Where the plaintiff presented no direct evidence that the County Council sitting as the District Council violated the Open Meetings Act during the deliberation process in connection with its approval of a store’s application for a zoning exception and variance, but instead argued that a violation could be inferred given the short time span between the District Council’s tentative vote and its final approval of its decision, there was insufficient evidence to rebut the statutory presumption that the District Council complied with the Act. Grant v. County Council of Prince George’s County Sitting as the District Council, No. 75, Sept. Term, 2018.
Where the plaintiff moved to stay a civil case she had initiated pending criminal proceedings against her, the circuit court correctly found that the plaintiff waived her Fifth Amendment privilege against self-incrimination on the subject of her fraudulent transactions by testifying in her civil deposition to that subject and, accordingly, properly weighed the plaintiff’s Fifth Amendment interest lightly against the defendants’ right to timely resolution of claims against them, and, therefore, the court did not abuse its discretion in denying the motion to stay. Moser v. Heffington, No. 62, Sept. Term, 2018.
Where a witness was prosecuted for contempt of court after refusing to testify in a murder trial, evidence produced by the witness at his contempt trial that he had refused to testify out of fear of reprisal for his anticipated testimony was insufficient to generate a jury instruction on the defense of duress because the evidence failed to show a “present, immediate, and impending” threat to his safety with no opportunity for escape. Howell v. State, No. 43, Sept. Term, 2018.
Circuit court erred in dismissing defendant’s motion to modify his sentence on the ground that it lacked revisory power over his sentence because, where post-conviction relief had been granted to defendant based upon ineffective assistance of counsel, the circuit court retained authority under Md. Rule 4-345(e) to exercise its revisory power over the sentence for five years following the post-conviction court’s final order. State of Maryland v. John Schlick, No. 63, Sept. Term, 2018.
Where the evidence showed that city fire department medics responding to the plaintiff’s 911 call regarding chest pains assessed the plaintiff, took his vitals, and promptly transported him to the nearest hospital within seven minutes of first arriving on the scene, there was not sufficient evidence to support the plaintiffs’ wrongful death claim against the fire department because a well-intended error in medical judgment, even if it costs the patient’s life, does not equate to a wanton and reckless disregard for the life of that patient, and, therefore, the defendants’ conduct did not rise to the level of gross negligence and, thus, the defendants were entitled to immunity under the Fire and Rescue Company Act. Stracke v. Estate of Butler, Jr., No. 64, Sept. Term, 2018.
Administrative LawOpen Meetings Act
BOTTOM LINE: Where the plaintiff presented no direct evidence that the County Council sitting as the District Council violated the Open Meetings Act during the deliberation process in connection with its approval of a store’s application for a zoning exception and variance, but instead argued that a violation could be inferred given the short time span between the District Council’s tentative vote and its final approval of its decision, there was insufficient evidence to rebut the statutory presumption that the District Council complied with the Act.
CASE: Grant v. County Council of Prince George’s County Sitting as the District Council, No. 75, Sept. Term, 2018 (filed August 20, 2019) (Judges Barbera, Greene, McDonald, Watts, Hotten, GETTY & Booth).
FACTS: In 2014, Wal-Mart Real Estate Business Trust applied to the Maryland-National Capital Park and Planning Commission (“MNCPPC”) for a special exception, variance, and an alternative compliance regarding an existing store located in the Woodyard Crossing Shopping Center in Clinton, Maryland. The special exception and variance applications were made in connection with Wal-Mart’s intended goal of expanding the store to include an outdoor garden center and grocery store, and to eliminate the existing automotive servicing facility.
The property was located within an area designated as a Commercial Shopping Center (“CSC”) Zone. Although Wal-Mart’s current and intended future uses were individually allowed in the CSC Zone, the expansion required a special exception to combine all of these uses on a single parcel within a CSC Zone.
Separately, the requirement for Wal-Mart to apply for a variance was triggered not by its plans to expand the existing store, but by subsequent changes to the zoning code. When the store was built in 2000, the relevant portions of the Prince George’s County Code (“PGCC”) required a 50-foot set back from the surrounding properties. In 2002, PGCC §27-348.02(a)(5) was amended to require a 100-foot setback, leaving Wal-Mart in the awkward position where the existing store did not comply with the setback requirements as amended. Accordingly, the variance application concerned Wal-Mart’s existing facility, not its proposed expansion.
In addition, the MNCPPC Planning Director had previously approved multiple alternative compliance applications concerning the Wal-Mart facility that needed to be amended under the new application. For example, in 1999 the Planning Director approved an alternative compliance application made by Wal-Mart that provided an alternative buffering scheme between the Wal-Mart and residentially zoned properties located to its west.
In Maryland, traditional land use powers are generally delegated by the State to local political subdivisions. For Prince George’s County, the State Regional District Act (“RDA”) authorizes the District Council to adopt, amend and administer zoning laws within the county. The definition of “District Council” however, varies depending on the geographical delineations of the area concerned. In situations involving zoning actions entirely within Prince George’s County, the County Council of Prince George’s County sits as the District Council.
In response to Wal-Mart’s application for a special exception and variance, the MNCPPC development review division issued a Staff Report which recommended that Wal-Mart’s special exception and variance application be denied but that its alternative compliance request be approved. The Prince George’s County Planning Board declined to hear the case and instead adopted the Staff Report’s recommendation, as permitted under PGCC §27-210, and assigned the case to a Zoning Hearing Examiner (“ZHE”) to conduct an evidentiary hearing. The ZHE then held hearings wherein she heard testimony and accepted evidence from those involved. On May 13, 2016, the ZHE issued its decision.
In its decision, the ZHE made multiple findings, including that the existing store did not comply with the 100-foot setback requirement. On the basis of these findings, the ZHE denied Wal-Mart’s application for a special exception and variance. The ZHE’s decision was transmitted to the District Council and hand-delivered to Rajesh Kumar, Principal Counsel to the District Council.
Wal-Mart filed exceptions to the ZHE’s decision on June 13, 2016 and requested that the District Council hear the case. That same day, the District Council elected, by unanimous vote, to take up the matter and make the final decision concerning Wal-Mart’s special exception and variance applications. Two days later, the Clerk of the District Council sent notices to all parties involved that the District Council had scheduled oral arguments on July 18. Thus, all parties on record were provided notice well in advance that the District Council would be hearing the case with oral arguments on July 18, 2016.
