State v. Jones

GRAEFF, J. This appeal arises from a confrontation that ensued during an attempt to serve an arrest warrant on an individual believed to reside at the home of Kimberly Jones, appellee and cross-appellant. On September 21, 2009, a jury in the Circuit Court for Prince George’s County found the State of Maryland, appellant and cross-appellee, 1 liable for negligent retention, supervision, or training of Sheriffs Deputies Billy Falby and Gerald Henderson. It awarded damages in the amount of $261,000, but the court subsequently reduced the judgment ⁶⁴² pursuant to the Maryland Tort Claims Act, entering judgment in favor of Ms. Jones in the amount of $200,000. On appeal, the State presents the following questions for our review, which we quote: 1.

Did the circuit court err in entering judgment against the State when the State did not owe any duty to Ms. Jones individually, as opposed to the public generally, with respect to the retention, supervision, and training of Deputies Falby and Henderson? 2. Did the circuit court err in entering judgment against the State even though Ms. Jones failed to present evidence that the State owed a duty or breached a duty with respect to its retention, supervision, and training of Deputies Falby and Henderson, and failed to present evidence that any such breach was a proximate cause of her alleged damages? 3. Did the circuit court err in entering judgment against the. State as to Ms. Jones’s claims for negligent retention, supervision, and training, where she failed to present evidence of any such negligence related to battery, the only tortious act that the jury found either Deputy to have committed? 4.

Did the circuit court err in entering judgment against the State as to Ms. Jones’s claims for negligent retention, supervision, and training, where the State had already accepted direct liability for the only tortious act that the jury found either Deputy to have committed? Ms. Jones filed a cross-appeal, presenting two questions for our review, which we have rephrased slightly: (1) Did the circuit court err in reducing the judgment pursuant to the Maryland Tort Claims Act, which caps the State’s liability at $200,000 “to a single claimant for injuries arising from a single incident or occurrence,” when Ms. Jones’s injuries arose from multiple incidents or occurrences? ⁶⁴³ (2) Does the Maryland Tort Claims Act violate the constitutional mandate of separation of powers between the legislative and judicial branches of government? For the reasons set forth below, we shall reverse the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On September 15, 2006, at approximately 11:30 a.m., Deputies Billy Falby and Gerald Henderson went to 151 Westway Center Drive, an apartment building in Greenbelt, Maryland, to serve a domestic violence arrest warrant on Lamarr Wallace. 2 Once at the location, the deputies realized that the address was for the apartment complex, without an apartment number listed.

The deputies made a phone call to the complainant to obtain the apartment number, and as a result of that call, they proceeded to Ms. Jones’ apartment. The deputies knocked on the door and announced that it was the Prince George’s County Sheriffs Office. Ms. Jones, who was asleep at the time, asked the officers to “hold on,” and she put on a robe. The deputies heard doors opening and closing inside the apartment, and they were concerned that Mr. Wallace might be trying to escape.

When Ms. Jones answered the door, she informed Deputy Falby that Mr. Wallace did not live there. What occurred next is disputed by the parties, but the parties agree that a confrontation occurred between the deputies and Ms. Jones, first inside her apartment, and later, in the parking lot of the apartment complex. Ms. Jones ultimately was arrested and charged with hindering an investigation, assault on an officer, escape, and resisting arrest, charges that subsequently were entered nolle prosequi. ⁶⁴⁴ On November 27, 2007, Ms. Jones filed a Complaint in the Circuit Court for Prince George’s County, naming Deputy Falby, Deputy Henderson, and the State of Maryland as defendants. She asserted the following claims: (1) Violation of Maryland Declaration of Rights, Article 26; (2) Violation of Maryland Declaration of Rights, Article 24; (3) False Arrest; (4) Trespass to Land; (5) Trespass to Chattels/Trover and Conversion; (6) False Imprisonment; (7) Battery; (8) Malicious Prosecution; (9) Intentional Infliction of Emotional Distress; and (10) Civil Conspiracy.

