Barbre v. Pope, 402 Md. 157 (Md. 2007)

BATTAGLIA, J.

This case arises under the one year notice provision of the Maryland Tort Claims Act, Section 12-106(b)(1) of the State Government Article, Maryland Code (1984, 1995 Repl.Vol.).1 We have been asked to determine whether the year notice provision is satisfied when a plaintiff timely delivers notice to a County Commissioner. We also have been asked to determine whether the Maryland Tort Claims Act (“MTCA”) notice provision applies to claims against an individual otherwise covered under the Act’s strictures, if the civil complaint, thereafter filed, alleges malice or gross negligence.

Two petitions for certiorari, both seeking review of the judgment of the Court of Special Appeals, were filed in this case. The first, filed by Deputy Sheriff Mark Barbre, who was one of the defendants below, posed the following questions:

purposes of the Act by depriving the State of the opportunity for a relatively contemporaneous investigation?

Two questions were posed by Andrew Pope, III, the plaintiff below:

We hold that Pope’s notice delivered to the Queen Anne’s County Commissioner did not expressly, nor substantially, comply with the MTCA. We conclude, however, that the allegations of Pope’s complaints were sufficient to allege malice or gross negligence to preclude summary judgment under the MTCA on behalf of Barbre.

I. Introduction

As alleged in the various complaints filed in the instant matter, on March 17, 2004, at approximately 12:30 p.m., Deputy Sheriff Mark Barbre of the Queen Anne’s County

Sheriffs Office attempted to stop a truck driven by Andrew Pope, III. When Pope did not stop, Barbre followed him to Pope’s home, whereupon Pope got out of his vehicle and raised his hands in surrender. At that point, Barbre approached Pope with his gun drawn and fired a single shot, striking Pope in the neck.

Five months later, on August 12, 2004, Pope’s attorney sent Benjamin F. Cassell, Jr., a Queen Anne’s County Commissioner, a certified letter, which was to “constitute the requisite 180-day notice under the Local Government Tort Claims Act.”3 The letter, which was copied to the Queen Anne’s County Attorney, advised that it “will be followed by a law suit against Queen Anne’s County alleging that Deputy Barbre acted with malice when he shot my client.”

Pope did file a lawsuit on April 19, 2005 in the Circuit Court for Queen Anne’s County, naming Barbre, both in his official capacity and in his individual capacity,4 and Queen Anne’s County as defendants. In the “Facts” portion of the Complaint, Pope stated in relevant part:

13. As Plaintiff Pope continued driving his truck vehicle [sic] home, Defendant Sheriff Barbre followed Plaintiff Pope’s vehicle into the driveway of Plaintiffs home. When Plaintiff Pope got out of the vehicle, raising his hands in surrender, Defendant Sheriffs Deputy Barbre approached him with his gun drawn and shot Plaintiff Pope in the neck.

In Count I, Pope alleged violations of Articles 24 and 26 of the Maryland Declaration of Rights by Barbre:

lished constitutional rights to be free from such deprivations.

In Count II, Pope also alleged battery with respect to Barbre. Count III alleged violations of Articles 24 and 26 of the Maryland Declaration of Rights by Queen Anne’s County.

Barbre and the County, collectively, filed a motion to dismiss, or in the alternative, for summary judgment. In essence, the County argued that Barbre was covered by the immunity and non-liability provisions of the MTCA rather than the Local Government Tort Claims Act, such that the County should not have been a defendant. Barbre contended that because he was covered by the immunity and non-liability provisions of the MTCA, Pope had to provide written notice under the Act to the State Treasurer or a designee of the State Treasurer within one year of the injury, and because he failed to do so, Pope could not pursue a MTCA claim against him.5

Pope filed an opposition to the Defendants’ motion, arguing that even assuming that Barbre were considered “state personnel” and therefore covered under the immunity and non-liability provisions of the MTCA, “the notice provisions of the MTCA are not a condition precedent to bringing an action against an individual State employee.” Even if he were required to provide notice under the MTCA in order to recover against the State, Pope also contended that he complied with

the notice provision because the State had had notice of the incident as a result of an investigation undertaken by the State Police and the State’s Attorney for Queen Anne’s County. Additionally, Pope argued that the notice to a County Commissioner complied with the MTCA because the County was providing defense counsel for Pope under the Local Government Insurance Trust,6 and because the County would be ultimately responsible for the payment of any claim pursuant to Section 9-108 of the State Finance and Procurement Article.7

Pope also filed his First Amended Complaint, omitting the County as a defendant and only pursing his claims against Barbre, both in his official capacity and in his individual capacity, stating the same factual averments. In Count I, Pope again alleged violations of Articles 24 and 26 of the Maryland Declaration of Rights by Barbre; and in Count II, Pope again alleged battery with respect to Barbre.