In response to the written exceptions filed by Walmart prior to the ZHE’s decision, Davona Grant and others filed a response in opposition to Wal-Mart’s exceptions that included “Proposed Findings of Fact and Conclusions of Law” based upon their position that the ZHE’s decision should be affirmed. Kumar reviewed the record, Wal-Mart’s exceptions, Grant’s filings, and other materials submitted to the District Council, and began preparing a draft decision in advance of the July 18 hearing.
At the hearing before the District Council on July 18, 2016, testimony was received from citizens and expert witnesses regarding the special exception and variance. Attorneys for both sides discussed the proposed expansion and its impact on traffic, architecture, crime, and other factors. At the end of the hearing, District Council Member Mel Franklin motioned to have Kumar prepare a proposed opinion and order with written findings of fact reversing the ZHE’s decision. His motion to have the staff attorney prepare a draft order reversing the decision of the ZHE received a unanimous vote by the District Council.
The following day, July 19, 2016, Kumar presented to the District Council a proposed 51-one page order. As directed by the District Council, the proposed order approved Wal-Mart’s application for a special exception and variance. The District Council, continuing in the open session, then moved to adopt the order which carried by a seven to two vote.
Grant filed a petition for judicial review in the circuit court, which affirmed the District Council’s decision. Grant appealed to the Court of Special Appeals, which determined that the District Council applied the wrong legal standard and remanded the case to the District Council. In addition, the intermediate appellate court concluded Grant failed to prove a violation of the Open Meetings Act occurred. Grant then appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.
LAW: Grant argued that the District Council violated the Open Meetings Act, codified at 2014 Md. Code General Provisions Article (“GP”) §§3-101 through 3-501, during the deliberation process in connection with its approval of Wal-Mart’s special exception and variance application. Grant argued that a violation of the Open Meetings Act could be inferred given the short time span between the District Council’s consideration of the oral arguments on July 18, 2016, and the Council’s vote to approve a 51-one page decision the following day, on July 19, 2016. She alleged that from the conduct of the two public meetings, a secret, undisclosed third meeting must have occurred between the meetings of July 18 and 19, in violation of the Open Meetings Act.
However, under the Open Meetings Act, the public body is presumed to have acted in accordance with the Act. GP §3-401(c). Thus, the burden was on Grant to prove a violation. Grant produced no evidence to support her position that the District Council violated the Open Meetings Act. Contrary to Grant’s speculation that the District Council must have violated the Open Meetings Act given the short time span between the District Council’s tentative vote and its final approval of its decision, there were several indicators that nothing ran afoul of the Act.
The written decision of the ZHE was transmitted to the District Council and was hand-delivered to Kumar on May 13, 2016 – over two months before the District Council hearing. On June 13, the District Council, sua sponte by unanimous vote, elected to make the final decision in the special exception and variance matter. On June 15, the Clerk of the District Council sent notices to all persons of record that oral argument would be held on July 18. Over one month prior to the hearing, the District Council members, the parties and their counsel had knowledge that the matter would be decided by the District Council and the date of the oral arguments.
On July 6, 2016, Grant’s counsel filed a 47-page response in opposition to Wal-Mart’s exceptions, which included a 31-page document titled “Proposed Findings of Fact and Conclusions of Law.” Grant’s Findings of Fact were also served on Kumar. Just as counsel for Grant undertook preparation for the July 18 hearing several weeks in advance of the hearing, including preparing and submitting Grant’s Findings of Fact, Kumar also commenced his preparation, which also included drafting proposed Findings of Fact for his client to consider.
The record was also clear that over a month prior to the July 18 hearing, the District Council met and voted to proceed on the voluminous record presented to the ZHE and make the final decision in this case after the parties’ arguments. Based upon the questions posed by members of the District Council at the July 18 hearing, it was clear that the individual District Council members had familiarized themselves with the contents of the record prior to the hearing. To summarize, the members already had the entire record of the proceeding before the ZHE as well as the detailed written positions of both Wal-Mart and the opposition.
At the July 18 hearing, eight members of the District Council were present. After the hearing was convened and called to order, the Chairman of the District Council gave an overview of Wal-Mart’s special exception and variance application to expand its existing store. The Chairman then turned the hearing over to staff to present an overview of the application.
After the staff presentation, the District Council members heard extensive arguments from counsel for Wal-Mart and counsel for Grant, including a summary of the evidence to support their respective positions. The District Council also entertained public comment from one member of the public who spoke in favor of the Wal-Mart application. Both counsel for Wal-Mart as well as counsel for Grant referred to specific exhibits in the voluminous record. The transcript reflected that members of the District Council asked questions and were engaged.
At the conclusion of the hearing, District Member Franklin summarized his position on the application and made a motion “to direct Staff to prepare an Order reversing the decision of the ZHE and prescribing approval with conditions.” The motion was seconded, and the clerk called the roll. Each of the eight District Council members in attendance voted affirmatively. Based upon the record, it was highly plausible that Kumar polished and finalized a draft of the proposed Findings of Fact which had been prepared in anticipation of his client’s vote. There was no evidence in the record that Kumar met with the District Council in a meeting with a quorum present during the intervening period between the two public meetings, nor could it be speculated, in the absence of any such evidence, that any such meeting occurred.
In sum, there was no evidence in the record upon which the communications, if any, between Kumar and members of the District Council, or among the District Council members, could be evaluated in order to make a determination that the District Council violated the provisions of the Open Meetings Act. As such, Grant failed to prove that the District Council violated the Open Meetings Act in this case. Accordingly, the judgment of the Court of Special Appeals was affirmed.
COMMENTARY: Grant additionally argued that the District Council was not authorized to delegate the preparation of its opinion and order to its staff attorney. She contended that an administrative agency delegate authority to its staff only where the agency’s enabling statute specifically permits such a delegation. In support of this assertion, she relied on Pub. Service Comm’n of Md. v. Wilson, 389 Md. 27, 52 (2005), in which the Court of Appeals held that the Chairman of the Public Service Commission did not have the unilateral authority to terminate an employee where the enabling statute required the Commission as a whole to make final employment decisions. Id. at 59.
In this case, however, the RDA was the enabling statute through which the District Council draws its powers to establish local zoning law. See Zimmer Dev. Co., 444 Md. at 523-24 (2015). The RDA bestows upon the District Council the authority to regulate zoning and establish procedures and provisions regarding zoning hearings. Under the RDA, the District Council is required to make written findings of fact. After considering the evidence, the District Council must reduce these findings of fact and conclusions of law to writing. As part of this process, someone must take the initial step of putting pen to paper and assembling the proposed findings and conclusions of law for consideration by the District Council. In many instances, the public body charged with making that decision requests that its staff or attorney prepare the initial draft for the collective review and ultimate approval of the public body as a whole.
