Article from the Trial Reporter Special Issue 2023
By Lawrence S. Greenberg

“Nobody has a more sacred obligation to obey the law than those who make the law.”

 - Sophocles

A tort is a civil wrong that causes injury to someone else or their property, for which the law, in most cases, grants the victim a legal remedy. Tort law, as it relates to constitutional violations, details the balance between the protection of an individual’s liberty and property and the realization that defendants are needed to perform necessary and useful functions in society. This balancing act has evolved over the last 245 years, but the conflict continues. The courts still struggle with how, or if, a citizen can receive an adequate remedy from our civil justice system if injured at the hands of a state actor.

While this article will not focus solely on civil rights actions, it is important to understand the minefield that practitioners crawl through when representing a person injured by an agent of the state or a local government across Maryland. By no means will I attempt to address every issue that arises throughout such cases, as it would take another quarter of a century to do justice to that task.

Before delving into civil rights issues, it is important to recognize issues that arise in regular personal injury cases that involve government employees.

When a person or property is involved in an incident (car crash, police brutality, premises liability) caused by law enforcement or other agents of the government, their ability to recover becomes more complex than if they were injured by another citizen. At the outset, there are times when it is not clear that the tortfeasor is a government agent, which can cause serious pitfalls. Maryland has two laws that protect government agencies and employees: the Local Government Tort Claims Act (LGTCA) and the Maryland Tort Claims Act (MTCA).

LGTCA defines an employee covered under the act as any person who was employed by a local government at the time of the act or omission giving rise to potential liability against that person.¹ The code further defines those agencies covered under the act, which may not be obvious to those injured in the crash.²

The MTCA also defines employees and agencies covered under the act.³ MTCA additionally provides:

1.         the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent provided under paragraph (2) of this subsection.

(2)(i) Except as provided in subparagraph (ii) of this paragraph, the liability of the State and its units may not exceed $400,000 to a single claimant for injuries arising from a single incident or occurrence.

(ii) If liability of the State or its units arises from intentional tortious acts or omissions or a violation of a constitutional right committed by a law enforcement officer, the following limits on liability shall apply:

2. subject to item 2 of this subparagraph, the combined award for both economic and noneconomic damages may not exceed a total of $890,000 for all claims arising out of the same incident or occurrence, regardless of the number of claimants or beneficiaries who share in the award; and

3. in a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation established under item 1 of this item, regardless of the number of claimants or beneficiaries who share in the award.

However, the MTCA provides the State with the ability to refuse to pay a valid jury verdict:

The Treasurer may pay from the State Insurance Trust Fund all or part of that portion of a tort claim which exceeds the limitation on liability established under subsection (a)(2) of this section under the following conditions:

(i) the tort claim is one for which the State and its units have waived immunity under subsections (a) and (b) of this section;

(ii) a judgment or settlement has been entered granting the claimant damages to the full amount established under subsection (a)(2) of this section; and

(iii) the Board of Public Works, with the advice and counsel of the Attorney General, has approved the payment.

(2) Any payment of part of a settlement or judgment under this subsection does not abrogate the sovereign immunity of the State or any units beyond the waiver provided in subsections (a) and (b) of this section.

While a civil action must be filed within three years from the date it accrues, unless another provision of the Code provides a different period within which an action shall be commenced, the Tort Claims Acts impose additional time restrictions that can impact the ability to bring an action against the tortfeasor.⁴ The Tort Claims Acts requires that an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this Act was given within 1 year after the injury.⁵ Injured parties are also required to include specific information in the notice and serve it upon specific entities or else it may be deemed ineffective.⁶ However, unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown, the court may entertain the suit even though the required notice was not given.⁷

The Tort Claims Acts also provides various immunities to the government employee who caused the injuries.⁸ A person may not execute a judgment against an employee for tortious acts or omissions committed by the employee within the scope of employment with a local government except if the employee acted with actual malice.⁹ The government also forces the employee to cooperate in the defense of the action as the rights and immunities granted to an employee are contingent on the employee's cooperation.¹⁰

