Pulliam v. Motor Vehicle Administration

THIEME, J. This case arises out of a March 23, 2002 automobile collision in which Anthony F. Grimes struck and killed Rodney B. Pulliam and his three children, Rodney B. Pulliam, II, Matthew I. Pulliam, and Jordan Pulliam. Tammie A. Pulliam, appellant, is the surviving spouse of Rodney B. Pulliam and the natural mother of Rodney, Matthew, and Jordan. On October 17, 2002, appellant, as personal representative of the estate of Rodney B. Pulliam, and next of kin to the deceased members of the Pulliam family, filed suit in the Circuit Court ¹⁴⁹ for Frederick County against Grimes. She later filed an amended complaint adding the Motor Vehicle Administration (“MVA”) and the Motor Vehicle Administration’s Medical Advisory Board (“MAB”), appellees, as defendants.

Appellees filed a motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted, which the court granted. On September 29, 2006, appellant settled her claims against Grimes, and this appeal followed. Issue Presented Appellant presents three questions for our consideration, all of which involve the single issue of whether the circuit court erred in dismissing her claims against the MVA and the MAB. 1 Factual Background The facts, as set forth in appellant’s amended complaint, are as follows: The MVA is a state agency responsible for licensing and enforcement of regulations regarding operators of motor vehicles, and has the responsibility of ensuring that drivers are capable of operating motor vehicles safely. The MVA performs these functions in a variety of ways, including referral to the MAB, which is a group within the MVA that is required to review and approve the reinstatement, suspension, and/or revocation of driving privileges for persons with epilepsy and other illnesses in which there is a lapse of consciousness, blackout, seizure, and other conditions.

On or about November 11, 2000, Grimes suffered a seizure while driving, and struck a house with his car. As a result of that incident, the MAB issued an emergency suspension of his ¹⁵⁰ driving privileges, and later recommended a three (3) month “driving/license suspension.” On February 12, 2001, the MAB suspended Grimes’ driving privileges. On or about April 20, 2001, the MAB withdrew the suspension of Grimes’ driving privileges, but required him to submit every three (3) months, beginning on July 20, 2001, an affidavit certifying that he was seizure free. Grimes was also required to submit, on April 20, 2002, a follow-up report from his treating physician.

On July 10, 2001, Grimes submitted an incomplete affidavit, failing to certify that he was seizure free. On October 11, 2001, Grimes advised his physician, Konrad Bakker, M.D., that he had turned in his license after having had another seizure and causing “a fender bender.” Between that date and February 16, 2002, Grimes failed to file an affidavit stating that he had been seizure free for 90 days as required by the MAB. Nevertheless, on or about February 16, 2002, Grimes applied for, and was issued, a duplicate driver’s license. Just over a month later, on March 23, 2002, Grimes had one or more seizures, but continued to operate a motor vehicle.

At approximately 10:34 that morning, while traveling southbound in the right lane of Butterfly Lane near its intersection with Jefferson Pike, Grimes drove his vehicle into the back of a vehicle operated by Rodney B. Pulliam, causing the death of Mr. Pulliam and his three children, who were passengers in the vehicle. Appellant claimed that the MVA and the MAB were on notice that Grimes was an impaired driver because of his history of seizures and motor vehicle accidents, and that they each had a duty to monitor the certification of such drivers and to protect residents from harm on Maryland roadways by verifying that Grimes was capable of safely operating a motor vehicle. According to appellant, the MVA and MAB each owed a duty to her and her deceased family members to exercise the degree of skill and care expected of a reasonably competent agency in the same or similar circumstances. Appellant’s amended complaint included survival actions for Rodney B. Pulliam and each of the three Pulliam children. ¹⁵¹ Appellant claimed that Grimes was negligent in failing to maintain a reasonable and proper rate of speed; failing to maintain proper control of his vehicle; failing to keep a proper lookout; failing to operate his vehicle in a safe and reasonable manner; carelessly, recklessly and negligently operating his vehicle while under a known physical impairment; and, failing to take steps necessary to avoid the collision.

