Wilbon v. Hunsicker

WOODWARD, J. On June 5, 2000, at around 1:15 p.m., Baltimore City police officers took Joseph Wilbon into custody for an alleged attempted theft of a vehicle. Later, at about 2:30 p.m., the police transported Wilbon to the emergency room because his behavior was bizarre and indicated that he required medical attention. Wilbon suffered a seizure while waiting for treatment in the emergency room and was pronounced dead at 3:30 p.m. The cause of death was a cardiac arrhythmia.

Wilbon’s daughter, Nicole Wilbon, then filed suit, individually and as the personal representative of Wilbon’s estate, against the officers who arrested and transported her father to the hospital. Plaintiff 1 alleged, inter alia, that the officers’ ¹⁸⁶ delay in obtaining medical attention caused Wilboris death. The case proceeded to trial in the Circuit Court for Baltimore City and resulted in a jury verdict in favor of plaintiff. Plaintiff and defendants appeal that judgment for multiple reasons.

We will summarize the factual and procedural background in this case before identifying the issues presented on appeal. BACKGROUND On June 5, 2000, at about 1:06 p.m., Officer Jeffrey E. Mathena, Jr. and Officer Trainee Franklin Hunsieker were dispatched to an alley behind a home at 757 Bartlett Avenue to investigate a man who allegedly was “trying to get into several [cars]” and appeared to be homeless. The officers arrived at the scene three minutes later and found Wilbon sitting in a car. According to Officer Mathena, Wilbon responded to police questions that he did not own the vehicle and did not have permission to be in the vehicle.

Officer Hunsieker assisted Wilbon out of the car and, at around 1:15 p.m., the officers placed him under arrest for attempted theft of the vehicle. There was evidence that Wilbon had urinated and defecated on himself, and that he was not wearing shoes. Officers Mathena and Hunsieker then returned to the Eastern District police station to process Wilbon’s charging documents, while Wilbon was transported by Officer Mark Greeff to the Central Booking and Intake Facility (“CBIF”). Wilbon arrived at CBIF at about 1:30 p.m.

At CBIF, the posted officers noticed that Wilboris toe was bleeding, his face was discolored, he was soiled, and he was unresponsive. The EMT on duty evaluated Wilbon and directed that he receive medical attention at a hospital. The EMT signed an “EMT Send Out Sheet” at 2:02 p.m. Officer Mathena was notified at 2:25 p.m. by a police dispatcher to respond to CBIF to take Wilbon to the hospital. ¹⁸⁷ Officers Mathena, Hunsieker, and Greeff complied and arrived at CBIF sometime before 2:30 p.m.

Upon arrival, Officer Mathena apparently told the booking officer, Lieutenant Reginald Street, that he did not want to take Wilbon to the hospital and then tried to convince Lieutenant Street to keep Wilbon at CBIF. At 2:30 p.m., Officer Mathena called his supervisor, Lieutenant Michael J. McKnight, about the “problem” at CBIF. Lieutenant McKnight spoke with the duty EMT, who told him that Wilbon “was under the influence of cocaine and needed to be taken to the hospital for a shot of narean.” Lieutenant McKnight advised Officer Mathena to transport Wilbon to the hospital, and Wilbon arrived at the emergency room of Mercy Hospital at approximately 2:50 p.m. Officer Mathena began to fill out the necessary paperwork to register Wilbon, who sat in the waiting room.

Wilbon yelled and went into a seizure. He was taken to the treatment area, where he was pronounced dead at 3:30 p.m. The medical examiner determined that Wilbon died of “a cardiac arrhythmia associated with atherosclerotic cardiovascular disease and past cocaine use.” The examiner found “significant atherosclerotic cardiovascular disease” and “the presence of cocaine and cocaine metabolites in the urine.” On June 2, 2003, almost three years after Wilbon’s death, plaintiff filed her complaint in the circuit court. She named Officers Hunsieker and Mathena as defendants 2 and alleged battery, false arrest and imprisonment, gross negligence, negligence (based on a theory of respondeat superior), and violation of Articles 24 and 26 of the Maryland Declaration of Rights.

