Heron v. Strader

761 A.2d 56, 361 Md. 258, 2000 Md. LEXIS 664

• Court: Court of Appeals of Maryland
• Decided: October 17, 2000
• Docket: 13, Sept. Term, 2000
• Status: Published

Opinions

RAKER, Judge.

Petitioner, David Reginald Heron, filed suit against Prince George’s County, Maryland under the Local Government Tort Claims Act (hereinafter “LGTCA”), Maryland Code (1987, 1998 RepLVol., 2000 Supp.) § 5-301 of the Courts and Judicial Proceedings Article¹ for malicious prosecution, false arrest, and false imprisonment. The Circuit Court for Prince George’s County dismissed all of the claims on the ground that the Notice of Claim was untimely and that there was no good cause that would excuse the late filing. The Court of Special Appeals, in an unreported opinion, affirmed the judgment. We shall hold that Petitioner’s Notice of Claim was timely as to his malicious prosecution claim, but that it was not timely as to his claims of false arrest and imprisonment and that he lacked good cause for late filing. Accordingly, we affirm in part and reverse in part.

I.

On August 24, 1997, Petitioner was arrested and charged with resisting arrest, obstructing the police in the performance of their duties, and disorderly conduct. On March 3, 1998, he was acquitted of all charges. On April 30, 1998, pursuant to the LGTCA, Petitioner sent a Notice of Claim to Prince George’s County notifying the county of his intention to file a civil complaint against Respondents, the arresting officers. In the Notice, Petitioner alleged that he had been injured when Respondents “assaulted and battered him, falsely imprisoned him, violated his civil rights, and committed numerous other wrongs against him.” He identified the time and place of injury as “[o]n or about August 24, 1997” at the Landover Metro Station.

On June 1, 1998, Petitioner filed a complaint in the Circuit Court for Prince George’s County alleging multiple claims against Respondents, Corporals Veronica Strader and Todd Nalley of the Prince George’s County Police Department, in their individual and official capacities. The Complaint included the claims of false imprisonment, false arrest, and malicious prosecution.²

On August 18, 1998, Respondent Strader filed a Motion to Dismiss asserting that the Complaint failed to state a claim upon which relief could be granted and that Petitioner had failed to provide the timely written notice required by § 5-304(a) of the LGTCA. On September 2, 1998, Petitioner filed a Response to the Motion to Dismiss asserting that his failure to provide the County with the required notice was excusable under § 5-304(c) because he had been working on his criminal defense to the charges against him arising out of the events of August 24, 1997 and that Respondents had not proven prejudice from the delay. On January 27, 1999, the court dismissed the case on the grounds that the notice was untimely, stating that Petitioner was required to exercise “reasonable ordinary care” and that the pendency of a criminal case did not constitute good cause for his failure to provide notice within the statutory period of time.

Petitioner noted a timely appeal to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, affirmed the trial court, holding that the notice period for Petitioner’s claims of false arrest, false imprisonment, and malicious prosecution began to run on the date of his arrest and that the trial court did not abuse its discretion in finding that no good cause existed to excuse the notice requirements of the LGTCA. This Court granted certiorari to determine whether the trial court erred in dismissing Petitioner’s claims of false arrest, false imprisonment, and malicious prosecution.

II. Timeliness

In order to assess the timeliness of Petitioner’s Notice of Claim under the LGTCA, it is necessary, first, to determine the time of his alleged injury for each of the appealed claims. Petitioner contends that his injury in this case occurred when his causes of action accrued for malicious prosecution, false arrest, and false imprisonment, which he asserts was after his acquittal. Section 5-304 of 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 required by this section is given within 180 days after the injury.... The notice shall be in writing and shall state the time, place, and cause of the injury.” § 5 — 304(a)—(b)-