Appellant further alleged that the MVA negligently beached its duty to ensure that Grimes was capable of operating a motor vehicle safely and to enforce regulations regarding motor vehicle operators with disabilities by failing to maintain current records documenting Grimes’ seizure control; failing to investigate the circumstances regarding Grimes’ surrender of his motor vehicle license; failing to prevent Grimes from obtaining a motor vehicle license without the required documentation demonstrating that he was seizure free for the requisite time period; and, failing to take steps necessary to avoid an unsafe driver from operating a motor vehicle. As to the MAB, appellant alleged that it breached its duty to review and make prudent decisions regarding proposed reinstatements, suspensions and/or revocations of driving privileges for persons with epilepsy or other illnesses in which there is a lapse of consciousness, blackout, or seizure; by failing to maintain current records documenting Grimes’ seizure control; failing to investigate the circumstances regarding Grimes’ surrender of his motor vehicle license; failing to prevent Grimes from obtaining a motor vehicle license without the required documentation demonstrating that he was seizure free for the requisite time period; and, failing to take steps necessary to avoid an unsafe driver from operating a motor vehicle. Appellant also asserted wrongful death claims alleging that, as a result of Grimes’ negligence, her husband and three children suffered grave personal injuries, resulting in death, causing pecuniary loss to the estate and next of kin, and causing appellant to suffer mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, ¹⁵² care, attention, advice, counsel and guidance, as well as other economic and non-economic damages and related losses. In response to appellant’s amended complaint, the MVA and the MAB filed a motion to dismiss for failure to state a claim upon which relief could be granted on the ground that no duty of care was owed to appellant’s deceased husband or sons.

They claimed that appellant’s cause of action fell within the general tort law that no person has the duty to protect a plaintiff from the negligent or intentional acts of third persons, and that the duty of a state agency to act as mandated by statute for the protection of the public health and safety is owed to the public at large and does not create a tort duty to an individual. In addition, the MVA and MAB argued that even if the MVA had owed a duty in tort to the deceased members of the Pulliam family to take action against Grimes’ driving privilege, the MVA was prevented from taking any action to suspend Grimes’ driver’s license because the maximum period of license suspension that could have been imposed upon report of a seizure was 90 days. According to appellees, even if Grimes’ voluntary relinquishment of his driver’s license on October 11, 2001 provided notice that he had had a subsequent seizure, the most appellees could have done was impose another 90-day suspension, which would have made Grimes eligible to seek reissuance of his driver’s license prior to the date of the subject automobile accident. Appellant countered that the MVA had the legal authority to restrict, suspend or revoke Grimes’ driver’s license, but negligently failed to do so by failing either to suspend Grimes’ license at the time he requested a duplicate license or denying his request for a duplicate license.

The court rejected appellees’ argument that the MVA was prevented from taking any action to suspend Grimes’ driver’s license because the maximum period of suspension that could have been imposed was 90 days, but granted the motion to dismiss with prejudice on the ground that the duties owed by ¹⁵³ the MVA and MAB are owed to the public at large and do not create an enforceable tort duty to specific individuals. Standard of Review We review the grant of a motion to dismiss de novo. Reichs Ford Road Joint Venture v. State Roads Com’n of the State Highway Admin., 388 Md. 500, 509 , 880 A.2d 307 (2005)(citing Adamson v. Corr. Med.

Servs., 359 Md. 238, 246 , 753 A.2d 501 (2000)). We examine the complaint and determine whether it states a legally sufficient cause of action. Id.; Collins v. Li, 176 Md.App. 502, 534-35 , 933 A.2d 528 (2007). We must assume the truth of all the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from them, and we review the complaint in the light most favorable to the non-moving party.

Debbas v. Nelson, 389 Md. 364, 372 , 885 A.2d 802 (2005); Reichs Ford, 388 Md. at 509, 880 A.2d 307 ; Collins, 176 Md.App. at 534-35 , 933 A.2d 528 . Dismissal is proper only if the complaint would fail to provide the plaintiff with a judicial remedy. Allied Inv. Corp. v. Jasen, 354 Md. 547, 555 , 731 A.2d 957 (1999); Reichs Ford, 388 Md. at 509, 880 A.2d 307 (citing Bobo v. State, 346 Md. 706, 709 , 697 A.2d 1371 (1997)).

