author: Liss, J.,

text:
    MONTGOMERY COUNTY DEPARTMENT OF POLICE v. FRANK W. LUMPKIN et al.
    [No. 1200,
    September Term, 1981.]

      Decided May 6, 1982.

    The cause was argued before Liss and Wilner, JJ., and Clayton C. Carter, Associate Judge of the Second Judicial Circuit, specially assigned.

      Bruce P. Sherman, Assistant County Attorney for Montgomery County, with whom were Paul A. McGuckian,

      County Attorney for Montgomery County, and Robert G. Tobin, Jr., Deputy County Attorney for Montgomery County, on the brief, for appellant.

      Allen J. Katz for appellees.
   Liss, J.,

delivered the opinion of the Court.

This controversy involves the Montgomery County Department of Police, appellant, and Frank W. Lumpkin and nine other officers of the motorcycle traffic enforcement division of the Montgomery Police Department, the appellees herein. The record reveals the following information concerning the dispute: Uniformed officers in the Montgomery County Department of Police are assigned to one of five district stations located in different geographic areas of the county. These police district stations are in Silver Springs, Bethesda, Wheaton/Glenmont, Rockville and Germantown. Major Thomas McDonald is Chief of the Field Services Bureau, which includes the five district stations, as well as SWAT units, school safety patrol, crime prevention and community relations. A police captain at each district station is responsible for defining an overall mission for his particular geographic area, commanding the officers under his control, and exercising administrative control for necessary personnel actions.

The duties of a uniformed patrol officer involve criminal and traffic enforcement utilizing a police cruiser or on foot. Patrol officers work on rotating eight-hour shifts, twenty-four hours a day, and seven days a week. Uniformed traffic officers are predominately assigned to duties involving traffic control, traffic enforcement, and accident investigation. They generally operate police motorcycles, police cruisers, unmarked cars, and radar units in areas with high rates of traffic accidents. The traffic officers usually work eight-hour shifts, between 7 a.m. and 11 p.m., Monday through Friday. A Special Assignment Team (SAT) at each district station is a tactical or dirty clothes unit that is drawn from the manpower of the police district at the discretion of the district captain.

The patrol, traffic, and SAT officers are ranked as Police Officer I (POI), Police Officer II (POII), and Police Officer III (POIII)- All police officers of a given rank are in the same merit system class specification and pay grade, independent of their duty assignments. The class specification for a POIII, for example, shows that an officer may be assigned to a large number of other duties, including criminal investigations; and SWAT (Special Weapons and Tactics).

Prior to August 1,1978, by reason of Montgomery County Personnel Regulations Section 33-7 (c), police officers assigned to motorcycle duty received a hazardous duty pay differential so long as they remained assigned to motorcycle duty and were below the rank of sergeant. This hazardous duty pay differential was terminated for new employees assigned to motorcycle duty as of August 1,1978. This policy change did not affect officers then assigned to motorcycle duty.

During the summer of 1980, Major McDonald requested the Montgomery County Department of Police Planning Division to "look at the traffic function as it then existed in the department and to prepare a management report for the department on that function.” The purpose of the report was to determine the efficiency of the traffic function and to identify if the department "had perhaps too many or perhaps even not enough or perhaps could have been the right amount [of manpower] dedicated to that specialty.”

The management report furnished to Major McDonald concluded that:

In the narrowest view of the utilization of traffic squads, we have determined throughout the Patrol Division 9.7% of deployable manpower is deployed to perform specific tasks, which account for 3.03% of the Patrol Division’s work load. We determined the traffic squads accomplish 58.6% of these specific tasks or 1.78% of the Patrol Division’s work load. At no time has this audit denied traffic officers perform other tasks which are the primary duties and responsibilities of the shift officers. We recognize traffic officers are assigned to various details during the year.
The purpose of this audit is to examine assigned responsibilities and relationships to the overall work load. In other words, we are examining the actual reasons for having a traffic squad. We are not examining all of the additional activities which they perform.
In our opinion, the department can no longer justify the deployment of 9.7% of our manpower based on 3.03% of our work load. We find the manpower assigned to this traffic squad is not deployed to best address the traffic work load nor to best assist the shifts in addressing the overall work load.

In carrying out this conclusion, the Planning Division recommended certain modifications to the police manpower deployment. Specifically, the recommendations were:

1. The traffic squads be disbanded.
2. The affected personnel be reassigned to the Shifts.
3. The additional deployable manpower be utilized at the discretion of the district commanders to address the needs of the districts.
4. The use of motor units in any manner be discontinued.

Major McDonald reviewed the audit and evaluation report and, with the approval of the Chief of Police, decided that "the traffic function as we then knew it not be abolished, but that it be cut back to some extent and that those people being taken out of traffic squads be reassigned to the basic patrol shift.”

At the same time Major McDonald was making modifications to the traffic units, significant changes were being made in the Police Department as a result of the rising rate of violent and serious street crime. Prior to March 1, 1981, the Montgomery County police detectives were centralized at Police Headquarters. Effective March 1,1981, centralized Crimes Against Property and Crimes Against Persons units were decentralized to detective units at each of the five district stations. All of the patrol officers in the Police Department converted from a four-day work week to a five-day work week. In addition, special assignment teams (dirty clothes squads used ón a flexible basis to combat violent crime) were made permanent and the size of these units was doubled. The SAT officers were drawn from the patrol officers in their respective district stations, and, in part, the motorcycle officers reassigned to patrol duties replaced these officers.

On February 23, 1981, the Chief of Police executed Personnel Order 81-3 which implemented a portion of the department’s personnel redeployment.

In early February, 1981, Mayor McDonald met with the district commanders to advise them that:

[W]e were going back to the five-day week, that we were going to expand our SAT capability, and that we were going to cut back on the size of the traffic squads at each district, and they were instructed on the number to cut back from the various districts, and they were told too that they should consider productivity when they made those decisions and that they, as District Commanders, should make the decisions as to who was going to be reassigned from traffic to the shifts.

All of the district commanders, at trial, testified that they attended this meeting in early February, that they were advised of how many people would be removed from their traffic squads, and that productivity was one of the factors to be used in determining the officers to be reassigned to patrol duties. The district commanders had available to them at their district stations the statistics relating to criminal and traffic arrests for each officer, which was routinely used in employee performance evaluations. At trial each of the five captains, who acted as district commanders, testified regarding the duty reassignment of the traffic motorcycle officers in their districts. Each of them testified that the reassignments were primarily based on productivity, and that the reassignments were not disciplinary actions or for punitive reasons.

Upon being notified of their duty reassignment and the loss of their 5% differential in pay, eleven police officers, through counsel, notified the Chief of Police that they considered these actions punitive in nature and that they desired a hearing before an appropriate board under the provisions of the Law Enforcement Officers’ Bill of Rights. Maryland Code (1957, 1982 Repl. Vol.) Article 27, § 730 (a).

The Chief of Police replied that the reassignment of the officers was not a disciplinary action and that the officers were therefore not entitled to a hearing under LEOBR.

The officers thereupon filed a petition in the Circuit Court for Montgomery County requesting the court to order the Police Department to hold hearings under LEOBR to determine whether "reassignment and loss of pay is appropriate in each of the petitioner’s cases.” The motorcycle officers also filed grievances under the Montgomery County Merit System Grievance Procedure which have been held in abeyance pending the outcome of this appeal.

At trial, the following stipulations were entered:

1. [A]ll 10 remaining Petitioners are Montgomery County policemen and have been Montgomery County policemen for a period of at least two years.
2. [N]one of the Petitioners were in a probationary status as of February 1st, 1981, nor are they in a probationary status as that term is used in the Law Enforcement Officers’ Bill of Rights at this time.
3. [A]ll of the officers were on motorcycle duties prior to March 1st, 1981 and that after March 1st, 1981, they were assigned to shift duties at the same station under the same District Commander .. .
4. After March 1, 1981, the Appellees no longer received the 5% hazardous duty pay.

After hearing all the evidence and considering written trial memoranda from opposing counsel, the trial court, in a written memorandum, stated the issue to be whether a hearing was required to weigh the benefits of flexible management guaranteed under Section 728 (c) of the LEOBR against the procedural due process guarantees of Section 730 (a) of the LEOBR. The trial judge decided that the transfer of the officers on the basis of their productivity was punitive in nature and that a hearing under Section 730 (a) was required. It is from that judgment that this appeal was filed.

Appellant raises two issues to be decided by this appeal:

1. Did the Circuit Court err in ruling that the reassignment of 10 motorcycle officers to automobile patrol duty based on the motorcycle officers’ productivity was a punitive action which required a hearing under the LEOBR?

2. Did the Circuit Court err in concluding that the reassignments of police officers based on productivity during a reduction in the size of traffic units was not a valid management determination under Art. 27, § 728 (c)?

We shall consider both of the issues raised by this appeal together. The Law Enforcement Officers’ Bill of Rights is found in Maryland Code (1957, 1982 Repl. Vol.) Article 27, §§ 727 through 734 D.

Section 728 (b) delineates with particularity the conditions under which an investigation or interrogation shall be conducted if such investigation or interrogation could lead to disciplinary action, demotion or dismissal.

Section 730 (a) provides:

Notice; record. — If the investigation or interrogation of a law-enforcement officer results in the recommendation of some action, such as demotion, dismissal, transfer, loss of pay, reassignment, or similar action which would be considered a punitive measure, then, except in the case of summary punishment or emergency suspension allowed by § 734 A of this subtitle and before taking that action, the law-enforcement agency shall give notice to the law-enforcement officer that he is entitled to a hearing on the issues by a hearing board. The notice shall state the time and place of the hearing and the issues involved. An official record, including testimony and exhibits, shall be kept of the hearing.