There is nothing in the RDA, the PGCC or administrative law generally which prohibits this standard practice. Thus, the District Council’s delegation to its staff attorney to prepare a proposed opinion, order, and findings of fact for Council’s subsequent consideration and approval was permitted under the PGCC and not prohibited under the RDA. The District Council did not improperly delegate its decision-making authority to Principal Counsel.
PRACTICE TIPS: There are numerous instances in which Maryland courts exercise original jurisdiction, yet their decisions are based on preliminary fact-finding and recommendations of lower courts or entities. For instance, circuit courts often delegate matters to magistrates to conduct fact-finding and to make recommendations, but the circuit court still maintains original jurisdiction over the matter. Thus, simply because a lower court, master, or administrative agency is assigned to hold hearings, receive evidence, hear oral argument, and make findings of fact and conclusions of law, it does not follow that the lower court, master, or administrative entity maintains original jurisdiction over such proceedings.
Civil Procedure
Motion to stay
BOTTOM LINE: Where the plaintiff moved to stay a civil case she had initiated pending criminal proceedings against her, the circuit court correctly found that the plaintiff waived her Fifth Amendment privilege against self-incrimination on the subject of her fraudulent transactions by testifying in her civil deposition to that subject and, accordingly, properly weighed the plaintiff’s Fifth Amendment interest lightly against the defendants’ right to timely resolution of claims against them, and, therefore, the court did not abuse its discretion in denying the motion to stay.
CASE: Moser v. Heffington, No. 62, Sept. Term, 2018 (filed August 16, 2019) (Judges Barbera, Greene, McDonald, Watts, Hotten, Getty & RAKER (Senior Judge, Specially Assigned)).
FACTS: On March 21, 2016, Kristi and Matthew Heffington filed in the circuit court an eleven-count complaint against Ronald Moser, Anne Moser, and Ronald Moser, D.D.S., P.A., alleging defamation per se, malicious use of process, tortious interference with prospective business advantage, tortious interference with contractual relations, and civil conspiracy, all based upon the Mosers’ allegedly false statements to the police, to the dental practice’s insurer, and to others. The essence of the alleged statements was that Kristi Heffington had stolen money from the dental practice and committed identity fraud. After the circuit court denied the Mosers’ motion to dismiss the complaint, the parties engaged in discovery, including interrogatories and depositions. Trial was set for June 2017.
Kristi Heffington was deposed on November 14, 2016. On February 16, 2017, Kristi was indicted by a grand jury for the same events underlying the defamation action. She was charged with a theft scheme of $10,000 to under $100,000 and four counts of fraud by identity theft. Two further indictments for related crimes in the same transactions followed.
On June 13, 2017, the Heffingtons filed a motion to stay the civil action, arguing that Kristi’s testimony in the civil action would implicate her Fifth Amendment right against self-incrimination in her criminal case and that she therefore could not present her defamation action before she resolved her criminal case. The circuit court denied the motion, and the matter proceeded to trial before a jury. The Heffingtons waived opening statement and presented absolutely no evidence. They moved for a mistrial, citing the arguments from their motion to stay. The trial court denied the mistrial motion, and the Mosers reserved opening statements and then moved for judgment on all claims. The court granted judgment in favor of all defendants on all counts.
The Heffingtons appealed to the Court of Special Appeals on July 5, 2017. On July 19, 2018, Kristi pled guilty to identity fraud, making a false statement in an insurance claim, and conspiracy to commit identity theft, criminal offenses arising from the same facts in the civil action. The Court of Special Appeals vacated the judgment of the circuit court, holding that the trial court abused its discretion in denying the Heffingtons’ motion to stay the proceedings. The Mosers appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals and remanded the case to the intermediate appellate court with instructions to affirm the judgment of the circuit court.
LAW: The Mosers argued that the trial court did not abuse its discretion in denying the Heffingtons’ motion to stay the civil proceedings in the defamation action pending resolution of the pending criminal proceedings. They argued that, whatever the balancing test, the circuit court balanced properly the competing interests at stake. They contended that the court considered the parties’ interests in resolving the case, the uncertainty of the length of the stay, the Heffingtons’ late filing of their motion after civil discovery, and the inference the jury could draw from invocation of the Fifth Amendment in a civil trial. They emphasized, too, that the Heffingtons filed their motion to stay months after Kristi’s indictment and only six days before the civil trial. They argued that the Heffingtons’ delay prejudiced them because the Heffingtons initiated and responded to discovery requests in the interim months, incurring litigation costs for the Mosers.
The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const. Amend. V. Although the language of the Fifth Amendment refers specifically to criminal cases, the privilege against self-incrimination applies in the civil context. See McCarthy v. Arndstein, 266 U.S. 34, 40 (1924). It follows that a plaintiff in a civil case may invoke the privilege and does not surrender her constitutional right by the filing of a civil action. See Robinson v. Robinson, 328 Md. 507, 515-16 (1992).
The United States Supreme Court has made clear that the privilege against self-incrimination is one which should be exercised without penalty and that courts should avoid the imposition of any sanction which makes assertion of the Fifth Amendment privilege “costly.” Spevack v. Klein, 385 U.S. 511, 515 (1967). In the context of a civil proceeding, this constitutional protection creates tension between the plaintiff’s right to protection against self-incrimination and a civil defendant’s right to timely refute the underlying claim. See, e.g., Serafino v. Hasbro, Inc., 82 F.3d 515, 518 (1st Cir. 1996). In Maryland, citizens have under Article 19 of the Maryland Declaration of Rights a general right of access to the courts. Thus, where an individual who initiates a civil lawsuit for damages is simultaneously defending herself against related criminal charges, proceedings must adequately protect the individual’s overlapping rights to access the courts and assert the Fifth Amendment privilege without penalty. McMullen v. Bay Ship Management, 335 F.3d 215, 218 (3rd Cir. 2003).
Civil cases and simultaneous or successive criminal proceedings often overlap, creating parallel civil and criminal proceedings, as in this case. Absent substantial prejudice, parallel proceedings ordinarily are permissible and not barred by the United States Constitution. SEC v. Dresser Industries, Inc., 628 F.2d 1368 (D.C. Cir. 1980). Nevertheless, a court may exercise its discretion and grant a stay to protect parties involved in parallel proceedings. proceedings before them. Dodson v. Temple Hill Baptist Church, Inc., 254 Md. 541, 546 (1969). The strongest case for deferring civil proceedings until after completion of criminal proceedings is where a party under indictment for a serious offense is required to defend a civil or administrative action involving the same matter, as the civil proceeding, if not stayed, might undermine the party’s Fifth Amendment privilege against self-incrimination. Id. at 1376.
