CHAPTER EIGHT HIGHWAY DESIGN AND MAINTENANCE, ABUTTING LAND OWNERS, AND PUBLIC UTILITIES
| Jurisdiction | Maryland |
DENNIS F. O' BRIEN is a sole proprietor at the law office of Dennis F. O'Brien, P.A., where his full-time civil litigation practice focuses on serious personal injury, product liability, including drug and medical devices, medical malpractice, nursing home negligence, appellate work and general civil litigation. Mr. O'Brien is a member of the Maryland State, Harford County, Baltimore County, and Baltimore City bar associations, and the American Association for Justice. He is admitted to the U.S. District Court, District of Maryland, U.S. Court of Appeals (Fourth Cir.), and the U.S. Supreme Court. Mr. O'Brien is the co-author and author of a variety of publications, and he presents locally and nationally at CLEs on a variety of legal topics.
He earned his B.S. degree from the University of Maryland Baltimore County and his J.D. degree, cum laude, from the University of Baltimore School of Law. He has been in practice for 40 years and holds an AV Preeminent rating.
I. GOVERNMENTAL IMMUNITY AND TORT CLAIM ACTS
A. State of Maryland
Historically, the State of Maryland and all of its agencies have been immune from liability in exercising governmental functions, such as highway design and maintenance.1 Until 1981, the only method of recovery for damage caused by a defective condition of a road maintained by the State was by application to the General Assembly for an allowance of compensation in the State budget.2
In 1981, the General Assembly enacted the first version of the Maryland Tort Claims Act. Under that version of the statute,
the immunity of the State, of its units, and of State personnel who are acting in official capacities is waived as to a tort action, in a court of the State, to recover damages that are caused by . . . the patently dangerous condition of a building, structure, or other public improvement that the State or any of its units owns and controls . . . the negligent maintenance or use, by State personnel, of any property that the State or any of its units owns or possesses; a defective, unsafe or dangerous condition of a street, alley, sidewalk, or highway that the State or any of its units owns and controls, if the State or the unit had constructive or actual notice of the condition.3
In 1985, the General Assembly significantly extended the waiver of governmental immunity by the State.4 The amendment rewrote Section 12-104 of the STATE GOVERNMENT Article, and provided: "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 of insurance coverage under Title 9 of the State Finance and Procurement Article."5 The waiver of immunity of the State and its units for damages arising out of a single incident or occurrence was limited to $100,000 for causes of action arising on or after July 1, 1996.6
1999 LAWS OF MD., ch. 639 amended STATE GOV'T § 12-104(a)(2) effective October 1, 1999, to provide:
(1) Subject to the exclusions and limitations in this subtitle and notwithstanding any other provision of law, 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) The liability of the State and its units may not exceed $200,000 to a single claimant for injuries arising from a single incident or occurrence.
By its Annual Correction Bill, the General Assembly also amended CTS. & JUD. PROC. § 5-522(a)(5) to provide the same limits of liability as STATE GOV'T § 12-104. 2000 Laws Of Md., Ch. 61.
Effective October 1, 2015, the limits of liability for the State are $400,000 to a single claimant arising from a single incident or occurrence. STATE GOV'T Art. §12-104(2).
Immunity of the State is not waived in actions in federal court,7 for punitive damages8 or interest before judgment,9 claims that arise from the combatant activities of the State Militia during a state of emergency,10 acts or omissions of State personnel not within the scope of their public duties or made with malice or gross negligence,11 or for "[a] cause of action that law specifically prohibits."12 Nor are any federal constitutional rights or defenses waived by the statute, including any defense of immunity otherwise available under the 11th Amendment.13
State personnel remain immune from suit in State court for tortious acts and omissions committed within the scope of their public duties and without malice or gross negligence, regardless of whether the State has waived its immunity, even if the damages exceed the limits of that waiver.14
Section 9-105 of the STATE FINANCE AND PROCUREMENT Article directs the Treasurer to maintain both commercial and self insurance to cover the state's liability under the Maryl and Tort Claims Act. The limits of the coverage are contained in COMAR 25.02.01.01, and may vary from time to time and from circumstance to circumstance.
