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Appeal from the Circuit Court for Baltimore City. Marcus Shar, JUDGE.
ARGUED BY: Andrew K. O'Connell (William H. Murphy, Jr., Murphy, Falcon & Murphy on the brief) all of Baltimore, MD. FOR APPELLANT
ARGUED BY: William R. Phelan, Jr. (Amy Beth Leasure, Baltimore City Department of Law on the brief) all of Baltimore, MD. FOR APPELLEE
ARGUED BEFORE: Eyler, Deborah S., Woodward, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.[*] Opinion by Moylan, J.
[220 Md.App. 202] Moylan, J.
By virtue of an at least partially successful suit on the merits, the appellant is in position to recover $200,000 in damages. The appellant's aspiration, however, is to recover three and a half million dollars in damages. What stands between the already captured bird in the hand and the still elusive second bird in the bush is a statutory damages cap. The dominant issue on this appeal concerns the appellant's effort to dissolve that statutory barrier by persuading us that it has somehow been waived. That effort, however, is undermined by a misdirected focus on the wrong
question. The appellant directs our attention to the procedural modality of how a protection may be waived. May it be deemed to have been waived by a failure timely to assert it? The very different and overarching issue, however, she totally ignores. Trumping the question of " HOW is something waived?" is the [220 Md.App. 203] superseding question of " WHO may waive?" The appellant takes the identity of WHO for granted. This she may not do.
The Present Case
This appeal arises out of a wrongful death suit filed by the appellant, Connie Holloway-Johnson, on her own behalf and as personal representative of the estate of her son, Haines E. Holloway-Lilliston, against the appellee, Timothy Everett Beall, a Baltimore City police officer, in the Circuit Court for Baltimore City. Officer Beall was involved in a July 25, 2010 motor vehicle collision that resulted in Holloway-Lilliston's death. The appellant alleged negligence, gross negligence, battery, and violation of Article 24 of the Maryland Declaration of Rights, and sought compensatory and punitive damages of $20 million. Before bringing suit, the appellant provided timely notice of her claim to the Baltimore City Solicitor and the Maryland State Treasurer.
The case was tried to a jury between July 24, 2012 and August 3, 2012. At the close of the appellant's case-in-chief, the court entered judgment in favor of Off. Beall on the gross negligence, battery, constitutional, and punitive damages claims. The negligence claim was submitted to the jury and the jury returned a verdict in favor of the appellant in the amount of $3,505,000. Judgment was entered on August 8, 2012. On August 20, 2012, Off. Beall moved for a new trial or, in the alternative, to revise the judgment. By order of December 14, 2012, the court granted his motion, ordering " that [Off. Beall] is entitled to a new trial" and, " [a]lternatively," ordering " that the judgment entered in this case is revised by reducing it to $200,000.00 in accordance with the Local Government Tort Claims Act." 
[220 Md.App. 204] The Contentions
On this appeal, the appellant contends:
1) that Off. Beall waived the protections afforded by the Local Government Tort Claims Act (" LGTCA" ) by failing to raise the issue until after the verdict and judgment were entered; and
2) that the court erred in granting Off. Beall's motions for judgment on her claims for gross negligence, battery, violation of Article 24 of the Maryland Declaration of Rights, and punitive damages.
Off. Beall has noted a cross-appeal and contends:
3) that the court erred by denying his motion for judgment on the negligence
claim because he was entitled to statutory immunity as the operator of an emergency vehicle in emergency service.
A Post-Midnight Chase
On the early morning of July 25, 2010, Off. Beall was on duty, working the midnight patrol shift in the Northern District of Baltimore City in a marked police cruiser. He heard a radio transmission from an off-duty officer reporting a black Mercedes convertible and a motorcycle traveling northbound on the Jones Falls Expressway, I-83, near 25th Street, at speeds of approximately 100 miles per hour. Other officers were able to stop the vehicle, which turned out to be a black Toyota, but could not stop the motorcycle.
