Anderson v. Meinster

410 A.2d 626, 44 Md. App. 686, 1980 Md. App. LEXIS 230

• Court: Court of Special Appeals of Maryland
• Decided: February 8, 1980
• Docket: No. 503
• Status: Published

Opinion

Thompson, J.,

delivered the opinion of the Court.

The Circuit Court for Anne Arundel County sustained a demurrer without leave to amend to the second amended declaration of Larry Anderson, the appellant, on the basis that a police officer, the appellee David Charles Harp, was immune from suit because of governmental immunity. In so ruling the trial judge was in error because a police officer’s qualified immunity for torts is not available on demurrer. See Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1962), in which the Court said:

"The Montgomery County police officers are in a somewhat different position. Maryland has not adopted the rule laid down in the Barr[¹] case but, on the contrary, this Court has shown reluctance to extend absolute privilege or immunity from liability for torts to government officers of a higher rank than these defendants. Walker v. D'Alesandro, 212 Md. 163; Maurice v. Worden, 54 Md. 233; see also Brush-Moore Newsp. v. Pollitt, 220 Md. 132, 139. It has been felt that a qualified privilege is sufficient, so that immunity is conditioned upon absence of malice (unlike the situation where there is absolute privilege) and also upon action within the scope of the actor’s duties and authority. Walker v. D'Alesandro, supra; 3 Davis, Administrative Law Treatise, Secs. 26.01-26.05; Prosser, Torts (2d ed.), Sec. 109, pp. 780-4; Comment, 70 U. Chi. L. Rev. 677.

"The matters of malice and the scope of their duties must be determined as to Watkins and Whalen from the testimony presented at the trial since a defense of qualified privilege is not available on demurrer in Maryland. Pollitt v. Brush-Moore Etc., Inc., 214 Md. 570; Walker v. D’Alesandro, supra.” Id. at 585-86 (footnote omitted).

See also, DiBlasio v. Kolodner, 233 Md. 512, 521, 197 A.2d 245, 249 (1964) and Nistico v. Mosler Safe Co., 43 Md. App. 361, 368 n.3, 405 A.2d 340, 344 n.3 (1979).

Judgment reversed.

Case remanded for further proceedings.

Costs to abide final result.

1 . In Barr v. Matteo, 360 U.S. 564, 569, 3 L.Ed.2d 1434, the Supreme Court held that the acting director of the Office of Rent Stabilization, a federal agency, was entitled to an absolute privilege in an action of libel.