On December 24, 2007, the defendants filed their answers. All defendants generally denied liability and asserted that Ms. Jones failed to state a claim for which relief could be granted. In addition, they asserted as follows: (1) immunity under the Maryland Tort Claims Act (“MTCA”); (2) assumption of risk and/or contributory negligence; (3) any damages should be capped under the MTCA at $200,000; (4) the alleged acts did not rise to the level of malice or gross negligence; (5) legal justification and privilege; (6) the deputies acted reasonably, in good faith, without negligence, with due care, and in compliance with the law; (7) the deputies’ actions were supported by reasonable suspicion, probable cause, and/or were made pursuant to a valid arrest warrant; and (8) immunity under the doctrine of common law public official immunity. 3 On November 21, 2008, Ms. Jones filed an Amended Complaint, adding Counts XI and XII, the claims of negligent retention and negligent training and supervision. With regard to the claim of negligent retention, Ms. Jones asserted that Deputies Falby and Henderson “have committed violations such as those at issue here previously’; those “prior transgressions of the individual defendants are such as to put the State on notice that the individual defendants are unfit for duty”; such transgressions gave “rise to a duty to terminate the employment of the individual defendants”; the State nonetheless “negligently maintained their employment”; and that, ⁶⁴⁵ as a result, the deputies “were put in [a] position to commit the other wrongs alleged in this case,” directly and proximately causing injury to Ms. Jones.

With regard to the claim of negligent training and supervision, Ms. Jones asserted that the “State has a duty to individuals such as Ms. Jones to properly train and supervise officers such that they do not violate the rights of citizens;” the State breached this duty by “failing and refusing to properly train and supervise” Deputies Falby and Henderson; the deputies “were trained that they may forcibly enter a person’s home without a search warrant in order to serve an arrest warrant for someone who does not live there;” and as a result, the Deputies “committed the other wrongs alleged in this case,” directly and proximately causing injury to Ms. Jones. On December 10, 2008, the defendants filed answers to the amended complaint, raising two more defenses: (1) the plaintiff failed to comply with the mandatory notice requirements under the MTCA; and (2) the claims were barred by the statute of limitations and/or laches. On January 5, 2009, the defendants filed a Motion for Partial Summary Judgment, arguing, among other things, that the claims of negligent retention and negligent training and supervision could not be established as a matter of law. The defendants argued that Ms. Jones could not establish that they “owed her any legally actionable duty that could form the basis of her negligence claims, i.e., that the State specifically owed her in particular, versus the public in general, a duty of care, or that any special relationship was formed between her and the State.” On March 5, 2009, the court denied the motion.

Prior to trial, the parties filed several motions in limine. Ms. Jones filed a motion to exclude evidence of her alleged contact with Mr. Wallace. She argued that the only contact of which the Deputies were aware at the time that they obtained and executed the warrant was based on information provided by a single witness. She asserted that any other inquiries regarding her contact with Mr. Wallace “should be excluded as irrelevant, confusing, more prejudicial than probative and an attempt to introduce impermissible character evidence to ⁶⁴⁶ tar Ms. Jones through ‘guilty by association.’ ” The court granted the motion regarding evidence of a joint bank account held by Ms. Jones and Mr. Wallace, but it denied the motion regarding evidence that Mr. Wallace occasionally listed Ms. Jones’ address as his own and occasionally stayed overnight at her house. 4 The State also made a Motion in Limine, to exclude any reference by Ms. Jones to any prior complaints or allegations of bad acts relating to Deputy Falby.

The State advised that Deputy Falby was a defendant in two other lawsuits, one of which was resolved by summary judgment in favor of Deputy Falby, and the other that was still pending. The State argued that reference to these allegations of other bad acts would be unfairly prejudicial. The court provisionally granted the motion, stating that it would reconsider its decision if the evidence adduced at trial indicated that it was relevant, ie., if a duty on the part of the defendants was established or if it was appropriate as impeachment testimony. Trial commenced on March 16, 2009.

