TIMOTHY BROOKS, ET AL.
ROGER JENKINS, ET UX
Appeal from the Circuit Court for Frederick County. Marielsa A. Bernard, Judge.
Argued by: Michael Rynd (Daniel Karp, Karpinski, Colaresi & Karp on the brief) all of Baltimore, MD for Appellant.
Argued by: Cary J. Hansel (Jarrod S. Sharp, Joseph, Greenwald & Laake, PA of Greenbelt, MD and Rebekah D. Lusk, Thienel Law Firm, LLC of Columbia, MD) all on the brief for Appellee.
Berger, Nazarian, Eldridge, John C. [*]
(Retired, Specially Assigned), JJ.
[220 Md.App. 448]
This case began as a seemingly simple arrest warrant, but went very wrong in the execution. Frederick County Sheriff deputies Timothy Brooks and Nathan Rector (the " Deputies" ) went to the home of
Roger and Sandra Jenkins, warrant in hand, to arrest their son. Mr. Jenkins answered the door and sought to cooperate, among other ways by moving the family dogs from the house to an outside kennel. The events that followed are a matter of considerable dispute, but the undisputed result was that Deputy Brooks shot and wounded their chocolate Labrador Retriever, Brandi. Then, when Mr. and Mrs. Jenkins left the house to take Brandi to the vet, the Deputies entered the house--contrary, Mr. Jenkins testified, to his express instructions--found the son hiding behind a door, and arrested him.
The Jenkinses filed a complaint in the Circuit Court for Frederick County seeking damages, on a number of theories, [220 Md.App. 449] for the wounding of the dog and the officers' alleged unlawful entry into their home. The counts in the complaint contain overlapping claims alleging both constitutional and common-law causes of action. After a trial, both the Jenkinses prevailed against both of the Deputies and the jury awarded damages totaling $620,000 (reduced, after remittitur, to $607,500). The Deputies appeal.
We conclude that the trial court properly permitted the Jenkinses' constitutional tort claims arising from the dog shooting to go to the jury and properly declined to apply Md. Code (1974, 2013 Repl. Vol.), § 11-110 of the Courts & Judicial Proceedings Article (" CJ" ), which caps recovery for tortious injuries to pets, to reduce the total available damages on those counts to $7,500. We find as well that the jury verdict on the shooting claims was not excessive. But we reach a different result for the trespass counts. We hold that the jury's finding that the Deputies acted with neither gross negligence nor malice entitled the Deputies to immunity on the Jenkinses' constitutional trespass claim. We also hold that the Jenkinses could not, as a matter of law, recover mental anguish damages, but could recover only nominal damages for common law trespass, even though the jury found on that count that the Deputies acted with gross negligence. We affirm in part, reverse in part, and remand.
A. Events at the Jenkins Home
On January 9, 2010, the Deputies went to the Jenkinses' home to serve a writ of body attachment on their eighteen-year-old son, Jared, in connection with an incident that took place while Jared was a minor. Deputy Brooks left his patrol car running, so the camera inside it kept recording.
[220 Md.App. 450] Mr. Jenkins woke up at about 7:00 a.m. to hear Deputy Brooks " banging" on the door. When Deputy Brooks told him the purpose of his visit, Mr. Jenkins responded that he didn't know whether Jared had come home the night before, but that before they spoke further, he would move the barking dogs from the house to an outdoor kennel. Mr. Jenkins walked out the rear of the house, apparently expecting the dogs to walk with him out the door, across the driveway, and to the garage. He headed to the back door with Brandi ahead of him by about six to eight feet. He did not put her on a leash; he explained in response to his counsel's question at trial that it did not occur to him that Brandi might act aggressively toward any officer:
It certainly didn't. If I . . . thought that . . . there was going to be any issues I
would not have let my dog just . . . walk out the door as I did, and there was no concern of mine that my dog was going to be shot, for one, or there's going to be [any] aggression.
When Mr. Jenkins saw Brandi turn the corner ahead of him, he called her to come. But as he walked up the side of the house, he heard a gunshot, and as he continued up the driveway, he realized that Deputy Brooks had shot Brandi. Mrs. Jenkins came out of the house and sat with Brandi while her husband went inside, got towels to put on Brandi, and called the vet.
