Lovelace v. Anderson

ELDRIDGE, J. In this tort case, an off-duty Baltimore City police officer, Kenneth Anderson, was employed by a hotel as a private security guard. While Anderson was on duty as a security guard at the hotel, two men entered the hotel lobby and pointed a sawed-off shotgun at the desk clerk, attempting a robbery. Anderson, who was in the hotel lobby at the time, took out his police service handgun, and a gun battle ensued between Anderson and the robbers. The plaintiff James Lovelace, a guest of the hotel who happened to be in the lobby at the time, was struck and injured by a bullet fired from Anderson’s handgun.

In Lovelace’s tort action against Anderson and the hotel owners and operators, the trial court granted summary judgment in favor of Anderson and the hotel owners and operators, and the Court of Special Appeals affirmed. We granted Lovelace’s petition for a writ of certiorari to consider the tort liability, if any, of Anderson and the hotel owners and operators for Anderson’s allegedly negligent shooting of Lovelace. We shall reverse the grant of summary judgment. I. A. The trial court’s grant of summary judgment was based on numerous depositions, affidavits, and exhibits.

The testimony on several matters was conflicting, and we shall in ⁶⁹⁵ our review of the facts note some of those conflicts. Nevertheless, as the tort action against the defendants Anderson and the hotel owners and operators was decided by a grant of the defendants’ motions for summary judgment, we must review the facts, and all inferences therefrom, in the light most favorable to the plaintiffs. See, e.g., Taylor v. Nations-Bank, 365 Md. 166, 173-174 , 776 A.2d 645, 650 (2001) (in reviewing “the propriety of the court’s grant of summary judgment * * *, the evidence, and all inferences therefrom, are viewed in the light most favorable to the nonmoving party”); Jones v. Mid-Atlantic Funding, 362 Md. 661, 679 , 766 A.2d 617, 626 (2001) (“when considering the granting of summary judgment we examine the facts and the inferences derived from the evidence in the light most favorable to the nonmoving party”); Walpert v. Katz, 361 Md. 645 , 650 n. 2, 762 A.2d 582 , 584 n. 2 (2000); Okwa v. Harper, 360 Md. 161, 178, 187 , 757 A.2d 118, 127, 132 (2000); Williams v. Baltimore, 359 Md. 101, 113-115 , 753 A.2d 41, 47-48 (2000); Ashton v. Brown, 339 Md. 70, 79-80 , 660 A.2d 447, 451-452 (1995), and cases there cited. Furthermore, it is an established rule of Maryland procedure that, “[i]n appeals from grants of summary judgment, Maryland appellate courts, as a general rule, will consider only the grounds upon which the [trial] court relied in granting summary judgment.” PaineWebber v. East, 363 Md. 408, 422 , 768 A.2d 1029, 1036 (2001).

Judge Rodowsky for the Court in the PaineWebber opinion, 363 Md. at 422-423 , 768 A.2d at 1036-1037 , went on to set forth the reasons for this principle, quoting from Gresser v. Anne Arundel County, 349 Md. 542 , 709 A.2d 740 (1998), and Geisz v. Greater Baltimore Med. Ctr., 313 Md. 301 , 545 A.2d 658 (1988), as follows: “ ‘[W]e will not speculate that summary judgment might have been granted on other grounds not reached by the trial court.’ ’’Gresser, 349 Md. at 552 , 709 A.2d at 745 . In Geisz v. Greater Baltimore Med. Ctr., 313 Md. 301, 314, n. 5 , 545 A.2d 658 , 664 n. 5 (1988), we stated the rule as follows: ⁶⁹⁶ “ ‘On an appeal from the grant of a summary judgment which is reversible because of error in the grounds relied upon by the trial court the appellate court will not ordinarily undertake to sustain the judgment by ruling on another ground, not ruled upon the trial court, if the alternative ground is one as to which the trial court had a discretion to deny summary judgment.

For example, a motion might be denied in order to allow the party opposing the motion a further opportunity through discovery to present a triable issue of fact. See Metropolitan Mtg. Fund v. Basiliko, 288 Md. 25 , 415 A.2d 582 (1980). Thus, in Henley v. Prince George’s County, 305 Md. 320 , 503 A.2d 1333 (1986), a case of alleged negligent hiring, we reversed a summary judgment for a defendant because, contrary to the trial court’s conclusion, we found a triable issue of hiring.

