Jones v. Maryland-National Capital Park & Planning Commission

CATHELL, Judge. Officer Barry Bratburd, of Maryland-National Capital Park & Planning Commission, while traveling between two facilities of that agency, was stopped at the intersection of Route 1 and Rhode Island Avenue in Prince George’s County in the early hours of January 18, 1985. While there, he observed an automobile operated by Michael Carr stopped at a traffic light. The Carr vehicle, while at the traffic light, was rear-ended in an apparently minor collision by an automobile ³¹⁷ driven by Mary Hope Pinkney.

There was no damage evident to the Carr vehicle, and only minor damage to the Pinkney vehicle. Officer Bratburd approached the accident scene. According to his deposition, the following then occurred: Q You yourself had never, not ever had occasion to deal with a person suspected of being intoxicated? A That is correct.

Q [W]hatever the exact interval between your question and her response, in seconds or mili-seconds, would it be fair to say, Officer Bratburd, that Mary Pinkney was rather slow to respond to your instructions? A Yes. Q Now, when she did respond, as I understand it, basically all she said was yes or sure or something like that, is that correct? A Correct.

Q When she opened her mouth were you able to detect some alcohol? A I detected a slight odor of what may have been an alcoholic beverage. Alcohol has no odor itself, it is the ingredients that give it its odor. Q [immediately following the time when you noticed this definite odor of what may have been an alcoholic beverage on Ms. Pinkney’s breath, did you ask her to turn off her car?

A That was all done in the one speech while she was acknowledging what I was saying, that is when I noticed at the same time while I was talking. I didn’t stop, notice, then start talking. It was all in our exchange. I just finished up by telling her to put the car in park and turn the ignition off.

At that time I turned sideways, [emphasis added] During his deposition, in response to questioning, Officer Bratburd described his official duties as follows: ³¹⁸ A To routinely patrol the parks and other buildings owned by the Park and Planning Commission and to respond to all calls for service relating to Park and Planning Commission property in those designated areas. * * * * * * It is my understanding that we have no police jurisdiction or powers in areas that aren’t either owned or maintained by the Park and Planning Commission, where we have powers. We do have a Mutual Aid Agreement with the Prince George’s County Police where we can act with authority for instances and incidents that we firsthand see involving criminal actions where if we do not take action it could cause grievously [sic] bodily injury or another criminal action to occur, things if we don’t handle immediately the situation would get worse. ****** Q Were you given any instruction with respect to what sort of action constituted an emergency within the meaning of your authority to exercise the police powers? A Like I said before, it was left up to the individual officer’s interpretation. We weren’t given any instruction as to what would be clearly defined as being an emergency situation.

They left that up to our discretion. ****** Q [I]f you believed that she was under the influence of alcohol it would have been an emergency situation, would it not? A Possibly. Q Having seen her driving up the road with no headlights on and being involved in a motor vehicle accident, if you believed that she was then under the influence of alcohol it would have been an emergency situation, correct? A Possibly. ³¹⁹ Q Under the Mutual Aid Agreement it would have been your obligation as well as your right to make an immediate investigation, correct?

A Correct, in as much as the alcohol, I still don’t think I had any authorization or jurisdiction to investigate the accident, as far as the collision. Q But at least as far as the fact that you— A I could have detained her physically for the responding jurisdiction, and be a witness, [emphasis added] Bratburd directed Pinkney to park the car and turn the ignition off. Instead, as Bratburd turned away to call for the police agency in whose jurisdiction the accident had occurred, Pinkney sped away in a northbound direction on Route 1. Bratburd attempted to follow her without using any emergency sirens or lights.

He lost her, but returned to the scene of the accident, where he met later with Trooper Crawford of the jurisdiction in question. While Trooper Crawford was investigating the first accident, he received a radio transmission of another accident on Route 1. Upon his arrival at the scene of the second accident, Crawford discovered that Pinkney, then going southbound, had crashed head-on into the vehicle of Robert F. Jones and Linda B. Jones, the appellants. As a result of this accident, the Joneses filed suit against Pinkney, the Maryland-National Capital Park & Planning Commission and Officer Bratburd.

The trial court granted defendants Bratburd and Maryland-National Capital Park & Planning Commission’s motion for judgment at the close of plaintiff’s case. We list and address the questions presented on appeal in the reverse order from which they were presented to us. 1. Whether the trial court erred in ruling that Officer Bratburd was entitled to public official immunity? 2. Whether the trial court erred in ruling that the defendant Maryland-National Capital Park & Planning Commission was not liable for the negligent acts of its servant, Officer Bratburd? ³²⁰ 1.

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.

