Daily Development for Tuesday, September 20, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDOWNER LIABILITY; SOVEREIGN IMMUNITY; PUBLIC WAYS: A city is responsible to keep safe not only public ways but also areas immediately around those ways, including areas that are part of a public park,  and will be regarded as engaged in a proprietary, rather than governmental, function, in doing so.  Therefore, sovereign immunity will not apply, even though such immunity normally does apply to failure to maintain properly a park.

Whalen v. Mayor of City Council of Baltimore, No. 99862, 2005 WL 2242172 (Md. App. 9/16/05)

The opinion starts with the statement: “This appeal gives new meaning to the phrase: ‘an accident waiting to happen.’”  Needless to say, it was all downhill from there from the standpoint of municipal liability. 

Here’s the setup - a hole nineteen inches square and nearly four feet deep is located in a grass area (mowed) a few feet from a streetside sidewalk and adjacent to a fence in a city park. The hole is the former site of a foundation for an electrical transformer.  It had a cover, but the lip for the cover had rusted away and the cover sat in the bottom of the hole.  From appearances, the hole likely had been that way for several months.  Across the street from the park is an office of the National Federation of the Blind, and people in the National Federation routinely tell blind visitors they can use the park to let their guide dogs relieve themselves.

Plaintiff, who is blind, took her guide dog to the area and, letting him roam a bit in the grass, fell into the hole and permanently disabled herself. 

The trial court granted summary judgment to the City on the basis of the City’s sovereign immunity. 

On appeal: Held: Reversed. 

Sovereign immunity in Maryland seems to be a creature of common law (the case cites no sovereign immunity statute.)  Although the City does enjoy sovereign immunity for its governmental functions, it does not enjoy such immunity for proprietary actions, unlike State government.  The maintenance of parkland is viewed as governmental in character.  Apparently this was the basis for the trial court’s ruling.

But the intermediate appeals court ruled that the area where the hole was located was sufficiently close to a public street and sidewalk to be viewed as within the proprietary liability of the municipality.  In a precedent case, a court had found a city liable for injuries occurring on a walkway in the public park that ran between two streets.  Plaintiff was injured while crossing from one street to another.  In a second precedent case, Plaintiff’s decedent perished when city employees in a public square negligently let a rotten tree limb fall on her while she was walking on a public sidewalk adjacent to the square.  Again, sovereign immunity did not apply.

The critical analysis in the case was the conclusion that once a particular site was shown to be potentially dangerous to persons making use of the public road or sidewalk, the City had a duty to maintain it in safe condition for anyone who went upon it, whether or not they were going on the area to make use of park functions, as arguably the plaintiff was in this case, or going on it in connection with use of the nearby public right of way. 

Once this conclusion was reached, of course, it was a simple matter to conclude that the question of sovereign immunity could not be decided against plaintiff on summary judgment.  The court remanded to case for a factual determination below as to whether the area where the hole was located was sufficiently closely related to the adjacent sidewalk to justify the conclusion that it was effectively part of the street.  Although the trial court conceivable could say no, the editor virtues a guess that it could do so only at its peril to this court. 

Comment:   This is the first sovereign immunity case DIRT has reported.  The editor isn’t aware how much Maryland law in this area has in common with other states, but he knows that the proprietary/governmental distinction does arise.  Of course, from the beginning, this case was result oriented, but as precedent it does present some issues for those representing local governments to take into account.  The notion that the park adjacent to the roadway is part of the roadway for liability purposes might lead to advise to install barriers dividing the two uses.  Of course, the barriers themselves could become the source of liability.   Oh, well.  At least insurance is cheap.  Ooops!!

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