Off. Beall entered I-83 North from the Cold Spring Lane interchange and began following a motorcycle driven by Holloway-Lilliston. The motorcycle was traveling 35 m.p.h. in a 50 [220 Md.App. 205] m.p.h. zone. Not sure whether this was in fact the offending motorcycle, Off. Beall maintained a distance of three car lengths behind and followed it to the Northern Parkway interchange. At that point, Holloway-Lilliston " popped a wheelie"  and accelerated to about 75 m.p.h., continuing northbound on I-83. Off. Beall activated his emergency lights and siren and accelerated to keep pace. Off. Beall followed Holloway-Lilliston onto the inner loop of the Baltimore Beltway, I-695 East, still keeping pace with him at a speed of about 75 m.p.h. They continued through the Charles Street interchange, at which point their speed dropped to 50 m.p.h., which was the posted speed limit in what was, at that time, a construction zone.
According to Off. Beall, he was having trouble receiving radio messages while on I-695. He asserted the existence of radio " dead spots" at certain locations in the Northern District in Baltimore City and in Baltimore County where he was unable to receive or to transmit radio messages. Off. Beall denied receiving a radio order from his shift commander that, " [i]f all they're wanted for is traffic, just come back to the district before your radio dies out." At the York Road interchange, Off. Beall did receive this message from his shift commander:
Yeah, have the officer disregard and come back, notify the state police of his location, the radio is going to die out soon, if there are repeaters out there, so just come on back.
Off. Beall heard the dispatcher then repeat:
And per, ah, state police, he'll send someone out, but if it's just traffic, he recommends you not to follow it.
Off. Beall responded, " 10-4," and turned off his emergency lights and siren. Off. Beall then telephoned the State Police, using his cell phone, advising that he was " following a ... possibly stolen motorcycle eastbound on 695 ... coming up on [220 Md.App. 206] York Road." Off. Beall advised that he was at " Dulaney Valley Road South," and then the call was cut off.
Off. Beall followed Holloway-Lilliston onto the exit ramp for Dulaney Valley Road South. Off. Beall was traveling at between 41 and 44 m.p.h., and Holloway-Lilliston was traveling at between 31 and 33 m.p.h. On the exit ramp, Off. Beall's cruiser made contact with Holloway-Lilliston's motorcycle and Holloway-Lilliston was ejected from the motorcycle. He
landed on the hood of Off. Beall's cruiser and then rolled off the left side of it, ultimately landing head first on the pavement. Holloway-Lilliston suffered severe injuries and died, likely immediately, upon impact with the pavement.
A Furiously Contested Moot Question
The first major skirmish on this appeal illustrates how easily a trial can go off the tracks or at least be sidetracked down an immaterial tangent. The parties have flailed away at each other over what Off. Beall did or did not do procedurally. They are both operating, however, within the four corners of their mutual assumption that his actions had a controlling influence on the applicability of the damages cap. Nobody paused to think outside the box. Nobody asked whether Off. Beall's action or inaction actually mattered as far as the cap was concerned. It did not. The skirmish within the box, however, still rages on appeal.
In a tempestuous Punch and Judy exchange of irrelevancies, the appellant leads off with the argument that Off. Beall waived the protections of the LGTCA, Md. Code, § § 5-301, et seq., of the Courts & Judicial Proceedings Article (" CJP" ) -- specifically, the $200,000 cap on damages -- by failing to raise the issue until after the jury verdict was rendered and judgment was entered. She argues that the LGTCA is an affirmative defense that Off. Beall was required to plead specifically before trial and, having failed to do so, thereby waived.
Off. Beall counters by acknowledging that he did not mention the issue of the LGTCA damages cap until his August 20, 2012 motion for new trial or to revise judgment. He nevertheless [220 Md.App. 207] maintains that the LGTCA damages cap is not an affirmative defense and that he was not, therefore, required to plead it specifically. He insists that the general denial in his answer was sufficient to preserve the defense. In any event, he further argues, the appellant was on notice that her claims were subject to the LGTCA damages cap long before trial because she notified the City of her claim within six months of the accident as required by another section of the LGTCA, CJP § 5-304.
We find it unnecessary to referee that contest. As we shall explain more fully infra, this spirited exchange of contentions is no more than an immaterial sideshow. With respect to the LGTCA's damages cap, what Off. Beall did or failed to do procedurally does not matter. The decision was way beyond his pay grade.
