Pendleton v. State

BELL, Chief Judge. This case arises from the granting of a motion to dismiss by the Circuit Court for Baltimore City. On December 12, 2002, Corey Pendleton, the appellant, by and through his next friend and father, Randy Pendleton, filed in that court a complaint against the State of Maryland and the Baltimore City Department of Social Services (DSS), an agency of the State, (eollec ⁴⁵² tively the appellees, hereinafter referred to as “the State” or “the State Defendants”), and Barnett and Cecelia Carroll, d/b/a Finding Direction, Inc., alleging their negligence. The complaint also alleged battery with respect to James Wratchford, the appellant’s roommate.

The appellant subsequently amended his compliant to add Finding Direction, Inc., as a defendant. The gravamen of the complaint was that the appellant was sexually and physically abused and battered by his roommate while he was residing in a group home licensed by the State. On May 23, 2003, the State filed a motion to dismiss the amended complaint for failure to state a claim. 1 That motion was granted as to the State Defendants, the State of Maryland and DSS, but not as to the other defendants. When they failed to answer the complaint, the Circuit Court entered a default judgment against them and subsequently, after an inquisition hearing on damages, assessed damages at $597,000.00.

Judgment in that amount was entered in favor of the appellant against the defendants Barnett and Cecelia Carroll, d/b/a Finding Direction, Inc., and Finding Direction, Inc. The appellant appealed the Circuit Court’s judgment dismissing the State Defendants from the case. This Court, on its own initiative and before proceedings in the Court of Special Appeals, issued a writ of certiorari, Pendleton v. State, 387 Md. 465 , 875 A.2d 769 (2005), to address the single issue posed by the appellant: “Whether the trial court erred in granting the State Defendants’ Motion to Dismiss, finding that the State had only a public duty of care, rather than a special or statutory duty to protect a child removed from the custody of his parents ⁴⁵³ and placed in the custody of a foster group home from the intentional acts of a third party[ ]” We shall hold that the trial court did not err in dismissing the appellant’s amended complaint, which insufficiently alleged a duty on the part of the State. I. In October 1999, the appellant and his mother, Cynthia Mason, being homeless, were placed in a temporary shelter by DSS. Subsequently, in early January 2000, when he was ten years old, the appellant was removed from his mother’s custody and placed in foster care.

His placement was with Finding Direction, Inc., a licensed residential childcare provider in Baltimore City, operated by Barnett and Cecelia Carroll. The appellant was assigned to share a room in the residential group home with James Wratchford, then sixteen years old, another resident in the group home. The appellant alleges that he was sexually and physically abused and battered by Wratchford while they shared that room. The appellant did not report the alleged abuse immediately, as he testified at the inquisition hearing on damages.

According to the appellant’s testimony at that hearing, he first reported the alleged abuse to a friend, who also lived in the group home. He then explained: “Q When you told your friend and your friend told the foster care folks— A Yes. Q -what did they do? A They took me down stairs and talked to me alone about it.

Q Did you tell them the truth? A Yes, I told them the truth. Q And then what did they do? A Then the police came.

They wrote up a report. ⁴⁵⁴ Q How much time went by-how much time went by between the start of the sexual assault and the time you told? A I have to think on that one. I’m not going to truly say I really know, but I’m going to say around like a month or something. Q Did it seem to you like it was a long time?

A Yes. Q Did it seem like it was short? A It seemed like a little long. Q But you think maybe about a month?

A Yeah. Q And then after you told and the police came, it didn’t happen anymore. A. No.” Once the operators of the group home were notified of the situation, they acted to assure that there was no further contact between the appellant and Wratchford. The appellant was removed from the group home in February 2000 and reunited with his mother.

The appellant’s mother, pursuant to the Maryland Tort Claims Act, Maryland Code (1984, 2004 Repl. Vol.), § 12-107 of the State Government Article, timely filed notice of the appellant’s claim with the State. It was denied. By this time, the appellant’s mother had passed away and Randy Pendleton, the appellant’s father, had custody of the appellant.