Not surprisingly, Deputy Brooks's perspective differed greatly from Mr. Jenkins's. He testified that he backed away from Brandi, but she continued coming at him. Although Deputy Brooks agreed that the dog never got closer to him [220 Md.App. 451] than three feet away, he testified that he believed that she was on the attack:
[T]he dog was . . . barking loudly and coming in . . . a pretty determined pace. It was the sound of this dog as well as the sound that he was making on the inside [of the house previously], and the aggressive and agitated nature when I had seen him on the inside so I took a couple steps back at that point to create distance in case that dog came around the corner, and . . . came after me.
In response, Deputy Brooks pulled his gun from the holster and fired it in the direction of Brandi's chest.
About three-and-a-half minutes elapsed from the time Deputy Brooks knocked on the front door until he shot Brandi. About eight minutes later, Mr. and Mrs. Jenkins left to take Brandi to the vet. Mr. Jenkins testified that before they left, he instructed the Deputies (in more colorful language) not to enter his house.
Deputy Brooks, on the other hand, testified that he heard no such instruction. After Mr. and Mrs. Jenkins left, the Deputies awaited the arrival of their supervisor, Corporal Michael Easterday. As they waited, though, they decided that they should go inside because they had not yet secured the area and they " potentially [had an] unaccounted [for] wanted person right here." Deputy Rector went in and announced himself, and they located Jared behind a door. Corporal Easterday arrived, and a third deputy took Jared to patrol headquarters. Mr. and Mrs. Jenkins returned to the house during Brandi's surgery, and, according to Mr. Jenkins, " nothing seemed to be disturbed." Mr. Jenkins offered detailed testimony about picking up Brandi the next day, tending to her injuries, and the effect the incident has had on his family.
B. Pleadings and trial (through defendants' motions for judgment)
The Jenkinses filed suit in a twelve-count complaint on October 25, 2010. The following counts against Deputies Brooks and Rector survived pre-trial motions:
[220 Md.App. 452] Count 2: Trespass to Property (for entry into the home)
Count 3: Trespass to Chattel (for shooting Brandi)
Count 5: Violation of Md. Const. Art. 24 (for shooting Brandi)
Count 6: Violation of Md. Const. Art. 24 (for illegal entry into the home)
Count 7: Violation of Md. Const. Art. 26 (for illegal entry into the home)
Count 8: Intentional Infliction of Emotional Distress (for shooting Brandi)
At trial, the Jenkinses called various members of the family to testify, along with Deputies Brooks and Rector. The veterinarian who treated Brandi also testified.
At the close of the Jenkinses' case, the Deputies moved for judgment as a matter of law. They argued that Count 6 improperly sought recovery for the Deputies' trespass into the Jenkins house under Article 24 of the Maryland Constitution, when the proper claim existed only under Article 26 (on which Count 7 was premised). They argued that Article 24 applied to an allegedly improper use-of-force claim (and analogized to the Fifth Amendment to the United States Constitution), whereas Article 26 applied when an unlawful search was at issue (analogizing to the Fourth Amendment). According to [220 Md.App. 453] counsel, the " hallmark of liability under Article 26 is reasonableness[, w]hereas the hallmark of liability under Article 24 is . . . arbitrary capricious conduct, shocks the conscious [sic] conduct, um, abuse of governmental authority." The Deputies argued as well that the Jenkinses had failed to establish facts that would have permitted the jury to find that Deputy Brooks acted with gross negligence when he shot Brandi.
The court denied the motion as to both the trespass claims and to the claims arising from the shooting. The court likewise denied the State's motion for judgment with respect to the negligence claims. The defense did not present any witnesses. The jury deliberated for about four hours, then returned with a verdict that made the following findings and awards (which we have paraphrased from the long verdict form--the emphases are ours):
o Deputy Brooks " violated [the Jenkinses'] State constitutional rights" by shooting Brandi, and acted with gross negligence but without actual malice. (Questions 1-3; Count 5)
o Deputy Brooks " committed a trespass to chattels by shooting" Brandi, and acted with gross negligence but without actual malice. (Questions 10-12; Count 3)
o Deputy Brooks " violated [the Jenkinses'] State constitutional rights" by entering the home, but acted without gross negligence or actual malice. (Questions 4-6; Counts 6 & 7)
o Deputy Brooks trespassed onto the Jenkinses' property " by entry into the home," and acted with gross [220 Md.App. 454] negligence but without actual malice. (Questions 7-9; Count 2)
o For the shooting
-to Roger Jenkins:
$10,000 economic damages
$100,000 non-economic damages
-to Sandra Jenkins:
$10,000 economic damages
$100,000 non-economic damages
o For entry into ...