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Opinions – 2/27/12: Maryland Court of Appeals

Criminal Procedure

Competency

BOTTOM LINE: Following the dismissal of felony charges because defendants remained incompetent after five years, their re-indictments on the same charges, as well as their continued confinement under criminal commitments based on such re-indictments, violated CP §§3–106 and 3–107 and defendants’ due process and equal protection rights.

CASE: Adams v. State, No. 352, Sept. Term, 2010 (filed Feb. 8, 2012) (Judges Graeff, Hotten & KENNEY (retired, specially assigned)). RecordFax No. 12-0208-00, 25 pages.

FACTS: In February 2001, John Ray was indicted for attempted first-degree murder and lesser included offenses. The circuit court found that Ray, a paranoid schizophrenic, was not competent to stand trial. Ray was confined under a criminal commitment to a State mental health facility for incompetent defendants who have been ordered to be confined under CP §3–106(b).

More than five years later, Ray moved to dismiss the charges against him, citing the mandatory dismissal provision in CP §3–107(a)(2). The circuit court denied Ray’s motion, but the Court of Appeals reversed and remanded with instructions to dismiss the charges. Ray v. State, 410 Md. 384 (2009).

Six weeks after the Ray opinion was filed, the State re-indicted Ray on the same charges. The State continued to confine Ray under a criminal commitment based on the second indictment. Ray moved to dismiss the second indictment. While that motion was pending, Ray responded to the second indictment, pleading that he was still not competent to stand trial. Ray was examined and he was again found to be incompetent to stand trial. The circuit court denied Ray’s motion to dismiss the second indictment.

In 1998, Michael Adams was indicted on charges of attempted first-degree rape and related offenses. Since Adams was first found incompetent to stand trial due to his limited cognitive ability, he has been continuously confined under a criminal commitment. After the decision in Ray, Adams moved to dismiss his indictment, which the circuit court granted. Two months earlier, however, the State had re-indicted Adams on the same charges. After Adams pleaded incompetency, he was re-evaluated.

Adams moved to dismiss the second indictment, which the circuit court denied. The Court of Appeals consolidated Adams’ and Ray’s appeals.

The Court of Appeals reversed the orders denying Ray’s and Adams’ motions to dismiss their re-indictments and remanded for further proceedings.

LAW: In Jackson v. Indiana, 406 U.S. 715 (1972), the Supreme Court held that, by subjecting Jackson, an incompetent defendant, “to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by [statute], …Indiana deprived [Jackson] of equal protection of the laws under the Fourteenth Amendment.” Id. at 738.

The Supreme Court held that “a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.” Id. at 739.

Implementing the due process and equal protection principles recognized in Jackson, CP §3–106 and §3–107 establish a maximum period for holding an incompetent defendant under indictment and standards for confining such a defendant under a criminal commitment.

CP §3–106(b) authorizes the court to involuntarily confine an incompetent defendant against whom criminal charges are pending, under a criminal commitment. Under that section, if the court finds that the defendant is incompetent to stand trial and is a danger to self or the person or property of another, the court may order the defendant criminally committed until “(i) the defendant no longer is incompetent to stand trial; (ii) the defendant no longer is…a danger to self or the person or property of others; or (iii) there is not a substantial likelihood that the defendant will become competent to stand trial in the foreseeable future.”

Under CP §3–107(a)(2), applied here, “the court shall dismiss the charge against a defendant found incompetent to stand trial…(2) when charged with a felony or a crime of violence as defined under [CL] §14–101, after the lesser of the expiration of 5 years or the maximum sentence for the most serious offense charged.”

Defendants confined under criminal commitments receive at least annual judicial reconsideration of their incompetency. When a reviewing court finds that an untried defendant is not likely to become competent in “the foreseeable future,” and that involuntary confinement is still necessary to protect the defendant and/or public, confinement may continue only if the State satisfies the “clear and convincing evidence” standard required for civil commitment. See CP §3–106(c).

Conversion of an incompetent person’s confinement from a criminal commitment to a civil commitment brings additional substantive and procedural rights. See generally CP §3–106(e); HG §10–701(c); HG §10–706.

In holding that dismissal of Ray’s original indictment was mandated by §3–107(a)(2), the Court of Appeals observed that “the State may re-institute charges.” Ray, 410 Md. at 420. But that phrase was only the first part of a sentence that ended by also pointing out “that civil commitment proceedings may be initiated against Ray.” Id. When this sentence is read in the full context of the Court’s decision and rationale, the Court of Appeals was simply acknowledging, in dictum, that it would be appropriate for the State to re-indict Ray if and when he becomes competent to stand trial, and that, in the meantime, the State could initiate civil commitment proceedings in order to maintain Ray’s involuntary confinement.

Although the Supreme Court in Jackson declined to set a time limit on the “reasonable period” for making a probable competency determination, the General Assembly has effectively done so in §§3–106 and 3–107.

The dismissal deadlines in §3–107(a) provide yardsticks for measuring “the reasonable period of time necessary to determine whether there is a substantial probability that [the defendant] will attain [competency] in the foreseeable future.” See Jackson, 406 U.S. at 738.

In the case of felony indictments like those at issue here, the five-year period in §3–107(a)(2) reflects the General Assembly’s assessment that, except in “extraordinary” cases, this is sufficient time for the court to make the probable competency determination required by Jackson and CP §3–106. Thus, under the statutory scheme implementing Jackson, when a defendant remains incompetent after five years, as in the case of Ray and Adams, the felony indictment must be dismissed and any further confinement must be converted from a criminal to a civil commitment.

Section 3–107(a) expressly provides that such a dismissal is without prejudice, indicating the General Assembly contemplated that, at one point in time, the State could decide to re-indict after such a dismissal. Generally, “whether the State’s Attorney does or does not institute a particular prosecution is a matter which rests in his discretion[,]” Brack v. Wells, 184 Md. 86, 90 (1944), and the statutory scheme does not limit the State’s authority to re-indict.

In order to avoid undermining the statutory scheme designed to protect the constitutional rights of incompetent persons, the State may not re-indict after a §3–107(a) dismissal until it can articulate a good faith basis to believe that the defendant has become competent to stand trial. Otherwise, the only purpose that can be served by the re-indictment is the constitutionally impermissible purpose of continuing the defendant’s confinement under a criminal commitment.

Accordingly, the circuit court erroneously concluded that Adams’ second indictment did not violate his due process right to dismissal under CP §3–107(a)(2). The State could not lawfully re-indict Adams because there was no reason to believe that Adams had become competent to stand trial.

Similarly, in Ray’s case, the circuit court erred in concluding that the Court of Appeals authorized re-indictment despite Ray’s continuing incompetency, and that Ray’s confinement under a criminal commitment could continue until he requested and established his right to a civil commitment. In these circumstances, denying Ray’s motion to dismiss the second indictment and requiring Ray to establish his right to a civil commitment violated the due process and equal protection rights protected under CP §§3–106 and 3–107.

Accordingly, the pending indictments against Ray and Adams must be dismissed. The State may re-indict only if it has a good faith belief that Ray or Adams have become competent to stand trial. As long as each of them remains incompetent, the State, to continue confinement, may initiate proceedings to convert his commitment from criminal to civil, in accordance with CP §3–106.

COMMENTARY: To come within the collateral order doctrine, the order sought to be reviewed must be one that: “(1) conclusively determines the disputed question, (2) resolves an important issue, (3) resolves an issue that is completely separate from the merits of the action, and (4) would be effectively unreviewable if the appeal had to await the entry of a final judgment.” Stephens v. State, 420 Md. 495, 502 (2011). The State contended that these orders did not satisfy the third and fourth requirements for collateral order review.

In Jolley v. State, 282 Md. 353 (1978), the Court of Appeals concluded that a “decision that an accused is incompetent to stand trial appears to fall in that small class which finally determines claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. at 357.

As in Jolley, the incompetency issue presented by these interlocutory appeals is entirely separate from the merits of the underlying criminal charges against Ray and Adams. The orders denying the motions to dismiss the re-indictments can easily be reviewed without considering whether they are guilty of the crimes for which they have been re-indicted.

Moreover, the State’s argument that the challenged orders are not “effectively unreviewable” was premised on a factual scenario that did not exist in either of these appeals, i.e., that Ray and Adams have become competent.

Thus, the orders denying Ray’s and Adams’ motions to dismiss their current indictments were appealable under the collateral order doctrine.