Barbre then moved to dismiss the First Amended Complaint, or alternatively, for summary judgment, arguing that because Pope failed to comply with the MTCA notice statute,

the complaint should be dismissed. Subsequently, Pope amended his complaint for a second time, asserting claims not only against Barbre, both in his official capacity and in his individual capacity, but against the County and the State. In Counts I, IV and V, Pope added that Barbre, Queen Anne’s County, and the State violated Article 19 of the Maryland Declaration of Rights, in addition to Articles 24 and 26. In Counts II and III, Pope alleged battery with respect to Barbre.

Barbre, the County, and the State moved to strike the Second Amended Complaint. Barbre argued that the amended pleading should be stricken because of the prejudice he experienced because of Pope’s “dilatory tactics” in filing another amended complaint “just days away” from the motions hearing regarding the First Amended Complaint. Barbre also asserted, as did the State, that because Pope failed to notify the State Treasurer of his claim within one year of the date of injury to come within the MTCA, Pope’s Second Amended Complaint should be stricken.

The circuit court resolved all outstanding motions by granting the motion to strike the Second Amended Complaint, thereby removing the State and the County as defendants, and by granting summary judgment in favor of Barbre as to all claims asserted in the First Amended Complaint. Pope filed a motion to alter or amend the judgments, essentially asking the court to reverse itself, which it refused to do.

Thereafter, Pope noted an appeal to the Court of Special Appeals, arguing that the circuit court had erred in granting the motion for summary judgment. Pope contended that he expressly complied with the MTCA notice statute when he delivered notice to a Queen Anne’s County Commissioner. Pope also suggested that he substantially complied with the MTCA because he supplemented his notice to the State Treasurer on May 13, 2005, and thus the State was not prejudiced by the delay because the State had had notice of the incident as a result of an investigation undertaken by the State Police and the State’s Attorney for Queen Anne’s County. Addition

ally, Pope contended that the purpose of the notice statute was satisfied because the County was the real party in interest because it was providing defense counsel for Pope under the Local Government Insurance Trust and would be ultimately responsible for the payment of any claim pursuant to Section 9-108 of the State Finance and Procurement Article. Additionally, Pope asserted that the circuit court erred in striking his Second Amended Complaint because neither Barbre, nor the State, nor the County demonstrated that they had suffered any prejudice.

The intermediate appellate court affirmed the judgments entered in favor of the State and Queen Anne’s County and vacated the judgment entered in favor of Barbre. Pope v. Barbre, 172 Md.App. 391, 915 A.2d 448 (2007). The court rejected Pope’s argument that because he notified a Queen Anne’s County Commissioner, he complied with the MTCA notice requirement:

Id. at 401-02, 915 A.2d at 454-55 (alteration in opinion). The court also rejected Pope’s contention that he substantially complied with the MTCA notice requirement, even though Queen Anne’s County was ultimately responsible for paying any judgment entered against the State in the case:

Id. at 406-08, 915 A.2d at 457-58.

Additionally, the court concluded that the circuit court did not err in striking Pope’s Second Amended Complaint, there

by removing the State and the County from the case. As to the claims against the State and the County, the court stated that “Pope concede[d] that he ha[d] no claim against the County,” and “[a]ny error in striking that complaint [with regard to the claims against the State] was harmless given that lack of compliance with the notice requirements of the MTCA was apparent on the face of the complaint.” Id. at 410, 915 A.2d at 460. For the claims asserted against Barbre, the court noted that they were “substantially similar to those Pope asserted against Barbre in his first amended complaint,” and thus, he was not prejudiced by the decision to strike the Second Amended Complaint. Id. at 410-11, 915 A.2d at 460.

The intermediate appellate court, in Pope’s favor, however, determined that the MTCA statute did not apply to the claims asserted against Barbre individually because Pope had alleged that Barbre acted with “malice or gross negligence,” and in doing so, permitted the claims against Barbre to proceed:

Id. at 414, 172 Md.App. 415, 915 A.2d 462.

