TOLLENGER v. State

SALMON, J. This is a motor tort case in which the State of Maryland and three of its agencies (“the State”) convinced a motions judge, in the Circuit Court for Harford County, that there existed an ⁵⁸⁸ implied exception in the Maryland Tort Claims Act (“MTCA”) that protects the State from lawsuits “arising from discretionary governmental planning and policy decisions that are authorized by statute.” The governmental planning and policy decision at issue concerns a decision as to whether the State should have made an improvement to one of its bridges that the plaintiff contends was needed in order to make the bridge safe. For reasons explained below, we shall hold that no implied exception to the Maryland Tort Claims Act shields the State from liability in this case. Therefore, we shall reverse the grant of summary judgment by the circuit court. I. Facts The Thomas J. Hatem Memorial Bridge (hereinafter “the bridge”) connects Havre de Grace in Harford County to Perryville in Cecil County, Maryland.

The bridge is four lanes, two in each direction. On August 10, 2001, at approximately 4:39 p.m., it was raining heavily as Kenneth Connor was driving his pickup in the right-hand, westbound, lane of the bridge. The front seat passenger in Mr. Connor’s pickup was twelve-year old Ashley Paige Tollenger. For unknown reasons, Mr. Connor’s pickup went out of control, crossed the center line and struck a vehicle that was being driven by Eric Lee Klotz in the opposite direction.

Prior to the accident, Mr. Klotz was driving lawfully in the right-hand, eastbound lane of the bridge. As a result of the collision both Mr. Connor and Ashley Tollenger were killed. The bridge did not have a median barrier (hereinafter “jersey wall”) to separate east and westbound lanes of traffic when the accident occurred. Instead of a jersey wall, the east and westbound lanes of traffic were demarcated only by a painted double line. ⁵⁸⁹ Prior to the subject accident, the bridge had been in operation for 61 years.

There had been twelve cross-over accidents in the ten years immediately prior to the August 10, 2001, collision. Two of the collisions resulted in fatalities, one in 1995, and another in December 1999. In addition, in January 2000, a driver crossed over the center line and collided head-on with a vehicle traveling in the opposite direction, which resulted in serious personal injuries. On January 18, 2000, members of the Maryland Transportation Authority Safety Committee discussed the problem of cross-over collisions on the bridge.

Among other things, the Safety Committee reviewed options for reduction of opposite direction accidents on the bridge, including the possibility of installing a “permanent concrete barrier.” The Maryland Transportation Authority’s Director of Engineering, Faysal Thameen, wrote a memorandum to the Executive Director of the Transportation Authority on February 25, 2000. In that memorandum he said, “[w]e feel that the installation of a temporary concrete median barrier is the easiest and least expensive option to install. This option will enhance safety by providing a positive barrier between opposing travel lanes without [ajffecting the life of the bridge deck.” Mr. Thameen also voiced the opinion that “the benefits from the elimination of opposite direction accidents outweighs the disadvantages.” At its meeting on March 21, 2000, the Maryland Transportation Authority considered recommendations concerning a proposed project to install a jersey barrier on the bridge but, after discussions of various options, voted to table the project for future discussion. That decision was based, in part, upon concerns that the addition of the jersey barrier would result in narrowing of the bridge’s travel lanes, which might lead to more frequent accidents.

On August 21, 2001, which was eleven days after the accident that caused Ashley Tollenger’s death, the Chief Engineer for the Maryland Transportation Authority requested approval for the installation of a jersey barrier on the bridge. ⁵⁹⁰ That authorization was given and commencement of the project to install a jersey barrier separating east and west bound bridge traffic began on January 17, 2002. The project was completed forty-nine days later. On August 6, 2004, Garrett P. Tollenger, individually and as personal representative of the estate of his daughter, Ashley Paige Tollenger (collectively “Mr. Tollenger”), filed a lawsuit in the Circuit Court for Harford County against, inter alia, the State of Maryland and three of its agencies. The State agencies sued were the Maryland Department of Transportation, the Maryland Transportation Authority, and the Maryland State Highway Administration.