PRACTICE TIPS: When the State nol prosses criminal charges and later re-files them, “the prosecution must be acting in good faith or so as to not evade or circumvent the requirements of the statute or rule setting a deadline for trial.” Curley v. State, 299 Md. 449, 459 (1984).

Evidence

Hearsay

BOTTOM LINE: In defendant’s criminal trial for crimes relating to stabbing death of victim, witness’s statement to police at the scene of the crime shortly after stabbing occurred, in which witness described the assailant, was not inadmissible under the Confrontation Clause because it was made for the primary purpose of assisting police in meeting an ongoing emergency and was therefore non-testimonial in nature.

CASE: Brock v. State, No. 1974, Sept. Term, 2010 (filed Feb. 9, 2012) (Judges EYLER, D., Woodward & Raker (retired, specially assigned)). RecordFax No. 12-0209-04, 27 pages.

FACTS: On March 1, 2009, Nelson Gause was fatally stabbed while dancing at Kolper’s Tavern, a bar and nightclub in Baltimore City. Gause’s friend Michael Pryor attempted to stop the perpetrator from fleeing the scene, sustaining cuts to his hand, head, and shoulder in the process. The police were called, and other patrons attempted to assist Gause, but he lost consciousness before medical personnel arrived and bled to death.

Baltimore City Police Officer Nuradin Admeged was the first police officer to arrive on the scene. He found Gause lying on the dance floor, bleeding, and called for medical assistance. Nearby, he saw Pryor pacing back and forth, bleeding from his hands. Officer Admeged approached Pryor, and Pryor told him that Gause had been stabbed, that he had witnessed the stabbing, that the assailant had fled to the parking lot, and that he and the man had fought. Pryor additionally stated that he had sustained a cut to his hand as a result, and that he had seen the assailant get into the passenger side of a cream-colored car, which drove off. Pryor described the assailant as a black male with his hair in cornrows, between the ages of 25 and 30, wearing a gray T-shirt, blue jeans, and Nike boots.

Officer Mario Vero also responded to the call from the Tavern. Soon after arriving, he left to respond to a second call reporting that a man was knocking on doors asking for help on a Falls Road, a street about a quarter-mile from the Tavern. Officer Vero encountered Brock on the front porch of 3341 Falls Road. Brock was bleeding from his hands. His hair was in cornrows, and he was wearing a black polo shirt, jeans, and black boots. Officer Vero arrested Brock and arranged for his transportation to a local hospital.

The following day, Detective Gary Niedermeier, the lead investigator on the case, went to the hospital to interview Brock. Brock waived his Miranda rights and gave an oral statement. He admitted being at the Tavern on the night and at the time in question, and said that “something happened and everybody went outside.” He stated that, while he was outside the Tavern, he was hit from behind and got into a fight with a light-skinned male who looked “like a Muslim.”

In the following months, Pryor gave several statements to the police. He identified Brock in a photographic array and in a video surveillance tape from the Tavern. On February 17, 2010, Pryor met with Detective Niedermeier and the prosecutor to prepare for trial. During the meeting, Pryor denied having seen Brock stab Gause and recanted his prior identifications of Brock. On March 2, 2010, the State summarized Pryor’s February 17, 2010 statement in a supplemental discovery notification to the defense. On May 15, 2010, Pryor was murdered.

Brock was subsequently indicted in circuit court on charges of first-degree murder of Gause and related crimes, and attempted first-degree murder of Pryor and related crimes. Brock moved to suppress Pryor’s March 1, 2009 statement and the subsequent statements Pryor had given to the police identifying Brock as Gause’s and Pryor’s assailant. The court denied the motion to suppress.

During the ensuing jury trial, Officer Admeged related the substance of what Pryor had told him at the scene. Brock attempted to introduce into evidence the State’s supplemental discovery notification summarizing Pryor’s February 17, 2010 statement, but the court refused to admit the statement into evidence. The jury acquitted Brock of all charges relating to Gause’s death, but convicted him of second-degree assault of Pryor.

Brock appealed to the Court of Special Appeals, which affirmed.

LAW: There was no dispute that Pryor’s March 1, 2009 statement was hearsay. However, the prosecutor argued that the statement was admissible as an “excited utterance.” See Md. Rule 5–803(b)(2). Brock contended that Pryor’s March 1, 2009 statement was testimonial hearsay and, as such, even if it fell within the “excited utterance” exception to the general rule excluding hearsay evidence, the statement was nonetheless inadmissible under the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36 (2004).

The Confrontation Clause of the Sixth Amendment to the federal constitution guarantees that, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. In Crawford, the Supreme Court held that it is a violation of a defendant’s rights under the Confrontation Clause to admit into evidence at trial a “testimonial” statement by a declarant who is not subject to cross-examination. Crawford, 541 U.S. at 51. In a subsequent opinion in consolidated cases, Davis v. Washington and Hammon v. Indiana, the Supreme Court elaborated upon the meaning of “testimonial” as used in Crawford. See Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006). The Supreme Court concluded that statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency; they are testimonial when the circumstances objectively indicate that there is no such ongoing emergency and the primary purpose of the interrogation is to prove past events potentially relevant to later criminal prosecution. Id. at 819.

After the motion hearing and trial in the present case, the Supreme Court decided Michigan v. Bryant, 131 S.Ct. 1143 (2011). In that case, Detroit police responded to a shooting call at a gas station, where they found the victim, Covington, lying on the ground next to his car with a gunshot wound to the abdomen. The officers asked Covington what had happened, who had shot him, and where the shooting had occurred, and Covington told them that Rick Bryant, the defendant, had shot him approximately 25 minutes earlier, at Bryant’s house, following which Covington managed to get into his car and drive to the gas station. Covington died of his injuries. The Bryant Court held that Covington’s statements to the police were non-testimonial, as the circumstances involved a potential threat to the police and the public at large. Id. at 1156.

The Bryant Court emphasized that, in assessing whether a statement is testimonial, the ultimate inquiry is whether the primary purpose of the interrogation was to meet an ongoing emergency, or to establish past events for purposes of a criminal prosecution. Id. at 1157. In so inquiring, it is necessary to objectively evaluate the circumstances in which the encounter occurred and the statements and actions of the parties. Id. at 1156. Thus, the relevant focus is not on the subjective or actual purpose or intent of the interrogator or the declarant, but on the purpose that reasonable participants would have had under the same circumstances. Id.

Here, the total circumstances surrounding Pryor’s March 1, 2009 statement to Officer Admeged, viewed objectively, made clear that “the primary purpose” of the officer’s questioning of Pryor was to meet an ongoing emergency. Likewise, Pryor’s answers to Officer Admeged’s questions strongly suggested a primary purpose of assisting the police in responding to the ongoing emergency by apprehending the perpetrator.

As in Bryant, when Officer Admeged arrived, there was at least one victim in critical condition and an unknown perpetrator. Thus, the facts reported by Pryor to the police were of the type necessary to respond to the emergency. Therefore, Pryor’s March 1, 2009 statement to Officer Admeged was non-testimonial, and its admission into evidence was not contrary to the Confrontation Clause. As the parties agreed, the statement was an excited utterance not barred by the rule against hearsay.

Accordingly, the judgment of conviction was affirmed.

COMMENTARY: Brock additionally contended that the circuit court erred in refusing to admit into evidence Pryor’s February 17, 2010 statement to Detective Niedermeier and the prosecutor. On that day, Pryor indicated to Detective Niedermeier and the State prosecutor that he did not see Brock stab Gause, effectively recanting the portion of his March 1, 2009 statement in which he said he had seen Gause being stabbed.

Clearly, given that he was on trial for the first-degree murder of Gause, Brock sought that Pryor’s February 17, 2010 statement be admitted for its truth, as evidence that Pryor did not see him stab Gause. Given that Brock was ultimately acquitted of Gause’s murder, the fact that the court ruled that the defense could not introduce Pryor’s February 17, 2010 statement as substantive proof that Pryor did not see the appellant stab Gause was of no import. However, Brock now argued that the February 17, 2010 statement should have been admitted for the purpose of impeaching Pryor’s March 1, 2009 Statement to Officer Admeged.

However, Brock’s impeachment argument lacked merit. First, the February 17, 2010 statement was not independently admissible, as it was a supplemented discovery response by the State to the defense advising the defense of remarks Pryor had made to Detective Niedermeier (and a prosecutor) during a meeting on February 17, 2010. Pryor’s remarks during that meeting were not recorded, written, or signed. Thus, to the extent that they would be admitted into evidence for any purpose, they would have had to come in through the testimony of Detective Niedermeier.