Barbre and Pope both filed petitions for writs of certiorari, which we granted. Barbre v. Pope, 399 Md. 32, 922 A.2d 573 (2007). Barbre challenges the Court of Special Appeals’ holding that Pope could pursue his claims against him individually

without complying with the MTCA notice statute; Pope challenges the Court of Special Appeals’ decisions that he did not comply with the MTCA notice statute in order to proceed against the State and that the circuit court correctly struck his Second Amended Complaint.

We shall hold that Pope’s notice to a Queen Anne’s County Commissioner did not expressly or substantially comply with the MTCA notice statute. We also hold, however, that the allegations of Pope’s complaints were sufficient to allege malice or gross negligence to preclude summary judgment under the MTCA on behalf of Barbre individually.

II. Discussion

The entry of summary judgment is governed by Maryland Rule 2-501(e), which provides in pertinent part:

We explicated the standard of review for the entry of summary judgment in Serio v. Baltimore County, 384 Md. 373, 863 A.2d 952 (2004), stating:

a fact the resolution of which will somehow affect the outcome of the case.’ ” Todd, 373 Md. at 155, 816 A.2d at 933 (quoting Matthews v. Howell, 359 Md. 152, 161, 753 A.2d 69, 73 (2000)). The facts properly before the court as well as any reasonable inferences that may be drawn from them must be construed in the light most favorable to the non-moving party. O’Connor, 382 Md. at 111, 854 A.2d at 1196; Todd, 373 Md. at 155, 816 A.2d at 933; Okwa v. Harper, 360 Md. 161, 178, 757 A.2d 118, 127 (2000). If the record reveals that a material fact is in dispute, summary judgment is not appropriate. O’Connor, 382 Md. at 111, 854 A.2d at 1196; Todd, 373 Md. at 155, 816 A.2d at 933; Okwa, 360 Md. at 178, 757 A.2d at 127. If no material facts are disputed, however, then we must determine whether the Circuit Court correctly granted summary judgment as a matter of law. See Md. Rule 2-501 (e); O’Connor, 382 Md. at 111, 854 A.2d at 1197; Todd, 373 Md. at 155, 816 A.2d at 933; Beyer, 369 Md. at 360, 800 A.2d at 721; Schmerling, 368 Md. at 443, 795 A.2d at 720.

Serio, 384 Md. at 388-89, 863 A.2d at 961.

In statutory interpretation, our primary goal is always “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules.” Dep’t of Health & Mental Hygiene v. Kelly, 397 Md. 399, 419-20, 918 A.2d 470, 482 (2007); Gen. Motors Corp. v. Seay, 388 Md. 341, 352, 879 A.2d 1049, 1055 (2005). We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that “ ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.’ ” Kelly, 397 Md. at 420, 918 A.2d at 482; Kane v. Bd. of Appeals of Prince George’s County, 390 Md. 145, 167, 887 A.2d 1060, 1073 (2005). Further, whenever possible, an interpretation should be given to the statutory provisions which does not lead to absurd consequences. See Roskelly v. Lamone, 396 Md. 27, 53, 912 A.2d 658, 673 (2006); So. Easton Neighborhood Assoc. v. Town of Easton, 387 Md. 468, 495, 876 A.2d 58, 74 (2005);

Smack v. Dep’t of Health & Mental Hygiene, 378 Md. 298, 305, 835 A.2d 1175, 1179 (2003) (“[T]he statute must be given a reasonable interpretation, ‘not one that is illogical or incompatible with common sense.’ ”). If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends. Kelly, 397 Md. at 419, 918 A.2d at 482; City of Frederick v. Pickett, 392 Md. 411, 427, 897 A.2d 228, 237 (2006); Davis v. Slater, 383 Md. 599, 604-05, 861 A.2d 78, 81 (2004). If however, the language is subject to more than one interpretation, it is ambiguous, and we resolve that ambiguity by looking to the statute’s legislative history, case law, and statutory purpose. Kelly, 397 Md. at 419-20, 918 A.2d at 482; Mayor & Town Council of Oakland v. Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006); Canaj, Inc. v. Baker & Division Phase III, 391 Md. 374, 403, 893 A.2d 1067, 1084 (2006).