He filed, as next friend and father, a complaint on behalf of the appellant, which he later amended to add Finding Directions, Inc., as a defendant. The complaint sounded in negligence. As relevant to the State Defendants, it alleged that the State “owed a duty to [the appellant] to keep him safe from harm while he was housed at Finding Direction and to make certain the policies designed to protect him were followed,” but that the State Defendants “breached their duties of care” by: (1) placing ⁴⁵⁵ Wratchford, a sixteen year old, in the same room with the appellant, a ten year old, (2) failing properly to supervise Wratchford, (3) failing to protect the appellant from being sexually and physically assaulted by Wratchford, (4) failing to provide adequate staffing for proper supervision of the appellant, (5) failing properly to train staff persons, and (6) failing to protect the appellant from the foreseeable risk of harm associated with being placed in the group home run by Finding Directions, Inc. As a result of the State Defendants’ alleged breach of duty, the appellant claimed that he suffered “humiliation, shame, embarrassment, anger, physical and emotional pain, suffering, inconvenience, mental anguish, loss of emotional enjoyment of life, severe and extreme emotional distress, and incurred medical expense.” The State Defendants’ breach of duty, he maintained, was the proximate cause of his injuries and damages. The only allegation of fact the appellant made with regard to the knowledge the State Defendants had of the situation or with which it was charged was: “Upon information and belief, the State and its Foster Care Program officials as well as Defendants Barnett Carroll and Cecelia Carroll were aware of (or should have been aware of) the sexual tendencies, deviousness and history of sexual assaults of Wratchford, and taken care not to place [appellant] in danger of being sexually assaulted by him.” He did not allege that Wratchford had committed assaults prior to those alleged by the appellant or that the State had knowledge of any sexual tendencies Wratchford may have had or that he had a history of sexual assaults.

There was, in short, no factual allegation as to the basis for the knowledge attributed to the State or that related why the State should have been aware of any deviant tendencies that Wratchford may have had, or even that he, in fact, had such tendencies prior to the alleged incidents that occurred with the appellant. On May 23, 2003, the State filed a motion to dismiss the appellant’s amended complaint, arguing that it failed to state a claim. The Circuit Court granted the motion and, therefore, ⁴⁵⁶ dismissed the negligence claims against the State. His motion for reconsideration of the Circuit Court’s judgment having been denied and judgment having been entered against the remaining defendants, the appellant noted this appeal.

II

The appellant’s claim against the State is, as we have seen, a simple negligence claim. Specifically, the appellant argues that the State had a non-delegable duty, imposed both by statute and the special relationship established by the State’s placement of him in foster care and the group home, to protect the appellant from sexual and physical abuse and battery by Mr. Wratchford. The State breached that duty, and that the breach was the proximate cause of the appellant’s injuries, he concludes. Conversely, the State argues that the appellant’s amended complaint does not allege the facts necessary to show that the State had any duty to the appellant.

More specifically, the State rejoins that the amended complaint is “devoid of any factual allegation that the State was negligent in licensing or monitoring Finding Direction and contains no facts to support the allegations regarding Wratchford’s alleged history,” or that the State failed to follow statutory procedures in placing the appellant with Finding Directions. Furthermore, it submits, “the amended complaint contains no allegation that the State received and failed to act upon, any report of abuse allegedly inflicted by Wratchford or anyone else against Appellant or any other resident of Finding Direction prior to the injuries alleged in the Complaint, and there is no allegation that the State failed to respond appropriately once the alleged actions of Wratchford were made known.” Maryland’s child welfare services—as relevant to this case, what is termed both foster care and out-of-home placement 2 — are governed by Title 5, Subtitle 5, Part III of the Family Law Article, §§ 5-524 through 5-534. Section 5-501(m) of the ⁴⁵⁷ Family Law Article defines “out-of-home placement” as “placement of a child into foster care, kinship care, group care, or residential treatment care.” Maryland Code (1984, 1999 Repl. Vol.), § 5-501(m) of the Family Law Article.

Section 5-526 provides that group homes may be “operated by for-profit or nonprofit charitable corporations,” subsection (a)(1), and must comply with State licensing laws as set forth in §§ 5-507 through 5-509 of the Family Law Article. Subsection (a)(2). Regulations for the State’s out-of-home placement program, promulgated by the Secretary of Human Resources, are codified in the Code of Maryland Regulations (COMAR) 07.02.11.01 through 07.02.11.34. Group home placement is one option for providing care for displaced children.