Practitioners must strictly comply with the notice requirements and procedures set forth in the Maryland Tort Claims Act.15 Before suit may be filed, the claimant must submit a written claim to the State Treasurer in the form prescribed by STATE GOV'T § 12-107. A claimant may not institute an action under this subtitle unless:
1. The claimant submits a written claim to the Treasurer or a designee of the Treasurer within one year after the injury to person or property that is the basis of the claim;
2. The Treasurer or designee denies the claim finally; and
3. The action is filed within three years after the cause of action arises.16
The procedure for the submission and processing of claims is regulated by COMAR 25.02.03.01, et seq.
Tort claims in amounts exceeding the waiver of immunity may be paid by the State Treasurer from the State Insurance Trust fund where the requirements of STATE GOV'T § 12-104(c) are met.17
Other statutory waivers of immunity for state agencies include TRANSP. § 7-702; CTS. & JUD. PROC. § 5-518; MD. CODE ANN. EDUCATION §§ 4-105 and 4-106 (2018 & Supp. 2021); CTS. & JUD. PROC. § 5-512 & MD. ANN. CODE, Art. 28 § 2-111; CTS. & JUD. PROC. § 5-524; and TRANSP. § 17-107(e) (negligent use of motor vehicle while in government service); CTS. & JUD. PROC. § 5-639 (negligent operation of emergency vehicles); CTS. & JUD. PROC. § 5-604 (fire and rescue companies).
B. Local Governments
The liability of a county or municipality for negligence arising out of its construction, maintenance and control of roads is an exception to the general rule that counties and cities share in the immunity of the State when exercising governmental functions.18 Thus, persons injured as a proximate result of improperly constructed and maintained county and municipal roads may recover for their injuries.19
In 1987, the General Assembly enacted the Local Government Tort Claims Act, which applies to actions arising from events occurring on or after July 1, 1987.20 The Local Government Tort Claims Act makes a local government "liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government."21 Local government includes: chartered counties; code counties; boards of county commissioners; Baltimore City; and other municipal corporations.22 The statute applies only to acts of "employees," and limits liability to $400,000 for an individual claim and $800,000 for the aggregate of claims that arise from the same occurrence.23 A local government is not liable for punitive damages.24 Unlike the Maryland Tort Claims Act, the Local Government Tort Claims Act does not actually "waive" governmental immunity.25 Instead, local governments are required to defend their employee and pay any judgments if the conditions of the statute are met. Under the Local Government Tort Claims Act, a plaintiff must bring his or her claim against the employee, not the local government. Local governments may still raise any defense or immunity to the claim that it or its employee may have, and common-law distinction between "governmental" and "proprietary" functions remains.26
In Housing Authority of Baltimore City v. Bennett27 the Court of Appeals addressed the issue of whether the monetary caps on damages in CTS. & JUD. PROC. § 5-303(a) applied to a direct state common law negligence action against Housing Authority of Baltimore City, which is a local government entity under the Local Government Tort Claims Act. After extensively reviewing the legislative history of the statute, the Court concluded that the monetary caps apply to tort actions against local governments based on locally enacted ordinances or charter provisions, but not to tort actions based on enactments of the General Assembly, State common law, the State constitution, or federal law.28 Following the Bennett decision, the General Assembly enacted emergency legislation amending CTS. & JUD. PROC. § 5-303(a)(1), stating "[t]hat it is the intent of the General Assembly that the total liability of a local government, directly or otherwise, in an action arising from tortious acts or omissions, may not exceed the limits on liability stated in Section 5-303(a) of the COURTS & JUDICIAL PROCEEDINGS Article."29 The amendment is applicable to "any claim for damages under Section 5-303 of the COURTS & JUDICIAL PROCEEDINGS Article in a case pending on the effective date of [the amendment] and arising, from events occurring on or after July 1, 1987."30
The requirement that notice be given to a county or municipal corporation as a condition precedent to maintaining a cause of action for unliquidated damages (formerly CTS. & JUD. PROC. § 5-404) is now found in the Local Government Tort Claims Act, CTS. & JUD. PROC. § 5-304. "An action for unliquidated damages may not be brought against a local government or its employees unless the...
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