The Court of Appeals, in DiGrazia v. County Executive for Montgomery County, 288 Md. 437, 418 A.2d 1191 (1980), stated the legislative scheme of the LEOBR to be:

Any law-enforcement officer covered by the Act is entitled to its protections during any inquiry into his conduct which could lead to the imposition of a disciplinary sanction. Implicit in § 728’s provision that "[wjhenever a law-enforcement officer is under investigation ... by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal” is the assumption that a disciplinary-type complaint has been lodged against the officer — a complaint which, except as otherwise provided in the Act, will be investigated by the officer’s law-enforcement agency as a precondition to any recommendation for the imposition of a disciplinary sanction. The procedural safeguards afforded to the officer during the official inquiry into his conduct constitute the heart of the Act’s protections. See Abbott v. Administrative Hearing Board, 33 Md. App. 681, 366 A.2d 756 (1976). If the investigation results in a recommendation that the officer be disciplined for his conduct, he is entitled to a hearing under § 730. Moore v. Town of Fairmount Heights, 285 Md. 578, 403 A.2d 1252 (1979). If the hearing board recommends the imposition of a disciplinary sanction, the chief of police makes the final determination whether to impose punishment. If he discharges or otherwise disciplines the officer, § 732 authorizes the taking of an appeal to the court, pursuant to Maryland Rule B2 (appeals from administrative agencies). [Footnotes omitted]. [288 Md. at 451-52].

In that case, Robert J. DiGrazia filed a petition against the County Executive of Montgomery County, claiming that he had been removed from his position as Director of the Montgomery County Police Department in violation of the LEOBR and without the benefit of its procedural safeguards. Maryland Code (1957, 1982 Repl. Vol.) Article 27, §§ 727-734 D. The Circuit Court for Montgomery County granted the County Executive’s motion for summary judgment on the ground that the petitioner was neither disciplined nor discharged under LEOBR. This Court affirmed in DiGrazia v. County Executive for Montgomery County, 43 Md. App. 580, 406 A.2d 660 (1979). The Court of Appeals reversed on the grounds that the trial court erred in granting summary judgment against the petitioner’s complaint that he had been deprived of his constitutional rights not to be discharged under § 733 by reason of his lawful exercise of those rights. The Court held that this section was separate and independent of any requirement that an investigation be conducted under § 728.

In each of the appellate decisions called to our attention by the parties to this case the facts indicate an investigation into conduct which resulted in the imposition of disciplinary action as contemplated in § 728.

Abbott v. Administrative Hearing Board, Prince George’s County, 33 Md. App. 681, 366 A.2d 756 (1976), concerning a violation of discharge of firearm regulations. The hearing board recommended the officer be demoted in rank and suspended without pay for ten days. Hoyt v. Police Commissioner of Baltimore City, 279 Md. 74, 367 A.2d 924 (1977), involved police officers engaged in an illegal strike. The board recommended dismissal. Commissioner, Baltimore City Police Department v. Cason, 34 Md. App. 487, 368 A.2d 1067 (1977), involved improper receipt of monies by a police officer. The officer’s employment was terminated. See also Police Commissioner of Baltimore City v. Dowling, 281 Md. 412, 379 A.2d 1007 (1977); Mayor & Commissioners of Westernport v. Duckworth, 49 Md. App. 236, 431 A.2d 709 (1981); Widomski v. Chief of Police of Baltimore County, 41 Md. App. 361, 397 A.2d 222 (1979), in each of which specific allegations of wrongdoing were submitted to a hearing board and recommendations of disciplinary action were made by the board.

Our reading of the LEOBR convinces us that in the absence of the applicability of § 733 there must be a threshold investigation or interrogation of a law enforcement officer which results in the recommendation of some action such as demotion, dismissal, transfer, loss of pay, or reassignment, which would be considered a punitive measure, before the officer is entitled to a hearing board as provided in §§ 730-731. The LEOBR subtitle was enacted to assure that certain procedural safeguards would be provided to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion or dismissal. See DiGrazia v. County Executive, supra. Section 731 (a) specifically provides that any decision of the hearing board shall be in writing and shall be accompanied by findings of fact which shall consist of a concise statement upon each issue in the case. A Ending of not guilty terminates the action. If a finding of guilt is made, § 731 specifically sets out the procedure as follows:

If a finding of guilt is made, the hearing board shall reconvene the hearing, receive evidence, and consider the law-enforcement officer’s past job performance and other relevant information as factors before making its recommendations to the chief. A copy of the decision or order and accompanying findings and conclusions, along with written recommendations for action, shall be delivered or mailed promptly to the law-enforcement officer or to his attorney or representative of record and to the chief.
The person who may take any disciplinary action following any hearing in which there is a finding of guilt shall consider the law-enforcement officer’s past job performance as a factor before he imposes any penalty.
(b) After the disciplinary hearing and a finding of guilt, the hearing board may recommend punishment as it deems appropriate under the circumstances, including but not limited to demotion, dismissal, transfer, loss of pay, reassignment, or other similar action which would be considered a punitive measure.
(c) The written recommendations as to punishment are not binding upon the chief. Within 30 days of receipt of the hearing board’s recommendations, the chief shall review the findings, conclusions, and recommendations of the hearing board and then he shall issue his final order. The chiefs final order and decision is binding and may be appealed in accordance with this subtitle. Before the chief may increase the recommended penalty of the hearing board, he personally shall review the entire record of the hearing board proceedings, shall permit the law-enforcement officer to be heard and shall state the reason for increasing the recommended penalty.

After careful examination of the record extract in this case and the facts recited therein, we are convinced that in light of the LEOBR subsection the appellees were not entitled to the hearing granted them by the trial court. We do not find that this case involves the disciplinary-type complaints recited in the prior LEOBR cases previously cited in this opinion. It is clear to us that before any officer was affected the police department made a management decision to reduce the size of a particular specialized enforcement unit, the motorcycle division. The subsequent determination of the specific officers involved in the reduction and transfer was within the powers and authority granted the chief of police under § 728 (c) of Article 27, which states:

This subtitle does not limit the authority of the chief to regulate the competent and efficient operation and management of a law-enforcement agency by any reasonable means including but not limited to, transfer and reassignment where that action is not punitive in nature and where the chief determines that action to be in the best interests of the internal management of the law-enforcement agency.

As this Court pointed out in Allgood v. Somerville, 43 Md. App. 187, 403 A.2d 837 (1979), a hearing board could not properly make a finding of guilty or not guilty when there have been no accusations, complaints, or charges giving rise to termination. It is obvious that the hearing board, if convened, could not be called upon to make a determination as to whether Police Department resources, as indicated by the study previously made, needed to be concentrated into different areas of enforcement and officers reassigned accordingly.

We express no opinion as to whether the Montgomery County Police Department utilized the proper criterion in selecting the officers to be transferred from the motorcycle division on the primary basis of productivity as demonstrated by the number of tickets issued. We are, however, convinced beyond per adventure that the trial court erred when it expressed its opinion on the appropriate use of the hearing board under LEOBR as follows:

The Court suggests, however, that the intention of the LEOBR is not to displace the decisions by managers, but rather to use the hearing board as a vehicle to ensure that management decisions reach the Department goal of efficient operations without minimizing or ignoring the procedural safeguards of those who contribute to achieving the goal.
The evidence indicates that the transfer of the officers was punitive in nature such that a hearing under section 730 (a) is required.

As we perceive the position of the appellees in this case, it is not that the police chief did not have the authority to implement the management decisions he made based on the study, which resulted in the transfer of the ten police officers from motorcycle duty. Their complaint is that the chiefs selection of those to be transferred, resulting in a reduction in pay for each of the officers, was based on the unfair and inappropriate criterion of the number of tickets produced by each officer.

We conclude that the transfers were not punitive within the meaning of the LEOBR subsection and that a hearing before a review board is not the appropriate forum for a determination of this complaint. The Montgomery County Merit System Protection Board is the administrative agency which is empowered to determine whether the police chiefs actions in this case were in conformity with the personnel regulations for Merit System employees found in the appendix to Chapter 33 of the Montgomery County Code 1972, as amended December 2, 1980. We note that those regulations set out in detail the system for determining performance evaluation and rating of merit employees. We would assume that an appropriate complaint under these regulations would require an individual hearing for each of the officers since the factual situation, as indicated by the record extract, appears to be different in each case.

Judgment reversed, costs to be paid by appellees.

      . One of the officers later withdrew his participation in this case and ten officers remain as appellees.

      . The Court of Appeals opinion will be laid to rest if the Governor signs HB 1020 which excludes Chiefs of Police from the ambit of the LEOBR. The effect of the bill will be to reinstate this Court’s opinion in 43 Md. App. 580, 460 A.2d 660 (1979).


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    SAM ROY WILLIAMS v. JAMES McHUGH et al.
    [No. 1237,
    September Term, 1981.]

      Decided May 6, 1982.

    The cause was argued before Lowe, MacDaniel and Weant, JJ.

      Alan B. Gross, with whom were Ashcraft & Gerel on the brief, for appellant.

      Arthur V. King for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Maryland’s Workmen’s Compensation Commission has been legislatively provided limited procedural rule-making authority which includes the right to

"prescribe the time within which adjudications and awards shall be made. . . .” Md. Ann. Code (1979) Repl. Vol.), Art. 101, § 10.

While it is clear that this was intended to permit the Commission to determine its own minimum standards for deciding cases to which it would be expected to adhere, it is equally certain that the Legislature had no intention that such rule or rules were to be so strictly enforced as to curtail the rights of a claimant. In fact, the Legislature made it explicitly clear that

"all such rules and regulations shall conform to the provisions of this article.” Id.