COMAR states that the purpose of the State’s out-of-home placement program is to provide care for children that have “been abused, abandoned, neglected, or [are] dependent, or ... [are] at imminent risk of serious harm.” COMAR 07.02.11.01A. After a court has determined that “continued residence in the child’s home is contrary to the child’s welfare” and has “Committed the child to the custody or guardianship of the local department” (DSS), the department “shall initiate out-of-home placement for [the] child.” COMAR 07.02.11.04. “In order of preference, a child shall be placed with a relative caregiver, in a foster home, or in a group care setting.” COMAR 07.02.11.11A. COMAR also requires that “[a]ny residential treatment facility used by the local department shall meet the requirements for licensure for the facilities established in COMAR 01.04.04 ...” 3 COMAR 07.02.11.11F. The regulations state that local DSS caseworkers are to have regular contact with children in the out-of-home placement program.

CO-MAR 07.02.11.17A. For children placed in group homes, a “caseworker shall have a face-to-face interview with the child within 1 week of placement, and subsequently at least once a month ....” COMAR 07.02.11.17BG). ⁴⁵⁸ III. In Scott v. Jenkins, 345 Md. 21 , 690 A.2d 1000 (1997), Judge Karwacki, -writing for the Court, addressed the requisites of a sufficient pleading in a negligence action: “In the context of a negligence action, we have previously-held that a sufficient pleading must ‘allege, with certainty and definiteness, facts and circumstances sufficient to set forth (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty and (c) injury proximately resulting from that breach.’ Read Drug and Chemical Co. v. Colwill Constr. Co., 250 Md. 406, 412 , 243 A.2d 548, 553 (1968) (emphasis in original).” Id. at 28, 690 A.2d at 1003 . 4 See also Horridge v. St. Mary’s County Dep’t of Social Services, 382 Md. 170, 182 , 854 A.2d 1232, 1238 (2004) (“Merely stating that a duty existed, or that it was breached, or that the breach caused the injury does not suffice____”).

When reviewing the propriety of the dismissal of a complaint, therefore, we have held that the court must assume the truth of all well-pled factual allegations in the complaint, as well as any reasonable inferences that may be drawn from those allegations. We recently elucidated: “As we made clear in Afamefune ex rel. Afamefune v. Suburban Hosp., Inc., 385 Md. 677 , 683 n. 4, 870 A.2d 592 , 595 n. 4 (2005), ⁴⁵⁹ ‘A motion to dismiss for failure to state a claim tests the sufficiency of the pleadings. Md. Rule 2—322(b)(2); see Converge Services Group, LLC v. Curran, 383 Md. 462, 475 , 860 A.2d 871, 878-79 (2004) (“consideration of the universe of ‘facts’ pertinent to the court’s analysis of the motion are limited generally to the four corners of the complaint and its incorporated supporting exhibits, if any”); Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary, 206 (3d ed. 2003) (“[t]he object of the motion is to argue that as a matter of law relief cannot be granted on the facts alleged”).’ Thus, when reviewing the grant of such a motion, a court ‘must assume the truth of all well-pled facts in the complaint as well as the reasonable inferences that may be drawn from those relevant and material facts.’ Porterfield v. Mascari II, Inc., 374 Md. 402, 414 , 823 A.2d 590, 597 (2003) (indicating that [] we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party).

See Benson v. State, 389 Md. 615, 626 , 887 A.2d 525, 531 (2005); Bobo v. State, 346 Md. 706, 707-708 , 697 A.2d 1371, 1372-1373 (1997) .... Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff. Allied Invest. Corp. v. Jasen, 354 Md. [547,] 555, 731 A.2d [957,] 961 [(1999)]; Bobo v. State, 346 Md. at 709 , 697 A.2d at 1373 ; Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624, 630 (1995). ‘On appeal, a reviewing court must determine whether the trial court was legally correct, examining solely the sufficiency of the pleading.’ Benson v. State, 389 Md. at 626 , 887 A.2d at 531 .” Ricketts v. Ricketts, 393 Md. 479, 491-92 , 903 A.2d 857, 864-65 (2006).