After considering the impact the proceedings may have on a party’s Fifth Amendment rights, courts should exercise discretion by considering and weighing other factors relevant to the case. Other factors a court should consider in granting or denying a stay include: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation. Federal Savings & Loan Insurance Corporation v. Molinaro, 889 F.2d 899, 902-03 (9th Cir. 1989). One significant interest at stake in the present case was Kristi’s privilege against self-incrimination. The Mosers argued that her testimony at her deposition waived the privilege.
When a witness testifies to a subject, she waives the privilege for the rest of the “proceeding” to the extent necessary to cross-examine her on that subject. Mitchell v. United States, 526 U.S. 314, 321 (1999). For Fifth Amendment purposes, a deposition and the trial in the same matter are stages of the same proceeding. United States v. Parcel of Land, 903 F.2d 36, 43 (1st Cir. 1990). In the instant case, Kristi testified at her deposition to the details of the events underlying her claims. Her statements were “testimonial,” meaning that they were made voluntarily under oath in the context of the same judicial proceeding. They were “incriminating,” meaning that they did not merely deal with matters “collateral” to the events surrounding commission of a crime. These statements, which were both “testimonial” and “incriminating,” contained information that Kristi was privileged not to reveal. By testifying to that subject within the same proceeding, she waived her Fifth Amendment privilege and would be unable to invoke it at trial, at least to the extent necessary for petitioners to cross-examine her on it.
Because Kristi waived her Fifth Amendment privilege on the subject of her fraudulent transactions by testifying in her deposition to that subject, the circuit court did not abuse its discretion in denying the stay. The court found correctly that it should weigh Kristi’s Fifth Amendment interest lightly in balancing the interests at stake. The court balanced the Heffingtons’ interest in Kristi attempting to assert a Fifth Amendment privilege at trial against the Mosers’ discovery and trial preparation expenses as well as the Mosers’ interest in a timely resolution of the civil case. Thus, it did not abuse its discretion in denying the motion to stay.
Accordingly, the judgment of the Court of Special Appeals was reversed, and the case was remanded to that court with instructions to affirm the judgment of the circuit court.
COMMENTARY: The Court of Special Appeals held that the trial court failed to consider in its analysis Article 19 of the Maryland Declaration of Rights, which states, “That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land.” Article 19 essentially protects two interrelated rights: a right to a remedy for an injury to one’s person or property, and a right of access to the courts. Jacome de Espina v. Jackson, 442 Md. 311, 335 (2015). However, access to the courts is subject to reasonable regulation. Doe v. Doe, 358 Md. 113, 128 (2000). The applicability of Article 19 was neither raised nor briefed in the trial court, and was not raised before the Court of Special Appeals. To the extent that the Heffingtons raised Article 19 of the Maryland Declaration of Rights and their right to access to the courts, the trial court balanced that interest in considering the stay, although not explicitly referencing Article 19. The right of access to the courts was implicit in the trial judge’s analysis and reasoning.
PRACTICE TIPS: A party is entitled to a motion for judgment when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party’s claim or defense.
Criminal LawDuress defense
BOTTOM LINE: Where a witness was prosecuted for contempt of court after refusing to testify in a murder trial, evidence produced by the witness at his contempt trial that he had refused to testify out of fear of reprisal for his anticipated testimony was insufficient to generate a jury instruction on the defense of duress because the evidence failed to show a “present, immediate, and impending” threat to his safety with no opportunity for escape.
CASE: Howell v. State, No. 43, Sept. Term, 2018 (filed August 22, 2018) (Judges Barbera, Greene, MCDONALD, Watts, Hotten, Getty & Wilner (Senior Judge, Specially Assigned)).
FACTS: Travis Howell was called to testify in a murder trial in the circuit court, but declined to answer any questions on the basis of the privilege against self-incrimination. After the court issued an order immunizing him and directing him to testify, he persisted in refusing to answer questions. As a result, he was charged with contempt.
At the trial of the contempt charge, Howell attempted to raise the common law defense of duress, claiming that he had been assaulted and threatened with retribution for his anticipated testimony. While Howell had originally requested a jury trial, the court and the parties ultimately agreed to proceed via a bench trial. The trial court rejected the duress defense as a matter of law and found Howell guilty of contempt.
Howell appealed to the Court of Special Appeals, which affirmed the judgment of the trial court. Howell then appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.
LAW: Howell presented the question of whether he produced evidence sufficient to generate a jury instruction on the defense of duress. With the exception of a prosecution for intentional murder, a defendant in a criminal case may, in appropriate circumstances, seek to be relieved of criminal liability for conduct that otherwise is a crime on the basis of the common law defense of duress. For the defense to be established, there must be a “present, immediate, and impending” threat that induces a well-grounded apprehension of death or serious bodily injury and no reasonable opportunity for escape. McMillan v. State, 428 Md. 333, 348-49 (2012). To generate this defense, a defendant must meet the relatively low threshold of showing “some evidence” of duress. Id. at 355.
In a criminal jury trial, the court must, upon request, instruct the jury on every essential question or point of law supported by the evidence. State v. Crawford, 308 Md. 683, 700 (1987). If Howell’s criminal contempt case had been tried before a jury and if a duress defense were available to a charge of contempt for a refusal to testify, the trial court would have had to grant a request for an instruction on duress if that instruction was generated by the evidence. However, although the “some evidence” standard is not a high bar, the Court of Special Appeals correctly found that Howell did not satisfy it here.
Howell did not proffer evidence of a threat that was “present, imminent, and impending.” McMillan v. State, 428 Md. at 348. When Howell committed the crime of contempt, he was not under such a threat. Rather, the threat was of “future but not present personal injury.” Id. If all of Howell’s proffered evidence were true, he might indeed have feared that someone might retaliate against him in some way sometime in the future for testifying. The dispositive factor here was that the alleged threat against Howell was not immediate as required for the duress defense. For these reasons, even assuming the defense of duress is available in a charge of contempt, Howell’s proffered evidence failed to generate that defense in this case because the alleged threat was not “present, imminent, and impending.”
Accordingly, the judgment of the Court of Special Appeals was affirmed.
