This case began as a seemingly simple arrest warrant, but went very wrong in the execution. Frederick County Sheriff deputies Timothy Brooks and Nathan Rector (the "Deputies")
The Jenkinses filed a complaint in the Circuit Court for Frederick County seeking damages, on a number of theories, for the wounding of the dog and the officers' alleged unlawful entry into their home. The counts in the complaint contain overlapping claims alleging both constitutional and common-law causes of action. After a trial, both the Jenkinses prevailed against both of the Deputies and the jury awarded damages totaling $620,000 (reduced, after remittitur, to $607,500). The Deputies appeal.
We conclude that the trial court properly permitted the Jenkinses' constitutional tort claims arising from the dog shooting to go to the jury and properly declined to apply Md. Code (1974, 2013 Repl. Vol.), § 11-110 of the Courts & Judicial Proceedings Article ("CJ"), which caps recovery for tortious injuries to pets, to reduce the total available damages on those counts to $7,500. We find as well that the jury verdict on the shooting claims was not excessive. But we reach a different result for the trespass counts. We hold that the jury's finding that the Deputies acted with neither gross negligence nor malice entitled the Deputies to immunity on the Jenkinses' constitutional trespass claim. We also hold that the Jenkinses could not, as a matter of law, recover mental anguish damages, but could recover only nominal damages for common law trespass, even though the jury found on that count that the Deputies acted with gross negligence. We affirm in part, reverse in part, and remand.
A. Events at the Jenkins Home
On January 9, 2010, the Deputies went to the Jenkinses' home to serve a writ of body attachment on their eighteen-year-old son, Jared, in connection with an incident that took place while Jared was a minor. Deputy Brooks left his patrol car running, so the camera inside it kept recording.
Mr. Jenkins woke up at about 7:00 a.m. to hear Deputy Brooks "banging" on the door. When Deputy Brooks told him the purpose of his visit, Mr. Jenkins responded that he didn't know whether Jared had come home the night before, but that before they spoke further, he would move the barking dogs from the house to an outdoor kennel. Mr. Jenkins walked out the rear of the house, apparently expecting the dogs to walk with him out the door, across the driveway, and to the garage. He headed to the back door with Brandi ahead of him by about six to eight feet. He did not put her on a leash; he explained in response to his counsel's question at trial that it did not occur to him that Brandi might act aggressively toward any officer:
When Mr. Jenkins saw Brandi turn the corner ahead of him, he called her to come. But as he walked up the side of the house, he heard a gunshot, and as he continued up the driveway, he realized that Deputy Brooks had shot Brandi. Mrs. Jenkins came out of the house and sat with Brandi while her husband went inside, got towels to put on Brandi, and called the vet.
Not surprisingly, Deputy Brooks's perspective differed greatly from Mr. Jenkins's.
In response, Deputy Brooks pulled his gun from the holster and fired it in the direction of Brandi's chest.
About three-and-a-half minutes elapsed from the time Deputy Brooks knocked on the front door until he shot Brandi. About eight minutes later, Mr. and Mrs. Jenkins left to take Brandi to the vet. Mr. Jenkins testified that before they left, he instructed the Deputies (in more colorful language) not to enter his house.
Deputy Brooks, on the other hand, testified that he heard no such instruction. After Mr. and Mrs. Jenkins left, the Deputies awaited the arrival of their supervisor, Corporal Michael Easterday. As they waited, though, they decided that they should go inside because they had not yet secured the area and they "potentially [had an] unaccounted [for] wanted person right here." Deputy Rector went in and announced himself, and they located Jared behind a door. Corporal Easterday arrived, and a third deputy took Jared to patrol headquarters. Mr. and Mrs. Jenkins returned to the house during Brandi's surgery, and, according to Mr. Jenkins, "nothing seemed to be disturbed." Mr. Jenkins offered detailed testimony about picking up Brandi the next day, tending to her injuries, and the effect the incident has had on his family.
B. Pleadings and trial (through defendants' motions for judgment)
The Jenkinses filed suit in a twelve-count complaint on October 25, 2010. The following counts against Deputies Brooks and Rector survived pre-trial motions:
At trial, the Jenkinses called various members of the family to testify, along with Deputies Brooks and Rector. The veterinarian who treated Brandi also testified.