Lamb v. Hopkins, 303 Md. 236 , 492 A.2d 1297 (1985). As we hold that appellee Bratburd was under no duty to protect the plaintiffs, we will not address the performance of any such duty, nor will we address the issue of whether any failure to discharge a duty owed was the proximate cause of appellants’ loss or injuries. We explain. Lamb v. Hopkins, 303 Md. 236 , 492 A.2d 1297 (1985), involved the issue of whether a probation officer who fails to report a probationer’s violations owes a duty to an individual injured by the negligence of the probationer.

The probationer in Lamb was convicted of driving while suspended, driving while intoxicated and other offenses while on probation. The probation agents did not petition the supervising court to incarcerate the probationer for the alleged violations. Subsequently, while driving under the influence, the probationer caused an accident which resulted in serious injuries to Mr. and Mrs. Lamb’s minor daughter. The Lambs filed suit, alleging negligence against the probationer, the Director of the Department of Parole and Probation and various employees of the Department.

The trial court sustained a demurrer 1 to the complaint, without leave to amend, on the ground that the statute requiring probation officers to report to the court did not create a duty running to appellant. The Court of Appeals in Lamb discussed the Restatement (Second) of Torts § 319 (1965). That section provides: ³²¹ One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. Lamb, 303 Md. at 243 , 492 A.2d 1297 .

In commenting upon the language used in the section, the Court noted that, “the operative words of this section, such as ‘takes charge’ and ‘control,’ are obviously vague, and the Restatement makes no formal attempt to define them.” Lamb, 303 Md. at 243 , 492 A.2d 1297 . The Court went on to say that the comment to Section 319 indicates that the section applies in two situations: First, § 319 applies to those situations where the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. Second, § 319 applies to those situations where the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know. Lamb, 303 Md. at 243 , 492 A.2d 1297 .

After giving certain examples, the Court stated: “Because there are degrees of being ‘in charge’ and having ‘control,’ these illustrations are obviously not by way of limitation. These illustrations suggest, however, that Section 319 has peculiar application to custodial situations.” Lamb, 303 Md. at 244 , 492 A.2d 1297 (citation omitted). The Court stated, in discussing custody, that “The more traditional and obvious examples [of taking charge of a person] include a correctional institution incarcerating a dangerous criminal, or a mental institution confining a dangerous patient.” Lamb, 303 Md. at 246 , 492 A.2d 1297 (citations omitted). 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. at 249 , 492 A.2d 1297 .

The Court noted that “A minority of courts have challenged the proposition that an ³²² actor can take charge of a third person only in a custodial situation.” Lamb, 303 Md. at 249 , 492 A.2d 1297 . The Joneses, in the case at hand, argue that the facts and opinions in several previous cases support an inference that Officer Bratburd owed them a duty in the present circumstance. As a result of this inference, they contend that the issue of whether Bratburd owed them any duty should have gone to the jury. Appellants further assert that, because Lamb mentioned the existence of a minority position challenging the necessity of a custodial situation as a prerequisite to “taking charge” of a third person, and because several subsequent Maryland cases failed to address that statement in Lamb , 2 the minority position alluded to in Lamb is the rule in Maryland.

Appellants cite Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986), which we will discuss at length later in our opinion. They proffer that the Ashburn Court, 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 risk was altered a special relationship would exist. 3 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 ³²³ that once the officers undertook to investigate the party and made the observations, they had a duty to prevent the minors from driving. Citing and quoting from a prior California case, the court in Jackson stated: “[T]he question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity____ ‘Absence of duty [rather than statutory immunity] is a particularly useful and conceptually more satisfactory rationale where, absent any “special relationship” between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance.’ ” Jackson, 194 Cal.Rptr. at 554 .

The California court also stated: [P]laintiffs in both actions assert that there was a “special relationship” ... for the reasons that (1) the minors’ conduct demonstrated that they were too intoxicated to drive and (2) the officers “exercised control” over [the driver] in that they detained him for about one-half hour during their investigation of the party. Here, ... there is no allegation of an ongoing custodial relationship between the officers and the minor defendants. 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 foresee-ably 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.

Jackson, 194 Cal.Rptr. at 555 (citations omitted). The portion of Jackson quoted in Ashburn and cited by the Joneses in their brief as support for the creation of a special relationship, related not to the injuries of the occupants of cars struck by the drunk driver, but to occupants ³²⁴ of the car being driven by the intoxicated driver. Even there the California court summarily rejected the plaintiffs claim of a special relationship. We note that in Jackson , the complaint, which was dismissed, alleged that the driver actually had been detained for one-half hour and that the officers permitted the driver and the passenger victim to drive away.