A. The Maryland Tort Claims Act—Barbre and the State

Under the MTCA, Barbre, as a Deputy Sheriff of Queen Anne’s County, is classified as “state personnel.” Section 12-101(a)(6) of the MTCA specifically provides that

Maryland Code (1984, 1995 Repl.Vol.), Section 12-101(a)(6) of the State Government Article.9 The MTCA was enacted in 1981 as a waiver of the State’s sovereign immunity for tortious acts or omissions committed within the scope of the public duties of “state personnel,” and committed without malice or gross negligence. See Kee v. State Highway Admin., 313 Md. 445, 448, 545 A.2d 1312, 1314 (1988). Under the immunity and non-liability provisions of the MTCA, “state personnel” are immune from suit and from liability in tort for acts or omissions committed within the scope of their public duties and

without malice or gross negligence, and when the State waives its immunity pursuant to the MTCA. Section 12-105 of the State Government Article, Maryland Code (1984, 1995 Repl. Vol., 1999 Supp.),10 governing the liability of state personnel, states in relevant part:

Section 5-522(b) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2002 Repl.Vol.),11 provides in part:

Section 12-104(a)-(b) of the State Government Article, Maryland Code (1984, 1995 Repl.Vol., 1999 Supp.),12 governs the State’s waiver of immunity as to a tort action:

Section 5-522(a) of the Courts and Judicial Proceedings Article, Maryland Code (1974, 2002 RepLVol.),13 provides in part:

As a result, the State does not waive its sovereign immunity for any tortious acts outside the scope of employment or when a “state personnel” acts with malice or gross negligence. See e.g., Lee v. Cline, 384 Md. 245, 267-70, 863 A.2d 297, 310-12 (2004), and cases cited therein, including Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467 (1991). See also Ennis v. Crenca, 322 Md. 285, 296, 587 A.2d 485, 491 (1991) (holding that under the Local Government Tort Claims Act, local government employees are not shielded from liability for tortious acts committed outside the scope of employment).

Notice under the MTCA plays an integral part, however, in the invocation of waiver of the State’s sovereign immunity. As originally enacted, the MTCA required claimants, prior to filing suit, to submit a claim to the State Treasurer; no specific time period was provided. Maryland Code (1974,1980 RepLVol., 1983 Supp.), Section 5-406 of the Courts and Judicial Proceedings Article. In 1985, see 1985 Maryland Laws, Chapter 538, the General Assembly amended the notice requirement, and provided that, in any case a claimant must submit a “written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim.” Maryland Code (1984, 1985 Supp.), Section 12-106(b)(l) of the State Govern

ment Article. The Legislature amended the notice provision again in 1995, see 1995 Maryland Laws, Chapter 437, to require a plaintiff to file notice of a claim with the State Treasurer or a designee of the Treasurer within one year after the injury:

Maryland Code (1984, 1995 Repl.Vol.), Section 12-106(b)(l) of the State Government Article (emphasis added).14

In order to comply with the MTCA, a plaintiff must serve written notice upon the State Treasurer, or a designee of the State Treasurer, within one year following the injury. Pursuant to Section 12—106(b)(1) of the MTCA, which states that written notice must be submitted to the State Treasurer “or a designee of the Treasurer,” Maryland Code (1984, 1995 Repl. Vol), Section 12-106(b)(l) of the State Government Article, the Office of the State Treasurer has promulgated interpretive regulations defining those designees. COMAR 25.02.01.02B(7) states:

(ii) The Comptroller of the Treasury, the Attorney General, or the Secretary of State; or

Clearly, under the regulation, notice to a designee of the State Treasurer only embraces that given to the Chief Deputy Treasurer or the Director of the Insurance Division of the State Treasurer’s Office. Pope expressly failed to meet the notice requirements of the MTCA when he only provided written notice to the State Treasurer on May 13, 2005, fourteen months after the injury, not within the one year time period prescribed by the MTCA. See also Sawyer, 322 Md. at 257-58, 587 A.2d at 471-72 (plaintiff failed to give any notice to the State under the MTCA, which precluded suit against both the State and the State Police).15

Pope argues that his notice to a County Commissioner within the one year period substantially complied with the MTCA because he supplemented his notice to the State Treasurer on May 13, 2005,16 and the State was not prejudiced by the delay because the State had had notice of the incident as a result of an investigation undertaken by the State Police and the State’s Attorney for Queen Anne’s County, citing Faulk v. Ewing, 371 Md. 284, 808 A.2d 1262 (2002); Moore v. Norouzi,

