Legal Issues & Topics

Table of Contents


  1. What is the Local Government Tort Claims Act?
  2. What is the purpose of the notice requirement in the Local Government Tort Claims Act?
  3. Is a notice of claim made to a third-party administrator on behalf of a local government sufficient under the Local Government Tort Claims Act?
  4. Who is an employee under the Local Government Tort Claims Act?
  5. Is an off-duty police officer working as a private security guard within the scope of employment with the local government?
  6. What if it is determined that the local government employee acted beyond the scope of employment with the local government?
  7. What is a reservation of rights?
  8. What is the meaning of actual malice?
  9. What are the consequences of acting with actual malice?
  10. What constitutes a negligence claim?
  11. What is public official immunity?
  12. Who is a public official for immunity purposes?
  13. Does public official immunity bar liability against all tort claims?
  14. What is the public duty doctrine?
  15. What is the relationship between the public duty doctrine and police officers?
  16. What are the limits on the public duty doctrine?
  17. When does a special relationship exist?
  18. Do local government emergency telephone system employees owe an individual tort duty to persons in need of their services?
  19. Are sheriffs and deputy sheriffs entitled to the protections of the Local Government Tort Claims Act?
  20. What immunities are available to state personnel, including sheriffs and deputy sheriffs?
  21. Is there protection from claims arising from statements made by local government legislators?
  22. What is governmental immunity?
  23. What are the duties imposed on local governments concerning public ways, such as streets, thoroughfares and sidewalks?
  24. Can a local government delegate the care and maintenance of its streets and sidewalks to third parties?
  25. When are the owners of property abutting sidewalks liable for injuries to third parties?

1. What is the Local Government Tort Claims Act?

The Local Government Tort Claims Act (Md. Code Ann., Cts. & Jud. Proc. §§ 5-301 through 5-304 (2002 repl. vol.), hereinafter “LGTCA”) is a statute enacted by the General Assembly and signed into law in 1987. The purpose of the LGTCA is to provide a remedy for those injured by local government officers and employees acting without malice and in the scope of employment, while ensuring that the financial burden of compensation is carried by the local government ultimately responsible for the public employee’s actions. See Ashton v. Brown, 339 Md. 70, 107-08 (1995). Thus, the LGTCA requires Maryland counties and other entities defined therein as “local governments,” § 5-301(d), to pay, up to certain limits, judgments for compensatory damages rendered against their employees as a result of tortious acts committed in the scope of employment. Williams v. Maynard, 359 Md. 379, 380-81 (2000). The LGTCA generally requires that plaintiffs give local government defendants notice of claims within 180 days of the injury, § 5-304(a), and that such notice be given to designated government officials.

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2. What is the purpose of the notice requirement in the Local Government Tort Claims Act?

The purpose of the notice requirement in the Local Government Tort Claims Act is to protect the municipalities and counties of the State from avaricious claimants and exaggerated claims by providing a mechanism whereby the municipality or county would be apprised of its possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and its responsibility in connection with it. Williams v. Maynard, 359 Md. 379, 389-90 (2000).

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3. Is a notice of claim made to a third-party administrator acting on behalf of a local government sufficient under the Local Government Tort Claims Act?

In consolidated appeals decided by the Court of Appeals on September 25, 2002, the answer was “yes.” In two recent cases, Robert Moore v. Mostaba Norouzi and Stuart C. Mendelson v. Philip George Brown, Nos. 126 and 127, Court of Appeals, September Term, 2000, Maryland’s highest court once again visited the issue of the notice of claim required under the Local Government Tort Claims Act (hereinafter “LGTCA”). In both cases, the plaintiffs had been injured in accidents, in which employees of Montgomery County were involved. In neither case did the plaintiff send any notice of claim to the County Executive. Instead, one plaintiff was contacted after the accident by Trigon Administrators, Inc. (hereinafter “Trigon”), which, pursuant to a county-solicited contract, provided claims administration services for the Montgomery Self-Insurance Program. The plaintiff and his attorney gave detailed information concerning the accident to Trigon’s representatives. The second plaintiff completed a Telephone Claim Report to the Montgomery County Division of Risk Management. This Report was forwarded to Trigon, which initiated investigation of the claim. When both claims failed to settle, suits were filed.

