Mayor of Baltimore v. Hart

CATHELL, Judge. This case arises from a motor vehicle accident in Baltimore City. On February 16, 2002, a Baltimore City police officer, responding to a call, drove a marked police car through a red traffic signal without stopping and collided with a vehicle driven by Michael Lee Hart. On August 20, 2003, Hart, the respondent, filed a complaint in the Circuit Court for Baltimore City against the Mayor and City Council of Baltimore (“the City”), petitioner, and also against his insurer, Allstate Insurance Company (“Allstate”), alleging injuries resulting from the February 16, 2002, collision.

Respondent asserted a single claim of negligence against the City and a count against Allstate as his uninsured motorist carrier. Maryland’s General Assembly has statutorily dictated the minimum safe driving conduct for emergency vehicles on a statewide level. Maryland Code (1977, 2006 Repl. Vol.), § 21-106 of the Transportation Article 1 provides that, when responding to an emergency call, “the driver of an emergency vehicle may ... [p]ass a red or stop signal, a stop sign, or a yield sign, but only after slowing down as necessary for safety .... ” § 21-106(b)(2) (emphasis added).

The Baltimore City Police Department, however, provides a more stringent stan ³⁹⁷ dard in its Baltimore City Police Department General Order No. 11-90 (General Order 11-90). That rule provides that Baltimore City police, when responding to an emergency call for service, must first stop their vehicle when intending to cross an intersection against a red traffic signal and, when assigned as a primary or secondary unit for dispatched calls and responding in an emergency mode, must bring their vehicle to a full stop before crossing against any traffic control device. General Order ll-90(2)(b) and (4)(b). Prior to trial, on January 14, 2005, petitioner filed a motion in limine to exclude evidence of General Order 11-90.

On March 3, 2005, following a hearing, the court denied petitioner’s motion. Trial was held on March 30 and 31, 2005. At trial, evidence of General Order 11-90 was introduced by respondent. Petitioner objected to the introduction of the evidence, but its objection was overruled.

On March 31, 2005, the trial court issued jury instructions, including an instruction on General Order 11-90. After deliberating, the jury found for respondent and returned a verdict of $46,894.05. The damages were split between petitioner — $20,000.00 (the statutorily mandated maximum) — and Allstate — $26,894.05. 2 Petitioner noted a timely appeal to the Court of Special Appeals. On February 2, 2006, the intermediate appellate court affirmed the decision of the Circuit Court.

Mayor and City Council of Baltimore v. Hart, 167 Md.App. 106 , 891 A.2d 1134 (2006). Petitioner then filed a petition for writ of certiorari; which we granted on June 7, 2006. Baltimore v. Hart, 393 Md. 242 , 900 A.2d 749 (2006). Petitioner presented two questions for our review: “1.

Are a police department’s internal rules or guidelines admissible in a vehicular negligence case to demonstrate that the driver of a police emergency vehicle in emergency service violated the standards of behavior for emergency response, when there is a statute that establishes a different standard? ³⁹⁸ “2. Did the trial court err in denying the City’s motion in limine, intended to exclude evidence of police departmental guidelines at trial; in allowing the introduction of such evidence at trial; and in including a jury instruction based on that evidence?” We hold that a police department’s internal rules and guidelines are admissible in specific situations in a vehicular negligence case when they are relevant to whether an officer’s conduct in that particular situation was reasonable. In the case sub judice, General Order 11-90 stated specifically what the conduct of a Baltimore City police officer should be when responding in an emergency mode before crossing an intersection against a red traffic signal — the officer must come to a full stop. General Order 11-90 was specifically relevant to the officer’s conduct in the case sub judice and is, therefore, admissible.

