Roche v. Mayor of Balt.

1

DONNA ROCHE v. MAYOR & CITY COUNCIL OF BALTIMORE, ET AL.

No. 1323-2021

Court of Special Appeals of Maryland

September 17, 2024

UNREPORTED

IN THE APPELLATE COURT OF MARYLAND ^[*]

Circuit Court for Baltimore City Case No.: 24-C-21-000919

Kehoe C., ^[**] Berger, Wright, Alexander, Jr. (Senior Judge, Specially Assigned), JJ.

OPINION

Kehoe J.

Ms. Roche, individually and as the personal representative of the Estate of Gokhan Donald Oztas, filed a wrongful death and survival action against the Mayor and City Council of Baltimore (the "City"), the Baltimore City Police Department (the "Department"), and William Berardi, an officer of the Department.^[1] The defendants filed a motion to dismiss the action based upon several legal theories that we will presently discuss. The Circuit Court for Baltimore City, the Honorable Kendra Y. Ausby presiding, granted the motion and subsequently denied Ms. Roche's motion for reconsideration. Ms. Roche has appealed and presents one issue, which we have divided into two for purposes of analysis:

1. Did the circuit court err when it granted appellees' motion to dismiss the complaint?

2. Did the court abuse its discretion in denying appellant's motion for reconsideration?^[2]

We will affirm the judgment of the circuit court.

BACKGROUND

The Proceedings in the Circuit Court

The operative complaint is appellant's amended complaint. It alleged the following:

On or about March 30, 2018, Gokhan Donald Oztas ("Mr Oztas) was in a public area in Baltimore City, Maryland, when he was approached by Officer [William] Berardi, [a member of the Department,] who was investigating a complaint by the proprietor of a local bar/restaurant that someone was threatening customers and employees of the establishment.

Officer Berardi recognized Mr. Oztas from previous encounters with him. Officer Berardi escorted Mr. Oztas back to the patrol car, conducted a field interview, and ran a warrant check. While awaiting a response from the warrant check, Mr Oztas told Officer Berardi repeatedly that he would kill himself if he had to return to jail.

After the warrant check came back that Mr. Oztas in fact was wanted, and despite being alone and without backup at the time, Officer Berardi, instead of placing Mr. Oztas in his patrol car or otherwise restraining him, asked Mr. Oztas to have a seat on a nearby street curb.

After briefly sitting down on the curb, Mr. Oztas stood up, and ran away from Officer Berardi; Mr. Oztas ultimately arrived in the vicinity of Brown's Wharf along the Baltimore Harbor, where he jumped into the harbor, suffered hypothermia because of the greatly reduced temperature of the water at that time, and drowned. Mr. Oztas' body was not discovered in the harbor until April 12, 2018. At the time, . . . Officer Berardi knew or reasonably believed that the temperature of the water would cause hypothermia to anyone entering the water without protective gear.

Based on this factual premise, the amended complaint asserted that: (1) the Department, the City, and Officer Berardi owed a duty to Mr. Oztas to protect him from harm caused by either himself or others; (2) Officer Berardi knew or should have known that Mr. Oztas posed an immediate risk of harm to himself or others; and (3) Officer Berardi was or should have been trained to respond appropriately "when facing a circumstance in which that risk exi[s]ted."

The amended complaint further alleged that Officer Berardi was negligent because he: (1) failed to assess and manage properly the circumstances presented by his encounter with Mr. Ozta§; (2) failed to respond to his training; (3) failed "to carry out [the Department's and/or the City's] objective of protecting others, including protecting others from themselves"; and (4) was "otherwise negligent, reckless, and careless in his interaction with Mr. Oztas, despite either knowing or having reason to know of the seriousness of Mr. Oztas' threat to harm himself instead of being taken into the custody of the police." The amended complaint asserted that Officer Berardi's breaches of duty were the direct and proximate causes of Mr. Ozta§' conscious pain, suffering, and ultimate death.

Based upon these premises, and for herself and in her capacity as the personal representative of Mr. Ozta§'s estate, Ms. Roche pled four causes of action: "Negligence-Respondeat Superior" against the City and the Department (Count One); "Negligent Training, Retention, and/or Supervision" against the City and the Department (Count Two); "Negligence" against Officer Berardi (Count Three); and a wrongful death claim against all of the defendants based upon the same allegations (Count Four).

