Town of Brunswick v. Hyatt

DAVIS, Judge. This case involves an appeal from the Circuit Court for Frederick County. The appellant filed a Motion for Summary Judgment citing governmental immunity as its defense to suit. The trial court denied the appellant’s motion, and the appellant now turns to this Court for review. 1 ⁵⁵⁷ Issues Presented 1.

Whether the appellant is immune from liability for alleged negligence in the performance of governmental functions. 2. Whether the appellant’s charter preserves its governmental immunity. 3. Whether the operation of the Brunswick Pool is a governmental function. 4. Whether the circuit court committed reversible error in denying the appellant’s motion for summary judgment on the ground of governmental immunity. 5.

Whether the doctrine of governmental immunity is constitutional. Statement of Facts Pursuant to Article 23A of the Annotated Code of Maryland, the appellant-municipal corporation created the Brunswick Recreation Committee pursuant to an express grant of authority in Md.Ann.Code, art. 25, § 222 (1957 Repl.Vol.). The Recreation Committee was responsible for the construction and maintenance of the Brunswick Pool (Pool) for the use of the general public. On June 15, 1988, the appellee attended the Pool and paid a small fee for the use of the facility.

Upon exiting the women’s rest room, the appellee slipped on a wet floor and suffered injury to her wrist, neck, and back. In a certified ⁵⁵⁸ letter dated April 20, 1989, the appellee notified the appellant of her injuries and then initiated suit to recover for her injuries. On January 14, 1991, the appellant filed its Motion for Summary Judgment, accompanied by expense and revenue figures for the Pool and the affidavit of John L. Kendall, the Town Administrator of the Town of Brunswick. The appellant argued that, under current case law, the operation and maintenance of a public swimming pool is a governmental function.

Though the appellant acknowledged that the test for governmental function is tied to whether the enterprise makes a profit, it maintained that, according to the figures submitted by the appellant, the Pool had not shown a profit for fiscal years 1987 through 1989, and thus the operation and maintenance of the town’s pool would satisfy that test. In her response, the appellee argued that the Pool had operated with a profit in recent years, and therefore the operation of the Pool was not a governmental function but a proprietary function, for which the appellant does not enjoy immunity. The Circuit Court for Frederick County denied the appellant’s motion, and the appellant appealed to this Court for review. Legal Analysis Governmental Function In its brief, the appellant argues that it is immune to suit for this accident under the theory of governmental immunity.

The doctrine of sovereign immunity, rooted in the ancient belief “the king can do no wrong,” is an integral part of our system of jurisprudence and has sustained numerous challenges. Sovereign immunity grants to the State and its agencies blanket immunity from tort liability. The immunity extended to municipalities, however, is not as far-reaching as that enjoyed by the State. Municipalities and their agencies are only afforded immunity from tort liability when the tortious conduct occurred during the ⁵⁵⁹ exercise of a purely governmental function as opposed to a proprietary function.

This Court has most recently delineated the differences between the two functions, stating: [M]unicipal immunity is not automatic, but when the municipality or county is engaged in a governmental function, immunity attaches____The Court of Appeals in Blueford, 173 Md. at 276, 195 A. 571 , outlined the test for determining whether a municipality is engaged in a governmental function as follows: “Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature.” Burns v. City of Rockville, 71 Md.App. 293, 298 , 525 A.2d 255 (1987), quoting The Mayor and City Council of Baltimore v. State, Use of Alice Blueford, 173 Md. 267, 276 , 195 A. 571 (1937) (emphasis added) (citation omitted). The Court of Appeals further clarified the test in Tadjer v. Montgomery County, 300 Md. 539, 547 , 479 A.2d 1321 (1984), and explained that “[a]nother way of expressing the test ... is whether the act performed is for the common good of all or for the special benefit or profit of the corporate entity.” In the present case, the appellee argued below that the test outlined in Burns requires that, if the activity (ie., operation of the Pool) shows any profit, it is by definition a proprietary function and therefore does not enjoy immunity from tort liability. We are unpersuaded by that argument, in that it calls for an unreasonably narrow reading of this Court’s ruling in Burns . A review of the Maryland decisions considering the distinction between governmental and proprietary functions is instructive.