We would not, however, consider if a lack of proximate cause was an alternative support for the judgment because ‘[t]he effect of our ruling on the issue of proximate cause, or any other issue not considered by the trial judge would be to deprive the trial judge of discretion to deny or to defer until trial on the merits the entry of judgment on such issues.’ Id. at 333 , 503 A.2d at 1340 .’ ” See also, e.g., Bishop v. State Farm, 360 Md. 225, 234 , 757 A.2d 783, 787 (2000) (“it is a settled principle of Maryland appellate procedure that ordinarily an appellate court will review a grant of summary judgment only upon the grounds relied upon by the trial court”); Ashton v. Brown, supra, 339 Md. at 80, 119 , 660 A.2d at 452, 471 ; Gross v. Sussex, 332 Md. 247 , 254 n. 3, 630 A.2d 1156 , 1159 n. 3 (1993); T.H.E. Ins. v. P.T.P., Inc., 331 Md. 406 , 409 n. 2, 628 A.2d 223 , 224 n. 2 (1993); Boyer v. State, 323 Md. 558, 588 , 594 A.2d 121, 136 (1991). B. In December 1993, Kenneth Anderson was employed by the Baltimore City Police Department, working 40 hours per week as an “administrative sergeant” in the southwest district of Baltimore City. Anderson’s duties for the Baltimore City ⁶⁹⁷ Police Department at that time consisted of “administrative stuff that ... came across my desk, with reference to photographs, vehicles, vehicle maintenance, ... medical.” He was not, at the time, “on the streets” for the Police Department. Also in December 1993, during his off-duty hours as a Baltimore City policeman, Anderson was employed as a security guard at a hotel outside of Baltimore City.

The hotel was then called the Days Inn, and it was located on Security Boulevard in Baltimore County. According to Anderson’s deposition testimony, he worked 24 or 25 hours per week for the Days Inn. Anderson further testified that, at the time he and other security guards were hired by the Days Inn, the person who hired them “wanted us to work security. She had special, you know, assignments for us that she wanted, and one of them was to prevent robberies if we could.... ” When on duty as a security guard for the Days Inn, Anderson would not wear his police uniform but would dress in “just regular everyday plain clothes.” Anderson further testified that, when he and others were on duty as security guards, the management of the Days Inn “did not want our guns to show.” Anderson’s police service handgun was a Glock 17 nine millimeter semi-automatic pistol which, when fully loaded, would hold seventeen bullets.

He carried this handgun, concealed, when acting as a security guard for the hotel. Anderson had not obtained from the Maryland State Police a permit to carry a handgun when employed as a security guard at the Days Inn in Baltimore County. During the late afternoon and evening of December 2, 1993, Anderson was not on duty in Baltimore City as a policeman. Instead, he was on duty as a security guard at the Days Inn, working the 4:00 p.m. to midnight shift.

He was paid by the owners and operators of the Days Inn for the 4:00 p.m. to midnight period on December 2, 1993. On the evening of December 2, 1993, James Lovelace was a guest at the Days Inn on Security Boulevard, and he had been a guest at the hotel for the previous five or six days. Prior to the evening of December 2, 1993, Lovelace had been intro ⁶⁹⁸ duced to Anderson, and he knew that Anderson was one of the security guards at the Days Inn. Michael Gordon was employed as a desk clerk at the Days Inn, and he was on duty behind the desk during the evening of December 2, 1993.

At about 8:10 p.m. on December 2, 1993, Lovelace walked into the lobby at the Days Inn and stood at one end of the front desk which was about ten feet in length. Gordon was behind the front desk, and Anderson was sitting on a sofa in the lobby. A few seconds after Lovelace entered the hotel lobby, two men, later identified as Earl Jennings and Randy Terry, and both “dressed in a scrubby fashion,” entered the hotel lobby and walked to the front desk. The testimony as to where Jennings and Terry were standing at the front desk was conflicting.

