Torbit v. Baltimore City Police Department

Opinion by Friedman, J. Two people were killed and several others were injured when the Baltimore Police Department (“BPD”) responded to an “active shooter” 1 situation outside a nightclub in Baltimore City. We are first asked to determine whether the Police Department, the Club, and an adjoining parking lot’s owner and operator may be liable for actions prior to the shooting. For a variety of reasons described below, we affirm the trial court’s rulings in favor of those appellees. We are then asked to determine whether the trial court erred in granting judgment in favor of the four police officers who fired their guns at the shooter.

We affirm the trial court’s finding that no reasonable juror could find that the officers were grossly negligent. BACKGROUND On January 9, 2011, the BPD was called to the Select Lounge. nightclub, located on Baltimore City’s North Paca ⁵⁸⁰ Street, after several fights had broken out inside the nightclub. On arrival, Major Marc Partee decided to close the club early and send its patrons home. Police set up a perimeter around the club and an adjacent parking lot frequently used by guests of, although not owned by, the Select Lounge.

After the closing, Jazzmin Graves, a patron of the Select Lounge, was walking across the parking lot when she was hit by a car pulling out of the lot. Although Ms. Graves was not harmed, an argument erupted between occupants of the car and Ms. Graves and her friends. Because the ear was blocking traffic, a man in dark clothing—specifically in black jeans, hat, boots, and a black “hoodie” sweatshirt—approached the group. The man told the two groups to stop arguing and to leave the parking lot.

The car drove off the lot. Another patron, later identified as Sean Gamble, however, took exception to the dark-clothed man’s actions. Gamble “got up in” the dark-clothed man’s face and expressed his view that the man shouldn’t be “putting [his] hands on a female.” The dark-clothed man told Gamble to “mind your own fucking business.” While they argued, another man, later identified as Darrell “Rico” Baker, sucker-punched the dark-clothed man. More men joined the fray, knocking the dark-clothed man to the ground and began “stompingt,] kicking[,] and punching” him.

The dark-clothed man then pulled and fired a gun. Officer Harry Pawley testified that the dark-clothed man fired a few shots, paused briefly, and then resumed shooting: Q: When did you withdraw your service weapon? A: I was putting my mace away, I heard gunshots. I looked up, more gunshots.

I saw an individual on the ground shooting and that’s at which time I withdrew my weapon and fired. Further: Q: When you witnessed [the dark-clothed man] shooting, he was laying on his back shooting up into the air, wasn’t he? ⁵⁸¹ A: No. He was laying on his back shooting, like, his arm moving from side to side, discharging. Officer Harry Dodge testified that, after hearing initial shots, he looked up and saw the dark-clothed man fire shots toward Franklin Street, a cross street of North Paca: Q: Was the individual firing his weapon ... into the air indiscriminately? A: He was firing towards Franklin Street indiscriminately with his arm parallel to the ground.

Q: It wasn’t into the air? A: Not the second time he started shooting, no. The first time he started shooting, I don’t recall which direction he was firing. The second time he began firing again, he was indiscriminately [shooting] towards Franklin street where a group of people were.

Officer Latora Craig testified that she heard several initial shots, saw the men who had attacked the dark-clothed man begin to run, and saw that the dark-clothed man began to fire again indiscriminately: Q: ... And the shots that were fired by that person that you saw they were all going towards Franklin Street. Correct? A: They were going in different directions, he had no aim.

Some were straight up, some were down. They were back- and-forth. Officer Craig further testified that the initial shots “went past [her] legs and [her] feet.” Finally, Officer Toyia Williams testified that she heard rapid gunfire nearby, observed about 20 to 30 people between her and the shooter, identified a muzzle flash from the shooter’s gun, and then fired her weapoh at the shooter. Both the dark-clothed man and Sean Gamble were fatally wounded.

Jazzmin Graves and two other patrons, Katrina Harris and Jamie Jordan, suffered minor gunshot wounds. The dark-clothed man was later identified as BPD Officer William Torbit. ⁵⁸² PROCEEDINGS BELOW Several lawsuits were filed and consolidated in the Circuit Court for Baltimore City. Plaintiffs were Katrina Harris, Jazzmine Graves, Jamie Jordan, the Estate of William Torbit, and the Estate of Sean Gamble. Defendants were the Select Lounge, its owner and manager, 2 the parking lot owner Shell Realty, Inc., the parking lot operator PMS Parking, Inc., the BPD, former Commissioner Frederick Bealefeld, Major Par-tee, Lieutenant Charles Clayton (Torbit’s partner), and BPD Officers Pawley, Dodge, Craig, and Williams.

