Holson v. State

CATHELL, Judge. Daniel F. Holson, appellant, appeals from an order by the Circuit Court for Prince George’s County dismissing his negligence suit. He presents two issues: 1. Whether Defendant State of Maryland and its agent, Gerald R. Turano, owed a duty of care to protect Plaintiff from the actions of a third party. 2.

Whether the alleged facts of the case were sufficient to present a question of fact as to whether Defendant’s agent owed a duty of care to protect Plaintiff from the actions of a third party. The Facts Appellant, who alleges he was intoxicated, was a passenger in a car operated by another person who was stopped and arrested for an alcohol-related driving offense. The arresting state trooper took the driver into custody and, according to appellant, left him at the scene of the stop. 1 Appellant apparently walked into the path of a vehicle and was struck. He sued the State of Maryland, appellee, and others, alleging that the State’s agent (the trooper) was negligent in leaving an ⁴¹⁴ intoxicated person, himself, without means of transportation.

In granting the motion to dismiss, Judge Femia opined: So, the second issue, and I’m being very honest, I can’t find any duty on the part of the State.... I’m going to grant that motion [to dismiss] and I’m going to grant it without leave to amend so you can immediately appeal my decision____ ... [B]eing intoxicated ... does not create a special relationship____ We shall uphold Judge Femia and affirm. Generally, there is no duty, or special relationship creating any such duty, requiring police officers to transport intoxicated passengers of arrested drivers to their ultimate destination, or any destination. This case is primarily controlled by our decision in Jones v. Maryland-Nat’l Capital Park and Planning Comm’n, 82 Md.App. 314 , 571 A.2d 859 (1990).

In Jones , we explained: 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.

Id. at 320 , 571 A.2d 859 . It is the first of these elements— duty—that Judge Femia found lacking. Appellant’s sole claim 2 is that Trooper Turano owed a duty to protect appellant “against the actions of a third party, in this case the driver of a vehicle which struck” appellant. It is well established that “there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a ‘special relationship’ exists either between the actor and the third person or between the actor and the ⁴¹⁵ person injured.” Ashburn v. Anne Arundel County, 306 Md. 617, 628 , 510 A.2d 1078 (1986).

Furthermore, [i]n order for a special relationship between police officer and victim to be found, it must be shown that the local government or the police officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim’s specific reliance upon the police protection. Id. at 631 , 510 A.2d 1078 . Appellant does not claim to the contrary or assert that this is an inaccurate statement of Maryland law. Rather, he concedes that in order to prevail here he must show a special relationship between the police officer and himself and in order to prove that relationship, it must be shown, in appellant’s words, that “[1] the officer affirmatively acted to protect the specific victim [appellant]— thereby [2] inducing the victim’s [appellant’s] specific reliance upon police protection.” Yet appellant has utterly failed to allege that Trooper Turano “affirmatively acted to protect” appellant “specifically” or that any affirmative act of the trooper induced appellant’s “specific reliance upon police protection.” What appellant alleges is that: (1) at 1:10 a.m. the trooper arrested the drunk driver of the car in which appellant was a passenger on Rt. 193 near 48th Street in College Park; (2) after appellant told the trooper that he “was not in a condition to drive” the trooper replied that appellant “would then have to walk home, since the Trooper was taking [the driver] into custody”; and (3) “[ljeaving [appellant] to walk home alone at 1:00 a.m.” was negligent since the trooper “knew or should have known that [appellant] was in an intoxicated state.” In other words, appellant’s complaint is not that the trooper affirmatively acted to protect him, but that the trooper failed to act to protect him.

Assuming the truth of appellant’s allegations, as we must at this juncture, 3 the trooper’s failure to act may be ⁴¹⁶ contrary to some moral obligation, but this failure to act does not create a legal duty and so cannot be the basis for an action in negligence. As the Court of Appeals noted in Davis v. Johns Hopkins Hosp., 330 Md. 53, 64 , 622 A.2d 128 (1993), quoting from Jacques v. First Nat’l Bank, 307 Md. 527, 533-34 , 515 A.2d 756 (1986): A tort duty does not always coexist with a moral duty. Jones, 82 Md.App. 314 , 571 A.2d 859 , is further instructive. There, a Park Police officer stopped at the scene of a minor automobile accident to render assistance.