Discussion A. Duty It is well established that in order to set forth a claim for negligence, a plaintiff must allege the following elements: a duty owed by the defendant to the plaintiff, a breach of that duty, actual injury or loss suffered by the plaintiff, and that the injury or loss proximately resulted from the defendant’s breach of the duty. Muthukumarana v. Montgomery County, 370 Md. 447, 486 , 805 A.2d 372 (2002)(and cases cited therein); Corinaldi v. Columbia Courtyard, Inc., 162 Md.App. 207, 218 , 873 A.2d 483 (and cases cited therein), cert. dismissed, 389 Md. 124 , 883 A.2d 914 (2005). 2 Whether ¹⁵⁴ there is adequate proof of the required elements to succeed in a negligence action is generally a question of fact to be determined by the fact-finder, while the existence of a legal duty is a question of law to be decided by the court. Patton v. United State of America Rugby Football Union, Ltd. d/b/a USA Rugby, et al., 381 Md. 627, 636 , 851 A.2d 566 (2004); Corinaldi, 162 Md.App. at 218 , 873 A.2d 483 . The focus in this case is on the first element, duty, which the Court of Appeals has defined as follows: “Duty” in negligence has been defined as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser and Keeton, supra, § 53.

There is no set formula for this determination. As Dean Prosser noted, “duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Id. In broad terms, these policies include: “convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, [and] the moral blame attached to the wrongdoer....” Id. As one court suggested, there are a number of variables to be considered in determining if a duty exists to another, such as: 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 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. ¹⁵⁵ Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434 , 131 Cal.Rptr. 14, 22 , 551 P.2d 334, 342 (1976).

Ashburn v. Anne Arundel County, 306 Md. 617, 627 , 510 A.2d 1078 (1986). “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 v. Montgomery, 376 Md. 568, 583 , 831 A.2d 18 (2003). Maryland courts, like those in most jurisdictions, have held 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 either between the actor and the third person or between the actor and the person injured.” Ashburn, 306 Md. at 628 , 510 A.2d 1078 . See also Scott v. Watson, 278 Md. 160, 166 , 359 A.2d 548 (1976)(“a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship”). A special duty to protect another from the acts of a third party may be established “ ‘(1) by statute or rule; (2) by contractual or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.’ ” Remsburg, 376 Md. at 583-84 , 831 A.2d 18 (quoting Bobo v. State, 346 Md. 706, 715 , 697 A.2d 1371 (1997)(internal citations omitted)).

The case before us does not involve any allegation of a contractual or other private relationship between appellant and any other party, so we need not consider that method of establishing a tort duty herein. As to the other two methods of establishing a special duty, the Court of Appeals discussed the required analysis in Remsburg . In that case, the Court considered whether Maryland statutes or regulations regarding hunting created a duty in tort upon the leader of a hunting expedition, James Remsburg Sr., to protect Charles and Brian Montgomery who were accidentally shot and wounded by Remsburg’s son, James Remsburg, Jr., a 27 year old emancipated adult who was a member of the hunting expedition. The Court recognized that in determining whether a statute or ¹⁵⁶ regulation gives rise to a special duty, a two part test is required: Evidence of negligence may be established by the breach of a statutory duty “when 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 (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 of the type of harm which the statute was intended to prevent”). Furthermore, 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). Remsburg, 376 Md. at 584 , 831 A.2d 18 .

In determining whether a duty is created by virtue of a special relationship between the parties, the Court stated: [A] “special relationship” between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party. Id. at 589-90 , 831 A.2d 18 . Examples of special relations giving rise to a duty to aid or protect are set forth in § 314A of the Restatement (Second) of Torts (“Restatement”), which provides: (1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm.... (2) An innkeeper is under a similar duty to his guests. ¹⁵⁷ (3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.

(4) One who is required by law to take or who voluntarily takes the custody of another under circumstance such as to deprive the other of his normal opportunities for protection is under a similar duty to the other. See id. at 593, 831 A.2d 18 (and cases cited therein). Although the foregoing list is not exhaustive, and some flexibility in defining this limited exception has been permitted, the Court has “been careful not to expand this class of ‘special relationships’ in such a manner as to impose broad liability for every group outing.” Id. at 594 , 831 A.2d 18 . On a number of occasions, Maryland courts have considered these issues in cases raising the question of what duty, if any, is owed by a governmental entity to an individual.

