Mayor of Baltimore v. Austin

Liss, J., delivered the opinion of the Court. The Mayor and City Council of Baltimore, appellants (hereinafter “the City”), appeals from judgments entered against them in favor of the appellee, Martha Austin, as mother and next friend of Camille Austin, deceased, and as personal representative of the estate of Camille Austin. The case arises out of a tragic accident which resulted in the death by drowning of Camille Austin, aged five. In July of 1974, the Department of Recreation and Parks of the City of Baltimore, through the Bureau of Recreation, one of its subdepartments, operated a day camp for children located at the City’s Cahill Recreation Center.

The day camp was designated as Camp Cahill. Enrollment in the camp was open to children who applied from a particular area of Baltimore and a fee of $3.50 a week was set as the charge for participation in the program. The payment of the weekly fee was in some instances adjusted or waived, and children were permitted to participate if they were able to pay only part of the fee or even if they were not able to pay any fee at all. Nonpaying campers were offered the same services as those who paid and persons' not enrolled in the day care program were permitted to participate in camp activities at Cahill Center.

Campers going on bus trips arranged by the camp director paid an additional fee which was set at different rates for campers and noncampers. The director of Camp Cahill was required to prepare and submit for approval a proposed budget to the Department of Recreation and Parks. The budget, as prepared, contemplated receipts of $7,000.00 to be paid by 250 campers at the rate of $3.50 per week for eight weeks. Expenditures included the ⁵⁵⁹ cost of: hiring three additional leaders (for a total number of six leaders); providing milk or juice each day; hiring transportation for regular and special field trips; and purchasing arts and crafts supplies, postage and camp equipment.

All money collected by the camp was remitted to the Department of Recreation, and all bills were paid by the Department. The program was subsidized by the City. On July 19, 1974, a special chartered bus transported to Greenbrier State Park those members of the Cahill Camp who had paid the required bus fees and who had been given permission by their parents or guardians to participate in the trip outside the City of Baltimore. Greenbrier State Park is in Washington County, Maryland, approximately 90 miles from Baltimore.

Camille Austin was one of the campers on the trip. Although Camille could not swim, she was permitted to go into the water without supervision. She drowned. It was admitted that no instructions, guidelines or special operating procedures were promulgated by the camp director for the safety of the children who were allowed to go into the water.

Clarice Patterson, the Senior Director of Cahill Recreation Center at the time of the accident, reported to a District Supervisor who in turn reported to the Superintendent of the Bureau of Recreation. The Superintendent was under the supervision of the Director of Parks who was answerable to the Mayor and City Council. Ms. Patterson, as the head of Camp Cahill, was charged with administering the programs at the camp within guidelines issued by the Department. Scheduled trips were arranged by Ms. Patterson, and it was also her responsibility to arrange for transportation to and from the designated trip area.

The camp leaders were under her direction and control. As a result of the death of Camille Austin, a two-count suit was filed by her mother as next friend and as personal representative of her daughter’s estate. Martha Austin sought damages from the City, in the first count for the alleged negligence of the City that resulted in Camille’s death. The specific claim in that count was for the loss of Camille’s services and for the deprivation of the care, comfort and companionship of the deceased.

In the second count, the ⁵⁶⁰ appellee claimed damage for the decedent’s pain and suffering, and also claimed damages for medical and funeral expenses. The City filed a motion raising preliminary objection in which it sought a ruling that the operation of Camp Cahill by the Bureau of Recreation was a governmental function and that the City was thereby immune to suit. A hearing was held before Judge James W. Murphy, and after argument, the court denied the City’s motion. Subsequently, the City filed a general issue plea, and the case came on for trial before Judge J. Harold Grady and a jury.

At the close of the City’s case, it moved for a directed verdict raising issues of governmental immunity, and primary and contributory negligence. The motion was denied. At the close of the entire case, appellant’s motion for a directed verdict on the same issue was renewed and again denied. The jury returned a verdict in favor of the appellee on the first count, in the amount of $1,435.10, and for $150,000.00 on the second count.

Appellant filed a motion non obstante verdicto, or in the alternative, for a new trial. These motions were denied. The judgments in favor of the appellee were made absolute in favor of the appellee, and. it is from these judgments that this appeal was filed. Two issues are raised by this appeal: 1.

