations that a particular act raises an inference of malice.

Lee, 149 Md.App. at 85 , 814 A.2d 86 . A plaintiff may not rely on the “mere existence of such an intent, motive, or state of mind issue to defeat summary judgment.” Thacker, 135 Md.App. at 301 , 762 A.2d 172 . “Because a defendant’s subjective intent is an element of the plaintiffs claim, the plaintiff must point to specific evidence that raises an inference that the defendant’s actions were improperly motivated in order to defeat the motion.” Id.; see also Lee, 149 Md.App. at 85 , 814 A.2d 86 . The facts in Williams, supra, are instructive on the issue of malice in contrast to the facts in the case at hand. There, appellant, driving his mother’s car, which had been stolen and consequently placed on the teletype, was stopped by police for suspected auto theft because authorities failed to remove the vehicle from the stolen vehicle list when it was recovered.

Concluding that none of