Joseph STRACKE, et al.
ESTATE OF Kerry BUTLER, Jr., et al.
[Copyrighted Material Omitted]
Circuit Court for Baltimore City, Case No. 24-C-14-001249,
Althea M. Handy, Judge.
by Andre M. Davis, City Solicitor (Elizabeth Ryan Martinez,
Michael Redmond and Rachel Simmonsen, Asst. Solicitors,
Baltimore City Department of Law, Baltimore, MD), on brief,
by Alan J. Belsky (Thomas X. Glancy, Jr., Belsky, Weinberg &
Horowitz, L.L.C., Baltimore, MD), on brief, For
Counsel for Anne Arundel County, Maryland, Baltimore County,
Maryland, Harford County, Maryland, Howard County, Maryland,
Montgomery County, Maryland, and Prince George’s County,
Maryland in Support of Petitioners: Gary W. Kuc, County
Solicitor, Louis P. Ruzzi, Senior Assistant County Solicitor,
Cynthia G. Peltzman, Senior Assistant County Solicitor,
Melissa E. Goldmeier, Assistant County Solicitor, Howard
County Office of Law, Gregory J. Swain, Esquire, Acting
County Attorney, Michael E. Field, Esquire, County Attorney,
Historic Courthouse, Melissa Lambert, Esquire, County
Attorney, Rhonda L. Weaver, Acting County Attorney, Andrew J.
Murray, Deputy County Attorney, Marc P. Hansen, Esquire,
before: Barbera, C.J.,[*] Greene, McDonald, Hotten, Getty,
Booth, Alan M. Wilner (Senior Judge, Specially Assigned) JJ.
Md. 412] The Estate of Kerry Butler, Jr., Ms. Crystal Butler,
the widow of Kerry Butler, Jr., Vera Ganey, parent and
guardian of Kerry Butler, Jr.’s sole minor child, and Mr.
Kerry Butler, Sr., the father of Kerry Butler, Jr.
(collectively referred to as
"Respondents"), filed a wrongful death and survival
action in the Circuit Court for Baltimore City. Respondents
Baltimore City Fire Department medics, Joseph Stracke and
Stephanie Cisneros (collectively referred to as
"Petitioners"), were grossly negligent in their
treatment of Mr. Butler, and that their gross negligence
caused his ultimate demise.
Md. 413] After a jury found that Petitioners were grossly
negligent, the trial judge granted Petitioners’ Motion for
Judgment Notwithstanding the Verdict ("JNOV").
Respondents appealed to the Court of Special Appeals, which
reversed the trial court’s grant of JNOV on the basis that
Petitioners were grossly negligent and not entitled to
immunity under the Fire and Rescue Company Act, Maryland
Code, Courts & Judicial Proceedings ("Cts. & Jud.
Proc.") � 5-604(a). On appeal and cross-appeal, we are
asked to consider the following issues:
1. Does willful or gross negligence by an omission
defeat the immunity from liability granted to fire and rescue
personnel by the Maryland Fire and Rescue Company Act, Md.
Code, Courts & Judicial Proceedings � 5-604, or is the
immunity lost only by a willful or grossly negligent
2. Did CSA err in finding sufficient evidence that
Petitioners committed gross negligence that caused the death
of a patient, when undisputed evidence established that
Petitioners assessed the patient, including taking vital
signs, and within seven minutes transported the patient to
the hospital, where his condition suddenly worsened?
3. Does � 5-604 afford Petitioners, as employees of a fire
department, limited immunity against claims for simple
reasons outlined below, we conclude that Petitioners were not
grossly negligent in their treatment of Mr. Butler, and were
therefore afforded immunity under the Fire and Rescue Company
Act, Cts. & Jud. Proc. � 5-604(a). Because we hold that
Petitioners were not grossly negligent, we decline to address
the first issue presented. We further hold that [465 Md. 414]
Cts. & Jud. Proc. � 5-604(a) does, and continues to, grant
immunity against simple negligence claims to employees of a
fire department. Accordingly, we reverse the judgment of the
Court of Special Appeals.
