McNack v. State

CATHELL, J. This ease arises from the deaths of seven members of the Dawson family in a fire-bombing of their Baltimore City home. Relatives of the Dawson family, appellants, filed suit against the State of Maryland (the “State”) and the Mayor and City Council of Baltimore (the “City”), collectively appellees. 1 Appellants allege that the City had actively sought cooperation from members of the public in combating the illicit drug trade occurring throughout the city, but that when the Dawson family cooperated with the Baltimore City Police Department (the “BCPD”), the State and the City failed to protect them from retaliation by those against whom the Dawsons complained. Appellants alleged below that the State and the City violated the Dawson family’s right to due process and equal protection under Article 24 of Maryland’s Declaration of Rights. 2 Appellants also alleged that the government entities were negligent in failing to protect the Dawson family. The ³⁸⁵ State and the City argued that, with respect to the state constitutional claims, they did not owe appellants a duty and that the prerequisite for them to be found negligent under a traditional tort action, a special relationship, did not exist in this situation.

The Circuit Court for Baltimore City, agreeing with the State and the City, dismissed the case on May 25, 2002, because appellants failed to state a claim upon which relief could be granted. Appellants noted an appeal to the Court of Special Appeals. Prior to consideration in that court and on our own initiative, we issued a writ of certiorari, McNack v. State of Maryland, 396 Md. 11 , 912 A.2d 647 (2006), to consider the following issues: “1. At the motion to dismiss stage and taking all factual allegations as true, do Appellants allege facts to state a claim for violations of constitutionally protected due process rights under the ‘state created danger’ doctrine? “2.

At the motion to dismiss stage and taking all factual allegations as true, do appellants allege a special relationship between members of the Dawson family and Defendants? “3. Did the trial court err as a matter of law by dismissing Appellants’ claims prior to discovery, where the Appellants’ primary eyewitnesses are deceased leaving the Defendants solely and uniquely in possession of relevant information otherwise unavailable to Appellants at the pleading stage?” We hold that the Circuit Court for Baltimore City was correct as a matter of law when it found that the state-created danger theory did not apply under the assumed circumstances of this case; and, we also hold that on the facts pled, a special relationship did not exist between the appellees and the Dawson family. We further hold that the trial court did not err in dismissing the case prior to discovery being conducted. I. Facts In 1999, Angela and Carnell Dawson, along with five of their children, moved into 1401 East Preston Street in the East ³⁸⁶ Oliver neighborhood of Baltimore City.

In the Spring of 2002, Baltimore City launched its “Believe Campaign to Combat Drug Trafficking.” Appellants maintained that the City’s “Believe Campaign” pro-actively “solicited and encouraged Baltimore residents, including the Dawsons, to participate in the program by reporting illegal drug activities in their neighborhoods.” Appellants also asserted that the campaign was instituted even though the City “plainly knew or had reason to know that they were not able to provide adequate protection for responding witnesses.” Appellants assert that the City, despite knowing that it did not have the ability to protect witnesses, launched the Believe Campaign in “the midst of a violent retaliatory drug culture in certain areas of Baltimore City, where lack of witness cooperation was commonplace due to well-founded fear of retaliation.” Between January 1, 2000, and October 16, 2002, a total of 109 calls were made by the Dawson family to 911 or 311. The calls were generally made to report drug activity or disorderly persons in the vicinity of the Dawson family home. According to the appellants, the BCPD did not respond to these calls quickly and sometimes failed to respond at all. When the BCPD did respond, the officers would go directly to the Dawson family home, “indicating to the entire neighborhood, including the drug dealers, that it was the Dawsons who had called the police.” According to appellants, the drug dealers, made aware that the Dawsons were reporting them to the BCPD by officers arriving at the family home, began to threaten and attack members of the family in order to prevent future calls to the BCPD.

Appellants allege that on August 23, 2002, a drug dealer named John Henry wrote the word “Bitch” on an exterior wall of the family home and assaulted Angela Dawson by slapping her across the face. The same man allegedly threw bricks though windows in the family home on August 25, 2002, and September 4, 2002. He also allegedly hit Angela Dawson in the chest with a bottle on September 25, 2002. The next day, the Dawsons reported to the BCPD that a ³⁸⁷ different man, Darrell Brooks, was one of several people throwing bottles at their house.

