Khawaja v. Mayor of Rockville

GARRITY, Judge. STATEMENT OF FACTS The Khawajas were seriously injured while they were driving home late in the evening on July 9, 1988, when their automobile collided with a police cruiser operated by Sergeant Alice Anselmo of the Rockville Police Department. In the course of responding to .an emergency call from another police officer, Sgt. Anselmo activated her emergency lights, and silently sped west-bound through a red light and into the intersection of Nelson Street and Montgomery Avenue.

The Khawajas’ south-bound vehicle, with a green light in its favor, was entering the intersection when the police cruiser crashed into the side of the car. Sustaining personal injuries and property damage, the Khawajas filed a timely complaint against the City of Rockville and Sgt. Anselmo, against whom they also sought ³¹⁷ punitive damages. The focus of the complaint was Sgt.

Anselmo’s alleged gross negligence for not having sounded the police cruiser’s siren while responding to the emergency call: [t]hat defendant’s motor vehicle was not being operated with its siren sounding; that its siren was never sounded at any time ... Anselmo did approach the intersection with the intention of running the red light, that she approached said intersection at a speed of 50 or more miles per hour in a zone where the speed limit was 25 miles per hour, that Anselmo ... had intentionally not activated the siren of her motor vehicle; that she saw that she had a red light at Nelson Street when she had adequate time and distance to stop before entering the intersection ... defendant made a conscious decision to go through the red light and enter the intersection at a high rate of speed ... plaintiff’s vehicle was in view as an approaching vehicle as she approached the intersection; that she was accelerating as she entered the intersection Sgt. Anselmo filed a motion to dismiss complaint on the ground that it failed to state a cause of action against her. Rockville also challenged the complaint by way of a motion for partial summary judgment requesting that the city’s liability be limited to its insurable interest.

In ruling on the motions, the Circuit Court for Montgomery County (Cave, J.) dismissed Sgt. Anselmo from the suit and granted Rock-ville’s motion for partial summary judgment, while certifying the case to us under Md.Rule 2-602(b). 1 Appealing from this ruling, the Khawajas present the following issues for our review: I. Whether the court erred in dismissing Sgt. Anselmo from the suit on the grounds that the complaint did not state a cause of action in gross negligence. ³¹⁸ II. Whether Rockville’s liability is limited to its insurable interest.

III

Whether the Local Government Tort Claims Act, §§ 5-401 et seq., Md.Code Ann. (1989 RepLVol.) waives the defenses Rockville does not hold in common with Sgt. Anselmo. I. Gross Negligence The Khawajas contend that the complaint states a cause of action against Sgt. Anselmo for gross negligence.

They base this contention on the argument that language sufficiently reflects Sgt. Anselmo’s actions in deliberately not sounding the siren, while intentionally speeding through a red light with the Khawajas’ automobile in view, to sustain a finding of gross negligence. In affirming the lower court’s ruling that these facts do not set forth a cause of action in gross negligence, we pause to review the conditions for Sgt. Anselmo’s immunity from simple negligence, which are set forth in Section 19-103(b)(1) of the Transportation Article, Md.Code Ann. (1987 Repl.Vol.).

That subsection provides, in pertinent part: (1) An operator of an emergency vehicle, who is authorized to operate the emergency vehicle by its owner or lessee, is immune from suit in his individual capacity for any damages resulting from a negligent act or omission while operating the emergency vehicle in the performance of emergency service____ (emphasis added). The immunity granted under this section is limited, however, to simple negligence. Sec. 19-103(b)(2) provides that “This subsection does not provide immunity from suit to an operator for a malicious act or omission or for gross negligence of the operator.” Id. (emphasis added).

Because it is undisputed that Sgt. Anselmo is immune from simple negligence, we need only examine whether the complaint states a cause of action for gross negligence. Gross negligence must be plead with specificity. Smith v. Gray Concrete Pipe Co., 267 Md. 149, 168 , 297 ³¹⁹ A.2d 721 (1972).

In considering the legal sufficiency of a complaint on appeal, “we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings.” Sharrow v. State Farm Mutual, 806 Md. 754, 759, 511 A.2d 492 (1986). In Smith v. Gray Concrete Pipe Co., 267 Md. 149, 167 , 297 A.2d 721 (1972), the Court of Appeals cited 61A C.J.S. Motor Vehicles § 560 as the general rule for what malice may warrant exemplary damages: In the proper case, however, punitive damages may be allowed as a means of enforcing the rules governing the use of the highways by the drivers of motor vehicles, and such damages have been permitted for recklessness, wantoness, or willfulness, on the part of the operator of a motor vehicle, and also for gross negligence. The Smith Court defined malicious negligence which includes gross negligence as constituting a “wanton or reckless disregard for human life” in the operation of a motor vehicle with the known dangers and risks attendant to such conduct. Id. at 168, 297 A.2d 721 .