Although this Court has not previously interpreted the definition of an “injury” under the LGTCA, we have considered the question of when an injury arises in the context of the Maryland Tort Claims Act (“MTCA”), Maryland Code (1984, 1999 Repl.Vol, 2000 Supp.) § 12-106 of the State Government Article. The MTCA provides: “A claimant may not institute an action under this subtitle unless ... the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim .... ” § 12-106(b). In Haupt v. State, 340 Md. 462, 667 A.2d 179 (1995), we considered the question of when an injury arises pursuant to the notice requirement of the MTCA for third party claims.³ We held that notice had to be given when the “legally operative facts” permitting the filing of the claim came into existence. Haupt, 340 Md. at 474, 667 A.2d at 185. We concluded that the 180-day clock began to run at the moment that the plaintiff was able to bring her claim. See id. at 477, 667 A.2d at 186. Similarly, in Lopez v. Maryland State Highway Admin., 327 Md. 486, 610 A.2d 778 (1992), we considered the question of when an injury had occurred under the MTCA for the purposes of a -wrongful death suit by a child that had not yet been born at the time of the accident. In Lopez, we held that the injury that the child had suffered, for the purposes of the statute, could not have occurred until he “became a statutory claimant,” which we equated with the time at which “his cause of action arose.” Id. at 491, 610 A.2d at 780. We now adopt the same interpretation of the time of the injury for the purposes of the notice requirement of the LGTCA.

Petitioner’s injury, therefore, occurred, pursuant to § 5-304, when his causes of action arose, i.e., when the legally operative facts permitting the filing of his claims came into existence. In order to determine when Petitioner’s causes of actions arose, we must examine the elements of the cause of action, since, under this Court’s precedents, a cause of action is said to have arisen “ “when facts exist to support each element.’” Owens-Illinois v. Armstrong, 326 Md. 107, 121, 604 A.2d 47, 54 (1992) (quoting Owens-Illinois v. Armstrong, 87 Md.App. 699, 724-25, 591 A.2d 544, 556 (1991)); Owens Corning v. Bauman, 125 Md.App. 454, 726 A.2d 745 (1999) (citing Owens-Illinois, 326 Md. at 121, 604 A.2d at 54).

The elements of malicious prosecution are: 1) a criminal proceeding instituted or continued by the defendant against the plaintiff; 2) without probable cause; 3) with malice, or with a motive other than to bring the offender to justice; and 4) termination of the proceedings in favor of the plaintiff. See DiPino v. Davis, 354 Md. 18, 59, 729 A.2d 354, 373 (1999); Montgomery Ward v. Wilson, 339 Md. 701, 714, 664 A.2d 916, 922 (1995).

The elements of false arrest and false imprisonment are identical. Those elements are: 1) the deprivation of the liberty of another; 2) without consent; and 3) without legal justification. See Manikhi v. Mass Transit Admin, 360 Md. 333, 364, 758 A.2d 95, 111-12, 2000 Md. LEXIS 517, at *44 (2000); Montgomery Ward, 339 Md. at 721, 664 A.2d at 925-26. Petitioner argues that the third element, legal justification, does not come into existence until after acquittal. He is wrong. The test of legal justification, in the context of false arrest and false imprisonment, is “ ‘judged by the principles applicable to the law of arrest.’ ” Montgomery Ward, 339 Md. at 721, 664 A.2d at 926 (quoting Ashton v. Brown, 339 Md. 70, 120, 660 A.2d 447, 472 (1995)). Therefore, “where the basis of a false imprisonment action is an arrest by a police officer, the liability of the police officer for false imprisonment will ordinarily depend upon whether or not the officer acted within his legal authority to arrest.” Montgomery Ward, 339 Md. at 721, 664 A.2d at 926.

Petitioner’s causes of action for false arrest and false imprisonment arose, and his injuries for the purposes of the LGTCA therefore occurred, on August 24, 1997, the date that he was arrested and detained by the police. The facts alleged to support each element of his claim were in existence at that time. Therefore, his Notice of Claim, with respect to his claims of false arrest and false imprisonment, was not timely.

Malicious prosecution, however, is a different case. The tort of malicious prosecution includes not only the initiation of criminal proceedings against the plaintiff, but also the termination of those proceedings in the defendant’s favor as a necessary element of the cause of action. Petitioner was lacking the facts to support that element until his acquittal on March 3, 1998. Therefore, his Notice of Claim, with respect to his claims of malicious prosecution, was timely, and it was error for the trial court to dismiss those counts of the Complaint.

This holding is in accord with the law of other jurisdictions. While the public entity tort claim statutes of many other states specify that notice must be given within a designated period of time after the claimant’s cause of action has “arisen” or “accrued,” these precedents are nonetheless instructive as we interpret “injury” for the purposes of the LGTCA to be equivalent to the time when the plaintiff’s cause of action has arisen.

