Caps & Immunities
damages cap). Such special treatment, however, comes at the expense of the general public’s civil right to fair and just compensation under the law. For politicians considering such a bill, the calculation is fraught with conflict, as the class that seeks special favor is both known and defined (and a potential source of support) while the class of citizens in the future who will be deprived of fair and just compensation is both unknown and impossible to define. Considered more broadly, any class of individuals or
entities can be favored with immunity legislation for any reason at all – ranging from the fact that they “do good things for others” to the fact that they raise money for political campaigns. Legislation designed to favor such individuals or entities with special immunity from liability should be viewed with extreme skepticism by any observer. Such enactments are pure “tort reform” – they abolish or limit the civil rights of an undefined and unspecified class of individuals. Tat is not a good thing. It is per se unfair. Te undefined class of victims – all Maryland citizens – typically will not even know that their rights are being abolished or limited when the legislature votes. By the time they are injured and a legislative immunity shuts the courthouse doors, it is too late. Extending the scope of the LGTCA (or the STCA) can
be considered merely a limited form of statutory immunity because, after all, proper compliance with the 180-day notice requirement will permit an injured victim to obtain justice (so long as justice does not entail more than $200,000.00 in total damages). A broad range of statutes grant immunities to favored classes of individuals or entities without the benefit of a notice provision to preserve the civil rights of an injured person.
Insidiously, each grant of legislative immunity
undermines institutional resistance to the next legislative grant of immunity. If the fiction of a “local government” label is granted to one private company, its competitors naturally will petition for equal treatment – which can even seem fair (when the rights of ordinary citizens are discounted or ignored). If the General Assembly were to grant a measure of immunity protection to conglomerates such as Verizon or Comcast,10
then what principled reasons exist for not
extending the same status to smaller private companies? Each grant of legislative immunity is another camel’s nose under the tent. While it may be easy to scoff at legislation seeking to extend governmental immunity – or a form of that immunity
10 Lest this example should seem hyperbolic, consider that representatives of giant media and communications companies – including Verizon and Comcast – have petitioned the General Assembly to expand the definition of “state employee,” Md. State Gov’t Code Ann. § 12-101(a), so that the SCTA (and, by extension, the State Treasury) would cover the liability of corporate employees for their own negligence. See, e.g., 2010 HB 1457; 2008 HB 1490; 2007 HB 491; and 2006 HB 389. In 2007, the measure passed both houses of the General Assembly by unanimous votes, but did not become law because the slightly different bills were not reconciled before Sine Die. See
http://mlis.state.md.us/2007RS/billfile/hb0491.htm.
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– to private companies, other forms of statutory immunity present thornier issues. Like most states, Maryland grants qualified immunity
from liability for “Good Samaritans” who voluntarily provide “assistance or medical aid to a victim at the scene of an emergency.”11
In this example, legislative immunity is
conferred upon a favored class of individuals whose actions are considered socially valuable, as a means to promote and encourage people to take such actions. Predictably, the Maryland Code also contains a variety of somewhat similar statutes that confer qualified immunity upon individuals whom the Legislature has determined contribute some value to society.12 Such statutory immunities are fraught with the same
political conflicts as extensions of the LGTCA or STCA – a known set of individuals seeking immunity are to be balanced against an unknown and undefined set of individuals whose civil
rights would be compromised in the future. Te
justification for immunity – that the conduct at issue has social value – provides legislators with tempting rationale for
granting immunity. 11 Md. Cts. & Jud. Procs. Code Ann. § 5-603. 12 See generally, Maryland Annotated Code, Courts and Judicial Proceedings Article, Title 5, Subtitle 6.
Examples include qualified statutory immunity for fire and rescue companies, §
5-604; arbitrators and mediators in medical malpractice actions, § 5-615; individuals who report suspected abuse or neglect, §§ 5-620, 5-622; donations of food to nonprofit entities, § 5-634; and the public use of restrooms reserved for retail employees, § 5-635.
Trial Reporter / Spring 2011 17
ECONOMIC VALUATIONS
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