On direct examination of Deputy Falby, counsel for Ms. Jones asked the court to reconsider its previous ruling that it could not ask Deputy Falby about his prior bad acts, arguing that there was evidence that Deputy Falby previously had improperly charged an individual with assault on an officer and failed to appear for trial, and this evidence was relevant to show intent and malice. The court ruled that, because there was no evidence that Deputy Falby received a summons to appear for the other trial, it would not allow the evidence. The court indicated that it would reconsider the issue if it became appropriate as impeachment evidence. Ms. Jones then asked Deputy Falby if he had ever been disciplined by the Department.

When the State objected, counsel argued that it was necessary to introduce evidence of prior complaints against Deputy Falby to establish the notice ⁶⁴⁷ element of the negligent hiring and retention claim against the State. 5 The State continued to object, arguing that: (1) any duty owed by the State to protect the public was owed to the public and not Ms. Jones personally, and therefore, there was no evidence to support a tort claim for negligent retention; and (2) any complaints filed involved matters of internal affairs, which were confidential. The court ruled that Ms. Jones had “satisfied the burden of demonstrating the need for this material,” and it permitted an examination of Deputy Falby outside the presence of the jury. The court sealed this testimony. During the discussion after the testimony, the court summarized the testimony as indicating that there were two potentially relevant lawsuits, one involving a complaint by a prisoner as to insufficient medical care and the other involving excessive force, ie., punching an inmate in the face.

The court stated: This is what I’m trying to do. I’m trying to think of a way to let the jury know that which needs to be known that’s relevant to the issue of the negligent hiring and training and not to exclude that. Because for those purposes I think its clearly more probative than prejudicial, as long as we limit what’s being told for the purposes of what’s needed for the notice requirement for negligence. But even with a curative instruction, I’m not going to allow it to get into the whole issue of an assault and then the broken hand and all that, because it’s more prejudicial than probative and, secondly, that opens up just a pandora’s box of a whole other line of examination.

Counsel for the State then stated that, if the court was determined to admit this unfairly prejudicial evidence, it was “necessary to sever the [negligence] counts and conduct a separate trial as to those matters.” The discussion continued: ⁶⁴⁸ THE COURT: I’m not entirely adverse to severance. My concern is—and I think I’ve said this from the beginning— my concern is that some of these complaints are clearly relevant to the issue of negligent hiring and retention and supervision. And how does one weigh that with the undue prejudice that may come in on the other causes of action? So I’m not entirely adverse to a severance as to those causes of action.

I’m not sure that would be not the most fair thing to everybody involved. [Counsel for Ms. Jones], I will hear you briefly on the issue of severance, but I think that might be the best resolution of what’s clearly, I think, a problem---- [COUNSEL FOR MS. JONES]: I just want to say I object to severing at this point. It’s prejudicial because it’s too late to let me know we’re going to sever. I’ve built a case on the complaint that we’re here on.

I’ve litigated the case on the complaint that we’re here on. To sever mid trial causes that prejudice. It also causes the further prejudice of delay and cost, and I will submit on that. THE COURT: The Court is going to sever ...

I think I made it clear on the record, but let me do it again. It seems to me that these complaints are quite important to get to the issue of the negligence, the various negligence] claims in this case. I have also determined, at least up until this point, that they would be more prejudicial than probative as to the remaining counts in this case. I have considered how it is that I could instruct the jury and restrict conversation and testimony in evidence relative to these complaints in a way that we don’t cross some barrier to unduly prejudice the defendant.

On the other hand, I think to not allow those complaints in is unfair and unduly prejudice [sic] to the plaintiff as to her negligen[ce] counts. And I think the only equitable way to resolve it, despite the additional expense which might otherwise be incurred through the appellate process be ⁶⁴⁹ cause of the complications that would arise, that I will sever the negligent [retention, training, and supervision] counts from the remaining counts. Trial then resumed. At the conclusion of the six-day trial on counts I through X, the jury found in favor of Deputy Henderson and the State on all counts, and in favor of Deputy Falby on all counts except the battery claim.

