Torbit v. Balt. City Police Dep't

231 Md.App. 573

153 A.3d 847

William H. TORBIT, Sr., et al.

v.BALTIMORE CITY POLICE DEPARTMENT, et al.

No. 1475, Sept. Term, 2015

Court of Special Appeals of Maryland.

February 2, 2017

Robert Schulman of Baltimore, MD, Lauren D. Benjamin (Eugene A. Arbaugh, Smith, Gildea & Schmidt, LLC, Towson, MD, of the brief), for Appellant.

Daniel J. Moore (William J. Jackson, Moore & Jackson, LLC of Towson, MD) William R. Phelan, Jr. (George Nilson, City Solicitor, Baltimore, City Office of Law, James H. Fields, Fields, Peterson, LLC all of Baltimore, MD) (Christopher R. Lundy, Baltimore City Dept. of Law of Baltimore, MD, Brett A. Buckwater, Alicia D. Stewart, Niles, Barton & Wilmer, LLP of Baltimore, MD, Robin F. Kessler, RFK Law, LLC of Odenton, MD) all on their briefs, for Appellee.

Krauser, C.J., Friedman, J. Frederick Sharer (Senior Judge, Specially Assigned), JJ.

Opinion by Friedman, J.Two people were killed and several others were injured when the Baltimore Police Department ("BPD") responded to an "active shooter"¹ situation outside a nightclub in Baltimore City. We are first asked to determine whether the Police Department, the Club, and an adjoining parking lot's owner and operator may be liable for actions prior to the shooting. For a variety of reasons described below, we affirm the trial court's rulings in favor of those appellees. We are then asked to determine whether the trial court erred in granting judgment in favor of the four police officers who fired their guns at the shooter. We affirm the trial court's finding that no reasonable juror could find that the officers were grossly negligent.

BACKGROUND

On January 9, 2011, the BPD was called to the Select Lounge nightclub, located on Baltimore City's North Paca Street, after several fights had broken out inside the nightclub. On arrival, Major Marc Partee decided to close the club early and send its patrons home. Police set up a perimeter around the club and an adjacent parking lot frequently used by guests of, although not owned by, the Select Lounge.

After the closing, Jazzmin Graves, a patron of the Select Lounge, was walking across the parking lot when she was hit by a car pulling out of the lot. Although Ms. Graves was not harmed, an argument erupted between occupants of the car and Ms. Graves and her friends. Because the car was blocking traffic, a man in dark clothing—specifically in black jeans, hat, boots, and a black "hoodie" sweatshirt—approached the group. The man told the two groups to stop arguing and to leave the parking lot. The car drove off the lot.

Another patron, later identified as Sean Gamble, however, took exception to the dark-clothed man's actions. Gamble "got up in" the dark-clothed man's face and expressed his view that the man shouldn't be "putting [his] hands on a female." The dark-clothed man told Gamble to "mind your own fucking business." While they argued, another man, later identified as Darrell "Rico" Baker, sucker-punched the dark-clothed man. More men joined the fray, knocking the dark-clothed man to the ground and began "stomping[,] kicking[,] and punching" him.

The dark-clothed man then pulled and fired a gun.

Officer Harry Pawley testified that the dark-clothed man fired a few shots, paused briefly, and then resumed shooting:

Q: When did you withdraw your service weapon?

A: I was putting my mace away, I heard gunshots. I looked up, more gunshots. I saw an individual on the ground shooting and that's at which time I withdrew my weapon and fired.

Further:

Q: When you witnessed [the dark-clothed man] shooting, he was laying on his back shooting up into the air, wasn't he?

A: No. He was laying on his back shooting, like, his arm moving from side to side, discharging.

Officer Harry Dodge testified that, after hearing initial shots, he looked up and saw the dark-clothed man fire shots toward Franklin Street, a cross street of North Paca:

Q: Was the individual firing his weapon ... into the air indiscriminately?

A: He was firing towards Franklin Street indiscriminately with his arm parallel to the ground.

Q: It wasn't into the air?

A: Not the second time he started shooting, no. The first time he started shooting, I don't recall which direction he was firing. The second time he began firing again, he was indiscriminately [shooting] towards Franklin street where a group of people were.

Officer Latora Craig testified that she heard several initial shots, saw the men who had attacked the dark-clothed man begin to run, and saw that the dark-clothed man began to fire again indiscriminately:

Q: ... And the shots that were fired by that person that you saw they were all going towards Franklin Street. Correct?