FACTUAL AND PROCEDURAL BACKGROUND
after 1:00 a.m. on March 2, 2011, Mr. Butler woke his wife
allegedly complaining of chest pains. Earlier that evening,
Mr. Butler had eaten a spicy chicken sandwich and Oreo
cookies, and drank a Hawaiian punch beverage prior to going
to bed. Ms. Butler called 9-1-1 and reported that her husband
was experiencing chest pain and having difficulty breathing
and speaking. Ms. Butler helped dress Mr. Butler and assisted
him down the steps to
the first floor of their home to wait for the emergency
and Cisneros were dispatched to the Butlers’ home in response
to the 9-1-1 call for a reported chest pain emergency.
Stracke and Cisneros are both first responders, whose primary
responsibilities involve the assessment and transportation of
patients. Neither Stracke nor Cisneros are responsible for
diagnosing medical conditions. Petitioners arrived on the
Butlers’ street at approximately 1:18 a.m. Petitioners
experienced some difficulty locating the residence because
the relatively unlit street made it difficult to identify the
house numbers, and there had been inconsistencies between the
reported address and the actual location of the Butlers’
house. Due to the lack of lighting, Stracke
promptly exited the ambulance and walked along the street in
order to locate the correct house while Cisneros remained in
the ambulance. When Stracke reached Ms. Butler at the correct
address, around 1:20 a.m., he relayed his location to
Cisneros, who remained in the ambulance.
Md. 415] By the time Stracke reached the Butlers’ residence,
Ms. Butler was standing just outside the front door and Mr.
Butler was sitting in a chair just inside the house. At the
time, Mr. Butler was 28 years old, five feet and seven inches
tall, and approximately 245 pounds. Without entering the
house, Stracke asked in a loud voice "what seems to be
the problem." Ms. Butler responded that Mr. Butler had
told her that he thought he was having a heart attack.
According to Ms. Butler, Mr. Butler had his hand on his
chest. Stracke asked Mr. Butler "what’s going on my main
man[ ]" and Mr. Butler responded that "[his] right
side hurt." While standing in front of the Butlers’
residence, Stracke visually assessed Mr. Butler, in
accordance with relevant medical protocols, observing that he
was "a good shape gentleman[.]" Stracke expressed
the desire and need to bring Mr. Butler to the ambulance for
further evaluation and possible treatment.
Butler then claimed that Mr. Butler stood up and staggered
the short distance to the ambulance, approximately 30-40
feet, without the aid of Stracke or a stretcher. Stracke,
however, claimed that he instructed Mr. Butler to wait while
he retrieved a stretcher, but Mr. Butler declined, stating
that he was "ready to go" and began walking to the
ambulance on his own accord. Stracke quickly signaled to
Cisneros prior to escorting Mr. Butler from his residence to
the ambulance, and Cisneros promptly exited the ambulance
with a medical bag and oxygen bottle in order to fully and
properly assess Mr. Butler’s condition.
Cisneros performed a visual assessment of Mr. Butler as he
approached the ambulance. Ms. Butler stated that Mr. Butler
was staggering as he walked to the ambulance, while Cisneros
observed that Mr. Butler was taking "perfectly
normal" steps and did not appear to be in need of any
assistance. According to Petitioners, Mr. Butler entered the
ambulance unassisted and without difficulty. When Cisneros
asked Mr. Butler what was going on, Mr. Butler responded that
his throat was burning (he was holding his hand to his
throat) and that he had "[c]hest heartburn."