At the close of the Jenkinses' case, the Deputies moved for judgment as a matter of law. They argued that Count 6 improperly sought recovery for the Deputies' trespass into the Jenkins house under Article 24 of the Maryland Constitution, when the proper claim existed only under Article 26 (on which Count 7 was premised).
The court denied the motion as to both the trespass claims and to the claims arising from the shooting.
The Deputies moved for judgment notwithstanding the verdict or, alternatively for a new trial or remittitur, and argued six specific grounds: (1) the evidence was insufficient to support the jury's finding that Deputy Brooks acted with gross negligence in shooting Brandi; (2) the evidence was insufficient to support the jury's finding that the Deputies acted with gross negligence in entering the home, and therefore they were entitled to statutory immunity; (3) there was no basis on which to award non-economic damages for the shooting; (4) the $20,000 award for economic damages arising from the shooting exceeded the statutory cap for damages arising from injuries to pets; (5) the total award of $400,000 erroneously permitted "separate damages ... against separate Defendants for a single event"; and (6) "all damages awarded were excessive." They also claimed broadly that "deficiencies in the jury instructions and the verdict sheet ... in the absence of j.n.o.v. or remittitur, can only be cured by a new trial."
After a hearing, the court denied the requested relief except that the court applied CJ § 11-110 and reduced the economic damages relating to Brandi's injuries from $20,000 to $7,500. The court then entered an Order of Final Judgment that included judgment against Deputy Brooks in favor of Sandra Jenkins for $203,750; against Deputy Brooks in favor of Roger Jenkins for $203,750; against Deputy Rector in favor of Sandra Jenkins for $100,000; and against Deputy Rector in favor of Roger Jenkins for $100,000. The Deputies filed a timely notice of appeal.
This case requires us to chart the often-fuzzy boundary between the Deputies' undeniable right to stay safe as they discharge their duties, on the one hand, and the Jenkinses' constitutional rights to be free in their home from excessive force and intrusion, on the other. That boundary
A. The Trial Court Properly Permitted The Jury To Consider Whether Deputy Brooks Was Grossly Negligent When He Shot Brandi.
Deputy Brooks argues first that the trial court improperly denied his motion for judgment with respect to the Jenkinses' claim that he violated their constitutional rights (under Count 3) and committed a trespass to chattel (Count 5) when he shot Brandi. We examine "whether the evidence was legally sufficient to permit the judge, as a matter of law, to submit the case to the jury." Starke v. Starke, 134 Md.App. 663, 677, 761 A.2d 355 (2000). That is, we ask: "[i]s there some evidence in the case, including all inferences that may permissibly be drawn therefrom, that, if believed and if given maximum weight, could logically establish all of the elements necessary to prove" the elements of the claim? Id. at 678-79, 761 A.2d 355. We view the evidence in the light most favorable to the prevailing party (here, the Jenkinses), and "the quantum of legally sufficient evidence needed to create a jury question is slight." Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md.App. 321, 329, 37 A.3d 1074 cert. denied, 427 Md. 65, 46 A.3d 406 (2012) (citation omitted); see also Espina v. Prince George's Cnty., 215 Md.App. 611, 655-56, 82 A.3d 1240 (2013) (finding sufficient evidence to support a jury verdict of actual malice to preclude officer from invoking statutory immunity, where evidence showed that police officer attacked victim unprovoked, shooting and killing him when he was "unable to resist or fight back"), cert. granted, 438 Md. 142, 91 A.3d 613 (May 16, 2014).
Deputy Brooks argues that the evidence did not support a finding of gross negligence, and without that finding he was acting within the scope of his employment "throughout the event" and, therefore, entitled to statutory immunity under the Maryland Tort Claims Act (the "MTCA"). See generally Md. Code (1984, 2009 Repl. Vol.), § 12-104(b) of the State Government Article ("SG"); see also CJ § 5-522(a) (establishing between the two sections the State's immunity from suit for a state employee who has acted within the scope of employment but without gross negligence or actual malice). He points us to Boyer v. State, 323 Md. 558, 594 A.2d 121 (1991), in which the Court of Appeals found insufficient evidence of gross negligence where two individuals died after a police officer pursued a drunk driver who ultimately killed two people. Id. at 563, 594 A.2d 121. As he sees the facts, an "aggressive" dog ran toward him and he had "seven to eight seconds" to decided what to do about it; he claims that his decision to shoot Brandi was so far below the standard in Boyer that as a matter of law, no rational jury could have found him grossly negligent. He appears to adopt a result-oriented approach, suggesting that because statutory immunity has precluded claims in cases involving more serious injuries (or death), he should likewise be protected here.