Plaintiff also sued defendants in survival and wrongful death actions. She sought compensatory and punitive damages. As set forth more fully in the discussion section herein, defendants responded to the complaint with a motion to dismiss, in which they argued, inter alia, that plaintiff had not ¹⁸⁸ complied with the notice requirement of the Local Government Tort Claims Act (“LGTCA”). See Md.Code (1973, 2002 Repl.Vol., Supp.2006), § 5-304 of the Cts. & Jud.

Proc. Art. 3 The court denied this motion, as well as defendants’ later attempts, by motions for summary judgment and a post-trial motion, to have the case dismissed for lack of compliance with the LGTCA. A trial began on April 18, 2005, and concluded on April 27, 2005. On April 22, 2005, at the close of plaintiffs case, the court granted defendants’ motion for judgment on plaintiffs claims of gross negligence, negligence, and wrongful death.

The jury returned a verdict on April 28, 2005, in favor of plaintiff on the claims of battery, false arrest and imprisonment, and violations of the Maryland Declaration of Rights. 4 The jury awarded plaintiff compensatory damages of $83,000.00 on each claim against each officer. Two judgments of $249,000.00 were entered, one against Officer Mathena and the other against Officer Hunsicker. Plaintiff then appealed the court’s dismissal of the negligence and wrongful death claims. 5 Defendants cross-appealed ¹⁸⁹ the court’s decision that plaintiff complied with the notice requirement of the LGTCA, as well as the court’s alleged award of multiple satisfactions for a single injury. 6 We conclude that plaintiff did not strictly or substantially comply with the notice requirement under the LGTCA and that the trial court abused its discretion when it determined that plaintiff demonstrated good cause to justify a waiver of the notice requirement. Accordingly, we reverse the judgment of the circuit court and remand the case to that court with instructions to enter judgment in favor of defendants.

In light of our decision, we need not address the other issues presented in this appeal. ¹⁹⁰ DISCUSSION Compliance with the LGTCA A. The Statutory Scheme Defendants argue in their cross-appeal that plaintiffs complaint never should have gone to trial because plaintiff did not comply with the notice requirement of the LGTCA. 7 Specifically, the LGTCA provides that “an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim ... is given within 180 days after the injury.” § 5-304(b). “The notice shall be in writing and shall state the time, place, and cause of the injury.” § 5-304(c)(3). In Baltimore' City, the notice must be provided in person, or by certified mail, to the City Solicitor. § 5-304(c)(1)(i). This notice requirement is “a condition precedent to maintaining an action against a local govern ¹⁹¹ ment or its employees.... ” Rios v. Montgomery County, 386 Md. 104, 127 , 872 A.2d 1 (2005). Under certain circumstances, however, “a litigant is excused from strict compliance with the notice obligation, so long as ‘the purpose of the notice statute was fulfilled by substantial compliance with the statutory requirements.’ ” White v. Prince George’s County, 163 Md.App. 129, 144 , 877 A.2d 1129 (2005), cert. denied, 389 Md. 401 , 885 A.2d 825 (2005) (citation omitted). “Substantial compliance ‘requires some effort to provide the requisite notice and, in fact, it must be provided, albeit not in strict compliance with the statutory provision.’ ” Id. at 145, 877 A.2d 1129 (citation omitted). “However, when the notice does not apprise the proper officials that the Plaintiff is pursuing a claim, there is not substantial compliance.” Bibum v. Prince George’s County, 85 F.Supp.2d 557, 564 (D.Md.2000).

A litigant who has not complied, or substantially complied, with the notice provision of the LGTCA may seek relief in the waiver provision of section 5-304(c), which states: “Notwithstanding the other provisions of this section, unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown the court may entertain the suit even though the required notice was not given.” The court first considers whether good cause exists, and only if it does so exist, should the court consider whether the defendant suffered prejudice. See Hargrove v. Mayor and City Council of Baltimore, 146 Md.App. 457, 463 , 807 A.2d 149 (2002). B. The Notice in this Case In the case sub judice, Wilbon’s mother, Mary Jackson, submitted a “Statement of Incident” to the Civilian Review Board 8 (“CRB”) on June 9, 2000, four days after Wilbon died. ¹⁹² In the space on the form that requested a “[b]rief statement of allegation,” Jackson wrote: My son who owned a car repair garage at 2401 Brentwood, was accused of stealing a car that was actually in his care to be repaired. He was arrested[,] taken to Central Booking, then to Mercy Hospital[,] w[h]ere he was pronounced dead.

