Austin v. Mayor of Baltimore

405 A.2d 255, 286 Md. 51, 1979 Md. LEXIS 277

• Court: Court of Appeals of Maryland
• Decided: September 13, 1979
• Docket: [No. 132, September Term, 1978.]
• Status: Published

Opinions

Orth, J.,

delivered the opinion of the Court. Eldridge, J., filed an opinion concurring in part and dissenting in part, in which Smith, J., concurs with Part I, at page 67 infra. Cole, J., filed a dissenting opinion at page 78 infra.

“The doctrine of sovereign immunity from suit, rooted in the ancient common law, is firmly embedded in the law of Maryland.” ¹ Katz v. Wash. Suburban Sanitary Com’n, 284 Md. 503, 507, 397 A.2d 1027 [, 1030] (1979). The doctrine today is, perhaps, more accurately characterized as “governmental immunity,” for, by judicial decision, it is not only applicable to the State itself, but also applies generally to a county of the State and to the State’s municipal political subdivisions and local agencies, unless the General Assembly either directly or by necessary implication has waived the immunity. Godwin v. County Comm’rs, 256 Md. 326, 334, 260 A.2d 295 (1970). Unlike the total immunity from tort liability which the State and its agencies possess, the immunity of counties, municipalities and local agencies is limited to tortious conduct which occurred in the exercise of a “governmental” rather than a “proprietary” function. ² Katz, 284 Md. at 508, n. 3 [, 379 A.2d at 1010, n. 3]; O & B, Inc. v. Md.-Nat'l Cap. P. & P., 279 Md. 459, 462, 369 A.2d 553 (1977) and cases therein cited. That is

a municipality or county [or local agency] is liable for its torts if it acts in a private or proprietary capacity, while it is immune if acting in a governmental capacity. To the extent that a [municipality,] county [or local agency] is liable in tort actions, it is also responsible under the doctrine of respondeat superior for the tortious conduct of its employees which occurs in the scope of their employment. However, the nature of [the] liability under this doctrine is derivative so that nonliability, immunity, or release of the employee precludes recovery from the principal-[employer]. [Bradshaw v. Prince George’s County, 284 Md. 294, 300, 396 A.2d 255 (1979).]

This case provides occasion to mount yet another attack on the doctrine as applied in this State. Martha Austin, as mother and next friend of Camille Austin, deceased, and as personal representative of the estate of her daughter, instituted an ex delicto action in the Superior Court of Baltimore City against the Mayor and City Council of Baltimore. A jury rendered verdicts in her favor as mother and next friend (1st count) in the amount of $1,435.10, and as personal representative (2nd count) in the amount of $150,000. See note 4 infra. Upon direct appeal by the City, the Court of Special Appeals reversed the judgments. City of Baltimore v. Austin, 40 Md. App. 557, 392 A.2d 1140 (1978). We granted the mother’s petition for the issuance of a writ of certiorari.

Mrs. Austin requests that we “judicially abrogate the doctrine of municipal immunity from tort liability.” We decline to do so.

If such doctrine is to remain in effect, however, she would have us establish a new standard for determining whether a municipality, when committing a tort, was exercising a governmental function or a proprietary function. We are not persuaded to alter the existing law in this respect.

She then claims that even under the present governmental-proprietary test, the Court of Special Appeals improperly concluded that in the circumstances here the City was exercising a governmental function. Therefore, she urges, the intermediate appellate court was wrong in holding that the trial court erred in finding that the function exercised by the City was proprietary and in refusing to grant the City’s motion raising a preliminary objection based upon sovereign immunity. Austin, 40 Md. App. at 572.

I

We set out our position regarding sovereign immunity in Board v. John K. Ruff, Inc., 278 Md. 580, 366 A.2d 360 (1976):

Once venerated, recently vilified, and presently substantially limited, the doctrine of sovereign immunity has been long recognized by this Court. We have applied the doctrine for over a century, and a compendium of our discussions regarding it, from State v. B. & O. R. R. Co., 34 Md. 344 (1871), aff’d, 21 Wall. 456 (1875) to Calvert Associates v. Department, 277 Md. 372, 357 A.2d 839 (1976), was set out in American Structures v. City of Balto., 278 Md. 356, 359, 364 A.2d 55, 56 (1976)....