In Lamb v. Hopkins, 303 Md. 236 , 492 A.2d 1297 (1985), a probation officer failed to report two of a probationer’s convictions to the circuit court. Subsequently, while driving under the influence of alcohol, the probationer collided with a vehicle operated by Cynthia Lamb, rendering Lamb’s then five-month-old daughter a quadriplegic. The Court of Appeals concluded that the probation officer’s statutory duty to report a probationer’s violations is owed to the court and does not extend to the general public, including the Lambs. In reaching that conclusion, the Court examined § § 315 and 319 of the Restatement.

The Court recognized that § 315, which reflects the common law of Maryland, “outlines the appropriate analytical framework for determining whether an actor has a duty to control a third person.” Section 315 provides: There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or ¹⁵⁸ (b) a special relation exists between the actor and the other which gives to the other a right to protection. In Lamb , the Court also adopted § 319 as the law of Maryland governing the duty of those in charge of persons having dangerous propensities. Section 319 provides: One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. The Court of Appeals specifically referred to the comment to § 319, which indicates that the section applies in two situations: First, § 319 applies to those situations where the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal.

Second, § 319 applies to those situations where the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know. Lamb, 303 Md. at 243 , 492 A.2d 1297 . Based on these two sections of the Restatement, the Lamb Court concluded that the probation officers did not meet the threshold requirement of taking charge of the probationer nor did they direct his activities as required by § 319. Id. at 246, 492 A.2d 1297 .

The court also concluded that the duties owed by the probation officers were owed to the Court and did not extend to the general public, including the Lambs. Id. at 251-52 , 492 A.2d 1297 . Finally, the Court rejected the Lambs’ contention that the duty of the probation officers under § 319 is owed to “ ‘anyone, readily identifiable or not, who, as a result of the failure to exercise due care in controlling the person, is foreseeably harmed by that person.’ ” Id. at 253, 492 A.2d 1297 . The Court concluded that before a court can determine to whom a duty is owed, it must first determine that a duty exists.

Since the Court determined that the probation officers were under ¹⁵⁹ no duty to control the probationer because they had not taken charge of him under § 319, it was unnecessary to determine to whom a § 319 duty is owed or to reach the issue of proximate causation. Id. In Ashburn, 306 Md. at 620 , 510 A.2d 1078 , the Court of Appeals considered whether a police officer may be held liable to a person injured by a drunk driver when the officer noticed the driver’s intoxication, but failed to stop and detain the driver before he drove away and collided with Ashburn. Relying in part on Lamb and § 315 of the Restatement, the Court recognized that in order for a special relationship to be found, the plaintiff must show “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.” 306 Md. at 631 , 510 A.2d 1078 (and cases cited therein).

The Court concluded that there was no special relationship between Ashburn and the police officer, and also rejected Ashburn’s contention that § 16 — 205.1(b)(2) of the Transportation Article, which set forth procedures for a police officer who stops or detains a driver believed to be intoxicated, evidenced the intent of the Legislature to impose civil liability upon a police officer who fails to comply with the section. Id. at 634, 510 A.2d 1078 . The Court held that in order for a statute to impose a special relationship between a police officer and a victim, and thereby create a duty in tort, the statute “must set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.” Id. (citations and internal quotations omitted).

A similar issue was addressed in Willow Tree Learning Center v. Prince George’s County, 85 Md.App. 508 , 584 A.2d 157 (1991), where we held that neither the State nor a county “owes 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.” Id. at 515 , 584 A.2d 157 . In that case, five-year-old Brian Sanders was fatally injured while using playground equipment on the ¹⁶⁰ premises of the Willow Tree Learning Center (“Willow Tree”), a private daycare center. Brian’s parents filed a negligence action against Willow Tree which, in turn, sought contribution and/or indemnification from Evelyn Hoban, a county employee who had inspected the play equipment, and Prince George’s County, Hoban’s employer. The Sanders settled with Willow Tree.

Hoban and Prince George’s County filed motions to dismiss, or in the alternative, for summary judgment, which the trial court granted on the grounds that Hoban’s inspection of Willow Tree was a governmental function arising out of the exercise of the Prince George’s County’s police powers; that the inspection did not create a legal duty to the owner, operator, or user of the inspected premises; and there were no statutory provisions creating such a duty. Id. at 511 , 584 A.2d 157 . In affirming the circuit court’s grant of summary judgment, we rejected the argument that applicable safety regulations contained in the Maryland Code, COMAR, and the Prince George’s County Code, created a duty on the part of Hoban and the County to the Sanders. Relying, in part, on Lamb , we held that “[t]he duty created by the statute and ordinance was one owed to the public generally.” Willow Tree, 85 Md.App. at 515 , 584 A.2d 157 .