Terry removed a sawed-off shotgun from under his coat, pointed it at the desk clerk Gordon, and yelled “hold up.” Jennings immediately thereafter took out a bag, handed it to Gordon, and Gordon started toward the cash register. Anderson testified that when Terry pointed the shotgun at Gordon and yelled “hold up,” Anderson stood up, unzipped his jacket, got out his pistol, and announced “police.” According to Anderson, Terry turned around and fired at Anderson. Anderson stated that he returned the fire, that he was shooting with “tunnel vision,” that the “only thing I could see was that shotgun and the two suspects,” and that he lost “sight of Mr. Lovelace.” Anderson discharged twelve rounds of ammunition in “about three seconds.” Jennings was killed by a shot to his head. Terry was shot in the back, but he was able to flee.

Terry was later apprehended, convicted of attempted robbery and attempted murder, and sentenced to imprisonment for 32 years. Anderson lost three fingers from his left hand as a result of the gun battle. Anderson did not know that Lovelace had been shot until sometime after the gun battle. Lovelace’s testimony contradicted Anderson’s in some particulars.

According to Lovelace, after Terry pointed a shotgun at Gordon and yelled “hold up,” and after Jennings ⁶⁹⁹ handed a bag to Gordon, Anderson stood up and fired the first shot. Lovelace testified that Anderson did not say “police” before firing that initial shot. Lovelace also indicated that Anderson’s first shot struck Jennings, and that Jennings then fell to the floor. Immediately thereafter, Lovelace dropped to the floor although he had not been hit at that time.

Lovelace stated that he was lying on the floor with his feet near Jennings’s head, and that he saw Terry get shot and stagger out of the lobby. Lovelace testified that he then saw that Anderson was pointing his gun in the direction of Jennings’s head and Lovelace’s feet, that the gun went off, and that the bullet hit Lovelace’s feet. The bullet went through one foot and into the ankle of Lovelace’s other foot. After he was shot, Lovelace was able to move over to the sofa.

When Lovelace was at the sofa, he saw Jennings sit up, clutch his mid-section, and heard him “moaning and groaning.” Thereupon, Lovelace testified, “Sergeant Anderson stood in back of him [Jennings] and shot him in the back of the head and killed him.” Lovelace was initially taken to St. Agnes hospital in Baltimore, and he was later treated at a Veterans Administration (VA) hospital. At the time of his deposition in 1997, Lovelace was still going to the VA hospital every two weeks for treatment because of the injury to his feet, and he needed a cane in order to walk. Terry testified that, after he yelled “hold up,” Anderson fired the first shot, that the first bullet hit Terry, and that Terry returned the fire. According to Terry, Anderson did not identify himself as a police officer.

Terry stated that Jennings did not fire a gun, that Terry had both a 12 gauge shotgun and a .357 magnum handgun, and that he did not begin shooting until Anderson shot him. Terry testified that he fired the shotgun twice and the handgun six times. Terry claimed that he did not see Anderson until Anderson fired his gun. Terry estimated that the gun battle lasted five or six minutes.

A ballistics expert, who had worked fifteen years for the Maryland State Police Crime Laboratory, stated that the ⁷⁰⁰ bullet recovered from Lovelace’s body was fired from Anderson’s Glock 17 nine millimeter pistol. This case was further complicated by the fact that the ownership of the Days Inn changed on December 2,1993. Up until sometime on December 2nd, Sage Hospitality Resources, Inc., managed the hotel under a managing agreement with the owner, the Bank of Baltimore, and Sage employed Anderson as a security guard. On December 2, 1993, the hotel was sold to Sterling Hotel, Inc., and Sterling, either then or sometime thereafter, became Anderson’s employer.

Although the closing occurred in the evening of December 2nd shortly before the attempted robbery, the evidence was conflicting as to the private hotel corporation which was Anderson’s employer when the attempted robbery took place. When asked “what if any participation did Sage Resources, Inc., have in the managing of the premises” after “the closing took place,” a representative of Sage testified, “none I believe.” Certain documentary evidence supported an inference that Sage’s management responsibilities ended prior to the attempted robbery. Other documentary evidence and pay records, however, indicated that Sage’s management responsibilities extended beyond the closing to the end of the day. 1 The Workers’ Compensation Commission determined that Sage Hospitality Resources, Inc., and the Mayor and City Council of Baltimore, were co-employers of Anderson at the time of his injury. 2 ⁷⁰¹ C. Certain regulations of the Baltimore City Police Department, as well as state statutory provisions, have been relied upon by various parties in this case. These concern secondary employment of police officers, authority of police officers outside of their territorial jurisdiction, and immunities of police officers.

