Whalen v. Mayor & City Council of Baltimore

HOLLANDER, J. This appeal gives new meaning to the phrase, “an accident waiting to happen.” Suzanne Whalen, appellant, who is blind, ²⁹⁷ was injured when she fell into an uncovered utility hole while walking her guide dog within the boundaries of Leone Riverside Park (the “Park”), located directly across from the office of the National Federation of the Blind in Baltimore City. Appellant subsequently filed suit against the Mayor and City Council of Baltimore (the “City”), appellee. She claimed that the City, which owns and maintains the Park, was negligent in failing to assure that the hole was properly covered. Asserting defenses of governmental immunity, statutory immunity under a recreational land use statute, and lack of actual or constructive notice of the danger, the City moved for summary judgment.

By Order dated June 9, 2004, the Circuit Court for Baltimore City granted the motion. On appeal, Whalen poses one question that contains two distinct issues: Whether summary judgment was inappropriate, based either upon common law sovereign [or governmental] immunity or the municipality’s lack of actual or constructive notice of the defect. To answer Whalen’s inquiry as to governmental immunity, we must examine the dichotomy between governmental and proprietary functions of a municipality, and determine whether a public park may serve a dual purpose. Put another way, we must resolve whether the court below erred in deciding, as a matter of law, that because the accident occurred within the Park, the City is automatically protected by governmental immunity.

FACTUAL SUMMARY Appellant, a resident of Texas, visited Baltimore City in February 2000, to attend a meeting at the National Federation of the Blind (“NFB”), whose office is located at 1800 Johnson Street, directly across from the Park. According to appellant, “the folks” at the NFB advised the attendees “to go to this park across the street” when their service dogs needed to relieve themselves. In her complaint, filed on February 11, 2003, appellant alleged that she left the NFB meeting at ²⁹⁸ approximately noon on February 12, 2000, and “crossed the street with her dog to allow the dog to relieve itself.” At that time, she “fell into an uncovered, cement-lined pit, approximately 19" x 19" and 41" deep.” According to appellant, the “hole” was “located exterior” to a chain link fence that surrounded a play area “within the Park.” Appellant also averred that the hole was situated in a grassy area “adjacent to the sidewalk and pedestrian crossing that crosses Johnson Street at its intersection with Barney Street.” Moreover, she averred that because “this area was mowed, it was an area that was frequented by City employees.” Whalen claimed that the City “failed to use reasonable care, in that their agents and/or employees failed to ensure that the abandoned pit or hole immediately adjacent to a public sidewalk, in a grassy area where the public and their pets could be expected to walk, was securely covered or filled in.” As a result of the fall, appellant allegedly “sustained serious injuries to her back and right ankle, which necessitates the use of a wheelchair.” “These impairments,” asserted Whalen, “are especially disabling, because she is blind.” She explained: “This new disability prevents her from teaching, which was her occupation prior to the injury.” Appellee moved for summary judgment on April 13, 2004, claiming that there was “no evidence legally sufficient to permit the plaintiff to recover against the City.” The City submitted numerous exhibits to support its motion. These included “Plaintiffs Answers to Interrogatories”; appellant’s deposition, taken on February 17, 2004; appellee’s “Answers to Interrogatories,” prepared by an Assistant City Solicitor; the deposition transcript of John Rekus, appellant’s expert, taken on March 3, 2004; ten photographs, collectively titled “Suzanne Whalen — Pictures of Scene”; an undated Affidavit of Phillip Buddemeyer, Supervisor in the Baltimore City Office of Transportation, Field Survey Section, who prepared a survey; a plat prepared by J. Allen Jones of the Survey Control Section, “SHOWING THE LOCATION OF A CON ²⁹⁹ CRETE BASE WITH A 1.6 FOOT BY 1.6 FOOT OPENING ON THE WEST SIDE OF RIVERSIDE PARK ACROSS FROM 1746 JOHNSON STREET”; and an Affidavit of March 30, 2004, signed by J. Allen Jones, a licensed property line surveyor and Supervisor of the Survey Computations Unit in the City’s Office of Transportation.

