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Opinions – Court of Special Appeals: 12/12/11

Premises Liability

Sovereign immunity

BOTTOM LINE: Plaintiff’s slip-and-fall claim against metropolitan transit authority was barred by sovereign immunity under the discretionary function exception, because authority employees were performing discretionary acts in deciding at what time the train platforms were to be cleaned, as well as the manner and means used in so doing.

CASE: Washington Metropolitan Area Transit Authority v. Tinsley, No. 1089, Sept. Term, 2009 (filed Nov. 30, 2011) (Judges KRAUSER, Hotten & Kenney (Retired, specially assigned)). RecordFax No. 11-1130-01, 27 pages.

FACTS: On December 19, 2001, Veronica Tinsley arrived by train at a Metrorail station in Cheverly, Maryland.

When she arrived at the station, the entire floor of the platform was wet. Upon exiting the train, she did not see any warning cones, but, nonetheless, walked carefully toward the elevator. As she neared the elevator, she saw a “wet floor” sign posted by the side of the elevator. Finding the elevator out of service, she walked towards the escalator.

As she did, her left foot slipped out from under her, and she fell and fractured her right ankle.

Tinsley brought a negligence action in circuit court against the Washington Metropolitan Area Transit Authority (“WMATA”) for the injuries she sustained as a result of the fall.

At the close of Tinsley’s case, WMATA moved for judgment, contending, among other things, that how it cleaned its platforms and with what products or mechanisms it cleaned its platforms was something for which it was immune from suit.

The circuit court denied the motion. At the conclusion of the testimony of its own expert witness, WMATA renewed its motion for judgment. The court denied that motion as well, and permitted the case to go to the jury. The jury found in favor of Tinsley, awarding $64,213 in damages.

WMATA appealed to the Court of Special Appeals, which held that WMATA was entitled to sovereign immunity from Tinsley’s claim, and reversed the judgment of the circuit court.

LAW: The Washington Metropolitan Area Transit Authority contended that Tinsley’s claim was barred by sovereign immunity because the actions of its employees and agents, in maintaining its station, were shielded by that immunity.

Because the signatories to the WMATA Compact (Maryland, Virginia, and the District of Columbia) conferred their respective sovereign immunities upon WMATA, this inter-jurisdictional compact agency was cloaked in sovereign immunity. Proctor v. WMATA, 412 Md. 691, 708 (2010). To determine the extent of that immunity, it was necessary to look to §80 of the WMATA Compact, a provision enacted to provide a uniform treatment of WMATA, as the signatories had differing rules on governmental immunity. Martin v. WMATA, 667 F.2d 435, 436 (4th Cir.1981). Section 80 of the WMATA Compact controls the extent to which WMATA has waived its sovereign immunity, by drawing a distinction between “governmental” functions and “proprietary” functions. Actions committed in the service of governmental functions are protected by sovereign immunity, while those performed in the service of proprietary functions are not.

Specifically, §80 states that the Authority shall be liable for its contracts and for its torts and those of its directors, officers, employees and agents committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. Section 80 goes on to state that nothing in the title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the zone of any immunity from suit. Because Congress consented to the creation of WMATA by statutory enactment, interpretation of the WMATA Compact and, of course, this provision, is a question of federal law. Sanders v. WMATA, 819 F.2d 1151, 1154 (D.C.Cir.1987). As such, federal, not state, law governs the determination of whether the function in question is “governmental” or “proprietary” under” §80. Id. at 1154.

To deal with the difficulty in determining whether a particular act occurs in the performance of a governmental or proprietary function, federal circuits have crafted a two-part test. Smith v. WMATA, 290 F.3d 201, 206 (4th Cir.2002). (D.C.Cir.1987).

Under this test, which is not to be found in any federal or state statute, a court first determines whether the challenged activity occurs in the performance of a “quintessential governmental function,” in other words, functions that involve “obviously public activities,” such as law enforcement. Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C.Cir.1997).

If so, then governmental immunity applies; if not, the court must decide whether the governmental activity at issue is discretionary.

If the activity is not discretionary (as where a statute, regulation, or policy specifically prescribes a course of action for an employee to follow), the activity is “ministerial” and not protected by governmental immunity. If, on the other hand, the activity is discretionary, the court must decide whether it falls within what the Supreme Court has termed the “exception for discretionary governmental functions,” commonly referred to, by the federal appellate courts, as the “discretionary function exception.” United States v. Varig Airlines, 467 U.S. 797, 814 (1984).