COMMENTARY: Howell also presented the question of whether, as a matter of law, the defense of duress is unavailable to a witness charged with contempt for refusing to testify. The State argued that a duress defense should not be available to a witness charged with contempt for a refusal to testify in a criminal case for two reasons, one doctrinal and one policy-based. First, on a doctrinal basis, the State argued that a recalcitrant witness inherently can never prove two elements of the duress defense, immediacy and the lack of any reasonable opportunity to escape. Second, on a policy basis, it argued that, even if a recalcitrant witness could satisfy every element of the defense, there should be an exception similar to that for intentional murder because it would render the criminal justice system subservient to intimidation. However, given the finding that Howell failed to present evidence sufficient to produce a jury instruction on the duress defense, it was unnecessary to decide whether, as a matter of law, the defense of duress is unavailable to a witness charged with contempt for refusing to testify, and the Court of Appeals declined to address this question.
PRACTICE TIPS: The Court of Special Appeals has recognized that witness intimidation and protection are exceptionally serious societal issues. Fear of reprisal can be a valid reason to mitigate the sentence of a witness who refuses to testify and is convicted of contempt. However, the common law duress defense is a poor fit for such fears because of the required element of immediacy.
Criminal ProcedureRevisory power over sentence
BOTTOM LINE: Circuit court erred in dismissing defendant’s motion to modify his sentence on the ground that it lacked revisory power over his sentence because, where post-conviction relief had been granted to defendant based upon ineffective assistance of counsel, the circuit court retained authority under Md. Rule 4-345(e) to exercise its revisory power over the sentence for five years following the post-conviction court’s final order.
CASE: State of Maryland v. John Schlick, No. 63, Sept. Term, 2018 (filed Aug. 23, 2019) (Judges Barbera, GREENE, McDonald, Watts, Hotten, Getty & Battaglia (Senior Judge, Specially Assigned)).
FACTS: In 2005, John Schlick pleaded guilty in the Circuit Court for Baltimore City to a narcotics offense. On September 20, 2005, he was sentenced to 16 years in prison, 14 years and six months of which were suspended, and he was to be placed on five years of probation upon his release. Mr. Schlick did not request that his sentence be modified or otherwise reviewed.
After his release on probation, Mr. Schlick was convicted of another crime. As a result, he was charged with violating the terms of his probation. On September 15, 2008, Mr. Schlick appeared before the Circuit Court for Baltimore City for a violation of probation hearing. At the violation of probation hearing, the court revoked Mr. Schlick’s probation and sentenced him to 14 years and six months incarceration, thereby reimposing the suspended portion of Mr. Schlick’s 2005 sentence for the narcotics offense. No motion was filed on Mr. Schlick’s behalf to modify or otherwise review his sentence.
On August 31, 2012, with the assistance of counsel, Mr. Schlick filed a petition for post-conviction relief, and on November 30, 2012 he supplemented the petition. Mr. Schlick argued that he received ineffective assistance of counsel because he had directed his lawyer from the 2008 violation of probation hearing to file a motion for reduction of sentence, but his lawyer failed to do so. Mr. Schlick’s counsel from the 2008 hearing swore under oath in an affidavit that she failed to file the motion for modification as requested by Mr. Schlick. On March 20, 2013, the court ruled on the petition in Mr. Schlick’s favor. The court concluded that Mr. Schlick received ineffective assistance of counsel and permitted Mr. Schlick to “file a belated motion for modification of sentence within 90 days of the date of its order.”
Mr. Schlick, with the assistance of counsel, filed a motion for modification on May 24, 2013, which was within 90 days of the post-conviction court’s order. Six days later, on May 30, 2013, Mr. Schlick, acting without the assistance of counsel, filed a motion asking the court to hold his motion “in abeyance until a later date.” In July 2013, Mr. Schlick sent a letter to the circuit court pro se, articulating some of the reasons he believed the court should reduce his sentence.
On January 6, 2014, the court scheduled Mr. Schlick’s motion for a hearing to be held on February 12, 2014. On January 30, 2014, Mr. Schlick filed a motion to postpone the hearing. The court granted Mr. Schlick’s motion on January 31, 2014 and ordered that his motion for modification of sentence continue to be held sub curia by the court until such time as Mr. Schlick requests a hearing.
On July 24, 2014, Mr. Schlick’s counsel requested a hearing on his motion for modification. On January 15, 2015, the trial court granted Mr. Schlick’s request and again set the matter for a hearing, which was to be held on March 6, 2015. The March 6, 2015 hearing was not held. On October 15, 2015, Mr. Schlick’s counsel again requested a hearing. On July 16, 2016, the court ordered that the matter be set for a hearing on October 17, 2016. On October 11, 2016, Mr. Schlick’s counsel filed a motion requesting a continuance, with the State’s consent, because Mr. Schlick was incarcerated outside of Maryland, and the Department of Corrections could not transport him in time for the hearing. The circuit court granted the postponement and reset the hearing for January 10, 2017.
In December 2016, the circuit court issued an order to show cause. Therein, the court explained that Mr. Schlick had been originally sentenced for purposes of Rule 4- 345(e) when his probation was revoked on September 15, 2008. Thus, on September 15, 2013, five years had passed from the date of his sentence. The court directed the parties to address whether Mr. Schlick’s motion should be dismissed on the grounds that, under Maryland Rule 4-345(e), the five-year expiration date for when the court can revise Mr. Schlick’s sentence had expired. At the hearing on January 10, 2017, the court heard arguments from the State’s attorney and Mr. Schlick’s counsel with regard to its revisory authority over Mr. Schlick’s sentence and on the merits of his motion for modification.
On August 8, 2017, the circuit court dismissed Mr. Schlick’s motion without ruling on the merits. The court reasoned that Mr. Schlick’s sentence was originally imposed on September 15, 2008, and its revisory power lapsed on September 15, 2013. Accordingly, the court concluded that it no longer had revisory power over the sentence. In addition, the court pointed out that Mr. Schlick was granted post-conviction relief and filed his belated motion in compliance with the post-conviction court’s order, but he did not obtain a hearing or ruling on the motion before September 15, 2013. Therefore, the court concluded that Mr. Schlick’s inability to receive a sentence modification was attributable to his own actions, not any fault or error of the court, nor ineffective assistance of counsel.