One of the provisions of "this article” is an unique legislative directive to the Commission and to the courts, in § 63, that the Act should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes, and that any uncertainty in the law should be resolved in favor of the claimant.

The Commission enacted Rule 15A, which states that:

"When a claim has been scheduled for a hearing and notices have been served upon the claimant by mailing in due course a copy to his last known post office address two successive times, and the claimant has failed to appear, the claim shall be held in abeyance by the Commission for one year from the date of the last scheduled hearing. If within the said year the claimant does not make a further request for hearing, the claim shall be automatically dismissed, or decided on the record, as the case may be.”

This was obviously a procedural guideline permitting the Commission to clear its dockets of abandoned cases, while leaving some discretion to decide a questionable case within the construction guides of § 63. It clearly did not intend to restrict itself so as mandatorily to curtail its right — or duty — to modify or change its former orders or findings when it felt justified, within five years of a compensation payment as legislatively authorized in Art. 101, § 40 (c). Indeed, if the Commission had intended to restrict further its discretionary modification authority to the possible detriment of a claimant, such rule would have been ultra vires to that extent and purpose, as failing to conform with § 40 (c) and § 63. Art. 101, § 10.

In the case at bar, the parties entered into a Joint Stipulation of Fact for purposes of the appeal from the Workmen’s Compensation Commission to the Circuit Court for Montgomery County. The pertinent elements of the stipulation were that appellant (who was the appellee below) had sustained a compensable injury on October 3, 1978 and obtained a temporary total disability award by order dated November 16, 1978.. Appellant’s attorney requested a hearing and the appellees filed issues that same month. Appellant’s attorney lost contact with him, and on two occasions, neither appeared at scheduled hearings.

The claim was placed on the stet docket on April 4, 1979, and remained there until November 12, 1980, when appellant notified the Commission that he had retained new counsel. The appellees raised the issues of nature and extent of disability and "limitations based on the stet docket rule” on that very day. Significantly, the Commissioner decided

"that the above entitled case is not Barred by Limitations; and further ORDERED that this Award is subject to further consideration by this Commission on issues to be raised; subject to the provisions of the Workmen’s Compensation Law of Maryland.”

An appeal was taken to the Circuit Court for Montgomery County, which correctly stated that

"it is always hard cases like this that result in bad law and it may be bad law from a nisi prius standpoint that I’m establishing today”;

but it incorrectly held,

"that either [appellant] slept on his rights or he’s guilty of laches which may constitute a waiver of the statutory protection he had or the mandatory nature of this procedural rule is such that it ought to be reviewed, revised, or interpreted by either the legislature or the Court of Appeals.”

Initially we should note in passing that we are clearly cognizant of the "Accardi doctrine” set forth in U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). As we stated in Board of Educ. of A. A. Co. v. Barbano, 45 Md. App. 27, 41 (1980):

" 'An agency of the government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down.’ ” United States v. Heffner, 420 F.2d 809, 811 (4th Cir. 1979); Hopkins v. Md. Inmate Griev. Comm’n, 40 Md. App. 329, 335-336 (1978).

We are equally cognizant of the trend in the Court of Appeals to presume that the statutory use of the word "shall” is mandatory. Pope v. Secretary of Personnel, 46 Md. App. 716 (1980). We are, however, also aware that by its rule-making power (Md. Rule 18), or even by constitutional directive (Md. Const., Art. IV, §§ 15 and 23), that Court has never considered "shall” mandatory when dealing with "the time within which adjudications or awards shall be made ...” for itself or the courts within its auspices. See Davidson v. Katz, 254 Md. 69,78-79 (1969); McCall’s Ferry Co. v. Price, 108 Md. 96, 112-113 (1908). It is inconceivable that the Court would interpret a quasi-judicial Commission’s procedural rule otherwise, and impose substantive limitations adversely upon a claimant, contrary to the discretion given the Commission by statute. But that reflection is an opinion we may not express because this case should not have been before us. Eastgate Associates v. Apper, 276 Md. 698 (1976).

As pointed out, the Commission’s order was not a final one and, as a consequence, no right to appeal arose from it. Md. Rule B1 a; Great American Ins. v. Havenner, 33 Md. App. 326, 328 (1976). Only if the Commission had ruled as the court did would the case have been finally terminated, cf. In Re: Appeal No. 507, Term 1976, 34 Md. App. 440, 444 (1977), and without such finality no appeal exists from administrative tribunals. Big Vein Coal Co. v. Leasure, 192 Md. 435, 437 (1949).

Although the circuit court’s ruling was a final order terminating the rights of one of the parties, Peat & Co. v. Los Angeles Rams, 284 Md. 86, 91 (1978); see also Clark v. Elyza, .286 Md. 208, 212 (1979), it had no authority to do so.

We will, therefore, reverse the judgment of the Circuit Court for Montgomery County and remand the case to that court for it to dismiss the appeal from the Workmen’s Compensation Commission, in order that the Commission may conclude its proceedings in accordance with its order of January 30, 1981.

Judgment reversed.

Costs to be paid by appellees.


author: Mason, J.,

text:
    JAMES IVORY LAWRENCE v. STATE OF MARYLAND
    [No. 1583,
    September Term, 1980.]

      Decided May 7, 1982.

    The cause was argued before Morton, Moore and Mason, JJ.

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Patricia E. McDonald, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Robert Lazzaro, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

In this case we are asked to decide whether the use of peremptory strikes to eliminate all blacks from the jury was a violation of the Federal and Maryland Constitutions.

James Ivory Lawrence, appellant, was convicted by a jury in the Circuit Court for Baltimore County of first degree murder and the use of a handgun in the commission of a crime of violence. He was sentenced to a term of life imprisonment for the murder conviction, and a concurrent term of fifteen years for the handgun conviction.

I.

During the impaneling of the jury the State peremptorily struck three black potential jurors. Thereafter, defense counsel made the following objection:

At this point I would point out the fact we have three black jurors, but they were all stricken by the State, and we would ask the Court to — indicate to the Court that under that situation obviously it prejudices the defendant, and the fact that I object to that.
THE COURT: Well I will overrule the objection for the record.

Appellant argues, in essence, that the prosecution’s striking of three out of three black jurors leaving an all white jury, was a violation of the Federal and Maryland Constitutions.

Assuming that the three jurors were stricken solely because they were black rather than because of some specific bias related to the circumstances of the case, this precise issue was considered by the Supreme Court in Swain v. Alabama, 380 U.S. 202 (1965). There, the prosecutor struck all six black-potential jurors from the venire. The black defendant was convicted of rape by an all white jury and was sentenced to death. In rejecting the defendant’s claim that he was denied equal protection of the law under the Fourteenth Amendment of the Federal Constitution, the Supreme Court said at 380 U.S. 220-222:

The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.
It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty.
Hence veniremen are not always judged solely as individuals for the purpose of exercising peremptory challenges. Rather they are challenged in light of the limited knowledge counsel has of them, which may include their group affiliations, in the context of the case to be tried.
With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge.
In light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenge to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.

Accord Johnson v. State, 9 Md. App. 143 (1970); see also Pearson v. State, 15 Md. App. 462 (1972); Brice v. State, 264 Md. 352 (1972); King v. State Roads Commission, 284 Md. 368 (1979). We think it evident that Swain is dispositive of appellant’s assertion that the prosecutor’s use of peremptory strikes to eliminate blacks from the jury was a violation of the Federal Constitution.

In ostensible reliance on the cases of Commonwealth v. Soares, 387 N.E. 2d 499 (Mass. 1979) and People v. Wheeler, 583 P. 2d 748 (Cal. 1978) appellant also contends that the use of peremptory strikes to exclude blacks from the jury is a violation of the Maryland Constitution. In Wheeler the defendants were black and the victim was white. The prosecutor struck all black jurors by means of peremptory challenges. Upon conviction the defendants appealed and argued that they were denied their right to trial by an impartial jury under the California Constitution. In Swain the issue of using peremptory strikes to eliminate blacks from the jury was adjudicated under the Equal Protection Clause of the Fourteenth Amendment rather than the impartial jury rule under the Sixth Amendment enunciated in Taylor v. Louisiana, 419 U.S. 522 (1975). In Wheeler the Court assumed that if the issue was presented to the Supreme Court "it would reaffirm Swain and reach the same result under the representative cross-section rule as it did under the Equal Protection Clause.” Id. at 757. For this reason the court determined the issue under California law which provided more protection than Swain.

Article I, section 16 of the California Constitution provides, in relevant part: "Trial by jury is an inviolate right and shall be secured to all____” The Court noted that this provision "does not explicitly guarantee trial by an impartial jury, as does the Sixth Amendment to the Federal Constitution; but that right is no less implicitly guaranteed by our charter, as the courts have long recognized.” After reviewing a series of Supreme Court decisions which hold, in effect, that an essential prerequisite to an impartial jury is that it be drawn from a representative cross-section of the community, the Court concluded:

When a party presumes that certain jurors are biased merely because they are members of an identifiable group distinguished on race, religion, ethnic or similar grounds we may call this group 'group bias’ — a peremptory strike on such persons for that reason alone, it not only upsets the demographic balance of the venire, it frustrates the primary purpose of the representative cross-section requirement. Id. at 761.
We conclude that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to a trial by a jury drawn from a representative cross-section of the community under Article I, section 16 of the California Constitution.
This does not mean that the members of such a group are immune from peremptory challenges: individual members thereof may still be struck on grounds of specific bias as defined herein. Nor does it mean that a party will be entitled to a petit jury that proportionately represents every group in the community: we adhere to the long-settled rule that no litigant has the right to a jury that mirrors the demographic composition of the population, or necessarily includes members of his own group, or indeed is composed of any particular individuals.
What it does mean, however, is that a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits. (Citations omitted).
... [W]e cannot countenance the decimation of the surviving jurors by peremptory challenges on the ground of group bias alone. Id. at 762.