It is not enough that the plaintiffs allegations and the reasonable inferences from them are consistent and supporting, however. A trial court’s dismissal of a complaint will be affirmed if that complaint nevertheless fails to state a claim. As this Court opined in Patton v. USA Rugby, 381 Md. 627 , ⁴⁶⁰ 635, 851 A.2d 566, 570 (2004) (quoting Valentine v. On Target, Inc., 353 Md. 544, 548-49 , 727 A.2d 947, 949 (1999) (citations omitted)): “ ‘The granting of a motion to dismiss is proper when, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted____[I]t will be affirmed if the record reveals any legally sound reason for the decision.’ ” A valid negligence claim, we reiterate, must allege: (1) that the defendant had 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 defendant’s breach of duty proximately caused the loss or injury. Rhaney v. Univ. of Maryland Eastern Shore, 388 Md. 585, 596 , 880 A.2d 357, 363-64 (2005); Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 414 , 879 A.2d 1088, 1092 (2005); Dehn v. Edgecombe, 384 Md. 606, 619 , 865 A.2d 603, 611 (2005); Horridge, 382 Md. at 182 , 854 A.2d at 1238 ; Patton, 381 Md. at 635-36 , 851 A.2d at 570 .

In West Virginia Cent. & P. Ry. Co. v. Fuller, 96 Md. 652 , 54 A. 669 (1903), this Court expressed why the element of duty is key to negligence claims: “[Tjhere 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.” 96 Md. at 666 , 54 A. at 671-72 . See Doe, 388 Md. at 414-15 , 879 A.2d at 1092 ; Patton, 381 Md. at 636 , 851 A.2d at 570-71 ; ⁴⁶¹ Bobo, 346 Md. at 714 , 697 A.2d at 1375 ; Ashburn v. Anne Arundel County, 306 Md. 617, 626-27 , 510 A.2d 1078, 1083 (1986). Thus, when analyzing a negligence action it is customary to begin with whether a legally cognizable duty exists. Doe, 388 Md. at 414 , 879 A.2d at 1092 ; Patton, 381 Md. at 636 , 851 A.2d at 571 .

Whether a legal duty exists is a question of law, to be decided by the court. Doe, 388 Md. at 414 , 879 A.2d at 1092 ; Dehn, 384 Md. at 619-20 , 865 A.2d at 611 ; Patton, 381 Md. at 636 , 851 A.2d at 570 ; Remsburg v. Montgomery, 376 Md. 568, 581 , 831 A.2d 18, 25 (2003); Bobo, 346 Md. at 716 , 697 A.2d at 1376 (“The existence of a duty is a matter of law to be determined by the court and, therefore, is an appropriate issue to be disposed of on motion for dismissal.”). We have held that duty is “ ‘an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.’ ” See Doe, 388 Md. at 415 , 879 A.2d at 1092 (quoting Dehn, 384 Md. at 619 , 865 A.2d at 611 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 (5th ed. 1984))); Horridge, 382 Md. at 182 , 854 A.2d at 1239 ; Patton, 381 Md. at 636-37 , 851 A.2d at 571 . Whether a duty exists depends upon whether one party is entitled to the protection of, or is under an obligation to, the other party.

Doe, 388 Md. at 415 , 879 A.2d at 1093 . Thus, this Court stated in Rosenblatt v. Exxon Co., 335 Md. 58, 77 , 642 A.2d 180, 189 (1994), that “ultimately, the determination of whether a duty should be imposed is made by weighing the various policy considerations and reaching a conclusion that the plaintiffs interests are, or are not, entitled to legal protection against the conduct of the defendant.” The balancing of policy considerations to determine whether a duty exists involves consideration of a number of factors: “ ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s ⁴⁶² conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.’ ” Ashburn, 306 Md. at 627 , 510 A.2d at 1083 (quoting Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434 , 131 Cal.Rptr. 14, 22 , 551 P.2d 334, 342 (1976)). See Doe, 388 Md. at 416 , 879 A.2d at 1093 ; Horridge, 382 Md. at 183 , 854 A.2d at 1239 ; Patton, 381 Md. at 637 , 851 A.2d at 571 . In Patton , Judge Harrell, writing for the Court, explicated the importance of the “foreseeability of harm” factor: “Where the failure to exercise due care creates risks of personal injury, ‘the principal determinant of duty becomes foreseeability.’ Jacques v. First Nat’l Bank of Maryland, 307 Md. 527, 535 , 515 A.2d 756, 760 (1986) (citations omitted).

