Argued: June 3, 2015
Circuit Court for Baltimore City Case No. 24-C-06-004331
Barbera, C.J., [*]Harrell Battaglia Greene Adkins McDonald Watts, JJ.
Gross negligence has been defined as, among things, "an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them." Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699, 717 (2007) (citations omitted). This case concerns the brutal murder of an inmate by another inmate during a ride on a prison transport bus that was staffed by five correctional officers. At core, the issue is whether the correctional officer who was in charge of the bus was grossly negligent and, if so, whether he is entitled to common law public official immunity.
We hold that: (I) the trial court erred in striking the jury's finding of gross negligence by the correctional officer and in concluding that the correctional officer was entitled to immunity under the Maryland Tort Claims Act ("the MTCA"), Md. Code Ann., State Gov't (1984, 2014 Repl. Vol.) ("SG") § 12-101 to 12-110; and (II) the correctional officer was not entitled to common law public official immunity, not because the correctional officer owed a duty arising out of a special relationship with the inmates in his custody, but instead because entitlement to common law public official immunity is limited by gross negligence; i.e., gross negligence is an exception to common law public official immunity. Thus, here, having acted with gross negligence, the correctional officer is not entitled to immunity under the MTCA or common law public official immunity.
In the early morning hours of February 2, 2005, inmate Kevin G. Johns, Jr. ("Johns") murdered fellow inmate Philip E. Parker, Jr. ("Parker"), in plain sight of other inmates and correctional officers, while the two were traveling together on a prison transport bus with thirty-four other inmates and five correctional officers.
On May 15, 2006, in the Circuit Court for Baltimore City ("the circuit court"), Melissa Rodriguez and Philip E. Parker, Sr., Parker's parents (together, "Respondents") sued: the State of Maryland; the Secretary of the Maryland Department of Public Safety and Correctional Services ("DPSCS"); the Commissioner of the Division of Correction; the Warden of the Maryland Correctional Adjustment Center ("Supermax"); and the five individual correctional officers who staffed the prison transport bus on February 2, 2005- Larry Cooper ("Cooper"), Petitioner, Robert Scott ("Scott"), Kenyatta Surgeon ("Surgeon"), Earl Generette ("Generette"), and Charles Gaither ("Gaither"). The complaint contained six counts: (1) a claim under 42 U.S.C. § 1983 for violating Parker's rights under the Eighth and Fourteenth Amendments to the United States Constitution; (2) a claim for violating Parker's rights under Articles 24 and 26 of the Maryland Declaration of Rights; (3) wrongful death; (4) survival action; (5) assault and battery against the five individual correctional officers concerning their actions after the prison transport bus arrived back at Supermax; and (6) funeral expenses.
On October 11-14, 17-21, and 24, 2011, the circuit court conducted a jury trial. At trial, evidence of the following facts was adduced.
Initial Transport and Johns's Sentencing
Before murdering Parker, Johns had been convicted of murdering his uncle;sentenced to life imprisonment, with all but thirty-five years suspended; and sent to the Maryland Correctional Institution in Hagerstown, Maryland ("Hagerstown Correctional Institution"). Later, while incarcerated at Hagerstown Correctional Institution, Johns murdered a cellmate,  and was transferred from Hagerstown Correctional Institution to Supermax. On February 1, 2005, four inmates who were incarcerated at Supermax- including Parker, Johns, Bradford Diggs ("Diggs"), and James Folk ("Folk")-were transported by bus to the Circuit Court for Washington County to participate in the hearing on Johns's sentencing. Parker, Diggs, and Folk testified on Johns's behalf. At the sentencing hearing, Parker testified that Johns was "paranoid[, ]" had "a really, really short temper, " and became "very easily irritated and agitated[.]" The Circuit Court for Washington County sentenced Johns to life imprisonment, without the possibility of parole.
Two guards from Hagerstown Correctional Institution, Bradley Hott ("Hott") and Hunter Vest ("Vest"), submitted reports in connection with an internal investigation conducted after Parker was murdered, detailing Johns's conduct before, during, and after the sentencing hearing. Hott and Vest had transported the four Supermax inmates between Hagerstown Correctional Institution and the Circuit Court for Washington County for Johns's sentencing hearing. According to Hott, after being sentenced, Johns "began to laugh[, ]" and later commented that "the killing had just begun." According to Vest, upon being sentenced, Johns said: "'Gonna be trouble when I get back to Baltimore. They think it[']s bad now, the killing has just begun. I'll be back in court for these charges the rest of my life. They will have to put me to death to end this.'" Prior to Parker's murder, neither Hott nor Vest reported Johns's comments to their supervisor because both believed that such comments were not "uncommon for an inmate in [Johns's] situation." Nor were Johns's comments reported to the transportation team from Baltimore when it arrived to transport the Supermax inmates back to Baltimore.