The City, the Department, and Officer Berardi filed a joint motion to dismiss the amended complaint. They presented the following contentions:

First, the City was not a proper party to the action because the Department was not an agency of the City.^[3] The City therefore could not be vicariously liable for the acts or omissions of the Department as a matter of law. The appellees pointed out that both the City and the Department are classified as local governmental units pursuant to the Local Government Tort Claims Act ("LGTCA").^[4] They asserted that as a member of the Department, Officer Berardi was a public official for purposes of the LGTCA,^[5] and that he was acting in a discretionary capacity within the scope of his official duties in his interactions with Mr. Ozta§. Therefore, as long his actions were not malicious or grossly negligent, Officer Berardi was entitled to assert qualified immunity.

Second, Ms. Roche's claims against the Department failed as a matter of law because the Department is protected by common law sovereign immunity.

Third, Ms. Roche's claims against Officer Berardi failed because any breach of duty on his part arose during the course of his attempt to place Mr. Oztas under arrest. The appellees asserted that, as a matter of law, a police officer's decision to effect an arrest is a discretionary one and officers are entitled to public official immunity for any negligent acts committed during the course of their duties. The appellees conceded that public officials are not entitled to assert common law public official immunity if they act maliciously or with gross negligence. However, the appellees pointed out that the terms "malice" and "gross negligence" do not appear in the amended complaint and that the amended complaint contains no allegations that support a conclusion that Officer Berardi acted maliciously or was grossly negligent in his interactions with Mr. Oztas.

Ms. Roche filed a written response to the motion.^[6] After summarizing the relevant factual allegations in the amended complaint that characterize Officer Berardi's handling of the arrest of Mr. Oztas as negligent, she asserted:

It is improper at this time to address whether the conduct of Officer Berardi was grossly negligent, as it is a question for a jury to decide. The Plaintiffs have stated beyond merely parroting "gross" in their Complaint, by enumerating a list of actions Defendant Officer Berardi committed that could be considered grossly negligent.

By viewing the allegations set forth as true, the claims asserted by the Plaintiffs do grant them relief. If the Plaintiffs establish and the trier of fact determines that Officer Berardi was negligent while acting within the scope of employment, BPD and the City of Baltimore will be liable to pay for any judgment awarded against Officer Berardi regardless of sovereign immunity. If the Plaintiffs establish and the trier of fact determines that Officer Berardi was acting grossly negligent will [sic] in the furtherance of his employment and judgment was entered against him, BPD and the City of Baltimore may be liable to pay for said judgment. If the Plaintiffs establish and the trier of fact determines that Officer Berardi was acting as an individual and outside the scope of his employment while committing the alleged tortious act, then Officer Berardi is not protected under any such immunity for his tortious acts as an individual. Thus, Plaintiffs have properly named the Parties involved and alleged sufficient operative facts that if true afford the Plaintiffs relief. It would be premature at this juncture to dismiss the BPD and the City of Baltimore as Defendants.

The circuit court held a hearing on the motion. Each party presented paraphrased versions of the contentions that we have just described, and Ms. Roche additionally asserted that, based on the allegations in the amended complaint, she was entitled to "explore gross negligence" through discovery. The appellees disagreed, stating that:

There is no claim for gross negligence, there are no allegations to support an inference of gross negligence and the words malice or gross negligence are entirely omitted from the Complaint.

The court granted the motion to dismiss. First, the court agreed with the parties that the City was not a proper party to the action. As to Officer Berardi, the court noted he was "protected by immunity in the absence of malice and gross negligence and in this case those things are simply not pled." (Cleaned up.) The court cited Beall v Holloway-Johnson, 446 Md. 48, 64 (2016), for the proposition that "a legally sufficient case of ordinary negligence will frequently be enough to create a jury question of whether negligence was or was not gross."^[7] However, the court added that Beall v. Holloway-Johnson

is not saying . . . [that] in every case you just say . . . we have some facts that might show negligence, therefore, we get to go to a jury to see if we can convince the jury that it is gross. [Y]ou have to actually have some facts to support gross negligence but you also have to

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