There was no proffer, however, of what Detective Niedermeier was going to say as to precisely what Pryor had said during the February 17, 2010 meeting. Second, even if it could be assumed that Detective Niedermeier’s only testimony about what Pryor said in the February 17, 2010 meeting was that Pryor denied seeing Brock stab Gause and denied making earlier statements that he saw Gause being stabbed, the impeachment value of that testimony would have been virtually worthless vis-à-vis the assault on Pryor. Therefore, any error in not admitting it for impeachment was harmless.

PRACTICE TIPS: Under the Maryland Rules of Evidence, a hearsay statement not specifically covered by any of the other statutory exceptions to the hearsay exclusionary rule may nevertheless be admitted under “exceptional circumstances,” if there exist equivalent circumstantial guarantees of trustworthiness. Such a statement may not be admitted under the “exceptional circumstances” exception, however, unless the proponent of the statement makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the intention to offer the statement and the particulars of it, including the name and address of the declarant.

Labor & Employment

Federal Employers’ Liability Act

BOTTOM LINE: Railroad worker’s claim for the negligent use of ballast in rail yard walkways brought under the Federal Employers’ Liability Act was not precluded by the Federal Railroad Safety Act.

CASE: CSX Transportation, Inc. v. Pitts, No. 837 Sept. Term, 2010 (filed Feb. 8, 2012) (Judges Eyler, D., Graeff & WATTS). RecordFax No. 12-0208-01, 57 pages.

FACTS: In 1970, Edward Pitts began his railroad career with CSX Transportation, Inc.’s predecessor. From December 1972 until June 1974, Pitts worked as a brakeman conductor in the train and engine department. A brakeman is someone who “rides on the train with the engineer,” dismounts trains to throw the switches which physically move the rails to change the direction of the train from one track to another, and connects or knocks the brakes off of rail cars.

Pitts testified that in his time as a brakeman, he threw fifty to seventy-five switches daily, which required squatting or kneeling to unlock the switch, pull the switch up, and throw it over. Pitts estimated that overall, he walked approximately five to six miles per day while acting as a brakeman. According to Pitts, he conducted most of these tasks on surfaces usually consisting of large ballast, crushed rock which is about 1″ to 2 3/4″ in size.

From June 1974 until the late 1990’s, Pitts worked mainly as a fireman, hostler and brakeman, with some time spent serving as an engineer. Pitts estimated that as a fireman and hostler, he walked approximately two miles per day. Pitts estimated that overall, from 1974 until the late 1990’s, he walked two miles per day in rail yards on large ballast.

From the late 1990’s through the time of trial in April 2010, Pitts worked as an engineer, walking approximately a half a mile to one and a half miles a day. At the time of trial, Pitts was fifty-nine years old and still working as an engineer. Pitts estimated that in his position as an engineer, he continues to throw approximately five or six switches and connects approximately ten air brake hoses daily. Overall, Pitts performed most of his tasks on rail yard surfaces consisting of large ballast.

Pitts first began experiencing difficulties with his knees in 2003. Pitts underwent arthroscopic surgery on both knees in January 2008. By that time, the doctor had indicated that Pitts had osteoarthritis in his knees. After five months of recovery, Pitts returned to work. Over time, Pitts’ knees worsened and again became painful. According to Pitts’ expert witnesses, his knees continue to worsen, and he will need replacement surgery.

Pitts sued CSX under the Federal Employers’ Liability Act, 45 U.S.C. §§51 (FELA) in December 2008, alleging negligence on the part of CSX in the use of “large ballast” in rail yards and on walkway surfaces, and seeking damages for injuries, including those to his knees. The jury returned a verdict in favor of Pitts for a total of $1,780,000 in damages.

CSX appealed to the Court of Special Appeals, which affirmed.

LAW: CSX contended that the Federal Railroad Safety Act (FRSA) and the regulations issued thereunder precluded Pitts’s claims because the FRSA preempts State and common law requirements concerning subject matter covered by the Act. CSX argued that 49 C.F.R. §213.103 precludes FELA claims such as those brought by Pitts because the regulation allegedly covers the size and type of ballast used by railroads in mainline and secondary track.

FELA creates a cause of action for railroad employees injured on the job due to the negligence of employers. See 45 U.S.C. §51. A railroad employee has the choice of bringing a FELA claim in either State or federal court. 45 U.S.C. §56. FELA actions brought in State court, although subject to State procedural rules, are governed by federal substantive law. St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985).

FELA is to be construed liberally to provide for easy recovery by an injured railroad employee in a FELA action. See Jamison v. Encarnacion, 281 U.S. 635, 640 (1930). FELA cases have a different standard of review than common law negligence cases. An “employee-friendly standard of review” is applied in FELA cases, noting that such cases “call[ ] for an interpretive approach that is significantly different from that which ordinarily prevail [ ] in a suit for common law negligence.” Norfolk S. Ry. Corp. v. Tiller, 179 Md.App. 318, 326 (2008).

Railroads are governed by the Federal Railroad Safety Act (FRSA). 49 U.S.C. §20106, a provision of the FRSA, provides that some actions brought in State courts are preempted by the statute. 49 U.S.C. §20106(a)(2) states that if the Secretary of Transportation or the Secretary of Homeland Security “prescribes a regulation or issues an order covering the subject matter of the State requirement,” then the State requirement must give way to the federal requirement and any action brought based on that State requirement is preempted.

Congress has clarified, however, that not all State law causes of action are preempted by 49 U.S.C. §20106(a)(2). 49 U.S.C. §20106(b)(1) provides: “Nothing in [§ 20106] shall be construed to preempt an action under State law seeking damages for personal injury…alleging that a party—(A) has failed to comply with the Federal standard of care…; (B) has failed to comply with its own plan, rule, or standard…; or (C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2).”

In 1971, the Federal Railroad Administration (FRA) promulgated 49 C.F.R. §213.103, which provides: “Unless it is otherwise structurally supported, all track shall be supported by material which will— (a) Transmit and distribute the load of the track and railroad rolling equipment to the subgrade; (b) Restrain the track laterally, longitudinally, and vertically under dynamic loads imposed by railroad rolling equipment and thermal stress exerted by the rails; (c) Provide adequate drainage for the track; and (d) Maintain proper track cross level, surface, and alinement.” 49 C.F.R. § 213.103 has thus remained the same for over forty years.

In CSX Transp., Inc. v. Miller, 159 Md.App. 123, 167–71 (2004), the Court of Special Appeals held that a FELA action in which the plaintiff sought recovery for bilateral osteoarthritis of the knees allegedly caused by large ballast in rail yards and walkways alongside rail tracks was not precluded by 49 C.F.R. §213.103.

“Even a surface glance at the FRSA regulation relied on by CSX persuades us that it does not touch, let alone pervasively cover, the railroad yard conditions that allegedly fell short of the safe and healthy workplace environment that CSX was obligated to provide for its employees. The regulation is concerned with the track and its immediately adjoining area and not with railroad yards. The obvious concern, moreover, is with the safety of the train, the prevention of derailments, and not the quality of the work place provided for employees.” Id. at 167.

The Court held that 49 C.F.R. §213.103 does not preclude FELA claims alleging negligent use of ballast on walkways. Miller, 159 Md.App. at 167–70. The Court concluded that walkways are not covered by the FRSA regulation and therefore a FELA action concerning the walkways is not precluded. Id. at 170–71.

Similarly, in CSX Transp., Inc. v. Bickerstaff, 187 Md.App. 187 (2009), the Court of Special Appeals held that railroad employees’ FELA claims were not precluded by 49 C.F.R. §213.103. Bickerstaff involved ballast used in rail yard walkways, not ballast used to support the mainline track. Id. at 263.

Consistent with Bickerstaff and Miller, the plain language of 49 C.F.R. §213.103 demonstrates that the regulation applies to ballast used for track support. The FRSA regulation does not “cover” or “substantially subsume” the issue of ballast used in rail yards and on walkways. 49 C.F.R. §213.103 is located within a subpart of the FRA’s transportation regulations labeled “Track Safety Standards.” The regulation mandates that “all track shall be supported by material” which can perform enumerated track support functions, and it is located within subpart “D” on “Track Structure.” 49 C.F.R. §213.103. Subpart “D” provides: “This subpart prescribes minimum requirements for ballast, crossties, track assembly fittings, and the physical conditions of the rails.” 49 C.F.R. §213.101.

On its face, 49 C.F.R. §213.103 does not require the use of ballast in rail yard areas or mention the safety of walking surfaces for railroad employees. Rather, the regulation concerns the track itself and not conditions of rail yards or walkways. See Miller, 159 Md.App. at 167.