Maryland Code (1957, 1996 Repl.VoL), Art. 27, § 729A, provides as follows: “A law enforcement agency may not prohibit secondary employment but may promulgate reasonable regulations as to a law enforcement officer’s secondary employment.” 3 Rules and Regulations of the Baltimore City Police Department, contained in various “General Orders” of the Department, specifically regulate secondary employment by police officers, including secondary employment outside of Baltimore City. General Order 6-90, paragraphs one and two, provide for the obtaining of the Department’s permission to engage in secondary employment and limit allowable secondary employment to that specified in the permission. Paragraph nine of the same General Order requires a police officer engaging in secondary employment to “9. Obtain a handgun permit from the Maryland State Police, when you are required by your secondary employers to be armed as a condition of your employment.

In this case, you are armed under the authority of your secondary employer.” Paragraph eleven of the same General Order, relating to secondary employment outside of Baltimore City, states that a police officer “11. May obtain secondary employment outside the City of Baltimore, as long as all the following conditions are met: ⁷⁰² a. You are acting as a private citizen, without exercising powers and duties of a police officer. b. You are not using Baltimore City Police credentials or equipment. c.

You are not acting as a special police officer or private detective, except when employed in accident reconstruction or arson investigation. d. You are not operating as a private detective, guard and/or watchman agency.” Anderson had received permission from the Baltimore City Police Department to work as a security guard at the Days Inn. Nevertheless, as previously mentioned, Anderson had not obtained a permit from the Maryland State Police to carry a handgun while engaged in his secondary employment. In an affidavit filed in support of the plaintiffs’ opposition to the motions for summary judgment, Colonel Wilbert T. Travers, Jr., a former Superintendent of the Maryland State Police, expressed the opinion that Anderson’s secondary employment was in violation of Baltimore City Police Department regulations concerning secondary employment, that he was not acting as a Baltimore City Police Officer during the gun battle, and that he was guilty of gross negligence.

A state statutory provision in effect in December 1998, and presently codified as Code (2001), § 2-102 of the Criminal Procedure Article, delineates the authority of a police officer to exercise police powers outside of the officer’s jurisdiction. Subsections (b)(c) and (d) of § 2-102 provide in pertinent part as follows (emphasis added): “(b) In general. — (1) Subject to the limitations of paragraph (3) of this subsection, a police officer may make arrests, conduct investigations, and otherwise enforce the laws of the State throughout the State without limitations as to jurisdiction.” “(3) A police officer may exercise the powers granted by this section when: ⁷⁰³ (i) 1. the police officer is participating in a joint investigation with officials from another state, federal, or local law enforcement unit, at least one of which has local jurisdiction; 2. the police officer is rendering assistance to another police officer; 3. the police officer is acting at the request of a police officer or State Police officer; or 4. an emergency exists; and (ii) the 'police officer is acting in accordance with regulations adopted by the police officer’s employing unit to carry out this section.” “(c) Required notifications. — (1) A police officer who acts under the authority granted by this section shall notify the following persons of an investigation or enforcement action: “3. the chief of police or chiefs designee, when in a county with a county police department, except Baltimore City; “(d) Immunities and exemptions; employee status. — A police officer who acts under the authority granted by this section: (1) has all the immunities from liability and exemptions as a State Police officer in addition to any other immunities and exemptions to which the police officer is otherwise entitled; and (2) remains at all times and for all purposes an employee of the employing unit.” The plaintiffs have consistently argued that Anderson was in violation of subsections (b)(3)(4)(ii) and (c)(l)(i)(3) of the above-quoted statute, that, therefore, he was not acting as a Baltimore City police officer during the evening of December 2, ⁷⁰⁴ 1993, and that, for this reason, he was not entitled to the immunities of a police officer. 4 Some statutory provisions referred to by the parties concern the immunities of government officers or, specifically, police officers. Code (1974, 1998 Repl.Vol.), § 5-507(b)(l) of the Courts and Judicial Proceedings Article, provides: “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.” See also § 5-511(b) of the Courts and Judicial Proceedings Article (“an official of a governmental entity, while acting in a discretionary capacity, without malice, and within the scope of the official’s authority is immune” from tort liability). We have pointed out that the purpose of these provisions “was to codify existing public official immunity, and not to extend the scope of qualified immunity beyond its Maryland common law boundaries.” Ashton v. Brawn, supra, 339 Md. at 116 n. 23, 660 A.2d at 470 n. 23.