The Circuit Court dismissed both cases, ruling that, by not directly notifying the Montgomery County Executive as required by the LGTCA, plaintiffs had failed to satisfy the Act’s written notice requirement. The Court of Appeals reversed, holding that the plaintiffs had “substantially complied” with the notice requirements, and, in any event, “good cause” existed to excuse their failure to give notice. In reaching its decision, the court observed that the purpose of the notice requirement under the LGTCA is to ensure that the local government is made aware of its possible liability at a time when it is able to conduct its own investigation and ascertain, for itself, from evidence and recollection that are fresh and undiminished by time, the character and extent of the injury and its responsibility for it. The court concluded that the purpose was fulfilled in both of these cases by providing notice to Trigon. Due to the contract between the county and Trigon, the Court was able to conclude that “[a]lthough the County uses a third party, private company to act as its claims administrator, it is clear, given this contractual arrangement, its comprehensiveness and degree of control that the county maintains, that actual notice to the County results when notice is given to Trigon.”

In the future, where a tort claimant provides the local government, through the unit or division with the responsibility for investigating tort claims against the local government, or the company with whom the local government or unit has contracted for that function, the information required by the LGTCA to be supplied, who thus acquires actual knowledge within the statutory period, the tort claimant will be deemed to have substantially complied with the notice provisions of the LGTCA.

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4. Who is an employee under the Local Government Tort Claims Act?

Section 5-301(c) of the Local Government Tort Claims Act defines “employee” as including: (1) Any employee, either within or without a classified service or merit system; (ii) An appointed or elected official; or (iii) A volunteer who, at the request of the local government, and under its control and direction, was providing services or performing duties.
What does it mean to act within the scope of employment?

In order to determine which acts are and which are not considered to be "within the scope of employment," the following issue must be resolved: whether the employee’s conduct was in furtherance of the local government’s business and incidental to it. If so, the conduct will be deemed within the scope of employment with the local government. The case of Sawyer v. Humphries, 322 Md. 347 (1991), lists a number of factors to be considered when determining whether an employee of a local government, including a public official, public official, was acting within the scope of his or her scope of employment or public duties: “To be within the scope of the employment the conduct must be of the kind the [local government employee] is employed to perform and must occur during a period not unreasonably disconnected from the authorized period of employment in a locality not unreasonably distinct from the authorized area, and actuated at least in part by a purpose to serve the [local government].”

In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: (a) whether or not the act is one commonly done by such local government employees; (b) the time, place and purpose of the act; (c) the previous relations between the local government and the local government employee; (d) the extent to which the business of the local government is apportioned between different employees; (e) whether the act is outside the enterprise of the local government or, if within the enterprise, has not been entrusted to any employee; (f) whether or not the local government has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the local government to the employee; (i) the extent of departure from the normal method of accomplishing an authorized result; and (j) whether or not the act is seriously criminal." Restatement of Agency, § 229 (1933). Sawyer, 322 Md. at 255-56.

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5. Is an off-duty police officer working as a private security guard within the scope of employment with the local government?


In Lovelace v. Anderson, 366 Md. 690 (2000), the answer given by the Maryland Court of Appeals is “maybe, maybe not.” What the Court of Appeals definitively answered, however, is the question whether secondary employers may be liable for the tortious acts or omissions of off-duty police officers hired as private security guards. The Court reached this conclusion because of several factors, including the fact that: (1) the salary of the off-duty officer in the case before it was paid by the private sector employer, (2) the secondary employer assigned the duties to be performed by security personnel, (3) the secondary employer determined the officer’s manner of dress, and (4) the secondary employer determined how the officer was to carry his departmentally issued service weapon. Thus, applying the criteria used to determine the existence of an employment relationship, and whether or not the conduct in question (in this case, foiling an attempted armed robbery) was within the scope of employment with the secondary employer, the Court ruled that the secondary employer would be jointly and severally liable for the tortious acts of the off-duty officer. Concerning the liability of the local government, the Court assumed, without deciding, that the off-duty officer also was an employee of the local government, thereby recognizing that an employee may have “dual” employers depending on the circumstances in each case. However, since the local government previously had been dismissed from the suit, its potential liability, if any, was not resolved by the Court.

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6. What if it is determined that the local government employee acted beyond the scope of employment with the local government?


A determination that the local government employee acted beyond the scope of employment with the local government terminates the local government’s obligation to indemnify the employee for any judgment entered against him or her.

