Municipalities Held Immune from Tortious Acts of Off Duty Police Officer

 In Clark v. Prince George’s County, 211 Md. App. 548, 65 A.3d 785 (2013), the Court of Special Appeals held that Prince George’s County (“the County”) was entitled to governmental immunity from common law tort claims committed by an off duty county police officer.  Additionally, the court affirmed the trial court’s grant of judgment in favor of the County in a suit for vicarious liability of the officer because the evidence presented at trial demonstrated there was no material factual dispute that the officer was not acting within the scope of his employment.  The Court of Special Appeals also held that the trial court did not abuse its discretion by granting the County’s motion in limine to preclude evidence of the officer’s mental health history and prior violent acts.

           The incident giving rise to the litigation occurred on January 24, 2007 when an employee of the Prince George’s County Department of Homeland Security, Keith Washington, used his service weapon to shoot Brandon Clark and Robert White while they were completing a scheduled delivery inside Washington’s home.  As a result of the shooting, Clark died and White sustained permanent physical injuries.

The personal representatives for Clark’s estate and White (“Plaintiffs”) sued the County for common law torts of negligent hiring, retention, and entrustment of Washington, for vicarious liability for torts committed by Washington, and for a constitutional tort claim.  The Circuit Court for Prince George’s County dismissed the common law claims on governmental immunity grounds and bifurcated the remaining claims.  At the close of the Plaintiffs’ case-in-chief in the vicarious liability case, the trial court granted judgment in favor of the County, finding that Washington was not acting within the scope of his employment at the time of the shooting.  Before the trial for the constitutional tort claim, the trial court granted the County’s motion in limine to preclude evidence of Washington’s mental health history and prior violent acts.  Without this evidence, the Plaintiffs could not make out a prima facie case.  Summary judgment was granted to the County on the constitutional claim, and the Plaintiffs appealed.

            The first issue considered by the Court of Special Appeals was whether the trial court erred by dismissing the common law torts against the County.  The Court of Special Appeals observed that counties are generally shielded from tort liability stemming from governmental actions.  Furthermore, the court noted that operation of a police department is quintessentially governmental.  The Plaintiffs argued that Jones v. State, 425 Md. 1. 38 A.2d 333 (2012), altered the law of governmental immunity.  The Court of Special Appeals, however, quickly distinguished this case by recognizing that Jones involved liability against the State of Maryland, whereas the instant case dealt with alleged tort liability directed toward a local municipality.  Ultimately, the court held that the trial court properly dismissed the common law claims brought by the Plaintiffs.

             The Court of Special Appeals next considered whether the trial court erred in granting judgment in favor of the County in the vicarious liability case.  To properly address this issue, the court had to determine if the evidence at trial generated a material factual dispute as to whether Washington was acting within the scope of his employment at the time of the shooting.  The court explained that the general test for determining scope of employment is determining whether the tortious acts were performed in furtherance of the employer’s business, and whether the employer authorized the acts.

            In this case, the court found that no material factual dispute existed because Washington was not acting within the scope of his employment.  Dispositive to the court’s determination included the fact that the shooting was allegedly done in self-defense, and that Washington was off-duty the entire day the shooting occurred, was plain-clothed and never identified himself as a police officer before the shooting, and his duties to the County were office-oriented rather than patrol-oriented.  Additionally, the court relied on the Court of Appeals decision in Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467 (1991), which held that, even though police officers are “on call” 24 hours a day, every act at every time by an individual officer is not necessarily in furtherance of the State’s business or incidental to police work.  The Court of Special Appeals, accordingly, affirmed the trial court’s grant of judgment in the vicarious liability case.

             The final issue considered by the court was whether the trial court erred by excluding evidence of Washington’s prior mental history and violent acts in the constitutional tort claim.  At trial, the Plaintiffs sought to introduce job related psychiatric evaluations dating back as early as 1995, and a non-job related police report from 2004 based on an altercation with a man in attendance at a 2007 home owner’s association meeting.  The trial court excluded the evidence because the psychiatric reports were too attenuated, and that Washington’s actions at the 2007 meeting were not indicative that he would later shoot someone.  The Court of Special Appeals found the trial court’s rationale for granting the County’s motion was not an abuse of discretion and, therefore, affirmed the trial court’s decision to preclude the evidence.

            Having found in favor of the County on all issues on appeal, the Court of Special Appeals affirmed the Circuit Court for Prince George’s County.