On the battery claim the jury found in favor of Ms. Jones, against Deputy Falby, awarding no economic damages, but $5,000 in non-economic damages. On March 26, 2009, the court signed an order staying entry of the judgment “pending determination of all the counts.” 6 On April 2, 2009, Ms. Jones filed a Motion for New Trial, And to Alter and Amend Verdict, which the court denied on May 8, 2009. On August 17, 2009, prior to the second trial on Counts XI and XII, negligent retention and negligent training and supervision, the State filed a Motion for Summary Judgment. It argued that “Ms. Jones cannot show that the State breached any duty that she can show it owed to her or that such breach caused her any damages.” It further argued that “Ms. Jones, having had the benefit of a jury trial adjudicating her claims against the State with respect to Deputy Falby’s and Deputy Henderson[’s] alleged actions ... is not entitled to a second trial in which she seeks to hold the State liable for the same set of events under a different legal theory, negligent retention.” After Ms. Jones filed her opposition, the court denied the motion.

On September 14, 2009, a second trial commenced before a different jury on the claim of negligent retention, training, and supervision. Ms. Jones testified that, prior to the incident on September 15, 2006, she was employed as a youth care worker ⁶⁵⁰ at Father Flanagan’s, an emergency shelter for young teenagers. On September 15, 2006, after her night shift ended at 8:00 a.m., Ms. Jones went home and went to sleep. At approximately 11:30 a.m., Ms. Jones awoke to a knock at her door and an announcement that it was the Sheriffs Department.

It took Ms. Jones a couple minutes to answer the door because she had been asleep, and she needed to go to her closet to get a robe. When she opened the door, Deputy Falby immediately placed his foot across the threshold of her home. He advised that he and Deputy Henderson were looking for Mr. Wallace. Ms. Jones testified that she knew Mr. Wallace, and he sometimes spent an evening at her house along with other friends, but he did not live with her. 7 When she told Deputy Falby that Mr. Wallace did not live with her, he responded: “[W]ell, we [are] coming in whether you like it or not.” Ms. Jones asked to see a warrant, but Deputy Falby told her that his supervisor had it.

At this point, Deputy Henderson had walked around the side of the apartment complex and was standing outside Ms. Jones’ patio door. She turned around to see who was tapping on her door, and when she turned back, Deputy Falby pushed the door open and punched her in the eye. Ms. Jones fell back into her foyer and hit her head on a closet door. Ms. Jones testified that, because the police were not wearing traditional uniforms, and because Deputy Falby punched her in the face, she did not believe they were police officers.

She “began to defend [her]self,” but by this time, Deputy Henderson had broken through the glass of her patio door, and he “maced” her. She was able to get away from the officers and ran into the hallway, where she began banging on her neighbors’ doors for help. She testified that the officers followed her and hit her with a baton and again sprayed her with mace. ⁶⁵¹ Ms. Jones then ran into the parking lot of her apartment complex. She ran toward several Greenbelt police officers, but they backed away.

Deputies Falby and Henderson caught up with her, banged her head against a car, and handcuffed her. Ms. Jones testified that she was still wearing her robe, and she was not permitted to go into her house to get dressed. Rather, she was forced to dress outside, in front of her building. She stated that she was “mortified, ashamed ... upset, scared.” After she was dressed, Deputy Falby took Ms. Jones to the hospital, where she was treated for a head injury, and then to jail, where she spent the night until her friends bailed her out the next morning.

Deputy Falby testified next. He testified first with regard to his experience and training. He attended the police academy for six months before starting with the Sheriffs Department. After he was sworn in, he continued to receive on-the-job training, and he received a re-certification each year.

Part of his training included keeping abreast of legal developments, including issues regarding the service of an arrest warrant. He was trained that when a door was opened to him, he should place his foot against the door to prevent it from closing, as a safety measure. Deputy Falby then testified with regard to the events on September 15, 2006. He and Deputy Henderson were assigned to serve an arrest warrant on Mr. Wallace.

They were in unmarked cars, and they were wearing “BDUs,” “battle dress uniform,” which is dark blue and includes a badge, name tag, and full duty belt. When he and Deputy Henderson arrived at 151 Westway, they realized that the address listed on the warrant was that of an apartment complex, but it did not list an apartment number. Deputy Falby called the complainant, and he and Deputy Henderson subsequently went to apartment T-3. 8 ⁶⁵² When Deputies Falby and Henderson knocked on Ms. Jones’ door, a female voice asked who was there. After the deputies identified themselves, the woman stated: “[W]ait a minute.” Deputy Falby heard a door open and close.