Mr. Schlick appealed to the Court of Special Appeals, which concluded that, despite the five-year limitation set forth in Rule 4-345(e), the trial court retained fundamental jurisdiction to rule on the belated motion for modification of sentence. Therefore, the Court of Special Appeals vacated the judgment of the circuit court and remanded the case to the circuit court to consider whether to entertain the motion and to consider the merits of the motion. Schlick v. State, 238 Md. App. 681 (2018).
The State appealed to the Court of Appeals, which affirmed.
LAW: At issue was whether a court loses revisory power over a criminal sentence after the expiration of five years from the date the sentence originally was imposed, as Maryland Rule 4-345(e) states, or whether the court instead indefinitely retains “fundamental jurisdiction” to revise a sentence. The parties’ contentions amounted to a dispute over the interpretation of Rule 4-345(e), and the circuit court’s power to modify Mr. Schlick’s sentence. The State asserted that the circuit court lacked revisory power over Mr. Schlick’s sentence and, thus, properly dismissed his motion. Mr. Schlick contended that the circuit court’s power to rule on his motion for modification was implicit in the post-conviction relief granted to him.
Rule 4-345(e) governs a trial court’s revisory power over sentences that it has imposed. Specifically, it sets forth the authority of and procedural requirements for a sentence to be revised by the trial court upon a defendant’s motion. Relevant to the matter sub judice, Rule 4-345(e)(1) provides: “Upon a motion filed within 90 days after imposition of a sentence...in a circuit court, whether or not an appeal has been filed, the court has revisory power over the sentence except that it may not revise the sentence after the expiration of five years from the date the sentence originally was imposed on the defendant and it may not increase the sentence.”
The language of Rule 4-345(e) sets forth two critical time frames: (1) the defendant has 90 days after imposition of a sentence to file a motion for modification; and (2) the trial court has revisory power over the defendant’s sentence for five years from the date the sentence originally was imposed. Md. Rule 4-345(e)(1).
Of particular importance to this case was the five-year limitation on a trial court’s revisory power, which is a relatively new addition to Rule 4-345(e). Prior to 1951, a court could revise a sentence only until the end of the term of court. Bereska v. State, 194 Md. App. 664, 680-81 (2010). In 1951, the Court adopted Part 4, Rule 10(c) of the General Rules of Practice and Procedure, which allowed modification of sentences, either sua sponte or pursuant to a defendant’s motion, within 90 days of the imposition of sentence. State v. Robinson, 106 Md. App. 720, 722-23 (1995). In 1961, Part 4, Rule 10(c) was amended and renumbered as Maryland Rule 764(b). Id. The Rule continued to allow a trial court to reduce a sentence during the 90- day period after the imposition of sentence, even absent a motion. Id. at 723. In addition, Maryland Rule 764(b) allowed a party to file a motion to revise a sentence within 90 days of the imposition of sentence, after which the court could modify the sentence “any time ‘thereafter.’” Id.
In 1984, the modern Maryland Rules were adopted, and Maryland Rule 764(b) became Maryland Rule 4-345(b). Steven Grossman & Stephen Shapiro, Judicial Modification of Sentences in Maryland, 33 U. BALT. L. REV. 1, 6 n. 33 (2004). Rule 4- 345(b) placed no time limit on the trial court’s authority to revise a sentence upon a motion timely filed within 90 days of the imposition of sentence. See Greco v. State, 347 Md. 423 (1997). It was not until 2004 that the provision was renumbered as Rule 4-345(e), and the five-year limit on a court’s revisory power was adopted by the Court of Appeals. See Tshiwala v. State, 424 Md. 612, 616 n. 2 (2012).
Under the Uniform Post-conviction Procedure Act, a defendant may file one petition for post-conviction relief “[f]or each trial or sentence[.]” Md. Code, Crim. Proc., §7-103(a). The petition “may not be filed more than 10 years after the sentence was imposed.” Md. Code, Crim. Proc., §7-103(b). When a defendant receives ineffective assistance of counsel, he or she may be entitled to relief under the Act. See generally Strickland v. Washington, 466 U.S. 668 (1984). As a post-trial remedy, a defendant is entitled to the relief that is needed to put the defendant in the position that he or she would have enjoyed but for counsel’s ineffectiveness. See Williams v. State, 326 Md. 367, 382-83 (1992).
Before determining when the circuit court’s revisory power ended, it was necessary to analyze the prefatory issue of when the circuit court’s revisory power began. The language of Rule 4- 345(e) provides that the event triggering the start of the circuit court’s revisory power is “the date the sentence originally was imposed on the defendant[.]” Md. Rule 4- 345(e)(1)(B).
“Whether the hearing judge reimposes the original sentence or imposes a new sentence, the effect under Rule 4-345(b) remains the same; the 90-day period runs from the time any sentence is imposed or reimposed upon revocation of probation, and the court retains the authority to modify that sentence as the rule provides. McDonald v. State, 314 Md. 271 (1988). “[I]f an order revoking a defendant’s probation returns the hearing judge to the original sentencing status, then any sentence so imposed must have the effect of an original sentence. Because Rule 4-345(b) applies to any sentence, it must apply to a sentence which is imposed following a revocation of probation.” Coley v. State, 74 Md. App. 151 (1988).
From McDonald and Coley, it was discerned that when a defendant is resentenced after probation is revoked, whether the court proceeds to reimpose the defendant’s initial sentence or impose a new sentence, the resulting sentence is treated as an “original sentence” for purposes of Maryland Rule 4-345(e). To treat the subsequent pronouncement of a sentence as an “original sentence” yields the conclusion that the portion of Rule 4- 345(e) that affords the circuit court revisory power for “five years from the date the sentence originally was imposed” must be interpreted to afford the trial court revisory power for five years from the date on which the defendant’s probation is revoked and the subsequent sentence is reinstated or reimposed. As a result, a defendant has 90 days from the date on which his or her probation is revoked and subsequent pronouncement of a sentence, whichever is later, to file a motion for modification. Likewise, the trial court has five years from the date on which a defendant’s probation is revoked and a sentence is imposed to exercise its revisory power over the sentence.
Here, the post-conviction court ruled on March 20, 2013 that Mr. Schlick received ineffective assistance of counsel because his attorney failed to file a timely motion for modification. Accordingly, the court granted Mr. Schlick permission to file a belated motion for modification within 90 days of the court’s order. By affording Mr. Schlick 90 days from the date of its order to file a motion for modification, the court effectively restored Mr. Schlick’s rights and the circuit court’s revisory power under Rule 4-345(e). That is, had Mr. Schlick received effective assistance of counsel, he would have had 90 days from the date of his probation revocation and final judgment of the court to file a motion for modification. Mr. Schlick was denied this right due to his counsel’s ineffectiveness. The post-conviction court restored his right to file the motion for modification. Given that the court’s order was rendered on March 20, 2013, Mr. Schlick had until June 18, 2013 to file his motion. He filed a motion on May 24, 2013.