The California District Court of Appeal, in interpreting the California Tort Claims Act, Cal. Gov’t Code § 715 (repealed 1965) (current version at Cal. Gov’t Code § 901 (West 1995)), held that a cause of action for false arrest or imprisonment against a local public entity accrues⁴ at the termination of imprisonment and not at the time of the termination of the criminal proceedings underlying the arrest. See Collins v. County of Los Angeles, 241 Cal.App.2d 451, 50 Cal.Rptr. 586, 588 (1966). In Collins, the Appellants had filed a claim for damages for false arrest and false imprisonment by two deputy sheriffs against Los Angeles County approximately six months after they alleged that they had been illegally detained. The applicable California statute then in effect required that a “claim relating to a cause of action ... for physical injury to the person ... shall be presented ... not later than the one hundredth day after the accrual of the cause of action.” Cal. Gov’t Code § 715 (repealed 1965) (current version at Cal. Gov’t Code § 911.2 (West 1995)). The Appellants argued that their notice was timely because they did not discover that they had been falsely arrested and imprisoned until the end of the criminal trial and that, therefore, their cause of action had not accrued until that time. The court in Collins rejected that argument, stating: “inasmuch as the only allegation as to imprisonment in the ... complaint is that plaintiffs were imprisoned and detained of their liberty on [a single day], and there is no allegation of any imprisonment after that date, ... the cause of action herein accrued on [that date], and the 100 days started to run from that date----” Collins, 50 Cal.Rptr. at 589. The court specifically rejected the Appellants’ analogy to malicious prosecution, stating: “The actions are not similar because a necessary element of an action for malicious prosecution is a judicial proceeding favorably terminated. In a false imprisonment case there is no such requirement.” Id. at 591.

Similarly, the District of Columbia Court of Appeals, in interpreting D.C.Code Ann. § 12-309 (1981), which requires that a claimant give written notice “within six months after the injury or damage was sustained” in order to maintain a tort suit against the District of Columbia, affirmed the trial court’s finding that the plaintiff’s written notice to the District of his potential malicious prosecution claim, dated less than two months after his acquittal, was timely, but that the same notice was not timely with respect to his claims of false arrest, assault and battery, and negligence arising out of the same arrest. See Allen v. District of Columbia, 533 A.2d 1259, 1263 (1987).⁵

The Indiana Court of Appeals, in interpreting the Indiana Tort Claims Act, Ind.Code § 34-4-16.5-7 (West 1999) (repealed 1998), which required that a notice of claim must be filed with a political subdivision within 180 days after a “loss” has occurred, also held that claims of false arrest and imprisonment accrue at the time of arrest, charging, and release from custody, but that a claim for malicious prosecution does not accrue until acquittal. See Livingston v. Consolidated City of Indianapolis, 398 N.E.2d 1302 (1979).⁶

The Superior Court of New Jersey, in interpreting the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:1-1 (1992), held that the accrual date⁷ for a cause of action for false arrest was the date of the arrest because termination of criminal proceedings is not an element of the claim. See Pisano v. City of Union City, 198 N.J.Super. 588, 487 A.2d 1296, 1299 (Law Div.1984). The court also distinguished false arrest from malicious prosecution, explaining:

It is well established that a cause of action for malicious prosecution does not arise until the criminal proceeding has terminated in plaintiffs favor. That is a condition precedent to the institution of the action. Such a requirement that the criminal proceeding has terminated in plaintiffs favor is not a prerequisite for institution of an action for false arrest, as the form of action is based upon an illegal arrest and no matter ex post facto can legalize an act which was illegal at the time it was done.

Id. (internal citations omitted). The United States District Court, in interpreting both the statute of limitations and the Notice of Claim provisions of the New Jersey Tort Claims Act, N.J. Stat. Ann. § 59:8-8(a)-(b) (1992), held that, while most of the plaintiffs state tort causes of action, including intentional infliction of emotional distress and abuse of process, accrued at the time of her arrest,⁸ her malicious prosecution claim accrued when the criminal proceedings against her terminated favorably. See Michaels v. New Jersey, 955 F.Supp. 315 (D.N.J.1996).

