Caps & Immunities
B. The Common Law Public Official Immunity Defense
Said doctrine emanates from Section 5-507 of the
Courts and Judicial Proceedings Article. Said section states in pertinent part:
b. Non-liability of officials generally; torts involving motor vehicles. 1. An official of a municipal corporation, while acting in a discretionary capacity,
without
malice, and within the scope of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action.
2. An official of a municipal corporation is not immune from liability for negligence or any other tort arising from the operation of the motor vehicle except as to any claim for damages in excess of the limits of any applicable policy of motor vehicle liability insurance.
Maryland Code, Courts Article, 5-507 (1990, 2006 Repl. Vol.)
In Brent, supra, the Court of Appeals thoroughly
discussed the legislative history of 5-507 and concluded that it did not codify common law public official immunity as a whole [but] extended immunity to municipal corporation officials. Brent, supra at 354. Further, the Court in Brent made it clear that common law public official immunity is reserved for public officials (as opposed to mere employees) who perform negligent acts during the course of their discretionary (as opposed to ministerial) duties. Brent, supra at 356, other citations omitted. Te Court thus implied that since police officers were not public officials the common law immunity did not apply. Finally the Court noted previous authority that held ambulance and fire truck drivers or even a motor vehicle by a public official is a mere ministerial act, and thus not entitled to immunity in any event. Brent, supra, at 356 citing, James v. Prince George's County, 288 Md. 315, 327-28, 418 A. 2d 1173, 1180 (1980). In sum, the officer’s claim of common law public official immunity was thoroughly rejected by the Court of Appeals. Similarly, in Schreyer, supra, the Court of Appeals found
the immunity statute to be inapplicable to the police officer for two reasons: 1) the statute by its own terms only applies to municipal corporations and officers of those corporations; it does not extend to Baltimore City police officers. Schreyer, supra at 119 citing, Houghton v. Forrest, 412 Md. 578, 588- 89, 989 A.2d 223, 229 (2010)3
; 2) Although the Baltimore City Police Department is a local government under the
3 Te Court in Houghton, supra, held that the Baltimore City Police Department was created as a state agency and thus the officer for the purposes of tort liability was an employee of a state agency and not a municipal agency. Tus he could not claim municipal official immunity.Houghton, supra at 588-89.
Local Government Tort Claims Act, it is not a municipal corporation and thus Section 5-507 does not apply. Based upon the above authority, it seems very unlikely that a police officer, even if an employee of a municipal corporation, could successfully raise common law public official immunity for at least two important reasons: 1) they are not public officials; 2) driving the police vehicle is a ministerial act. Further, the Court of Appeals narrowly interpreted when an officer is providing emergency services to claim statutory immunity. Both cases go a long way to protect the general public from negligent acts of officers and make it clear that immunity can not be allowed unless the defense is completely proven.
Biography Bruce M. Bender is a partner with the law offices of
Axelson, Williamowsky, Bender & Fishman, P.C. in Rockville, MD and a member of the Board of Governors of MAJ. He has practiced with this firm since 1984 and specializes in Workers’ Compensation, Auto Negligence, Medical Malpractice, Employment Discrimination and Appellate work.. He has been recognized as one of Maryland and D.C.’s Super Lawyers in the area of workers’ compensation from 2007 to 2009.
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