Claims against Commissioner Bealefeld and the BPD were dismissed. Summary judgment was entered in favor of Select. A jury trial commenced regarding the remaining claims but the trial court, at the conclusion of the plaintiffs’ case, granted motions for judgment in favor of the remaining defendants. The plaintiffs noted this appeal.

DISCUSSION We have reorganized the appellate issues according to their procedural posture. Pursuant to that organization, Appellants first argue that the trial court erred in granting Commissioner Bealefeld and the BPD’s motions to dismiss. Next, they argue that the trial court erred in granting summary judgment in favor of Select. Finally, they argue the trial court erred in granting motions for judgment in favor of PMS, Shell, Major Partee, Lieutenant Clayton, and the four police officers who fired their guns.

I. Motions To Dismiss Appellants assert the trial court erred in dismissing their tort claims against Commissioner Bealefeld and the BPD. Appellants argue that Commissioner Bealefeld and the BPD owed a duty to protect the public from harm. That duty, they claim, arises out of a special relationship between the ⁵⁸³ public, the BPD, and Commissioner Bealefeld. Appellees argued below and in this Court that Commissioner Bealefeld and the BPD owed no duty of care to Appellants.

The standard of review of a grant of a motion to dismiss is “whether the trial court was legally correct.” Litz v. Maryland Dep’t of Env’t, 446 Md. 254, 264 , 131 A.3d 923 (2016). We “must determine whether the [c]omplaint, on its face, discloses a legally sufficient cause of action.” Pittway Corp. v. Collins, 409 Md. 218, 234 , 973 A.2d 771 (2009). In reviewing the complaint, we “accept all well-pled facts in the complaint, and reasonable- inferences drawn from them, in a light most favorable to the non-moving party.” Litz, 446 Md. at 264 , 131 A.3d 923 . “Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.” O’Brien & Gere Engineers, Inc. v. City of Salisbury, 447 Md. 394, 403-04 , 135 A.3d 473 (2016) (citations omitted). In a negligence action, “a plaintiff must allege facts demonstrating (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” McNack v. State, 398 Md. 378, 394 , 920 A.2d 1097 (2007) (quoting Remsburg v. Montgomery, 376 Md. 568, 582 , 831 A.2d 18 (2003)) (internal quotations omitted).

Thus, in a case based in negligence, as we have here, we begin by identifying whether a legally cognizable duty exists. Id. at 396, 920 A.2d 1097 . The Court of Appeals of Maryland has explained that police do not owe an enforceable tort duty to the public at large. Muthukumarana v. Montgomery Cnty., 370 Md. 447, 486 , 805 A.2d 372 (2002) (“[W]hen 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.”) (Internal quotations omitted).

A duty may arise between police and an individual, however, when there is a “special relationship.” Williams v. Mayor & City Council of ⁵⁸⁴ Baltimore, 359 Md. 101, 143 , 753 A.2d 41 (2000) (explaining that, “absent a ‘special relationship’ between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie against police officers”). Thus, Appellants can recover against Commissioner Bealefeld and the BPD only if they plead and prove the existence of a special relationship. “[F]or a special relationship between police officer and victim to be found, [a 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.” Fried v. Archer, 139 Md.App. 229, 250-51 , 775 A.2d 430 (2001) (emphasis added) (citations omitted). Here, Appellants have not pleaded facts in their complaint that allege Commissioner Bealefeld or the BPD affirmatively acted to protect Appellants from harm, or that Appellants were specifically relying on protection from Commissioner Bealefeld or the BPD. They try to bridge that gap by alleging that Commissioner Bealefeld and the BPD failed to act.

Thus, Katrina Harris and Jazzmin Graves alleged that Commissioner Bealefeld and the BPD ‘fail[ed] to establish and/or implement adequate policies, rules and/or guidelines, and/or adequately train and/or prepare its ... employees in operational realities ... relating to ... crowd control.” Sean Gamble similarly alleged that Commissioner Bealefeld “failed ... to use proper care in selecting, supervising, training, and or retaining their employees.” But failure to act, by definition, cannot satisfy the requirement of an “affirmative act.” As a result, because there was no affirmative act to create such a relationship, no special relationship existed between Commissioner Bealefeld and Appellants nor between the BPD and Appellants. 3 Consequently, ⁵⁸⁵ Commissioner Bealefeld and the BPD owed Appellants no duty of care. 4 Because Appellants have not provided allegations and facts that, if proven, would be sufficient to afford relief, we hold that the trial court did not err in dismissing claims against Commissioner Bealefeld and the BPD. 5 II. Summary Judgment Appellants argue that the trial court erred in granting summary judgment in favor of Select because Select violated a duty of care owed to nightclub patrons. Appellants claim that Select’s knowledge of criminal activity in the neighborhood, over-promotion, allowance of overcrowding, and lack of security created a dangerous condition that was the proximate cause of Appellants’ injuries. Select disputes that it owed a duty of care but also argues that, even if it did and violated that duty, the police shooting was a superseding cause of Appellants’ harm.