Mr. Tollenger’s complaint included a wrongful death claim on his own behalf, and a survivorship claim that he brought on behalf of his daughter’s estate. The complaint alleged, insofar as is here relevant, that the State had a duty to install “barricades and barriers in the median of [the bridge] ... and/or to install median dividers on ... [the bridge] and to otherwise design, construct, and implement ... safety measures necessary and appropriate for the safe operation of motor vehicles upon ... [the bridge], including the motor vehicle occupied by ... [Ashley Tollenger] on August 10, 2001.” According to the complaint, the State breached the aforementioned duties and, as a proximate cause of those breaches, Ashley Tollenger was killed. The State defendants filed their answers to Mr. Tollenger’s complaint in March, 2005. Thereafter, the State defendants and Mr. Tollenger engaged in a lengthy and vigorous battle concerning the permissible scope of information that the State was obligated to disclose concerning the jersey barrier decision and other matters.

On two occasions, the State defendants filed interlocutory appeals to this Court concerning discovery issues. Both of those appeals were dismissed by this Court as premature. On August 12, 2009, after the subject lawsuit had been at issue for more than four years, the Maryland Department of Transportation filed a motion for summary judgment in which ⁵⁹¹ it asserted, inter alia, that Mr. Tollenger’s suit was barred by the doctrine of sovereign immunity. Subsequently, the remaining State defendants joined in that motion.

The motions judge, after considering the opposition filed by Mr. Tollenger, granted summary judgment in favor of the State defendants. The motions judge reasoned as follows: 1) the negligent act that Mr. Tollenger claimed was a proximate cause of Ashley Tollenger’s death was the failure to erect a jersey barrier; 2) the decision to not erect a jersey barrier prior to the accident was made by public officials; 3) if the public officials who made the decision not to erect the jersey barrier were immune from suit, then the State and its agencies, under the provision of the Maryland Tort Claims Act, were also immune; 4) the public officials who made the decision were immune from suit because they were performing “discretionary” duties when they elected (pre-accident) not to erect the barrier; 5) therefore, because there exists no “legislative mandate to the contrary,” the State was not liable for its failure to erect the barrier. We shall reverse the motions judge’s grant of summary judgment on the grounds that there does exist a “legislative mandate to the contrary.” That “legislative mandate” is contained in the MTCA.

II

Prior to 1976, the State of Maryland and its agencies enjoyed complete sovereign immunity from both tort and contract actions. Unlike municipalities and counties, which at common law could be held liable for tortious conduct while acting in a “private or proprietary capacity” (DiPino v. Davis, 354 Md. 18, 47 , 729 A.2d 354 (1999)), the State enjoyed sovereign immunity whether it was functioning in a governmental or proprietary capacity. Thus, at common law neither the State nor its agencies could have been successfully sued for the type of negligence alleged in Mr. Tollenger’s complaint. The General Assembly, in 1976, enacted a conditional waiver of sovereign immunity in contract actions against the State. ⁵⁹² See Laws of 1976, ch. 450.