Although Cisneros recorded this symptom as "chest
hurt" in Mr. Butler’s chart, she explained [465 Md. 416]
that this was primarily due to a lack of accurate options
that were provided from a drop-down menu on the form.
the ambulance, Stracke took Mr. Butler’s blood pressure,
heart rate, and blood oxygen level, while Cisneros recorded
these measurements in Mr. Butler’s chart. Cisneros also
checked Mr. Butler for reproducible pain under his right arm
(there was none), felt his pulse, checked his pupils, looked
at his skin, and listened to his lungs, which were
"perfectly clear." All of Mr. Butler’s vitals
appeared to be baseline, indicating that he was in stable
Petitioners determined that Mr. Butler should be transported
to the nearest hospital, Harbor Hospital, which was less than
a mile away. Around 1:24 a.m., approximately seven minutes
after first arriving on the Butlers’ street, Petitioners and
Mr. Butler departed for the hospital, with Stracke driving
the ambulance and Cisneros remaining with Mr. Butler in the
rear of the ambulance. Stracke explained that at this time,
it was Petitioners’ priority "to deliver a viable
patient to appropriate definitive care, here Harbor Hospital,
as soon as possible[.]" According to Cisneros, Mr.
Butler was seated in a "position of comfort" and
"very pleasant" and "very chatty" during
the drive to the hospital. The ambulance arrived at Harbor
Hospital approximately three minutes later, around 1:27 a.m.
Stracke immediately retrieved a wheelchair for Mr. Butler,
who exited the ambulance unassisted but without difficulty,
and sat in the wheelchair. Stracke pushed Mr. Butler directly
into the emergency room while Cisneros alerted hospital staff
that Mr. Butler "had a burning in his throat."
Stracke waited with Mr. Butler in the emergency room for
hospital staff to triage Mr. Butler. While waiting in the
emergency room, a hospital technician observed Mr. Butler
holding his chest and complaining that his chest hurt. The
hospital technician observed this happening for another five
to ten minutes, with Mr. Butler’s voice growing louder as the
time passed. After waiting in the emergency room for
approximately ten minutes, Mr. Butler became unconscious and
began to slide out of his wheelchair. Stracke prevented Mr.
Butler’s [465 Md. 417] head from striking the floor as he
slid out of the wheelchair. Cisneros observed Mr. Butler’s
condition and called for a nurse and doctor, who took Mr.
Butler to a code room with the assistance of Stracke. After
Mr. Butler was taken to the code room, and while he was
receiving treatment from hospital staff, Petitioners left the
hospital and went back on service to prepare for the next
potential dispatch call.
the hospital staff’s efforts, Mr. Butler could not be
resuscitated and ultimately died. At the time of his death,
doctors were unable to identify Mr. Butler’s cause of death.
Following an autopsy, the medical examiner concluded that Mr.
Butler died of a myocardial infarction, more commonly known
as a heart attack.
Trial in the Circuit Court for Baltimore City
filed a wrongful death and survival action against
Petitioners, and the Mayor and City Council of Baltimore
("the City") in the Circuit Court for Baltimore
City. Before commencement of trial, the City
moved that the circuit court determine whether it was immune
from suit under the doctrine of governmental immunity, and
Petitioners moved that the circuit court determine whether
the Fire and Rescue Company Act, Md. Code, Cts. & Jud. Proc.
� 5-604(a) granted them civil immunity in the absence of any
willful or grossly negligent act. The circuit court
answered both questions in the affirmative, entering judgment
in favor of the City due to its governmental
immunity. The suit against Petitioners proceeded
to trial to determine whether Petitioners acted in a willful
or grossly negligent manner.
close of Respondents’ case, Petitioners moved for judgment on
the ground that Respondents "ha[d] not proved that
either [Petitioner], Stracke or Cisneros, was grossly [465
Md. 418] negligent by a preponderance of the
evidence[.]" The circuit court denied Petitioners’
motion. Petitioners renewed their motion, on the same ground,
at the close of all of the evidence, which the circuit court
reserved ruling on until after the jury returned its verdict.