Violation of the General Order is not negligence per se, but it is relevant as to whether the officer’s conduct was reasonable. Because we find the evidence admissible, the motion in limine was properly denied and we need not address further the introduction of the evidence at trial or the jury instruction 3 pertaining to the General Order. I. Facts We adopt the facts as stated by Judge Davis, writing for the Court of Special Appeals in its decision below: “On February 16, 2002, [respondent] and Officer Mark V. Greff, a Baltimore City Police Officer, were involved in a motor vehicle collision at the intersection of Madison and Wolf[e] Streets in Baltimore City. The intersection of Madison and Wolf[e] Streets is controlled by a traffic signal. [Respondent] testified that, as he was headed westbound on ³⁹⁹ Madison Street, he stopped for a traffic light at Madison Street and Washington [Street]; thereafter, [respondent] proceeded on Madison Street to the intersection of Madison and Wolf[e]. [Respondent] stated that, as he approached the light at the intersection of Madison and Wolf[e] Streets, it turned green for westbound vehicles.

He proceeded through the intersection and, at that time, his van was struck by the police cruiser, driven by Officer Greff. [Respondent’s] testimony was that he never heard a police siren. He also did not see any police lights prior to entering the intersection. “Three witnesses, other than [respondent] and Officer Greff, testified at the hearing. Gregory Ware was in a vehicle on Wolf[e] Street, approximately a city block away from the accident, traveling in the same direction as the officer when he witnessed the accident. Ware testified that Officer Greff had the police lights on as he approached the intersection, but he only heard the siren intermittently, describing the sound as ‘the little boop, boop, boop.’ Ware’s signed statement from the morning of the accident indicates that Officer Greffs lights and siren were activated.

Ware testified that his statement indicating that Officer Greffs siren was activated was incorrect. Ware then refused to authenticate the statement. He also stated that Officer Greffs brake lights were activated, but he did not see the Officer come to a complete stop at the intersection. Ware recalled that the traffic signal controlling the direction of the Officer was red. “At the time of the accident, Jerry Perkins was operating a vehicle directly behind [respondent’s] vehicle on Madison Street.

He confirmed that, as he and [respondent] approached the intersection, the traffic signal turned green. Perkins was driving with his windows slightly open. His testimony, consistent with that of other witnesses, was that the Officer’s cruiser entered the intersection and struck [plaintiffs] van. Perkins did not recall seeing the police vehicle emergency lights flashing or hearing the siren prior to the accident; he testified, however, that he noticed the ⁴⁰⁰ police lights were on after the accident and he could hear a faint siren.

He was not able to state, with certainty, whether the lights were turned on prior to or following the accident. “Officer Charles Reickel, one of the officers assigned to investigate the accident, also testified at trial, principally to introduce the statement of Gregory Ware into evidence. Officer Reickel authenticated Ware’s statement, testifying that he wrote the facts contained in the statement, but Ware then read and signed the statement. He further explained that, if Ware had indicated Officer Greff ‘chirped’ his siren, it would have been entered that way on the report. The report as written, according to Officer Reickel, reflects that the siren was on continuously. “At the time of the accident, Officer Greff was responding to a police emergency, involving another officer struggling with a suspect on Monument Street.

Officer Greff testified that he responded to the emergency with the lights and siren on. As he approached the intersection of Madison and Wolf[e] Streets, he slowed his vehicle to clear the intersection, then proceeded through the intersection once it was cleared of vehicles. He stated that he proceeded through the intersection under the impression, however mistakenly, that all vehicles including [respondent’s] van had yielded to his vehicle. Officer Greff did not recall the color of the traffic signal as he approached the intersection, but testified that he was trained to slow down his vehicle at both green and red lights and clear the intersection because pedestrians do not always follow the traffic signals.