The frequent and increasingly vigorous attacks upon the doctrine have been no more persistent than our refusal to abrogate or modify it by judicial fiat. We have consistently adhered to the view that “... it is desirable and in the public interest that any change in the doctrine of sovereign immunity should come from the legislative branch of the State Government rather than from the judicial branch inasmuch as there are fiscal considerations, administrative difficulties and other problems in balancing the rights of the State and its agencies with new possible rights of the individual citizens, which can far better be considered and resolved by the legislative branch than by the judiciary of the State.” Jekofsky v. State Roads Comm’n, 264 Md. 471, 474, 287 A.2d 40, 42 (1972). [278 Md. at 584.]

The General Assembly is certainly aware of the reasons which have been advanced for the abrogation of the doctrine and of its alteration, modification or abolishment in many other states, but it has permitted its tenets with respect to municipal tort liability to stand and has chosen not to act in the face of repeated reminders of its role in the matter in the opinions of this Court. See, for example, State v. Baltimore County, 218 Md. 271, 273, 146 A.2d 28 (1958); Weisner v. Bd. of Education, 237 Md. 391, 395, 206 A.2d 560 (1965); Godwin v. County Comm’rs, 256 Md. at 333; Duncan v. Koustenis, 260 Md. 98, 104, 271 A.2d 547 (1970); Robinson v. Bd. of County Comm’rs, 262 Md. 342, 345, 278 A.2d 71 (1971); Jekofsky v. State Roads Comm’n, 264 Md. 471, 474, 287 A.2d 40 (1972); Quecedo v. Montgomery County, 264 Md. 590, 595, 287 A.2d (1972); Spriggs v. Levitt & Sons, Inc., 267 Md. 679, 685, 298 A.2d 442 (1973); Bradshaw v. Prince George’s County, 284 Md. at 300. We declared our view this way in Robinson:

Robinson, con brio, importunes us to renounce those tenets “deeply ingrained in the law of Maryland,” to enlist in the crusade against sovereign immunity and to join the ranks of those courts already marching under the pennons of the law professors. We shall not do so because we have said quite often that this is a province of the legislative bodies we ought not to invade. [262 Md. at 345 (footnotes omitted).]

And in Bradshaw we pointed out that

[w]e have consistently refused to “enlist in the crusade against sovereign immunity and to join the ranks of those courts” which have judicially abrogated the doctrine. ... We have stated that any waiver of immunity must emanate from the legislature. [284 Md. at 300 (citations omitted; emphasis added).]

It is manifest that our position, long firmly established, that if there is to be further change in the doctrine the legislature should make it, encompasses not only the ancient common law concept but also the engrafting thereon by judicial opinion the aspect of municipal tort liability.³

At the hub of our persistent refusal to abrogate by judicial decision the doctrine of sovereign immunity followed in this State, even as limited with respect to tort liability of municipalities, counties and local agencies, is our desire to preserve the consistency and stability in this Court’s rulings which are necessary for our citizens to know their respective rights and obligations. Herring v. Christensen, 252 Md. 240, 242, 249 A.2d 718 (1969). We are not insensitive to the problems sometimes presented by individual cases. We said long ago in Demuth v. Old Town Bank, 85 Md. 315, 37 A. 266 (1897): “It is often difficult to resist the influence which a palpable hardship is calculated to exert; but,” we added, “a rigid adherence to fundamental principles at all times and a stern insensibility to the results which an unvarying enforcement of those principles may occasionally entail, are the surest, if not the only, means by which stability and certainty in the administration of the law may be secured.” Id. at 320. We declared then:

It is for the Legislature by appropriate enactments and not for the Courts by metaphysical refinements to provide a remedy against the happening of hardships which may result from the consistent application of established legal principles, [itf]