He and Deputy Henderson continued to wait, but eventually, they became concerned that Mr. Wallace might be trying to escape. Deputy Henderson went around to the back of the apartment. Deputy Falby believed that there was someone besides Ms. Jones inside, and that Ms. Jones was trying to protect Mr. Wallace by saying that he was not there. Therefore, when Ms. Jones opened the door, he blocked it with his foot.

He testified that he was trained to place his foot against the door after it was opened to prevent someone from obtaining a weapon, or restricting access to the residence to allow the officers to search the location for the subject of the arrest warrant. When Ms. Jones asked if there was a warrant, Deputy Falby tried to radio to Deputy Henderson, but his message was not communicated due to poor radio service. 9 When Ms. Jones tried to close the door, he did not let her, and instead, he pushed the door back. Ms. Jones let go of the door, which flung open, and Deputy Falby entered the apartment. Deputy Falby testified that, once he was in the apartment, Ms. Jones was screaming and hit him in the face, knocking his glasses off.

In response to the confrontation, Deputy Henderson broke through the patio door and sprayed Ms. Jones with mace. Both he and Deputy Henderson tried to grab Ms. Jones, but because his glasses had been knocked off and he also had been sprayed with mace, Ms. Jones was able to get away and run into the hallway and then the parking lot outside the apartment. He and Deputy Henderson ran after Ms. Jones, cornered her between two vehicles, leaned into her with their bodies, and used an “arm bar technique,” also ⁶⁵³ known as a pain compliance measure, to handcuff her. Deputy Falby testified that he never hit Ms. Jones, and he did not know how she got her injuries.

He stated that everything he did that day was consistent with his training. After Ms. Jones was handcuffed, Deputy Falby gave her a sheet to cover herself and a towel to wipe off the mace. Deputy Falby testified that, at the request of Deputy Henderson, a female Greenbelt police officer escorted Ms. Jones back to her apartment to get dressed. After she was dressed, Ms. Jones was taken to the hospital, which was standard procedure for contamination due to mace.

At the hospital, Deputy Falby was present when Ms. Jones spoke with medical personnel, but he did not recall hearing Ms. Jones discuss a head injury. 10 Deputy Falby subsequently charged Ms. Jones with hindering an investigation and assault on an officer. 11 As part of his statement of charges, he requested a summons for trial. He testified, however, that he did not show up for trial because he never received notice of the trial date. Deputy Falby’s supervisors later notified him that the charges against Ms. Jones had been dropped, and he did not do anything further to see to it that the charges were re-filed. Deputy Falby testified regarding a pending lawsuit against him for use of excessive force against an inmate, relating to an incident that occurred approximately a year and a half before the incident with Ms. Jones.

Deputy Falby was assisting with the transport of 48 to 60 prisoners who were chained together ⁶⁵⁴ in a line. 12 One of the inmates, Terrón Williams, got into an argument with another officer, and Deputy Falby went over to unchain the inmate to separate him from the group because he was becoming increasingly agitated and inciting the other inmates. The inmate shoved Deputy Falby and was coming toward him, so Deputy Falby punched the inmate in the head, breaking his own hand. Deputy Falby charged the inmate with assault on an officer despite the fact that he was not injured by the inmate. He did not appear for court in that case because he did not receive the notice of the trial date.

Deputy Falby testified that he and other deputies were questioned by the Internal Affairs Division regarding the incident, but he was not disciplined or required to take additional training. Deputy Gerald Henderson testified next. His testimony was consistent with the testimony of Deputy Falby with regard to the events that took place inside Ms. Jones’ apartment, as well as in the parking lot complex. Deputy Henderson did not see Deputy Falby shove Ms. Jones or do anything inappropriate.