When asked during direct examination if he was aware of General Order 11-90, Officer Greff stated that he was not aware of that specific General Order, but was aware that there are General Orders issued by the Commissioner. On cross — examination, Officer Greff was handed a copy of General Order 11-90, and was still not able to say whether he had ever seen it. “On March 2, 2005, [prior to trial,] the court held a hearing on [respondent’s] motion in limine to preclude ⁴⁰¹ evidence of General Order 11-90. [Petitioner], relying on Richardson v. McGriff, 361 Md. 437 [, 762 A.2d 48 ] (2000), argued that Baltimore Police Department General Order 11-90 is irrelevant, and use of the General Order would allow [respondent] to mislead the jury in its determination of whether the officer violated the relevant duty of care. Additionally, [petitioner] argue[d] that Md. Code (2002 Repl. Vol., 2005 Supp.), § 21-106(b)(2) entitled the officer to ‘[p]ass a red or stop signal, a stop sign, or a yield sign, but only after slowing down as necessary for safety,’ and the Baltimore City Police Commissioner cannot usurp that privilege. “In his response to [petitioner’s] motion, [respondent] argue[d] that McGriff, supra, is distinguishable; insofar as McGriff was a police brutality case, where the Court of Appeals precluded the use of the guidelines because they were not relevant, subject to interpretation, and required the officer to exercise his/her discretion.

In the case sub judice, [respondent] contends General Order 11-90 is specific, the rules articulated therein do not require the exercise of discretion, and the rules are relevant to the facts of the case. [Respondent] also argued that the police Commissioner may adopt an enhanced duty of care, officers must follow those orders, and they are subject to sanctions for not following orders. “The court denied the motion in limine, stating, ‘there’s nothing in the rules of the game that says when a statute is more general that a local jurisdiction can’t make stricter rules. They can’t make more liberal rules, but they can make stricter rules, and that’s what they’ve done here and so the motion in limine is denied.’ ” Hart, 167 Md.App. at 110-14 , 891 A.2d at 1136-38 . A jury trial was held on March 30 and 31, 2005. On March 31, 2005, the jury found in favor of respondent and the court entered judgment against petitioner.

Petitioner appealed to the Court of Special Appeals, which, as we have said, affirmed the Circuit Court’s decision in an opinion filed on February 2, 2006. ⁴⁰² II. Discussion The central issue in this case is whether a Baltimore City Police Department General Order, specifically General Order 11-90, which governs “Departmental Emergency Vehicle Operation,” is relevant, and thus, admissible when the conduct the case is concerned about involves the operation of an emergency vehicle by a Baltimore City police officer in Baltimore City. Under the circumstances here present, we hold that the General Order is admissible for the reasons set forth infra. General Order 11-90 General Order 11-90 was published on November 7, 1990.

It is titled “Departmental Emergency Vehicle Operation” and states in pertinent part: “POLICY Members of this Department shall operate departmental vehicles with utmost care and caution, comply with all traffic laws and SHALL NOT BECOME ENGAGED IN HIGH-SPEED PURSUIT DRIVING, except under EXIGENT circumstances. Exigent circumstances consist of: Instances where the officer determines that immediate action is necessary; and Insufficient time exists to resort to other alternatives; and Failure to pursue may result in grave injury or death. The Department recognizes it is better to allow a criminal to temporarily escape apprehension than to jeopardize the safety of citizens and its officers in a high speed pursuit. General The City of Baltimore is a highly congested urban area which necessitates driving motor vehicles in a safe manner.

In order for a departmental vehicle to be considered operating in an EMERGENCY MODE, BOTH ROOF MOUNTED EMERGENCY LIGHTS AND ELECTRIC SIREN MUST BE ACTIVATED.... ⁴⁰³ RESPONSIBILITIES 2. When responding to an emergency call for service (e.g., Calls for service, either reported or on view describing incidents involving personal injury or the potential for personal injury, reported to be in progress or having just occurred), and upon activating your EMERGENCY LIGHTS AND ELECTRONIC SIREN you may: b. Pass a red stop signal, a stop sign, or yield sign, but only after stopping to ensure safe passage of other vehicles and pedestrians. 4. When assigned as Primary and Secondary Units for dispatched calls and responding in an emergency mode: a.

SLOW DOWN AT ALL INTERSECTIONS, ensure the intersection is safe to enter and then proceed cautiously. b. When crossing against any traffic control device, BRING YOUR VEHICLE TO A FULL STOP and ensure the intersection is safe to enter before proceeding. c. Ensure that your VEHICLE SPEED IS BOTH SAFE AND REASONABLE under the prevailing roadway and environmental conditions. NOTE: As an operator of an emergency vehicle you are charged with the duty to drive with due regard for the safety of all persons.