Likewise, in Commonwealth v. Soares, supra, the defendants were black; the victim of the murder was white, and twelve out of thirteen black potential jurors were peremptorily challenged by the prosecutor. On appeal the defendants claimed that they were denied their right to be tried by an impartial jury. The court followed the Wheeler decision and based its holding on the Massachusetts Constitution rather than Swain.

Article 12 of the Declaration of Rights of the Massachusetts Constitution provides, in pertinent part: "And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by judgment of his peers, or the law of the land.” In delineating the characteristics of the jury contemplated by Article 12, the court in prior cases had stated, among other things, that a "defendant is constitutionally entitled to a jury selection process free of discrimination against his grouping in the community....” Id. at 510. Based on this premise, the Court, in holding that the defendants were denied the right to be tried by ah impartial jury in violation of Article 12, stated:

[Ejxercise of peremptory challenges to exclude members of discrete groups, solely on the basis of bias presumed to derive from the individual’s membership in the group, contravenes the requirement inherent in Article 12 of the Declaration of Rights.... We view the Equal Rights Amendment as definitive in delineating those generic group affiliations which may not permissibly form the basis for juror exclusion: sex, race, color, creed or national origin.

Commonwealth v. Soares, 387 N.E. 2d at 516. But see Dopel v. United States, D.C. App. 434 A. 2d 449, 457-459 (1981) where the Court, in reliance on Swain, held that a white defendant charged with murder and rape of a black victim, was not prejudiced by the fact that the prosecutor exercised his peremptory strikes to exclude whites from the jury. The Court noted that Supreme Court decisions requiring representative cross-sections of the community were concerned with the jury pool and not the composition of any particular petit jury. It further observed that the refusal of California and Massachusetts to follow Swain was based on state constitutional grounds — which have no application in the District of Columbia.

Consonant with this view see United States v. Danzey, 476 F. Supp. 1065 (1979). In that case the prosecutor used three of his first five peremptory challenges against the only three blacks selected for the jury. In explaining why he excluded the black jurors, the prosecutor stated:

I make it a practice to attempt to exclude as best I can all jurors so that to exclude jurors of the same ethnic background as the defendant. And I do that simply for the reason, although I need not pass any reason for my exercise of peremptories, I do that as a matter of course, no matter who the defendant is or whatever his ethnic background is.

The prosecutor then stated "he would exclude all persons of Irish descent if there were a defendant of that descent and would follow a similar practice if a defendant were of Italian descent.” In holding that the use of peremptory challenges to exclude blacks from the jury did not violate the defendant’s constitutional right to due process or his constitutional right to trial by an impartial jury of his peers, the Court stated:

So long as the Swain decision remains the law, the act of peremptory challenging blacks is not impermissible. Nor should the admission by the prosecutor of his reasons for exercising the challenges make them invalid. The Swain opinion did not, as defendant contends, merely bar investigation into the prosecutor’s motive, but declared his motive irrelevant absent some evidence of systematic discrimination, preventing blacks from serving on juries. Id. at 1067.

Although appellant contends the prosecution’s exercise of peremptory challenges to exclude blacks from the jury in the present case violated the Maryland Constitution, he did not specify which constitutional provision he relied on as a source for his assertion, but left it to us to find the applicable provision. We oblige. The only applicable provisions of the Maryland Constitution upon which appellant could conceivably obtain the relief granted the defendants in Wheeler and Soares are Article 21 and Article 24 of the Maryland Declaration of Rights.

Article 24 of the Maryland Declaration of Rights provides "that no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner, destroyed or deprived of his life, liberty or property, but by judgment of his peers, or by the law of the land.” The words "judgment of his peers” means a trial by jury, and the words "by the law of the land” means "due process of law according to the course and usage of the common law right.” Wright v. Wright, 2 Md. 429, 452 (1852). Black’s Law Dictionary, p. 1289 (4th Ed. 1968) defines peers as equals. Thus, "trial by a jury of his peers” means "trial by a jury of citizens.” In Pitsenberger v. Pitsenberger, 287 Md. 20 (1980) the Court of Appeals, in discussing the interplay between Article 24 and the United States Constitution said:

Preliminarily, it should be pointed out that Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States Constitution have the same meaning, and that Supreme Court interpretations of the Fourteenth Amendment function as authority for interpretation of Article 24.

It is apparent that Article 24 accords appellant no greater rights than the United States Constitution.

Article 21, in relevant part, provides: "That in criminal prosecutions every man hath a right... to a speedy trial by an impartial jury.” This language is almost identical with the language of the Sixth Amendment of the Federal Constitution which provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....”.

In Smith v. State, 276 Md. 521, 527 (1976) the Court of Appeals, in construing Article 21 as it relates to the right of a speedy trial under the Sixth Amendment of the Federal Constitution, said:

Although this Court has not previously definitively determined the relationship between the two constitutional speedy trial rights, we here conclude that the opinions of the Supreme Court interpreting the Sixth Amendment right to a speedy trial are 'very persuasive, although not necessarily controlling,’ as to the proper construction of Maryland’s parallel Article 21 right.

But see concurring opinion of Judge O’Donnell where he stated that the Supreme Court’s decisions interpreting the Sixth Amendment right to a speedy trial were controlling, and it was outmoded to suggest that the Supreme Court’s decisions were very persuasive but not necessarily controlling as to the proper construction of Maryland’s parallel Article 21 right. See also Erbe v. State, 276 Md. 541 (1976). What the Court of Appeals said regarding the proper construction of Article 21 as it applies to the right of a speedy trial, applies with equal force to the proper construction of Article 21 as it applies to an impartial jury.

In Taylor v. Louisiana, 419 U.S. 522, 538 (1975) the first case in which the Supreme Court imposed the representative cross-section rule on the states as a fundamental component of the Sixth Amendment of an impartial jury, the Court held that a male defendant’s right to an impartial jury was violated by the State’s exclusion of women from jury service. The Court, however, emphasized:

[Tjhat in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof. Id. at 538. (Citations omitted).

Inasmuch as appellant does not contend that the jury pool from which the petit jury was drawn systematically excluded blacks, the use of peremptory challenges to strike blacks from the petit jury was not a violation of Article 21 or 24 of the Maryland Declaration of Rights. Although we do not countenance the practice of using peremptory strikes to exclude blacks or members of other identifiable groups from the petit jury, for the reasons stated in Swain and Taylor and the decisions of the Maryland Court of Appeals interpreting Articles 21 and 24, we find no provision of the Federal or Maryland Constitutions proscribing this practice.

II.

During the direct examination of a defense witness the following colloquy occurred:

Q. When he came back in the bar, what did he do?
A. He said that they had robbed him.
MR. LAZZARO: Objection, Your Honor.
THE COURT: Sustained. You can’t say what he told you.

Although appellant did not pursue this matter at trial, he now argues that the court erred in sustaining the State’s objection because the statement of the witness was an "excited utterance” and was admissible as an exception to the hearsay rule. Based on the record before us, we cannot say that the court abused its discretion in sustaining the State’s objection to the statement of the witness. If the statement in question was an "excited utterance,” appellant did not lay a proper foundation for its admission.

III.

The final argument of appellant is that the evidence was insufficient because the witness’s testimony was unbelievable. It is fundamental that the credibility of witnesses is a matter for the trier of fact and not for this Court. Koper v. State, 10 Md. App. 170 (1970).

For the reasons herein stated, we affirm.

Judgments affirmed.

Costs to be paid by appellant.


author: Wilner, J.,

text:
    GIANT FOOD, INC. v. GERALDINE SCHERRY et al.
    [No. 1258,
    September Term, 1981.]

      Decided May 7, 1982.

    The cause was argued before Liss and Wilner, JJ., and Clayton C. Carter, Associate Judge of the Second Judicial Circuit, specially assigned.

      David P. Durbin, with whom were Robert W. Goodson and Carr, Jordan, Coyne & Savits on the brief, for appellant.

      Sue Ann Mahaffey, with whom were Bulman, Dunie, Freeman, Burke & Feld on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

Appellant employed William Joyner as an armed security guard to protect its store located in the Blair Plaza Shopping Center in Silver Spring. On the evening of November 11, 1978, while on duty, Joyner observed a man brandish a pistol and rob one of appellant’s cashiers. He allowed the robber to leave the store, and began to pursue him across the parking lot.

As the robber reached a car parked at the far end of the lot, Joyner pulled his pistol and twice shouted to the man to stop, identifying himself as a police officer. The robber ignored the warnings, got into the car, and began to drive quickly away. Joyner, standing between fifteen and forty feet from the fleeing vehicle, fired two shots at the car. One, aimed at the driver’s side window, hit the rear quarter panel. The other, aimed at the rear window, sparked this litigation. Instead of hitting the car, the bullet went through Geraldine Scherry’s fifth floor apartment window across the street.

Ms. Scherry was just walking into her living room when the bullet shattered her window, strewing glass all over the apartment. Thinking that someone was trying to kill her, she became hysterical. The episode was so unnerving as to cause nausea, insomnia, headaches, and general mental and emotional distress, leading to the need for some psychotherapy, one hospitalization, and lost time from work.