Burns v. City of Rockville Burns , the most recent of the cases, involves a slip and fall at the Rockville Civic Center prior to a performance of ⁵⁶⁰ the Rockville Civic Ballet. The appellant attempted to sue the City of Rockville for negligence but was precluded by the granting of the City’s Motion for Summary Judgment, on the basis of governmental immunity (the same procedural posture which exists in the case sub judice). In its discussion of whether the operation of a ballet company was governmental or proprietary, this Court cited the rule set forth supra that the test is comprised of (1) public benefit, (2) no profit, (3) health and welfare of the whole public, and (4) no element of private interest. Burns, 71 Md.App. at 298 , 525 A.2d 255 .

The discussion of the legislative authorization for the ballet and the benefit to the public at large are not exhaustive given that the ballet falls under the Department of Recreation and Parks of the City of Rockville and the observation that “[m]usic and dance uplift the spirit of the citizenry and provide an escape from the drudgery of day-to-day existence.” Id. at 307 , 525 A.2d 255 . There, the issue was ultimately the amount of profit. The appellants argued that several items of expense were not directly chargeable to the City of Rockville and therefore should not have been considered in determining the ballet’s profitability. We then discussed various items of expense and whether those items were, in actuality, properly chargeable to the City.

We disposed of the issue by deciding that, in opposition to the Motion for Summary Judgment, the appellants did not provide any affidavits supporting their allegations. In Burns , the supervisor of the Arts and Special Programs Division of the Department of Parks and Recreation of the City of Rockville stated that the fee and ticket pricing policy of Rockville regarding the Ballet “neither anticipated to nor [did] they, cover the cost of running the Ballet.” Id. at 298-99 , 525 A.2d 255 . The footnote, at 299, 525 A.2d 255 , added, “At oral argument, counsel for Rock-ville stated that the cost of a ticket to one of the Ballet’s performances was $1.50.” ⁵⁶¹ In discussing the public benefits prong of the test, we relied on Austin v. Mayor and City Council of Baltimore, 286 Md. 51 , 405 A.2d 255 (1979), and Blueford, supra, while distinguishing Eversole v. City of Columbus, 169 Ohio St. 205 , 158 N.E.2d 515 (1959), on the basis that the test was different from the test in Maryland. 2 In our analysis of the issue of profitability, we held that the appellant did not generate a factual question about whether the expenses (the amount of which was not in dispute) should be utilized. We then decided that the four prongs of the Blueford test for governmental immunity had been satisfied.

Burns, 71 Md.App. at 308 , 525 A.2d 255 . Tadjer v. Montgomery County Tadjer involved the operation of a landfill. An employee of the appellant sued the appellant and others for injuries sustained in a methane gas explosion at his place of employment, an auto body shop. The appellant filed a third party claim against the County claiming that the County had created a dangerous condition on the land by operating a landfill on the property.

The appellant sought indemnification or contribution from the County. The County demurred on the basis of governmental immunity, and the trial court sustained the demurrer. In its discussion of whether the operation of a landfill is a governmental or proprietary function, the Court followed much the same analysis as we did in Bums, addressing the public benefit, profit, and health and welfare before concluding that “[t]he general rule at common law is that in collecting and disposing of garbage or rubbish a municipal corporation exercises a governmental rather than private function, and accordingly is immune from liability for torts ⁵⁶² committed in the performance of such function.” Tadjer, 300 Md. at 547 , 479 A.2d 1321 , quoting Annot., 156 A.L.R. 714 , 716 (1945). As was the case in Burns , the Court weighed the four factors set out in Blueford , noting that “[t]he fact that a fee was charged for material deposited in the landfill is not necessarily dispositive of the issue of whether this was a proprietary or governmental function.” Tadjer, 300 Md. at 548 , 479 A.2d 1321 .