Did the court err in ruling that the operation of Camp Cahill by the City was not a governmental function? 2. Did the court err in allowing the appellee to use the deposition of Clarice Patterson, not a party to this suit, as an adverse witness? Since the second issue raised by the City is an evidentiary one, we will, for the sake of convenience, consider it initially. Appellant contends that the trial court committed reversible error in permitting appellee’s counsel to read into evidence, during appellee’s case in chief, portions of the deposition of the director of Camp Cahill as if she were an adverse witness.

The issue was raised as a preliminary matter before the trial ⁵⁶¹ judge who conducted a hearing and ruled that the reading of the deposition was permissible in the appellee’s case. Maryland Code (1974), Section 9-113 of the Courts and Judicial Proceedings Article, provides: “In a civil case, a party or an officer, director, or managing agent of a corporation, partnership, or association may be called by the adverse party and interrogated as on cross-examination.” (emphasis added) Rule 413 (a) (2) of the Maryland Rules of Procedure states: The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent or a person designated under Rule 405 b to testify on behalf of a public or private corporation, partnership, association or governmental agency which is a party may be used by an adverse party for any purpose, (emphasis added) The Courts of Maryland have repeatedly held that Section 9-113, supra, must be strictly construed. Nottingham Village, Inc. v. Baltimore County, 266 Md. 339 , 292 A. 2d 680 (1972); Williams v. Wheeler, 252 Md. 75 , 249 A. 2d 104 (1969); Mike v. Service Review, Inc., 19 Md. App. 287 , 299 n.6, 310 A. 2d 585 , 592 n.6 (1973). The appellant and the appellee agree that the legal question here involved is whether Clarice Patterson was a “managing agent” for the purpose of this case.

The testimony offered by the appellee revealed the following: Ms. Patterson was the director of Camp Cahill and had been its director for 14 years; she promulgated the rules for the camp; she was responsible for the enforcement of the rules; she prepared the budget for the camp; she suggested the number of employees needed to staff the camp; she assumed responsibility and control for the scheduling of trips away from camp property, and she obtained and provided transportation for these trips. The City, in cross-examination of Ms. Patterson, elicited testimony from her that while she had the responsibility of setting the rules which governed Camp Cahill, that these rules were required to follow the guidelines issued by the Department of Recreation and Parks and she was under the ⁵⁶² supervision and control of the Department’s supervisors. All field trip programs were required to be approved by the Superintendent. The camp brochure, while prepared by Ms. Patterson, was subject to approval by her superiors.

The staff at the Center was appointed by the Department, and the director of Camp Cahill had no power to hire employees. From these factual findings, the trial court concluded that Ms. Patterson was a “managing agent” within the context of the statute and rule which we have quoted. Black’s Law Dictionary 86 (4th ed. 1951) defines a managing agent as “a person who is invested with general power, involving the exercise of judgment and discretion, as distinguished from an ordinary agent or employee, who acts in an inferior capacity, and under the direction and control of superior authority____” The case which most nearly approaches the factual situation in the case at bar is Scott County School District I v. Asher, 312 N.E.2d 131 (Ind. App. 1974), aff’d, 324 N.E.2d 496 (1975).

In that case, a high school student sued his school district to recover damages for an injury sustained by the student in his industrial arts class as a result of an accident involving a bench saw. The Indiana Rules of Procedure, Trial Rule 32(A)(2) permitted an adverse party to use a deposition for any purpose for “anyone who at the time of taking the deposition was an officer, director, or managing agent... of an organization, including a governmental organization____” The court stated the test to be applied in determining whether a deponent was a management agent to be as follows: The test as to whether one serves in such capacity to a party so that the party may be deposed through him as managing agent is not title, but the functions performed in furtherance of the party’s activities and interest. If the person has general powers to exercise his judgment and discretion dealing with corporate matters he may be deemed a managing agent. 312 N.E.2d at 135 . The Indiana Court of Appeals held that as the teacher was responsible for determining the type of saw to be purchased ⁵⁶³ for the shop class, as well as the safety features to be included, that he was a managing agent within the meaning of the deposition rules.