We shall refer to these exhibits in our discussion of the City’s contentions. In its motion, the City maintained that there was “no evidence that [it] had actual or constructive notice of the existence of the hole.” The City also pointed out that appellant did not establish “how long the hole had been present prior to the plaintiffs fall and it is not known how the hole came to exist.” Appellee also cited to its Answers to Interrogatories, in which it averred that it did not know when the alleged hole “became unguarded and uncovered.” In addition, the City asserted that it was “immune from suit for actions claiming negligence in the maintenance of public parks.” Appellee explained that “the maintenance and operation of a park is a governmental function,” and local governments enjoy immunity with respect to “alleged tortious conduct arising out of governmental, rather than proprietary, functions.” Further, the City relied on § 5-1103 of the Natural Resources Article (“N.R.”) of the Maryland Code (2000 Repl. Vol.), to argue that it did not owe a duty of care to appellant. According to the City, the statute “provides that the owner of a park does not owe a duty of care to keep the premises safe for entry or use by others for any recreational or educational purpose, or to give any warning of a dangerous condition ... on the premises to any person who enters on land for these purposes.” Noting that “recreational purpose” is defined at N.R. § 5 — 1101(f) as “ ‘any recreational pursuit,’ ” appellee argued that Whalen’s use of the Park to allow her dog to relieve itself was “clearly a recreational purpose.” In her deposition testimony, appellant testified that she “stepped into the hole” when her dog pulled her while on his leash.

In her Answers to Interrogatories, appellant explained: ³⁰⁰ Plaintiff extended the leash to permit the dog to relieve itself and stepped off of the sidewalk onto the grassy area immediately adjacent to the sidewalk so as to permit the dog to scamper more freely in the grass and also to ensure ' that she was not impeding the passage of other pedestrians. At this point, without any warning of danger, plaintiff stepped into the unguarded hole.... To establish the location of the hole, the City relied on the deposition testimony of appellant’s expert, John Rekus. He determined that the hole, which measured “19 by 19 by 41 inches deep,” was located in a “grassy median strip” in the Park, “between the sidewalk and the basketball court.” Rekus noted that the basketball court is located “to the east” of the hole, and the hole was approximately “five or six feet” east of the sidewalk.

According to Rekus, the hole was in an area where “people would be walking,” “[wjalking their pets, [and] playing with their children.” Although it is not clear when Rekus visited the site, he stated that, when he went to the Park after the accident, the cover for the pit was at the bottom of the hole, resting on top of “rubbish.” Moreover, he opined that a “supporting lip” at one time “supported the cover,” but it had “broken away and it was no longer able to support the cover.” Based on the presence of rust, Rekus estimated that the supporting lip broke “a number of weeks or months” before he assessed the location. Rekus took “many pictures” of the site, which appellee submitted as exhibits. The photographs show that the pit is located within a grassy area adjacent to the sidewalk. The grassy area is several feet wide, and is bounded on one side by a chain link fence that encloses a basketball court and on the other side by the sidewalk.

The cement pit appears to be a few feet from the edge of the sidewalk. In his affidavit, Buddemeyer, the City surveyor, agreed that the hole “was located in a grassy area on the east side of Johnson Street opposite East Barney Street.” Similarly, Jones, who drafted a plat, stated that “the hole is located in ³⁰¹ Riverside Park, the edge of which is 3.6 feet east of the property line, also known as the Right of Way Line of Johnson Street.” In her opposition, appellant asserted that “[t]he City had notice of the hole, control over its condition, and the duty, opportunity and means to fill it.” She insisted that “[t]he hole, which remained after an electrical transformer was removed, was known to exist by the City a long time before the plaintiff was injured.” In her view, the length of time that the hole remained uncovered was a “triable” issue. With her opposition, appellant submitted numerous exhibits, some of which were already submitted by the City. In addition, she included portions of the depositions of Blaine Lipski, taken on April 7, 2004; Anthony P. Wallnofer, Jr., taken on April 7, 2004; Phillip Buddemeyer, taken on April 13, 2004; and James Brown, taken on April 7, 2004.

Lipski, an employee of the City’s Department of Public Works (“DPW”), stated at his deposition that the “hole was apparently the abandoned base of a former electrical transformer. ...” He explained that when he saw the hole in July 2003, he noted that it “was a former source of electric for the park,” because “[tjhere was a conduit sticking out of the base of the lower part of the hole.” At that time, he “notified Rec and Parks to take appropriate action.” Lipski testified: “Upon my direction I had them fill the hole in”; it was filled “[t]hat afternoon prior to my departure.” 1 Similarly, Wallnofer, a “Dept, [of] Transportation employee,” testified at his deposition that the hole “may have been the base to a transformer of some sort.” He examined a photograph of the hole and observed “a piece of lead cable ³⁰² maybe in the bottom, which is an indication that it may have served an electrical function.” At his deposition, Buddemeyer stated that a 1964 survey of the Park included “this hole.... This is ... exactly the same hole.” On May 24, 2004, however, the City filed a “Line,” attaching a second Affidavit of Buddemeyer. In his second affidavit, Buddemeyer sought to correct his deposition testimony regarding “the 1964 Field Survey Notes” of the location of the hole. He stated that he believed the “notes indicate that the area in question was noted as a concrete base for an unknown utility.