Rumors in the neighborhood] state that he was beaten. Jackson also identified the date and place of the incident, signed the statement, and had it notarized. Jackson’s statement sparked an investigation by the Internal Investigative Division (“HD”) of the Baltimore City Police Department (“BCPD”). Next, in a letter dated January 1, 2001, more than 180 days after Wilbon’s death, Jackson mailed, by certified mail, a “Notice of Intent to File Suit” to the Maryland State Treasurer, the Comptroller of the Treasury, and the Commissioner of the BCPD.

The record does not indicate the precise date that the letter was mailed, but does establish that the letter was not received by the Commissioner until January 18, 2001. Jackson wrote in the letter: Please be advised pursuant to the Maryland Code that the undersigned Plaintiff/Claimant intends to file a lawsuit alleging several Federal and State Constitutional rights violations and certain common law violations arising out of an incident occurring June 5, 2000, in Baltimore, Maryland. FACTS: On June 5, 2000, in Baltimore, Maryland at 3:30 p.m. in or about the 700 blk of Bartlett Street, Claimant was assaulted & battered, falsely arrested, imprisoned, defamed, humiliated, disgraced and wrongfully deceased in violation of his/her civil and other rights afforded through the federal and state laws of Maryland by Baltimore City Police Officers ... Mathena [and] Hunsicker ... acting under color of State law as Maryland State Police Officers. ¹⁹³ This Notice is written pursuant to the Maryland/Loeal Government Tort Claims Act.

A claims adjuster from the Maryland State Treasurer, Insurance Division, responded to this notice with a letter dated March 9, 2001, stating that the State was “not at fault in this incident” and directing Jackson to pursue her claim with the BCPD, as “the appropriate entity involved.” Finally, on June 5, 2001, one year after Wilbon’s death, the attorney for Wilbon’s estate mailed, by certified mail, and hand-delivered a “Notice of Claim Form” to the City Solicitor for Baltimore City. The document purported to give notice of a claim pursuant to section 5-304. It alleged that “[t]he deceased was brutally and fatally injured by Baltimore City Police Officers during an alleged detention and arrest[.]” On September 10,2001, the BCPD responded by letter that it was “not considering any settlement of [the] claim at this time.” C. Litigation of the Notice Issue in the Circuit Court Defendants challenged plaintiffs compliance with the notice requirement of the LGTCA on three separate occasions. First, on July 2, 2003, they filed a motion to dismiss plaintiffs complaint for, among other things, failure to comply with the LGTCA.

In the pleadings supporting this motion, defendants argued that, because the January 1, 2001 letter was sent more than 180 days after the alleged injury, it did not constitute actual or substantial compliance with the notice requirement. Furthermore, defendants argued against good cause to waive the notice requirement, because plaintiff had not “presented any facts to establish good cause for [her] failure to give timely notice.” According to defendants, plaintiffs only explanation for the untimely notice was Jackson’s pro se status, and “[i]gnorance of the statutory notice requirement does not constitute good cause for failing to comply with the statute.” In her response, plaintiff argued that the letter of January 1, 2001, served on the Commissioner of the BCPD, constituted substantial compliance with the LGTCA, because it “complie[d] in every respect with the requirements of notice (ex ¹⁹⁴ cept for the person upon whom the notice is to be served).” 9 Regarding the error of service on the Commissioner of the BCPD, rather than the City Solicitor, plaintiff argued: This notice was filed pro se. Any errors with regard to the person to be served (the City Solicitor) can be cured pursuant to the waiver of notice provisions in the LGTCA. See, § 5-304[ (d) ] of the LGTCA____In any event, notice served on the then-police commissioner served to put the police department on notice.