In interpreting the Notice of Claim provision of New York’s municipal tort liability statute, New York Gen. Mun. Law § 50 (McKinney 1999), New York courts have found that claims of false arrest and false imprisonment arose⁹ on the date on which the plaintiff was released from custody, but that causes of action for malicious prosecution did not accrue until the underlying criminal charges were dismissed. See Jastrzebski v. New York, 423 F.Supp. 669 (S.D.N.Y.1976); Ragland v. New York City Hous. Auth., 201 A.D.2d 7, 613 N.Y.S.2d 937, 939 (1994); McElveen v. Police Dep’t, 70 A.D.2d 858, 418 N.Y.S.2d 49 (1979); Peresluha v. New York, 60 A.D.2d 226, 400 N.Y.S.2d 818 (1977); accord Malone v. McHugh, 797 F.Supp. 154, 155-56 (E.D.N.Y.1991); Leung v. New York, 216 A.D.2d 10, 627 N.Y.S.2d 369 (1995); Bennett v. New York, 204 A.D.2d 587, 612 N.Y.S.2d 201 (1994); Collins v. McMillan, 102 A.D.2d 860, 477 N.Y.S.2d 49 (1984); Kelly v. Kane, 98 A.D.2d 861, 470 N.Y.S.2d 816 (1983); Hines v. Buffalo, 79 A.D.2d 218, 436 N.Y.S.2d 512 (1981); Boose v. Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740 (1979); Allee v. New York, 42 A.D.2d 899, 347 N.Y.S.2d 708 (1973); cf. Ciferri v. State, 118 A.D.2d 676, 500 N.Y.S.2d 28 (1986) (holding that the statute of limitations for a malicious prosecution action against a state employee begins to run upon dismissal of the charges by the trial court).

The United States Court of Appeals for the Third Circuit, in interpreting the Virgin Islands Tort Claims Act, V.I.Code Ann. tit. 33, § 3401 (2000), which requires that written notice be presented within six months “after the act or omission constituting the basis of the claim,” § 3402, held that the accrual date for claims of false imprisonment and arrest was the day of the arrest, but that the accrual date for malicious prosecution was dismissal of the criminal proceedings. See Deary v. Three Un-Named Police Officers, 746 F.2d 185 (3rd Cir.1984).

This approach to notice of tort claims is consistent with the general jurisprudence regarding the accrual of statutes of limitation for claims of false arrest, false imprisonment, and malicious prosecution. In determining the statute of limitations for claims of unlawful arrest and false imprisonment, the Oklahoma Supreme Court, in the oft-cited case Belflower v. Blackshere, 281 P.2d 423 (1955), held that the statute of limitations accrued at the release from imprisonment, not at the termination of the proceedings by which the arrest occurred. Several other states have subsequently followed this approach. See Kirwan v. State, 31 Conn.Supp. 46, 320 A.2d (1974); Mound Bayou v. Johnson, 562 So.2d 1212, 1217 (Miss.1990) (“Thompson’s [sic] action for false arrest accrued the day it occurred.... His action for malicious prosecution did not accrue until ... the date of the two judgments ... dismissing Mound Bayou’s ... prosecutions.”); O’Fallon v. City of Burlington, 427 N.W.2d 809, 811 (N.D.1988) (“False imprisonment is considered a continuing tort which commences at the time of the false arrest and continues until the unlawful detention ceases.”); Adler v. Beverly Hills Hosp., 594 S.W.2d 153 (Tex.Civ.App.1980) (holding that a cause of action for false imprisonment accrues for the purpose of the statute of limitations when the unlawful detention ends). Similarly, the United States Court of Appeals for the Third Circuit, in analyzing the date of accrual of a Section 1983 cause of action for malicious prosecution and false arrest, has held that, under federal law, since favorable termination was a necessary element of malicious prosecution claims, they did not accrue until the underlying criminal proceedings were terminated, but that false arrest claims accrued on the date of arrest. See Rose v. Bartle, 871 F.2d 331, 348-51 (3rd Cir.1989).