However, there is no notation indicating that area to be a hole.” Further, appellant claimed that, “[djuring the three or four years prior to the time the plaintiff was injured, City employees regularly mowed the grass in the area, and picked up trash there,” and, “of necessity,” they would have seen the “deteriorated condition” of the hole. She averred that DPW employees “had the responsibility to report hazards of this nature orally to their supervisor and the supervisor had both the responsibility and the authority to get it filled.” In this regard, the following deposition testimony of Wallnofer is pertinent: [APPELLANT’S COUNSEL]: If an employee going about the course of his duties cutting the grass saw what he considered to be a hazard to the public, namely an uncovered manhole, what responsibilities would he have to report that fact? [MR. WALLNOFER]: I would have expected them to report that. [APPELLANT’S COUNSEL]: To whom would ... the grass cutting employee report it? [MR. WALLNOFER]: Probably to their immediate supervisor. [APPELLANT’S COUNSEL]: Their immediate supervisor, would he be working in the same park or would he be somewhere else? ³⁰³ [MR.

WALLNOFER]: He would be working in general in the same park. [APPELLANT’S COUNSEL]: And what would then the immediate supervisor do with that information? [MR. WALLNOFER]: I would hope that they would make it safe by whatever means they saw adequate or appropriate. [APPELLANT’S COUNSEL]: Are you saying that a supervisor of the sort you’re talking about could on his own authority have had the hole filled with aggregate, for example? [MR. WALLNOFER]: Yes. [APPELLANT’S COUNSEL]: Did you, are you aware of any complaints from members of the public or employees about this hole prior to February 2001? [MR. WALLNOFER]: No, sir.

James Brown, a “Park Maintenance Supervisor,” testified that, when he supervised employees who cut grass for City parks, they were supposed to report a hazardous condition directly to him. But, like Wallnofer, Brown denied that any employee ever notified him about the hole in the Park. In addition, appellant argued that N.R. § 5-1103 was inapplicable because the version of the statute in effect on February 12, 2000, limited recreational uses to “items listed as being of recreational purpose.... ” According to appellant, “[p]ermitting a service animal to relieve itself is not listed as a recreational pursuit.” Further, appellant contended that the City was not protected by “sovereign immunity.” She asserted, in part: Municipalities have an historic, clear duty to exercise reasonable and ordinary care in maintaining their streets and sidewalk areas, as well as the areas adjacent thereto, as they do in carrying out other private, proprietary functions. The negligent failure to do so, whether or not those adjacent areas are technically located within the surveyed boundaries ³⁰⁴ of a park, is actionable.

Moreover, there is no immunity for maintaining a nuisance. In further support of her position, appellant observed that the hole “had no recreational use,” and the area where it was located did not serve the governmental function of the Park. To the contrary, asserted Whalen, the City had a proprietary duty to maintain the area in question. She argued: [T]he injuries at issue did not occur in the playground area, or in relationship to the City’s exercise of some other governmental function, but to the maintenance of a well-recognized, private, proprietary obligation of the municipality to maintain a public way, and the areas adjacent thereto, and to remove nuisances affecting the use and safety of same.

Plaintiff obviously fell into an abandoned, neglected utility hole located outside of the playground. The area where plaintiff fell was routinely mowed as part of the public thoroughfare and City employees had had many opportunities to observe the hole and had [the] responsibility to take action in response to it. The public thoroughfare and adjacent area, as described in the complaint, includes the cement sidewalk, the adjacent street, and the nearby pedestrian crosswalk. It also includes the strip of land between the City’s sidewalk and the fence which surrounds the public playground-that strip of land between the perimeter of the park, to be sure, but is nevertheless contiguous to the public right of way.

