Ramsey v. Prince George's County

Scanlan, J., delivered the opinion of the Court. Appellants are Beulah Elizabeth Ramsey, the mother of the deceased, Roger Hugh Ramsey, and his brother and personal representative, Garland G. Ramsey. They appeal from a judgment of the Circuit Court for Prince George’s County granting a motion under Rule 323 b raising the preliminary objection that the appellee, Prince George’s County, by virtue of the doctrine of governmental immunity, was immune from suit brought for the wrongful death of Roger Hugh Ramsey. The deceased was shot and killed by Michael S. Betts, a police officer for Prince George’s County.

After appellee’s motion prevailed, appellants proceeded with their suit against Betts. That action was settled and the case against him dismissed with prejudice on October 11, 1972. An order appealing the lower court’s grant of the motion raising the preliminary objection was then filed on November 3, 1972. Three questions are properly before us on this appeal. * 1 These are: (1) Does the doctrine of governmental immunity bar appellants’ suit against Prince George’s County?

(2) Was Officer Betts acting in a discretionary or in a ministerial capacity? ³⁸⁷ (3) What was the effective date of Section 1013 of the Charter of Prince George’s County under which actions may now be brought against the County for the torts of “its officers, agents and employees?” The essential facts in this case show that the deceased was shot and killed by Officer Betts on November 29, 1970 at approximately four o’clock in the morning while the former was sitting in his automobile on the parking lot of a tavern in Prince George’s County. It appears that he was asleep, under the influence of alcohol, in his car waiting for a service station to open. He had a flat tire and was without a spare. The police officer approached the car, opened the door and apparently startled the deceased, who partially turned around in his seat.

Officer Betts then fired a shot which resulted in the death of Mr. Ramsey. I GOVERNMENTAL IMMUNITY REMAINS THE LAW OF MARYLAND The appellants strongly urge that we should discard the doctrine of sovereign immunity, or more precisely governmental immunity, in this case. 2 Similar spirited attacks on the doctrine have been rejected by the Court of Appeals. We cite only representative cases: Jekofsky v. State Roads Commission, 264 Md. 471, 473 , 287 A. 2d 40 (1972); Robinson v. Board of County Commissioners for Prince George’s County, 262 Md. 342 , 278 A. 2d 71 (1971). Godwin v. County Commissioners for Saint Mary’s County, 256 Md. 326 , 260 A. 2d 295 (1970); Duncan v. Koustenis, 260 Md. 98, 104 , 271 A. 2d 547 (1970).

The resoluteness of the Court of Appeals’ refusal to join the courts of other states in ³⁸⁸ repudiating the doctrine of governmental immunity may be gathered from its recent pronouncement in Quecedo v. Montgomery County, Maryland, supra, where it said: “This Court has indicated many times that it will not depart from its prior decisions in regard to the doctrine of sovereign immunity and that a change in that doctrine must come from the legislative branch of the State government.” 264 Md. at 595 . We acknowledge the careful task of research which the appellants have performed in laying before us the decisions of sister states in which more activistic courts of last resort have judicially jettisoned the doctrine of sovereign or governmental immunity as anomalous, archaic, vestigial, outmoded and not in accord with modern conditions. We also do not dispute that the legal commentators make out a strong case for the abolition of the doctrine. Robinson, supra at 345, n.5 .

Unfortunately for the appellants, “we do not write on a clean slate.” United States v. South Buffalo Ry., 333 U. S. 771, 774 (1948). The Court is not free to ignore the rule of stare decisis. Moreover, even if it were, we would be reluctant to appropriate what is primarily a legislative function, i.e., the determination of public policy. Merely because the genesis of the doctrine of sovereign immunity may be found in early decisions of the courts of common law, English 3 and American, 4 constitutes no basis for arguing that the doctrine should be abolished by judicial decision, without regard to the desires of the representatives of the people concerning its elimination, modification or retention.

The sounder judicial view on this question, in our opinion, was expressed by the Court of Appeals in Jekofsky v. State Roads Commission, supra at 474, when it said: “Quite apart from our prior decisions, it is desirable and in the public interest that any change in the doctrine of sovereign immunity should come ³⁸⁹ from the legislative branch of the State Government rather than from the judicial branch inasmuch as there are fiscal considerations, administrative difficulties and other problems in balancing the rights of the State and its agencies with new possible rights of the individual citizens, which can far better be considered and resolved by the legislative branch than by the judiciary of the State.” In asking that the Court undertake what is properly a function of the General Assembly, appellants lament that “legislators have been relatively indifferent to reform in tort law.” That is a debatable proposition. We note, for example, that in dealing with the doctrine of charitable immunity, the Maryland General Assembly has modified it in the case of hospitals and related institutions. Article 43, Section 556A, Maryland Ann. Code (1971 Repl. Vol.); Howard v. Bishop Byrne Council Home, Inc., 249 Md. 233 , 238 A. 2d 863 (1968).

Nor have legislatures proved reticent in enacting wrongful death statutes to close the gap created by early decisions of the common law courts holding that no such right to recover existed. Prosser, Torts 901 (4th ed. 1971). Today, every American state has a statutory remedy for wrongful death. Id. at 902.

In any event, courts do not exist to provide relief from all the inequities which may arise when ancient rules are applied to current conditions. This is especially so when, as here, a change in the rule necessarily involves considerations which transcend the pure legal issue presented and require the determination of policy matters which are more the forte of legislators than of judges. So far as the latter are concerned, the prudent advice which Mr. Justice Holmes once gave retains validity. “It is unwise to go much beyond what we find in the books.” Ker & Co. v. Couden, 223 U. S. 268, 276 (1912). If the doctrine of governmental immunity is to be discarded or modified, it will have to be the General Assembly of Maryland which does it.

The Court of Appeals has made it clear, and we agree, that neither they nor we are ³⁹⁰ the proper instrumentality to effect such a profound change in the common law of Maryland. II THE POLICE OFFICER WAS ACTING IN A DISCRETIONARY NOT A MINISTERIAL CAPACITY Appellants also argue that the exercise of the police function by Officer Betts in this case was “ministerial” and not “discretionary.” Thomas v. Johnson, 295 F. Supp. 1025 (D.C. 1968); Baker v. Washington, 448 F. 2d 1200 (D.C. Cir. 1971). In their view, Prince George’s County should not enjoy immunity in this case, since, they contend, in Maryland governmental immunity is extended only to the acts of public officials who are “acting in a discretionary as opposed to a ministerial capacity.” Duncan v. Koustenis, supra at 104. Again, a dispositive answer is found in decisions of the Court of Appeals.

In Robinson v. Board of County Commissioners for Prince George’s County, et al., supra, the Court said: “It is clear that policemen are ‘public officials,’ State, to Use of Wilkerson v. Baltimore County, 218 Md. 271 , 146 A. 2d 28 (1958); Harris v. Mayor and City Council of Baltimore, 151 Md. 11 , 133 A. 888 (1926), and that when they are within the scope of their law enforcement function they are clearly acting in a discretionary capacity.” Id. at 347. 5 However tragic and regrettable his action may have been, Officer Betts was performing a law enforcement function when the deceased was shot on November 29, 1970. Since he was acting in a discretionary capacity immunity attached and the lower court therefore correctly ruled that Prince George’s County was entitled to invoke the privilege. 6 ³⁹¹ Ill SECTION 1013 OF THE CHARTER OF PRINCE GEORGE’S COUNTY BECAME EFFECTIVE FEBRUARY 8, 1971 AND DOES NOT APPLY RETROSPECTIVELY On Election Day, November 3, 1970, the