The Jenkinses see it differently. They identify numerous disputed factual issues about how Brandi approached Deputy Brooks and the surrounding environment, and they argue that the facts were sufficient for a jury to find him grossly negligent for opting to pull the trigger rather than adopting a less extreme course of action. As they see it, the evidence supported their version of events — from the testimony of the officers to the videotape of the confrontation — and justified submitting the case to the jury.
The MTCA did away with the principle of sovereign immunity in certain circumstances, Tollenger v. State, 199 Md.App. 586, 595, 23 A.3d 897 (2011), such
It might seem that gross negligence, the less egregious of the two standards, would be easier to describe, but over time courts have struggled to articulate a consistent definition. The best overarching statement of the principle comes from Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699 (2007), in which the Court of Appeals adopted language from a non-MTCA setting to define gross negligence in the context of the MTCA:
Id. at 187, 935 A.2d 699 (emphasis added) (quoting Liscombe v. Potomac Edison Co., 303 Md. 619, 635, 495 A.2d 838 (1985)). The challenge, though, lies in translating this principle to different factual settings — and, for our purposes, in establishing a benchmark against which we can review the trial court's decision to send the question to the jury in the first place. We start by looking to the universe of cases that have found no gross negligence as a matter of law, and then compare them with those where a jury properly considered the question.
Boyer sits squarely in the "no-gross-negligence" camp. There, the Court of Appeals held that the plaintiff failed to allege facts supporting gross negligence in the context of the MTCA where the defendant, a state trooper, pursued a suspect at a high rate of speed through a congested area, and the suspect — whom the trooper believed to be intoxicated at the time — crashed into the back of another vehicle and killed two passengers. Id. at 578-79, 594 A.2d 121; see also Khawaja v. Mayor & City Council, City of Rockville, 89 Md.App. 314, 318-20, 598 A.2d 489 (1991) (holding that police sergeant's conduct "in deliberately not sounding the siren, while intentionally speeding through a red light with the [plaintiff's] automobile in view," did not constitute gross negligence for purposes of immunity under local government tort claims act, because the plaintiff had to demonstrate a "reckless disregard for human life," and not just reckless driving); Tatum v. Gigliotti, 80 Md.App. 559, 569, 565 A.2d 354 (1989) (holding in context of Good Samaritan statute that emergency medical technician's failure to properly treat asthma patient did not constitute gross negligence, where even plaintiff's expert did not testify that defendant's actions constituted "reckless disregard for human life").
In the opposite camp are cases involving not just gross negligence, but also malicious conduct. Barbre is a good example: the Court of Appeals held that the plaintiff sufficiently alleged malice and gross negligence where the officer allegedly ordered him to raise his hands and, despite his compliance and being unarmed, "approached with his gun drawn and shot him in the neck." 402 Md. at 190, 935 A.2d 699. So too Sawyer v. Humphries, 322 Md. 247, 261, 587 A.2d 467 (1991), in which the plaintiff alleged that the officer, "unprovoked
Gross negligence without malice lies somewhere in between. As the Court explained in Barbre, gross negligence is "`more akin to reckless conduct,'" 402 Md. at 187, 935 A.2d 699 (quoting Taylor v. Harford Cnty. Dep't of Soc. Servs., 384 Md. 213, 229, 862 A.2d 1026 (2004)), but in the absence of malice, gross negligence is often "more troublesome" to define because of the "fine line ... between allegations of negligence and gross negligence," id. at 187, 935 A.2d 699, incorporating a subtle element almost of intentional indifference. But it is not good enough simply to parrot the word "gross": a plaintiff "must point to specific evidence that raises an inference that the defendant's actions were improperly motivated." Chinwuba v. Larsen, 142 Md.App. 327, 382, 790 A.2d 83 (2002) (internal citations omitted), rev'd in part on other grounds, 377 Md. 92, 832 A.2d 193 (2003); Boyer, 323 Md. at 579-80, 594 A.2d 121 (requiring that the plaintiff plead facts to show a "wanton and reckless disregard for others" on the part of the defendant).