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7. What is a reservation of rights?

In insurance law, a reservation of rights, or nonwaiver agreement, is a contract supplementing a liability insurance policy in which the insured acknowledges that the insurer’s investigation or defense of a claim against the insured does not waive the insurer’s right to contest coverage later. For example, if the plaintiff alleges in his or her lawsuit that the local government employee was acting within the scope of employment at the time of the tortious act or omission, the local government’s insurer generally has a duty to defend the action on behalf of the local government employee. However, if investigation reveals that it is uncertain whether the employee, in fact, was acting within the scope of employment, the insurer may defend the lawsuit, but reserve its right to later contest coverage in the event of an adverse judgment.

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8. What is the meaning of actual malice?

Section 5-301(b) of the Local Government Tort Claims Act defines actual malice as meaning “ill will or improper motivation.”

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9. What are the consequences of acting with actual malice?

Under Section 5-302(b)(2)(i) of the Local Government Tort Claims Act, an employee “shall be fully liable for all damages awarded in an action in which it is found that the employee acted with actual malice.” The Act further provides that, in such circumstances, “the judgment may be executed against the employee and the local government may seek indemnification for any sums it is required to pay under [the Act.]”

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10. What constitutes a negligence claim?


Many local government employees and officials are sued for negligence. To maintain an action in negligence, a plaintiff must assert the following elements: “‘(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss of injury proximately resulted from the defendant’s breach of the duty.’” Valentine v. On Target, Inc., 353 Md. 544, 549 (1999) (quoting BG & E v. Lane, 338 Md. 34, 43 (1995).

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11. What is public official immunity?


Public official immunity is a defense available to certain classes of local government employees. At common law, a government actor will enjoy a qualified immunity from liability for his or her “non-malicious acts where: (1) he ‘is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary, as opposed to ministerial, acts in furtherance of his official duties.’” Ashburn v. Anne Arundel County, 306 Md. 617, 622 (1986) (quoting James v. Prince George’s County, 288 Md. 315, 323 (1980)). “Once it is established that the individual is a public official and the tort was committed while performing a duty which involves the exercise of discretion, a qualified immunity attaches; namely, in the absence of malice, the individual involved is free from liability.” Lovelace v. Anderson, 366 Md. 690, 705 (2001) (quoting James).

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12. Who is a public official for immunity purposes?

Over the years, Maryland’s appellate courts have established guidelines to be used in determining whether an individual is a public official or mere employee, including whether: (i) the position was created by law and involves continuing and not occasional duties; (ii) the holder performs an important public duty; (iii) the position calls for the exercise of some portion of the sovereign power of the State; (iv) the position has a definite term for which a commission is issued and a bond and an oath are required. James v. Prince George’s County, 288 Md. 315, 324 (1980) (citing Duncan v. Koustenis, 260 Md. 98, 105 (1970)). Additionally, there are at least two exceptions to the guidelines, “where an individual fails to meet most of the above tests, and yet is nevertheless considered to be a public official,” which include “those individuals who exercise ‘a large portion of the sovereign power of government,’” and “those individuals who can be called on to exercise police powers as conservators of the peace.” Duncan, 260 Md. at 106 (citation omitted). In light of these exceptions, police and corrections officers are deemed public officials for immunity purposes under Maryland law.

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13. Does public official immunity bar liability against all tort claims?

No. The Maryland Court of Appeals has held that common law public official immunity is not available with respect to deliberate acts that form the basis for intentional torts or acts committed with actual malice. Ashton v. Brown, 339 Md. 70 (1995).

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14. What is the public duty doctrine?

Generally, under the public duty doctrine, when a statute or common law imposes a duty upon a public entity to the public at large, and not a duty to a particular class of individuals, the duty is not one enforceable in tort. DAN B. DOBBS, THE LAW OF TORTS § 271 (2000).

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15. What is the relationship between the public duty doctrine and police officers?

Under Maryland law, the “duty owed by police by virtue of their positions as officers is a duty to protect the public.” Ashburn v. Anne Arundel County, 306 Md. 617, 628 (1999). Pursuant to the public duty doctrine, therefore, police officers ordinarily may not be held liable for failure to protect specific persons because they owe no duty, as the first element of a negligence action requires, to those individuals.

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16. What are the limits on the public duty doctrine?