We have also held that a police officer, while acting in the scope of his employment as a police officer, is a “public official” for purposes of the public official immunity doctrine. Williams v. Baltimore, supra, 359 Md. at 138-139 , 753 A.2d at 58-59 , and cases there cited. The doctrine of public official immunity under Maryland law was summarized by the Court in James v. Prince George’s County, 288 Md. 315, 323-324 , 418 A.2d 1173, 1178 (1980) (emphasis in original): “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 ⁷⁰⁵ 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 and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability.” As indicated above, the defense of public official immunity generally applies only to negligent acts. In DiPino v. Davis, 354 Md. 18, 49 , 729 A.2d 354, 370 (1999), after setting forth the above-quoted language from James v. Prince George’s County, supra, Judge Wilner for the Court stated: “Those principles apply to negligent conduct, not to intentional conduct.

In Cox v. Prince George’s County, 296 Md. 162 , 460 A.2d 1038 (1983), we made clear that a police officer, who might otherwise have the benefit of this immunity, does not enjoy it if the officer commits an intentional tort or acts with malice.” See also Ashton v. Brown, supra, 339 Md. at 117 , 660 A.2d at 470 (“Public official immunity is not a defense to ... intentional torts”); Parker v. State, 337 Md. 271, 285 , 653 A.2d 436, 443 (1995). There are other limitations to the defense of public official immunity. The defense is not applicable “in an action based on rights protected by the State Constitution.” DiPino v. Davis, supra, 354 Md. at 51 , 729 A.2d at 371 . See also Okwa v. Harper, supra, 360 Md. at 201-202, 757 A.2d at 140 ; Ashton v. Brown, supra, 339 Md. at 102-106 , 660 A.2d at 463-465 , and cases there cited.

Furthermore, unless the public official’s governmental employer itself has immunity from an independent source, the public official’s qualified immunity does not extend to the employer, and the employer can be held liable, under the doctrine of respondeat superior, for the official’s negligence occurring in the scope of employment even though the official may be entitled to immunity. DiPino v. Davis, supra, 354 ⁷⁰⁶ Md. at 48 n. 6, 729 A.2d at 370 n. 6; Parker v. State, supra, 337 Md. at 286 , 653 A.2d at 443 ; Boyer v. State, supra, 323 Md. at 582-583 , 594 A.2d at 133 ; Surratt v. Prince George’s County, 320 Md. 439, 443-445 , 578 A.2d 745, 747-748 (1990); Hatzinicolas v. Protopapas, 314 Md. 340, 355-356 , 550 A.2d 947, 954-955 (1988); Clea v. City of Baltimore, 312 Md. 662 , 667 n. 2, 541 A.2d 1303 , 1305 n. 2 (1988); Cox v. Prince George’s County, 296 Md. 162, 167-169 , 460 A.2d 1038, 1041 (1983); James v. Prince George’s County, supra, 288 Md. at 331, 418 A.2d at 1182 (“Consequently, if the complained of conduct is performed by a county representative while acting within the scope of his employment but in a negligent manner, Prince George’s County will be subject to suit for the resulting damage, without regard to the fact that the agent had public-official immunity”). Another limitation to a police officer’s defense of public official immunity occurs when, under the circumstances, a special relationship exists between the officer and the injured person which creates a duty on the part of the officer to protect the victim. Judge Cathell for the Court, in Williams v. Baltimore, supra, 359 Md. at 143-145 , 753 A.2d at 64-65 , recently discussed in detail this principle, as well as our earlier cases, and particularly Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986).