We recently reversed a trial court's decision to enter judgment in favor of a police officer who pursued a suspect onto an exit ramp, and made contact with his motorcycle, which threw the suspect off the cycle and killed him. See Holloway-Johnson v. Beall, 220 Md.App. 195, 205-06, 221-22, 103 A.3d 720 (2014). And we reaffirmed in that case that the gross negligence inquiry is inherently fact-bound: "because of the `troublesome' factual problem of trying to differentiate between simple and gross negligence, the issue is usually one for the jury, not the court." Id., at 220, 103 A.3d 720.
Viewed against this backdrop, the trial court in this case properly denied the motion for judgment so long as the Jenkinses introduced evidence sufficient to permit the jury to infer that Deputy Brooks acted either with the intent to inflict injury or with "utter indifference" to the rights of others, and we have no trouble finding that standard met here. The jury had in front of it testimony and videotaped evidence from which it readily could infer that he acted indifferently to the Jenkinses' rights in concluding that Brandi posed a threat and that he acted intentionally when he fired his gun at her as he did:
The jury was not, of course, required to find gross negligence from these facts. But the evidence sufficed to support the jury's finding that the Deputy overreacted to the potential threat, responded with excessive force, and acted with reckless indifference,
Deputy Brooks cites cases in which courts did find the pleading or evidentiary threshold not met, but none of them compels a reversal here. For example, he claims that the facts in Khawaja, in which we held that the driver's deliberate decision not to sound a siren while speeding through a red light did not amount to gross negligence, were "far more egregious than what occurred here." But importantly, the trial court there dismissed the complaint because gross negligence was not pled with specificity, 89 Md.App. at 318, 598 A.2d 489, a failure the Deputy has not alleged here. Wells v. State, 100 Md.App. 693, 642 A.2d 879 (1994), does not help either — there, the complaint alleged negligent supervision on the part of Department of Social Services supervisors for failing to prevent the beating death of a child at another's hands:
Id. at 705-06, 642 A.2d 879 (emphasis added). The same holds for Tatum, where the plaintiff failed to show that the paramedic acted with disregard of the decedent's condition as they travelled to the hospital (and indeed the paramedic's own uncontradicted testimony showed that he attempted on numerous occasions during the ambulance ride to assist the decedent with medical care). 80 Md.App. at 569, 565 A.2d 354. The evidence here — and perhaps most prominently, the video evidence — created genuine issues of disputed material fact for the jury to resolve on the critical element of Deputy Brooks's mental state as he made the decision to use deadly force on the family dog.
More recently, in Newell, the Court of Appeals explained that it is "for the trier of fact" to determine whether a defendant acted with gross negligence or malice that removes him from the protections of the MTCA. 407 Md. at 636, 967 A.2d 729 (emphasis added). Although there the decision affected not the physical well-being but the employment status of the plaintiffs, the court found that a trier of fact could infer that the defendant terminated the plaintiffs' employment with "a conscious disregard for their rights as employees." Id. at 639, 967 A.2d 729. Although the Court conceded that the defendant's decision may have been grounded in a "legal mistake," it was for a trier of fact to adopt that position or the plaintiffs'. Id.; see also Holloway-Johnson, at 221, 103 A.3d 720 ("Demarcating the illusive line between simple negligence and gross negligence is frequently far more a matter of persuasion, as a matter of fact, than of production, as a matter of law.") The same was true here: it is not up to us, but rather to a jury to determine which version of events they believe. The plaintiffs here presented sufficient evidence on which a jury could conclude that Deputy Brooks acted with a conscious disregard of the Jenkinses' rights when he fired his gun at Brandi, and the court did not err in submitting the issue to the jury to decide.