A: They were going in different directions, he had no aim. Some were straight up, some were down. They were back-and-forth.

Officer Craig further testified that the initial shots "went past [her] legs and [her] feet."

Finally, Officer Toyia Williams testified that she heard rapid gunfire nearby, observed about 20 to 30 people between her and the shooter, identified a muzzle flash from the shooter's gun, and then fired her weapon at the shooter.

Both the dark-clothed man and Sean Gamble were fatally wounded. Jazzmin Graves and two other patrons, Katrina Harris and Jamie Jordan, suffered minor gunshot wounds.

The dark-clothed man was later identified as BPD Officer William Torbit.

PROCEEDINGS BELOW

Several lawsuits were filed and consolidated in the Circuit Court for Baltimore City. Plaintiffs were Katrina Harris, Jazzmine Graves, Jamie Jordan, the Estate of William Torbit, and the Estate of Sean Gamble. Defendants were the Select Lounge, its owner and manager,² the parking lot owner Shell Realty, Inc., the parking lot operator PMS Parking, Inc., the BPD, former Commissioner Frederick Bealefeld, Major Partee, Lieutenant Charles Clayton (Torbit's partner), and BPD Officers Pawley, Dodge, Craig, and Williams.

Claims against Commissioner Bealefeld and the BPD were dismissed. Summary judgment was entered in favor of Select. A jury trial commenced regarding the remaining claims but the trial court, at the conclusion of the plaintiffs' case, granted motions for judgment in favor of the remaining defendants. The plaintiffs noted this appeal.

DISCUSSION

We have reorganized the appellate issues according to their procedural posture. Pursuant to that organization, Appellants first argue that the trial court erred in granting Commissioner Bealefeld and the BPD's motions to dismiss. Next, they argue that the trial court erred in granting summary judgment in favor of Select. Finally, they argue the trial court erred in granting motions for judgment in favor of PMS, Shell, Major Partee, Lieutenant Clayton, and the four police officers who fired their guns.

I. Motions To Dismiss

Appellants assert the trial court erred in dismissing their tort claims against Commissioner Bealefeld and the BPD. Appellants argue that Commissioner Bealefeld and the BPD owed a duty to protect the public from harm. That duty, they claim, arises out of a special relationship between the public, the BPD, and Commissioner Bealefeld. Appellees argued below and in this Court that Commissioner Bealefeld and the BPD owed no duty of care to Appellants.

The standard of review of a grant of a motion to dismiss is "whether the trial court was legally correct." Litz v. Maryland Dep't of Env't , 446 Md. 254, 264, 131 A.3d 923 (2016). We "must determine whether the [c]omplaint, on its face, discloses a legally sufficient cause of action." Pittway Corp. v. Collins , 409 Md. 218, 234, 973 A.2d 771 (2009). In reviewing the complaint, we "accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party." Litz , 446 Md. at 264, 131 A.3d 923. "Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff." O'Brien & Gere Engineers, Inc. v. City of Salisbury , 447 Md. 394, 403–04, 135 A.3d 473 (2016) (citations omitted).

In a negligence action, "a plaintiff must allege facts demonstrating (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." McNack v. State , 398 Md. 378, 394, 920 A.2d 1097 (2007) (quoting Remsburg v. Montgomery , 376 Md. 568, 582, 831 A.2d 18 (2003) ) (internal quotations omitted). Thus, in a case based in negligence, as we have here, we begin by identifying whether a legally cognizable duty exists. Id. at 396, 920 A.2d 1097. The Court of Appeals of Maryland has explained that police do not owe an enforceable tort duty to the public at large. Muthukumarana v. Montgomery Cnty. , 370 Md. 447, 486, 805 A.2d 372 (2002) ("[W]hen a statute or common law imposes upon a public entity a duty to the public at large, and not a duty to a particular class of individuals, the duty is not one enforceable in tort.") (Internal quotations omitted). A duty may arise between police and an individual, however, when there is a "special relationship."

Williams v. Mayor & City Council of Baltimore , 359 Md. 101, 143, 753 A.2d 41 (2000) (explaining that, "absent a ‘special relationship’ between police and victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie against police officers"). Thus, Appellants can recover against Commissioner Bealefeld and the BPD only if they plead and prove the existence of a special relationship. "[F]or a special relationship between police officer and victim to be found, [a plaintiff] must [show] that the local government or the police officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim's specific reliance upon the police protection." Fried v. Archer , 139 Md.App. 229,...