The foreseeability test ‘is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.’ Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 348 , 658 A.2d 675, 678 (1995) (quoting Henley v. Prince George’s County, 305 Md. 320, 333 , 503 A.2d 1333, 1340 (1986)). In determining whether a duty exists, ‘it is important to consider the policy reasons supporting a cause of action in negligence. The purpose is to discourage or encourage specific types of behavior by one party to the benefit of another party.’ Valentine, 353 Md. at 550 , 727 A.2d at 950 . While foreseeability is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law.’ Remsburg, 376 Md. at 583 , 831 A.2d at 26 .

As we clarified in Ashbum: ‘[t]he fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a ‘special relationship’ exists ⁴⁶³ either between the actor and the third person or between the actor and the person injured.’ Ashburn, 306 Md. at 628 , 510 A.2d at 1083 (citations omitted).” Patton, 381 Md. at 637-38 , 851 A.2d at 571-72 .

III

The appellant asserts that “the State had a duty to protect Appellant from the criminal acts of his attacker because of the duty imposed by statute and because of the special relationship between the Appellant and Appellee.” The State does not agree. With regard to the statutory duty argument, it contends that “[i]n placing Appellant at Finding Direction, the State was merely executing its statutory responsibility to provide an out-of-home placement for Appellant in a home that was operating in compliance with applicable licensing laws, and that was otherwise capable of providing appropriate care to Appellant.” Moreover, the State denies that a special relationship arose, under the specific circumstances of the case sub judice, out of the interaction between the appellant and the State. This Court discussing the “public duty doctrine,” has stated: “when a statute or common law ‘imposes upon a public entity a duty to the public at large, and not a duty to a particular class of individuals, the duty is not one enforceable in tort.’ ” Muthukumarana v. Montgomery County, 370 Md. 447, 486 , 805 A.2d 372, 395 (2002) (quoting Dan B. Dobbs, The Law of Torts § 271 (2000) (footnote omitted)). An example, is the “ ‘duty’ owed by the police by virtue of their positions as officers is a duty to protect the public.” Ashburn, 306 Md. at 628 , 510 A.2d at 1084 ; Muthukumarana, 370 Md. at 486 , 805 A.2d at 395 .

In Muthukumarana , we explained: “Pursuant to the doctrine, therefore, police officers ordinarily may not be held liable for failure to protect specific persons because they owe no duty, as the first element of a negligence action requires, to those individuals.” 370 Md. at 486-87 , 805 A.2d at 395 . It is clear, however, that there are limitations to the ⁴⁶⁴ public duty doctrine, “[specifically, it ‘has no application when the court concludes that a statute or court order has created a special duty or specific obligation to a particular class of persons rather than to the public at large.’ ” Id. at 487 , 805 A.2d at 396 (quoting Dobbs, supra, § 271 (emphasis added)). A “special relationship” may arise between two parties, constituting an exception to the public duty doctrine. Ashburn, 306 Md. at 628 , 510 A.2d at 1083 .

Thus, in the context of a police officer, if it can “be shown that the local government or the police officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim’s specific reliance upon the police protection,” then a special relationship exists which satisfies the duty element of a negligence claim. Ashburn, 306 Md. at 631 , 510 A.2d at 1085 (citations omitted); Muthukumarana, 370 Md. at 488 , 805 A.2d at 396 . At the hearing on the appellant’s motion for reconsideration, the trial judge ruled: “In this court’s view, licensing is a governmental function and creates no legal duty. And absence [sic] evidence to the contrary, the duties to license or to supervise the licensed foster care program after licensing is a duty owed to the public generally, the breach of which is not actionable on behalf of a private person who suffers damage. “Because no such duty exists against a private party, there is no duty against a private party and, thus, no actionable negligence.

So, I will deny Plaintiffs motion to reconsider.” The appellant challenges the trial judge’s application of the public duty doctrine in this case. The trial court based its decision on Willow Tree Learning Center, Inc. v. Prince George’s County, 85 Md.App. 508 , 584 A.2d 157 (1991). In Willow Tree, a child was fatally injured while using playground equipment at a day-care center. The child’s parents brought an action against the day-care center, which, in turn, sought contribution or indemnification from Prince George’s County and its inspector.