We also noted that there was “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 declined to create one ourselves. Id. at 516 , 584 A.2d 157 . In addition, we rejected the Sanders’ assertion that a special relationship was created between them and the County (1) by the County’s action in licensing, regulating, and inspecting the day care center to ensure the safety of children using the playground, (2) by the enactment of the statute mandating inspections, and (3) by the County’s adoption of an inspection program through which it voluntarily assumed a special relationship with the children attending the daycare center. We rejected these arguments, holding: ¹⁶¹ We do not believe that a special relationship, creating a tortious duty, is created by a governmental decision to legislate safety programs in a particular industry, unless that duty is expressly created by the statute.

This is in accord with the majority of the cases we have reviewed from other jurisdictions. As far as we can discern, there are no Maryland cases to the contrary. We hold that no special relationship existed between Willow Tree and the County. In sum, virtually every citizen or visitor to this State has contact on a daily basis with an entity that is subject to governmental health and safety inspections.

To hold that the inspection in the case sub judice creates special relationships and duties giving rise to the right to sue the County might well extend far beyond the specific ramifications of the case at bar. We perceive a clarity of legislative purpose from the profusion of regulation and inspection provisions that the legislature has created. That purpose, as often stated in the statutory provisions themselves, is to insure the health and safety of the people of Maryland. A proliferation of suits and judgments resulting therefrom against the State and/or local governments based upon duties or special relationships, perceived by the litigants to have been created to run to them personally, as opposed to the public generally, might well cause the legislative branch to pause and reconsider the feasibility of continuing this type of regulatory activity.

Any cessation or suspension of the Legislature’s willingness to protect its citizens, we believe, would be disproportionately injurious to the public in general. The creation of causes of action arising out of statutory schemes of regulations and inspections is a matter of policy and should be addressed, if at all, by the Legislature. It is not the function of the judiciary to make policy of this type. Absent an explicit statement in a statute creating that type of duty, we do not believe that courts should draft them into a statute by implication.

We hold, specifically in reference ¹⁶² to the present statute, that no such duty nor special relationship expressly or impliedly exists. There being no duty, there can be no breach of duty and thus no actionable negligence. Id. at 519-22 , 584 A.2d 157 . In Muthukumarana v. Montgomery County, 370 Md. 447 , 805 A.2d 372 (2002), the Court of Appeals again considered whether certain local government employees owed an individual tort duty to persons in need of their services and when those employees may be held liable for their negligent performance of that duty.

Muthukumarana involved two cases which the Court of Appeals consolidated. 3 One involved a negligence claim brought against a police dispatcher and the chief of Harford County’s emergency management and operations division by the mother of a minor who died from hypothermia after certain persons at a party placed the unconscious minor outside the residence where the party was being held. The mother alleged that the dispatcher transmitted inaccurate information about the minor’s location after receiving an anonymous call. The other case involved a claim against a 911 operator brought by a mother whose children were fatally shot by her husband while she was on the telephone with the 911 operator reporting a domestic violence incident. As to both cases, the Court of Appeals concluded that “911 operators and dispatchers have duties or responsibilities commensurate with those of police officers,” and, therefore, “it is appropriate to measure their negligence liability, as well as the liability of their managers and supervisors, by the same standard applied to the police officers who respond to their dispatches.” Muthukumarana, 370 Md. at 489-90 , 805 A.2d 372 (internal quotations omitted).

The Court discussed the duty to aid as follows: ¹⁶³ In previous cases, we have defined the scope of the tort duty owed by police officers to persons in need of assistance by applying the ‘public duty doctrine.’ Generally, under the public duty doctrine, 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.” DAN B. DOBBS, THE LAW OF TORTS § 271 (2000)(footnote omitted). As we explained in Ashburn [v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986)], the “duty owed by the police by virtue of their positions as officers is a duty to protect the public.” Ashbum, 306 Md. at 628 , 510 A.2d at 1084 . 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. The public duty doctrine, however, is not without its limitations.