Appellants, relying on a transcript of one of Carnell Dawson’s phone calls to 911, allege that on October 1, 2002, John Henry and several other men surrounded the Dawson family home and threatened to “bust up [the home’s] windows and shoot up my house.” On October 2, 2002, the BCPD apparently arrested John Henry, but he was released that same day. Appellants allege that the next day, October 3, 2002, at approximately 3:15 am, a Molotov Cocktail was thrown through the kitchen window of their home. Angela Dawson was able to extinguish the fire and the family was able to exit the house without serious bodily harm. Appellants assert that the BCPD, in response to the Molotov Cocktail incident, promised to give the Dawsons increased protection by placing them on a “Special Attention List” 3 and that the police “advised the Dawsons to move out of their home.” 4 Appellants also allege that an individual within the Baltimore City State’s Attorney’s office verbally offered protection to the Dawsons, but never followed up with the necessary referrals or paperwork.

According to the appellants, the Dawsons were neither placed on the Special Attention List nor into the State’s Attorney’s witness protection program. Early in the morning on October 16, 2002, appellants allege that Darrell Brooks, a local drug dealer, “kicked down the Dawsons’ front door, poured gasoline on their living-room floor, and set it ablaze.” Carnell and Angela Dawson, along with their five children—all under the age of fourteen—died as a result of injuries suffered in the fire. ³⁸⁸ II. Standard of Review When reviewing a “motion to dismiss a complaint for failure to state a claim upon which relief can be granted, a court must ‘assume the truth of all well-pleaded facts and allegations in the complaint, as well as all inferences (favorable to the pleader) that can be reasonably drawn from them.’ ” Lloyd v. General Motors Corp., 397 Md. 108 , 916 A.2d 257 (2007) (quoting Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624, 630 (1995)). A court will only order dismissal if, after assuming the allegations and permissible inferences stemming therefrom are assumed to be true, the plaintiff would not be afforded relief.

Lloyd, 397 Md. at 121 , 916 A.2d at 264 (citing A.J. Decoster Co. v. Westinghouse Electric Corp., 333 Md. 245, 249 , 634 A.2d 1330, 1332 (1994)). When determining whether an appellant has alleged claims upon which relief can be granted, “ ‘[t]here is ... a big difference between that which is necessary to prove the [commission of a tort] and that which is necessary merely to allege [its commission!.]’ ” Lloyd, 397 Md. at 121 , 916 A.2d at 265 (quoting Sharrow v. State Farm Mutual Ins. Co., 306 Md. 754, 770 , 511 A.2d 492, 500 (1986)). In such situations, “the court’s decision does not pass on the merits of the claims; it merely determines the plaintiffs right to bring the action.” Lloyd, 397 Md. at 122 , 916 A.2d at 265 (citing Figueiredo-Torres v. Nickel, 321 Md. 642, 647 , 584 A.2d 69, 72 (1991)). “Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.” Ricketts v. Ricketts, 393 Md. 479, 492 , 903 A.2d 857, 864 (2006) (citing Allied Invest.

Corp. v. Jasen, 354 Md. 547, 555 , 731 A.2d 957, 961 (1999); Bobo v. State, 346 Md. 706, 709 , 697 A.2d 1371, 1373 (1997); Morris , 340 at 531, 667 A.2d at 630 ).

III

Discussion A. State Created Danger Theory Appellants claim that due to the City’s solicitation of the Dawson family’s participation in the Believe Campaign that ³⁸⁹ the City expressly or impliedly promised to protect them against the type of attack they suffered. They further allege that instead of protecting the Dawsons, the City, through the actions of the BCPD, made the danger presented by the drug dealers greater by identifying the family to the neighborhood as informants of a sort. Thus, appellants allege that the City demonstrated a willful disregard for the safety of the Dawsons and maliciously caused them to be subjected to unconstitutional treatment, resulting in their deaths. The state created danger theory has its origins in language used in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 , 109 S.Ct. 998 , 103 L.Ed.2d 249 (1989).