In Nast v. Lockett, 312 Md. 343, 352 , 539 A.2d 1113 (1988), the Court cautioned that only conduct that is of an extraordinary or outrageous character will be sufficient to supply the requisite state of mind. Reckless driving is not enough; there must be reckless disregard for human life. Id. at 352 , 539 A.2d 1113 . In Boyer v. State, 323 Md. 558 , 594 A.2d 121 (1991), the surviving sons of Mr. and Mrs. Boyer, who were killed by a suspected intoxicated driver while he was being pursued, argued that gross negligence was sufficiently pled where it was alleged that a state trooper had continued the chase for seven miles in speeds reaching in excess of 100 miles per hour through busy intersections without immediately activating all of the cruiser’s emergency equipment.

Id. at 563, 591 , 594 A.2d 121 . The Court held, ³²⁰ [viewing allegations in the light most favorable to the plaintiffs, we nevertheless hold that Trooper Titus’s alleged conduct did not amount to gross negligence as a matter of law. The plaintiff’s allegations that Trooper Titus drove at high speeds on a road congested with traffic in an attempt to apprehend a suspected intoxicated driver do not indicate that he acted with wanton or reckless disregard for the safety of others. Although the complaint states that Trooper Titus did not “immediately” activate his emergency equipment, these somewhat vague allegations do not support the conclusion that he acted with gross negligence.

Id. 323 Md. at 580 , 594 A.2d 121 . Citing Nast with approval the Court in Boyer noted: “In order to charge Trooper Titus with gross negligence, the plaintiff must have pled facts showing that Trooper Titus acted with a wanton and reckless disregard for others in pursuing Mr. Farrar.” Nast v. Lockett, supra, 312 Md. at 367 , 539 A.2d 1113 . Further, the Court, while cautioning that each case depends upon its own facts, favorably examined Bullins v. Schmidt, 322 N.C. 580 , 369 S.E.2d 601 (1988), wherein the North Carolina Supreme Court held that police officers had not acted with conscious or reckless disregard for others while pursuing a car being driven erratically at about 1 a.m. over 18 miles at high speeds of up to 100 miles per hour.

II

Partial Summary Judgment The Khawajas contend that the circuit court erred in granting Rockville’s motion for partial summary judgment, which had the effect of limiting their total recovery to the city’s insurable interest. The Khawajas maintain that Rockville’s self-insurance application, which was accepted by the Motor Vehicle Administration, is so ambiguous on its face as to the amount of minimum coverage it would provide, that the city is foreclosed from raising the defense of self-insurance. Although the application for self-insur ³²¹ anee may have been ambiguous, 2 the amount of minimum coverage required of a self-insured municipality is mandated and clarified by statute. Taken together, Sections 17-107(c) and 19-103(c) of the Transportation Article, Md.Code Ann. (1987 Repl.Vol.) delineate the general scope of Rockville’s limited liability.

On the one hand, Section 19-103 provides a ceiling by shielding a self-insured jurisdiction from liability for any damages arising from the negligent operation of an emergency vehicle performing an emergency service that exceed the amount of its self-insurance. 3 ³²² Section 17-107(c), on the other hand, provides a floor for liability by prohibiting a self-insured jurisdiction from raising the defense of sovereign immunity to the extent of the amount of its self-insurance. 4 Taken together, we believe these statutes provide that a jurisdiction that can demonstrate it is self-insured enjoys limited liability for damages arising out of the negligent operation of an emergency vehicle 5 performing an emergency service to the extent that the damages exceed ³²³ the amount of the jurisdiction’s self-insurance. We hold that the trial court properly granted the City of Rockville’s partial summary judgment and thereby limited its liability to the amount of its insurable interest.

III

Local Government Tort Claims Act The Khawajas contend that the Local Government Tort Claims Act (LGTCA), § 5-401 et seq., Md.Code. Ann. (1989 Repl.Vol.) precludes Rockville from asserting any defense that it does not hold in common with Sgt. Anselmo. Thus, as Sgt.

Anselmo does not also possess the emergency vehicle ad damnum defense which Rockville asserts, it can not take advantage of such limitation. We reject this