We observed in Geier v. Merc.-Safe Dep. & Tr. Co., 273 Md. 102, 328 A.2d 311 (1974), rehearing denied (1975), that stare decisis is usually the wise policy, particularly “in areas where corrective action can be taken prospectively by the legislature----” Id. at 124. We have noted that “[t]he doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life.” White v. King, 244 Md. 348, 354, 223 A.2d 763 (1966). We cannot say, however, that the doctrine of sovereign or governmental immunity “has become unsound in the circumstances of modern life.” There are two sides to the question. “[E]ven though in particular instances serious loss may be thereby inflicted on some individuals,” Demuth, 85 Md. at 320, the doctrine involves important and far-reaching legislative and executive responsibilities and entails sound public policy. We recognized this over a hundred years ago:

[Sovereign] immunity belongs to the State by reason of her prerogative as a sovereign, and on grounds of public policy. Parties having claims or demands against her, must present them through another department of the Government — the Legislature — and cannot assert them by suit in the courts. [State v. B. & O. R. R. Co., 34 Md. at 374.]

We affirmed this belief in Baltimore v. State, ex rel. Blueford, 173 Md. 267, 195 A. 571 (1937), hereafter referred to as Blueford:

The reason for the immunity is that, to subject the state to the coercive control of its own agencies would not only be inconsistent with its sovereignty, but would so hamper and impede the orderly exercise of its executive and administrative powers as to prevent the proper and adequate performance of its governmental functions. \_Id. at 271.]

And, most recently in Katz v. Wash. Suburban Sanitary Com’n, supra, we said:

Although originally based on the tenet that “the King can do no wrong,” the doctrine is presently viewed as a rule of policy which protects the State from burdensome interference with its governmental functions and preserves its control over State agencies and funds. [284 Md. at 507 [, 397 A.2d at 1030].]

We abide by our position that the task of abrogating or altering the doctrine of sovereign or governmental immunity is one to be performed by the legislature.

II

Mrs. Austin urges that if we do not abrogate the doctrine of sovereign immunity, we should, nonetheless, “establish a new standard to determine if a given activity is governmental or proprietary in nature.” She asserts that the present test is “irrational, unjust and unworkable.” We have noticed 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. The decisions do not furnish a satisfactory test, as they are conflicting in their reasoning and conclusions. [Baltimore v. Eagers, 167 Md. 128, 136, 173 A. 56 (1934).]

This observation led to our statement in Baltimore v. State, ex rel. Ahrens, 168 Md. 619, 179 A. 169 (1935), hereafter referred to as Ahrens, that

the line of demarcation between private, corporate, and ministerial, and governmental, political, and discretionary activities or functions of municipalities is difficult to discern, and more difficult to define. [Id. at 625.]

We have noted that “[t]he distinction between governmental and proprietary functions is sometimes illusory in practice.” E. Eyring Co. v. City of Baltimore, 253 Md. 380, 382, 252 A.2d 824 (1969). We quoted, id., from Seasongood, Municipal Corporations: Objections To The Governmental Or Proprietary Test, 22 Va. L. Rev. 910 (1936): “The rules sought to be established ... are as logical as those governing French irregular verbs.” However, we asserted in Eyring, that having “recognized the difficulty in distinguishing between those functions which are governmental and those which are not, [we had] established guidelines in [Blueford].” After quoting the Blueford observation, that “in truth there is no universally accepted or all inclusive test to determine whether a given act of a municipality is private or governmental in its nature, but the question is usually determined by the public policy recognized in the jurisdiction where it arises,” we repeated the guidelines set out in Blueford at 275-276:

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. [Eyring, 253 Md. at 383.]

We explained in Blueford that

it is better that the adequate performance of such an act be secured by public prosecution and punishment of officials, who violate the duties imposed upon them in respect to it, than to disburse public funds, dedicated to the maintenance of such public conveniences as public parks, playgrounds, hospitals, swimming pools, and beaches, maintained at the public expense, to private persons who have suffered loss through the negligence or default of municipal employees or agents charged with their management. [173 Md. at 276.]