(Emphasis in original). The summary judgment motion was heard on June 9, 2004. On that date, the court issued an “Order” granting the City’s motion, “for the reasons enumerated” in court. However, no transcript is available containing the “enumerated” reasons, because the court reporter lost her notes from the hearing. 2 We shall include additional facts in our discussion. ³⁰⁵ DISCUSSION I. Unfortunately, we have neither a transcript of the proceedings with an oral ruling, nor a written opinion from the judge below.

But, the parties agree that the circuit court did not award summary judgment to the City based on statutory immunity. And, while they are uncertain as to the trial court’s disposition of the notice issue, they agree that the court granted summary judgment based on sovereign or governmental immunity. Therefore, the parties ask us to consider the issues of sovereign or governmental immunity and notice. It is well settled that, “ ‘[i]n appeals from grants of summary judgment, Maryland appellate courts, as a general rule, will consider only the grounds upon which the [trial] court relied in granting summary judgment.’ ” Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726 (2001) (quoting PaineWebber v. East, 363 Md. 408, 422 , 768 A.2d 1029 (2001)).

In general, we do not “ ‘speculate’ ” as to the trial judge’s reasoning. Lovelace, 366 Md. at 695 , 785 A.2d 726 (quoting Gresser v. Anne Arundel County, 349 Md. 542, 552 , 709 A.2d 740 (1998)). See also Ross v. Am. Iron Works, 153 Md.App. 1, 9-10 , 834 A.2d 962 (2003), cert. denied, 379 Md. 226 , 841 A.2d 340 (2004).

Because the parties agree as to the grounds on which the circuit court ruled, and jointly ask us to consider those grounds, we shall limit our review accordingly. In undertaking our review as to the issues of governmental immunity and notice, we are mindful that Md. Rule 2-501 establishes a two-part test for summary judgment: the ³⁰⁶ trial court must decide whether there is any genuine dispute as to material facts and, if not, whether either party is entitled to judgment as a matter of law. Johnson v. Mayor & City Council of Balt. City, 387 Md. 1, 5 , 874 A.2d 439 (2005); Walk v. Hartford Cas.

Ins. Co., 382 Md. 1, 14 , 852 A.2d 98 (2004). A material fact is one that will affect the outcome of the case, depending upon how the factfinder resolves the dispute. Arroyo v. Bd. of Educ. of Howard County, 381 Md. 646, 654 , 851 A.2d 576 (2004); King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); Mandl v. Bailey, 159 Md.App. 64, 82 , 858 A.2d 508 (2004).

The movant has the burden with respect to a summary judgment motion. See Nerenberg v. Rica of S. Md., 131 Md.App. 646, 660 , 750 A.2d 655 , cert. denied, 360 Md. 275 , 757 A.2d 810 (2000). To defeat summary judgment, the party opposing the motion must produce evidence demonstrating a genuine dispute of material fact. Scroggins v. Dahne, 335 Md. 688, 691 , 645 A.2d 1160 (1994); Berringer v. Steele, 133 Md.App. 442, 470 , 758 A.2d 574 (2000).

This means that the nonmoving party must convince the court with facts “in detail and with precision.” Phila. Indem. Ins. Co. v. Md. Yacht Club, Inc., 129 Md.App. 455, 465 , 742 A.2d 79 (1999) (internal quotation marks omitted).

Mere general allegations or conclusory assertions will not suffice. Beatty v. Trailmaster Products, Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993). Notably, the Court of Appeals has cautioned: “The hearing on a motion for summary judgment is not to determine disputed facts but to determine whether there are disputed [material] facts.” Jones v. Mid-Atl. Funding Co., 362 Md. 661, 675-76 , 766 A.2d 617 (2001).

Moreover, all factual disputes, and reasonable inferences drawn from the facts, are resolved in favor of the nonmoving party. Jurgensen v. New Phoenix Atl. Condo. Council of Unit Owners, 380 Md. 106, 114 , 843 A.2d 865 (2004); Frederick Rd.

Ltd. P’Ship v. Brown & Sturm, 360 Md. 76, 94 , 756 A.2d 963 (2000). And, in resolving the motion, the trial court may not determine the credibility of witnesses. Thacker v. City of Hyattsville, 135 ³⁰⁷ Md.App. 268, 286, 762 A.2d 172 (2000), cert. denied, 363 Md. 206 , 768 A.2d 55 (2001). An order granting summary judgment is reviewed de novo.