Maryland Rule 4-345(e), however, explicitly affords Mr. Schlick more than the right to simply file a motion for modification. The Rule also grants the circuit court revisory power over such a motion for five years from the date on which a defendant’s sentence was originally imposed. Md. Rule 4-345(e)(1)(B). If Mr. Schlick had received effective assistance of counsel, he would have been entitled to the benefit of the circuit court’s revisory power over his sentence for five years from the date that the court revoked his probation and reimposed his sentence. Mr. Schlick’s sentence was reimposed on September 15, 2008. If a timely motion had been filed, the circuit court would have retained revisory power over Mr. Schlick’s sentence until September 16, 2013, because September 15, 2013 fell on a Sunday. See Md. Rule 1- 203(a)(1).
Not only was Mr. Schlick denied the right to file a motion for modification of sentence, he was also denied the court’s exercise of discretion consistent with its revisory powers under Rule 4-345(e). Thus, to meaningfully restore Mr. Schlick’s rights under the Rule, not only must Mr. Schlick be permitted to file a belated motion within 90 days of the post-conviction court’s order, but it follows that implicit in the court’s grant of relief was the ability of the circuit court to exercise its revisory power over Mr. Schlick’s motion for five years from the date of the post-conviction court’s order. Applying the aforesaid principles to the facts of the present case, Mr. Schlick was granted post-conviction relief on March 20, 2013. In compliance with the post-conviction court’s order, he filed a motion for modification on May 24, 2013. Therefore, the trial court had revisory power over Mr. Schlick’s sentence until March 20, 2018.
It was concluded, therefore, that the circuit court erred when it prematurely concluded that it lacked revisory power over Mr. Schlick’s sentence and thereby failed to exercise its discretion to rule on the motion for modification of sentence. Accordingly, the judgment of the Court of Special Appeals was affirmed and the case was remanded to the circuit court.
COMMENTARY: Clearly, Mr. Schlick is not guaranteed a reduction in sentence or other modification of sentence as a matter of law. Rather, he is entitled to the full benefits of Maryland Rule 4-345(e), which he was denied due to his counsel’s ineffectiveness. That is to say, Mr. Schlick is entitled to a full and fair opportunity in which to obtain the court’s consideration and ruling on his motion considering the totality of the circumstances. If Mr. Schlick intends to further pursue his request for modification of sentence, he is required, within 30 days of this decision, to file a motion in the Circuit Court for Baltimore City requesting that the court reconsider his motion for modification. In light of the 224 days that were outstanding when the circuit court dismissed Mr. Schlick’s motion, it was further held that the circuit court retains revisory power over Mr. Schlick’s sentence for an additional 224 days accounting from the date of Mr. Schlick’s written request to the circuit court.
PRACTICE TIPS: Rule 4-345(e) includes a defendant’s right to seek meaningful redress by filing a timely motion for modification of sentence and obtaining the meaningful exercise of a circuit court’s discretion to act on that motion within the time limits prescribed by the Rule. This application of the Rule is consistent with the notion to place the defendant in the position he would have been but for his counsel’s ineffectiveness. See Williams v. State, 326 Md. 367, 382-83 (1992).
TortsGross negligence
BOTTOM LINE: Where the evidence showed that city fire department medics responding to the plaintiff’s 911 call regarding chest pains assessed the plaintiff, took his vitals, and promptly transported him to the nearest hospital within seven minutes of first arriving on the scene, there was not sufficient evidence to support the plaintiffs’ wrongful death claim against the fire department because a well-intended error in medical judgment, even if it costs the patient’s life, does not equate to a wanton and reckless disregard for the life of that patient, and, therefore, the defendants’ conduct did not rise to the level of gross negligence and, thus, the defendants were entitled to immunity under the Fire and Rescue Company Act.
CASE: Stracke v. Estate of Butler, Jr., No. 64, Sept. Term, 2018 (filed August 16, 2019) (Judges Greene, HOTTEN, Getty & Booth) (Judges Barbera, McDonald & Wilner (Senior Judge, Specially Assigned), dissent).
FACTS: At just after 1:00 a.m. on March 2, 2011, Kerry Butler awakened his wife, Crystal Butler, complaining of chest pains. Crystal called 9-1-1 and reported that her husband was experiencing chest pain and difficulty breathing and speaking. She helped dress Kerry and assisted him down the steps to the first floor of their home to wait for the emergency medics.
Baltimore City Fire Department medics Joseph Stracke and Stephanie Cisneros were dispatched to the Butlers’ home in response to the 9-1-1 call for a reported chest pain emergency. They arrived on the Butlers’ street at approximately 1:18 a.m. After some difficulty locating the residence due to an inaccurate address they’d been given and because the relatively unlit street made it difficult to identify the house numbers, Stracke reached Crystal at the correct address, at around 1:20 a.m. He relayed his location to Cisneros, who remained in the ambulance.
By the time that Stracke reached the Butlers’ residence, Crystal was standing just outside the front door, and Kerry was sitting in a chair just inside the house. At the time, Kerry was 28 years old, five feet and seven inches tall, and approximately 245 pounds. Stracke asked, “What seems to be the problem?” Crystal responded that Kerry thought he was having a heart attack. Stracke asked Kerry, “What’s going on, my main man?” Kerry told him that his right side hurt.
After visually assessing Kerry, in accordance with relevant medical protocols, Stracke expressed the desire and need to bring Kerry to the ambulance for further evaluation and possible treatment. According to Stracke, he instructed Kerry to wait while he retrieved a stretcher, but Kerry declined, and began walking to the ambulance of his own accord. Cisneros exited the ambulance with a medical bag and oxygen bottle in order to fully and properly assess Kerry’s condition. According to Stracke and Cisnero, Kerry entered the ambulance unassisted and without difficulty. When Cisneros asked Kerry what was going on, Kerry responded that his throat was burning and that he had “chest heartburn.”