The Bus and Transport back to Supermax
After Johns's sentencing, Johns, Parker, Folk, and Diggs were transported to the Hagerstown Correctional Institution to await transport to Supermax on the Maryland Reception, Diagnostic and Classification Center ("MRDCC")'s Central Transportation Unit Bus #2809 ("the bus"). The bus was a "relatively new" Bluebird bus, modified to be a "mobile prison" for the transport of prisoners. The bus consisted of three locked compartments that were separated by steel grillwork and Plexiglas. Three secured passenger sections were in the middle of the bus. In the front and rear of the bus, there were two securable officer compartments. At the front of the bus, there were three seats- one for the driver, an adjacent front passenger seat, and one seat behind the driver's seat. Behind those three seats were two protective custody cages, one directly behind the driver and one directly across the aisle from the driver's side cage behind the front passenger seat. At the rear of the bus, directly behind the last secured passenger section, there was an elevated cage containing two seats for officers, to permit a good view of the interior of the bus. The elevated cage was separated from the passenger section by Plexiglas and wire mesh caging, which was porous to permit sight and sound. The two officer compartments were separated from the passenger compartment by padlocked doors; the locks on the compartments were designed so that officers in the rear elevated cage could enter the passenger compartment during an emergency.
The bus was staffed by five correctional officers. Cooper was the Officer in Charge. Gaither was the driver. Surgeon and Generette sat in the front of the bus. Scott and Cooper sat in the rear elevated cage, approximately seven and one-quarter feet from Parker, who was sitting next to the window in the second-to-last bench in front of the elevated cage. As the Officer in Charge, Cooper was required to sit at the front of the bus and was disallowed from being the bus driver; Cooper later stated that he "never knew" that, as the Officer in Charge, he was required to ride in the front of the bus. Under a Division of Correction policy concerning "Post Orders: Escort and Transportation Procedures"-applicable to MRDCC, the post to which the five correctional officers were assigned-the correctional officers were to be "alert and observant at all times" and to "display initiative[ and] good judgment[.]" And, under a Division of Correction policy concerning "Escort and Transportation of DOC Inmates, " applicable to MRDCC, the correctional officers were to report any unusual occurrences to the Officer in Charge.
On the morning of February 2, 2005, Johns, Parker, and thirty-four other inmates, boarded the bus. Although DPSCS policy required that there be "[a]t least two armed escort officers  assigned to transport each" Supermax inmate, and although there were four Supermax inmates on the bus, only five correctional officers staffed the bus. Before boarding the bus, the inmates were strip searched and secured in three-point restraints, which consisted of handcuffs, leg irons, and a waist restraint chain, secured by a metal box and a padlock; the waist chain was to be wrapped snugly around an inmate's torso and secured by the metal box and padlock, resulting in the inmate's hands and forearms being unable to be moved from the inmate's upper abdomen and lower chest. One of Surgeon's responsibilities was to apply the three-point restraints on Johns. It was later discovered that Surgeon improperly placed the three-point restraint device on Johns, such that it was loose; Johns's waist chain was loose and hanging down, permitting Johns to move his hands and forearms away from his upper abdomen and lower chest. As the Officer in Charge, Cooper was responsible for ensuring the three-point restraints were properly secured; Cooper, however, was not aware that he was supposed to check the restraints, and he failed to do so.
Once on the bus, the four Supermax inmates seated themselves on two benches at the rear of the bus, directly in front of the elevated officers' cage. Johns and Folk sat on the last bench directly in front of the elevated officers' cage, and Parker and Diggs sat directly in front of Johns and Folk. Both Johns and Parker were in window seats; thus, Johns sat directly behind Parker. This seating arrangement violated DPSCS policy, under which Supermax inmates were to ride in the protective custody cages located at the front of the bus, or, absent space in a protective custody cage, Supermax inmates were to be placed in the front of the bus. The two protective custody cages at the front of the bus were otherwise occupied-one by an immigration detainee who was required to ride separately from the State prisoners, and the other by an inmate who had requested to be segregated from the four Supermax inmates because he was afraid of them. In a deposition excerpt read to the jury, when asked about the seating arrangements on the bus, Cooper testified that he "did the best [he] could with what [he] had."