Mrs. Austin suggests that we adopt the test set out by the Supreme Court of Michigan in Pichette v. Manistique Public Schools, 403 Mich. 268, 269 N.W.2d 143 (1978). Boiled down, this test recognizes as governmental the decision to perform a function and as proprietary the actual performance of the function. That is, deciding whether to operate and supervise a playground or swimming pool is a governmental function, but the operation and supervision of the playground and swimming pool comprises a proprietary function. In practical effect, this test abrogates, to all intent and purpose, the doctrine of sovereign or governmental immunity, and, this, we have decided, should not be done by judicial decision. Although aware that the guidelines we have established are at times difficult to apply, we do not believe that they are “irrational, unjust and unworkable.” They were developed over a period of years by decisions of this Court on a rational basis. They are consistent with sound public policy. They have worked effectively in their application to divers factual situations. We agree with the City’s analysis:

A shift to a new test such as the one proposed ... would involve a severe restriction of the scope of the concept of “governmental function” as presently defined by the Court. Such a shift would represent a major change in the law of governmental immunity and would truly indicate a break with the previous direction and decisions of the Court. The choice is not between a rational test and an irrational test. The choice is between a test which would allow a municipality to undertake a number of activities ... as governmental functions and a test which would severely limit the concept of governmental function. The [present] test [takes] into account the carefully worked-out past decisions of the Court of Appeals and ... continuefs] the basic public policy contained in them. The [new] test... would represent a shift in policy and an entirely new approach to the issue of governmental functions.

We shall honor stare decisis in this matter also and adhere to our established guidelines.

Ill

The Court of Special Appeals set out the circumstances surrounding the death of Camille Austin.

In July of 1974, the Department of Recreation and Parks of the City of Baltimore, through the Bureau of Recreation, one of its subdepartments, operated a day camp for children located at the City’s Cahill Recreation Center. The day camp was designated as Camp Cahill. Enrollment in the camp was open to children who applied from a particular area of Baltimore and a fee of $3.50 a week was set as the charge for participation in the program. The payment of the weekly fee was in some instances adjusted or waived, and children were permitted to participate if they were able to pay only part of the fee or even if they were not able to pay any fee at all. Nonpaying campers were offered the same services as those who paid and persons not enrolled in the day care program were permitted to participate in camp activities at Cahill Center. Campers going on bus trips arranged by the camp director paid an additional fee which was set at different rates for campers and noncampers.

The director of Camp Cahill was required to prepare and submit for approval a proposed budget to the Department of Recreation and Parks. The budget, as prepared, contemplated receipts of $7,000.00 to be paid by 250 campers at the rate of $3.50 per week for eight weeks. Expenditures included the cost of: hiring three additional leaders (for a total number of six leaders); providing milk or juice each day; hiring transportation for regular and special field trips; and purchasing arts and crafts supplies, postage and camp equipment. All money collected by the camp was remitted to the Department of Recreation, and all bills were paid by the Department. The program was subsidized by the City.

On July 19, 1974, a special chartered bus transported to Greenbrier State Park those members of the Cahill Camp who. had paid the required bus fees and who had been given permission by their parents or guardians to participate in the trip outside the City of Baltimore. Greenbrier State Park is in Washington County, Maryland, approximately 90 miles from Baltimore. Camille Austin was one of the campers on the trip. Although Camille could not swim, she was permitted to go into the water without supervision. She drowned. It was admitted that no instructions, guidelines or special operating procedures were promulgated by the camp director for the safety of the children who were allowed to go into the water.

Clarice Patterson, the Senior Director of Cahill Recreation Center at the time of the accident, reported to a District Supervisor who in turn reported to the Superintendent of the Bureau of Recreation. The Superintendent was under the supervision of the Director of Parks who was answerable to the Mayor and City Council. Ms. Patterson, as the head of Camp Cahill, was charged with administering the programs at the camp within guidelines issued by the Department. Scheduled trips were arranged by Ms. Patterson, and it was also her responsibility to arrange for transportation to and from the designated trip area. The camp leaders were under her direction and control. [City of Baltimore v. Austin, 40 Md. App. at 558-559.]