B. The Trial Court Properly Capped Only The Damages For Brandi's Treatment.
Deputy Brooks next argues that the trial court should have capped all recoverable
1. CJ § 11-110 and the limitation on damages
Section 11-110 caps compensatory damages for the death or injury of a pet to a total of $7,500 in lost economic (not emotional) value and veterinary bills:
The question here, and one not previously addressed in a reported appellate decision, is how far this cap reaches. According to Deputy Brooks, the plain meaning of the statute limits all "compensatory damages arising from tortious injury," and thus limits the Jenkinses only to the capped compensatory damages even in the context of these constitutional tort claims. Notwithstanding Maryland Rule 1-104, he cites two unreported decisions from this Court, Ferrell v. Benson, No. 1740, Sept. Term 1997 (Md.App. April 16, 1999), and Hurd v. Haberkorn, No. 980, Sept. Term 2010 (Md.App. January 24, 2012), distinguishing Hurd and arguing that Ferrell properly read the statute's use of the phrase "tortious injury" to "include actions for both intentional and non-intentional torts." He also cites a reported case from the United States District Court for the District of Maryland, Stanley v. Central Garden & Pet Corp., 891 F.Supp.2d 757 (D.Md.2012), that held that CJ § 11-110 limited a pet owner's recovery for damages to her dog when he was injured after chewing on a product Stanley had manufactured. Id. at 768. The MVMA amici offer support by pointing us to numerous other states' laws that, in their view, demonstrate a nationwide trend to limit damages for injuries to pets. They also argue that "mainstream American jurisprudence" compels us to reject what they call "emotion-based damages" in cases involving injury to pets.
In response, the Jenkinses argue that the trial court correctly applied CJ § 11-110 to reduce that part of the award ($20,000)
We review de novo the trial court's decision on this question of statutory interpretation.
We see no ambiguity about the purpose of this statute: by its very terms, it defines and limits the compensatory damages value of pets — which the law always have treated as chattel (not cattle, see § CJ 11-110(a)(3)(ii)) — "[i]n the case of the death of a pet" or "[i]n the case of an injury to a pet." CJ § 11-110(a)(2)(i) and (ii). Whether or not we might agree with the decision to value pets for these purposes entirely in terms of market value or vet bills, or with the dollar figure the General
Although we don't need it for interpretive purposes, the legislative history of CJ § 11-110 bolsters this point. When the General Assembly first passed it in 1989, see 1989 Md. Laws ch. 594, its stated purposes were to "establis[h] a certain method for the measurement of damages for an injured pet," "and defin[e] a term." The legislation was introduced to "correct" what some viewed as an anomalous result in a civil case, Davis v. Gary, that involved a plaintiff whose family pet, a mixed-breed dog valued at no more than $250, suffered injuries after being attacked by the defendant's Bloodhound. The plaintiff sought to recover veterinary expenses that totaled nearly $2,000, and even though the plaintiff prevailed in district court, the court awarded her only $250. The circuit court affirmed and increased the award to $600.
All this means, though, is that the General Assembly limited the extent of a tortfeasor's liability for the tortious injury he causes to a pet. This statute does not, and
The argument becomes even more untenable when we bring it back to this case. On the count at issue, the Jenkinses alleged that Deputy Brooks violated their rights under Articles 24 and 26 of the Maryland Constitution when, acting with gross negligence, he used excessive force and shot Brandi. They alleged more than one form of damage from the Deputy's actions, and the law entitled them to recover more than just property damage. At the time CJ § 11-110 was enacted, the law of constitutional torts was only just developing,
We express no views on CJ § 11-110's reach in other circumstances, such as
2. Mental anguish damages under Counts 3 and 5.
Next, Deputy Brooks appeals the award of damages in the shooting incident under Count 3 (Trespass to Chattel) and Count 5 (Article 24 Violation), arguing that the trial court should not have denied his Motion for Judgment on the Jenkinses' claim for mental anguish damages relating to the shooting. Maryland Rule 2-519 provides that "[a] party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party" and that the "moving party shall state with particularity all reasons why the motion should be granted." Md. Rule 2-519(a). We review the circuit court's decision de novo. Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 393-94, 31 A.3d 583 (2011). "`[W]here the evidence is not such as to generate a jury question, i.e., permits but one conclusion, the question is one of law and the motion must be granted.'" Ayala v. Lee, 215 Md.App. 457, 467, 81 A.3d 584 (2013) (quoting Address v. Millstone, 208 Md.App. 62, 80, 56 A.3d 323 (2012), cert. denied, 430 Md. 646, 62 A.3d 731 (2013)). On the other hand, the trial court should deny a motion for judgment "if, from the evidence adduced that is most favorable to the plaintiff, a reasonable finder of fact could find the essential elements of the cause of action by a preponderance standard." DeMuth v. Strong, 205 Md.App. 521, 547, 45 A.3d 898 (2012).