The legislative history of the regulation leads to the conclusion that claims involving ballast used in rail yards and walkways are not precluded. The legislative history of 49 C.F .R. §213.103 demonstrates that Congress and the FRA have been largely silent as to ballast used in the rail yards and in walkways. The overarching theme through creation and amendment of the FRSA regulations has been one of track safety versus safety in employee working conditions.

Pitts alleged that he was injured “as a result of his repeated walking on improper ballast along the railroad tracks, in rail yards and other workplace areas.” Pitts’ claim extended beyond the ballast used for main line track support to the ballast used in rail yards and on walkways.

CSX failed to produce any evidence at trial supporting the contention that ballast used in the rail yards and in walkways provides track support as required by 49 C.F.R. §213.103. Thus, FELA claims involving the use of ballast in rail yards and walkways were not precluded by 49 C.F.R. §213.103.

COMMENTARY: Robert Jenkins and Robert Howe testified that they forwarded complaints to CSX from other railroad employees about the use of large ballast. CSX objected to Jenkins and Howe’s testimony, which the trial court overruled the objection.

“Rulings on the admissibility of evidence must normally be left to the sound discretion of the trial judge in actions under the Federal Employers’ Liability Act.” Bickerstaff, 187 Md.App. at 241. Prejudice, in the context of the balancing test, is: “Probative value is outweighed by the danger of ‘unfair’ prejudice when the evidence produces such an emotional response that logic cannot overcome prejudice or sympathy needlessly injected into the case.” Moore v. State, 84 Md.App. 165, 172 (1990).

In Miller, 159 Md.App. at 219–20, the same witnesses, Jenkins and Howe, were called to testify by Miller to establish that CSX had notice of possible problems posed by the use of large ballast. The Court of Special Appeals concluded that the testimony of both witnesses was relevant because it “bore directly on that issue of foreseeability or notice.”

Howe testified regarding complaints to CSX regarding the use of large ballast and a letter dated August 21, 1992, in which he advised CSX of the complaints.

In objecting, CSX failed to provide any basis for the theory that the prejudicial effect of Jenkins’s and Howe’s testimony or that admission of the letter rose to a level of “unfair prejudice.”

With respect to the cumulative effect of the testimony, Dr. Andres, an expert in the area of ergonomics and bio-mechanics, testified as to how he conducts an assessment, or investigation, of a company’s ergonomic problem. Dr. Andres testified that he reviews employee complaints to determine whether there is a pattern that could explain the cause of injuries to employees. In contrast, the testimony of Jenkins and Howe, as fact witnesses, addressed rail yard conditions and employee complaints that they received and which led them to write to CSX to notify it of the problems the employees were experiencing and to request appropriate relief. Thus, the circuit court did not abuse its discretion in overruling CSX’s objections to admission of the testimony of Jenkins and Howe or to the August, 1992 letter, as the evidence was relevant and neither substantially outweighed by the danger of unfair prejudice nor cumulative.

CSX contended that the circuit court abused its discretion by preventing CSX from cross-examining Pitts’s economics expert witness, Dr. Hamilton, as to the average age of retirement for railroad employees and the American Association of Railroads’ (AAR) work-life expectancy table for railroad employees.

In Bickerstaff, 187 Md.App. at 243, CSX attempted to cross-examine the same witness about statistics showing that the standard retirement age in the railroad industry was age sixty. Holding that the trial court did not abuse its discretion in not permitting the cross-examination, the Court explained: “[E]vidence of one’s eligibility to receive retirement benefits at age 60 is relevant and material. The question posed to Dr. Hamilton, however, did not bear on the appellees’ eligibility to receive retirement benefits at age 60. Instead, appellant sought to question Dr. Hamilton, not with evidence but with purported statistical information that ‘the overwhelming majority of people that retire in the railroad industry were, in fact, 60 years old.’ Given that the question posed did not relate to appellees individually, the determination as to the relevance of Dr. Hamilton’s answer fell within the trial judge’s discretion.” Bickerstaff, 187 Md.App. at 244.

Similarly, CSX did not question Dr. Hamilton as to facts already in evidence, but rather attempted to cross-examine Dr. Hamilton as to “statistical information” that did not relate to appellee “individually.” Thus, the trial court did not abuse its discretion.

PRACTICE TIPS: “[C]ourts look with favor on FELA suits and the rewards for a successful plaintiff are invariably higher than would be the case with a workers’ compensation award[,]” as in Miller where the jury award was $1,500,000, the Court noted that “[n]ot many workers’ compensation awards would ever reach that figure for an osteoarthritic left knee.” Miller, 159 Md.App. at 134-35.

Real Property

Title defects

BOTTOM LINE: Plaintiff did not have a cognizable negligence claim against defendants, who issued policies of title insurance to plaintiff, for failure to discover and report a prior conveyance of the property.

CASE: Columbia Town Center Title Company v. 100 Investment Limited Partnership, No. 0915, Sept. Term, 2009 (filed Feb. 2, 2012) (Judges Zarnoch & KENNEY (retired, specially assigned)) (Judge Meredith dissenting). RecordFax No. 12-0202-01, 46 pages.

FACTS: On August 24, 1982, Frances and Mildred Miller conveyed a parcel of land (the Parcel) to Ashan Khan, M.D., P.A., Profit Sharing Plan (Dr. Khan). That conveyance was properly recorded in the land records of Howard County.

On October 14, 1986, the Parcel was included in a conveyance to 100 Investment Limited Partnership (the Partnership) as part of a 49.845–acre parcel (the Miller Tract). In conjunction with that purchase, Cambridge Title Company issued a policy to the Partnership, underwritten by Chicago Title Insurance Company, pursuant to an agency agreement between Cambridge and Chicago Title that did not reflect the prior conveyance to Dr. Khan. Cambridge later went out of business.

Shortly thereafter, in conjunction with a transfer of ownership interests in the Partnership, Columbia Town Center Title Company, at the request of the Partnership, issued a policy of title insurance for all land purportedly owned by the Partnership including the Parcel. That policy, which was underwritten by Safeco Title Insurance Corporation, was issued on December 18, 1986, pursuant to an agency agreement between Columbia and Safeco. It took no exception for the prior conveyance to Dr. Khan. When Safeco subsequently merged with Chicago Title, Chicago Title became responsible for the Safeco title insurance policy.

In 1994, the Partnership subdivided the Miller Tract—including the Parcel—for residential development. Howard County approved the subdivision plan, and on March 1, 1995, the Partnership executed and recorded a Declaration of Covenants, Easements, Charges and Liens in connection with the development. During the subdivision process, the Partnership dedicated a portion of the Parcel as a public utility easement.

On July 7, 1995, the Partnership conveyed part of the Parcel to NVR Homes, Inc. as part of five townhouse lots. The Partnership conveyed the remainder of the Parcel to Lynwood Association, Inc. on August 30, 1995.

On July 26, 2001, the Partnership learned of the prior conveyance of the Parcel when Dr. Kahn agreed to sell land, including the Parcel, to 100–103 Center, LLC, and Courtyards at Timbers, LLC (collectively Timbers). In connection with that sale, Timbers engaged a surveyor who discovered townhouses located on a portion of the land that Dr. Khan was selling. Timbers contacted the Partnership and informed it of the impending sale.

To cure any title defect in its prior conveyances, the Partnership negotiated with Timbers to purchase the Parcel from Timbers after Timbers’ purchase from Dr. Khan was complete. The Partnership bought the Parcel from Timbers for $175,348. The Partnership also incurred $16,162 in associated expenses, for a total cost of $191,510.

Dr. Khan sued the Partnership for trespass in the district court (Khan Litigation). The district court entered judgment for Dr. Khan, awarding nominal damages of $1.

On April 5, 2002, Chicago Title filed a suit for declaratory judgment in federal district court against the Partnership, asking the court to determine Chicago Title’s responsibilities under the title insurance policy issued on December 18, 1986. The federal district court granted summary judgment for the Partnership. The 4th Circuit reversed in part and affirmed in part. Chicago Title Ins. Co. v. 100 Inv. Ltd. P’ship, 355 F.3d 759, 766 (4th Cir.2004).

In 2004, the Partnership, in the circuit court, sued Cambridge and Columbia (collectively, the Title Companies) and Chicago Title alleging negligence against the Title Companies for their failure to discover and report the Khan Deed; and against Chicago Title based on vicarious liability for the negligence of the Title Companies. It amended the complaint to include a breach of contract claim against Columbia.