Ms. Scherry and her husband sued appellant in the Circuit Court for Montgomery County on a variety of theories. Ultimately, the case was submitted to the jury on the theory of Joyner’s negligence in firing the second shot, for which appellant would be vicariously liable, and appellant’s direct negligence in hiring Joyner and entrusting him with a firearm without proper training. The jury returned a general verdict of $15,000 compensatory damages, $12,000 attributable to Ms. Scherry’s injuries and $3,000 for loss of consortium.

In this appeal, appellant raises three issues: (1) is appellant immune from liability to appellees because Joyner had a right to use deadly force in attempting to capture the fleeing felon, (2) was the damage award based upon inadmissible expert testimony given in response to an impermissible hypothetical question, and (3) did the court err in its instructions to the jury with respect to damages?

(1) Liability

Appellant’s theory of immunity, or non-liability, proceeds thusly: (1) as a result of his direct observations, Joyner had probable cause to arrest the fleeing felon; (2) he had the right to use reasonable force to effect that arrest, and, in the circumstances presented here, that included the use of deadly force; (3) his actions were therefore "privileged”; and (4) by reason of that "privilege,” no liability would accrue to an unintended third party victim. Appellant argues this theory in two contexts: the denial of its motion for directed verdict, and the court’s refusal "to instruct the jury on Restatement of Torts section 143(2) relating to the use of force and pursuit of a fleeing felon.”

We have no difficulty with appellant’s first premise. Under Maryland law, "a private person may make an arrest if he ha[s] reasonable grounds (probable cause) to believe that a felony was committed and that the person whom he arrests committed it.” Stevenson v. State, 287 Md. 504, 520 (1980). Certainly, in light of his own observations, Joyner had probable cause to believe that the person he was pursuing had just committed an armed robbery, and he therefore had the right and authority to arrest him.

We agree also that a person authorized to make an arrest may use reasonable or "necessary” force to accomplish that result. The Baltimore and Ohio Railroad Company v. Strube, 111 Md. 119, 127 (1909); Prosser, Law of Torts, 134 (4th Ed. 1971). We do not necessarily concur, however, with appellant’s argument that the use of deadly force — the firing of shots — was justified, at least not as a matter of law. Given the fact that the robber was in the process of fleeing and, at the time, presented no immediate danger to Joyner or anyone else, and given the alternative option of noting the license tag number of the getaway car (which Joyner neglected to do) and summoning help from the police, a permissible inference could be drawn that Joyner’s actions exceeded the use of reasonable or necessary force under the circumstances and therefore were not privileged. See Restatement of Torts (2d) § 79 (1965).

We need not rest our decision on that doubt alone, for there is a more significant weakness in appellant’s argument. Joyner’s conduct has to be viewed not only in the context of the duty he owed to the robber not to use excessive (.i.e., unreasonable, unnecessary) force in effecting an arrest, but also in terms of a duty he owed to other persons to act in a reasonable manner. A finding of "privilege” with respect to the robber does not, in other words, end the inquiry vis a vis any responsibility to third parties such as Ms. Scherry; it would, at best, merely serve to insulate Joyner and appellant against liability to the robber, had he been shot.

Restatement of Torts (2d) § 137 (1965), states that "[ljiability for the invasion of any of another’s interests of personalty, by the exercise of the privilege of effecting the arrest or recapture, or of maintaining custody of a third person, is determined by the rules stated in §§ 74 and 75 [of the Restatement].” Section 75, which deals with the situatioh of one acting in self-defense, provides:

"An act which is privileged for the purpose of protecting the actor from a harmful or offensive contact or other invasion of his interests of personalty subjects the actor to liability to a third person for any harm unintentionally done to him only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm.” (Emphasis supplied.)

See also §§83 and 111, expressing the same principle in the context of acting in defense of property and in the recaption of chattels.

These sections of the Restatement make clear that, in attempting to make a warrantless arrest, a person has, in effect, a double responsibility — one to the prospective arrestee not to use unnecessary force against him, and one to the public at large to use even reasonable force in a reasonable manner. This is illustrated in Comment c to § 137, which states, in relevant part:

"Thus, if an actor is privileged to shoot at an escaping felon, he is not liable to a third person harmed by a stray bullet, if when he shot there was little or no probability that any person other than the felon would be hit. But when he shoots into a crowded thoroughfare, and unintentionally hits a passerby, his act is unprivileged if, in view of the surrounding conditions, including the nature of the crime for which he seeks to arrest, recapture, or maintain custody, the harm which may ensue if he does not act, and his skill or lack of skill in the use of the weapon, it is unreasonable for him to take the chance of causing grave harm to bystanders.” (Emphasis supplied.)

In light of the case law that has developed, we think that the reference in the second sentence of Comment c to shooting into a crowded thoroughfare is merely one of example, not one of limitation. The reasonableness standard set forth in §§ 75, 83, and 111, incorporated by reference into § 137, and otherwise explicated in Comment c, would apply whether the shot is fired into a "crowded thoroughfare” or any other place or circumstance in which there is some prospect that an innocent person may be hurt.

These kinds of situations, in which an innocent bystander is injured or killed in the course of an attempt to apprehend a criminal or defend an attack on one’s person or property, arise in a variety of contexts — some more life-threatening to the actor than others, some involving felons and felonies, others involving misdemeanants and misdemeanors. The context is important in determining the reasonableness of the action taken, but the basic standard seems to be the same. Where the evidence shows that the actor, whether a police officer or a private citizen, acted without due regard to the danger caused to innocent third parties, he (and his employer) have been held liable. See, for example, Robledo v. City of Los Angeles, 252 C.A.2d 285 (1967); Goodrich v. Morgan, 291 S.W.2d 610 (Tenn.App. 1956); Heidbreder v. Northampton Township Trustees, 411 N.E.2d 825 (Ohio App. 1979); Meistinsky v. City of New York, 140 N.Y.S.2d 212 (A.D. 1955), aff'd 309 N.Y. 998 (1956); Wilkes v. City of New York, 124 N.E.2d 338 (N.Y. 1954); Harden v. United States, 485 F.Supp. 380 (S.D.Ga. 1980); Davis v. McKey, 167 So.2d 416 (La.App.), writ refused 168 So.2d 822, 823 (La. 1964); Dyson v. Schmidt, 109 N.W.2d 262 (Minn. 1961); Davis v. Hellwig, 122 A.2d 497 (N.J. 1956); Cerri v. United States, 80 F.Supp. 831 (N.D.Cal. 1948); Young v. Kelley, 21 N.E.2d 602 (Ohio App. 1938); Day v. Walton, 281 S.W.2d 685 (Tenn. 1955); Edgin v. Talley, 276 S.W. 591 (Ark. 1925); Greenstone, Liability of Police Officers for Misuse of Their Weapons, 16 Clev.-Mar. L. Rev. 397, 405 (1967); Note, The Civil Liability of Peace Officers For Wounding or Killing, 28 Cinc. L. Rev. 488, 495 (1959).

Conversely, where the evidence establishes that the defendant acted reasonably, liability has been denied. See Hatfield v. Gracen, 567 P.2d 546 (Or. 1977); Graham v. Ogden, 157 So.2d365 (La. App. 1963); Gordon v. City of New Orleans, 363 So.2d 235 (La. App. 1978), aff'd 371 So.2d 768 (La. 1979); and compare Everette v. City of New Kensington, 396 A.2d 467 (Pa.Super. 1978), where the court divided equally.

The question, then, is whether, under all of the circumstances in which Mr. Joyner found himself at the moment he took the second shot, it was reasonable for him to have fired that shot. Was there a prospect of injuring someone else?

In Fowler v. Smith, 240 Md. 240, 246 (1965), the Court of Appeals, in an oft-quoted passage, stated:

"Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tending to establish negligence drawn. ... And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. ” (Emphasis supplied.)

Against this standard, we find no error in the court’s refusal to grant either the motion for directed verdict or the instruction "on Restatement of Torts section 143 (2) . . . .”

Mr. Joyner described the episode thusly:

"As soon as he [the robber] set foot on the parking lot he got into a slight trot across the parking lot. At this time I had already unbuckled my holster, and I jumped up and followed suit. I unholstered my revolver.
I was running to the parking lot, and I called for the subject to halt, 'police officer’. He looked around and kept trotting.
I am still in pursuit as he reached the car. I noticed that he did not have an accomplice, and he reached in the car, he reached down into his inside coat and pulled his revolver back and brandished it up in the air like this. (Witness indicating.) He did it as if he was going to turn and fire. He did not fire.
He put his weapon back in his pants, stuck it back down in his pants and got in the car. This is when I hollered for him to halt again. At this time the subject got in the car and proceeded to pull off, and I fired my first shot which hit the rear panel of the car.
He was pulling off in kind of a hurry. He burned a lot of rubber on the parking lot getting off the parking lot. I fired another shot at the back window of the car.”

Earlier, he had stated:

"Q The robber never pointed his gun at you at any time during this chase, is that correct?
A No, he didn’t point at me — at me directly.
Q He didn’t point it directly at anybody else in the area, is that correct?
A No.”

In subsequent testimony, Joyner confirmed that the robber "put his weapon back in his belt before he got in the car.” (Emphasis supplied.)

Montgomery County police personnel arrived at the scene "[a] couple seconds” after the shooting incident, according to Joyner. From the description given by him, the suspect was arrested the next day.

