Howard v. Crumlin

Panel: Beachley, Shaw Geter, Fader, JJ. Fader, J. ⁵¹⁹ Carolyn Howard, the appellant, presents the question whether a police officer may be held individually liable in tort for failing to make contact with an individual who placed a call for assistance to 911 to which the officer attempted to respond. We hold that Maryland law does not impose individual liability in tort in that circumstance. ⁵²⁰ BACKGROUND 1 In the early morning hours of February 19, 2014, Nicole Sade Enoch was in her ⁵⁷⁷ apartment in Silver Spring. A male friend of a woman who was staying with Ms. Enoch may have been there as well.

Shortly after 2:00 a.m., Ms. Enoch called 911. 2 In response, Montgomery County Police Officer Ben Crumlin was dispatched to the apartment building, attempted to enter, but found the door locked. He left without making contact with Ms. Enoch. At some point, Ms. Enoch went to the roof of her apartment building and either jumped, fell, or was pushed off. Her body was discovered at 8:20 a.m. and she was pronounced dead at the scene.

Ms. Howard, who is Ms. Enoch's mother, brought suit for herself and on behalf of Ms. Enoch's estate in the Circuit Court for Montgomery County. The operative complaint for our purposes is the Fourth Amended Complaint, in which Ms. Howard brought claims against Officer Crumlin and Montgomery County Chief of Police J. Thomas Manger for negligence and wrongful death. 3 Ms. Howard alleged that Officer Crumlin and Chief Manger owed a duty to Ms. Enoch that they breached by failing to investigate the 911 call, protect Ms. Enoch, enter the building and make contact with Ms. Enoch, maintain proper policies and procedures for responding to 911 calls, provide adequate training for responding to 911 calls, and monitor the response of officers to 911 calls. ⁵²¹ According to the complaint, these failures were the direct and proximate cause of Ms. Enoch's death. The circuit court dismissed the claims against Officer Crumlin and Chief Manger on the ground that those defendants did not owe a duty to Ms. Enoch that was enforceable in tort. We affirm.

DISCUSSION "[T]he standard of review of the grant or denial of a motion to dismiss is whether the trial court was legally correct." Blackstone v. Sharma , 461 Md. 87 , 110, 191 A.3d 1188 (2018). This appeal centers on two different legal doctrines that are distinct but too often confused: the public duty doctrine and public official immunity. 4 Each independently ⁵⁷⁸ requires a ruling in favor of Officer Crumlin and Chief Manger. We discuss them in turn. I. MS.

HOWARD'S ALLEGATIONS FAIL TO SHOW THAT OFFICER CRUMLIN OR CHIEF MANGER OWED A DUTY TO MS. ENOCH THAT CAN BE ENFORCED IN TORT. The public duty doctrine provides that statutory or common law duties imposed on public officials or entities that ⁵²² are duties "to the public as a whole," and not to any particular group or individual, are unenforceable in tort. Cooper v. Rodriguez , 443 Md. 680 , 714, 118 A.3d 829 (2015).

Where it is applicable, the plaintiff cannot ordinarily establish that the defendant owed a duty to the plaintiff or a group of which the plaintiff is a member. Without such a duty, there can be no liability in tort. Jones v. State , 425 Md. 1 , 19, 38 A.3d 333 (2012). The seminal case applying the public duty doctrine is Ashburn v. Anne Arundel County , 306 Md. 617 , 510 A.2d 1078 (1986).

There, a police officer found a drunk individual behind the wheel of a pickup truck in a parking lot with the engine running. Id. at 620 , 510 A.2d 1078 . Rather than detain him, the officer told the driver to pull to the side and stop driving. Id.

As soon as the officer left, the individual drove away and promptly hit a pedestrian. Id. The pedestrian, Mr. Ashburn, sued the officer for negligence. The Court of Appeals held that Mr. Ashburn had failed to establish that the officer "owed him a duty in tort." Id. at 626 , 510 A.2d 1078 .

After discussing at some length the considerations that can give rise to a duty, the Court invoked "the general rule 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 person injured." Id. at 628 , 510 A.2d 1078 . Absent such a special relationship "between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie against police officers." Id. Instead, the duty owed by police officers "is a duty to protect the public" and any breach of that duty can and should be addressed not by a tort action but by "criminal prosecution or administrative disposition." Id. The Court in Ashburn explained the rationale for this doctrine, borrowing approvingly from the District of Columbia Court of Appeals's decision in Morgan v. District of Columbia , 468 A.2d 1306 (D.C. 1983).

Public officials involved in fighting ⁵²³ crime make decisions in circumstances that are "fraught with uncertainty" and, therefore, "must have broad discretion to proceed without fear of civil liability in the unflinching discharge of their duties." Ashburn , 306 Md. at 629 , 510 A.2d 1078 (quoting Morgan , 468 A.2d at 1311 (internal quotation marks omitted) ). In such circumstances, "the public interest is not served 'by allowing a jury of lay (persons) with the benefit of 20/20 hindsight to second-guess the exercise of a police [officer]'s discretionary professional duty. Such discretion is no discretion at all.' " Id. (quoting Morgan , 468 A.2d at 1311 (quoting Shore v. Town of Stonington , 187 Conn. 147 , 444 A.2d 1379 , 1381 (1982) ) ).