The public duty doctrine “has no application when the court concludes that a statute or court order has created a special duty or specific obligation to a particular class of persons rather than to the public at large.” DAN B. DOBBS, THE LAW OF TORTS
§ 271 (2000). In essence, then, when one does act for the benefit of a particular person, he or she must act in a reasonable manner. Thus, if a plaintiff alleges sufficient facts to show that the defendant policeman created a “special relationship” with the plaintiff, upon which he or she relied, the plaintiff may maintain an action in negligence.

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17. When does a special relationship exist?

In order for a special relationship between a police officer and an individual to be found, it must “be shown that the local government or the police officer affirmatively acted to protect the specific victim, thereby inducing the victim’s specific reliance upon the police protection.” Ashburn v. Anne Arundel County, 306 Md. 617, 631 (1986).

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18. Do local government emergency telephone system employees owe an individual tort duty to persons in need of their services?

In the recent cases of Muthukumarana v. Montogomery County and Fried v. Archer, 370 Md. 447 (2002), the Court of Appeals’ answer was “no.” In reaching this conclusion, the State’s highest court rejected the argument that, based on the nature of a police dispatcher’s work, a “special relationship” existed between emergency telephone system employees and persons seeking their assistance. Such relationship would allow 911 operators and dispatchers to be seen as acting for the benefit of a particular class of persons, as opposed to acting for the public at large, and would allow such employees to be held liable for their negligence. While not suggesting that 911 operators and dispatchers have duties or responsibilities commensurate with those of police officers, the Court ruled that it was appropriate to measure their liability, as well as the negligence of their managers and supervisors, by the same standard applied to the police officers who respond to their dispatches. Thus, the legal duty owed by 911 employees by virtue of their position is also a public duty to aid. Pursuant to this public duty doctrine, a 911 employee generally owes no duty in tort for negligent performance of his or her duties to an individual in need of emergency telephone services. By applying the public duty doctrine to 911 personnel, as opposed to the special relationship doctrine, the Court foreclosed a new and general duty of protection from resulting in the reduction of public safety services, including emergency response programs and personnel, to the community.

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19. Are sheriffs and deputy sheriffs entitled to the protections of the Local Government Tort Claims Act?

Under Maryland law, for the purposes of state tort liability, sheriffs and deputy sheriffs are deemed to be officials and employees of the State of Maryland. Rucker v. Hartford County, 316 Md. 275, 288-90 (1989). This conclusion does not mean that, for some purposes and in some contexts, including actions under 42 U.S.C. § 1983, a sheriff or deputy sheriff may not be treated as a local government employee. As such, sheriffs and deputy sheriffs are entitled to the protections afforded by the Maryland Tort Claims Act, which encompasses state personnel, as opposed to the Local Government Claims Act, which protects employees of local governments.

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20. What immunities are available to state personnel, including sheriffs and deputy sheriffs?

State personnel, including sheriffs and deputy sheriffs, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of their public duties, and is made without malice or gross negligence.

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21. Is there protection from claims arising from statements made by local government legislators?

Yes. Section 5-501 of the Courts and Judicial Proceedings article of the Maryland Code provides that “[a] civil or criminal action may not be brought against a city or town councilman, county commissioner, county councilman, or similar official by whatever name known, for words spoken at a meeting of the council or board of commissioners or at a meeting of a committee or subcommittee thereof.”

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22. What is governmental immunity?

Governmental immunity is a defense, which, in certain instances, shields local governments from tort liability. The defense is derived from the doctrine of sovereign immunity, which is rooted in the ancient belief “the king can do no wrong.” Sovereign immunity grants to the State and its agencies blanket immunity from tort liability. The immunity extended to counties and municipalities, however, is not as far-reaching as that enjoyed by the State. Counties, municipalities and their agencies are only afforded immunity from tort liability when the tortious conduct occurred during the exercise of a purely governmental function as opposed to a proprietary function. The functions can be delineated as follows: “Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature.” Burns v. City of Rockville, 71 Md.App. 293, 298 (1987), quoting The Mayor and City Council of Baltimore v. State, Use of Alice Blueford, 173 Md. 267, 276 (1937) (citation omitted).

The Court of Appeals further clarified the test in Tadjer v. Montgomery County, 300 Md. 539, 547 (1984), and explained that “[a]nother way of expressing the test . . . is whether the act performed is for the common good of all or for the special benefit or profit of the corporate entity.”