Inside the ambulance, Stracke took Kerry’s blood pressure, heart rate, and blood oxygen level, and Cisneros recorded these measurements in Kerry’s chart. Cisneros also checked Kerry for reproducible pain under his right arm (there was none), felt his pulse, checked his pupils, looked at his skin, and listened to his lungs, which were “perfectly clear.” All of Kerry’s vitals appeared to be baseline, indicating that he was in stable condition. The medics determined that Kerry should be transported to the nearest hospital, Harbor Hospital, which was less than a mile away. At around 1:24 a.m., approximately seven minutes after first arriving on the Butlers’ street, the medics and Kerry departed for the hospital. The ambulance arrived at Harbor Hospital approximately three minutes later, around 1:27 a.m.
Stracke immediately retrieved a wheelchair for Kerry, who exited the ambulance unassisted and without difficulty, and sat in the wheelchair. Cisneros alerted hospital staff that Kerry “had a burning in his throat.” Meanwhile, Stracke waited with Kerry in the emergency room for hospital staff to triage Kerry. After waiting in the emergency room for approximately ten minutes, Kerry became unconscious and began to slide out of his wheelchair. Stracke prevented Kerry’s head from striking the floor as he slid out of the wheelchair. Cisneros called for a nurse and doctor, who took Kerry to a code room with the assistance of Stracke. Despite the hospital staff’s efforts, Kerry could not be resuscitated, and he ultimately died. Following an autopsy, the medical examiner concluded that Kerry died of a myocardial infarction.
Crystal, Kerry’s parents, Kerry’s minor child and the child’s mother, and Kerry’s estate filed a wrongful death and survival action against the Mayor and City Council of Baltimore in the circuit court. Before commencement of trial, the City moved that the circuit court determine whether it was immune from suit under the doctrine of governmental immunity, and the defendants moved that the circuit court determine whether the Fire and Rescue Company Act, Md. Code, Cts. & Jud. Proc. §5-604(a) granted them civil immunity in the absence of any willful or grossly negligent act. The circuit court answered both questions in the affirmative, and entered judgment in favor of the City due to its governmental immunity.
The suit against the defendants proceeded to trial to determine whether the defendants acted in a willful or grossly negligent manner. After a jury found that the defendants were grossly negligent, the trial judge granted the defendants’ motion for judgment not withstanding the verdict. The plaintiffs appealed to the Court of Special Appeals, which reversed the trial court’s grant of JNOV on the basis that the defendants were grossly negligent and not entitled to immunity. Both sides appealed to the Court of Appeals, which reversed the judgment of the Court of Special Appeals.
LAW: The defendants argued that the Court of Special Appeals erred in finding that there was sufficient evidence that the defendants committed gross negligence that caused the death of a patient, when undisputed evidence established that the defendants assessed Kerry, including taking vital signs, and within seven minutes transported him to the hospital, where his condition suddenly worsened. Simple negligence is any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm. Barbre v. Pope, 402 Md. 157, 187 (2007). Gross negligence, on the other hand, is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Id.
The evidentiary hurdle is higher for supporting a claim of gross negligence. Beall v. Holloway-Johnson, 446 Md. 48, 64 (2016). A wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. Barbre, 402 Md. at 187. In this case, even when taken in the light most favorable to the plaintiffs, the evidence submitted at trial of the defendants’ actions, or failures to act, while potentially sufficient to establish simple negligence, was insufficient to establish gross negligence. Cooper v. Rodriguez, 443 Md. 680, 706 (2015).
In Tatum v. Gigliotti, the Court of Special Appeals concluded that a paramedic who failed to properly diagnose a medical condition and administer proper treatment, eventually leading to the patient’s death, did not perform his duties in a grossly negligent manner. Tatum v. Gigliotti, 80 Md. App. 559, 569 (1989). There, the medic attempted to put a paper bag over the patient’s face, believing that he was suffering from hyperventilation, when, in fact, the patient was actually suffering from an asthma attack. Id. at 562. While en route to the hospital in an ambulance, the patient went into cardiac arrest, and ultimately died from lack of oxygen. Id. The Court of Special Appeals reasoned that although the medic’s actions might have amounted to negligence, they did not satisfy the threshold of gross negligence. Id. at 569; see also McCoy v. Hatmaker, 135 Md. App. 693, 707-08 (2000).
Here, the plaintiffs pointed to the defendants’ failure to adhere to the Maryland Medical Protocols for Emergency Medical Services Providers and the Emergency Medical Services procedures set forth in the Baltimore City Manual of Procedures (“MOP”) as evidence of their gross negligence. However, the failure to adhere to protocols and policies does not itself establish a reckless disregard for human life or amount to gross negligence. See Tatum, 80 Md. App at 571. Contrary to the plaintiffs’ assertion, the defendants did not knowingly, consciously, and deliberately fail to adhere to these protocols. Stracke visually assessed Kerry at Kerry’s residence, and Cisneros conducted a visual assessment as Kerry was escorted towards the ambulance. After responding to the 9-1-1 call and assessing Kerry, the defendants transported Karry to the closest hospital, where he arrived less than ten minutes after first making contact with the defendants. It was not until Kerry had been waiting in the hospital for an additional ten minutes that his symptoms began to worsen and he subsequently went into cardiac arrest.
Based on these uncontroverted facts, the defendants did not possess a wanton and reckless disregard for Kerry’s life, nor did they present an utter indifference to his rights and well-being. On the contrary, they arrived at Kerry’s home, despite initially receiving an incorrect address, and provided the care they assessed as necessary for the situation before them. As such, their conduct did not rise to the level of gross negligence.
Accordingly, the judgment of the Court of Special Appeals was reversed.
COMMENTARY: The plaintiffs alternatively asserted that Cts. & Jud. Proc. §5-604(a) confers immunity from simple negligence claims only upon private and volunteer fire and rescue companies, not municipalities or their employees. However, the statue and relevant case law unambiguously confer immunity from simple negligence claims upon municipal fire departments and their employees, which the defendants indisputably were. See Mayor & City of Baltimore v. Chase, 360 Md. 121 (2000). It is well established that the General Assembly intended the Fire and Rescue Company Act to immunize municipal and private fire departments, as well as their employees, from simple negligence claims. Id.
DISSENT: The Majority treated as facts assertions that the jury obviously did not accept, which is inappropriate when reviewing a JNOV. It was not true that there was no evidence contradicting the conclusion that it was not until Kerry had been waiting in the hospital for an additional ten minutes that his symptoms began to worsen and he eventually went into cardiac arrest. There was, in fact, a great deal of evidence contradicting this conclusion, which the defendants ignored, and jury apparently believed. Therefore, the judgment of the Court of Special Appeals should have been affirmed.
PRACTICE TIPS: Gross negligence is not just “big negligence.” Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.