We explained in Williams, 359 Md. at 143-144 , 753 A.2d at 64 (footnotes and some citations omitted, emphasis in original): “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. Rather, the ‘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.” * * * “As evidenced in the wording of Ashbum, Maryland recognizes that liability for failure to protect an individual ⁷⁰⁷ citizen against injury caused by another citizen, where the officer is performing a discretionary act, does not lie against an officer, absent a ‘special relationship.’ In the presence of a ‘special relationship’ liability may lie and immunity may not survive. Thus, ‘[t]he public duty doctrine ... is not an absolute bar to recovery.’ ... As we continued in Ashbum: “ ‘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. See Restatement (Second) of Torts § 815(b).’ ” Moreover, when a police officer is acting outside of his or her jurisdiction, the General Assembly has appeared to require the presence of two additional circumstances as a condition for immunity. Code (1974, 1998 Repl.Vol.), § 5-605(a) of the Courts and Judicial Proceedings Article, states: “ § 5-605. Law enforcement officer acting outside jurisdiction.

(a) When not civilly liable. — A law enforcement officer acting outside the officer’s jurisdiction but in the State, is not civilly liable, except to the extent that he would be if acting in his own jurisdiction, for any act or omission in preventing or attempting to prevent a crime, or in effectuating an arrest, in order to protect life or property if: (1) The action is not grossly negligent; and (2) The action is taken at the scene of the crime or attempted crime.” Finally, the Local Government Tort Claims Act, Code (1974, 1998 Repl.Vol., 2001 Supp.), § 5-301 et seq. of the Courts and Judicial Proceedings Article, provides an immunity, from paying a judgment, to a local government employee who commits a tortious act within the scope of his local government employment, provided that the employee did not act with malice. See § 5-302(b). This provision, however, has no application to the present case. Employees of the Baltimore City Police Department were not included within the Local Government Tort Claims Act until the enactment of Ch. 364 of the Acts of 1997, ⁷⁰⁸ effective October 1, 1997.

Section 2 of Ch. 364 provides that “this Act shall be construed only prospectively and may not be applied or interpreted to have any effect on or application to any cause of action arising before the effective date of this Act.” D. This action commenced when James Lovelace and the United States Department of Veterans Affairs filed in the Circuit Court for Baltimore City a complaint for compensatory tort damages, based on the injury Lovelace suffered during the evening of December 2, 1993, at the Days Inn. Named as defendants were Kenneth Anderson, Sage Hospitality Resources, Inc., Sterling Hotel, Inc., the Mayor and City Council of Baltimore, the Baltimore City Police Department, the Baltimore City Police Commissioner, and the State of Maryland. The plaintiffs asserted that Anderson acted both with negligence and with gross negligence. The plaintiffs alleged, in the alternative, that each of the defendants (other than Anderson) was Anderson’s employer at the time and that Anderson was acting in the scope of his employment for such defendant.

Upon the motion of the defendant Sterling Hotel, Inc., the Circuit Court for Baltimore City transferred the case to the Circuit Court for Baltimore County. Thereafter, motions to dismiss were filed on behalf of the Mayor and City Council of Baltimore, the Baltimore City Police Department, the Baltimore City Police Commissioner, and the State of Maryland. The motions to dismiss on behalf of the Mayor and City Council, the Police Department, and the Police Commissioner, asserted that the complaint failed to state a claim against the movants upon which relief could be granted, that the movants were protected by immunity, that the movants were not proper defendants, and that, for purposes of respondeat superior tort liability, the governmental employer of Anderson on December 2, 1993, was not Baltimore City but was the State of Maryland. See Clea v. City of Baltimore, supra, 312 Md. at 666-671 , 541 A.2d at 1305-1307 . ⁷⁰⁹ In the motion to dismiss by the State of Maryland, the State asserted, inter alia, that it was entitled to governmental immunity and that “[t]he State of Maryland is not vicariously liable for alleged tortious conduct of a police officer who did not act in the scope of his public duties.” By separate orders entered at various times, the Circuit Court for Baltimore County granted the motions to dismiss filed by the Mayor and City Council, the Police Department, the Police Commissioner, and the State of Maryland.

