Creighton v. Montgomery Cnty.

254 Md.App. 248

272 A.3d 845

Audrey CREIGHTON

v.MONTGOMERY COUNTY

No. 0999, Sept. Term, 2020

Court of Special Appeals of Maryland.

March 31, 2022

Argued by: Eric H. Kirchman (Kirchman & Kirchman, Rockville, MD), on the brief, for Appellant.

Argued by: Kathryn Anne Lloyd (Stephanie L. Pankiewicz, Patricia Lisehora Kane, Chief Litigation Division, Edward B. Lattner, Chief Division of Government Operations, John P. Markovs, Deputy County Attorney, Marc P. Hansen, County Attorney, Rockville, MD), all on the brief, for Appellee.

Panel: Berger, Ripken, James A. Kenney, III (Senior Judge, Specially Assigned), JJ.^*

Kenney, J.

On October 3, 2019, appellant, Audrey Creighton, sued appellee, Montgomery County (the "County"), in the Circuit Court for Montgomery County. Creighton alleged that the runoff from the improper salting of roads had contaminated her well. An amended complaint was filed on July 27, 2020. On August 12, 2020, the County filed a Motion to Dismiss based on governmental and statutory immunity. On October 20, 2020, the circuit court granted the County's motion and dismissed the amended complaint, with prejudice, on both grounds.

In her timely appeal, Ms. Creighton presents two questions,¹ which we have condensed into one:

Is Montgomery County immune from suit for damages caused by the use of salt to clear snow and ice from its roadways based on common law governmental immunity or statutory immunity under Montgomery County Code section 49-5 or 1912 Md. Laws, ch. 790, section 464?

For the following reasons, we affirm the decision of the circuit court.²

FACTUAL AND PROCEDURAL BACKGROUND

The County owns and maintains roads throughout the County, including Peach Tree Road. Ms. Creighton's property abuts Peach Tree Road. She alleges that, in January 2017, a test of her well water revealed heightened levels of sodium chloride (salt) and other minerals. She claims that the level of salt in her well water was caused by the County's negligent use of salt "in the manner and amount used" to clear the road of snow and ice. More particularly, she asserts that the County "changed the nature and character of the drainage and runoff from Peach Tree Road on to [Ms. Creighton's] real property from naturally occurring freshwater to not naturally occurring salt water." Because the water from her well became unsafe to drink, she had to abandon that well and put in a new one.

A hearing on the County's motion to dismiss the first complaint was held on June 29, 2020. With respect to common law governmental immunity, the hearing court stated that the ultimate question was whether "the function of salting the road is a governmental function or a proprietary function." If it is a proprietary function, a "user of the roadway" would be able to recover for "some level of personal injury" for negligent maintenance under the public ways exception to governmental immunity, but, according to the court, "[t]hat's not what we have in this case," because Ms. Creighton was not injured using the road. As to statutory immunity, the hearing court found that Ms. Creighton had not alleged improper drainage or a change in character of the water in her complaint. And that, in the absence of an allegation of improper drainage, statutory immunity would shield the County from liability to an abutting owner. The court dismissed the first complaint without prejudice, and Ms. Creighton filed an amended complaint on July 27, 2020.

The County moved to dismiss the amended complaint and a hearing on that motion was held on October 19, 2020. At that hearing, the court concluded that "salting the roadway" is a governmental function rather than a proprietary function and that governmental immunity applied. Additionally, the court found that the allegations in the amended complaint did not change the statutory immunity analysis. Recognizing Ms. Creighton's position—that the runoff from the road at issue was not a "naturally occurring" substance—the court stated that what was being drained from the road, "whether it was saltwater or not," was still water. Therefore, it found that statutory immunity also applied and dismissed the amended complaint with prejudice. Other facts may be added in the discussion of the issues presented.

DISCUSSION

Governmental Immunity

Standard of Review

We review a motion to dismiss de novo.

Cochran v. Griffith Energy Services, Inc. , 426 Md. 134, 139, 43 A.3d 999 (2012). Our review is not limited to the reasons given by the trial court or the reasons argued by the parties, and we may affirm or reverse on any ground shown by the record. Parks v. Alpharma , 421 Md. 59, 65, 25 A.3d 200 (2011).