With respect to his training, he testified that he attended Howard County Police training for six months, where he was trained in arrest procedures, warrant service and initiation of criminal proceedings, and when he joined the Prince George’s County Police Department, he attended a six week Experienced Police Officers Academy. He received periodic in-service training at the Howard and Prince George’s County Police Departments, and has periodic in-service training with the Prince George’s County Sheriffs Department. He was trained that for “an officer’s safety,” he should not let an open door close on him. The next witness, Angela Bolder, was unavailable, so her testimony from the first trial was read into evidence.

On September 15, 2006, she lived in the apartment next door to ⁶⁵⁵ Ms. Jones, and she called 911 after she heard Ms. Jones in the hallway screaming: “Help me. Can you help me. Can you help me.” When she looked through her peep hole, she saw a man in the hallway who had Ms. Jones pressed against the wall and who hit her with a “stick.” She called 911 because she could not tell whether the man was a police officer because he was wearing dark clothing. Sandy Frye, a childhood friend of Ms. Jones, testified that Mr. Wallace, the subject of the arrest warrant, was her brother, and he lived with her at the time of the incident.

On the day that Ms. Jones was arrested, she and her brother began walking to Ms. Jones’ house, but along the way, Mr. Wallace was arrested. When she picked up Ms. Jones from jail the next day, Ms. Jones had a black eye, and she had a bald spot in the back of her head. They went to Ms. Jones’ apartment, where they noticed hair on the floor, and Ms. Frye took pictures using her cell phone camera. On cross-examination, Ms. Frye stated that Mr. Wallace spent most nights at her house, but occasionally he would spend the night at Ms. Jones’ house. 13 She testified that, to her knowledge, Mr. Wallace had never lived at 151 Westway in Greenbelt, Maryland.

After Ms. Jones rested her case, the State made a motion for judgment, adopting the arguments made in its earlier motion for summary judgment and further arguing that the sheriff owed no duty to Ms. Jones, that the sheriff was entitled to immunity, and the plaintiff failed to establish the elements of her claim. It argued that, with respect to the negligent retention claim, there was no evidence that the sheriff was on ⁶⁵⁶ notice of “the allegations related to Terrón Williams.” With respect to the claim regarding training and supervision, it argued that there was “no expert testimony offered to suggest that [the deputies] didn’t perform their work properly as law enforcement officers” or that anything that “the sheriff did in supervision or education of these deputies ... could have caused any wrongful harm to the plaintiff.” The State contended that Ms. Jones failed to call any training witness, and she did not admit into evidence any guidelines, rules, manuals, general orders, etc. that showed improper training or supervision. It asserted that the only testimony regarding any impropriety was Deputy Falby’s testimony regarding his decision to charge Ms. Jones with assaulting a police officer, which was erroneous because he did not suffer an injury. Deputy Falby testified, however, that he was trained correctly, and he just made a mistake.

Ms. Jones argued that all of the elements of the claim of negligent training, supervision, and retention had been met. Initially, she argued that the sheriff need not be personally aware of something to be on notice, asserting that it was sufficient that the chain of command was on notice, which it was in both the Terrón Williams incident and the incident involving Ms. Jones. Moreover, she argued that the State did have a duty not to negligently train, supervise and retain employees. Ms. Jones argued that there was a “panoply” of evidence regarding improper training, including, for example, the deputies’ testimony that they were trained to put their foot over the threshold once a door was opened, which counsel argued was a constitutional violation.

Counsel argued that expert testimony was not required because the violations were of constitutional and legal standards, which should be conveyed to the jury by the court during instructions. Finally, Ms. Jones argued that there was no qualified immunity in this case because there was no claim against an individual; the case involved “a direct claim against the [S]tate for negligence.” In response, the State argued that the Law Enforcement Officer’s Bill of Rights (“LEOBR”) “precludes the sheriff from ⁶⁵⁷ discharging the deputy, absent appropriate procedures having been followed ... including a guilty finding before a trial board.” It asserted that the LEOBR “prohibits the sheriff from carrying out disciplinary action absent a sustained finding, which plaintiff has not put on any evidence of in this case.” The State further argued that it “has already been held liable for the deputies direct actions” in the first trial, and “there is no separate liability through negligent retention.” With regard to the deputies’ actions, the State noted that the assertions of negligent training involved two things: (1) the officer putting his foot in the door when it was opened; and (2) the erroneous charge. With respect to the foot in the door, the State argued that there was no case stating that this was impermissible, and even if it was, this action was not causally related to any damage claim. With respect to the erroneous charge, the State noted that, although the officer may have erroneously charged Ms. Jones with assault with injury to a police officer, there was no evidence that the other charge was improper.