The question on ⁴⁶⁵ appeal was whether there was a statutory duty on the part of the County to discover, and report, the allegedly unsafe playground equipment from which the child’s injury resulted. The pertinent COMAR regulations and County ordinances provided that the playground was to be maintained “free from hazards” and “free from conditions likely to endanger the life or health of children.” Willow Tree, 85 Md.App. at 514 , 584 A.2d at 160 . The intermediate appellate court held “that the State or the County does not owe any individual duty of care merely by the enactment of a general ordinance requiring safety inspections, nor by the fact that it undertook inspections for safety violations. The duty created by the statute and ordinance was one owed to the public generally.” Id. at 515 , 584 A.2d at 160-61 .

The court concluded that “[tjhere is a complete lack of any intention on the part of the Legislature which would indicate that it was creating a duty to individual members of the public, and we will not create one.” Id. at 515-16 , 584 A.2d at 161 . The appellants in Willow Tree argued, in addition, that a special relationship existed between them and the County, an argument that the intermediate appellate court also rejected. It reasoned: (1) the County did not affirmatively and specifically act to protect individual children, but rather, children and others generally, (2) the ordinance there at issue did not contain requirements for mandatory acts for the specific protection of a particular class of persons, and (3) by adopting an inspection program, the County was mandatorily complying with relevant statutory law, not voluntarily assuming a special relationship. Id. at 518-19 , 584 A.2d at 162-63 .

The appellant distinguishes Willow Tree from the case at bar on the basis that, unlike this case, where the State removed the child from parental custody and placed him in the custody of a foster home, in Willow Tree, “neither the State of Maryland nor a State agency was the actor who placed the child at the scene of the injury.” It is this affirmative act on the part of the State in this case which renders the “public duty doctrine” argument inapplicable, the appellant concludes. We do not agree. The State’s removal of the appellant from ⁴⁶⁶ parental care was done pursuant to a statutory mandate. As we shall explain infra, that act is not the kind of “affirmative act” that gives rise to a special relationship that would impose a duty on the State for the benefit of the appellant.

A. Statutory Duty The appellant asserts that the State has a statutory duty, imposed by Maryland Code (1984, 1999 Repl. Vol.), § 5-526(c) of the Family Law Article, not to place children in an abusive group home. Section 5-526(c) provides, in pertinent part: “(c) Compliance with licensing laws.—The Department, or the Department’s designee, may not place a child in a residential group home or other facility that is not operating in compliance with applicable State licensing laws.” Relying on this statute, the appellant contends that “[t]he Legislature, therefore, has created a duty flowing to children specifically identified by virtue of prior, affirmative action taken to protect them by removing them from their former, unsuitable custodial circumstance.” Furthermore, he submits, “placement of a child in a facility that is not operating in accordance with the requirements of the law, therefore, is in and of itself a breach of statutory duty.” We stated in Remsburg v. Montgomery, 376 Md. 568 , 831 A.2d 18 (2003), that: “Evidence of negligence may be established by the breach of a statutory duty Svhen the plaintiff is a member of the class of persons the statute was designed to protect and the injury was of the type the statute was designed to prevent.’ Erie Ins. Co. v. Chops, 322 Md. 79, 84 , 585 A.2d 232, 234 (1991) (citing Pahanish v. Western Trails, Inc., 69 Md.App. 342, 362 , 517 A.2d 1122 [, 1132] (1986)); see also Geo.

