# James v. Prince George's County > Court of Appeals of Maryland · October 2, 1980 · 288 Md. 315 URL: https://www.frixlaw.com/law-library/cases/9712781 ## Case - **Full name:** KENNETH JAMES Et Ux. v. PRINCE GEORGE’S COUNTY, MARYLAND; DOUGLAS ARTHUR DAWSON v. PRINCE GEORGE’S COUNTY, MARYLAND Et Al. - **Court:** Court of Appeals of Maryland - **Decided:** October 2, 1980 - **Citations:** 288 Md. 315; 418 A.2d 1173 - **Precedential status:** Published - **Opinion:** Concurring in part by Murphy - **Judges:** Murphy, Smith, Digges, Eldridge, Cole, Davidson, Rodowsky - **Cited by:** 130 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by statute, as recognized in Prince George's County v. Fitzhugh. - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9712781 ## How later opinions describe it (automated extraction) - holding that the driver of an emergency vehicle is not entitled to receive qualified public official immunity because “the normal operation of a vehicle, including those on an emergency mission, is not ordinarily a discretionary act for which immunity will shield the driver fr… - holding under former Md.Code (1957, 1998 Repl.Vol.), Art. 25A, § 5(S) that Prince George’s County possessed the power to waive its governmental immunity through its county charter - noting that the rationale underlying the grant of public official immunity is “that a public purpose is served by protecting officials when they act in an exercise of their discretion” (quotation omitted) ## Opinion text Murphy, C. J., concurring in part and dissenting in part: I agree with the Court that the judgments in these cases must be reversed because, without regard to whether the drivers of the emergency vehicles were "public officers” or not, they were exercising ministerial, as opposed to *338 discretionary duties, at the time of the accidents as to which, under § 1013 of the County Charter, the County had waived its immunity from suit. I do not agree, however, with the Court’s alternate reason for reversing the judgments, namely, that Bradshaw v. Prince George’s County, 284 Md. 294 , 396 A.2d 255 (1979), decided by a unanimous Court a little more than a year ago, wrongly concluded that the County’s waiver of governmental immunity under § 1013 was a limited one, not encompassing nonmalicious, negligently performed tortious acts committed by its public officers in the performance of discretionary duties where the public officer was himself immune from liability for his conduct. Under § 1013 of the County’s Charter, as it read at the time of the suit in Bradshaw , the County authorized the filing of suits against it "in actions sounding in tort in the same manner and to the same extent that any private person may be sued.” We concluded in Bradshaw that this language did not constitute a blanket waiver of the County’s governmental immunity but rather that it intended to subject the County to derivative liability under the doctrine of respondeat superior for the tortious acts of its officers and employees where, but only where, they were themselves legally liable for their acts. We said that by providing that its liability to suit shall be "in the same manner and to the same extent” as that of "any private person,” the County accepted liability for those torts, but only those torts, for which a private person would be responsible, either directly or derivatively. Because the police officer sued in Bradshaw was a public officer, and therefore not liable under the law of Maryland for discretionary actions negligently performed, we concluded, applying the doctrine of respondeat superior, that the County had not waived its immunity and was therefore not liable in such an action. Our position was buttressed somewhat by cases involving Maryland’s concededly minority view of non-liability under the interfamily immunity doctrine. See Stokes v. Taxi Operators Ass’n, 248 Md. 690 , 237 A.2d 762 (1968), and Riegger v. Brewing Company, 178 Md. 518 , 16 A.2d 99 (1940). *339 Moreover, because § 1013 was in derogation of the common law of Maryland, thus requiring a strict construction, we interpreted its provisions to subject the County to suit for actionable tortious conduct on the part of public officers for which liability could be imputed to the County, i.e., negligently performed ministerial acts, but not negligently performed discretionary acts. The majority now interprets § 1013, as it stood when the Bradshaw case was filed, and as it now reads, to constitute a total waiver of the County’s governmental immunity and to subject it to liability just as if it were a private corporation, so that it will be responsible in damages for the discretionary acts of public officers, negligently as well as maliciously performed. Thus, the simple negligence of county police officers, firemen and jail guards, to mention a few, will subject the County to a damage suit, even though the public officer himself is immune for all but his malicious acts. This result is mandated, according to the majority, by the interpretation placed by other jurisdictions on language similar to that used in § 1013 in effectuating a waiver of governmental immunity. The majority concludes that the provisions of § 1013, assenting to suits "in the same manner and to the same extent” as that of "any private person,” constitute a "phrase of art” in immunity statutes throughout the country, uniformly interpreted to mean that the waiver of immunity renders the governmental entity liable for conduct "which would be actionable if... done by a private person in a private setting.” While the authorities marshaled in support of the majority opinion are impressive indeed, it is noteworthy that the waiver provisions involved in several of the cases relied upon by the majority to support its construction of § 1013, as well as in other cases, imply an exception from the immunity waiver for discretionary functions performed by governmental officers. See Commercial Carrier Corp. v. Indian River Cty., 371 So. 2d 1010 (Fla. 1979); Weiss v. Fote, 7 N.Y.2d 579 , 167 N.E.2d 63 (1960); Harris v. State, 48 Ohio Misc. 27 , 358 N.E.2d 639 (1976); Evangelical United Brethern Church v. State, 67 Wash. 2d 246 , 407 P.2d 440 (1965). *340 I do not subscribe to the majority’s view that the critical provisions of § 1013 constitute a "phrase of art” inexorably leading to the conclusion that the words used mean what similar phrases have been held to mean in other jurisdictions. In Bradshaw , we ascertained that the waiver of immunity was intended by the County to be a limited one. From the outset, the County has steadfastly maintained that its waiver of immunity was limited as set forth in Bradshaw . I am satisfied that the Court’s construction of § 1013 in Bradshaw was correct. In this connection, it is worth noting that engrafted upon the waiver of immunity by the United States in the Federal Tort Claims Act, 28 USCA § 2674, et seq. (that the government shall be liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances”) is an express exception in § 2680 for claims based upon the exercise or failure to exercise discretionary functions or duties by federal employees, whether the employee abused his discretion or not. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712781. Public record. Not legal advice.