While the government is tasked with protecting and serving all Marylanders, including the most poor and vulnerable, these acts provide the government with the ability to protect their purse strings at the expense of citizens’ safety. The government picks and choses which judgments to pay, not only continuing the cycle of abuse that the victim has already suffered at the hands of the officers or correctional guards, but to the personal expense of the government employees who become personally responsible for the verdict when the government refuses to pay. The government refusal to pay oftentimes leaves their employees high and dry and forced to declare bankruptcy. In Rodriguez v. Cooper, et al, an inmate brutally murdered another inmate during a ride on a prison transport bus staffed by five correctional officers. At issue in this case was whether the correctional officer, Larry Cooper (“Cooper”) who was in charge of the bus was grossly negligent and, if so, whether he was entitled to common law public official immunity. The jury found Cooper grossly negligent and that his gross negligence was a proximate cause of the inmate’s death. The circuit court granted Cooper’s motion for judgment notwithstanding the verdict by striking the jury’s finding of gross negligence and determining that Cooper was immune from liability. The court of special appeals reversed as to Cooper, concluding that Cooper was grossly negligent and consequently not immune from liability. The Court of Appeals affirmed, holding (1) gross negligence is an exception to common law public official immunity; and (2) the court of special appeals was correct in ruling that Cooper was not entitled to common law public immunity because he acted with gross negligence.¹¹ Mr. Rodriguez’s family not only lost their husband and father, but they also lost the ability to get justice for the needless and preventable murder of their loved one.

Further limitations were imposed upon the victims of constitutional violations occurred in Esteppe v. Balt. City Police Dep’t, 476 Md. 3, 14, 258 A.3d 210, 216 (2021). In 2012, former Baltimore City Police detective Adam Lewellen (“Lewellen”) committed perjury to obtain a search warrant for David Esteppe’s (“Esteppe”) home. Lewellen initiated a fraudulent prosecution of Esteppe. BCPD investigated Lewellen’s conduct, which led to criminal charges against Lewellen and the dropping of charges against Esteppe. Lewellen resigned from the police department and pled guilty to perjury and misconduct in office. Esteppe sued Lewellen, BCPD, and the Mayor and City Council of Baltimore for various torts, including negligence, violations of the Maryland Declaration of Rights, and civil conspiracy. BCPD and the Mayor and City Council were dismissed by the court through summary judgment. During trial, Esteppe argued Lewellen’s actions had no legitimate law enforcement purpose, but that his conduct was personally motivated. The Circuit Court for Baltimore City found in favor of Esteppe and awarded him $167,007.67 in damages. The circuit court made no mention concerning the Local Government Tort Claims Act (“LGTCA”). Accordingly, the circuit court made no findings as to whether Lewellen acted within the scope of his employment. Esteppe sought enforcement of the judgment in the circuit court against the City and BCPD, both of whom were not parties to the action at the time of the judgment. Relying on the LGTCA, Esteppe argued Baltimore City should pay the damages awarded as a result of Lewellen’s tortious conduct. The City argued it was not scope of his employment. The court ruled in favor of Esteppe and ordered the City responsible for covering the judgment’s cost against Lewellen. BCPD appealed the circuit court’s ruling, following which the Court of Special Appeals reversed the circuit court, holding that the City was not liable for damages under the LGTCA. Esteppe and BCPD filed petitions for writ of certiorari, which the Court of Appeals of Maryland granted. Subsequently, the Court of Appeals of Maryland affirmed the Court of Special Appeals and remanded the case to the circuit court. On appeal, the Court of Appeals of Maryland considered whether, for the purposes of the LGTCA, Lewellen acted within the scope of his employment, thereby making BCPD and the City responsible for the judgment against Lewellen.¹² The Court of Appeals of Maryland unequivocally adopted the analysis and holding of the Court of Special Appeals, finding no benefit in restating the well-researched opinion.¹³ Lastly, the legislature protected the government by imposing caps on the amount of damages an injured party can obtain, regardless of the amount of medical bills or pain and suffering.¹⁴ While the current tort claims cap is $400,000 per an individual claim, and $800,000 per total claims that arise from the same occurrence for damages resulting from tortious acts or omissions, it will increase to $800,000 and $1.3 million in 2023. While Maryland also has a cap on non-economic damages (pain and suffering, humiliation, scarring) for civil cases, it does not cap the economic damages (medical expenses, lost wages).

Most people do not recognize the injustice caused by this Act. Imagine a situation where a defendant violates the traffic laws and strikes another vehicle, and that person is catastrophically injured. Through no fault of their own, that person’s life is completely upended; unable to work, take care of themselves or their family, unable to live a normal life, and they are forced to endure pain for the remainder of their lives. In this hypothetical, the victim’s past and future medical expenses exceed $1,000,000 and their lost wages exceed $1,000,000. If the defendant was a regular citizen, the victim could potentially receive all of his medical and lost wage expenses, and be capped at the non-economic cap. However, if the defendant was a government employee, the victim would only get $400,000. $400,000 would not be enough to pay the victim’s health insurance lien, and therefore the victim essentially gets nothing. Without consequences, the government will continue to allow bad behavior to continue as it will never be held fully accountable.