If the discretionary function exception applies to the challenged activity, then that activity, like activity falling within a quintessential governmental function, constitutes a “governmental activity” within the meaning of the “governmental/proprietary” test of §80 of the WMATA Compact, and is thus shielded from tort liability. Smith, 290 F.3d at 207.

The term “discretionary function exception” naturally invokes the question: “Exception to what?” This category of immunity was first articulated, by federal courts, in the setting of the Federal Tort Claims Act (“FTCA”).

While, under section 1346(b) of the FTCA, the federal government waives its sovereign immunity as to civil actions for money damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant, it retains its sovereign immunity for what it designates as “Exceptions” under §2680(a) of that Act.

Those “Exceptions” are, among other things, acts of discretion in the performance of governmental functions or duty whether or not the discretion involved be abused. Dalehite v. United States, 346 U.S. 15, 33 (1953).

Because section 2680(a) is titled “Exceptions,” the federal courts, limning the boundaries of sovereign immunity under the FTCA, have universally used the term “discretionary function exception” when a governmental function is immune from tort liability under the FTCA. Later, the federal courts adopted the same term in defining the contours of immunity under the WMATA Compact, even though it has no comparable section labeled “Exceptions.” A governmental act falls within the discretionary function exception if it regularly requires judgment as to which of a range of permissible courses is the wisest. United States v. Gaubert, 499 U.S. 315, 325 (1991).

As to such acts, WMATA is immune from any claim, however negligently caused, that affects the governmental functions. Smith, 290 F.3d at 207.

Here, it was undisputed that WMATA’s platform cleaning and maintenance was not a “quintessential governmental function.” As such, the Court proceeded directly to the second stage of the analysis, to determine whether the actions at issue fell within the discretionary function exception and were therefore immune to suit.

The nature of the decisions at issue here (whether to clean an entire platform or to spot clean it; whether to clean during rush hour, late at night, or otherwise; whether to use a cleaning machine or a mop and bucket; and finally, which cleaning agent to use) regularly requires judgment as to which of a range of permissible courses is the wisest. United States v. Gaubert, 499 U.S. 315, 325 (1991).

Given the absence of an applicable statute or specific mandatory directive, WMATA’s employees were performing discretionary acts in deciding at what time the train platforms were to be cleaned, as well as the manner and means used in so doing. Consequently, Tinsley’s challenge was, in effect, to the discretionary acts of WMATA personnel. Those discretionary acts were of the kind that the discretionary function exception was designed to shield. Berkovitz, 486 U.S. at 536.

Consequently, the discretionary function exception barred Tinsley’s claim, and it was error to deny WMATA’s motion for judgment.

Accordingly, the Court of Special Appeals reversed the circuit court’s judgment.

COMMENTARY: Tinsley claimed, in the alternative, that, even if WMATA’s employees were not required to adhere to a rigid maintenance policy, WMATA presented absolutely no evidence at trial to support its assertion that its cleaning decisions were grounded in political, social or economic judgments. Thus, Tinsley asserted, governmental immunity did not apply.

Finally, Tinsley maintained that WMATA should clean its platforms during the early morning hours when the stations are closed.

Even assuming, arguendo, that, at trial, Tinsley introduced sufficient circumstantial evidence that the platform was wet as a result of efforts to clean it by WMATA employees, she offered no evidence that any WMATA employee operated a cleaning machine or applied a mop negligently. Rather, Tinsley consistently argued that WMATA should be required to clean its platforms during the early morning hours when the stations were closed and suggested that cleaning the platform during afternoon rush hour “actively” created a hazard.

In effect, Tinsley asserted that the Court should recognize an “active/passive” distinction, and that the discretionary function exception should apply only where WMATA is passively responding to an emergency. To buttress her argument that the discretionary function exception should not cover hazardous conditions created by WMATA itself, and that WMATA’s employees’ failure to properly maintain the platform was not barred from tort liability, Tinsley further relied on O’Toole v. United States, 295 F.3d 1029 (9th Cir.2002).

However, contrary to Tinsley’s claim, there are no easy choices in deciding the appropriate time for cleaning train platforms. As WMATA pointed out, not cleaning the platforms during business hours could also create hazardous conditions.