In that case, Joshua DeShaney and his mother filed suit against the Winnebago County Department of Social Services (the “DSS”) alleging federal due process violations because the DSS failed to permanently remove him from his father’s custody after allegations of abuse were made. Id. at 191-92 , 109 S.Ct. at 1001 . In January of 1982, at the time of her divorce from DeShaney’s father, the child’s step-mother complained to police that the three year-old boy was abused by his father. DSS interviewed the father, but did not pursue the investigation.

One year later, in January of 1983, Joshua was admitted to the hospital with bruises and abrasions. The treating physician notified DSS that he suspected child abuse. DSS obtained an order from a Wisconsin juvenile court which placed Joshua in the temporary care of the hospital until a “Child Protection Team” could make a determination of how best to proceed in Joshua’s situation. The protection team determined that there was insufficient evidence to remove Joshua from his father’s home and that he should be returned to his father’s home with the understanding that his father would comply with certain conditions designed to protect Joshua.

Based on the recommendation of the protection team, the juvenile court returned Joshua to the custody of his father. Over the next seven months Joshua was treated in the hospital twice more for abuse and the social worker handling his case recorded signs of abuse during her visits to the father’s home in each of those months. ³⁹⁰ In March of 1984, Joshua’s father beat him so severely that he went into a coma and required emergency brain surgery. Although five year-old Joshua’s life was saved, he was expected to be institutionalized for the rest of his life. Joshua’s father was tried and convicted of child abuse.

Subsequently, Joshua and his mother brought an action in a federal court under 42 U.S.C. § 1983 (1996), 5 against Winnebago County, the DSS, and individual employees of the DSS alleging a violation of Joshua’s Fourteenth Amendment Due Process rights. The trial court granted summary judgment for the defendants and the United States Court of Appeals for the Seventh Circuit affirmed. The late Chief Justice Rehnquist, writing for the Supreme Court, explained why the State actors in Joshua’s case could not be held liable under the Due Process Clause for failing to act on Joshua’s behalf: “The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.... [T]he Due Process Clause of the Fourteenth Amendment was intended to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression^]’ ³⁹¹ ...

Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes. “Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual____If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” DeShaney, 489 U.S. at 195-97 , 109 S.Ct. at 1003-04 (citations omitted) (footnote omitted). The Court went on to note, however, that it had recognized limited circumstances where the Due Process Clause required the State to act affirmatively with respect to prisoners and involuntarily committed mental patients.

DeShaney, 489 U.S. at 198 , 109 S.Ct. at 1004 -05 (citing Estelle v. Gamble, 429 U.S. 97, 103-04 , 97 S.Ct. 285, 290-91 , 50 L.Ed.2d 251 (1976) (establishing the federal government’s obligation to provide medical care for its prisoners); Youngberg v. Romeo, 457 U.S. 307, 314-25 , 102 S.Ct. 2452, 2457-63 , 73 L.Ed.2d 28 (1982) (involuntary commitment does not deprive individuals of all substantive due process rights under the Fourteenth Amendment)). The Court noted the duty to act affirmatively was only imposed in those situations because the State had taken individuals into custody against their will. Id. at 199-200, 109 S.Ct. at 1005 . In Joshua’s case, he was not in the State of Wisconsin’s custody.

He had been returned to his father. While in the ³⁹² process of explaining why the State did not owe Joshua a duty, the Court apparently left open the door for what has become known as the state-created danger theory when it said: “While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. ” DeShaney, 489 U.S. at 201 , 109 S.Ct. at 1006 (emphasis added). The state-created danger theory, where applicable, imposes liability on a governmental entity for private acts that if committed by the government would violate constitutionally protected rights, even when no special relationship exists between the governmental entity and the injured person. Kneipp v. Tedder, 95 F.3d 1199, 1205 (3rd Cir.1996).