Beyer v. Morgan State Univ., 369 Md. 335, 359 , 800 A.2d 707 (2002). Like the trial court, we must make “the threshold determination as to whether a genuine dispute of material fact exists.” Remsburg v. Montgomery, 376 Md. 568, 579 , 831 A.2d 18 (2003). If we are satisfied that no genuine issue of material fact was raised or identified in the proceedings below, then we must determine if the trial court “reached the correct legal result.” Crews v. Hollenbach, 126 Md.App. 609, 625 , 730 A.2d 742 (1999) (internal quotation marks omitted), aff'd, 358 Md. 627 , 751 A.2d 481 (2000); see Arroyo, 381 Md. at 654 , 851 A.2d 576 ; Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 204 , 680 A.2d 1067 (1996). “ ‘The standard of appellate review, therefore, is whether the trial court was legally correct.’ ” Williams v. Mayor & City Council of Balt., 359 Md. 101, 114 , 753 A.2d 41 (2000) (citation omitted).

II

It is undisputed that the incident occurred within the geographic boundaries of the Park, and that the Park is owned and operated by the City. On that basis, the City urges us to uphold the ruling of the court below, concluding that it is protected by governmental immunity. Looking largely at the proximity of the hole to the public sidewalk, and the particular use of that grassy area, appellant argues that the location of the pit within the confines of the Park is not controlling as to immunity. Claiming that “the hole and the strip of grass exterior to the fence,” where the accident occurred, were part of a “public thoroughfare,” appellant relies on the principle that a municipality has a proprietary obligation to persons “lawfully using its public streets and sidewalks to make them reasonably safe for passage.” According to Whalen, the public thoroughfare included “Johnson Street, the crosswalk which bisects it, the cement sidewalk it ³⁰⁸ meets on the eastern side, and a strip of grass [in the Park] extending beyond that sidewalk.” According to appellant, the open hole constituted a “nuisance.” And, because appellant was not injured “in the playground area, or in some other part of a park bearing a relationship to the city’s exercise of a governmental function, but immediately adjacent to the public right of way,” she argues that the doctrine of governmental immunity is inapplicable.

The City acknowledges that, “[u]nlike the absolute immunity from tort liability afforded to the State and its agencies, the immunity of counties, municipalities, and their agencies is limited to alleged tortious conduct arising out of governmental, rather than proprietary, functions.” But, it insists that the operation and maintenance of a public park is inherently a governmental function. Therefore, it contends that it “cannot be found liable for Appellant’s injuries.” In support of its reliance on governmental immunity, the City asserts that the “operation of the park was not directed toward the private, corporate interests of the City of Baltimore, but rather toward the health, welfare and recreation of the public.” The City notes: “It is beyond doubt that it is in the public interest to have City sponsored parks and places of recreation, education, and culture for the public at large.” Moreover, appellee maintains that appellant was “not utilizing the sidewalk alongside the park nor was she traversing the park to travel from one public sidewalk to another.” Instead, says the City, Whalen “went to the park specifically for a recreational purpose, albeit one of necessity.” The City adds: “The mere fact that the appellant was visually impaired does not make the use any less recreational.” As the Court of Appeals explained in Hous. Auth. of Balt. City v. Bennett, 359 Md. 356, 358 , 754 A.2d 367 (2000), “[u]ntil the twentieth century, local governments generally had no immunity under Maryland common law in either tort or contract actions.” See also Rios v. Montgomery County, 157 Md.App. 462, 475 , 852 A.2d 1005 , aff'd, 386 Md. 104, 124 , 872 ³⁰⁹ A.2d 1 (2005).

In the early twentieth century, however, the Court of Appeals recognized that local governments had “immunity in certain types of tort actions based on activity categorized as ‘governmental’ but had no immunity in tort actions based on activity categorized as ‘private’ or ‘corporate’ or ‘proprietary.’” Bennett, 359 Md. at 359 , 754 A.2d 367 . Thus, “shaped largely by judicial decisions and by statutes dealing with specific agencies or specific matters,” id. at 358 , 754 A.2d 367 , local governments have enjoyed limited immunity from tort liability, but only for “nonconstitutional torts based on activity categorized as ‘governmental.’ ” Id. at 361 , 754 A.2d 367 . See, e.g., DiPino v. Davis, 354 Md. 18, 47 , 729 A.2d 354 (1999) (“A local governmental entity is liable for its torts if the tortious conduct occurs while the entity is acting in a private or proprietary capacity, but, unless its immunity is legislatively waived, it is immune from liability for tortious conduct committed while the entity is acting in a governmental capacity.”); Balt. Police Dep’t v. Cherkes, 140 Md.App. 282, 314 , 780 A.2d 410 (2001)(stating that “local governmental bodies have common law governmental immunity only for acts that are governmental, and not for private or proprietary acts, and they do not have immunity from liability for State constitutional torts”); see also Harford County v. Town of Bel Air, 348 Md. 363, 373 , 704 A.2d 421 (1998); Ashton v. Brown, 339 Md. 70, 101 , 660 A.2d 447 (1995).