We have declined to abrogate the doctrine of governmental immunity with respect to the tort liability of municipalities. Therefore, the defense of governmental immunity was available to the City. We have also determined to adhere to our established guidelines for determining whether a municipality is performing a governmental function so as to be immune or a proprietary function so as to be liable. Applying those guidelines, we agree with the Court of Special Appeals that the negligence of the City occurred during the performance by it of a governmental function. Thus, it may not be held responsible for the damages suffered.⁴

We believe that Blue ford, supra, is controlling. In that case the question was whether the management and maintenance of a public swimming pool in a public park by Baltimore City was a governmental function. We first assumed on the authority of Ahrens, supra, that “the maintenance and management of a public park is a governmental function____” Blueford, 173 Md. at 273. We next concluded that the maintenance and operation of such a public convenience as a swimming pool was also a governmental function. We summarized the reasoning of Ahrens, expressed by Mitchell, J., “speaking with force and clarity for this Court”:

[P]ublic parks are vitally necessary to the public health and welfare, in the congested centers of population, in affording a temporary escape from the noise and dust and jostling of crowded city streets. So, too, swimming or wading pools and other public facilities for bathing have a direct and necessary relation to the public health in affording to the masses who are unable to go to the seashore or to inland lakes, or ponds or streams beyond the city, some opportunity of lessening the dangers and discomforts which are inseparable from the depressing and exhausting heat of the summer season. Such pools are maintained solely for the public comfort and convenience, the municipality derives no profit from them, they do afford the public relief from conditions which might otherwise be intolerable and dangerous, which many of them could secure in no other way. [Blueford, 173 Md. at 274.]

Our determination in Blue ford that the City was performing a governmental function was not affected by the fact that the maintaining of public parks in Baltimore City was permissive, nor by the fact that there was no specific authority for the maintenance of swimming pools, “for they may naturally be included in the authority to maintain the parks in which they are located and of which they are a part.” Id. at 276. Nor was it 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. at 276-277.

Consistent with our conclusions in Blueford, we think that the operation of Camp Cahill and the activities related to it, including the activity during which Camille died, were sanctioned by legislative authority. On 3 November 1964, the people of Baltimore City voted to amend the 1949 edition of the City Charter, pursuant to Md. Const. Art. XI-A, § 1. Section 2 of Art. XI-A requires the General Assembly to provide a grant of express powers limiting the powers under a charter adopted pursuant to § 1. These express powers are set out in Code (1957,1973 Repl. Vol.) Art. 25A, § 5. See Code (1957, 1976 Repl. Vol.) Art. 1, § 14. Subsection (V) of Art. 25A, § 5, under the heading “Recreation,” grants the power

To enact local laws providing for the development and administration of a comprehensive recreational program including the construction, equipment and use of park, community center, and recreational buildings and facilities, the acquisition of sites therefor, and the furnishing of recreational and other municipal services in connection therewith.

Baltimore City, Md. Charter, Art. II (21) bestowed upon the Mayor and City Council of Baltimore the power “[t]o establish, maintain, control and regulate parks, squares, monuments and recreation facilities." (Emphasis added). Article VII, §§ 61-64 of the Charter created a Department of Recreation and Parks and enumerated its powers and duties, including “to establish, maintain, operate and control ... recreational facilities and activities for the people of Baltimore City, and to have charge and control of all such property and activities belonging to or conducted by, the City. ...” § 63 (a). The Department has the power “to rent for its use buildings and other places suitable for the conduct of the activities of the Department” and is authorized, with the consent of any other municipal agency, to organize and conduct play and recreational activities on grounds and in buildings under the control of such other agency....” § 63 (d). It may “charge and collect fees for admission, services and the use of facilities....” § 63 (g). The Department’s activities here involved were clearly within its powers and authority.