Presently the State’s waiver of sovereign immunity for contract actions, and the conditions that must be met in order for the waiver to apply, are set forth in Maryland Code (2009 Repl.Vol.), State Government Article, sections 12-201-12-204. 1 The Maryland Tort Claims Act was first enacted in 1981, and became effective on July 1, 1982. The Act specified six types of claims for which the State’s sovereign immunity was waived to the extent funded by insurance and subject to certain other conditions. 2 See Maryland Code (1980, 1981 Sup.) Courts and Judicial Proceedings Article, section 5-403. ⁵⁹³ As the MTCA was initially enacted, subsection (a) of section 5-403 provided: (а) Actions in which State’s immunity is waived. — Except as provided in subsection (b) of this section, the immunity of the State from suit in the courts of this State and liability in tort is waived in the following actions to the extent and in the amount that the State is covered by a program of insurance established by the Treasurer pursuant to § 27 of Article 95. (1) An action to recover damages caused by the negligent maintenance or operation of a motor vehicle by a State employee; (2) An action to recover damages caused by the negligence of a health care employee of a State facility or institution or by a doctor, nurse, dentist, or related health care personnel employed by the State; (3) An action to recover damages caused by the patently dangerous condition of a building, structure, or other public improvement owned and controlled by the State; (4) An action to recover damages caused by the negligent use or maintenance of State property by a State employee; (5) an action to recover damages caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk, or highway owned and controlled by the State if constructive or actual notice of the condition existed; and (б) An action to recover damages caused by the negligent failure of a State employee to properly supervise an activity at a State park or recreation facility. (Emphasis added.) As discussed in Kee v. State Highway Admin., 313 Md. 445 , 545 A.2d 1312 (1988), the MTCA, as originally enacted, waived the State’s immunity, provided that adequate insurance coverage and other conditions precedent to suit were met, for causes of actions like the one filed by Mr. Tollenger.

See Maryland Code (1980 Repl.Vol., 1983 Cum Supp., Courts & Judicial Proceedings Article, section 5-403(a)(5)). ⁵⁹⁴ In Kee , an accident occurred in September, 1982, on Old National Pike Highway in Frederick County, Maryland, when an automobile swerved to avoid another vehicle, went through a guardrail, and slid down an embankment, resulting in the death of Mark Schaffert and serious injury to Gary Schaffert. Kee, 313 Md. at 451 , 545 A.2d 1312 . Gary Schaffert along with his mother, Evelyn Kee, individually and as personal representative of Mark Schaffert’s estate, filed a complaint in which they alleged “that the injuries occurred as a result of a negligently maintained guardrail that could not withstand the impact of the vehicle, thus allowing the vehicle to flip over and slide down the embankment” and cause the death of Mark Schaffert. Id. at 452 , 545 A.2d 1312 .

Plaintiffs also alleged that the State had pre-accident knowledge of the dangerous condition of the guardrails. Id. In Kee , the State asserted that plaintiffs’ claims fell within paragraph (5) of section 5-403(a), which related to damages caused by a defective, unsafe, or dangerous condition of State highways. Id.

Nevertheless, the State maintained that in 1982, when the accident occurred, the State still had immunity because it had no insurance “to cover an action to recover damages caused by a defective, unsafe, or dangerous condition of any ... highway owned and controlled by the State....” Id. at 453 , 545 A.2d 1312 . The Court of Appeals agreed that the State retained its immunity for causes of actions occurring in 1982 and falling only within section 5 — 403(a)(5) because in 1982 “there was no authority or provision for the payment of claims.” Id. at 457 , 545 A.2d 1312 . The Kee Court went on to hold, however, that the plaintiffs’ claims might fit within paragraphs (3) and (4) of section 5-403(a) and that there was a possibility that a policy issued to the State by Reliance Insurance Company, might insure the State from claims like those made by the plaintiffs. Id. at 461-62 , 545 A.2d 1312 .

In reaching the last mentioned conclusion, the Kee Court examined the legislative history of the Maryland Tort Claims Act and noted that the Senate Committee’s report concerning the 1981 version of the MTCA “expressly stated with regard to § 5-403(a)(4): ‘the waiver in ⁵⁹⁵ this paragraph is the broadest of the six and therefore overlaps to some extent most of the others.’ ” The MTCA, as initially enacted was, in the words of Carl F. Eastwick, Chief Legislative Officer for the Governor, but “a cautious beginning in the effort to abolish the sovereign immunity doctrine,” See, Sovereign Immunity Testimony, SB585 (1982); See also, State Highway Admin. v. Kim, 353 Md. 313, 320 , 726 A.2d 238 (1999). Notably the initial version of the MTCA set forth several instances in which the immunity was not waived. Id. When the MTCA was initially enacted, section 5-403(b) of the Courts and Judicial Proceedings Article read: Purposes for which immunity not waived. — The immunity of the State in tort is not waived for the following purposes: (1) Punitive damages; (2) Interest prior to judgment; (3) Individual claims in excess of $100,000; (4) An aggregate of claims arising from the same occurrence in excess of $500,000; (5) Any claim arising out of the combatant activities of the militia of this State during a state of emergency; and (6) Any cause of action specifically prohibited by law.