Byers Sons, Inc. v. East Europe Import Export, Inc., 463 F.Supp. 135, 138 (D.Md.1979) (‘To use a statutory duty as a foundation for a negligence claim, the plaintiff must show that it was within the class of persons the legislation was intended to protect and that the alleged injury was the type of harm which the statute was intended to prevent’). Furthermore, ⁴⁶⁷ the statute must ‘set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.’ Ashburn, 306 Md. at 635 , 510 A.2d at 1087 (quoting Morgan v. District of Columbia, 468 A.2d 1306, 1314 (D.C.1983)) (citations omitted).” Id. at 584, 831 A.2d at 27 (emphasis in original). The policy of the State of Maryland "with respect to child welfare is enunciated in Maryland Code (1984, 1999 Repl. Vol.), § 5-502 of the Family Law Article, which provides: “(a) Declarations.—The General Assembly declares that: “(1) minor children are not capable of protecting themselves; and “(2) when a parent has relinquished the care of the parent’s minor child to others, there is a possibility of certain risks to the child that require compensating measures. “(b) Policy.—It is the policy of this State: “(1) to protect minor children whose care has been relinquished to others by the children’s parent; “(2) to resolve doubts in favor of the child when there is a conflict between the interests of a minor child and the interests of an adult; and “(3) to encourage the development of day care services for minor children in a safe, healthy, and homelike environment.” (Emphasis added.) One of those policies is to protect minor children in its care.

The record in this case does not show, or even suggest, that the State has done anything in violation of this policy. To be sure, the State placed the appellant at Finding Direction, Inc., a duly licensed group home. §§ 5-507 through 5-509 of the Family Law Article; COMAR 01.04.04. But the appellant does not allege in his amended complaint that the State was negligent in licensing or monitoring Finding Direction, Inc. And there were no allegations that, when the appellant was placed, Finding Direction, Inc., was not then operating in compliance with applicable State licensing laws. Thus, there is no allegation, never mind evidence, showing that the State ⁴⁶⁸ violated § 5-526(c) by placing the appellant with Finding Direction, Inc. In the absence of such an allegation, the appellant’s amended complaint is insufficient to plead negligence based upon an alleged statutory duty.

Before proceeding to a discussion of the special relationship prong of the appellant’s argument, it is important to distinguish Horridge v. Department of Social Services, 382 Md. 170 , 854 A.2d 1232 (2004). Horridge was a negligence action that had been dismissed for failure to state a claim. The case arose out of the abuse, and eventual murder, of a young child. The father of the child, who resided in Texas, alleged that “he made eight reports to the St. Mary’s County DSS of physical abuse being inflicted on his nineteen-month-old son Collin by Collin’s mother or her boyfriend ....” Id. at 175 , 854 A.2d at 1234 .

DSS was largely unresponsive to both the father’s reports and to a neighbor’s independent report. DSS employees made visits to the home but decided against taking any action, relying instead on the mother’s positive statements concerning the well-being of the child. Social workers from DSS treated the father’s complaints as those of an estranged, custody-deprived father, and told him not to make any further reports. They made no further inspections based upon the father’s last report.

Tragically, two to three months after the father began making reports to DSS, the child was beaten to death. The appellant contends that the Horridge Court determined that there was a “special relationship” between the State and the aggrieved party in that case, which created a duty applicable here. He substantially relies on that case to argue that “several criteria have been identified to determine whether or not a ‘special relationship’ exists.” This argument, however, is somewhat misplaced. Horridge pled two counts of negligence against DSS, one based upon a statutory duty and the other based upon a duty arising out of a special relationship.

The Court addressed only the issue of statutory duty. Id. at 183 , 854 A.2d at 1239 (“[W]e need deal only with the statutory context pled in Count I.”). ⁴⁶⁹ In relation to that statutory duty, the relevant statutes in Horridge were §§ 5-701 through 5-714 of the Family Law Article, rather than § 5-526(c), as in this case. Those sections of the Family Law Article require anyone who may have reason to believe that a child has been subjected to abuse or neglect to notify the DSS or a law enforcement agency, see §§ 5-704(c) and 5-705(d), as a result of and in response to which DSS must respond within 24 hours. Section 5-706(b).

This latter section and the corresponding COMAR sections, the Court in Horridge concluded, imposed a duty on DSS: “The duties imposed on DSS by FL § 5-706 and the implementing regulations of the Department of Human Resources are far more specific and focused. They require a prompt investigation of each reported incident of child abuse. The duty to act is mandatory; the steps to be taken are clearly delineated; and, most important, the statute makes clear in several places that the sole and specific objective of the requirement is the protection of a specific class of children—those identified in or identifiable from specific reports made to DSS and those also found in the home or in the care or custody of the alleged abuser. This is not an obligation that runs to everyone in general and no one in particular.