Moreover, Tinsley’s reliance on O’Toole was misplaced. The crux of O’Toole was the government’s failure to maintain its facilities; by contrast, it was Tinsley’s contention not that WMATA has failed to perform a duty, but that it negligently failed to select a specific time for performance, leaving it to its maintenance personnel to make that decision, depending on the circumstances. While choosing to forego a duty may cross the line demarcating those acts which are not shielded by sovereign immunity from those which are, the reasonable exercise of discretion as to when and how to perform maintenance at a facility does not.

Real Property

Standing

BOTTOM LINE: Circuit court erred in concluding on summary judgment that plaintiffs lacked standing to bring an action challenging defendant’s proposed construction and operation of a creamery in violation of an agricultural preservation easement held by a Maryland land preservation foundation, because plaintiffs, as adjacent neighbors to defendant, were prima facie aggrieved as a result of defendant’s alleged violation and defendant failed to satisfy its burden of denying such damage and of coming forward with evidence to establish that plaintiffs were not in fact aggrieved.

CASE: Long Green Valley Association v. Bellevale Farms, Inc, No. 0228, Sept. Term, 2009 (filed Nov. 30, 2011) (Judges Meredith, Zarnoch & KENNEY  (Retired, Specially Assigned)). RecordFax No. 11-1130-00, 54 pages.

FACTS: Bellevale Farms, Inc., owned and operated a dairy farm in the Long Green Valley area of Baltimore County. John and Susan Yoder owned and operated an adjacent dairy farm. The Maryland Agricultural Land Preservation Foundation (“MALPF”) was an entity of the Maryland Department of Agriculture, and in order to carry out the intent of MD. CODE ANN., AGRIC., §2–502, was granted the power to: (1) enter into contracts generally and to execute all instruments necessary or appropriate to carry out its purposes; and (2) to acquire, by gift, purchase, devise, bequest or grant, easements in gross or other rights to restrict the use of agricultural land and woodland as may be designated to maintain the character of the land as agricultural land or woodland. Id. at §2–504(2)–(3).

The Long Green Valley Association was a community association representing approximately 300 residents of the Long Green Valley of Baltimore County, dedicated to the preservation of open space, farmland, natural resources, historic sites, and the heritage and character of the Long Green Valley. The Yoders were members of Long Green Valley Association.

On January 12, 1997, the State, on behalf of MALPF, purchased an “agricultural preservation easement” on Bellevale Farm for $796,500. The deed of easement provided that it was the intention of the parties that the said land would be preserved solely for agricultural use in accordance with the provisions of the Agriculture Article, Title 2, Subtitle 5. A section of the easement agreement labeled “COVENANTS, CONDITIONS, LIMITATIONS, and RESTRICTIONS” stated that except as otherwise provided in this instrument, the land could not be used for any commercial, industrial, or residential purpose.

On August 1, 2007, Bellevale filed a request with MALPF seeking to construct a 7,000 to 10,000 square foot building to house a creamery operation, processing facility and a farm store, as well as a parking area that would accommodate fewer than ten vehicles.

On October 23, 2007, MALPF reviewed the request and approved the creamery operation, having determined that the operation was a “farm related use” that complemented Bellevale’s organic dairy operation, a use compatible with agriculture and MALPF’s program. MALPF took this action after being advised that the Baltimore County Agricultural Land Preservation Advisory Board already had reviewed [Bellevale’s] request and voted favorably on it.

After MALPF’s approval of the Creamery Operation on October 23, 2007, plaintiffs, the Long Green Valley Association and the Yoders, requested that MALPF reconsider its approval and enforce the terms of the Easement Agreement and State and County law. They also requested that the Secretary of Agriculture intervene.

On April 4, 2008, in Zoning Case No. 2008-0506, the Long Green Valley Association and the Yoders filed a Petition for Special Hearing before the Deputy Zoning Commissioner for Baltimore County in order to determine whether a dairy processing facility was permitted. On August 12, 2008, the Deputy Zoning Commissioner found the proposed facility was permitted.

On May 30, 2008, based on MALPF’s approval of the proposed creamery, the plaintiffs filed an amended four-count complaint with the circuit court, seeking two writs of mandamus, a declaratory judgment and permanent injunctive relief.