In 1984, the format of the MTCA was changed by moving the Act from the Courts and Judicial Proceedings Article to its present location in the State Government Article. See 1984 Md. Laws, Chap. 284. The next year, the coverage of the MTCA was greatly broadened by Chapter 538 of the Act’s of 1985, which was effective July 1, 1985. The 1985 amendment was remedial legislation which, by the legislature’s own direction, was to be “construed broadly, to ensure that injured parties have a remedy.” See section 12-102 of the State Government Article.

The MTCA as amended in 1985, waived the State’s sovereign immunity with respect to certain tortious conduct of “State personnel,” and defined that last mentioned term as including “an individual who, with or without compensation, ⁵⁹⁶ exercises a part of the sovereignty of the State.” See Maryland Code (1984, 1988 Supp.), State Government Article, section 12-101(4). In lieu of the six categories enumerated in the 1981 Act, section 12-104(a) of the State Government Article waived its sovereign immunity in tort actions filed in Maryland “to the extent of insurance coverage under Title 9 of the State Finance and Procurement Article.” The MTCA was again amended by chapter 413, 1988 Maryland Laws to redefine the term “State personnel” so as to exclude from its coverage sheriffs, deputy sheriffs and other local law enforcement persons who were compensated for their services but were not paid through the State Central Payroll Bureau. State v. Card, 104 Md.App. 439, 442 , 656 A.2d 400 (1995). In 1990, the MTCA was changed once again so as to make the State liable for the actions of sheriffs engaged in police protection and for operating detention centers.

Id. at 445 , 656 A.2d 400 . Presently, and when the subject accident occurred, Maryland Code (2009 Repl.Vol.) State Government Article section 12-104 reads: § 12-104. Waiver of immunity. (a) In general. — (1) Subject to the exclusions and limitations in this subtitle and notwithstanding any other provision of law, the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent provided under paragraph (2) of this subsection.

(2) The liability of the State and its units may not exceed $200,000 to a single claimant for injuries arising from a single incident or occurrence. (b) Exclusions and limitations. — Immunity is not waived under this section as described under § 5-522(a) of the Courts and Judicial Proceedings Article. (c) Payment of claims exceeding coverage. — (1) The Treasurer may pay from the State Insurance Trust Fund all or part of that portion of a tort claim which exceeds the limitation on liability established under subsection (a)(2) of this section under the following conditions: ⁵⁹⁷ (1) the tort claim is one for which the State and its units have waived immunity under subsections (a) and (b) of this section; (ii) a judgment or settlement has been entered granting the claimant damages to the full amount established under subsection (a)(2) of this section; and (iii) the Board of Public Works, with the advice and counsel of the Attorney General, has approved the payment. (2) Any payment for part of a settlement or judgment under this subsection does not abrogate the sovereign immunity of the State or any units beyond the waiver provided in subsections (a) and (b) of this section.