Deputy Brooks argues that the Jenkinses could not recover "for mental-anguish type damages for tortious injury to property in Maryland in the absence of fraud, malice, or other like motives." (Emphasis added.) Citing Exxon Mobil Corp. v. Albright, 433 Md. 303, 71 A.3d 30 (2013), he claims that the facts here do not constitute any "extenuating circumstances" that could fall under the "other like motives" umbrella. The Jenkinses counter with two arguments: first, that the gross negligence that the jury found qualifies as an "other like motiv[e]," and second, that this limitation on emotional damages doesn't apply in any event because they sought recovery not simply for witnessing the injury to Brandi, but for the harm done directly to them based on the violation of Article 24.
First, we disagree with the Jenkinses that the "other like motives" analysis under Exxon and earlier cases applies here (although we will discuss it below when we address the trespass claims). Cases using this framework involved claims relating to real property, see, e.g., Dobbins v. Wash. Suburb. Sanitary Comm'n, 338 Md. 341, 658 A.2d 675 (1995); Wolf v. Levitt & Sons, Inc., 267 Md. 623, 298 A.2d 374 (1973), and we are not aware of any cases that apply the rule to a claim involving trespass to chattel (i.e., trespass to personal property). And it is not obvious that it should apply — a trespass to chattel is more like conversion than a trespass to real
Second, however, the Jenkinses were entitled to recover non-economic damages in connection with their constitutional claim. Beyond the trespass to chattel claim, the jury also found that Deputy Brooks acted with gross negligence in violating the Jenkinses' constitutional rights. See Widgeon v. Eastern Shore Hosp. Ctr., 300 Md. 520, 537-38, 479 A.2d 921 (1984) (holding that "where an individual is deprived of his liberty or property interests in violation of Articles 24 and 26, he may enforce those rights by bringing a common law action for damages"); see also Prince George's Cnty. v. Longtin, 419 Md. 450, 482-90, 19 A.3d 859 (2011) (affirming a $6.2 million verdict in favor of an arrestee whom police had held for eight months in spite of possessing exculpatory DNA evidence); Espina v. Prince George's County, 215 Md.App. 611, 657, 82 A.3d 1240 (2013), cert. granted, 438 Md. 132, 90 A.3d 482 (2014) (holding that plaintiff could recover for an Article 24 claim even though the jury had found that a police officer was not guilty of assaulting the victim). It may be that the jury awarded more damages because Brandi is a beloved family dog rather than an inanimate object, but that doesn't define the nature of the claim. Cf. Brown v. Muhlenberg Twp., 269 F.3d 205, 218 (3d Cir.2001) (concluding that Pennsylvania law would allow recovery for intentional infliction of emotional distress where police officer fired five rounds into owner's dog, reasoning that "in such cases, the malicious behavior is directed to the owner as well as to the pet, with the potential for serious emotional injury to the owner being readily apparent"). The jury had the opportunity to view Deputy Brooks, and Brandi coming toward him, for what even the Deputy concedes was a full eight seconds, and found affirmatively that Deputy Brooks acted with gross negligence. That finding entitled the Jenkinses to seek and prove noneconomic damages.
C. The Trial Court Did Not Err In Declining To Reduce The Verdict On The Shooting-Related Claims.
The Deputies contend that the damages the jury awarded for the shooting were grossly disproportionate to the amount of medical care the dog received (they contend that there was a "more than 30 to 1 ratio" between the $200,000 award and the $6,100 veterinary care bills).
Against that standard, we disagree with the Deputies that the $200,000 verdict was excessive.