Following deliberations, the jury found Petitioners were
grossly negligent in the treatment of Mr. Butler, that this
gross negligence caused Mr. Butler’s death, and accordingly,
awarded Respondents $3,707,000. Following the announcement of
the jury’s verdict, Petitioners moved for a JNOV on the same
grounds advanced in their earlier motions for judgment. The
circuit court granted Petitioners’ motion, concluding that
Respondents’ evidence of gross negligence was insufficient.
Judgment in favor of Petitioners was entered by the circuit
court on March 21, 2016.
Appeal to the Court of Special Appeals
filed a timely appeal to the Court of Special Appeals, and
Petitioners filed a timely cross-appeal. Estate of Kerry
Butler, Jr., et al. v. Joseph Stracke, et al., No. 238,
2018 WL 4761044 (Md. Ct. Spec. App. Oct. 1, 2018). The Court
first determined that the circuit court erred in granting
Petitioners’ JNOV because "significant evidence existed
to show that [Petitioners] acted grossly negligent."
Id. at *4. Because there was sufficient evidence of
gross negligence, the Court reversed the circuit court’s
grant of Petitioners’ JNOV, and ordered the circuit court to
reinstate the jury’s verdict in favor of Respondents. Next
the Court explained that, because it was [465 Md. 419] bound
by Court of Appeals’ precedent in Mayor & City of
Baltimore v. Chase, 360 Md. 121, 756 A.2d 987 (2000),
the Fire and Rescue Company Act affords immunity in simple
negligence cases to municipalities and their employees, not
just volunteers. Id. at *6-7.
Judge Lawrence F. Rodowsky, sitting specially assigned,
dissented from the panel’s majority opinion, citing "the
breadth of the grant of immunity to members of the fire and
rescue companies as recognized by [the Courts’] cases and,
ultimately, as conferred by [the Fire and Rescue Company
Act]." Id. at *10 (Rodowsky, J., dissenting).
After assessing the evidence that was submitted at trial,
Judge Rodowsky determined that the "evidence may or may
not be sufficient to support a finding of negligence, but it
is not evidence of gross negligence." Id. at
*11. Judge Rodowsky also observed that even "if there is
willful or gross negligence by an
omission, the immunity [provided by Md. Code, Cts. & Jud.
Proc. � 5-604(a)] is not lost." Id. at *13.
Section 5-604(a) of Cts. & Jud. Proc., first introduced as
Senate Bill 731 in the 1983 General Assembly session,
originally read: "A volunteer fire company is immune
from liability in the same manner as a local government
agency for any act or omission in the course of performing
its duties if ... [t]he act or omission is not one of gross
negligence." However, according to Judge Rodowsky, the
General Assembly’s removal of "omission" evidenced
its intent to only withhold immunity for grossly negligent
acts, not grossly negligent
omissions. Id. at *13 (citing
Chapter 546 of the Acts of 1983). Because Petitioners’ gross
negligence was based on their failure to properly question
and examine Mr. Butler - i.e., a failure to act -
Judge Rodowsky concluded that Petitioners’ immunity under the
Act was not defeated by their alleged grossly negligent
omissions from action. Id.
filed a timely petition for certiorari before this
Court, and Respondents’ filed a timely cross-petition. We
granted certiorari on both Petitioners’ petition and
Respondents’ cross-petition. Stracke, et al. v. Estate of
Butler, Jr., et al., 462 Md. 556, 201 A.3d 1228 (2019).
Md. 420] STANDARD OF REVIEW
review a grant or denial of a motion for JNOV for legal
correctness, by "viewing the evidence and the reasonable
inferences to be drawn from it in the light most favorable to
the non-moving party, and determining whether the facts and
circumstances only permit one inference with regard to the
issue presented." Cooper v. Rodriguez, 443 Md.