Bellevale filed a motion to dismiss and/or for summary judgment, averring that the plaintiffs lacked standing to bring their equitable claims. MALPF filed a motion to dismiss and/or for summary judgment. The plaintiffs filed a cross-motion for summary judgment requesting that the court find, as a matter of law, that the creamery operation was a commercial use prohibited by terms of the easement agreement.

On March 19, 2009, the Baltimore County Circuit Court issued an order of declaratory judgment stating that the plaintiffs lacked standing to challenge Bellevale’s right to construct a creamery operation on Bellevale’s own property. The circuit court granted Bellevale’s and MALPF’s motions for summary judgment, and denied the plaintiffs’ motion for summary judgment.

The plaintiffs appealed to the Court of Special Appeals, which vacated the circuit court’s judgment and remanded the case.

LAW: As a threshold issue, a litigant must have standing to invoke the judicial process in a particular instance. Adams v. Manown, 328 Md. 463, 480 (1992). Standing rests on a legal interest such as one of property, one arising out of a contract, one protected against tortious invasion, or one founded on a statute which confers a privilege. Committee for Responsible Dev. on 25th St. v. Mayor & City Council, 137 Md. App. 60, 72 (2001).

Under Maryland common-law principles, if an individual is seeking to redress a public wrong, that individual has no standing in court unless he or she has also suffered some kind of special damage from such wrong differing in character and kind from that suffered by the general public. 120 W. Fayette St., LLLP v. Mayor of Baltimore, 407 Md. 253, 270 (2009). This “aggrievement” requirement may be satisfied if one can demonstrate that a land use decision will adversely affect his, her, or its interest, and that such interest is personal or specific, and not shared by the general public. Id.

Here, the plaintiffs argued that they would be “specially harmed” by the proposed creamery operation in a manner different from the public at large. Specifically, the plaintiffs argued that they had standing because the Yoders were neighbors to Bellevale Farm and also because some of Long Green Valley Association’s members resided in the area of Bellevale Farm. The plaintiffs argued that the Yoders’ status as neighboring property owners rendered them prima facie “specially harmed,” creating a rebuttable presumption of standing. See Sugarloaf Citizens’ Ass’n v. Department of Env’t, 344 Md. 271 (1996).

In Sugarloaf, the dispute concerned the decision of the Maryland Department of the Environment to issue two permits authorizing the construction of a solid waste incinerator near Sugarloaf Mountain in Dickerson, Maryland. A group of local landowners, environmental organizations and citizens’ groups challenged the Department’s decision by filing an action for judicial review.

Recognizing that Sugarloaf was not a typical zoning matter, the Court of Appeals held that in actions for judicial review of administrative land use decisions, an adjoining, confronting or nearby property owner is deemed, prima facie, a person aggrieved. The person challenging the fact of aggrievement has the burden of denying such damage and of coming forward with evidence to establish that the petitioner is not in fact aggrieved. Id. at 297.

In 120 W. Fayette St., LLLP v. Mayor of Baltimore, as a taxpayer and neighboring landowner, 120 West Fayette filed a declaratory judgment action against the Mayor and City Council of Baltimore, alleging that a land disposition agreement between the City and a developer made pursuant to a proposed urban renewal plan was ultra vires or illegal. 120 W. Fayette St., LLLP v. Mayor of Baltimore, 407 Md. 253, 259-60 (2009).

On appeal from a grant of summary judgment in favor of the Mayor and City, the Court opined that because land use is at least one of the prime considerations with which an urban renewal plan is reasonably sure to be concerned, the principles, as espoused in Sugarloaf, that confer standing upon an adjoining, confronting or neighboring property owner to seek judicial review of land use decisions, logically extend to an adjoining, confronting or neighboring property owner that is challenging a municipalities’ allegedly illegal avoidance of urban renewal and procurement ordinances. Id. at 272.

The Court of Appeals concluded that, because 120 West Fayette’s property was located in close proximity to the urban renewal area and because 120 West Fayette alleged that it would be able to both see and hear the allegedly illegal redevelopment of these properties from its doorsteps, it followed that 120 West Fayette would be directly impacted by and has a direct interest in the redevelopment and thus had standing. Id. at 272-73.

Based on 120 W. Fayette’s extension of the standing principles of Sugarloaf beyond the judicial review arena, adjoining, confronting or neighboring property owners may have standing to challenge as an illegal or ultra vires action the approval of a proposed use of land subject to a MALPF easement.