The jury concluded from the evidence that Deputy Brooks had acted with gross negligence and awarded damages accordingly. The trial judge explained after lengthy post-trial argument that she knew of no case with similar circumstances that would have justified reducing this verdict, and the Deputies have not identified one (nor has our research unearthed any). We agree with the court that it was for the
D. The Deputies Were Immune To Suit For Constitutional Trespass And The Jenkinses Were Not Entitled To Mental Anguish Damages For Common Law Trespass.
Finally, Deputies Brooks and Rector appeal the award of damages for common-law and constitutional trespass. To recap, the jury found gross negligence on the part of both Deputies under the common-law trespass claim (Deputy Brooks: Questions 7-9 (Count 2); Deputy Rector: Questions 21-23 (Count 2)), and liability but no gross negligence or malice under the constitutional claim (Deputy Brooks: Questions 4-6 (Counts 6 and 7); Deputy Rector: Questions 18-20 (Counts 6 and 7)). The Deputies argue first that because the jury found no malice or gross negligence in the context of the constitutional trespass claim, they were immune from liability on those claims; and second, the Jenkinses were not entitled to recover mental anguish, pain, and suffering damages in connection with the remaining trespass claim, which arose at common law. The Jenkinses respond that because the Deputies argued for a verdict sheet that allowed the jury to award damages for the trespass claims in the aggregate, and not by count, they cannot now challenge the generality of the resulting verdict. They also argue that the Deputies failed to preserve any argument regarding lack of damages for appellate review.
1. The Deputies are not liable personally for constitutional trespass.
We agree with the Deputies that once the jury found that they acted without malice or gross negligence, the MTCA immunized them from personal liability on the Jenkinses' constitutional claim for entry into the home. Ford v. Baltimore City Sheriff's Office, 149 Md.App. 107, 120, 814 A.2d 127 (2002). A State employee "acting within his or her scope of employment and without malice or gross negligence is immune from suit," id. (citing CJ § 5-522), and the jury resolved that threshold mental state question (which we agree the court properly submitted to the jury, although it was a close call in light of the indisputably valid arrest warrant that brought the Deputies to the house in the first place) in the Deputies' favor.
2. The Jenkinses are not entitled to mental anguish or pain and suffering damages for common-law trespass.
This leaves the common-law trespass claim. On this claim (and unlike the constitutional trespass claim), the jury found that the Deputies acted with gross negligence. That seems, at least at first blush, to create a potential inconsistency between the verdicts on the constitutional and common-law trespass claims, an argument that the Deputies raise in their briefs. But we need not resolve that possible discrepancy because the Jenkinses'
In Exxon Mobil Corp. v. Albright, the Court of Appeals reiterated that a plaintiff must establish "malice, fraud, or other like motives" to recover damages for emotional distress "attendant to property damage." 433 Md. at 395, 71 A.3d 30. The Jenkinses argue that the jury's gross negligence finding on the common-law trespass claim qualifies as an "other like motive" for these purposes. This matters because the jury was asked only to consider "Non-Economic Damages (mental anguish, pain and suffering)" in connection with the trespass claims, and the $100,000 the jury awarded to each plaintiff against each Deputy (a total of $400,000) fell entirely into that category. And since the jury declined to find malice with regard to the trespass, the Jenkinses' common law damages claim fails altogether unless this "other like motives" concept applies and covers the Deputies' actions.
The Court of Appeals in Exxon cited Ford for the "other like motives" language, but it originated in the Court's decision in Zeigler v. F Street Corp., 248 Md. 223, 235 A.2d 703 (1967).
The Court of Appeals affirmed, although it allowed for the possibility that a plaintiff could recover for mental suffering and emotional distress flowing from damage to property without a predicate physical injury. The Court qualified that possibility, though, by noting that "ordinarily, there can be no recovery for mental suffering, resulting from damage done to property." Id. at 226, 235 A.2d 703 (emphasis added) (citations omitted). Quoting the then-current version of Corpus Juris Secondum on Damages, the Court limited mental anguish damages for injury to property, but carved out certain cases using the language that the Court quoted later in Exxon:
The Court of Appeals extended this limitation to a trespass action in Wolf v. Levitt & Sons, Inc., 267 Md. 623, 298 A.2d 374 (1973), where the plaintiffs contended that employees of the defendant trespassed onto their property in an effort to obtain information for a lawsuit between them. Mrs. Wolf claimed she became so upset upon seeing three men standing at her doors (she understood them to be Mr. Levitt's employees) that she "`fell completely apart,'" and her husband discovered her that evening "`in such a state of extreme fright that it bordered on hysteria.'" Id. at 626, 298 A.2d 374. The Wolfs filed suit seeking damages of $150,000, including punitive damages, medical expenses, and loss of companionship by Mr. Wolf. Id. at 624, 298 A.2d 374. The Court of Appeals held that the Wolfs had presented no evidence that could bring their trespass claim within the language of Zeigler, and explained that the jury had properly found a "technical trespass" that entitled the Wolfs to nominal damages only. Id. at 630-31, 298 A.2d 374.