From that evidence, permissible inferences arise that (1) the fleeing robber posed no imminent danger to Joyner or anyone else; (2) Joyner could have assisted in recovering his emplpyer’s property and effecting the robber’s arrest simply by noting his description and the license tag number of the "getaway” car and summoning the more mobile county police; and (3) Joyner was literally shooting into the dark at a rapidly moving target. From the fact that his first shot, aimed at the driver’s window, hit the rear quarter panel, a fair inference arises that Joyner’s aim was not the best, and that he should have realized that to be the case. Finally, from other evidence in the record, a further inference arises that Joyner should have been aware that he was shooting in the general direction of the apartment complex in which Ms. Scherry resided and that, if he missed his intended target (or the bullet ricocheted off of it), the bullet might strike someone therein.

These inferences are clearly ones of negligence. From them, a trier of fact could rationally conclude that Joyner did not act reasonably, that he should have realized he was creating an unreasonable risk of harm to innocent bystanders by taking that second shot. The issue, then, was one for the jury.

With respect to the instruction, the record reveals that it was merely a recitation of Restatement of Torts (2d) § 143 (2), which has no relevance whatever to this case.

Section 143 deals with the force which a person is authorized to use to prevent the commission or consummation of a felony. Subsection (2), and the requested instruction, provides:

"The use of force or the imposition of a confinement intended or likely to cause death or serious bodily harm is privileged if the actor reasonably believes that the commission or consummation of the felony cannot otherwise be prevented and the felony for the prevention of which the actor is intervening is of a type threatening death or serious bodily harm or involving the breaking and entry of a dwelling place.”

There was no evidence to support such an instruction. Joyner did not fire his gun to prevent a felony, but to apprehend the felon. There was, at the time, no threat of death or serious bodily harm (except from Joyner), and the felony in question did not involve the breaking and entry of a dwelling place. Most important, even if the privilege mentioned in the instruction were applicable, for the reasons stated above it would not preclude liability to appellees.

Because we believe that the case was properly submitted to the jury on the issue of Joyner’s negligence, for which appellant would be vicariously responsible, and in light of the general verdict returned by the jury (there being no request by appellant for submission of the case on issues), it is not necessary for us to consider whether the evidence sufficed to sustain the verdict on the alternative basis of negligent employment and entrustment.

(2) Hypothetical Question

Ms. Scherry testified as to certain physical and emotional trauma suffered by her following the shooting incident — headaches, insomnia, fear of automobiles, nervousness, etc. Dr. Nathan Billig, a psychiatrist who treated Ms. Scherry after the incident, was asked by means of a hypothetical question whether he could relate those various symptoms to the shooting. Over a general objection, he said that he could, and that he did.

Appellant complains here that the hypothetical question was improper because it omitted certain "facts” that appellant now thinks were relevant. We believe the question included all that it had to, and was proper.

(3) Jury Instructions

In its charge to the jury, the court stated:

"In assessing the damages on the part of the individual plaintiff, Geraldine Scherry, the Court instructs you you should consider the following: The personal injuries that she has sustained, and the nature, and extent and duration of those injuries, the effect that the injuries had on her overall physical and mental health, and her well-being, the mental anguish and nervous shock suffered in the past, and with reasonable probability may be expected to be experience^] in the future, the medical and other expenses that she has reasonably incurred, and the value of the loss of earnings that she incurred as a result of these injuries.”

Appellant complains that the instruction relating to "permanence” — the injuries Ms. Scherry "with reasonable probability may be expected to .. . experience in the future” — was improper because there was no evidence to support it. We disagree. There was testimony from Ms. Scherry, from her husband, and from two treating psychotherapists that some of her symptoms were still present at time of trial, and were of a chronic nature.

Judgment affirmed; appellant to pay the costs.

      . Joyner testified that he fired the second shot from a distance of about fifteen feet. Detective William Crieder, who investigated the incident, stated that, according to what Joyner told him at the time, Joyner "was 40 feet from the car” when he fired the second shot.

        . Appellant states in its brief that Ms. Scherry’s apartment was on the fifth floor. We find nothing in the transcript or exhibits either to confirm or contradict that statement, but accept it as a concession.

      . Appellant sets forth the Questions Presented in its appeal as follows:
      "I. Can A Maryland Merchant Be Held To Have Violated Any Duty In Tort To A Remote Bystander When Its Agent Is Justified In Using Deadly Force To Arrest An Armed, Fleeing Felon And Where There Is No Evidence Provided To Define The Standard Of Care For The Training [of the] Security Officer?
      II. Can A Jury Properly Decide Issues Of Privilege Or Justification Arising Out Of An Attempted Lawful Arrest Of An Armed Fleeing Felony [sic] By A Private Person Using Deadly Force Absent Instruction As To Those Issues?
      III. Can A Jury Award Personal Injury Damages For Prior Medical Costs And Future Pain And Suffering Based Upon Deficient Expert Testimony As To Causation And A Lack Of Evidence As To Any Probable Future Effects?”
      We find this phrasing of the issues to be somewhat slanted and misleading, and shall address the issues as rephrased.

      . The episode occurred at about 7:30 p.m. on November 11. Joyner stated that "it was dark that time of the year, but the parking lot was light.”

      . We need not consider whether appellant would have been entitled to an instruction along the line of § 137, as such an instruction was not requested. The court gave general instructions on the law of negligence, and specifically told the jury that it was to consider
      "whether his actions in shooting at the subject under the existing circumstances was reasonable; whether his conduct was such as to produce an unreasonable risk of harm to members of the public in the vicinity, and whether Mr. Joyner realized, or should have realized in the exercise of reasonable care that his action might be dangerous to persons on adjoining property.”
      That is the essence of § 137.


text:
    FRANCES E. MURRAY v. WILLARD LANE et al.
    [No. 1267,
    September Term, 1981.]

      Decided May 7, 1982.

    The cause was argued before Gilbert, C. J., and Moore and Wilner, JJ.

      John E. Kelly for appellant.

      Charles S. Keyes for appellees.
   Wilner, J.,

delivered the opinion of the Court.

A jury in the Circuit Court for Harford County decided that appellees, as owners of the Haven Lane Restaurant and Lounge, had failed to keep their premises in a reasonably safe condition, and thus were responsible for damages suffered by appellant when she fell through a second-story outdoor railing. That determination led to a verdict in favor of appellant in the amount of $30,000.

Appellant’s victory was short-lived. On May 26,1981, the court granted a motion for judgment non obstante verdicto (N.O.V.), and thereby erased the jury’s verdict and entered judgment in appellees’ favor. The correctness of that action is the issue presented to us in this appeal.

In reviewing the granting of a judgment N.O.V., the evidence and all reasonable inferences from it must be considered in the light most favorable to the party opposing the motion. As stated in Impala Platinum Limited v. Impala Sales (U.S.A.), Inc., 283 Md. 296,327 (1978), "[a] party is not entitled to judgment n.o.v. unless the facts and circumstances so considered are such as to permit of only one inference with regard to the issue presented,” that inference favoring the cause of the motion’s proponent. The evidence, viewed in that light, established the following.

At about 5:30 in the evening of June 10, 1976, appellant, a 20-year old single woman, received a call from one David Holtz, who asked if she could meet him later that evening. Appellant had met Mr. Holtz through some friends a few days earlier, and had gone on a dinner date with him the previous evening. Mr. Holtz told her that he had to work late, and that he would meet her at the Haven Lane Restaurant and Lounge, which was where he was residing. Haven Lane, though primarily a lounge, had rooms on the second floor which were rented on a weekly basis. Holtz was with a group of Philadelphia utility company employees temporarily working in the area, which accounted for his residence in such quarters. Appellant was told to meet Holtz in the bar, but, if he was not there when she arrived, she was to walk up to his room.

Appellant arrived at the lounge about midnight, having spent the earlier evening hours with some girlfriends. Holtz was not there, so, after a few minutes and in accordance with his instructions, she left the lounge and ascended an outdoor staircase leading to the second floor. That staircase was the only means of access to the second floor rooms. At the top of the stairs was a platform which led to a door. Appellant opened the door, entered a hallway, and called out Holtz’s name. When no one responded, she went back outside on to the platform. While waiting there, a man, whom she did not recognize, called to her from below. The area was unlit; appellant was alone, and she became "nervous.” She happened to lean on the wood railing that surrounded the platform and it immediately gave way, causing her to fall seventeen feet to the ground. She sustained serious, painful, and permanent injuries from the fall.

Although appellees denied that the railing was defective or that they had knowledge of any defect in it, there was evidence sufficient to show that both were the case. The jury could properly find that the wood railing was rotten and weak, that it had been that way for quite some time, and that appellees knew or reasonably should have known of its condition.

Appellee Willard Lane testified that the second floor rooms were rented on a weekly basis and that he had verbally instructed his tenants, including Holtz, that "no women would be allowed upstairs as it was not good publicity and it could cause trouble.” Neither Lane nor anyone else explained whether that meant no women were to be admitted in the rooms upstairs or no women were to be allowed even on the platform outside the entranceway to the rooms. No signs were posted anywhere in the vicinity warning that women were not allowed "upstairs.” The policy, such as it was, was a verbal one communicated by Lane directly to his tenants, and apparently to no one else. Appellant was not aware of any such policy. She went upstairs to meet Holtz because that is what he asked her to do.

The court concluded, both in its instructions to the jury and in its granting of the judgment N.O.V., that appellant’s right to recover was largely dependent upon her "status” vis a vis appellees. In that regard, Maryland continues to follow the rule explicated in Bramble v. Thompson, 264 Md. 518 (1972), which recognizes a lesser duty owed by property owners to persons regarded as mere "licensees” or trespassers than is owed to persons deemed to be "invitees.” See Sherman v. Suburban Trust Co., 282 Md. 238 (1978); Murphy v. Baltimore Gas and Electric Company, 290 Md. 186 (1981).