(See Transportation Article, Section 21-106d). COMMUNICATION OF DIRECTIVE Commanding officers and supervisors shall communicate the contents of this directive to their subordinates and ensure compliance. This directive is effective on the date of publication.” ⁴⁰⁴ General Order 11-90. The bolding and underlining is present in the original text of the General Order, providing extra emphasis.

Baltimore City Police Department General Orders are created and issued by the Baltimore City Police Commissioner pursuant to authority granted by the Code of Public Local Laws of Baltimore City. Specifically, Code of Public Local Laws of Baltimore City, § 16-7 vests the Baltimore City Police Commissioner with authority. Hart, 167 Md.App. at 114 , 891 A.2d at 1138 ; see also Beca v. City of Baltimore, 279 Md. 177, 180-81 , 367 A.2d 478, 480 (1977); Biscoe v. Baltimore City Police Dep’t, 96 Md.App. 1, 7 , 623 A.2d 666, 670 (1993). Code of Public Local Laws of Baltimore City, § 16-7 states in pertinent part: “In directing and supervising the operations and affairs of the Department, the Commissioner shall ..., be vested with all the powers, rights and privileges attending the responsibility of management, and may exercise the same, where appropriate, by rule, regulation, order or other departmental directive which shall be binding on all members of the Department when duly promulgated.

The authority herein vested in the Police Commissioner shall specifically include, but not be limited to, the following: (8) To regulate attendance, conduct[ ] training, discipline and procedure for all members of the Department and to make all other rules, regulations and orders as may be necessary for the good government of the Department and its members. (14) To suspend, amend, rescind, abrogate or cancel any rule, regulation, order or other department directive adopted by him or by any former Police Commissioner and to adopt all other reasonable rules, regulations and orders as he may deem necessary to enable the Depart ⁴⁰⁵ ment effectively to discharge the duties imposed upon it by this subtitle.” It is evident that the Baltimore City Police Commissioner enacted General Order 11-90 pursuant to his express authority to adopt General Orders. The General Order at issue here became effective on November 7, 1990, and applies to all members of the Baltimore City Police Department (i.e., the police officer in the case sub judice) when on duty. Relevancy Petitioner argues that General Order 11-90 is not relevant and any evidence of the order should have been excluded from the trial.

Petitioner bases this argument upon the existence of a Maryland statute which governs some of the same conduct — Maryland Code (1977, 2006 Repl. Vol.), § 21-106 of the Transportation Article. Section 21-106 of the Transportation Article states, in pertinent part: “(a) Circumstances for which privileges granted. — Subject to the conditions stated in this section, the driver of an emergency vehicle registered in any state may exercise the privileges set forth in this section while: (1) Responding to an emergency call; (2) Pursuing a violator or suspected violator of the law; or (3) Responding to, but not while returning from, a fire alarm. (b) Enumeration of privileges. — Under the circumstances stated in subsection (a) of this section, the driver of an emergency vehicle may: (2) Pass a red or stop signal, a stop sign, or a yield sign, but only after slowing down as necessary for safety; ...

(d) Driver not relieved from duty of care. — This section does not reheve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons.” ⁴⁰⁶ Both § 21-106 of the Transportation Article and General Order 11-90 govern the operation of Baltimore City police emergency vehicles when responding to an emergency call within the City of Baltimore. It is evident that § 21-106 is less stringent in its requirements than General Order 11-90. Section 21-106 provides that, when responding to an emergency call, the driver may pass a red or stop signal, but only after slowing down. § 21-106(b)(2) of the Transportation Article. General Order 11-90 provides that when responding to an emergency call for service the driver may pass through an intersection against a red stop signal, but only after stopping and, additionally, that when assigned as primary or secondary unit for dispatched calls and responding in an emergency mode, when crossing against any traffic control device, the driver must bring the vehicle to a full stop before crossing.