II. Waiver for Good Cause

Section 5-304 of the LGTCA provides for a waiver of the notice requirement: “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.” § 5-304(c). The question of whether good cause for waiver exists is clearly within the discretion of the trial judge. See Downey v. Collins, 866 F.Supp. 887, 889 n. 7 (D.Md.1994) (holding that the failure to discover the injury until witnesses were found and the failure of the county to respond to requests for materials were not sufficient to constitute good cause under § 5-304(c)); Madore v. Baltimore County, 34 Md.App. 340, 344, 367 A.2d 54, 57 (1976)¹⁰; cf. Lemma v. Off Track Betting Corp., 272 A.D.2d 669, 707 N.Y.S.2d 276 (2000). Therefore, the trial judge’s findings will not be disturbed absent a showing of abuse of discretion. See Westfarm, Assoc. v. Washington Suburban Sanitary Comm’n, 66 F.3d 669, 676 (4th Cir.1995); Madore, 34 Md.App. at 344, 367 A.2d at 56-57; cf. Viles v. State, 66 Cal.2d 24, 56 Cal.Rptr. 666, 423 P.2d 818, 821 (1967); Lamb v. Global Landfill Reclaiming, 111 N.J. 134, 543 A.2d 443, 449 (1988); Bowman v. Capital Dist. Transp. Auth., 244 A.D.2d 638, 663 N.Y.S.2d 727 (1997). The test for whether good cause exists pursuant to § 5-304(c) is “whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.” Westfarm, 66 F.3d at 676-77 (citations omitted). See Downey, 866 F.Supp. at 889-90; Madore, 34 Md.App. at 345, 367 A.2d at 57; cf. Lee v. Houston Fire & Cas. Ins. Co., 530 S.W.2d 294 (Tex.1975).

Petitioner argues that concentrating on his criminal defense constitutes good cause for late filing under § 5-304(c). The trial court specifically rejected this argument. Dismissing the case, the court found that the pendency of a criminal case was not sufficient to constitute good cause for late filing. We hold that it was not an abuse of discretion for the trial judge to so find. Section 5-304 requires simply that a written notice of the time, place, and cause of the injury be sent to the county attorney within 180 days after the alleged injury. See § 5-304(a)(b). It does not require the institution or prosecution of the civil action. We agree with the trial judge’s conclusion that an ordinarily prudent person, in Petitioner’s circumstances, would have been able, through the exercise of reasonable diligence, to file such a Notice of Claim.

Several other jurisdictions have sought to define good cause for late filing under public tort claims acts. While courts generally consider a combination of factors, circumstances that have been found to constitute good cause fit into several broad categories: excusable neglect or mistake (generally determined in reference to a reasonably prudent person standard),¹¹ see, e.g., Viles, 56 Cal.Rptr. 666, 423 P.2d at 821-22; Black v. Los Angeles County, 12 Cal.App.3d 670, 91 Cal.Rptr. 104, 107-08 (1970); Kleinke v. Ocean City, 147 N.J.Super. 575, 371 A.2d 785 (App.Div.1977); serious physical or mental injury and/or location out-of-state, see, e.g., Silva v. New York, 246 A.D.2d 465, 668 N.Y.S.2d 189 (1998);¹² Butler v. Ramapo, 242 A.D.2d 570, 662 N.Y.S.2d 93 (1997); Hilda B. v. Housing Auth., 224 A.D.2d 304, 638 N.Y.S.2d 36 (1996); Lamb, 543 A.2d at 451; S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 373 A.2d 364 (1977); Kleinke, 371 A.2d at 788; the inability to retain counsel in cases involving complex litigation, see, e.g., Torres v. Jersey City Med. Ctr., 140 N.J.Super. 323, 356 A.2d 75 (Law Div.1976); and ignorance of the statutory notice requirement,¹³ see, e.g., Bell v. Camden County, 147 N.J.Super. 139, 370 A.2d 886 (App.Div.1977); Keller v. Somerset County, 137 N.J.Super. 1, 347 A.2d 529 (App.Div.1975). No other jurisdiction has recognized the pendency of criminal proceedings as good cause. Moreover, the excuse is unlike any of these widely recognized exceptions to strict notice requirements.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF DISMISSAL OF PETITIONER’S CLAIMS OF FALSE ARREST AND FALSE IMPRISONMENT, REVERSE THE JUDGMENT OF DISMISSAL OF PETITIONER’S CLAIMS FOR MALICIOUS PROSECUTION, AND REMAND THE CASE TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID TWO-THIRDS BY RESPONDENTS AND ONE-THIRD BY PETITIONER.