An "invitee” is a person "invited or permitted to enter or remain on another’s property for purposes connected with or related to the owner’s business,” and, as to him, the owner "must use reasonable and ordinary care to keep his premises safe ... and to protect him from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover.” Sherman, supra, at 242. A licensee is a person "who enters the property with the knowledge and consent of the owner but for his own purposes or interest,” and, as to him, the owner owes no duty "except to abstain from wilful or wanton misconduct or entrapment.” Id., 242. A trespasser, of course, is one who enters or remains on another’s property without authority or consent. Under current law, he is in the same status as the "licensee”; the property owner owes him no duty except to abstain from wilful or wanton misconduct or entrapment. See Murphy, supra; also Macke Laundry Service Co. of Maryland v. Weber, 267 Md. 426 (1972).

As we have already observed, the evidence in this case sufficed to show that the wood railing on the second floor platform was rotten and thus defective and that appellees knew or should have known of its defective condition. Thus, if appellant was an "invitee,” rather than a "licensee” or trespasser, there can be little doubt that the jury’s verdict was a proper one and that the judgment N.O.V. was inappropriate. See, in general, Annot., Landlord’s Liability for Injury or Death Due to Defects in Exterior Stairs, Passageways, Areas, or Structures Used in Common by Tenants, 26 A.L.R.2d 468 (1952). In granting the judgment N.O.V., the court acted primarily on the basis that appellant was not an "invitee,” but only a "licensee.” This, in turn, was based entirely on Mr. Lane’s testimony with respect to his "no women upstairs” policy. The court reasoned that, in light of that policy, which had been communicated to Holtz, Holtz "had no authority to invite female guests to his room,” and thus appellant could not legally be regarded as an invitee either of Holtz or of appellees.

We disagree.

It is important, in the first instance, to note that appellant’s "status” as invitee, licensee, or trespasser does not necessarily depend upon any direct relationship with appellees. Her invitation to use the stairway and platform came from appellees’ tenant, Holtz; and, if appellant was an invitee or licensee of Holtz, she is to be regarded as the invitee of appellees as well, even if they were unaware of her presence. The law in that regard is well stated in Restatement of Torts 2d, § 360 (1965), which the Court of Appeals adopted in Sezzin v. Stark, 187 Md. 241 (1946); see also Ross v. Belzer, 199 Md. 187 (1952):

"A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.” (Emphasis supplied.)

See also Landay v. Cohn, 220 Md. 24, 27 (1959):

"Where a landlord leases separate portions of a property to different tenants and reserves under his control halls, stairways or other parts of the property for use in common by all the tenants, he must use ordinary care and diligence to maintain the retained parts in reasonably safe condition.... The duty stems from the responsibility engendered in the landlord by his having extended an invitation, express or implied, to use the portions of the property retained by him.... Such an invitation extended to a tenant includes the members of his family, his guests, his invitees and others on the land in the right of the tenant. ” (Citations omitted; emphasis supplied.);

and Macke Laundry Service Co. of Maryland v. Weber, supra, 267 Md. 426 at 429-30.

Several of the explanatory comments to Restatement § 360 are of particular relevance here. Comment c expresses the point noted above — that where the person enters the premises at the behest or with the consent of the lessee, his privilege

"is not based, as is that of the lessor’s own invitee or licensee, upon the consent given upon the occasion of the particular visit, but upon the fact that he is entitled to enter by the right of the lessee, who is entitled under his lease to use the part of the land within the control of the lessor not only for himself, but also for the purpose of receiving any persons whom he chooses to admit.”

Thus, as further explained in comment f,

"[i]f the terms of the lease entitle the lessee to permit third persons to come upon the part of the land retained within the lessor’s control, it is immaterial whether they come as invitees of the lessee or as his licensees. It is the lessor’s business, as such, to afford his lessee facilities for receiving all persons whom he chooses to admit for any legitimate purpose. Therefore, a person who, as between himself and the lessee, is a licensee enters the land on a matter directly connected with the business of the lessor.”

Comment e recognizes that a landlord may, in his lease, restrict the tenant’s authority to invite or permit third persons to use those common areas of the premises retained under the landlord’s control, and thus limit his liability for accidents occurring in those areas. It states, in relevant part:

"[T]he lessor is subject to liability to such persons only as the lessee, under the expressed or implied conditions and terms of the lease, is entitled to admit to such part of the land. Stairways, halls, elevators, and other common approaches to an apartment or office, are provided not only for the use of the lessee but also for the use of such persons as the lessee chooses to receive in his apartment or office. On the other hand, the lessee may be entitled to the use of a yard in common with other lessees for a variety of different purposes. If these purposes do not include the reception of licensees therein, a third person entering the yard at the invitation of the lessee is not lawfully there and is not within the protection of the rule stated in this Section.”

Comment e is obviously restrictive in scope. It seeks to distinguish between common areas providing access to the rented apartments or offices, which invitees or licensees of the tenants are expected and are likely to use, and those special areas set aside for tenants alone or otherwise having restricted access from which others may properly and practicably be excluded. Cf. Levine v. Miller, 218 Md. 74 (1958), and compare Black v. Nelson, 532 P.2d 212 (Utah 1975).

Even if the theory underlying comment e were construed to permit the landlord to exclude a particular person or class of persons from general access areas rather than merely to exclude non-tenants from a clearly defined and specially restricted area, as comment g makes clear, "[sjuch a clause does not, however, affect the lessor’s liability to third persons, such as invitees or guests of the lessee, who are not parties to the contract nor in privity with it.” See also Ralph Pritts & Sons, Inc. v. Butler, 43 Md.App. 192, 197 (1979).

We are not concerned here with the validity of appellees’ "no women upstairs” policy. Presumably, they could have evicted Holtz for its violation. But absent some evidence (of which there was none) that appellant knew or reasonably should have known of that policy, and thus was aware that she was not authorized to go up to the second floor, she cannot be regarded as anything but what she in fact was — a social guest of Holtz and thereby a business invitee of appellees.

Holtz’s lack of authority to extend such an invitation can in no way be binding upon appellant if she was not aware of it. The rule laid down in Banks v. Montgomery Ward & Co., Inc., 212 Md. 31, 43 (1957), which we quoted and applied in Ralph Pritts & Sons Inc., supra, is clearly applicable here. As "an employer cannot escape liability for the acts of his agent by placing limitations on his authority not known to others dealing with him nor properly inferable from the nature of his employment” (Banks, supra, at 43), so a landlord cannot escape liability to invitees or licensees of his tenants by placing limitations on the tenant’s authority to permit such persons onto the property that are not either known to such persons or properly inferable from the circumstances. Cf. Butler v. Watson, 159 N.W. 507 (Mich. 1916); Valentin v. D. G. Swanson & Company, 167 N.E.2d 14 (Ill.App. 1960); Ragland v. Rooker, 183 S.E.2d 579 (Ga.App. 1971), overruled on other grounds Country Club Apartments, Inc. v. Scott, 271 S.E.2d 841 (Ga. 1980); Vernon Fire & Casualty Insurance Co. v. Graham, 336 N.E.2d 829 (Ind.App. 1975); Annot., Effect, On Nonsigner, Of Provision Of Lease Exempting Landlord From Liability On Account Of Condi tion Of Property, 12 A.L.R.3d 958 (1967). Any other rule would be unwise and unfair.

The court erred in finding appellant to be anything but a business invitee of appellees and, in consequence thereof, erred further in entering the judgment N.O.V.

Judgment reversed; case remanded to Circuit Court for Harford County with instructions to enter judgment for appellant based on jury’s verdict; appellees to pay the costs.

      . In its Memorandum Opinion issued with respect to the judgment N.O.V., the court stated that "there was no evidence that the landowners [appellees] were aware that the railing on the landing was defective, and therefore there was no reason for the landowners to post this property or to call attention to the condition of the railing.” That statement is not entirely correct. Although Mr. Lane denied knowledge of the defect, there was plenty of evidence from which a contrary inference could reasonably be drawn.

      . In light of that conclusion, which is dispositive of the appeal, we need not address the additional questions of (1) whether the court properly found that there was, in fact, a "no women upstairs” policy — whether the evidence in that regard was "such as to permit of only one inference with regard to the issue presented”; (2) whether, since appellant never entered Holtz’s room and was never in his company upstairs, the court properly found that she had violated such a policy; or (3) whether the distinctions currently drawn between the duty owed to invitees and that owed to licensees should be abolished.


author: Bishop, J.,

text:
    JOSEPH ANTHONY RISPOLI, Personal Representative of the Estate of Anthony Fred Rispoli v. JOEL JACKSON et al.
    [No. 1190,
    September Term, 1981.]

      Decided May 21, 1982.

      The cause was argued before Liss and Bishop, JJ., and David William Simpson, Associate Judge of the District Court of Maryland for District 2, specially assigned.

      Thomas N. Biddison, Jr., with whom were Gallagher, Evelius & Jones on the brief, for appellant.

      Thomas C. Gentner, with whom was Samuel S. Smalkin on the brief, for appellees.
   Bishop, J.,

delivered the opinion of the Court.