It is readily apparent that the City’s activities with which we are here concerned were solely for the public benefit, with no profit or emolument inuring to the municipality, that they tended to benefit the public health and promote the welfare of the whole public, and that they had no element of private interest. We are in full accord with the Court of Special Appeals that

the establishment of day camp facilities operating in congested areas of the city for the benefit of those children who would otherwise have no access to the programs offered is necessary for the public health, welfare and education. There can be no question that the programs offered are a needed alternative for our neglected poor children who would, if it were not for the camp opportunity, face conditions in the city which are intolerable.. [Austin, 40 Md. App. at 571.]

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.” Id. at 570. We believe, as the intermediate appellate court believed, that the fees here did not result in a profit or emolument inuring to the City within the contemplation of the Blueford guidelines. In short, when viewed in the light of the public policy recognized in Baltimore City, and the controlling guidelines, the function here performed by the City was governmental.

The City’s election to furnish the day camp facilities to its citizens was a permitted exercise of its judgment as to the necessity for the program in the interest of the health, welfare and education of its children. To deny the City the protection of its cloak of governmental immunity in the operation of an activity necessary to the health, education and welfare of its children must have a chilling effect on the ability and willingness of the City to continue to furnish that vitally needed service in the future. [Austin, 40 Md. App. at 572.]

Judgment of the Court of Special Appeals affirmed; costs to be paid by petitioner. 5

1 . It was noted in State v. B. & O. R. R. Co., 34 Md. 344, 374 (1871): “The right to sue the State was given by the Act of 1786, eh. 53, but this was afterwards repealed and the right was taken away.” See Acts 1820, ch. 210.

2 . The Legislature waived the State’s immunity from suit in certain contract actions by Acts 1976, ch. 450, now codified as Maryland Code (1957, 1978 Repl. Vol.) Art. 41, § 10A.

3 . The law is well established that the State or one of its agencies may not by affirmative action or by failure to plead the defense, waive the defense of governmental immunity in the absence of express statutory authorization, or by necessary implication from a statute. Bd. of Education v. Alcrymat Corp., 258 Md. 508, 516, 266 A.2d 349 (1970). See Maryland Rule 323; Board v. John K. Ruff, Inc., 278 Md. 580, 583, n. 2, 366 A.2d 360 (1976).

The decisions in this State have also “established that neither in contract nor tort can a suit be maintained against a government agency, first, where specific legislative authority has not been given [, and] second, even though such authority is given, if there are no funds available for the satisfaction of the judgment, or no power reposed in the agency for the raising of funds necessary to satisfy a recovery against it.” University of Maryland v. Maas, 173 Md. 554, 558-559, 197 A. 123 (1938). See John K. Ruff, Inc., 278 Md. at 591.

4 . The City did not contest on appeal the jury’s finding that it was negligent, and that this negligence caused the death of Camille Austin. Nor diait question the reasonableness of the damages awarded. City of Baltimore v. Austin, 40 Md. App. 557, 564, 392 A.2d 1140 (1978).

It seems that the court in instructing the jury and the clerk in asking for its verdicts, reversed the counts of the declaration so that the jury apparently intended to award §150,000 to Mrs. Austin as mother and next friend and $1,435.10 to her as personal representative (funeral expenses $977.50 and grave marker $457.60). We do not find from the record that this matter was noticed below.

5 . The Maryland Trial Lawyers’ Association, Inc. filed a brief as amicus curiae which included the contention that the doctrine of sovereign immunity is unconstitutional as violative of the rights of due process and equal protection of the law. The question was not raised, argued or decided at trial or before the Court of Special Appeals. It is not properly before us, and we do not consider it. Matter of Trader, 272 Md. 364, 401, 325 A.2d 398 (1974); Maryland Rule 885.

The Court of Special Appeals assessed the costs on the appeal before it against the Mayor and City Council of Baltimore even though that party prevailed. See Md. Rule 1082 a. We have serious doubt of the propriety of the award, despite the discretionary power of the court. However, as the City did not file a cross-petition for a writ of certiorari raising the issue, the matter is not before us, and we offer no further comment concerning it.