At approximately 2:48 a.m., the bus departed for Supermax. At some point during the trip, Johns got up from his seat, reached over the seat in front of him, hooked his arm around Parker's head from behind, pulled Parker's head over the back of the seat, and began choking Parker with his arm. Eventually, Johns released Parker, thinking that Parker was dead. At some point, Diggs, who was sitting next to Parker, got up from his seat and moved to a vacant seat across the aisle, leaving the space next to Parker empty. Although it was a violation of policy for inmates to get up and move around the bus, none of five correctional officers took any action. After the initial choking, Parker started to move and snore or breathe heavily. Johns got up, moved into the seat next to Parker (which had been vacated by Diggs), and began choking Parker again. During the attack, Johns pulled down on Parker's head while Parker tried to push up, and Johns held Parker's head while turning his body toward the aisle of the bus, "trying to snap [Parker's] neck off." Johns said, among other things, "this is what I do best." Johns cut Parker's neck with a razor blade that had been smuggled onto the bus, and Parker yelled loudly. After the second round of choking, Johns stuffed Parker's limp body between the two seats. There was blood on top of the back of the seat and Johns was covered in a large amount of blood. This brutal two-part attack occurred approximately seven and one-quarter feet from where Cooper was seated in the rear elevated cage, yet Cooper -who was required to be "alert and observant at all times"-claimed not to have witnessed the occurrence.
Accounts of Parker's Murder
Patrick Cook ("Cook"), an inmate who was sitting in the last seat on the left-hand side of the bus directly in front of Scott and Cooper, testified at a motions hearing in the criminal case against Johns for Parker's murder that he could see the attack. Excerpts of the transcript of Cook's testimony, admitted into evidence at trial, provided the following description of the murder:
[PROSECUTOR:] How could you see what happened if it was dark?
[COOK:] Because I could see by the, you know, it wasn't really cloudy out or anything. It was just, you know, if I remember correctly, the skies were fairly clear and it was starry. And at certain overpasses there's, you know, lights that shine in the bus windows.
[PROSECUTOR:] Okay. Can you explain to me what you observed [Johns] do and where those acts occurred?
[COOK:] As we were coming down Route 70, right as we got past where Route 40 splits off of Route 70 coming in Marriottsville -- where Marriottsville Road is, [Johns] and [Parker] were -- they were talking all the way down the road.
When we got to where Marriottsville Road is, there's a bridge right between where Route 40 splits off and Marriottsville Road is and there's a slight bend there.
[Johns] stood up and used his arm to hook [Parker] and pull his head back over the seat in front of him and kept pressure on him the whole time, and choking him out.
He held him until we got roughly to where Route 29 is, when [Parker] stopped moving around. Once we crossed over the bridge at the Patapsco River, [Johns] got up out of the seat that was in front of me and moved up into the same with [Parker] and grabbed ahold of him again, because [Parker] started to move.
And, again, clutched him with his arm and choked him out. By the time we reached the Baltimore Beltway, [Parker] wasn't moving anymore, and when we got down to the park and ride, [Parker] wasn't moving at all.
I saw that when [Johns] got up out of the seat to move up into the seat with [Parker], the man that was sitting in the seat with [Parker] got up and slid back to the seat that's directly across from me, because there was only one inmate in that seat.
As [Johns] was getting up, the boy that was sitting in the seat with [Johns] handed him razor blades. He spit them out of his mouth and handed them to [Johns].
And then, as I said, as [Johns] got up and got in the seat with the victim, he was choking him out, he used the razor blades to cut his neck.
And the whole time all of this was going on, he was saying, this is what I do best. This makes my d hard.
By the time we come around out of the park and ride on to the exit to go on to Cooks Lane, the [Division of Correction] officers flipped the lights on in the bus to see what was going on.
At that time [Johns] had [Parker] pushed down in between the seats where he couldn't be seen and he -- the boy that was sitting directly in front of me slid to the middle of the seat to block the view of the  officers in the back of the bus.
In an interview with law enforcement officers one week after the murder, Johns confessed to the murder; his confession corroborated Cook's account of the murder and excerpts of the interview were admitted into evidence. According to Johns, he choked Parker with his arm, but let Parker go because he thought Parker was dead. Johns acknowledged that when he started choking Parker, Parker tried to yell for help, but "[i]t was pointless." Johns heard Parker snoring or breathing heavily, and he "went around[, ]" and cut Parker's neck with a razor. At that point, Parker "yelled real loud[.]" Johns held Parker's head in his arm and was holding Parker while turning his body toward the aisle, "trying to snap [Parker's] neck off." According to Johns, during the attack, Parker tried to wiggle around and "push up" while he was "pulling down[.]" Johns stated that he knew Parker "was trying to push his head up, which was stupid now that [he] th[ought] about it."