The plaintiffs, in their amended complaint, asserted that the Yoders owned property adjacent to Bellevale Farm and would suffer irreparable harm if the defendants were permitted to violate the easement agreement and the provisions of state and local law. Following the reasoning of 120 W. Fayette, the Yoders would be considered prima facie aggrieved, and thus relieved of the burden of alleging specific harm. Once the plaintiffs alleged, uncontested, that the Yoders were adjacent and/or neighbors to Bellevale Farm, the defendants, to challenge the fact of aggrievement, had the burden of denying such damage in their answer and of coming forward with evidence to rebut the presumption of aggrievement. 120 W. Fayette, 407 Md. at 271.

In the circuit court, neither defendant denied that the Yoders would suffer irreparable harm, or offered persuasive evidence or argument indicating that the Yoders would not be impacted. Id. at 273.

The opinion in 120 W. Fayette was filed on the same day as the motions hearing in this case. As such, the circuit court, without the benefit of 120 W. Fayette, erred in determining on summary judgment that the Yoders lacked neighbor property owner standing.

The Yoders, as neighbors to Bellevale Farm, were deemed to be prima facie aggrieved under the reasoning of 120 W. Fayette, subject to appellees’ rebutting their aggrievement, and thus their standing, on remand.

Accordingly, the circuit court judgment was vacated and the case remanded.

COMMENTARY: The plaintiffs also contended two additional bases for standing: first, that they had standing as intended third-party beneficiaries of the easement agreement; and second, that as a conservation easement, the easement agreement represented a charitable trust enforceable by “any interested person” and conferred standing on both Long Green Valley Association and the Yoders.

However, the easement agreement clearly stated that the State, as the grantee, could enforce the easement, and expressly limited public access and use of the land. There was no express statement in the easement agreement that others who placed their property under MALPF easements, the general public, or adjoining property owners, were intended third-party beneficiaries to the agreement, nor was there any known Maryland authority to support the grant of standing to a community association that is not the intended beneficiary of the easement.

Moreover, it has been generally recognized in this State that an association lacks standing to sue where it has no property interest of its own, separate and distinct from that of its individual members, which may be affected by any of the alleged acts under attack. Citizens Planning & Housing Asso. v. County Executive of Baltimore County, 273 Md. 333, 345 (1974). As such, the Court of Special Appeals found unpersuasive the plaintiffs’ contention of standing as intended third-party beneficiaries.

The Court of Special Appeals was likewise unconvinced by the plaintiffs’ argument that, as a conservation easement, the easement agreement represented a charitable trust enforceable by “any interested person,” thereby conferring standing on both Long Green Valley Association and the Yoders. Generally speaking, a conservation easement is a legal agreement between a landowner and a grantee that restricts the potential uses of the land at issue in order to prevent it from being developed for commercial or industrial uses or for housing developments. Md. Envtl. Trust v. Gaynor, 370 Md. 89, 92 n.1 (2002).

Based on the case law and the relevant statutory authority, and assuming, without deciding, that an agricultural preservation easement purchased by MALPF or the State for the benefit of MALPF qualified as a “conservation easement,” the Court was not persuaded that the charitable trust doctrine must be, or even should be, applied to agricultural preservation easements.

In Maryland, the elements necessary to the creation of a charitable trust are: (1) a fiduciary relationship, (2) duties of trustees, (3) trust property, (4) manifestation of intention, and (5) a charitable purpose. Rosser v. Prem, 52 Md. App. 367, 377 (1982). It was far from apparent whether the easement agreement here reflected a “charitable purpose” or a charitable intent on the part of Bellevale.

Not only was the MALPF program created in part for economic reasons, but the consideration paid by MALPF for the easement ($796,500) was obviously beneficial to Bellevale and the continuation of Bellevale’s farming operation so long as it was practical to do so.

Thus, from the “settlor’s” viewpoint, any benefit to the public was incidental.

PRACTICE TIPS: Mere competition is not an evil which businessmen may enjoin as a wrong to them. For instance, it has been held that zoning laws did not give a party standing to enjoin another’s use of land for purposes of operating a shopping center where the sole basis for invoking them was the prevention of competition. Similarly, a gas station company was deemed to lack standing to challenge the issuance of a zoning construction permit to another gas station company one block away where its sole motive was to prevent competition.