The Local Government Tort Claims Act
Some context is appropriate. The LGTCA first became law in 1987. In Ennis v. Crenca, 322 Md. 285, 291, 587 A.2d 485 (1991), Judge Eldridge explained its purposes.
The Local Government Tort Claims Act was passed in response to a perceived insurance crisis plaguing counties, municipalities and their employees. The legislative history of the Act reflects the General Assembly's concern for the impact of increased law suits on the incentive of public employees and officials to do their jobs to the best of their abilities. See the Department of Legislative Reference's file on Senate Bill 237 of the 1987 Session of the General Assembly.
The LGTCA provides local government employees an " indirect statutory qualified immunity" from liability for tortious acts or omissions so long as they are acting within the scope of their employment.  See Smith v. Danielczyk, 400 Md. 98, 129-30, [220 Md.App. 208] 928 A.2d 795 (2007). A plaintiff must sue the allegedly negligent employee directly; the LGTCA does not authorize suit against the local government for its employee's actions. See Nam v. Montgomery County, 127 Md.App. 172, 183-85, 732 A.2d 356 (1999); Williams v. Prince George's County, 112 Md.App. 526, 552-53, 685 A.2d 884 (1996); Khawaja v. Rockville, 89 Md.App. 314, 323-26, 598 A.2d 489 (1991). Nevertheless, the plaintiff " may not execute against an employee on a judgment rendered for tortious acts or omissions committed by the employee within the scope of employment," unless the employee is found to have acted with what the statute refers to anachronistically as " actual malice."  CJP § 5-302(b) (emphasis supplied).
[220 Md.App. 209] The LGTCA transfers financial liability for torts within the scope of employment from the employee to the local government. CJP § 5-303(b)(1) (" a local government shall be liable for any judgment against its employee for damages resulting
from tortious acts or omissions committed by the employee within the scope of employment with the local government" ) (emphasis supplied). The local government's liability is capped at " $200,000 per an individual claim and $500,000 per total claims that arise from the same occurrence." CJP § 5-303(a)(1).
If the employee is found to have acted with " actual malice," the plaintiff may enforce a judgment against both the local government (up to the damages cap) and the employee. " Actual malice" is defined in the statute as " ill will or improper motivation." CJP § 5-301(b). The local government remains liable to the plaintiff despite a finding of actual malice, but it " may seek indemnification [from the employee] for any sums it is required to pay under [CJP] § 5-303(b)(1)[.]" CJP § 5-302(b)(ii). See Houghton v. Forrest, 412 Md. 578, 591-92, 989 A.2d 223 (2010). Upon a finding of actual malice, the employee becomes personally liable for " all damages awarded in the action" and the successful plaintiff is free to execute on [220 Md.App. 210] such judgment against the employee. CJP § 5-302(b)(2). The LGTCA damages cap restricts only the amount a plaintiff may collect from the local government; it has no bearing on the overage the plaintiff may collect from an employee who acted with malice. See Francis v. Johnson, 219 Md.App.
531, 101 A.3d 494, No. 673-2013 (filed October 6, 2014).
The employee, moreover, is liable for punitive damages, not the local government. CJP § 5-303(c)(1) (" A local government may not be liable for punitive damages." ). In certain cases and subject to the damages cap, however, the local government " may indemnify an employee for a judgment for punitive damages entered against the employee." CJP § 5-303(c)(2).
The LGTCA is unusual in terms of the modality the General Assembly employed to provide some limited relief to plaintiffs and to protect local government employees. The Maryland Tort Claims Act (" MTCA" ), State Government Article § 12-101 et seq. and CJP § 5-522, by contrast, protects state government employees by granting them direct immunity from suit for acts or omissions committed within the scope of employment without actual malice. It allows injured persons to sue the State on a vicarious liability theory. See Ford v. Baltimore City Sheriff's Office, 149 Md.App. 107, 119-20, 814 A.2d 127 (2002). By contrast, the LGTCA grants employees immunity from damages, but not from suit. The LGTCA requires plaintiffs to bring claims directly against the employee, not indirectly against the local government. See Board of Educ. of Prince George's County v. Marks-Sloan, 428 Md. 1, 29-31, 50 A.3d 1137 (2012) (comparing MTCA and LGTCA).