General Order 11-90(2)(b) and (4)(b). Petitioner contends that § 21-106 of the Transportation Article preempts General Order 11-90 and thus, evidence of the General Order should not have been permitted at trial. Under the circumstances of the case sub judice, we disagree. The fact that the General Assembly has enacted § 21-106 of the Transportation Article, governing the operation of emergency vehicles throughout the State, does not prohibit the Baltimore City Police Department Commissioner, as duly authorized by the Code of Public Local Laws of Baltimore City, from promulgating regulations and guidelines which enact additional requirements for the operation of emergency vehicles by Baltimore City police officers within Baltimore City, so long as the additional provisions do not allow conduct the State statute prohibits.

General Order 11-90 is not preempted by § 21-106 of the Transportation Article. When both a State law and a local regulation govern the same subject matter, Maryland, generally, follows the “concurrent power” rule. Mayor and City Council of Baltimore v. Sitnick, 254 Md. 303 , 255 A.2d 376 (1969); see also J. Scott Smith, State and Local Legislative Powers: An Analysis of the Conflict and Preemption Doctrines in Maryland, 8 U. Balt. L. Rev. 300 (1979); M. Peter Moser, County Home ⁴⁰⁷ Rule — Sharing the State’s Legislative Power with Maryland Counties, 28 Md. L.Rev. 327 (Fall 1968).

In Sitnick , the Court addressed whether a minimum wage law enacted by the City Council of Baltimore, which established a higher minimum wage than the State law, would be allowed to co-exist with the State law. The Court found that: “In the instant case we are of the opinion that the City law neither conflicts nor is inharmonious with the provisions of the State law, nor conflicts with any intention of the Legislature to reserve to itself the exclusive right to legislate on the entire subject matter, as we shall discuss in this opinion; therefore, the only theory by which the City law would be a nullity or invalid, is on the premise that the presence of the State in this field of regulation amounts to a pre-emption of the field by occupation, with the resulting ouster of local power to legislate.” Id. at 311 , 255 A.2d at 379 . In analyzing this issue, the Court looked to Rossberg v. State, 111 Md. 394 , 74 A. 581 (1909), “[t]he landmark case in this area, concerning the construction to be followed when there is an overlapping of state and local enactments dealing with the same subject matter.” Sitnick, 254 Md. at 312 , 255 A.2d at 380 . In Rossberg , the Court dealt with a Baltimore City ordinance which provided more severe penalties for the sale and use of cocaine than the State law.

The Court found that the ordinance and State law did not conflict and that municipal authorities have concurrent power. Id. at 410-17 , 74 A. at 582-84 . The Sitnick Court concluded that: “A distillation of the opinions we have cited[ 4 ] leaves the residual thought that a political subdivision may not prohibit what the State by general public law has permitted, but it may prohibit what the State has not expressly permitted. ⁴⁰⁸ Stated another way, unless a general public law contains an express denial of the right to act by local authority, the State’s prohibition of certain activity in a field does not impliedly guarantee that all other activity shall be free from local regulation and in such a situation the same field may thus be opened to supplemental local regulation.” 254 Md. at 317 , 255 A.2d at 382 . Addressing the application of Rossberg to these issues, Mr. Smith stated in his Comment that: “While subsequent cases decided under the Rossberg conflict rule may appear to be incongruous, there is harmony in the court’s decisions.

An analysis of the conflict rule reveals that there may be two tests, which employ different analytical techniques, to determine whether a conflict exists between a public general law and a local law. These tests may be labeled as the verbal test and the functional test. “An analysis using the verbal test focuses on the terms and coverage of the disputed laws; under the functional test the analysis focuses on the functional impact of the local law upon the public general law’s operation and purposes. Under the verbal test, if the language or provisions of the local law prohibit conduct permitted by the public general law, or if the local law permits conduct prohibited by the language or provisions of the public general law, then a verbal conflict exists and the local law is invalid. For example, in Heubeck v. City of Baltimore [, 205 Md. 203 , 107 A.2d 99 (1954)], a municipal