It further argued that the only potential damages from the improper charge were lost wages, but Ms. Jones did not submit evidence to support this claim. The court denied the State’s motion for judgment, stating: “Considering all of the evidence in the light most favorable to the plaintiff at this point, the Court finds sufficient evidence at this point to send to the jury on the issues before it, which are the negligence issues. So the motion will be denied.” 14 Ms. Jones subsequently made a motion for judgment as to the defendant’s LEOBR defense, arguing that it was an affirmative defense that the State failed to raise earlier, and further, that there was no proof that the LEOBR prevented the sheriff from taking disciplinary action against Deputy Falby. The court agreed, ruling that the State could argue that no action was taken after the Terrón Williams incident ⁶⁵⁸ because Deputy Falby did nothing wrong, but it could not argue that the State could not have taken any action because there was no LEOBR hearing; The court instructed the jury on the elements of the claim of negligence as follows: One dealing with the public is bound to use reasonable care and select employees competent and fit for the work assigned to them and to refrain from retaining the services of an unfit employee.

An employer has a duty not to employ or retain any person who poses an unreasonable risk to other persons who would foreseeably come into contact with that employee because of the employment relationship. There is a rebuttable presumption that an employer has used due care in hiring an employee. An employer who breaches this duty is responsible for any foreseeable injuries or damages caused by the conduct or actions of any such employee. To establish a claim for negligence, the Plaintiff must prove the following: 1. the existence of an employment relationship; . 2. the employee was incompetent and this incompetence posed an unreasonable threat to those members of the public as would foreseeably come into contact with the employee; although the exact harm or victim need not be foreseeable; 3. the employer’s actual or constructive knowledge of such incompetence; 4. the employee’s act or omission causing Plaintiffs injuries; and 5. the employer’s negligence in retaining, training or supervising the employee being the proximate cause of Plaintiffs injuries.

In closing argument, Ms. Jones argued that the State improperly trained and supervised its officers, stating that the deputies were trained that they could enter apartments when there is no reasonable belief that the subject of an arrest ⁶⁵⁹ warrant is inside the premises, and that they were trained to use excessive force. She argued that Deputy Falby did not receive training that he should not improperly charge individuals, and that both deputies testified that everything that they did was pursuant to their training and supervision. With regard to the State’s negligent retention, Ms. Jones argued that, after the Terrón Williams incident, the State should have terminated Deputy Falby, moved him to a different position in the Department, or required him to attend additional training. Ms. Jones argued that, as a result of the State’s negligence, she incurred damages.

Her physical injuries included a neck strain, black eye, and head injury. She was terminated from her position at Father Flanagan’s, causing $35,000 in lost wages, and in her new job, she could no longer work overtime, causing her to make $5,000 less per year, a $15,000 loss of income she incurred over the past three years. She argued that, in addition to lost wages, she suffered the following economic damages: (1) loss of her vehicle, in which she had $10,000 equity, due to her failure to make payments; (2) loss of her Disney timeshare, in which she had $2,000 equity, due to her failure to make payments; (3) attorney’s fees in connection with the charges Deputy Falby filed against her, totaling $1,000. Finally, Ms. Jones argued that she was entitled to damages for her pain, suffering, fear, and humiliation caused by the deputies’ actions.

The jury returned a verdict in favor of Ms. Jones, finding the State liable for “negligent retention, supervision or training,” and awarding $50,000 for lost wages, $11,000 for economic damages, and $200,000 in non-economic damages, a total of $261,000. The court stayed its entry of the judgment to allow the parties to submit legal memoranda on the issue of how to reconcile this damage award with the $5,000 non-economic damage award from the first trial. In response, Ms.