Unlike the statutory cap on non-economic damages in personal injury cases, CJP § 11-108, the LGTCA does not require trial courts to reduce the amount of a judgment after a jury verdict has been rendered. Rather, the LGTCA requires a plaintiff to bring suit against an employee directly and to obtain a judgment against him, but then prevents the successful plaintiff from actually collecting on that judgment against the employee. See Smith v. Danielczyk, supra, 400 Md. at [220 Md.App. 211] 130. The LGTCA specifically provides that " a person may not execute against an employee on a judgment." CJP § 5-302(b) (emphasis supplied). Instead, the plaintiff may recover against the local government. Although the LGTCA limits a plaintiff's recovery against a local government to $200,000 per claim and $500,000 per occurrence, the LGTCA does not require a trial court to actually reduce the judgment in conformance with the cap. The judgment is not even entered against
the local government; it remains nominally against the employee.
Baltimore City Police Department
In terms of both its sovereign immunity and its financial responsibility for the tortious conduct of its employees in the scope of their employment, the status of the Baltimore City Police Department (" BCPD" ) is very unusual, if not indeed bizarre. Is it a state agency so as to come under the coverage, at least presumably, of the MTCA? The confusingly schizophrenic answer is that the BCPD both is and is not a state agency.
The BCPD is now statutorily designated as a " local government" that is specifically covered by the LGTCA. CJP § 5-301(d)(21). This was not always so. Unlike other county or municipal police departments, the BCPD was over a century and a half ago placed under the control of the State by chap. 7 of the Acts of 1860 and was officially designated as a State agency by chap. 367 of the Acts of 1867. For an understanding of the bizarre pre-Civil War circumstances that provoked this seeming governmental anomaly, see Upshur v. Mayor of Baltimore, 94 Md. 743, 51 A. 953, 958 (1902), and H.H. Walker Lewis, " The Baltimore Police Case of 1860," 26 Md. L. Rev. 215 (1966). And see Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 23-27, 944 A.2d 1122 (2008). As Baltimore Police Department v. Cherkes, 140 Md.App. 282, 303, 780 A.2d 410 (2001), described the effect of Chapter 367 of the Laws of 1867:
By Chapter 367 of the 1867 Laws of Maryland, the General Assembly made the BCPD a State agency, and [220 Md.App. 212] designated its officials and officers as State officers. That enactment appears today in section 16-2(a) of the Public Local Laws of Baltimore City, which states, " The Police Department of Baltimore City is hereby constituted and established as an agency and instrumentality of the State of Maryland."
See also Clea v. Mayor of Baltimore, 312 Md. 662, 668, 541 A.2d 1303 (1988) (" [T]he Baltimore Police Department is not an agency of the City of Baltimore and has not been for some time." ).
Although the BCPD formally remains a " state agency" for certain purposes, Mayor & City Council of Baltimore v. Clark, 404 Md. at 26 (" § 16-2, which designates the Baltimore Police Department as an agency of the State, remained, and still remains, unchanged." ), chap. 369 of the Acts of 1997 amended the LGTCA to make it clear, by CJP § 5-301(d)(21), that for liability purposes the BCPD is nonetheless included as a " local government." Houghton v. Forrest, 183 Md.App. 15, 41-42, 959 A.2d 816 (2008); Baltimore City Police Dep't v. Cherkes, 140 Md.App. at 315. The BCPD is, to be sure, a governmental hybrid. For certain arcane governmental purposes, it has been since 1867 and still is a state agency. For purposes of tort law, however, it has been since 1997 a " local government" and, as such, the tort liability of its employees is governed by the LGTCA.
Who, If Anyone, May Waive the Damages Cap?