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.” DOBBS, supra, § 271 (emphasis added). As we have explained, this is “nothing more than a modified application of the principle that although generally there is no duty in negligence terms to act for the benefit of any particular person, when one does indeed act for the benefit of another, he must act in a reasonable manner.” Ashburn, 306 Md. at 631 , 510 A.2d at 1085 (citing Scott v. Watson, 278 Md. 160, 170-71 , 359 A.2d 548, 555 (1976); Pennsylvania R.R. Co. v. Yingling, 148 Md. 169 , 129 A. 36 (1925)). Therefore, “[a] proper plaintiff ... is not without recourse. If he alleges sufficient facts to show that the defendant policeman created a ‘special relationship’ with him upon which he relied, he may maintain his action in negligence.” Ashburn, 306 Md. at 630-31 , 510 A.2d at 1085 (footnote and citation omitted).

In order for a special relationship between police officer and an individual to be found, however, we required in Ashburn that it “be shown that the local government or the police officer affir ¹⁶⁴ matively acted to protect the specific victim or specific group of individuals like the victim, thereby inducing the victim’s specific reliance upon the police protection.” Ash-bum, 306 Md. at 631 , 510 A.2d at 1085 (citations omitted). Muthukumarana, 370 Md. at 486-88 , 805 A.2d 372 (footnote omitted). In concluding that the public duty doctrine applies to 911 employees, the Court refused to adopt a specific, categorical list of factors to be considered in establishing a special relationship between a 911 employee and an individual, stating: We continue to believe that “the intent of the ‘special relationship’ doctrine is better addressed by our general standard outlined in Ashbum ” because it preserves our ability to determine “whether a special relationship exists” on a “case-by-case basis.” Williams, 359 Md. at 150 , 753 A.2d at 67-68 . Therefore, after incorporating 911 personnel into the purview of the public duty doctrine, we also find that the special relationship test in Ashbum is the appropriate analytical paradigm to be used in evaluating work-related negligence claims against 911 personnel.

Under that test, in order for a special relationship between a 911 employee and a person in need of assistance to exist, it must be shown that the 911 employee affirmatively acted to protect or assist the specific individual, or a specific group of individuals like the individual, in need of assistance, thereby often inducing the specific reliance of the individual on the employee. Absent the existence of those factors, a special relationship may not be found to exist between the employee and the individual, and a 911 employee may not be held liable in tort to an individual. Id. at 495-96, 805 A.2d 372 (footnote omitted). The Court declined to adopt a limited definition of “specific reliance,” noting that “[a]lthough reliance may be a factor under [the special relationship] test, there may be many cases in which reliance is irrelevant to the analysis, such as here.” Id. at 496 n. 31, 805 A.2d 372 . ¹⁶⁵ In Horridge v. St. Mary’s County Dep’t of Soc.

Services, 382 Md. 170 , 854 A.2d 1232 (2004), the Court of Appeals, for the first time, authorized a negligence action against the State based upon a special relationship arising from statutes. Specifically, Horridge alleged violations of §§ 5-701 through 5-714 of the Family Law Article (“FL”) and certain regulations adopted by the Department of Human Resources to supplement the statutory requirements. The statutes generally required a local department of social services (DSS), after receiving a report of suspected child abuse or neglect, promptly to make a “thorough investigation” in order to protect the health, safety, and welfare of the child. Id. at 174, 854 A.2d 1232 .

The law further required that “if the report is of physical or sexual abuse, DSS must, within 24 hours, ‘see the child,’ attempt to have an on-site interview with the child’s caretaker, and decide on the safety of the child.” Id. Eric Horridge filed a complaint against the State of Maryland and two DSS workers alleging, inter alia, negligence. He claimed that between December 1999 and February 2000, he made eight reports to the St. Mary’s County DSS of physical abuse being inflicted on his minor son Collin by either Collin’s mother or her boyfriend, and that a neighbor also reported the abuse. Id. at 175 , 854 A.2d 1232 .