After pre-hearing conference upon appeal from the Circuit Court for Baltimore County, the parties agreed to the following statement of facts:

"This case involves the suit of the parents and personal representative of the deceased minor. On January 11, 1980, the minor, Anthony Rispoli, was driving south on Interstate 95 in a van at about 5:25 P.M., in the rain, in the right-hand or slow lane just past the border between Harford and Baltimore Counties. His van came into contact with a tractor-trailer operated by the Defendant Joel Jackson and owned by the Defendant L. G. DeWitt, Inc., a North Carolina corporation, which had been southbound in the middle lane. In the course of the accident the tractor-trailer was caused to turn over onto the van so that, when the vehicles came to rest, the driver’s side of the roof of the van was crushed down. Despite efforts of passersby the boy, though conscious for at least part of the time, was not able to be removed from the van, and he burned to death in a fire which gradually engulfed the van after the accident.
There were three relevant counts in the declaration, the first being the statutory survivorship negligence action of the parents for wrongful death, the third being the personal representative’s statutory negligence claim for funeral expenses and conscious pain and suffering, and the fourth count being a claim against L. D. DeWitt, Inc., for negligent entrustment brought by the personal representative seeking punitive damages above and beyond the compensatory damages sought under the negligence counts. During the course of trial there was an admission of agency by the corporate defendant.
The central factual issue was whether the tractor-trailer came into the van’s lane precipitating the accident, or whether it was the van coming into the tractor-trailer’s lane which caused the occurrence. Eyewitness and accident reconstruction testimony was offered on both sides of this issue. There was no evidence that the Defendant Jackson was exceeding the 55-mile per hour speed limit or drinking alcoholic beverages at the time of the happening of the accident. The jury found for the Plaintiffs on the negligence counts.”

Count IV of the Declaration which alleged negligent entrustment and claimed punitive as well as compensatory damages is the only count at issue. Pursuant to Count IV the appellees filed a motion in limine to prevent the appellant from making any reference to the driving record of the defendant driver, Jackson. Although admission of the driving record was crucial to the resolution of the negligent entrustment issue, the trial court granted the motion with the provision that admission of the evidence might be considered later in the trial. Toward the end of the trial, the plaintiff, out of the presence of the jury, proffered to the court the evidence to support the negligent entrustment count. The trial court ruled against the admission of the evidence. The appellant states at pages 3 and 4 of his brief that:

"The only issue on appeal is whether the trial court erred in refusing to allow into evidence Plaintiffs exhibits in the context of its proffer, the ultimate issue being whether or not this evidence would create a prima facie case for punitive damages under the negligent entrustment cause of action.
A stipulation has been entered into limiting the record extract to those pleadings, testimony and exhibits which bear on the one issue in this case.”

In ruling against the admission of the proffered records, the trial court stated:

"And in the Curley and [Curley v. General Valet Service, Inc., 270 Md. 248, 311 A.2d 231 (1973)] we recognize that the entruster only is responsible for subsequent negligent acts of the entrustee if a reasonable man could foresee the negligent acts, and the foreseeability must be from past conduct. It must be conduct so repetitive and recurrent it makes it foreseeable. And I do not see the conduct as repetitive in this case. ... The sole purpose of your [appellant’s] interpreting this this way is to get to the jury on the basis of punitive damages, and to me there is not sufficient evidence to take this case to the jury on punitive damages.”

On appeal the appellant’s sole question is,

"Does Maryland law allow for the recovery of punitive damages in a negligent entrustment claim based primarily on the driving record of the entrustee, and, if so, is the driving record of the entrustee in the case at issue in the context of the Motor Carrier Safety Act sufficient to create an issue to be submitted to the jury on punitive damages? ”

In his brief the appellant paraphrases his question for appellate review by stating that,

"The only issue on appeal is whether the trial court erred in refusing to allow into evidence plaintiffs exhibits in the context of its proffer, the ultimate issue being whether or not this evidence would create a prima facie case for punitive damages under the negligent entrustment cause of action.”

The appellees contend that this Court should neither answer the appellant’s question nor address the merits of the appellant’s "ultimate issue.” The appellees, in their motion to dismiss the appeal, contend that the appeal is not allowed by law and therefore that the relief requested by the appellant cannot be provided by this Court. Because we agree with the appellees, we shall not address the merits of the appellant’s appeal, but shall grant the appellees’ motion to dismiss.

Motion to Dismiss

I. Waiver of Appeal Rights

Following trial the appellant signed a "partial release” and an order of satisfaction for all his claims except those under the negligent entrustment count. He subsequently accepted and endorsed a check from the appellees’ insurer. On the face of the check was printed "The acceptance and endorsement of this draft constituted a full and final settlement of all liability and claims ... arising from the loss or accident which occurred on or about the 11th day of Jan. 1980.”

The appellees contend that the appellant’s acceptance of the benefit of any portion of the trial court’s judgment constituted a waiver of any alleged errors below, and estops the appellant from challenging the judgment on appeal. To support this contention, the appellees quote the Court of Appeals holding in Dubin v. Mobile Land Corporation, 250 Md. 349, 353, 243 A.2d 585 (1968):

"It is well settled in Maryland, and the law generally is to the effect, that if a party, knowing the facts, voluntarily accepts the benefits accruing to him under a judgment, order or decree, such acceptance operates as a waiver of any errors in that judgment, order or decree and estops that party from maintaining an appeal therefrom. * * * If, however, the portion of the decree adjudicates a separate and distinct claim which benefits the appellants, unrelated to or independent of the unfavorable portion of the decree, then the acceptance of the benefit under the unrelated or independent portion of the decree will not result in a waiver of the right to appeal from the other unfavorable independent portion of the decree. * * *
"In our opinion, the decree * * * is an adjudication of the entire dispute * * * The provisions of the one decree were dependent upon each other and no provision of the decree adjudicated any separate distinct or independent claim. The knowledgeable acceptance, therefore, of the benefit of any portion of the decree waived any alleged error in the entire decree and estopped the accepting party from challenging the decree on appeal.”

Although the appellant also cites Dubin, supra in his reply brief, and asserts that his "punitive damages claim is separate and distinct from the judgment as to damages on the negligence count,” the appellees aver that the negligence count and the negligent entrustment count are not separate and distinct. While the counts may represent different causes of action, they are not separate and distinct because they involve precisely the same accident, the same injuries and the same principal. We accept the appellees’ characterization of the two counts as not separate and distinct, and, therefore, must hold that the appellant’s inconsistent action of accepting the rewards from his negligence action precludes him from obtaining appellate review of his similar claim of negligent entrustment. Franzen v. Dubinok, 290 Md. 65, 68, 427 A.2d 1002 (1981); Kicherer v. Kicherer, 285 Md. 114, 117, 400 A.2d 1097 (1979). When the appellant in this case accepted the benefits of the trial court’s judgment, the litigation was finally concluded, and he cannot obtain appellate review of the court’s rulings as to a single count of that litigation. Dubin, supra, at 349; Suburban Dev. Corp. v. Perryman, 281 Md. 168, 171-172, 377 A.2d 1164 (1977); Rocks v. Brosius, 241 Md. 612, 217 A.2d 531 (1966).

II. Punitive Damages

In his order of appeal the appellant states that he only appeals from the rulings of the trial court on count four of his declaration. In count four the appellant sought compensatory and punitive damages, alleging negligent entrustment. The appellant has not appealed from the judgment of the trial court whereby he was awarded compensatory damages on grounds of the appellees’ negligence.

From this Court the appellant seeks very specific relief: he requests in his brief that the case be remanded for trial on the negligent entrustment issue so that at that new trial the issue of negligent entrustment may be submitted to the jury on punitive damages. In his reply brief, the appellant clarifies his request for this specific remedy by stating that at trial he "pressed the negligent entrustment count only as to punitive damages. That remains the only claim which is being pressed in this appellate proceeding.” The appellant does not submit that the jury failed to compensate him adequately for his loss.

Assuming, arguendo, that the appellant is correct in contending that the trial court erred in not admitting certain proffered records into evidence, can this Court provide the appellant with the remedy which he requests? Based on our examination of the pertinent law we hold that this Court cannot order a new trial wherein the appellant would seek only punitive damages.

In Montgomery Ward & Company v. Keulemans, 275 Md. 441, 340 A.2d 705 (1975), the Court of Appeals modified the judgment of a lower court which had awarded to a party punitive damages on a malicious prosecution charge, but had not awarded compensatory damages on that count. Citing several cases, including Shell Oil Co. v. Parker, 265 Md. 631, 644, 291 A.2d 64 (1972), Judge Singley found that, "The rule of our cases is clear that there must be an award of compensatory damages, at least in nominal amount, for an award of punitive damages to be allowed to stand.” 275 Md. at 446.

The Court of Appeals in Montgomery Ward, supra, clearly required that compensatory damages be awarded on the same count as punitive damages in order to sustain the punitive damages, but the appellant submits that his receipt of compensatory damages against the principal on his negligence count is "tantamount to such an award on the negligent entrustment count.” This proposition lacks both reason and authority; likewise, we refuse to accept the appellant’s characterization of the holding in Montgomery Ward as "a highly technical application of the law.”

Had this been a general appeal from the verdict of the jury it is possible that this Court could have considered the application of the same solution applied by the Court of Appeals in Montgomery Ward. We are limited in our review to the issue raised by the appellant and that is a very narrow one indeed. We do not have before us the case as it came from the jury as was the situation in Montgomery Ward.

The appellant’s bold demand that Montgomery Ward "should not be the Law” and that this intermediate appellate Court should find Montgomery Ward’s requirement "inherently unreasonable” cannot be fulfilled by this Court, but must be addressed to the Court of Appeals. In similar cases, however, the Court of Appeals has prohibited parties from requesting only punitive damages. Schloss v. Silverman, 172 Md. 632, 642-643, 192 A. 343 (1937). Until the law is changed we must find that "punitive damages are clearly dependent and can hardly be decided in a vacuum.” Kneas v. Hecht Co., 257 Md, 121, 125, 262 A.2d 518, 521 (1970); Sims v. Ryland Corp., 37 Md. App. 470, 378 A.2d 1 (1977).

Appeal dismissed; costs to be paid by appellant.