Livesay v. Baltimore County

RAKER, J. This case is a lawsuit filed pursuant to the Local Government Tort Claims Act, Md.Code (1973, 2002 Repl.Vol., 2004 Cum.Supp.), § 5-301 et seq. of the Courts and Judicial Proceedings Article. 1 The complaint alleges negligence against Baltimore County, Baltimore County Detention Center Warden Dorothy Williams, Classification Supervisor George Jackson, Corrections Officer Ricky Fore, and nurse Kenya Thomas of Prison Health Services, Inc., in connection with appellant Joseph Kevin Livesa/s attempted suicide while he was an inmate at the detention center. 2 The Circuit Court for Baltimore County granted summary judgment in favor of Fore and Baltimore County on the grounds of public official immunity and Governmental Immunity, and in favor of Jackson on the grounds that there were no material facts in dispute and he was entitled to judgment as a matter of law. 3 Appellant noted ⁵ a timely appeal to the Court of Special Appeals and this Court granted certiorari on its own initiative. We consider the following questions: (1) Whether the Local Government Tort Claims Act (LGTCA) eliminates the immunity defenses asserted by the County employees; (2) whether Md.Code (1973, 2002 Repl.Vol., 2004 Cum.Supp.), § 5-507(b)(l) of the Courts and Judicial Proceedings Article applies to county as well as municipal employees; (3) whether a Corrections Officer is a “public official” entitled to statutory and common law qualified immunity; and (4) whether Officer Fore was acting in a discretionary capacity when he discovered appellant. We shall affirm the judgment of the Circuit Court and hold that Fore and the County were entitled to immunity and that summary judgment was proper as to Jackson. I. Appellant was arrested on June 30,1999, after a traffic stop, and charged with fleeing and eluding a police officer, driving while revoked and suspended, and related traffic offenses.

The District Court set bail at $10,000 and appellant was committed and transported to the Detention Center. He received a health evaluation, conducted by Kenya Thomas, a Prison Health Services, Inc., nurse. On the checklist completed during this evaluation, Thomas indicated that Livesay’s general appearance and affect were normal, that he had no history of suicide attempt, no current suicidal ideation, and no history or evidence of self-mutilation. 4 Thomas also indicated that Livesay could be assigned to the general population. The ⁶ next day, a classification counselor at the Detention Center found no medical or mental health issues and specifically, no suicide risk. 5 Livesay was assigned a “mid-level” classification.

At approximately 6:50 P.M. on July 5, 1999, an inmate alerted appellee Corrections Officer Ricky Fore that there was an unconscious man in cell twenty. According to Fore’s deposition, he immediately ran up a flight of stairs to discover Livesay sitting slumped on the floor of his cell, a bed sheet tied between his neck and the bunk bed. Fore did not render direct assistance to Livesay, but instead radioed a “Code Two” medical alert to summon the facility’s Emergency Response Team (“ERT”). Inmates had gathered outside Livesay’s cell, and Fore next cleared the area by ordering them to “lock in” to their own cells.

Fore did not believe himself to be in any physical danger, but described himself as “just in shock.” The ERT arrived approximately five minutes after Fore issued the Code Two. The ERT personnel rendered emergency medical aid until paramedics arrived; appellant was then transported to Greater Baltimore Medical Center and eventually to Shock Trauma for further treatment. Appellant suffered oxygen deprivation, which caused some brain damage. 6 Section 11.3(H) of the Baltimore County Bureau of Corrections Operations Manual (“Operations Manual”) states as follows: ⁷ “Intervention During Suicide Attempt 1. An officer responding to a suicide attempt will immediately intervene based on the circumstances of the suicide attempt.

The officer will respond based on their training. Generally, the officer’s response may include: a. Assessment of the Officer’s and others’ safety; b. Securing the area; c.

Notifying the Central Control / Front Desk and summoning additional help if needed; d. Talk in a non-threatening way; e. Listening to the inmate; f. Extricating the victim, if hanging, while protecting the head and neck as much as possible; g.

Administering C.P.R. and/or other First Aid techniques; h. Utilization of protective safety equipment (i.e. rubber gloves, MADA Mask, etc.)” According to an internal affairs investigation report, appel-lee Fore had attended a Bureau of Corrections presentation entitled Suicide Discovery and Response on September 23, 1998, and received a passing score on the examination. Sgt. John Ripley, the Bureau’s Training Coordinator, told the internal affairs investigator that Corrections Officers are taught to respond in the following manner to inmate suicide attempts: “• Immediately intervene. • Extricate the victim as soon as possible (if hanging). • Always assume the victim is alive and administer First Aid or CPR if needed. • Never leave the victim alone.” Sgt.