The circuit court granted summary judgment in favor of the Title Companies and Chicago Title, finding that the Partnership had not stated a cause of action for negligence. The Court of Special Appeals reversed the grant of summary judgment and remanded the case.

A bench trial was held. The court found the Partnership’s economic injury was proximately caused by the Title Companies’ breach of the duty of care they owed to the Partnership, and that Chicago Title was vicariously liable for the negligence of the Title Companies. The court awarded the Partnership $191,510.

The Title Companies appealed to the Court of Special Appeals, which reversed.

LAW: Title insurance protects the insured against loss, damage or liability resulting from defects in the title to real property owned by the insured. See IN §1–101(qq) (2011). Title insurance policies are generally standardized and include the terms and the dollar amount of coverage, exclusions from coverage and any prerequisites to be satisfied before the policy takes effect. Title insurance typically affords the insured three “kinds” of coverage. See Stewart Title Guaranty Co. v. West, 110 Md.App. 114, 128 (1996).

Maryland recognizes an action in tort if the plaintiff can show: “(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 that duty.” Baltimore Gas & Electric Co. v. Lane, 338 Md. 34, 43 (1995). “The mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort.” Jones v. Hyatt Ins. Agency, Inc., 356 Md. 639, 654–55 (1999).

Sometimes, however, a duty imposed by law and enforceable in tort overlaps a contractual obligation. “Where a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of circumstances surrounding or attending the transaction, the breach of such duty is a tort.” Jacques v. First Nat’l Bank of Maryland, 307 Md. 527, 534 (1986).

In Corcoran v. Abstract & Title Company of Maryland, Inc., 217 Md. 633 (1958), a title company engaged to examine title, failed to report a properly indexed instrument impacting the parcel. Id. at 635–37. The Court of Appeals held that “[o]ne who undertakes to examine a title for compensation is bound to exercise a reasonable degree of skill and diligence in the conduct of the transaction.’” Id. at 637 (quoting Watson v. Calvert Bldg. Ass’n, 91 Md. 25, 33 (1900)). “It is generally recognized that damages are recoverable on the theory of breach of contract, and the legal situation is not changed by the fact that the contractual act bargained for is negligently performed.” Id. See also Lewis v. Long & Foster Real Estate, Inc., 85 Md.App. 754 (1991).

Thus, under Corcoran, a title examiner is contractually bound to exercise “a reasonable degree of skill and diligence,” but the contract establishes the bounds of the examiner’s liability, whether enforced in tort or contract.

The Partnership, however, citing Jacques, argued that Maryland law provides for tort recovery as a matter of public policy. In Jacques, the plaintiffs submitted to a bank an application for a loan to satisfy the terms of an executed real estate contract that required that they settle on receiving a loan at a certain interest rate. The bank first informed the Jacqueses that they qualified for a $74,000 loan, but later informed them that a mistake had been made and that they only qualified for a $41,400 loan. As a result, the Jacqueses had to forfeit their $10,000 deposit because a loan for $41,400 would not permit them to complete the purchase.

The plaintiffs in Jacques sued the bank for malicious interference with contract, gross negligence and negligence. A jury returned a verdict in favor of plaintiffs on the negligence claim. The Court of Special Appeals reversed. The Court of Appeals, however, determined that a duty of care was owed. Jacques, 307 Md. at 528. The Court reiterated that a negligent breach of contract “‘itself, is not enough to sustain an action sounding in tort.’” Id. at 534 (quoting Heckrotte v. Riddle, 224 Md. 591, 595 (1961)). But, should a legal duty attend the contractual relationship, “‘the breach of such duty is a tort and the injured party may have his remedy by an action on the case, or he may waive the tort and sue for the breach of the contract.’” Id. (quoting Slacum v. Eastern Shore Trust Co., 163 Md. 350, 352–53 (1932)). Nevertheless, “[w]here the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This requirement is satisfied by contractual privity or its equivalent.” Id. at 534–35. Because the bank undertook to process the loan application, a contract existed and the intimate nexus inquiry was satisfied. Id. at 540. The Court concluded that a concomitant tort duty should be recognized under these circumstances because it was consistent with Maryland policy “and reasonable in light of the nature of the banking industry and its relation to the public welfare.” Id. at 543.

There is no statutory obligation in Maryland, however, that imposes on either a title company or a title insurer a duty to exercise due care in performing a title search. Maryland public policy imposes a duty, independent of any contractual relationship, of reasonable care in the exercise of professional skill and judgment, as in the case of attorneys, physicians, architects and accountants. Jacques, 307 Md. at 541. However, conducting a title search as part of the risk assessment in issuing a title insurance policy is not the same as an attorney rendering a title opinion on which a client is going to rely. See BOP §10–102(2).

In Jacques, the bank was aware the real estate sales contract obligated the Jacqueses, who were unsophisticated homebuyers, to accept the bank’s financing terms or either forfeit $10,000. Moreover, the Jacqueses had no other means of recovery except against the bank. Here, a real estate developer, presumably more sophisticated in real estate transactions than the average home buyer, purchased a title insurance policy to protect against losses resulting from non-excluded title defects. Thus, Jacques did not require that tort liability was extended to the Title Companies.

While there is no Maryland decision directly addressing the duty of a title insurer or its agents to conduct a full title examination, the Court of Special Appeals adopted the view in Stewart Title Guaranty Co. v. West, 110 Md.App. 114, 131 (1996), that a title insurance policy is a contract for indemnity and not a guarantee of marketable title.

In West, plaintiffs had purchased a piece of property and employed Land Title Research of Maryland, Inc. (Land Title) to serve as their settlement agents. The Wests purchased both an “owner’s policy” and a “lender’s policy,” issued by Stewart Title. Id. at 120. Later, multiple title defects were discovered. Finding title unmarketable, the circuit court granted a motion for summary judgment against the title insurer. Id. at 126.

The Court of Special Appeals vacated the motion for summary judgment, finding that the issue of marketability was not dispositive of liability. Rather, the issue was whether Stewart Title breached the Policy. Id. at 140. Adopting the predominant view among jurisdictions considering the issue, the Court concluded that “a title insurer does not guarantee the state of the title. Instead a title insurance policy is a contract of indemnity,” id. at 131, in which, the insurer agrees to reimburse the insured for loss or damage sustained as a result of title problems, if coverage for the loss or damage is not excluded from the policy. See First Federal Savings and Loan Ass’n of Fargo, N.D. v. Transamerica Title Ins. Co., 19 F.3d 528, 530 (10th Cir.1994).

Thus, holding a title insurer liable in tort for a negligent title examination by its agents conflicts with the holding in West. To create a tort remedy for a negligent title search performed for the issuance of a title insurance policy would make the title insurer a guarantor of title and deprive the insurer of its option to cure the title or to pay for covered losses as contracted for in the title insurance policy.

Accordingly, the Partnership did not have a cognizable negligence claim for breach of duties owed to it by the Title Companies.

COMMENTARY: An agent is authorized to act on behalf of and to bind the principal. See Walton v. Mariner Health of Md., Inc., 391 Md. 643, 655 (2005). For a principal to be liable for the tortious acts of its agent, the relationship must be one of master and servant, and the servant must be acting in the scope of the agency agreement. Sanders v. Rowan, 61 Md.App. 40 (1984).

The decisive factor in determining the existence of a master-servant relationship is the level of control that the principal exerts over the agent. Chevron U.S.A., Inc. v. Lesch, 319 Md. 25, 33 (1990). See also RESTATEMENT (SECOND) OF AGENCY § 220(1) (1958).

In Maryland, an agent is authorized to bind the principal within the limits of the agent’s prescribed authority. See Walton, 391 Md. at 655. This authority includes not only those acts committed in the scope of the agent’s actual authority, but also acts occurring within the scope of its apparent authority. See RESTATEMENT (SECOND) OF AGENCY § 219(1)-(2) (1958).

One cannot recover against an insurance provider for an agent’s acts where the policy placed the insured on notice that the acts are beyond the scope of the agent’s authority. See Reserve Ins. Co. v. Duckett, 240 Md. 591 (1965).

Here, both the agency agreement and insurance policy limited the Title Companies’ actual and apparent authority to act on behalf of the title insurer. Cf. Eureka–Maryland Assur. Corp. v. Samuel, et al., 191 Md. 603 (1948). The agency agreement unambiguously restricted Cambridge’s authority to matters regarding the scope of title insurance.