The trial court found that “even if [the] Court is to consider [Select] a tortfeasor, [the] ensuing chain of events ⁵⁸⁶ was not foreseeable.” Moreover, “the end result of a fatal police shooting was clearly not foreseeable.” A trial court “shall enter [summary] judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f). We apply a de novo standard of review in determining whether the trial court correctly entered summary judgment. Roy v. Dackman, 445 Md. 23, 39 , 124 A.3d 169 (2015). Even if we assume that Select owed a duty to Appellants, we agree with the trial court that Select was not the proximate cause of Appellants’ injuries.

That is because an intervening act—Torbit’s firing of his gun—broke the causal link between any action by Select and Appellants’ injuries. A “defendant’s negligence is not deemed the proximate cause of the injury, when the connection is thus actually broken by a responsible intervening cause.” Sindler v. Litman, 166 Md. App. 90, 116 , 887 A.2d 97 (2005) (citations omitted). “An intervening force is a superseding cause if the intervening force was not foreseeable at the time of the primary negligence.” Id . at 115, 887 A.2d 97 . Here, Torbit firing his gun was an intervening force and superseding cause of Appellants’ injuries, Even if Select knew of crime in the area, knew that the nightclub was overcrowded, knew that the nightclub was over-promoted, and failed to hire adequate security, it could not foresee that Torbit, a plainclothes BPD officer, would fire his weapon in a nearby parking lot. Because there is no genuine dispute of material fact regarding whether Torbit firing his gun was an intervening force and superseding cause, we hold that the trial court correctly granted summary judgment in Select’s favor. 6 ⁵⁸⁷ III.

Motion for Judgment Appellants contend that the trial court erred when—at the conclusion of Appellants’ case but prior to the case being submitted to the jury—it granted motions for judgment in favor of the remaining Appellees. We will begin by analyzing the trial court’s grant of judgment in favor of Shell and PMS. We then address, in turn, the trial court’s grant of judgment in favor of Major Partee, Lieutenant Clayton, and the remaining police officers. “We review the trial court’s grant of [a] motion for judgment de novo, considering the evidence and reasonable inferences drawn from the evidence in the light most favorable to the non-moving party.” Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 393-94 , 31 A.3d 583 (2011) (citations omitted); see also Md. Rule 2-519. A case must be submitted to a jury for consideration if any evidence is legally sufficient to create a jury question.

Lowery v. Smithsburg Emergency Med. Serv., 173 Md.App. 662, 683 , 920 A.2d 546 (2007). A. Shell & PMS Appellant Sean Gamble contends that Shell, the parking lot owner, and PMS, the parking lot operator, violated a duty of care by failing to protect Gamble from harm. Both Shell and PMS argue that the police shooting was unforeseeable and therefore they were not the proximate cause of Gamble’s injuries. “It is a basic principle that ‘[n]egligence is not actionable unless it is a proximate cause of the harm alleged.’ ” Pittway, 409 Md. at 243 , 973 A.2d 771 (quoting Stone v. Chicago Title Ins., 330 Md. 329, 337 , 624 A.2d 496 (1993)). “Proximate cause involves a conclusion that someone will be held legally responsible for the consequences of an act or omission.” Id.

(Internal quotations and citations omitted). To prove proximate causation, a plaintiff must establish legal causation. Id. at 245, 973 A.2d 771 , “[L]egal causation most often involves a determination of whether the injuries were a foreseeable result of the negligent conduct.” Id. at 246 , 973 ⁵⁸⁸ A.2d 771. A “defendant may not be Hable if it appears highly extraordinary and unforeseeable that the plaintiff’s] injuries occurred as a result of the defendant’s] alleged tortious conduct.” Id. at 247, 973 A.2d 771 .

Here, the trial court found that “there [was] no evidence that it was foreseeable to [PMS and Shell] that Mr. Gamble would involve himself in an incident on the lot, and end up entangled with Officer Torbit, and ultimately be shot by either Officer Torbit or the other defendant police officers.” Moreover, “the shooting was an extraordinary event, and not