Ripley stated to the investigation that he does not deviate from his lesson plan (the “Lesson Plan”), which reads as follows: “Always ASSUME the victim is alive 1. Administer First Aid and/or C.P.R. ⁸ 1. REMEMBER ONLY a certified M.D. or Coroner, M.E. can pronounce an individual dead! 2. Protect the head and neck when cutting victim down. 3.

PROCEDURE (Hanging Victim) A. Start E.M.S. (emergency medical services) notification process B. One officer holds victim and stabilizes the head. C. Another officer cuts, loosens or removes the noose. ASSUME that the spinal cord is injured.

CAUTION: Some victims are lost because too much time is spent cutting them down! * * * D. Administer Rescue Breathing or C.P.R. if needed. E. DO NOT GIVE THESE ITEMS TO A SUICIDE VICTIM El. Water E2. Food E3.

Medication F. Never leave victim alone G. If there is DISCOLORATION or SWELLING apply an ice bag to that area.” Eugene M. Nuth, a former Warden of several Maryland county and state facilities, executed an affidavit (the “Nuth Affidavit”) stating as follows: “Based on Baltimore County Bureau of Corrections suicide prevention policies and training, it is my opinion that Ricky Fore should have attempted to extricate Joseph Kevin Livesay, freed his airway, and applied CPR and other first-aid techniques in which he was trained. Once officer Fore satisfied himself as to his own safety, which he did, it is my opinion that the palliative steps described in the foregoing paragraph were ministerial applications of existing policy. When he withheld these steps, ⁹ Officer Fore was not making a discretionary decision, but was failing to carry out a ministerial function of his job.” As we have indicated, the Circuit Court granted summary judgment in favor of Fore, Jackson, and the County. The court held that Fore enjoyed statutory immunity under § 5-507(b)(1) and that Fore was a public official, engaged in discretionary actions within the scope of his official duties, and had acted without malice.

The court further found that, because Livesay had not offered any evidence of Jackson’s negligence, there were no disputed material facts with respect to the negligence claim against Jackson, and that Jackson was therefore entitled to judgment as a matter of law. It held that, under the LGTCA, the County could be held liable only to the extent that its employees were liable. Because Livesay was not entitled to relief against Fore and Jackson, the court held that the County was entitled to summary judgment. Before this Court, Livesay contends that the LGTCA eliminates any immunity that appellees might assert.

He also contends that county officials, as opposed to municipal officials, are not entitled to statutory public official immunity. He further contends that Fore was not a public official, and that, even if Fore were a public official, he was not acting in a discretionary capacity.

II

As indicated previously, this matter was resolved in the Circuit Court on summary judgment. Whether summary judgment was granted properly is a question of law. The standard of review is de novo, and whether the trial court was legally correct. See Walk v. Hartford Casualty, 382 Md. 1, 14 , 852 A.2d 98, 105 (2004).

Maryland Rule 2-501(e) states that a trial court “shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In reviewing a grant of summary judgment under ¹⁰ Rule 2-501(e), we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Jurgensen v. New Phoenix, 380 Md. 106, 114 , 843 A.2d 865, 869 (2004). We review the record in the light most favorable to the non-moving party and construe any reasonable inferences which may be drawn from the facts against the movant. Id.

In addition, it is well established in Maryland that an appellate court ordinarily will consider only the grounds relied upon by the trial court in granting summary judgment. See, e.g., Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726, 729 (2001); PaineWebber v. East, 363 Md. 408, 422 , 768 A.2d 1029, 1036 (2001). To survive a motion for summary judgment, there must exist not just a dispute as to any facts, but rather as to facts which are material, i.e. necessary to the determination of the case. Remsburg v. Montgomery, 376 Md. 568, 580 , 831 A.2d 18, 25 (2003); Lippert v. Jung, 366 Md. 221, 227 , 783 A.2d 206, 209 (2001); Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005, 1011 (1993).

Because the instant case involves claims of governmental and public official immunity, disputes as to facts surrounding the underlying causes of action will not be material if summary judgment was proper on the basis of immunity alone. Immunity is a threshold issue that, once established, defeats a claim without inquiry into the underlying merits of the claim.

III

We begin our analysis with the negligence claim asserted against Corrections Officer Ricky Fore. A. We consider first Livesay’s argument that § 5-303(b) of the LGTCA eliminates immunity defenses for local government employees. Section 5-303(b) provides as follows: “(1) Except as provided in subsection (c) of this section [governing punitive damages], a local government shall be ¹¹ liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government. (2) A local government may not assert governmental or sovereign immunity to avoid the duty to defend or indemnify an employee established in this subsection.” Section 5 — 303(b) requires local governments to indemnify employees for torts committed within the scope of employment, and prevents the governmental entity from evading this obligation by asserting governmental or sovereign immunity.