680, 706, 118 A.3d 829, 844 (2015) (quoting Scapa Dryer
Fabrics, Inc. v. Saville, 418 Md. 496, 503, 16 A.3d 159,
163 (2011)). Gross negligence is a question of law "when
reasonable [people] could not differ as to the rational
conclusion to be reached." Romanesk v. Rose,
248 Md. 420, 423, 237 A.2d 12, 14 (1968). "[I]f there is
no rational ground under the law governing the case for
upholding the jury’s verdict, [JNOV] must be granted."
Bell v. Chance, 460 Md. 28, 52, 188 A.3d 930, 944
(2018). In this context, if the non-moving party has offered
sufficient evidence, so as reasonable minds might differ,
that the moving party engaged in a grossly negligent manner,
the motion for JNOV should be denied. See Barnes
v. Greater Balt. Med. Ctr., Inc., 210 Md.App. 457, 480,
63 A.3d 620, 634 (2013).
Petitioners were not grossly negligent in their treatment
of Mr. Butler.
"Issues involving gross negligence are often more
troublesome than those involving malice because a fine line
exists between allegations of negligence and gross
negligence." Barbre v. Pope, 402 Md. 157, 187,
935 A.2d 699, 717 (2007). Ordinary, simple negligence is
"any conduct, except conduct recklessly disregardful of
an interest of others, which falls below the standard
established by law for protection of others against
unreasonable risk of harm." Id. On the other
hand, this Court has explained that "gross negligence is
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 [465 Md. 421] them." Id. We have made
clear that a claim for gross negligence "sets the
evidentiary hurdle at a higher elevation[.]" Beall
v. Holloway-Johnson, 446 Md. 48, 64, 130 A.3d 406, 415
"[A] wrongdoer is guilty of gross negligence or acts
wantonly and willfully
only when he inflicts injury intentionally or is so utterly
indifferent to the rights of others that he acts as if such
rights did not exist." Barbre, 402 Md. at 187,
935 A.2d at 717.
Gross negligence is not just big negligence.
For these purposes, gross negligence "must be sufficient
... to establish that the defendant ... had a wanton or
reckless disregard for human life .... Only conduct that is
of extraordinary or outrageous character will be sufficient
to imply this state of mind."
Thomas v. State, 237 Md.App. 527, 537, 186 A.3d 857,
863 (2018), rev’d, State v. Thomas, 464 Md.
133, 211 A.3d 254 (2019) (quoting State v. Kramer,
318 Md. 576, 590, 569 A.2d 674, 681 (1990)) (emphasis added).
Beall, we considered, inter alia, whether
there was sufficient evidence to support a finding of gross
negligence against a police officer whose cruiser collided
with a fleeing motorcyclist during a high-speed chase, and
which resulted in the death of the motorist. 446 Md. at
57-62, 130 A.3d at 411-14. We reiterated that a claim of
gross negligence must be supported by sufficient evidence
that the defendant "acted with ‘wanton or reckless
disregard for the safety of others[.]’ " Id. at
64-65, 130 A.3d at 415 (quoting Boyer v. State, 323
Md. 558, 580-81, 594 A.2d 121, 132 (1991)). Even given this
objectively higher threshold assigned to proving gross
negligence, our opinion in Beall morphed the
distinctions between simple and gross negligence by holding
that "a legally sufficient case of ordinary negligence
will frequently be enough to create a jury question of
whether such negligence was or was not gross."
Id. at 64, 130 A.3d at 415.
decline to further muddy this already unclear area of law. If
in almost all instances where a plaintiff can prove [465 Md.