Contentions

Ms. Creighton contends that the County should not be shielded by governmental immunity for improperly salting the road, or, in her words, the "negligent use of sodium chloride on Peach Tree Road, as part of its snow removal program." Citing Higgins v. City of Rockville , 86 Md. App. 670, 678, 587 A.2d 1168 (1991), she argues that "it has long been held that a municipality is not immune from a negligence action arising out of its public streets and highways," and that it is "indisputable and [the] long-settled law of this state" that "maintenance of streets, highways, and walkways" is a proprietary function.

The County counters that "public safety is a well-established governmental function" and that the decisions "to use salt on County roads during a snowstorm and how much of that substance to apply to a particular roadway certainly are matters of governmental planning and decision making" that are governmental in nature. Therefore it is protected by governmental immunity. But even if such decisions were proprietary in nature, the County, citing Godwin v. County Comm'rs of St. Mary's County , 256 Md. 326, 336, 260 A.2d 295 (1970), argues that the public ways exception to governmental immunity is limited to situations involving "construction or maintenance of the county roads proximately causing injuries to those using the roads." It does not extend liability to abutting landowners.

Analysis

We address first whether the County's use of salt to clear a road of snow and ice is a proprietary or governmental function. A governmental function is one that is "sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest." Mayor and City Council of Baltimore v. Blueford , 173 Md. 267, 276, 195 A. 571 (1937). That said, maintenance of the roads has been inexplicably but consistently held to be a proprietary function. See Higgins , 86 Md. App. at 678-80, 587 A.2d 1168 (citing Mayor and City Council of Baltimore v. Marriott , 9 Md. 160, 176 (1856) ; Mayor and City Council of Baltimore v. Walker , 98 Md. 637, 644, 57 A. 4 (1904) ; Baltimore v. Eagers , 167 Md. 128, 136, 173 A. 56 (1934) ; Pierce v. City of Baltimore , 220 Md. 286, 290, 151 A.2d 915 (1959) ). "The exemption of this particular function"—maintenance of the roadways—"from the benefits of governmental immunity, logical or illogical, seems destined to remain with us for the foreseeable future." Id. at 680, 587 A.2d 1168.

In Anne Arundel County v. Fratantuono , 239 Md. App. 126, 133-39, 196 A.3d 25 (2018), a case involving "a pedestrian ... injured by a local government's negligence," this Court distilled from our public ways jurisprudence the following:

1. If the injury occurs on a paved public way (i.e., a paved public street or sidewalk), there is no governmental immunity. That is true regardless of where the local government's negligence originates.

2. If the injury occurs within the boundaries of a public park, swimming pool, or similar area where the local government's maintenance obligation is governmental in nature, governmental immunity applies, unless the injury occurs on a paved public way through the park. That is true even if the area within the park, pool, or similar area is contiguous and adjacent to a public way.

3. If the injury occurs on an unpaved area that is (a) outside of a public park, swimming pool, or similar area, (b) contiguous and adjacent to a public way, and (c) where the government should expect that pedestrians might walk, governmental immunity does not apply. In that situation, however, the standard of care owed by the government is less than that owed in conjunction with a paved public way.

Id. at 139, 196 A.3d 25 (citations omitted).

The public ways exception allows a user of the public way to recover from the local government when the user is injured while traveling on that public way . And although the duty to maintain the roadways in a reasonably safe condition has been extended to areas contiguous to public ways, liability has been extended only to actual users of the public way for its intended purpose. See, e.g. , Pierce v. City of Baltimore , 220 Md. 286, 290, 151 A.2d 915 (1959) ("[A] municipality has a duty to maintain streets, sidewalks, and footways, and the areas contiguous to them, in a reasonably safe condition."); Eagers , 167 Md. 128, 137, 173 A. 56 ("The duty to keep the street and footways of the municipality in a safe condition for public travel , and to prevent and remove a nuisance affecting the use and safety of these public ways extends to the land immediately contiguous to these public ways" for the protection of "a traveler while walking along the street in the exercise of reasonable care."). Compare Haley v. Mayor & City Council of Baltimore , 211 Md. 269, 127 A.2d 371 (1956) (holding city liable when two pedestrians were injured while walking on steps inside a park); Pierce , 220 Md. 286, 151 A.2d 915 (holding city liable when a pedestrian was injured on a metal plate covering a drain while walking on an unpaved walkway to get to a sidewalk); Higgins , 86 Md. App. at 678, 587 A.2d 1168 (holding city liable when a pedestrian was injured by a hazard...