It does not address the defenses which employees may assert in a tort action. Rather, employees’ defenses and immunities are preserved explicitly in § 5 — 303(d), which provides as follows: “Notwithstanding the provisions of subsection (b) of this section, this subtitle does not waive any common law or statutory defense or immunity in existence as of June 30, 1987, and possessed by an employee of a local government.” While the County as indemnor is the real party in interest, the claim is against Fore and is subject to any valid immunity he asserts. B. Fore has asserted both common law and statutory public official immunity. The Circuit Court found that Fore enjoys statutory public official immunity under § 5 — 507(b)(1).

That statute provides as follows: “An official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action.” Livesay contends that Baltimore County is not a “municipal corporation” and that Fore thus does not fall within the ambit of the statute. We hold that Fore is cloaked with statutory immunity so long as he is acting in a discretionary capacity, ¹² without malice, and within the scope of his employment or authority. We have held that the purpose of § 5 — 507(b)(1) “was to codify existing public official immunity, and not to extend the scope of qualified immunity beyond its Maryland common law boundaries.” Lovelace v. Anderson, 366 Md. 690, 704 , 785 A.2d 726, 734 (2001) (quoting Ashton v. Brown, 339 Md. 70 , 116 n. 23, 660 A.2d 447 , 470 n. 23 (1995)). As discussed infra, officials of Maryland counties enjoy common law public official immunity.

Section 5-507(b)(l) codified the common law, and while it did not extend the scope of the common law, it did not limit it either. Under the common law, county public officials enjoyed immunity; accordingly, despite the seemingly narrower drafting, § 5-507(b)(l) applies to county as well as municipal officials. As appellees point out, a contrary holding would produce the absurd result that when city and county police respond to the same emergency, the former enjoy immunity but the latter do not. We do not believe the Legislature intended this result.

Because we hold that § 5-507(b)(l) merely codified Maryland common law public official immunity, and because the case law on common law public official immunity is more developed, we shall analyze Fore’s situation in that context. A governmental representative is entitled to public official immunity under the common law when he or she is acting as a public official, when the tortious conduct occurred while that person was performing discretionary rather than ministerial acts, and when the representative acted without malice. See Lovelace v. Anderson, 366 Md. 690, 714 , 785 A.2d 726, 739 (2001) (citing James v. Prince George’s County, 288 Md. 315, 323 , 418 A.2d 1173, 1178 (1980)); Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 137 , 753 A.2d 41, 61 (2000). Fore must have been acting as a public official if he is to be immune from liability for his conduct.

At the time of the conduct at issue, he was acting as a corrections officer, i.e. as a prison guard. We hold that, in accord with Carder v. Steiner, ¹³ 225 Md. 271 , 170 A.2d 220 (1961), as a prison guard, Fore was a public official. Carder, a prisoner, sued a guard and the Warden of the Maryland House of Corrections alleging, inter alia, that the prison guard maliciously, wilfully, and negligently closed Carder’s cell door, knowing that the door would strike him. Carder contended that the guard was not a public official and hence was not entitled to public official immunity on the grounds that the guard’s duties were ministerial only and that he was liable for negligence in their performance, without a showing of malice.

The guard argued that he was a public officer exercising discretion, and therefore was immune unless he had acted with malice. We held that a prison guard is a public officer, entitled to immunity. We stated as follows: “We agree that the guard is a public officer within the meaning of the rule of the Ferling[ 7 ] and Cocking[ 8 ] cases. Immunity from liability rests not on the dignity of the office but rather upon the nature of the function exercised.

A policeman has been held to be a public officer. A prison guard, like a policeman, acts as an arm of the State, in keeping incarcerated those committed to imprisonment and in maintaining order in the prison, and is not to be held liable civilly for damages resulting from mere negligence in the performance of his duties.” Id. at 275-6 , 170 A.2d at 222 . (Citations omitted). Appellant maintains that Carder was overruled by James .

Appellant’s argument is based upon a footnote in James , stating that “[t]o the extent that Carder v. Steiner, 225 Md. 271 , 170 A.2d 220 (1961) and similar cases indicate that the existence of the first factor alone is sufficient to create public-official immunity, they are overruled.” James, 288 Md. at 828 n. 9, 418 A.2d at 1178 n. 9. ¹⁴ Appellant reads too much into footnote nine. In James , this Court addressed common law public official immunity, observing as follows: “Before a governmental representative in this State is relieved of liability for his negligent acts, it must be determined that the following independent factors simultaneously exist: (1) the individual actor, whose alleged negligent conduct is at issue, is a public official rather than a mere government 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. Once it is established that the individual is a public official