371 Md. 154, 807 A.2d 632 (2002); and Conaway v. State, 90 Md.App. 234, 600 A.2d 1133 (1992).

Pope’s relies upon Faulk, 371 Md. at 284, 808 A.2d at 1262, and Moore, 371 Md. at 154, 807 A.2d at 632, both Local Government Tort Claim Act cases, to support his proposition that a claimant can substantially comply with the MTCA. The Local Government Tort Claims Act, however, by its express terms, permits judicial consideration of a claim about which the required notice was not given, when the plaintiff can show good cause, unless the defendant can affirmatively show prejudice:

Maryland Code (1974, 2006 Repl.Vol.), Section 5-304(b), (d) of the Courts and Judicial Proceedings Article.17 See Rios v. Montgomery County, 386 Md. 104, 140-45, 872 A.2d 1, 22-25 (2005).

Pope’s one MTCA case, Conaway, 90 Md.App. at 234, 600 A.2d at 1133, was decided by the Court of Special Appeals before our decision in Johnson v. Maryland State Police, 331 Md. 285, 628 A.2d 162 (1993). In Johnson, on facts remarkably similar to this case, the plaintiffs failed to provide notice, but asserted that the State was not prejudiced and had

created several reports about the accident. In language equally applicable here, we said:

Johnson, 331 Md. at 291-92, 628 A.2d at 165 (footnote omitted). Pope failed to provide written notice to the State Treasurer until May 13, 2005, fourteen months after the injury, not within the one year time period prescribed by the MTCA. Therefore, even assuming arguendo that substantial compliance was applicable, it cannot be invoked in the present case.

Nevertheless, Pope argues that the purpose of the notice statute was satisfied because the County was the real party in interest because it was providing defense counsel for Pope under the Local Government Insurance Trust and would be

ultimately responsible for the payment of any claim pursuant to Section 9-108 of the State Finance and Procurement Article. Section 9-108(b)-(c) of the State Finance and Procurement Article, Maryland Code (1985, 2001 Repl. Vol.), states in relevant part:

Pope’s contention that the County’s financial responsibility for the defense and any judgment against Barbre renders notice to the County sufficient under the MTCA, however, fails to address the absence of any reference to the MTCA notice requirement in these or any other provisions of Title 9 of the State Finance and Procurement Article. The potential obligation to pay a tort judgment under the MTCA does not equate with the ability to receive notice thereunder.18 Thus,

we agree with the Court of Special Appeals, Pope, 172 Md. App. at 403, 915 A.2d at 455 (citations omitted), that “[i]f neither the Comptroller, nor the Attorney General, nor any other State officer, nor an ‘insurer ... who provides services to the Treasurer as an independent contractor’ qualifies as a Treasurer’s designee, then neither does a county officer such as a county commissioner.” In the case sub judice, Pope failed to provide written notice to the State Treasurer or a designee of the State Treasurer within one year of the injury, and thus summary judgment under the immunity and non-liability provisions of the MTCA was appropriate.

B. The Maryland Tort Claims Act—Allegations of Malice or Gross Negligence Against Barbre

Pope also alleged that Barbre acted maliciously and with gross negligence and argues before us that this brings Barbre outside of the protections of the immunity and non-liability provisions of the MTCA and that he should be able to proceed against Barbre individually on those claims. Conversely, Barbre contends that the MTCA is not contingent upon the plaintiffs pleadings, so the fact that Pope alleged that Barbre acted with malice or gross negligence is immaterial. The Court of Special Appeals agreed with Pope in its holding that “[w]hen, as in this case, the claimant pursues tort remedies against an individual classified as State personnel, based on acts allegedly committed with malice or gross negligence,” the claims fall outside the MTCA and “the State Treasurer does not require early notice,” Pope, 172 Md.App. at 414, 915 A.2d at 462; we disagree only to the extent that we have said that state personnel are not immune from suit and liability in tort when the plaintiffs complaint sufficiently

alleges malice or gross negligence. Therefore, the gravamen on this issue is whether the allegations of malice or gross negligence against Barbre are sufficient.