The officer testified that one of the drivers may have had a slight odor of alcoholic beverages on her breath, but he did not regard her as intoxicated. He told the allegedly intoxicated driver to park her car and turn off the ignition. When the officer turned his back, the driver sped away and soon thereafter hit another car head on. The victims of the second accident were injured and brought suit against the officer’s employer.

We held that the officer’s failure to act, to prevent the allegedly intoxicated driver from speeding away, did not create a special relationship with the driver, or a duty to protect the persons injured in the second accident from the driver. We note especially the unique circumstances of the case sub judice. Here the officer took the drunk driver into custody. 4 It was not the drunk driver (as in Lamb v. Hopkins, 303 Md. 236 , 492 A.2d 1297 (1985)) that ran over the injured party, ⁴¹⁷ because the driver here was in custody. The officer had taken charge of the “dangerous instrumentality”—the drinking driver.

Here the appellant, Holson, was his own dangerous instrumentality—his lack of sobriety caused his injury. He, in essence, argues that the officer should have taken him “into custody” or “taken charge” of him in order to protect him from himself. That is not the officer’s duty under the cases. In Jones, 82 Md.App. at 321-22 , 571 A.2d 859 , discussing Lamb , we noted: The Court then concluded that “because there was no custodial relationship involved in this case, ... the officers did not take charge of the probationer.” Id. [303 Md.] at 249, 492 A.2d 1297 .

The Court noted that “A minority of courts have challenged the proposition that an actor can take charge of a third person only in a custodial situation.” Lamb, 303 Md. at 249 , 492 A.2d 1297 . We then explained the language in Jackson v. Clements, 146 Cal.App.3d 983 , 194 Cal.Rptr. 553 (1983), that rejected an argument similar to that made by Holson: They proffer that the Ashbum Court, [5] by citing a portion of Jackson v. Clements, 146 Cal.App.3d 983 , 194 Cal.Rptr. 553 (1983), involving alteration of risk, implied that if the 7isk was altered a special relationship would exist. Jackson v. Clements involved officers responding to a party where minors were allegedly drinking. They investigated the matter and temporarily detained one of the minors, who was later permitted to leave the party with two other minors who had also been drinking.

An accident occurred, killing one of the minors as well as occupants of another car. The trial court dismissed the action on demurrer. The plaintiffs had alleged that even though the officers knew that the minors were under the influence, knew they were too intoxicated to drive, and knew the minors intended to drive, the officers failed to take any action to prevent the minors from driving. The plaintiff in Jackson contended ⁴¹⁸ that once the officers undertook to investigate the party and made the observations, they had a duty to prevent the minors from driving. ...

Plaintiffs cite no authority, nor has any been found, to support their claims that a police officer’s observation of a citizen’s conduct which might foreseeably create a risk of harm to others, or the officer’s temporary detention of the citizen, creates a special relationship which imposes on the officer a duty to control the citizen’s subsequent behavior. The case law is to the contrary. Jones, 82 Md.App. at 322-23 , 571 A.2d 859 (citation and footnote omitted, emphasis added). In essence, we noted in Jones that in Jackson the court had found that police officers owe no duty to inebriates to protect them from themselves.

Even in the cases where officers have not detained drunken drivers, and those drivers subsequently have injured others, the courts have held that no duty existed to the ones injured because the officers had not taken charge (created a continuing custody) of the drunken driver. Here, appellant asserts he should be able to recover because the officer did not take him into custody or take charge of him and he, because of his intoxication, hurt himself. First, there was no basis for the officer to take Holson into custody, ie., take charge of him. It is not against the law to be a drunken passenger in an automobile.

He was not subject to arrest in the first instance. Even had he been subject to arrest, the failure of the officer to arrest him would not have created a special relationship requiring the officer to protect appellant from himself. Moreover, the decision whether to arrest is, in the absence of a warrant, a discretionary function. We stated in Jones, 82 Md.App. at 335-36 , 571 A.2d 859 : The proposition that appellants urged on this Court and on the trial court, in the case sub judice, has, in one form or another, been rejected in a consistent line of Maryland cases at least since the 1898 lynching case of Cocking v. Wade, 87 ⁴¹⁹ Md. 529, 541, 40 A. 104 (1898), where the Court of Appeals, quoting from an earlier case, stated: “A public officer is not liable to an action ... where the act ... is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake.