The Court, citing Austin , observed that, though fees for participation in the summer camp were calculated to cover day-to-day operation of the Recreation Center, the City was still required to subsidize heavily those operations. Tadjer, 300 Md. at 548-49 , 479 A.2d 1321 . The Court decided that the appellant had presented a “genuine dispute” as to whether the County had derived “substantial income” from the operation of the landfill but presented no clarification as to exactly what “substantial income” meant. The Court therefore held that the trial court rightfully sustained the County’s demurrer as to the negligence counts (because of governmental immunity), but amendment should have been allowed to have a trial on the merits to determine what “substantial income” meant.

Id. at 550 , 479 A.2d 1321 . Austin v. City of Baltimore Finally, in Austin , the Baltimore City Department of Recreation and Parks operated a summer day camp for children at the Cahill Recreation Center. The camp was known as Camp Cahill. There was a $3.50 fee for participation in the camp, but that fee was adjusted or waived for those campers who were unable to pay.

Those non-paying campers received the same services and participated in the same activities as the campers who paid the fee. The campers took a trip to Greenbrier State Park. While on the trip, Camille Austin was permitted to go into the water without supervision and drowned. Her mother, on her behalf, sued the Mayor and City Council of Baltimore ⁵⁶³ for wrongful death.

The City moved for Summary Judgment and invoked sovereign immunity as a bar to suit. The trial court denied the City’s motion, and a jury returned a verdict of money damages. The City appealed, and we reversed the lower court, holding that the operation of the camp was governmental and therefore immunity applied. The Court of Appeals affirmed.

The analysis in Austin was much the same as that in Burns and Tadjer , and the fee actually charged for participation in the activity was only one of the factors considered. The focus of the analysis was on the purpose of the day camp, and whether that purpose was to benefit the public at large. Concerning fees, the Court cited Blueford and noted that [o]ur determination in Blueford that the City was performing a governmental function was not affected by the fact that ... a minimal fee was exacted for the privilege of using the pool, “for in the eleven years of its existence the fees collected have never been sufficient to pay the expenses of maintaining the pool, and the deficit has been met from the general funds of the City.” Id. 173 Md. at 276-77 , 195 A. 571 . Austin, 286 Md. at 64 , 405 A.2d 255 .

Specifically, as to Camp Cahill, the Court opined: Although the fees projected when the Camp Cahill budget was proposed may have generated sufficient funds to cover day-to-day expenses of the camp, it is “obvious,” as the Court of Special Appeals ascertained, “that the City had a substantial capital investment in the Camp Cahill Recreation Center, and that it was required to subsidize the day-to-day operation of the Center and the day camp.”____ We believe ... that the fees here did not result in a profit or emolument inuring to the City____ Id. at 66 , 405 A.2d 255 (citation omitted). The Case Sub Judice Applying the Blueford test, we note that the appellant-municipal corporation created the Brunswick Recrea ⁵⁶⁴ tion Committee pursuant to an express grant of authority in Md.Ann.Code, art. 25, § 222 (1957 Repl.Vol.) and was responsible for the construction and maintenance of the Pool for the use of the general public. Under the first and third prongs of the test, it is clear that the Pool was “sanctioned by legislative authority,” and that its operation and maintenance is designed for the enjoyment and benefit of the public at large and, in that regard, is thus a governmental function. As to the issue of profit, we believe that an analysis of whether an activity is governmental or proprietary based primarily on whether the activity makes a profit does not comport with the test announced in Blueford .

At oral argument, counsel for the appellee argued vigorously that profit was clearly the measure of governmental function versus proprietary function. We believe that the purpose of the activity (i.e., whether the activity “tends to benefit the public health and promote the welfare of the whole public”) is to