It is unknown to Plaintiff ] whether such notice triggered an investigation, since no discovery has been completed in this case____ Plaintiff] substantially complied with the LGTCA in that notice was given to an authority in a position to investigate Plaintiff’s] claims^ (Footnote omitted). Defendants filed a supplemental reply memorandum on September 10, 2003. Beyond repeating their earlier arguments, defendants argued that the June 9, 2000 Statement of Incident to the CRB also did not constitute substantial compliance with the notice requirement. Defendants explained that the CRB is an independent agency tasked with investigating complaints from the public regarding police misconduct.

It is not an agency of the BCPD, so that, according to defendants, “notice to the CRB of a complaint is not notice to the BCPD of a claim for damages.” Indeed, defendants noted that “the CRB’s consideration of a complaint is focused solely on determining the facts of the occurrence and on reaching a recommendation as to whether and to what extent an officer should be disciplined for the acts alleged in the complaint.” The court held a hearing on the motion to dismiss on September 26, 2003. At the hearing, defendants argued that plaintiff did not file a timely notice because the letters of ¹⁹⁵ January 1, 2001, and June 5, 2001 fell beyond the 180-day deadline of section 5-304(b), and the “Statement of Incident” of June 9, 2000 was not a notice of claim and was not submitted to the proper authorities. Defendants’ counsel argued that it would be inappropriate for the court to consider as grounds for substantial compliance or good cause that Jackson acted pro se when she submitted the “Statement of Incident” and the letter of January 1,2001. Focusing on the “Statement of Incident,” defendants’ counsel argued: You’re trying to impute notice of a claim to the police department based on notice of an incident.

If the police department has to investigate as a claim every complaint that’s made to the CRB, that’s, that’s a lot of work. That’s a lot of unnecessary work and that’s an awfully large burden to put on the police department or any local government to say that these are a notice of a claim. When they get a notice of a claim, yes, they, at least they have the opportunity to investigate, but, but to say that if you just find out through other channels that something bad happened that somebody might sue you about and you’re under, you’ve got the burden of investigating that. I think that’s too much of a burden.

Plaintiff responded that she substantially complied with the notice requirement when Jackson submitted the “Statement of Incident” on June 9, 2000. She asserted that Baltimore City surely was prepared for her claim, because Wilbon’s death received media coverage, sparked public protests, and caused an internal investigation by BCPD. Plaintiffs counsel argued to the court: In this case, Your Honor, on June 5th, the day of his death, three of the officers, two of whom are defendants, filed reports and listed as a questionable death. I mean, they’re talking about it the day he dies.

His mom is there four days later. She’s there again because she’s either been to the library or she’s been somewhere and she knows now ¹⁹⁶ a notice of intention. This ... is the Christmas holiday. She’s lost a son____ I think we begin all of this, or there’s a basic concept in our legal system that we try things on merit or we attempt to, and I respectfully submit that ... the City has received notice from so many different sources[.] Plaintiffs counsel did not mention the necessity of good cause to waive the notice requirement except to state that Jackson was a “lay person” who “goes to the people [and] says, my son died in your custody.

Please investigate and tell me why.” Relying on the federal case of Downey v. Collins, 866 F.Supp. 887 (D.Md.1994), the court stated: [T]he determination of the existence or nonexistence of prejudice [and] good cause for the purposes of the notice requirement have been clearly committed to the discretion of the court. A failure to notify does not mandate dismissal, I have not read Mendelson [v. Brown, 371 Md. 154 , 807 A.2d 632 (2002) ] but I have read Moore [v. Norouzi, 371 Md. 154 , 807 A.2d 632 (2002) ] and I have read Faulk [v. Ewing, 371 Md. 284 , 808 A.2d 1262 (2002) ] and I think under the circumstances in this case there has been substantial compliance. I do find that good cause has been shown by [] plaintiff. I think there’s been substantial compliance in the showing by the plaintiff in the notice that was given.

In Faulk[,] the statement is made that, ... the claimant substantially complies with Sections [ (b) ] and [(c)] ... where the claimant complies with their purpose furnishing the municipal body with sufficient information to permit it to make a timely investigation. I understand [defense counsel’s] points, but I do find that there is good cause. I find that there is no prejudice at this point. On October 8, 2003, the court issued an order denying defendants’ motion to dismiss. ¹⁹⁷ Defendants again raised their notice challenge in motions for summary judgment, filed on November 24, 2004. 10 Plaintiff filed a responsive pleading on January 7, 2005.