As a general rule, the extent and scope of liability of an insurer is determined by the insurance policy itself. An insurance company that underwrites specific coverage “should not subsequently be expected to assume liability for a risk which it expressly excluded.” Matta v. Government Employees Ins. Co., 119 Md.App. 334 (1998).

The policy issued by Safeco was a standard policy. Although, the policy agreed to indemnify the insured for losses, the policy did not guarantee title was without defect, West, 110 Md.App. at 131, or that the exclusions represented all defects disclosed in the public record.

Any preliminary commitment issued on behalf of Safeco and countersigned by Columbia related only to the issuance of a title insurance policy. It is not a title abstract or independent title opinion for which the title insurer would be liable outside the terms of its policy. Therefore, both policies put the Partnership on notice that the Title Companies were agents of Safeco or Chicago Title only for the issuance of title insurance and did not confer actual or apparent authority on the Title Companies to provide the Partnership with a separate guarantee of title for which the insurer would be responsible.

Thus, Chicago Title was not vicariously liable for any negligence of the Title Companies related to the status of title to the Parcel. Their liability was limited to the terms of its policy.

DISSENT: The dissent agreed with the majority’s conclusion that Chicago Title was not vicariously liable for the negligence of the Title Companies. According to the dissent, however, the Partnership had a cause of action in tort against the Title Companies for their negligent title services. Alternatively, since the Partnership included in their amended complaint a breach of contract count against Columbia, they should have been permitted to recover against Columbia on the contract count.

PRACTICE TIPS: A title abstract, covering a particular period of time, reflects what appears in the public records affecting title to a parcel of land, and includes any conveyances or encumbrances of the parcel. See St. George Antiochian Orthodox Christian Church v. Aggarwal, 326 Md. 90, 103 (1992). The title abstract is reviewed by an attorney for defects in title, who then issues a title opinion explaining any defects and the overall validity (or invalidity) of title as reflected in the abstract. A title opinion is not in itself a certification that title to the land is without defect. Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 372–73 (2000).

Torts

Good Samaritan Act

BOTTOM LINE: Where plaintiff was injured by private commercial ambulance company, circuit court’s grant of summary judgment in favor of ambulance company based on immunity under the Good Samaritan Act was reversed because ambulance company was not a “person” entitled to such immunity under the Act.

CASE: Murray v. TransCare Maryland, Inc., No. 1791, Sept. Term, 2010 (filed Feb. 9, 2012) (Judges Kehoe, WATTS, Shaw-Geter & Melanie (retired, specially assigned)). RecordFax No. 12-0209-03, 55 pages.

FACTS: On November 15, 2007, Karen Murray brought her minor child, Bryson, to the Memorial Hospital at Easton Emergency Department in Talbot County, with severe respiratory problems. Due to the degree of his respiratory distress, and as a precaution, medical personnel intubated Bryson. A decision was then made to transfer Bryson to University of Maryland Medical System’s (“UMMS”) Pediatric Intensive Care Unit via helicopter, as Easton Memorial was unable to manage intubated children.

UMMS contacted PHI Air Medical, a separate company that contracted with UMMS to provide air medical transport services, in order to effectuate the transfer. PHI Air Medical dispatched a helicopter and a pediatric transport team to Easton Memorial, consisting of several individuals, including a UMMS pediatric nurse and a paramedic, Chris Barbour, who was employed by TransCare Maryland, Inc., a private ambulance company that contracted with UMMS to provide ground ambulance transport services. On November 16, 2007, at approximately 1:25 a.m., Bryson was placed on the helicopter for transport.

During transport, Bryson’s airway became blocked by his endotracheal tube, and he failed to receive sufficient oxygen. The transport team searched for a pediatric mask to deliver oxygen to Bryson, but were unable to locate the mask. As a result, the pilot landed at Bay Bridge Airport and located the mask for the transport team. However, as a result of the lack of oxygen caused by the delay, Bryson suffered permanent brain damage.

On February 6, 2009, Karen Murray and Bryson, as plaintiffs, filed a two-count complaint against TransCare in the circuit court in Baltimore City, alleging negligence/medical malpractice and loss of parental relationship and extraordinary costs and expenses. Specifically, the complaint alleged that Barbour failed to provide adequate care to Bryson by failing to remove the misplaced endotracheal tube and initiate masked ventilation or mouth-to-mouth breathing or intubation as appropriate, and by failing to promptly locate the oxygen mask.

TransCare moved for transfer to the circuit court for Talbot County on the grounds of forum non conveniens. The court granted the motion to transfer.

On July 16, 2010, TransCare moved for summary judgment, arguing that they were immune from liability under Maryland’s Good Samaritan Act, CJP §5–603. The circuit court denied the motion. TransCare moved for reconsideration. The circuit court then granted summary judgment in favor of TransCare.

Murray appealed to the Court of Special Appeals, which affirmed the circuit court’s order transferring the case to Talbot County, but reversed the court’s grant of summary judgment.

LAW: The Good Samaritan Act (the “Act”) provides immunity to a broad class of rescuers and medical providers for any act or omission in giving assistance or medical care provided without fee or other compensation, unless grossly negligent. See CJP §5–603. A “person” is not civilly liable for any act or omission in giving any assistance or medical care, if the act or omission is not one of gross negligence, the assistance or medical care is provided without fee or other compensation, and the assistance or medical care is provided at the scene of an emergency, in transit to a medical facility, or through communications with personnel providing emergency assistance. CJP §5–603(a). The rule applies to certain “individuals,” including an individual who is licensed by the State to provide medical care, and a volunteer fire department or ambulance and rescue squad whose members have immunity. CJP §5–603(b).

While the Act does not provide a definition of “person,” “individual,” or “member,” a review of the plain meaning of those terms supported the conclusion that a private commercial ambulance company, is not covered by those terms, and, therefore, is not immune by application of the Act. Black’s Law Dictionary defines “person” as a “human being.—Also termed natural person.” Black’s Law Dictionary 1178 (8th ed.1999). Merriam–Webster’s Collegiate Dictionary defines “individual” as “a single human being as contrasted with a social group or institution.” Merriam–Webster’s Collegiate Dictionary 635 (11th ed.2003). “Member” is defined as “one of the individuals composing a group.” Merriam–Webster’s Collegiate Dictionary 774 (11th ed.2003).

Thus, based on the plain meaning of its terms, the Act was not applicable to the defendant corporation in this case, but only to individual persons. Furthermore, it was undisputed that TransCare was a private commercial ambulance company rather than a volunteer ambulance squad; therefore, even assuming arguendo that paramedic Barbour (who was not a named defendant) was immune under the Act, the TransCare would not, as they argued, automatically become immune under the Act via Barbour’s immunity.

Moreover, nothing in the legislative history of the Act demonstrated an intent to extend immunity to private commercial ambulance companies. In fact, the legislative history specifically demonstrated the intent to extend immunity to certain persons and corporations, and not to private commercial ambulance companies. In 1982, in House Bill 1872, Chapter 775, the General Assembly carved out two types of corporate entities for which immunity would be provided: (1) a volunteer fire department, ambulance and rescue squad whose members have immunity; and (2) a corporation when its fire department personnel are immune under…this subsection. At no point did the General Assembly seek to include private commercial ambulance companies or corporations. Thus, a review of the legislative history clearly indicated that the Act was not intended to provide immunity to private commercial ambulance companies.

Case law likewise supported the conclusion that private commercial ambulance companies are not protected from civil liability under the Act. The few cases addressing applicability of the Act demonstrate that the Act applies to persons, not corporate entities like the defendants here. See Tatum v. Gigliotti, 80 Md.App. 559 (1991) (salaried emergency medical technician of a county fire department was immune under the Act).

Since the Good Samaritan Act did not provide immunity to the TransCare, the circuit court erred in granting summary judgment. Accordingly, the judgment of the circuit court was reversed, and the case remanded for retrial.

COMMENTARY: The plaintiffs additionally argued that the circuit court for Baltimore City abused its discretion in transferring the action to the circuit court for Talbot County on the grounds of forum non conveniens. Specifically, the plaintiffs contended that the circuit court failed to give proper regard to their choice of forum, and that the convenience of the parties and witnesses and the interests of justice weighed strongly in favor of denying the motion to transfer.