A contrary principle would indeed be pregnant with the greatest mischief.” Having determined that there was no probative evidence supporting any possible legal conception of a “special relationship” between the officer and the actor or the victim, we need not further address whether Officer Bratburd’s conduct was negligent. We hold that there was no legal duty owed to the plaintiff. Accordingly, there could be no actionable negligence for which the officer or his employer would be held liable. Additionally, Officer Bratburd was acting in a discretionary capacity and was thus immune from suit.

A recent case in which the Court of Appeals considered whether a special relationship had been established is Eisel v. Board of Education, 324 Md. 376 , 597 A.2d 447 (1991). There it was asserted that school counselors, knowing of the possibility of a child’s inclination towards suicide, had failed to warn the child’s parents. The Court initially discussed suicide cases throughout the country involving patients in the care of physicians and/or hospitals and noted: “Recent attempts to extend the duty to prevent suicide beyond custodial or therapist-patient relationships have failed.” Id. at 382 , 597 A.2d 447 . The Court then noted that those cases finding no duty were distinguishable from Eisel by a number of factors.

They did not involve a case in which the victim was an adolescent and, for the most part, were cases where the defendant physically failed to prevent the suicide. More importantly, the cases finding no liability did not involve anything akin to an in loco parentis relationship, while the Eisel case did. The Court explained: Further we have recognized ⁴²⁰ “the doctrine that the relation of a school vis a vis a pupil is analogous to one who stands in loco parentis, with the result that a school is under a special duty to exercise reasonable care to protect a pupil from harm.... ” Id. at 384 , 597 A.2d 447 (quoting Lunsford v. Bd. of Educ., 280 Md. 665, 676 , 374 A.2d 1162 (1977)). In loco parentis means “In the place of a parent ... charged, factitiously, with a parent’s rights, duties, and responsibilities. ‘Loco parentis’ exists when person undertakes care and control of another____” Black’s Law Dictionary 787 (6th ed. 1990) (emphasis added). “[I]n the place of a parent.... ” Random House Dictionary of the English' Language 733 (unabridged ed. 1983).

The Court in Eisel first found a special relationship, i.e., care and control of the victim, before it addressed foreseeability and ultimately found that the suit could be maintained. Thus, Eisel was based initially upon a special relationship of care and control. There is an essential difference between parents surrendering custody and control of their child to a school and an inebriate attempting to force a reluctant policeman (according to Holson) to assert custody and control over him. Restatement Second of Torts, § 314 (1965), “Duty to Act for Protection of Other” states, “The fact that an actor realizes, or should realize, that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” In its comment, the restatement distinguishes “misfeasance,” i.e., active negligence and “non-feasance,” i.e., negligent omission, stating: In the early law one who injured another by a positive affirmative act was held liable....

The courts were far too occupied with the more flagrant forms of misbehavior to be greatly concerned with one who merely did nothing.... Hence, liability for non-feasance was slow to receive any recognition in the law. It appeared first in, and is still largely confined to, situations in which there was some special relationship between the parties____ ⁴²¹ The Restatement in section 314A then specifies special relationships that can create duties, including “(4) one who is required by law to take, or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection.... ” In the case at bar, Holson sues appellee claiming, in essence, that the negligent act of omission (non-feasance) was the officer’s failure to volunteer to take Holson into custody. In other words, Holson contends that the failure to create a special relationship is itself a special relationship giving rise to the duty to protect him.

We disagree. The Court in Melendez v. City of Philadelphia, 320 Pa.Super. 59 , 466 A.2d 1060 (1983) (a case involving the shooting by another of a young boy) initially noted: Generally, it is acknowledged that there is no duty resting on a ... governmental body to provide police protection to any particular person. However, where the circumstances establish a “special relationship” . .. then an exception to the general rule will be found and an affirmative duty to act will be imposed.... ... A special relationship is generally found to exist only in cases in which an individual is exposed to a special danger and the authorities have undertaken the responsibility to provide adequate protection for him.

Id. 466 A.2d at 1063 (some emphasis added). Melendez had argued that the city had created such a special relationship by the fact that it had given assurances of protection to the residents of the