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23. What are the duties imposed on local governments concerning public ways, such as streets, thoroughfares, and sidewalks?


Generally concerning public ways, Maryland judicial decisions have established and imposed these obligations upon local governments: (1) streets must be constructed in a reasonably safe manner, and to this end ordinary care must be exercised; (2) they must at all times be kept in proper repair or in a reasonably safe condition insofar as may be by the exercise of ordinary diligence and continuous supervision; (3) reasonably safe condition or proper repair implies that bridges, dangerous embankments, walls, declivities and like places and things adjoining or near the way must be safeguarded by adequate railings, barriers or appropriate signals.

The deeming of the performance of these obligations not as a governmental duty but as a private or proprietary duty, such as a ministerial function relating to corporate interests only, constitutes the reason, in some decisions, for imposing local government liability for injuries arising from defective public ways. In other cases, the ground for holding the municipality liable is that the duty to maintain or repair the streets was specially imposed on the local government by statute or charter, or that the statutory duty of keeping streets in repair and free from obstructions is a mandatory and not a discretionary duty. See McQuillin Mun. Corp., 3d. Ed., § 54.03.10.

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24. Can a local government delegate the care and maintenance of its streets and sidewalks to third parties?


A local government, whether by contract or ordinance delegating the construction and care of its streets and sidewalks to a private individual, corporation, or quasipublic corporation, cannot evade its responsibility for such care and supervision and thus escape liability for any damage resulting from the failure of the person or corporation, to whom such care and supervision are delegated, to use that ordinary care and diligence to keep such streets or sidewalks in a reasonably safe condition for travel. The primary obligation to maintain public sidewalks in a reasonably safe condition rests on the municipality. This obligation belongs to the municipality itself and is a continuous one which cannot be avoided, evaded, suspended, delegated, surrendered or abdicated, or shifted to others by any act of the municipality, either by contract or ordinance, although another may also be liable, of course. This obligation and liability may continue even where state, county, or federal agencies are involved. However, a municipality’s obligation and liability may be removed to the extent that its functions, powers and duties relating to its public ways have been transferred to a higher political subdivision.

The act of a municipality in simply ordering a sidewalk repaired by one of its officers does not, of itself, relieve the municipality from liability. See McQuillin Mun. Corp., 3rd ed., § 54.17.

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25. When are the owners of property abutting sidewalks liable for injuries to third parties?

Maryland common law does not require the abutter to use due care to keep the sidewalk in a reasonably safe condition, since that duty rests on the local government. In other words, a local government may not delegate its duty to keep sidewalks in good repair to a third party. Accordingly, an abutter is not liable for injuries caused by defects not the result of his or her own act or fault, unless made so by statute, ordinance, or charter.

However, an ordinance requiring abutting owners to maintain sidewalks fronting their property does not have the effect of rendering an abutter liable to a pedestrian who is injured by reason of the abutter’s violation of the ordinance, unless the ordinance expressly so provides. Neither does a statute requiring or empowering a local government to require abutters to repair sidewalks. Furthermore, a charter provision, exonerating the local government from liability for street and sidewalk defects of which the local government did not have actual notice and a reasonable time to remedy prior to the accident, does not render abutters liable for those injuries as to which the city is immune.

On the other hand, an owner of premises abutting a sidewalk is under a duty to refrain from any affirmative act that would render the sidewalk dangerous for public travel; if, by a positive act, he or she does create a condition which is likely to cause harm to persons lawfully using the sidewalk, and a person is injured as a proximate result, he or she is liable. Generally, by statute, charter or ordinance, an abutting owner who negligently creates a dangerous condition in the public way may be liable for injuries caused. Further, a landowner not in possession has been held liable for injury resulting from private shrubs obscuring the view of vehicle flow at an intersection.

In addition to the dangerous condition exception to the general rule of nonliability for abutting property owners, there is the “special use” exception which applies in two situations: (1) when an abutting property owner has made use of the public sidewalk, parkway or road for some purpose other than merely using them as a sidewalk, parkway or road; or (2) where the abutting property owner puts an obstruction on the public sidewalk, parkway or road which was not a part of the original construction in order to serve the property owner's own purposes. See McQuillin Mun. Corp., 3rd ed., § 54.42.20.

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