Maryland Rule 2–327(c) states that, on motion of any party, a trial court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice. A motion to transfer may be granted when the balance between these two factors – convenience of the parties and witnesses and the interests of justice – weigh strongly in favor of the moving party. Odenton Dev. Co. v. Lamy, 320 Md. 33, 40 (1990). In this case, the plaintiffs chose the forum Baltimore City, in which neither they nor the defendants resided. Although the circuit court was required to give “proper regard” to the plaintiffs’ choice of forum, it correctly gave less deference to the chosen forum as the plaintiffs resided in Talbot County, the eventual county of transfer. The circuit court explicitly noted in its order of transfer that the alleged negligence occurred in Talbot County, the plaintiffs themselves lived in Talbot County, and key witnesses were located in Talbot County.

Thus, based on the circuit court’s consideration of all of the factors and reasoned analysis, it could not be said that no reasonable court would have found that transfer of venue was warranted. Therefore, the circuit court did not abuse its discretion in transferring the case to Baltimore County, and the order of transfer was accordingly affirmed.

PRACTICE TIPS: According to Maryland’s statutory rules of interpretation, unless such a construction would be unreasonable, the word “person” includes a corporation, partnership, business trust, statutory trust, or limited liability company. However, this construction of the term “person” cannot override legislative intent, and there are many cases in which the Maryland Legislature did not intend that the word “person” include corporations. Rather, this issue is always a question of intention, and the intention must be determined in each particular case by the aid of the context, the general scope and purpose of the statute, and other pertinent considerations.

Zoning

Open meetings requirements

BOTTOM LINE: In reviewing application for special zoning exemption, zoning board violated the open-meetings statute and open-meetings rule by holding a site visit on private property.

CASE: Bowie v. Board of County Commissioners of Charles County, No. 0312, Sept. Term, 2010 (filed Feb. 3, 2012) (Judges Woodward, ZARNOCH & Moylan (retired, specially assigned)). RecordFax No. 12-0203-02, 20 pages.

FACTS: WSG Holdings, LLC applied for a special exception to the Charles County Zoning Ordinance to operate a research facility on an 80–acre property in Nanjemoy, Charles County. WSG submitted a statement in support of its request, in which it described the existing site as approximately 18 acres of open space and 62 acres of woodland, with four existing structures and a private airport. The northeastern edges of the property include a stream and wetland which was required to be surrounded by a minimum buffer of fifty feet (the Resource Protection Zone) of undeveloped land. Zon. Ord. §297–171.

The Board of Appeals held three public hearings on WSG’s application. At the first meeting, after WSG presented four witnesses, the Board permitted members of the public to testify. The Board placed a three-minute limit on individual testimony and a five-minute limit on testimony of those representing organizations.

At the end of the second hearing, the Chairman of the Board moved to conduct a site visit. The Chairman stated that the Board wanted to have a representative of the community attend the site visit, in addition to WSG’s counsel, a member of WSG, an Assistant County Attorney, a staff member, and the Board members. At the suggestion of the County Attorney’s Office, the Chairman added that the community could send an additional representative with planning or some other expertise.

The motion for a site visit was unanimously approved by the Board and scheduled for March 17. There exists no transcript, minutes, or other official record of the site visit. The Board also scheduled another hearing for April 14, 2009, and announced that the record was closed to additional evidence.

Apparently two weeks after the site visit, residents of Nanjemoy (the Residents) filed a motion for appropriate relief complaining, among other things, that the visit was closed to the public even though material evidence was taken, that no record was kept, and that neighboring property owners were not permitted to attend.

At the April 14 hearing, the Board’s Chairman explained that the purpose of the hearing was to allow both sides to summarize their cases without presenting additional evidence or testimony. The Chairman of the Board appeared to indicate that the motion for appropriate relief had been denied. No attempt was made by anyone to rebut assertions about the conduct of the site visit made in the motion.

The Board granted the exception, provided certain conditions were placed on the grant. The Board’s order made no mention of the motion for appropriate relief.

The Residents filed a petition for judicial review in the circuit court. After a hearing, the court ordered a remand of the case to the Board for further proceedings to determine whether the proposed use was in accordance with the objectives of the current Comprehensive Plan.

The Court of Special Appeals reversed and remanded.

LAW: The Board argued and the circuit court found that the challenge to the site visit was not preserved for judicial review. However, the Residents raised the site visit issue in the motion for appropriate relief filed approximately two weeks after the inspection and approximately two weeks before the April 14, 2009 hearing. That motion was denied by the Board. The Residents’ objections to the site visit were preserved for review.

It is a “common practice” for boards of appeal to visit the property involved in applications for relief from zoning restrictions. Salkin, American Law of Zoning at §40:38. Nevertheless, case law recognizes that without the exercise of caution, legal problems may arise from such visits. In Powell v. Calvert County, 137 Md.App. 425 (2001), the Court of Special Appeals described the rationale of an earlier unreported decision where it ordered a remand to a county board of appeals: “In doing so, applying the standard of judicial review of an administrative decision, we observed that the Board had made a visit to the site but included no information in the record relating to that visit. Accordingly, because the record was deficient in that the Board may have relied on matters not contained in the record, we remanded the matter for further proceedings.” See also Committee for Washington’s Riverfront Parks v. Thompson, 451 A.2d 1177 (D.C.1982).

“If the board relies upon knowledge acquired through an inspection of the premises, and not otherwise disclosed in the record, the facts thus discovered by the board must be disclosed. The personal knowledge of the board must be spread on the record, or such knowledge will not support a conclusion of the board. Failure to disclose such knowledge and to afford the parties an opportunity to refute it may constitute a denial of due process of law.” Salkin, American Law of Zoning, §40:38.

Article 66B, §4.07(c)(4) states: “All meetings of a board of appeals shall be open to the public.” Section 4.07(c)(4) was first enacted in 1933, Chapter 599, Laws of 1933, decades before the advent of the State Open Meetings Law. Nevertheless, unlike the more recent enactment, it appears to contain no exemptions. If more stringent than State law, it would apply even if it conflicted with that statute. SG §10–504.

Rule III of the Board’s Rules provides: “The Board of Appeals may meet in a closed session for any reasons specified in the Maryland open meetings law. However, in that regard all hearings shall be held in open public session and no evidence, argument, or other matter shall be received by the Board in a closed session, and no party in interest shall be heard by the Board of Appeals in a closed session.”

The rule appears to incorporate the requirements and exemptions of the State Open Meetings Law. However, the Board did not rely here on any exemption from open meetings requirements. Moreover, none of the exemptions contained in SG §10–508 would have applied in any event, even if the Board had followed the proper procedure in invoking them.

When it conducted the site visit, the Board held a “meeting” within the meaning of the above provisions. As the Attorney General has noted with regard to the State Act: “A meeting can also occur in unconventional venues. For example, if a quorum of a public body rides together in a vehicle and conducts public business while doing so, they are holding a meeting. If the meeting is one that the public is entitled to observe, the public body has violated the Act, for obviously the public cannot gain access to the meeting site.” OMA Manual at 2–7. Clearly, the Board was transacting public business during the site visit.

The record was unclear whether those present at the second hearing unequivocally and permanently waived their right to attend the site visit. But even if such a waiver could be binding, the Board could not exclude others from attending the session. Unrebutted in the record was the assertion that a neighboring property owner and his sons were denied admission to the site visit.

The fact that the site visit occurred on private property did not transform the Board’s meeting into an event exempt from open meetings requirements. A public body cannot avoid open meeting requirements by meeting on private property to conduct public business. Thus, the March 17, 2009 site visit violated the open meeting requirements of §4.07(c)(4) and Rule III.

COMMENTARY: The Board’s written decision and order stated that based upon the site visit it “found the site consistent with the applicant’s testimony and the site plan.” This is no substitute for a record of what happened on March 17, 2009. Such a record would have informed the parties and a reviewing court of the evidence gathered from the site visit that led the Board to credit the applicant’s testimony and approve its site plan. Failure to disclose this information and to allow the Residents to challenge this evidence through cross-examination or other means constituted a denial of due process.

PRACTICE TIPS: The State Open Meetings Law generally does not apply to quasi-judicial functions of a governmental unit. SG §10–503(a)(i)(ii). However, in 1991 the General Assembly amended the Act to make it applicable to a public body when meeting to consider “a special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation, or any other zoning matter.” SG §10–503(b)(2).

Zoning

Standing to appeal

BOTTOM LINE: Plaintiffs lacked standing to obtain judicial review of a zoning decision because they failed to establish that they were aggrieved by the decision.

CASE: Ray v. Mayor & City Council of Baltimore, No. 0215, Sept. Term, 2011 (filed Feb. 1, 2012) (Judges Zarnoch, Graeff & MOYLAN (retired, specially assigned)). RecordFax No. 12-0201-01, 33 pages.