The court, per a different judge than the one who denied the motion to dismiss, held a hearing on January 24, 2005. At the hearing, the parties disputed whether Jackson provided actual notice of the claim, and whether she substantially complied with the notice requirement of the LGTCA. There was no mention of whether good cause existed to waive the notice requirement. Ultimately, the court denied defendants’ summary judgment motions, stating that “the issue of notice has already been ruled upon.” Defendants then raised the notice issue for the third time, after trial, in “Defendants’ Motion for Judgment Notwithstanding the Verdict, or Alternatively, Motion to Alter or Amend Judgment, or Alternatively, Motion for New Trial,” filed on May 16,2005.

Defendants attached to their motion an affidavit of the assistant city solicitor who stated therein that she was assigned by the Office of the City Solicitor to attend the meetings of the CRB at all times relevant to plaintiff's claims, that she never received notice of plaintiffs claim, and that she had no duty to receive such claim. As with defendants’ motions for summary judgment, plaintiff responded that there was no new evidence to justify reconsideration of the notice issue. In her view, the court’s prior rulings on the motion to dismiss and the motions for summary judgment constituted the law of the case. Nonetheless, plaintiff attached to her responsive pleading a transcript of a radio interview conducted with the Commissioner of the BCPD on September 7, 2000, and a newspaper article.

During the interview, Wilbon’s fiancée telephoned the radio station and asked the Commissioner on the air how “to make a complaint on the police officer when they are doing wrong.” The Commissioner advised her to direct complaints to his “office.” He stated that an investigation into Wilbon’s death ¹⁹⁸ was “ongoing,” which limited his ability to talk about the case. 11 The court, per the trial judge, denied defendants’ motion on August 11, 2005, noting that the notice issue had been twice reviewed and denied by the court. The court held that defendants’ request to vacate the jury’s verdict and enter judgment in favor of defendants because of plaintiffs alleged failure to comply with the LGTCA was “beyond the scope of the trial court’s authority under MD. RULE § 2-532.” 12 Thus, although defendants raised the notice issue three times to three different circuit court judges, only the first judge, who decided the motion to dismiss, considered the notice requirement on its merits. Nevertheless, we will review the circuit court’s denial of defendants’ motions as a whole, based upon the entire record developed below.

Because the facts surrounding the notice issue are essentially undisputed, we will review the circuit court’s decision de novo to determine if it was legally correct. See Baltimore County v. Kelly, 391 Md. 64, 73 , 891 A.2d 1103 (2006). D. Strict Compliance with Notice Requirement Plaintiff first argues that she strictly complied with the notice requirement when Jackson submitted the June 9, 2000 “Statement of Incident” to the CRB. Plaintiff is correct that the statement included information pertaining to the “time, place, and cause of the injury,” as required by section 5-304(c)(3).

However, the letter was not a claim for damages or a notice of intent to file suit. It only stated a complaint of police misconduct. In other words, Jackson’s “Statement of ¹⁹⁹ Incident” was a notice of an occurrence involving alleged police brutality, not notice of tort claims arising out of that occurrence. See White, 163 Md.App. at 147 , 877 A.2d 1129 (stating that “[t]he content of that complaint pertained to White’s allegation of police brutality, not to tort claims arising from such conduct”).

Moreover, Jackson did not submit the statement to the City Solicitor, as required by section 5-304(c)(1)(i). This meant that plaintiff did not satisfy “a condition precedent to maintaining an action against a local government or its employees____” Rios, 386 Md. at 127 , 872 A.2d 1 . Thus plaintiff did not strictly comply with the notice requirement. In reaching this conclusion, we reject plaintiffs argument that she strictly complied with the notice requirement because an assistant city solicitor was assigned as staff to the CRB, so that any notice to the CRB was notice to the City Solicitor.

The CRB is not an agency of the Mayor and City Council of Baltimore City or the BCPD. It is an independent entity created by the General Assembly to advise the Police Commissioner on matters of police discipline arising from complaints of abusive language, harassment, and use of excessive force. See Pub. Local Laws of Md., Art. 4, § 16-42.