In 2021, the Maryland Legislature passed the Maryland Police Accountability Act. While the legislature made strides to improve justice to victims of constitutional violations, the intended consequences have not materialized. One of the major laws created by that Act was Anton’s Law, S.B. 178. Anton’s Law was drafted is in response to the police-involved death of 19-year-old Anton Black, who died in custody after being handcuffed, shackled, and pinned to the ground for five minutes. After the investigation into Anton’s death, it came to light that Thomas Webster, the officer involved in Anton’s death, who the Medical Examiner initially cleared, had approximately thirty complaints filed against him for improper use of force. While Anton’s law was created to increase transparency between law enforcement agencies and the communities they serve by forcing the agencies to disclose records, the law still isn’t working. Had S.B. 178 been in effect at the time of Anton’s death, the population would have learned that Officer Webster, while serving as an officer in Delaware, was acquitted after a criminal trial for second-degree assault following an incident where he kicked a Black man in the head while at work. Until government agencies comply with the law, transparency and reform will never occur.¹⁵

As I prepared to end this article, I received notice that the Court of Appeals granted certiorari on the case of Wallace, et al v. State of Maryland, No. 27, September Term 2022. Cary Hansel and myself have the honor of representing Daquan Wallace and his mother, for the horrific injuries he suffered when guards allowed him to be savagely beaten by members of a gang that were running the detention center. The beating sentenced Mr. Wallace to a life of triplegia. He will be confined to a wheelchair, unable to speak and care for himself or others for the rest of his life.

In September 2019, a Baltimore City jury found the State liable for failing to protect Wallace from the violence, engaging in policies and practices that violated Wallace’s rights under the Maryland Constitution and negligently training or supervising its guards. The jurors awarded Wallace $15 million in damages based on the State’s negligence and $10 million based on the State’s violation of his constitutional rights against the State for past pain and suffering. The Circuit Court reduced the verdict to $200,000, which was the MTCA cap at the time, despite the severity of his injuries. While the intermediate Court of Special Appeals upheld the reduction in June in an unreported opinion, the Court of Appeals will determine if under Article 19 of the Constitution’s Declaration of Rights, judges should be empowered to set a just recovery and not be forced into a miscarriage of justice by reducing the verdict in rare cases like this.

Hopefully, the Court in Wallace recognizes and is willing to correct the injustice that occurs when citizens of Maryland are initially beaten and battered by government employees and further destroyed when a jury verdict is stripped away without recourse. Hopefully courts across Maryland hold our government accountable for the atrocities caused by the abuse of power of its agents. Hopefully, the government recognizes that with great power comes great responsibility. Am I hoping for too much?

 

Biography
Lawrence S. Greenberg received his B.A. from Boston University and his J.D. from the University of Baltimore School of Law. He has practiced law exclusively at the Greenberg Law Office where he focuses on serious personal injury, civil rights violations, and criminal law. He is a past president of the Maryland Association for Justice and remains active in bar associations. He has been an adjunct with the University of Baltimore School of Law since 2015.

 

 

 

1 MD Code, Courts and Judicial Proceedings, § 5-301(c)(2)

2 MD Cts & Jud Pro Code § 5-301(d)

3 MD Code, State Government, § 12-101

4 MD Code, Courts and Judicial Proceedings, § 5-101

5 MD Code, Courts and Judicial Proceedings, § 5-304, MD Code, State Government, § 12-107

6 MD Code, Courts and Judicial Proceedings, § 5-304

7 MD Code, Courts and Judicial Proceedings, § 5-304 (d)

8 MD Code, State Government, § 12-105

9 MD Code, Courts and Judicial Proceedings, § 5-302

10 MD Code, Courts and Judicial Proceedings, § 5-302 (d)

11 Justia, Cooper v. Rodriguez, https://law.justia.com/cases/maryland/court-of-appeals/2015/87-14.html (last visited Dec. 03, 2022)

12 Esteppe, 476 Md. at 11, 258 A.3d at 214 (citing Md. Code Ann., Cts. & Jud. Proc. § 5-301 (2021).

13 Id. at 14, 258 A.3d at 216. Jeneen Burrell, Esteppe v. Baltimore City Police Dept., U. Balt. L. Forum (Sept. 22, 2022) https://ublawforum.wordpress.com/2022/09/22/esteppe-v-balt-city-police-dept/.

14 MD Code, Courts and Judicial Proceedings, § 5-303.

15 Brice Litus, The Opportunity for Police Reform was Knocking, So Maryland Opened the Door, U. Balt. L. Forum, (December 6, 2021) https://ublawforum.wordpress.com/2021/12/06/the-opportunity-for-police-reform-was-knocking-so-maryland-opened-the-door/.