422] negligence, and the case is submitted to the jury to
consider gross negligence, then many first responders will be
stripped of the protective shield that the immunity was
intended to provide, forcing them to go through the entire
litigation process when there is only evidence of simple
negligence. This result runs contrary to the heightened
threshold of gross negligence we have articulated, and in
many cases, gross negligence will be treated as "just
big negligence." See Thomas, 237
Md.App. at 537, 186 A.3d at 863.
evidence submitted at trial of Petitioners’ actions, or
failures to act, while potentially sufficient to establish
simple negligence, was not sufficient to establish gross
negligence, even when taken in the light most favorable to
Respondents as the non-moving party. See Cooper
v. Rodriguez, 443 Md. 680, 706, 118 A.3d 829, 844
(2015). Respondents point out that "if a trier of fact
disbelieves part or all of a witness’ testimony, that
discredited testimony is assigned no weight and plays no role
in the consideration of the ultimate issue." Grimm
v. State, 447 Md. 482, 506, 135 A.3d 844, 858 (2016).
However, "disbelief is not evidence in and of
itself." Id. Even given this principle, there
is not sufficient evidence to conclude that Petitioners made
a deliberate and conscious choice to not help Mr. Butler
survive. Assuming the facts as they were presented by
Respondents, as the non-moving party, Petitioners still
responded to Mr. Butler’s 9-1-1 call, provided him with
immediate attention and treatment, and transported him to the
nearest hospital in under ten minutes.
Tatum v. Gigliotti, the Court of Special Appeals
concluded that a paramedic who failed to properly diagnose a
medical condition and administer proper treatment, eventually
leading to the patient’s death, did not perform his duties in
a grossly negligent manner. 80 Md.App. 559, 569, 565 A.2d
354, 358-59 (1989).
There, the medic attempted to put a paper bag over the
patient’s face, believing that he was suffering from
hyperventilation. Id. at 562, 565 A.2d at 355.
However, the patient was actually suffering from a severe
asthma attack. Id. The medics escorted the patient
to the ambulance, but did not [465 Md. 423] transport him on
a stretcher. Id. While in the ambulance and en route
to the hospital, the patient slid from his seat and fell onto
the floor of the vehicle. Id. An emergency room
nurse testified that when the patient arrived at the
hospital, he was in cardiac arrest. Id. at 563, 565
A.2d at 355. The patient ultimately died from a lack of
oxygen. Id. The Court of Special Appeals reasoned
that, even considering these facts in the light most
favorable to the plaintiff, "[t]he evidence in [the]
case indicated that although the actions of [the medic] may
have amounted to negligence, they [did] not satisfy the
threshold of gross negligence." Id. at 569, 565
A.2d at 358.
in McCoy v. Hatmaker, the Court of Special Appeals
concluded that a paramedic’s failure to follow medical
protocol and subsequent erroneous medical judgment was not
sufficient to establish gross negligence. 135 Md.App. 693,
707-08, 763 A.2d 1233, 1241 (2000). There, paramedic Billie
Hatmaker diagnosed the patient, William McCoy, as dead after
observing him unconscious, having unresponsive eyes, a
significantly lowered body temperature, and having already
released bodily fluids. Id. at 699-702, 763 A.2d at
1236-38. Instead of performing advanced life support
procedures, Hatmaker proceeded to fill out a Maryland
Ambulance Information Sheet and called the police and medical
examiner. Id. at 702, 763 A.2d at 1237-38. McCoy
alleged that Hatmaker breached his duty of care to McCoy by
failing to provide appropriate resuscitative medical
treatment and by violating relevant Maryland State Protocol
and Emergency Medical Technician/Paramedic Guidelines.
Id. at 701-02, 763 A.2d at 1238. The Court of
Special Appeals disagreed, reasoning,
we cannot equate a well-intended error in medical judgment -
even if it costs the patient’s life - with wanton and
reckless disregard for the life of that patient. Medical
protocols seek to establish best practices for successfully
treating certain conditions. Failure to follow such protocols
might sometimes be deliberate, but more often than not, we
believe, such failure to heed them during an emergency would
be purely accidental and, therefore, at most simple
negligence. Even resolving all inferences in [McCoy’s] favor,
[465 Md. 424] the undisputed facts here simply do not show
that Hatmaker’s failure falls into the former category.
[McCoy] cannot point to any facts that show he made
a delibera ...