To rule otherwise "would raise the spectre of civil liability for failure to respond" to every complaint, regardless of its credibility, and thus risk that decisions would be made not on the merits but "to eliminate the threat of personal prosecution by the putative victim." Id. (quoting Morgan , 468 A.2d at 1311 ). "Such a result historically has been viewed, and rightly so, as untenable, unworkable and unwise." Id. at 629-30, 510 A.2d 1078 (quoting ⁵⁷⁹ Morgan , 468 A.2d at 1311 ). As a result, the Court concluded, disciplinary proceedings and criminal prosecution for dereliction of duty are better suited remedies to review charges that officers breached their duties.

Id. at 630, 510 A.2d 1078 . An exception to the public duty doctrine lies when a public official creates a special relationship with the victim "upon which [the victim] relied." Id. at 630-31 , 510 A.2d 1078 . For such a relationship to exist, the public official must have "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 . No such special relationship existed in Ashburn as there was no allegation that the officer undertook any affirmative act of protection or that any statute imposed a specific duty enforceable by tort.

Id. at 631-32 , 510 A.2d 1078 . Two other public duty doctrine cases are especially important to our analysis here. In Muthukumarana v. Montgomery County , 370 Md. 447 , 805 A.2d 372 (2002), the Court of ⁵²⁴ Appeals considered two separate cases alleging negligence by 911 operators. Although the Court was careful not to draw an equivalence between the work of 911 operators and that of police officers, id. at 489-90 , 805 A.2d 372 , it recognized that many of the same policy concerns militated toward application of the public duty doctrine to 911 operators, including that creating a tort duty would effectively allow juries to determine how police resources should be allocated, id. at 490 , 805 A.2d 372 .

Thus, the Court concluded, "a 911 employee generally owes no duty in tort for the negligent performance of his or her duties to an individual in need of emergency telephone services." Id. at 492 , 805 A.2d 372 . Applying the "special relationship test" from Ashburn , a plaintiff would have to show that a "911 employee affirmatively acted to protect or assist the specific individual, or a specific group of individuals like the individual, in need of assistance, thereby inducing the specific reliance of the individual on the employee." Id. at 496 , 805 A.2d 372 . As no such affirmative act or reliance existed in either underlying case, the Court affirmed the judgment for the defendants in both. Id. at 497-504 , 805 A.2d 372 .

Even more informative for our purposes is McNack v. State , 398 Md. 378 , 920 A.2d 1097 (2007), in which relatives of seven members of a family that were killed in the fire-bombing of a home brought a lawsuit alleging that Baltimore City had encouraged the members of the family to engage in behavior that led to the bombing-the reporting of drug activity-while knowing that the police could not protect them. Id. at 386 , 920 A.2d 1097 . The plaintiffs alleged that a special relationship was created between the police and the family by virtue of the more than 100 calls to 911 the family had made, the fact that police were dispatched to the house on many occasions, and a claim that the police had told the family that they would be placed on a "special protection list." Id. at 399 , 920 A.2d 1097 . The Court found that none of these things, individually or collectively, were sufficient to create a special relationship.

Id. at 400-01 , 920 A.2d 1097 . The Court specifically noted the absence of any sufficiently-pled allegation that the police officers who responded on those many occasions to the family's ⁵²⁵ home "affirmatively acted for the [family's] benefit, that they did anything to induce the [ ] family to rely on them, or that they acted in any way differently than they would act responding to any complaint of any other member of the general public." Id. at 401 , 920 A.2d 1097 . To the contrary, responding "on the ⁵⁸⁰ basis of a 911 call was part of the police officers['] public duty ...." Id. Ms. Howard argues that the public duty doctrine does not apply here because Officer Crumlin created a special relationship with Ms. Enoch when he responded to the 911 call and, in doing so, "undertook the duty to act on Ms. Enoch's behalf." That argument is foreclosed by McNack .

There, the Court of Appeals held that a series of 911 calls and police responses had not created a special relationship between the police and the family because there was no affirmative action by the police to provide any more protection to the family than to the public at large and no action that induced the family to rely on police protection. Id. The facts here are even more distant from the existence of a special relationship as Ms. Enoch and Officer Crumlin never communicated with each other in any way. Ms. Howard does not identify an affirmative action that Officer Crumlin took specifically to protect Ms. Enoch.

His act of going to Ms. Enoch's apartment building in response to a 911 call, like the responses of the officers in McNack , was in performance of his duty to the public. Moreover, to give rise to a special relationship, Ms. Enoch would have had to have been aware of Officer Crumlin's