1 . Hereinafter, unless otherwise indicated, all statutory references shall be to Maryland Code (1987, 1998 Repl.Vol., 2000 Supp.) Courts and Judicial Proceedings Article.

2 . Petitioner’s Complaint also included claims of assault, battery, and intentional infliction of emotional distress. He concedes that his Notice of Claim for those counts was not timely filed. He presented no federal or state constitutional claims.

3 . MTCA § 12-106(b) states, in relevant part, that: “[a] claimant may not institute an action under this subtitle unless: (1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim.” § 12-106(b)(l) (emphasis added).

4 . The provision of the California Tort Claims Act governing the time limits for presentation of claims specifically refers to the “accrual of the cause of action,” Cal. Gov’t Code § 911.2 (West 1995), as opposed to the Maryland LGTCA, which refers to the time of the “injury.” Maryland Code (1987, 1998 Repl.Vol., 2000 Supp.) § 5-304(a) of the Courts and Judicial Proceedings Article.

5 . Rejecting the application of the "discovery rule" to the notice requirement of D.C.Code Ann § 12-309 (1981) in suits brought against the District of Columbia, the D.C. Court of Appeals held that the “point in time when a cause of action accrues is immaterial," concluding that the limitation “ ‘within six months after the injury or damage was sustained’ ... begins to run from the moment the plaintiff sustains the injury....” District of Columbia v. Dunmore, 662 A.2d 1356, 1359 (1995). The discovery rule, operative in the District of Columbia, tolls the accrual of a cause of action, for the purposes of the statute of limitations, until the plaintiff knows or should have known of the existence of the injury, its cause in fact, and some evidence of wrongdoing. See Dunmore, 662 A.2d at 1359; see also District of Columbia v. Ross, 697 A.2d 14 (D.C.1997); DeKine v. District of Columbia, 422 A.2d 981, 985 (D.C.1980).

6 . The court in Livingston nonetheless affirmed the trial court’s dismissal of all of the appellant’s claims on the basis of the specific immunity provision of the Indiana Tort Claims Act, Ind.Codf. § 34-4-16.5-3 (West 1999) (repealed 1998), which granted immunity to all governmental entities or employees for "the initiation of a judicial or administrative proceeding.” § 34-4-16.5-3(5).

7 . The time limitations on presentation of claims under the New Jersey Tort Claims Act refer specifically to the "accrual of the cause of action.” N.J.Code Ann. § 59:8-8 (1992).

8 . Strictly speaking, because New Jersey employs a discovery rule, the plaintiffs state law causes of action, except for malicious prosecution, accrued when she should have discovered, by due diligence, that the elements of the claims existed. The court concluded, however, that that occurred "at or about the time of plaintiff's arrest.” Michaels v. New Jersey, 955 F.Supp. 315, 326 (D.N.J.1996).

9 . The New York statute requires that a Notice of Claim be served "within ninety days after the claim arises.” New York Gen. Mun. Law § 50-e (McKinney 1999).

10 . Madore dealt with the application of the precursor to the current LGTCA, Maryland Code (1957, 1972 Repl.Vol.) Art. 57, § 18(b) (repealed 1973), which stated: "Notwithstanding the provisions ... above the court may, upon motion and for good cause shown, entertain the suit [against any municipal corporation, county, or Baltimore City] even though the required notice was not given, unless provided further the defendant can affirmatively show that its defense has been prejudiced thereby.” See Downey v. Collins, 866 F.Supp. 887, 889 n. 5 (D.Md.1994); Madore v. Baltimore County, 34 Md.App. 340, 367 A.2d 54 (1976).

11 . Many states’ statutes specifically contain an exception for excusable mistakes. See, e.g., Cal. Gov’t Code § 946.6(c) (West 1995) ("The court shall relieve the petitioner from [notice requirements] if the court finds that [notice] was made within a reasonable time ... and ... [t]he failure to present the claim was through mistake, inadvertence, surprise or excusable neglect unless the public entity establishes that it would be prejudiced____”).

12 . The New York statute specifically includes mental or physical incapacity as a factor for the court to consider in determining whether to grant leave to serve a late Notice of Claim. See N.Y. Gen. Mun. Law § 50-e(5).

13 . The Court of Special Appeals has specifically rejected ignorance of the law requiring notice as good cause. See Williams v. Montgomery County, 123 Md.App. 119, 716 A.2d 1100 (1998).