FACTS: On April 19, 2010, Councilwoman Belinda Conaway introduced Council Bill 10–0488 to the City Council. The Bill was for the purpose of approving the application of WV Baltimore–24/Sisson, LLC and WV Baltimore H 25, LLC (collectively, the Developers) to designate a parcel of land in the Remington/Charles Village area of north central Baltimore as a Business and Industrial Planned Unit Development (PUD). The PUD contemplates the development of a mixed-use, residential and commercial development project. The (PUD will occupy an 11.5 acre parcel of land to be known as the 25th Street Station.

On November 24, 2010, Mayor Stephanie Rawlings–Blake signed Ordinance 10–397 into law. On December 16, 2010, the Baltimore City Planning Commission approved the final design of the 25th Street Station project.

The Mayor and City Council of Baltimore, Bruce Mortimer, Anderson Automotive Group, and Twenty–Fifth Street, LLC (collectively, the Subject Property Owners) have used the land for over half a century as a car dealership, which would be closing.

Benn Ray and Brendan Coyne petitioned to the circuit court for judicial review of the City Council’s decision to adopt the 25th Street Station PUD. The City, the Developers and the Subject Property Owners each filed separate motions to dismiss the petition for judicial review.

The circuit court granted the motions to dismiss, ruling that Ray and Coyne lacked standing to petition for judicial review.

Ray and Coyne appealed to the Court of Special Appeals, which affirmed.

LAW: Under Article 66B, Zoning Enabling Act, any person aggrieved by a zoning action by the City Council may appeal to the circuit court for Baltimore City. §2:09(a)(1)(ii). See also Bryniarski v. Montgomery County, 247 Md. 137 (1967).

“Generally speaking, the decisions indicate that a person aggrieved by the decision of a board of zoning appeals is one whose personal or property rights are adversely affected by the decision of the board. The decision must not only affect a matter in which the protestant has a specially affected in a way different from that suffered by the public generally.” Id.

However, “[a]n adjoining, confronting or nearby property owner is deemed, prima facie to be specially damaged and, therefore, a person aggrieved.” Id. at 145. See also 120 West Fayette Street v. Mayor & City Council of Baltimore, 407 Md. 253, 271–72 (2009).

Here, Ray did not own the property where he resided; he rented it. Conceivably, one could establish aggrievement without being a property owner. There is, however, a gaping procedural and evidentiary chasm between special aggrievement and prima facie aggrievement. Ray, as a non-property-owner, lacked prima facie aggrievement.

The presumption of aggrievement may be rebutted, see Bryniarski, 247 Md. at 145, and a “nearby” or even an abutting property owner may ultimately be shown to be unaggrieved and thereby denied standing. The converse is also true. Even one who does not enjoy presumptive standing by virtue of property ownership and proximity to the situs in dispute may nonetheless establish actual aggrievement.

Thus, both prima facie aggrievement and demonstrated special aggrievement simply give rise to rebuttable presumptions. See Holland v. Woodhaven Building and Development, Inc., 113 Md.App. 274 (1997).

In Chesapeake Bay Foundation v. Clickner, 192 Md.App. 172 (2010), Clickner had received two zoning variances for projected improvements on Big Dobbins Island in the Magothy River. The Chesapeake Bay Foundation and the Magothy River Association sought to challenge the granting of those variances. Clickner moved to dismiss their appeals to the Anne Arundel County Board of Appeals on the ground that they lacked standing to take the appeal.

The Court of Special Appeals held that the Chesapeake Bay Foundation and the Magothy River Association, because they were not nearby property owners, were not prima facie aggrieved. Id. at 187. The Court did, however, state that “property ownership is not a prerequisite to aggrievement.” Id. at 189.

Protestants such as the Chesapeake Bay Foundation and the Magothy River Association are clearly special cases. An individual citizen as protestant will, almost of necessity, be a property owner.

In terms of entitlement to “prima facie” aggrievement, notions like “touching,” “contiguous,” “adjoining,” “bounding,” “confronting,” and “abutting” are geometric certainties. The status of being “nearby,” by contrast, is not.

Here, Coyne’s residence was 0.4 miles from the proposed 25th Street Station. The driving distance was .63 miles. Ray’s residence was 0.4 miles from the proposed 25th Street Station. The driving distance was .61 miles.

In Marcus v. Montgomery County Council, 235 Md. 535, 538 (1964), there were three would-be protestants. One who lived a block away from the proposed project was deemed to be prima facie aggrieved. The two who were, respectively, 3/4 of a mile away and 1/4 of a mile away were not prima facie aggrieved and their challenges were dismissed.

In Committee for Responsible Development on 25th Street v. Baltimore, 137 Md.App. at 86, five blocks (compared to seven blocks for Coyne and Ray) was considered too far to enjoy “nearby” status.

There is also visibility as a modifying factor. If the project being developed is in the clear sight of the property owner, that visual factor enhances nearness. If, on the other hand, the project cannot be seen from the would-be protestant’s property, that visual shielding diminishes the impact of nearness.

In Wilkinson v. Atkinson, 242 Md. 231 (1966), the would-be protestant, Mrs. Siegel, had a good view. The home was on the highest elevated point of the development in which she lived and she could see directly over the Beltway and view the property across it. Mrs. Siegel thought the erection of an apartment complex, which could be seen from her home, would have an adverse effect upon the resale value of her property.

The Court of Appeals held that Mrs. Siegel did not even enjoy standing to raise the challenge. “Visibility…has been referred to as one of the factors giving rise to standing. Of itself, however, where, as here, the visibility is only across a broad beltway, and there is no probative evidence of any other specific interest or damage to the use or value of the protestant’s property, mere visibility is not enough to give the requisite standing.” Id. at 235.

Coyne cannot see the PUD site from his home. He nonetheless contended that he could clearly see it from his place of employment. However, as a factor in the nearness equation, the ability to view the site of the zoning project must be measured from one’s property.

Thus, neither Ray and Coyne qualified for prima facie aggrievement. To be eligible for standing, therefore, they were required to rebut their presumptive non-aggrievement by “alleging and proving by competent evidence…the fact that [their] personal or property rights are specially and adversely affected by the [ongoing] actions.” Bryniarski, 247 Md. at 145.

Ray claimed that the development of the 25th Street Station would severely increase the traffic flow in the neighborhood to his special detriment. Coyne claimed that the development of the project would lead to a depreciation in the value of his home to his special detriment.

However, no adverse impact was directed specially at Ray or Coyne. They will not be “personally and specially affected in a way different from that suffered by the public generally.” Bryniarski, 247 Md. at 144.

Both Ray and Coyne alleged that the project would have an adverse effect on the Charles Village and Remington neighborhoods. Once again, however, this is general aggrievement and not something that is a special aggrievement focused particularly on them as individual residents.

Accordingly, Ray and Coyne failed to establish their standing by a showing of special aggrievement.

COMMENTARY: A public agency, to have the standing to appeal a zoning decision, need not own property. It must, nonetheless, show that it is specially aggrieved.

“Bryniarski does not require the ownership of nearby property as the exclusive prerequisite. It also speaks of alternative ‘personal or property rights’ that may provide an adequate interest in the proceeding.” T & R Joint Venture v, Office of Planning and Zoning of Anne Arundel County, 47 Md.App. 395, 402 (1980).

In Maryland–National Capital Park & Planning Commission v. Smith, 333 Md. 3 (1993), the Planning Commission sought to establish its entitlement to appeal from a decision by the Board of Appeals. The Court of Appeals held that the Planning Commission had failed to establish that it was specially aggrieved because the Commission had not suffered any monetary loss and had no special personal interest at stake. Id. at 14.

By contrast, the Court of Special Appeals held in Hikmat v. Howard County, 148 Md.App. 502 (2002), that Howard County, representing its Department of Planning and Zoning, did demonstrate sufficient aggrievement to enjoy standing. “The facts necessary to satisfy the aggrieved requirement, when the petitioner is a governmental entity, appear to be that it have an interest in interpreting, administering, and enforcing the laws in question in a given case. For a governmental agency, property ownership is not required, but special aggrievement very definitely is.” Id. at 520.

PRACTICE TIPS: The impact of zoning decision in rural and semi-rural areas can be different than in urban and suburban areas. That is, neighborhoods in rural areas may extend farther, because the damage from a particular decision may be much wider reaching, than in an urban or suburban setting. Pattey v. Bd. of County Comm’rs for Worcester County, 271 Md. 352, 363 (1974).