In addition, the assistant city solicitor assigned to the CRB stated in her affidavit that she “[did] not receive copies of the Complaints filed with the [CRB] and [she was] not involved in the review of Complaints.” Her function on the CRB was “limited to providing legal advice requested by, and answering particular legal questions posed by, the [CRB].” The assistant city solicitor did not “serve as a repository or an agent, on behalf of the City of Baltimore, the [BCPD], or any of the [BCPD’s] employees.” The assistant city solicitor also noted that the complaints filed with the CRB are assigned a number, which is how the case is discussed and reviewed. As a result, if Jackson’s complaint was discussed at a CRB meeting, the assistant city solicitor would not have known the names of the officers or persons involved in the incident. Under these circumstances, we conclude that Jackson’s filing of a complaint ²⁰⁰ with the CRB did not constitute notice to the City Solicitor under section 5 — 304(c) (1) (i). E. Substantial Compliance with Notice Requirement 1.

January 1, 2001 “Notice of Intent to File Suit” Plaintiff argued in the circuit court that Jackson’s January 1, 2001 “Notice of Intent to File Suit” constituted substantial compliance with the notice requirement under the LGTCA. This letter did constitute a notice of claim, but Jackson sent it to the Commissioner of the BCPD, not to the City Solicitor. More problematic for plaintiff, however, is that Jackson sent this letter between a month and six weeks beyond the 180-day statutory period. Substantial compliance requires “ ‘requisite and timely notice of facts and circumstances giving rise to the claim.’ ” Faulk v. Ewing, 371 Md. 284, 299 , 808 A.2d 1262 (2002) (citations omitted)(emphasis added).

As defendants correctly write in their brief, although “a claimant may comply substantially with a notice requirement by giving notice to a person not specified in the statute or by regular rather than certified mail, the courts have not held that a claimant may submit the notice beyond the time for giving such notice.” 13 2. June 9,2000 “Statement of Incident” Alternatively, plaintiff argues that Jackson’s “Statement of Incident,” submitted to the CRB within the 180-day statutory period, constituted substantial compliance. The circuit court first considered this argument on September 26, ²⁰¹ 2003. Almost two years later, this Court issued White, 163 Md.App. 129 , 877 A.2d 1129 , which soundly rejected a similar argument of substantial compliance.

White concerned a claim of police brutality against Prince George’s County and four of its officers. Id. at 132 , 877 A.2d 1129 . The defendants moved to dismiss the complaint for failure to provide the requisite notice under the LGTCA. Id.

The trial court accepted the defendants’ argument and dismissed the complaint, prompting the claimant to appeal to our Court. Id. at 133 , 877 A.2d 1129 . As in this case, the claimant argued on appeal that he had substantially complied with the LGTCA because, within 180 days of the alleged police brutality, he submitted a written complaint of excessive force to the Prince George’s County Police Department. Id. at 141 , 877 A.2d 1129 .

The police department began an investigation of the complaint and met twice with the claimant during the 180-day statutory period. Id. Proper notice was not given until approximately two years after the incident in question. See id. at 138 , 877 A.2d 1129 .

This Court rejected the claimant’s argument. We reasoned: [Ajppellant did not provide notice to an entity with responsibility for investigating tort claims lodged against the County. Instead, appellant sent notice to the Department’s Internal Affairs Division [“I.A.D.”]. The content of that complaint pertained to White’s allegation of police brutality, not to tort claims arising from such conduct.

Moreover, the investigation that ensued was conducted by and for I.A.D., under a wholly separate procedure. Indeed, as the Department’s letter of July 18, 2001 reflects, the Department indicated that appellant’s brutality claim was governed by the statute pertaining to the Law Enforcement Officers’ Bill of Rights.... Notice to I.A.D. simply was not notice to the County Attorney or County Solicitor, as required by C.J. § 5-304(b)(2). Id. at 147, 877 A.2d 1129 (footnote omitted).

In reaching our decision, we distinguished the circumstances of White from those in Moore v. Norouzi, 371 Md. 154 , 807 A.2d 632 (2002), whsich involved two separate claims for ²⁰² tort damages against employees of