The appellant contends that Off. Beall waived the damages cap. The short answer to the waiver issue is that Off. Beall did not waive the damages cap, indeed could not have waived the damages cap, because it was not his to waive. The LGTCA benefits three different constituencies. First, the entitlement to enforce a judgment against a local government instead of against an employee benefits an injured plaintiff by guaranteeing him a source of funds. The LGTCA was designed
to provide a remedy for persons injured by local government employees, who often have limited resources from which an injured person might collect on a judgment. The [220 Md.App. 213] LGTCA ensures that injured persons will be compensated for their injuries -- up to the damages cap -- by requiring local governments to pay judgments entered against their employees and prohibiting local governments from asserting governmental immunity as a defense to that responsibility. See Rios v. Montgomery County, 386 Md. 104, 125-26, 872 A.2d 1 (2005). Far from " restrict[ing] a 'traditional remedy or access to the courts,'" the LGTCA " legislatively permits plaintiffs to enforce judgments obtained from suit against the employee against the local government." Id. at 139.
In standing back and looking at the entire LGTCA in perspective, it is clear, moreover, that it is the plaintiff, and not the defendant employee, who actually invokes the LGTCA in the first place. Invoking the LGTCA is the first step toward a plaintiff's goal of recovering out of local government funds. The self-evident function of the stringent notice requirements is to regulate the plaintiff's invocation of the LGTCA. See Rios v. Montgomery County, 386 Md. at 125-28. When the plaintiff successfully invokes the LGTCA, as the appellant did in this case, the LGTCA is invoked as an indivisible package. It is not invoked on an ad hoc basis, subcontention by subcontention. The LGTCA is CJP § § 5-301 through 5-304, as a whole. The statutory package unquestionably includes § 5-303, which limits the extent to which the local government is required to assume this extraordinary obligation. It was the appellant who invoked the damages cap, along with the rest of the LGTCA. The statutory limitation, moreover, was promulgated in absolute terms, not as a contingent or discretionary option.
Second, the " may not execute" provision benefits the employee by absolving him from financial responsibility so long as he was acting within the scope of his employment and without malice. The " may not execute" provision, CJP § 5-302(b), applies no matter the size of the judgment against the employee. In an LGTCA case, whether the judgment be for $10,000 or $10 million, an injured party may not collect so much as one penny from the employee directly, so long as the [220 Md.App. 214] employee is acting without malice and within the scope of his employment. Although the judgment is nominally against the employee, it is as a practical matter frequently meaningless as applied against the employee. No action is required by the employee to protect himself, except to cooperate in the defense of the action. Even then, such action need consist only of explaining to the court that the judgment is subject to the LGTCA and that the plaintiff may not execute against him.
Third, the damages cap protects the local government itself by placing an upper limit on the extent of its liability. Although the LGTCA generally benefits both injured plaintiffs and defendant-employees, the damages cap specifically self-evidently is not for the benefit of either. Plaintiffs would obviously be better off if no damages cap existed. The damages cap is also not for the benefit of the defendant-employees. It does not help them in the slightest. The LGTCA generally may help them, but the damages cap specifically does not. The defendant-employee is neither helped nor hurt by the damages cap per se. In this case, the damages cap did not reduce the award against Beall to $200,000. But for the remand for other purposes, the award against Beall
could stand at $3,505,000.
See Board of Education of Prince George's County v. Marks-Sloan,
428 Md. 1, 31, 50 A.3d 1137 (2012) ( " [L]ocal government employees are granted only an immunity from damages under the LGTCA." ); Smith v. Danielczyk, 400 Md. at 129-30 (Local government employees " may be sued, and judgments may be entered against them." ). The very existence of the damages cap, moreover, does not affect the existence of the employee's tort liability per se. It does not, moreover, affect the course of the trial. It is exclusively a post-trial phenomenon, affecting only the ability of a successful plaintiff to execute on a judgment.
The LGTCA damages cap exists solely for the benefit of the local government -- for the protection of the public fisc. It is indisputably, therefore, not the prerogative of the defendant-employee to waive the protection of the local government. It was obviously not the prerogative of Off. Beall to say to the [220 Md.App. 215] Baltimore City Police Department, " Although you are only required by the Maryland Legislature to stand behind me to the tune of $200,000, I am, by my passive non-assertion, abrogating your protection in that regard and subjecting you instead to an obligation of $3,505,000." Off. Beall quite obviously did not possess the authority to waive a ...