In an expert witness report, Dr. John E. Adams described the method in which Johns accomplished Parker's murder:
The strangulation was accomplished with a 'choke hold, ' by placing the left arm around  Parker's neck from behind and compressing the larynx and/or trachea. The pressure could be increased by pulling the left arm to the rear with the right hand grasping the left wrist. . . .
If the choke hold is released prematurely, allowing the victim to resume breathing, he may regain partial consciousness before the heart succumbs to a lack of oxygen and cardiac arrhythmia or arrest occurs. Apparently, this happened, because it was reported that when  Parker was released, he began to make snoring noises, the result of breathing through a damaged airway. This prompted [Johns] to change his position and reapply pressure on the neck in an unknown manner.
The Correctional Officers' Accounts
In contrast to Cook's testimony, all five correctional officers-including Cooper, who was approximately seven feet from where the attack occurred-alleged that they did not see Johns's attack on Parker.
Scott, who was sitting in the rear elevated cage next to Cooper, testified as follows. Scott saw Johns move to the seat in front of him. Scott knew that inmates were not allowed to change seats, but did not think that he could do anything about it. Scott saw Johns lean towards the window, but could not see what Johns was doing. Scott used the bus telephone to contact Generette, who was at the front of the bus. Scott, Cooper, and Generette shone their flashlights, but Scott still could not see what Johns was doing. Although he could not see anything, Scott told Generette that the officers should "go into the back [of the bus] as a team" when they arrived at Supermax "[b]ecause [he] didn't know if the inmates back there were planning something or if they were already doing something in the back." At a deposition, excerpts of which were read to the jury, Scott testified that he could not "remember what [Cooper] was doing" prior to Johns standing up, but stated that Cooper "might have been eating" or "could have been" sleeping.
Generette testified as follows. Generette was sitting in the front of the bus. Generette received a call from Scott on the bus telephone telling him that Johns had gotten up and moved around. Generette had Gaither turn on the bus's lights. Generette saw Johns sitting and looking up at the ceiling. According to Generette, once the officers "found out that something might have happened [they] speeded up the process." Indeed, Generette acknowledged later telling the internal investigator that "we just put the pedal to the metal and we tried to get to [Supermax] as fast as we could."
Gaither, the driver, testified that during the drive back to Supermax, he received a message from Generette to turn the bus's lights on because "Scott said he saw something going on in the back of the" bus. Gaither turned the lights on, but Generette said that he could not see anything, and Gaither turned the lights back off. Gaither then "picked the pace up a little bit" and continued driving to Supermax.
Cooper, who was seated next to Scott in the rear elevated cage and who was the Officer in Charge during that trip, testified that he did not see anything unusual and was unable to explain why he did not see anything. On direct examination, the following exchange occurred:
[THE STATE'S COUNSEL:] Now at that time, early February of 2005, was it the practice to drive to Baltimore with interior lights on or off?
[COOPER:] No, it was never the practice to drive back with -- with the lights on. It was always off unless you had reason to turn them on they stayed off.
[THE STATE'S COUNSEL:] With the lights off were you able to see into the rear compartment?
[COOPER:] You could not see clearly, but you could just see images of people. You couldn't see exactly who it was or, you know, pretty much what was going on.
* * *
[THE STATE'S COUNSEL:] . . . [I]n looking into the rear compartment of the bus, were you able to see silhou[e]ttes of persons?
[THE STATE'S COUNSEL:] Were you able to see person's movements?
[COOPER:] It's -- sometimes. It depends on actually where you were on Route 70 coming back down because it's -- there's no lights on the highway there and it's -- when it's pitch black it's dark.
[THE STATE'S COUNSEL:] Did you have flashlights?
[COOPER:] Yes, we did carry flashlights.
On cross-examination, Cooper was questioned about his observations on the bus ride, and the following colloquy occurred:
[RESPONDENTS' COUNSEL:] . . . Were you aware that the officers on the bus, including yourself were to remain alert and observant at all times and report any unusual occurrences to the O[fficer in Charge]?
[RESPONDENTS' COUNSEL:] And Officer Scott reported to you that something had happened; did he not?
[COOPER:] He reported that he saw something.
[RESPONDENTS' COUNSEL:] Unusual?
[RESPONDENTS' COUNSEL:] Did you ask him what he saw?
[COOPER:] I believe I did. Whatever was in my report.
[RESPONDENTS' COUNSEL:] What did he tell you that he saw?
[COOPER:] I don't remember at this time.
[RESPONDENTS' COUNSEL:] What did you do as a result of him telling you that he saw something?
[COOPER:] I think we turned -- whatever he told me I think we turned the lights on and checked.
[RESPONDENTS' COUNSEL:] And at that point you now know the person to be  Johns had ...