Generally, this sort of claim is limited to situations in which the state increases the risk of harm to its citizens through its own affirmative acts. Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.1998); Kennedy v. City of Ridgefield, 439 F.3d 1055,1062 (9th Cir.2006) (stating that there may be a due process violation when the governmental action affirmatively places the plaintiff in a dangerous situation.); Butera v. District of Columbia, 235 F.3d 637, 650 (D.C.Cir.2001) (“Regardless of the conduct at issue, however, the circuits have held that a key requirement for constitutional liability is affirmative conduct by the State to increase or create the danger that results in harm to the individual.”); Carlton v. Cleburne County, 93 F.3d 505, 508 (8th Cir.1996) (finding that the Due Process Clause imposes a duty when the government affirmatively places an individual in danger when the person would not have faced that situation without the state action.). “Absent such affirmative conduct by the State to endanger an individual, courts have rejected liability under a state endangerment concept.” Butera, 235 F.3d at 650 . There are several problems with appellants’ assertion of the state-created danger theory here. Initially, and foremost, Maryland has not adopted it as a basis upon which to ³⁹³ recover for violations of Maryland’s Constitution. 6 Although we have acknowledged that many provisions of the Maryland Constitution are in pari materia with their federal counterparts, “we have also emphasized that, simply because a Maryland constitutional provision is in pari materia with a federal one or its federal counterpart, does not mean that the provision will always be interpreted or applied in the same manner as its federal counterpart.” Dua v. Comcast Cable of Maryland, Inc., 370 Md. 604, 621 , 805 A.2d 1061, 1071 (2002).

To date, the General Assembly has not enacted, nor has this Court adopted, the state-created danger theory as a basis for recovery under Article 24 of the Declaration of Rights. We need not decide the issue today. Furthermore, the state-created danger theory, even when recognized by the various Federal Courts of Appeals, has only been discussed in the context of claims brought under 42 U.S.C. § 1983 for alleged violations of an individual’s civil rights—rights which are protected by the United States Constitution and federal statutes. The Supreme Court did not make the state-created danger theory applicable to alleged violations of Maryland’s, or any state’s, constitution.

The DeShaney Court stated: “A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes. But not ‘all common-law duties owed by government actors were ... constitutionalized by the Fourteenth Amendment.’ ” 489 U.S. at 202 , 109 S.Ct. at 1007 (quoting Daniels v. Williams, 474 U.S. 327, 335 , 106 S.Ct. 662, 667 , 88 L.Ed.2d 662 (1986)). We read the DeShaney Court’s language to indicate that even though some common law torts have federal constitutional implications, it is up to the state legislatures and courts to establish the parameters for liability, if any, of each state’s governmental actors with respect to civil remedies for ³⁹⁴ alleged violations of an individual’s state constitutional rights. Some violations of state constitutional provisions may also allow for relief under the federal constitution, but that does not necessarily mean that the legal theory under which the remedy is obtained is always the same. 7 Finally, the state-created danger theory, if we were to adopt it, requires an affirmative act by the governmental actor.

We address whether there were any affirmative acts by governmental actors, in the present case, in our discussion of special relationships in this opinion infra. There, we conclude, in our discussion of special relationships, that there were no affirmative acts by governmental actors in this case. Thus, even if we were to adopt the state-created danger theory, it would not apply in this instance because the state actors did not act sufficiently affirmatively towards the Dawson family. B. Special Relationship In order to sustain a claim for an action in negligence, a plaintiff must allege facts demonstrating “ ‘(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.’ ” Remsburg v. Montgomery, 376 Md. 568, 582 , 831 A.2d 18, 26 (2003) (quoting Muthukumarana v. Montgomery Coun ³⁹⁵ ty, 370 Md. 447, 486 , 805 A.2d 372, 395 (2002)).

This Court has held for over a century that: “ ‘[T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury.... As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.’ ” Bobo, 346 Md. at 714 , 697 A.2d at 1375 (quoting West Virginia Cent. & P.R. v. State ex rel.

Fuller, 96 Md. 652, 666 , 54 A. 669, 671-72 (1903)). Thus, when reviewing a case which has its basis in negligence, our analysis “usually begins with the question