After extensive discovery, including numerous depositions, and the filing of affidavits and exhibits, the defendants Anderson, Sage, and Sterling filed motions for summary judgment. Following a hearing, the Circuit Court on June 12, 1998, rendered a final judgment granting the motions for summary judgment. In its judgment order, the court determined that Anderson was at the time of the gun battle working as a security guard for the hotel and not as a police officer. The summary judgment was premised upon the assumption that there was sufficient evidence to show that Anderson acted negligently, but the court held that there was no evidence to show that his action “was intentional, [or] with malice or gross negligence.” The court further held that “Anderson, though working as a security guard at the time, possessed the same immunity from suit as if he [were] working as a police officer.” Since, in the court’s view, there was no evidence of malice or gross negligence, Anderson was held to be immune from a tort suit based on simple negligence.

The Circuit Court’s final judgment on June 12, 1998, did not expressly purport to resolve the conflict as to whether Sage or Sterling or both were Anderson’s employers when the shooting incident took place, and the order simply granted summary judgment in favor of both Sage and Sterling, as well as Anderson. The court seemed to be of the view that Anderson’s qualified immunity extended to his hotel employer. 5 ⁷¹⁰ The plaintiffs appealed, and the Court of Special Appeals affirmed. Lovelace v. Anderson, 126 Md.App. 667 , 730 A.2d 774 (1999). While agreeing with the Circuit Court that there was no evidence of malice or gross negligence on the part of Anderson, the Court of Special Appeals’ reasoning differed substantially from that of the trial court.

Whereas the Circuit Court had held that, during the gun battle, Anderson was acting as a private security guard for the hotel and not as a police officer, the Court of Special Appeals held that when the hold up began, “Anderson reverted to his police officer status,” that he “was not the agent of either Sage or Sterling,” and that he was acting exclusively “within the scope of his employment as a law officer at the time of the shooting,” Lovelace v. Anderson, supra, 126 Md.App. at 689, 705, 707-708 , 730 A.2d at 786, 795, 796 . Since, in the Court of Special Appeals’ view, Anderson was acting solely as a police officer, the appellate court concluded that neither Sage nor Sterling were liable under the principle of respondeat superior, and that Anderson was entitled to public official immunity. Relying on the holding of Bradshaw v. Prince George’s County, 284 Md. 294, 305 , 396 A.2d 255, 262 (1979), that a governmental employer “cannot be held liable under the doctrine of respondeat superior ” when the governmental employee individually is not liable because of public official immunity, the Court of Special Appeals held that “there can be no ⁷¹¹ liability on the part of [Anderson’s] employers, the State of Maryland,” the Mayor and City Council of Baltimore, the Baltimore City Police Department, and the Police Commissioner. Lovelace v. Anderson, supra, 126 Md.App. at 707 , 730 A.2d at 796 .

The Court of Special Appeals overlooked the fact that the above-mentioned holding in Bradshaw v. Prince George’s County, supra, had been expressly overruled in James v. Prince George’s County, supra, 288 Md. at 331, 418 A.2d at 1182 . See DiPino v. Davis, supra, 354 Md. at 48 n. 6, 729 A.2d at 370 n. 6. The plaintiffs filed a petition for a writ of certiorari presenting several questions, and this Court granted the petition. Lovelace v. Anderson, 355 Md. 610 , 735 A.2d 1105 (1999).

None of the defendants filed a cross-petition for a writ of certiorari. Our order granting the certiorari petition neither limited nor expanded the issues for review by this Court.

II

The plaintiffs baldly assert in their brief that the Circuit Court erred in granting the motions to dismiss filed on behalf of the Mayor and City Council of Baltimore, the Baltimore City Police Department, the Police Commissioner, and the State of Maryland, and that “the judgments in favor of all of the defendants should be reversed.” (Petitioners’ brief at 41, 49). Nevertheless, the questions presented in the certiorari petition, and repeated in the plaintiffs’ brief, relate solely to the liability of Anderson, Sage, and Sterling. Furthermore, the arguments in the certiorari petition and in the plaintiffs’ brief are directed exclusively at the tort liability of Anderson, Sage, and Sterling. The plaintiffs contend that it was error to grant the motions for summary judgment filed by Anderson, Sage, and Sterling, because there were numerous material facts in dispute relating to the liability of