No cases we have found, however, offer any deeper insight on what range of motives might qualify as being "like" fraud or malice. Because there is no allegation here that either Deputy made any "knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment," Black's Law Dictionary 775 (10th ed. 2013), this turns on whether gross negligence is "like" malice, which for purposes of the LGTCA means "an intentional act done knowingly of an improper purpose without legal justification or excuse." Thomas v. City of Annapolis, 113 Md.App. 440, 458, 688 A.2d 448 (1997). In the context of punitive damages, malice is "conduct of the defendant characterized by evil motive, intent to injure, ill will, or fraud." Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 460, 601 A.2d 633 (1992). The Court of Appeals clarified there that "negligence alone, no matter how gross, wanton, or outrageous, will not satisfy this standard." Id. at 463, 601 A.2d 633. And more generally, plaintiffs have not been permitted to recover for emotional injuries flowing from negligence-level torts. See Dobbins v. Washington Sub. Sanitary Comm'n, 338 Md. 341, 345, 658 A.2d 675 (1995) ("[A] plaintiff ordinarily cannot recover for emotional injury caused by witnessing or learning of negligently inflicted injury to the plaintiff's property" (emphasis added).); H & R Block, Inc. v. Testerman, 275 Md. 36, 48-49, 338 A.2d 48 (1975) ("Maryland decisions have generally denied compensation for mental anguish resulting from damage to property.").
Our opinion in Abbott v. Forest Hill State Bank, 60 Md.App. 447, 483 A.2d 387 (1984), also suggests that the plaintiff must show some element of foreseeability. There, we held that the plaintiff had to allege "either notice of ... mental distress on the part of the defendant or that the act was calculated to cause mental distress." Id. at 455-56, 483 A.2d 387 (citing Zeigler, 248 Md. at 226, 235 A.2d 703). In Abbott, we considered whether a plaintiff could recover damages for conversion after a bank wrongfully repossessed his car, and we held that emotional distress damages weren't recoverable for loss in property value (resulting from property damage) because the court had already dismissed an underlying fraud claim. Id. at 456-58, 483 A.2d 387.
This decision does not, however, undermine the jury's threshold decision that the Deputies committed a common-law trespass. Accordingly, and because the Jenkinses did not seek economic or actual damages for the common-law trespass, we remand with directions that the circuit court enter a judgment for nominal damages on that claim. See Brown v. Smith, 173 Md.App. 459, 484 & n. 10, 920 A.2d 18 (2007) (a trespass violation entitles the plaintiff to nominal damages, whereas an injury to the property itself would entitle the plaintiff to compensatory damages).
* * *
To summarize: we affirm the trial court's reduction of the award of economic damages for the shooting of Brandi, to one $7,500 award to Mr. and Mrs. Jenkins against Deputy Brooks only; we affirm the jury's award of $100,000 in non-economic damages each to Mr. and Mrs. Jenkins, also for the shooting of Brandi, against Deputy Brooks only; and we reverse the award of $100,000 to each Mr. and Mrs. Jenkins against both Deputy Brooks and Deputy Rector — a total of $400,000 — and remand for the entry of nominal damages on the trespass claim against each.
Article 26 provides:
Even so, the Deputies' ratio argument does not withstand closer mathematical scrutiny. The jury awarded each plaintiff $100,000 in non-economic damages and $10,000 in economic damages, so the ratio from the jury's perspective was only ten to one. The Deputies only get to their ratio figure by weighing the combined non-economic damages awarded to both plaintiffs against the single post-remittitur economic damages amount, which seems artificially skewed.