(Emphasis added.) Section 5-522(a) of the Courts and Judicial Proceedings Article currently lists the purposes for which immunity is not waived, viz: § 5-522. Immunity — State and its personnel and units. (a) Tort liability — Exclusions from waiver under § 12-1.0k of the State Government Article. — Immunity of the State is not waived under § 12-104 of the State Government Article for: (1) Punitive damages; (2) Interest before judgment; (3) A claim that arises from the combatant activities of the State Militia during a state of emergency; (4) Any tortious act or omission of State personnel that: (i) Is not within the scope of the public duties of the State personnel; or (ii) Is made with malice or gross negligence; (5) A claim by an individual arising from a single incident or occurrence that exceeds $200,000; or (6) A cause of action that law specifically prohibits. The MTCA granted “State personnel” immunity from “liability described under § 5-522(b) of the Courts & Judicial Proceedings Article.

See section 12-105 of the State Government Article. Section 5-522(b) provides: ⁵⁹⁸ (b) In general. — State personnel, as defined in § 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article, even if the damages exceed the limits of that waiver. The issue we must decide is whether the General Assembly, when it enacted the MTCA and the various amendments thereto, intended that the State would retain the cloak of sovereign immunity for the discretionary acts of its public officials that allowed a bridge to be kept in a defective or dangerous highway condition, even though no such exclusion is mentioned in the statute. In this regard, the case of State v. Card, supra, 104 Md.App. at 444-45 , 656 A.2d 400 , is instructive.

At issue in Card was whether the State could be successfully sued for the (alleged) negligence of a sheriff, who operated a detention center. Id. at 440 , 656 A.2d 400 . According to the plaintiffs complaint, the plaintiff was injured because the sheriff, among other things: 1) failed to control an inmate known to be dangerous, and 2) failed to properly maintain security and ventilation equipment within the detention center where the plaintiff was confined. Id. at 440 , 656 A.2d 400 .

The first issue addressed by Chief Judge Alan Wilner, speaking for this Court in Card , was whether, under the MTCA, as it was written in 1985, the State could be held liable for the negligent actions of the sheriff. Judge Wilner explained, that under the MTCA as it existed in 1985, the State would not be liable for the sheriffs actions because the sheriff did not fit within the statutory definition of “State personnel.” Id. at 447 , 656 A.2d 400 . What Judge Wilner said in that regard, is here relevant: Even with the clearly intended expansion of the waiver in the 1985 legislation, we are still left with the underlying principle that the State could only be liable in the first ⁵⁹⁹ instance by virtue of either the vicarious liability arising from the tortious conduct of one of its agents, or harm arising from property that it owns or controls. The 1985 Act could thus have expanded only the categories of agents for whom the State would effectively accept vicarious liability and the categories of State-owned or controlled property as to which it would entertain claims.

There is nothing in the Act itself, or in its history, suggesting an intent that the State be liable for the conduct of persons other than those included within the definition of “State personnel,” except to the extent that the liability arises from the defective condition of State-owned or controlled property, where the tortious conduct of any particular person is not relevant. Appellee’s action against the State was founded on the negligence of the sheriff in superintending the operation of the county detention center, not on the defective condition of any State-owned or controlled property. Accordingly, in this circumstance, the State could only be liable, and would only have waived its sovereign immunity, to the extent that the sheriff was included within the scope of “State personnel.” Id. at 447 , 656 A.2d 400 (emphasis added). In Card , the Court went on to hold, however, that a 1990 amendment to the MTCA that made the State liable for the actions of sheriffs and their deputies providing police protection and services at detention centers, should be applied retroactively, and therefore, the State had waived sovereign immunity for the claims raised by Card in his complaint.

Id. at 445-50 , 656 A.2d 400 . In the subject case, unlike the situation in Card , the State is not being sued for the negligent conduct of any named individual, but instead is being sued based on an allegation that “the defectiveness of State owned or controlled property” caused injury to the plaintiffs. Id. at 447 , 656 A.2d 400 . More recently in Proctor v. Washington Metro.

Area Transit Auth., 412 Md. 691, 713 , 990 A.2d 1048 (2010), the Court said: ⁶⁰⁰ [t]he notable features of the MTCA’s waiver of sovereign immunity are: 1) the State waives its