The governmental immunity enjoyed by counties and municipalities derives from the State’s sovereign immunity. See Bd. of Educ. of Prince George’s County v. Mayor & Common Council of the Town of Riverdale, 320 Md. 384, 390 , 578 A.2d 207 (1990). Therefore, “[wjhere a municipal corporation is performing a governmental function, it enjoys the same immunity as the state itself.” Higgins v. City of Rockville, 86 Md.App. 670, 676 , 587 A.2d 1168 , cert. denied, 323 Md. 309 , 593 A.2d 669 (1991). But, governmental immunity is “much narrower than the immunity of the State.” Town of Riverdale, 320 Md. at 390 , 578 A.2d 207 .

Consequently, as we have seen, a municipality is not immune from a tort suit if the ³¹⁰ conduct in issue was committed in the municipality’s proprietary capacity. Md.-Nat’l Capital Park & Planning Comm’n. v. Kranz, 308 Md. 618, 622 , 521 A.2d 729 (1987); Burns v. Mayor & City Council of Rockville, 71 Md.App. 293, 297-98 , 525 A.2d 255 (1987). These countervailing principles, recognizing immunity for governmental functions but no immunity for propriety ones, are “too firmly embedded in our law to be disturbed now.” Mayor & City Council of Balt. v. State, 173 Md. 267, 273 , 195 A. 571 (1937). In Blueford, 173 Md. at 271-72 , 195 A. 571 , the Court explained: Where ... a municipality is engaged in the performance of a governmental function as an agent of the state, the same principle which protects the state from liability also protects the municipality.

So that, where that principle of immunity is invoked in behalf of a municipality charged with a tort, the primary and essential inquiry is whether the tortious act was done in the course of the performance of some governmental duty or function. Often, the more difficult question involves the determination of whether the particular acts of a municipality were governmental or proprietary. The Blueford Court elucidated that issue, id. at 276 , 195 A. 571 : 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. To be sure, a municipality’s operation and maintenance of a public park is generally regarded as a governmental function.

As a result, a municipality ordinarily is not liable for neglect in regard to the maintenance or management of a public park. Blueford, 173 Md. at 272 , 195 A. 571 ; Mayor & City Council of Balt. v. State, Use of Ahrens, 168 Md. 619 , 179 A. 169 (1935). Ahrens illustrates this proposition. ³¹¹ In Ahrens, the Court held that the City of Baltimore was not liable for the drowning death of a boy at Gwynns Fall Park, because the maintenance and operation of the park was a governmental function. The Court explained, 168 Md. at 628 , 179 A. 169 : In these days of advanced civilization, in a period when the unfortunate tendency of many is to abandon the countryside — the haunts of their own youth — and thereby add to the already over congested metropolitan areas, public city parks are almost as necessary for the preservation of the public health as is pure water.

In a word, to hold municipalities liable in damages, under circumstances such as are revealed in the instant case, would be against public policy, because it would retard the expansion and development of parking systems, in and around our growing cities, and stifle a gratuitous governmental activity vitally necessary to the health, contentment, and happiness of their inhabitants. Our conclusion, therefore, is that the maintenance, control, and operation of Gwynns Falls Park, by the appellant, is a governmental duty, discretionary in its nature, performed in its political and governmental capacity as an agency of the State. See also Austin v. Mayor & City Council of Balt., 286 Md. 51 , 405 A.2d 255 (1979) (holding that where City subsidized the operation of a day camp, and the operation was authorized by City Charter provisions pertaining to department of recreation, the operation of the day camp was governmental); Blueford, 173 Md. at 272 , 195 A. 571 (concluding that “the maintenance of a public park is a governmental function, and ... the municipality is not liable for any default or neglect of its agents or employees in the management thereof’). It is equally clear, however, under “the indisputable and long-settled law of this state,” Higgins, 86 Md.App. at 678 , 587 A.2d 1168 , that a municipality has a “ ‘private proprietary obligation’ ” to maintain, in a reasonably safe condition, ³¹² its streets, sidewalks, and areas contiguous to them.