Horridge claimed that DSS failed to make a thorough investigation and take steps to protect Collin, as required by law, and that, as a result of that failure, Collin was beaten to death eight days after the last report of abuse was made. The defendants relied upon the public duty doctrine and argued that “ ‘[ajbsent an express intent by the Legislature to create such a duty, there was no duty owed to Collin individually.’ ” Id. at 187 , 854 A.2d 1232 . Relying on Muthukumarana , the Court of Appeals recognized that the public duty doctrine “ ‘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.’ ” Horridge, 382 Md. at 187 , 854 A.2d 1232 (quoting Muthukumarana, 370 Md. at 487 , 805 A.2d 372 (quoting from DAN B. DOBBS, § 271, supra.)). The Court ¹⁶⁶ went on to hold that the public duty doctrine did not bar Horridge’s action because the Legislature “has created a duty flowing to children specifically identified to DSS as being the subject of suspected abuse.” Id.

The Court found: The duties imposed on DSS by FL § 5-706 and the implementing regulations of the Department of Human Resources ... 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.

Id. at 189-90, 854 A.2d 1232 . In support of its holding, the Court relied, in part, on Jensen v. Anderson County DSS, 304 S.C. 195 , 403 S.E.2d 615 (1991), a case in which South Carolina’s high court concluded that South Carolina’s equivalent of FL § 5-706 imposed a special duty on DSS and its social workers “to investigate and intervene in cases where child abuse has been reported.” Horridge, 382 Md. at 191 , 854 A.2d 1232 . The Court of Appeals noted that South Carolina had adopted a six-part test to determine when a statutory special relationship exists, but specifically declined to adopt such a test, stating: In reaching that conclusion, the Jensen court applied a six-part test to determine when a statutory special relationship exists: (1) an essential purpose of the statute is to protect against a particular kind of harm; (2) the statute, directly or indirectly, imposes on a specific public official a duty to guard against or not cause the harm; (3) the class of persons the statute intends to protect is identifiable before the fact; (4) the plaintiff is a person within the protected class; (5) the public officer knows or has reason to know the likelihood of harm to members of the class if he/she fails to ¹⁶⁷ do his/her duty; and (6) the officer is given sufficient authority to act in the circumstances or undertakes to act in the exercise of his/her office. It is not necessary to adopt precisely the six-part test enunciated by the South Carolina court in Jensen , although the elements of that test are analytically relevant and consistent with the considerations we noted in Ashbum v. Anne Arundel County, supra, 306 Md. 617, 627 , 510 A.2d 1078, 1083 , and Remsburg v. Montgomery, supra, 376 Md. 568, 583 , 831 A.2d 18, 26 .

Clearly the essential purpose of the statutory duties created by FL § 5-706 and the implementing regulations of the Department of Human Resources was to protect 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. 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 mandate 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 ¹⁶⁸ neglect and, subject to the State Tort Claims Act, to make them liable if harm occurs because they fail in their mandated duty. Id. at 191-93, 854 A.2d 1232 . The Court of Appeals also rejected the contention that any negligence on DSS’s part was passive in nature and that Collin’s death was caused by the active negligence of either his mother or her boyfriend who beat him. The Court held that “[wjhere the actionable duty is to protect another from harm, proximate cause must be judged in terms of the foreseeability of such harm being inflicted.” Id. at 193-94 , 854 A.2d 1232 .

The Court concluded that “[a] breach of duty by the defendant would result in his liability in the third party criminal activity context only if the breach enhanced the likelihood of the particular criminal activity which occurred.” Id. at 195 , 854 A.2d 1232 (citing Scott v. Watson, 278 Md. 160, 173 , 359 A.2d 548 (1976)). Horridge was recently distinguished in Pendleton v. State, 398 Md. 447 , 921 A.2d 196 (2007), when the Court of Appeals held that the State had only a public duty of care, and not a special or statutory duty, to protect a child from the intentional acts of a third party after the child was removed from the custody of his parents and placed in a group foster home. The appellant, a ten-year-old boy, was removed from his mother’s custody .and placed in foster care in a group home where he was assigned to share a room with a sixteen-year-old boy who was also a resident in the group home. Pendleton, 398 Md. at 453 , 921 A.2d 196 .

The appellant alleged that he was sexually and physically abused and battered by the sixteen-year-old boy while they shared a room. Id. The appellant alleged that the State owed him a duty to keep him safe from harm. The appellant did not allege, however, that the sixteen-year-old had committed assaults on prior occasions or that the State had knowledge of any history of sexual assault by him.

Id. at 454-55 ,