Cases in our own jurisdiction are of comparatively little help in resolving this issue. Mike, supra, merely states that the witness sought to be called as an adverse witness was not shown to be an officer, director or managing agent of the corporate defendant. In Chertkof v. Philadelphia, B. & W. R. R., 254 Md. 557 , 255 A. 2d 14 (1969), the Court approved the trial court’s refusal to permit two individuals to be called as adverse witnesses on the basis that neither was an “officer, director or managing agent” of the railroad. No factual basis for that conclusion was stated.

Conversely, in Honga River Gun Club, Inc. v. Montchester Gun Club, Inc., 20 Md. App. 335 , 315 A. 2d 810 (1974), we held the head caretaker and guide of a gun club to be a managing agent of the club, again without any explanation for the factual holding. In other jurisdictions, the acting police chief and head jailer was held to be a managing agent for a city, Hodgins v. Oles, 505 P. 2d 825 (Wash. App. 1973); a manager of a defendant’s claim department and defendant’s chief surgeon were held to be managing agents of a defendant railroad, Krauss v. Erie Railroad Co., 16 F.R.D. 126 (S.D.N.Y. 1954). We believe that Ms. Patterson was, in fact, the managing agent of the City so far as the Cahill Center program was concerned.

She had wide authority and discretion, and while it is true that she was under the supervision of her superiors, her knowledge of the day-to-day operation of the Center was far more direct and superior to that of the Superintendent. Assuming, arguendo, that she was not a managing agent, and that the trial court erred in allowing the use of her deposition in the appellee’s case in chief, the error was harmless. Ms. Patterson appeared as a witness in the case, and her testimony was virtually identical to that read from the deposition. The Court of Appeals has held that if the trial court erred in admitting evidence through a witness, and if the same testimony is produced by other admissible testimony, that the error is harmless.

See Glen Burnie ⁵⁶⁴ Shopping Plaza, Inc. v. Schreiber Bros., Inc., 220 Md. 303 , 152 A. 2d 807 (1958). In Seaboard Coastline Railroad Co. v. Hughes, 521 S.W.2d 558 (1975), depositions were taken from two conductors whose train was involved in an accident. The trial court ruled they were managing agents and permitted their depositions to be read to the jury. The Tennessee Supreme Court held the trial court was in error in ruling that the conductors were managing agents, but affirmed the judgment on the ground that the error was harmless and nonprejudicial.

The court said: “[Sjince one of the conductors testified and since his testimony, along with the testimony of other witnesses covered the essential areas of the non-testifying conductor, we are unable to say that this error affirmatively affected the outcome of the trial.” Id. at 563 . We, therefore, find no reversible error in the trial court's rulings on this issue. We now address ourselves to the issue of whether the trial court erred in holding that the operation of Camp Cahill by the City was not a governmental function. It should be noted, preliminarily, that the appellant has raised no issue on appeal as to the finding of the jury that the City was negligent, and that this negligence caused the death of Camille Austin; nor has the appellant questioned, in this appeal, the reasonableness of the verdicts awarded by the jury.

Appellee has in her brief and argument presented an emotional appeal for the judicial abrogation in Maryland of the doctrine of governmental immunity for torts committed by municipal employees. She urges that we join the growing number of states which have, in the past few years, struck down the doctrine of municipal immunity from tort liability. 1 ⁵⁶⁵ The application of the doctrine of governmental immunity has resulted in many cases of unfair and unjust denial of the rights of citizens who have been injured by the negligence of municipal agents and employees. However, we are bound to follow the pronouncements of our own Court of Appeals. That Court has consistently refused to renounce the doctrine of sovereign immunity, and has stated that if the standard is to be abandoned or modified, it is the responsibility of the Legislature to do so.

In Duncan v. Koustenis, 260 Md. 98, 104 , 271 A. 2d 547 (1970), the Court of Appeals declined to abrogate governmental immunity by saying: “[Bjecause the doctrine is so deeply ingrained in the law of Maryland, this Court has specifically declined to alter it without a legislative mandate. Weisner v. Board of Education of Montgomery County, 237 Md. 391, 395 , 206 A. 2d