Id. at 679 , 587 A.2d 1168 ; see Pierce v. Mayor & City Council of Balt., 220 Md. 286, 290 , 151 A.2d 915 (1959). Therefore, “[i]t has long been held that a municipality is not immune from a negligence action arising out of its maintenance of its public streets and highways.” Higgins, 86 Md.App. at 678 , 587 A.2d 1168 . As we outlined, appellant suggests that, for all practical purposes, the “true boundary” of the Park was the fence surrounding the basketball court, and not the area outside the fence where the hole was located. Because the hole was located in a “narrow strip of grass” that was contiguous to the public sidewalk, which was itself next to the public street, Whalen insists that the City is not protected by governmental immunity.

Conversely, the City insists that because the accident occurred within the Park’s geographic boundaries, governmental immunity applies. The question, then, is whether the existence of the hole within the physical boundaries of the Park compels the application of governmental immunity as a matter of law, even though the hole was situated in a grassy area that may have served a dual purpose: it was close to a public sidewalk which, in turn, abutted a public street, and it was also inside the Park. Several cases guide our analysis. We begin with a review of Mayor & City Council of Balt. v. Eagers, 167 Md. 128 , 173 A. 56 (1934).

In that case, the decedent was fatally injured while walking on a sidewalk that formed part of the perimeter of a public square. On the day of the incident, several laborers, who were “employees of the municipal bureau of highways working in its city forestry division,” id. at 132 , 173 A. 56 , were engaged in removing some of the trees in the square. Id. at 130 , 173 A. 56 . As the laborers attempted to pull down a tree, a rotten limb snapped off and fell on the victim.

Id. At the time, the decedent “was walking ... on the center of the sidewalk whose nearer margin was twenty feet east of the trunk of the tree.” Id. The Court agreed that, “[i]f the neglect or wrongful act was in the course of the performance of a purely governmental ³¹³ duty which had been imposed upon the municipality ... there would be no liability in tort in favor of an individual who had been injured.” Id. at 135 , 173 A. 56 . But, it rejected the City’s argument that “the accident occurred during the course of the performance of a governmental function for which the municipality was not liable to respond in damages.” Id. at 129 , 173 A. 56 .

Mindful of a municipality’s proprietary function to keep streets safe for travel, the Court concluded that such a duty “extends to the land immediately contiguous to these public ways.” Id. at 136, 173 A. 56 (emphasis added). Of import here, the Court acknowledged that “[i]t is often difficult to determine in a particular instance whether the duty involved is in the exercise or neglect of the municipality’s governmental or political functions or of its ministerial and private or corporate functions.” Id. The Court explained, id.: The decisions do not furnish a satisfactory test, as they are conllicting in their reasoning and conclusions. In the case at bar the problem concerns not only the beauty, utility, and safe enjoyment by the public of the square but also- the safety of the use of a public way through a square of a municipal corporation.

There is no question that, by the great weight of authority, the rule of law is that it is a private proprietary obligation of municipal corporations to keep their streets and public ways reasonably safe for travel in the ordinary manner, and to prevent and remove a nuisance affecting the use and safety of these public ways. This rule is founded on the principles of agency and torts.... The duty to keep the streets and footways of the municipality in a safe condition for public travel, ami to prevent and remove a nuisance affecting the use and safety of these public ways, extends to the land immediately contiguous to these public ways. Infra.

A fortiori is it the duty of the municipality not to have or to suffer its agents and servants to create the danger on the public way of the municipality ³¹⁴ whereby the party was injured without any fault on his part directly contributing. (Emphasis added). Haley v. Mayor & City Council of Balt., 211 Md. 269 , 127 A.2d 371 (1956), is also noteworthy. In Haley , the plaintiffs were injured in separate accidents “while descending a column of concrete steps located in Preston Gardens, a public park in the City of Baltimore.” Id. at 271 , 127 A.2d 371 .

The stairs “were part of a concrete walk connecting two intersections” in downtown Baltimore. Id. In particular, the concrete walk and the concrete steps “constitute[d] a straight and direct connecting link between the sidewalks on Franklin Street east and west of St.