It runs to an identified or identifiable child or discrete group of children.” Horridge, 382 Md. at 189-90 , 854 A.2d at 1243 (some emphasis added). The statutes with which the Horridge Court was concerned were intended to protect a specific class of children, by requiring a mandatory response by DSS to each reported incident of child abuse. That obligation was owed, therefore, to “a specific class of children, identified or identifiable before the fact from statutorily mandated reports, from a specific kind of harm likely to occur if the statutory duty is ignored. DSS is given not just a specific duty to act in response to such a report but ample and detailed authority to do so.” Id. at 192 , 854 A.2d at 1244 .

The Court concluded that: “The legislative policy of preventing future harm to children already reported to have been abused is so abundantly clear as to be beyond cavil, and, given the statutory man ⁴⁷⁰ date to act and the general waiver of tort immunity when State employees fail to act in a reasonable way and harm ensues, we can see no great burden or consequence to regarding this existing statutory duty as a civil one from which tort liability may arise. We cannot conceive that the Legislature intended, when a child is killed or injured, at least in part because DSS fails to perform the duties clearly cast upon it to make a site visit within 24 hours and a thorough investigation, for the only sanction to be the placement of a reprimand in some social worker’s personnel file. The Legislature meant for DSS and its social workers to act immediately and aggressively when specific reports of abuse or neglect are made, and the best way to assure that is done is to find that they do have a special relationship with specific children identified in or, upon reasonable effort, identifiable from, facially reliable reports of abuse or neglect and, subject to the State Tort Claims Act, to make them liable if harm occurs because they fail in their mandated duty.” Horridge, 382 Md. at 193 , 854 A.2d at 1245 . In Horridge , there was no issue raised as to the sufficiency of the pleadings, the State simply having failed satisfactorily to comply with the specific mandates, with the discharge of which one of its agencies was charged.

In the case sub judice, on the contrary, there are no well-pled factual allegations that the State failed to comply with a specific statutory requirement. The State placed the appellant in the care of Finding Direction, Inc., a duly licensed group home, to be sure. While that was properly alleged, it was not alleged that the State had not properly licensed or supervised Finding Direction, Inc., or that Finding Direction, Inc., was, in any way, in violation of the requirements of its operating license. Furthermore, once Finding Direction, Inc., was apprized that the appellant had reported that he had been sexually abused and battered, it notified the State, as it was required to do, and the State acted immediately to address the situation.

Thus, unlike the situation in Horridge , where the pleadings alleged a failure on the part of the State to respond as statutorily ⁴⁷¹ required, the complaint here contained no such sufficient allegation of the State’s dereliction in failing to respond, once it was notified of the alleged incident of abuse. B. Special Relationships Regardless of the distinction between Horridge 5 and this case, it is evident that the relationship of one party to another may give rise to a duty under certain circumstances. In rationalizing these “special relationships,” the Court has adopted the reasoning of several sections, reflective of our common law, of the Restatement (Second) of Torts, 6 or reasoned from the affirmative action of one party, on the basis of which the other party relies to his or her detriment. 7 These relationships are often separate and distinct, yet they both involve the same duty and responsibility, however the resulting relationship is forged or develops. As the appellant sees it, the State did an affirmative act when it removed him from his mother’s care and his parents’ custody, thus establishing a special relationship with, and a concomitant duty to, him, as one of the children in the State’s care.

This use of “affirmative act,” however, blurs the distinction between the application of the common law duty and the reliance duty. We shall ⁴⁷² analyze the duty that arises out of special relationships in both contexts. Common Law Restatement (Second) of Torts discusses special relationships, and the duties that arise therefrom, in several pertinent sections. Restatement (Second) of Torts §§ 314A, 315, 319-20 (1965). 8 Judge Harrell, writing for the Court, in Remsburg v. Montgomery, 376 Md. 568 , 831 A.2d 18 (2003), cogently ana ⁴⁷³ lyzed Lamb v. Hopkins, 303 Md. 236 , 492 A.2d 1297 (1985), where the Court discussed the Restatement’s application to negligence liability for the actions of third persons: “In Lamb ..., we discussed in detail the inherent nature of the relationship between parties which could give rise to liability for the actions of a third party.

In Lamb , we found that the Restatement (Second) of Torts was applicable to analysis of