The nonfeasance, if any, in Jackson was much more severe than any possible nonfeasance in the case at bar. 4 The holding in Jackson provides support for the trial court’s action in this case and not for appellant’s position. Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986), involved a police officer who observed one Mr. Millham in a pickup truck on a parking lot. Millham was intoxicated, and it was stipulated that he could have been chargéd with drunk driving. 5 Millham was ordered to pull to the side of the lot and to discontinue driving. The Court summarized the facts as follows: Apparently noticing Millham’s condition, Officer Freeberger told Millham to pull his truck to the side of the lot and to discontinue driving that evening.

As soon as Officer Freeberger left the scene, however, Millham drove the truck away from the lot, proceeded a short distance and collided with the appellant, John F. Ashburn, II, a pedestrian____ The circuit court ... held ... that Officer Freeberger and Anne Arundel County were immune from civil suit, and that Officer Freeberger owed no special duty to appellant. Ashburn, 306 Md. at 620 , 510 A.2d 1078 . On appeal, Ashburn argued that the officer was not immune because he negligently failed to detain a drunken driver, and that he had a mandatory duty to do so. In response the Ashburn Court stated: ³²⁵ Since Cocking,[ 6 ] the rule which we have applied to tort claims against a governmental representative is that the actor will be relieved of liability for his non-malicious acts where: (1) he “is a public official rather than a mere governmental employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties.” Ashburn, 306 Md. at 622 , 510 A.2d 1078 (emphasis in original, citations omitted).

The Court went on to discuss, as dicta, that: “A proper plaintiff, however, is not without recourse. If he alleges sufficient facts to show that the defendant policeman created a ‘special relationship’ with him upon which he relied, he may maintain his action in negligence.” Ashburn, 306 Md. at 630-31 , 510 A.2d 1078 (citation omitted). By way of a footnote, the Court noted that the Restatement provided for certain instances when a relationship between the officer and the actor might give rise to an action for negligence. One of the circumstances mentioned was when the actor was in the officer’s custody.

Ashburn, 306 Md. at 630 , 510 A.2d 1078 . Appellant, in the case sub judice, relies on the claim that the officer’s direction to the wrongful driver amounted to a special relationship of custody. The Court of Appeals, in an Ashburn footnote, stated that the custodial relationship must be “ongoing,” and mentioned the Washington case of Bailey v. Town of Forks, 38 Wash.App. 656 , 688 P.2d 526, 531 (1984), for the proposition that a fleeting contact such as that in this case “fails to give rise to a ‘special relationship.’ ” Citing Ashburn , the Joneses further argue that, in determining duty, foreseeability is the key factor. The actual statement by the Ashburn Court was that, “[p]erhaps among these factors deemed most important is foreseeability.” It then explained, however, that foreseeability does ³²⁶ not come into consideration until a “special relationship” exists: However, “foreseeability” must not be confused with “duty.” The fact that a result may be foreseeable does not itself impose a duty in negligence terms.

This principle is apparent in the acceptance by most jurisdictions and by this Court of 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____ Thus, we recognize the general rule, as do most courts, that absent 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. Ashburn, 306 Md. at 628 , 510 A.2d 1078 (citations omitted). As the Court of Appeals said in Ashburn , “[T]he ‘duty’ owed by the police by virtue of their positions as officers is a duty to protect the public, and the breach of that duty is most properly actionable by the public in the form of criminal prosecution or administrative disposition.”' Id. at 628 , 510 A.2d 1078 (see citations therein). The Ashburn Court pointed out the risks involved in attempting to hold police officers privately responsible for negligent performance of their public duties, when it stated: “[I]f the police were held to a duty enforceable by each individual member of the public, then every complaint— whether real, imagined, or frivolous would raise the specter of civil liability for failure to respond.

Rather than exercise reasoned discretion and evaluate each particular allegation on its own merits the police may well be pressured to make hasty arrests solely to eliminate the threat of personal prosecution by the putative victim. Such a result historically has been viewed, and rightly so, as untenable, unworkable and unwise.” ³²⁷ Furthermore, a policy which places a duty on a police officer to insure the safety of each member of the community would create an unnecessary burden on the judicial system. Under such circumstances, the slightest error of a policeman would give rise to a potential law suit. Presently, the police officer is subject to disciplinary proceedings or criminal prosecution for any dereliction of duty, and these proceedings are better suited to review charges against the police officer for the breach of a duty which his job, rather than his responsibility as a member of the public, imposes upon him.

Moreover, as stated by the District of Columbia Court of Appeals in Morgan [v. District of Columbia ], supra, [ 468 A.2d 1306 (D.C. 1983)] “while public prosecution does little to console those who suffer from the mistakes of police officials, on balance, the community is better served by a policy that both protects the exercise of law enforcement discretion and affords a means of review by those who, in supervisory roles, are best able to