Malice

In cases involving allegations of malice we have said that well-pled facts showing “ill-will” or “evil or wrongful motive” are sufficient to take a claim outside of the immunity and non-liability provisions of the MTCA. See Lee, 384 Md. at 245, 863 A.2d at 297; Okwa v. Harper, 360 Md. 161, 757 A.2d 118 (2000); Sawyer, 322 Md. at 247, 587 A.2d at 467. We have consistently defined malice as “conduct ‘characterized by evil or wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill-will or fraud____Lee, 384 Md. at 268, 863 A.2d at 311; Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 131 n. 16, 753 A.2d 41, 57 n. 16 (2000) (stating that malice is characterized as “an evil or rancorous motive influenced by hate, the purpose being to deliberately and wilfully injure the plaintiff”). In Shoemaker v. Smith, 353 Md. 143, 725 A.2d 549 (1999), Judge Wilner, writing for this Court, stated:

Id. at 163-64, 725 A.2d at 560 (citations omitted).

We have considered what constitutes sufficient allegations of malice to enable a plaintiff to overcome a motion to dismiss or for summary judgment under the immunity and non-liability provisions of the MTCA. In Lee, 384 Md. at 245, 863

A.2d at 297, an African-American motorist, Lee, was stopped by a Frederick County Deputy Sheriff because his front license plate was not attached. In Lee’s complaint, he alleged that the Deputy Sheriff asked to search his car; Lee refused. The Deputy Sheriff then told Lee that he did not need permission to search his ear, and later referred to Lee as a “suspect.” The complaint further alleged that Lee was detained for over 30 minutes while arrest and warrant checks were performed and a canine unit was brought to the scene. We concluded that Lee’s complaint sufficiently alleged malice so that the Deputy Sheriff was not entitled to summary judgment under the MTCA:

Lee refused to consent to a search of his car.” (Petitioner’s brief at 16). Cline’s request to search Lee’s automobile when there was no basis for such a search, Cline’s retort that he could search the vehicle without Lee’s permission, Cline’s insistence on obtaining a canine unit, Cline’s “yelling” at Lee to get back into the 6ar, the length of the stop, and Cline’s reference to Lee as an uncooperative suspect, taken together, could support an inference of ill-will on the part of Cline. A jury issue with regard to malice was generated.

Id. at 269-70, 863 A.2d at 312.

In Okwa v. Harper, 360 Md. at 161, 757 A.2d at 118, Okwa was involved in a dispute at the British Airways ticket counter at BWI Airport leading to his arrest by Maryland Transportation Authority police officers. Okwa alleged that the officers physically dragged him to the exit of the terminal, at which point he was forcibly thrown to the ground and struck in the back of the head and neck. We concluded that Okwa’s allegations sufficiently pled malice so as to preclude the entry of summary judgment against him:

the facts, the battery counts were not amenable to disposition via summary judgment.

Id. at 182, 757 A.2d at 129 (citations omitted).

In Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467 (1991), the plaintiffs filed suit against Humphries, a State police officer, and

Id. at 261, 587 A.2d at 474 (alterations in original). The plaintiffs did not name the State of Maryland as a defendant, and no notice was provided to the State Treasurer or a designee of the State Treasurer. Humphries moved to dismiss the complaint, arguing that because he was acting within the scope of his employment and without malice, the MTCA applied. He also contended that because the plaintiffs failed to satisfy the MTCA notice prerequisites, the action could not be maintained against the State. Id. at 252-53, 587 A.2d at 469. The circuit court dismissed the complaint without explanation. Id.

On appeal, we reversed the circuit court. We iterated that “in order for a State employee to be granted immunity from suit by [the MTCA], he must act ‘within the scope of [his] public duties’ and ‘without malice or gross negligence,’ ” and defined the issue as “whether the plaintiffs’ complaint alleged facts sufficient to show conduct by Mr. Humphries which either was outside the scope of his ‘public duties’ or was malicious.” Id. at 253, 587 A.2d at 470. In permitting the

case to go forward, we pointed out that the “complaint was more than adequate to allege that Humphries acted maliciously”:

Id. at 261, 587 A.2d at 474.

Sawyer is particularly relevant to the instant case because we found that the complaint recitations that a State police officer, unprovoked and without cause, threw a rock at the plaintiffs were sufficient to allege malice, while in the present case, Pope alleges that Barbre shot him in the neck when Pope’s hands were raised in surrender. More specifically, Pope alleges that on March 17, 2004, at approximately 12:30 p.m., Queen Anne’s County Deputy Sheriff Mark Barbre attempted to stop a truck driven by Andrew Pope, III. When Pope did not stop, Barbre followed him to Pope’s home, whereupon Pope got out of his vehicle and raised his hands in surrender. At that point, Barbre approached Pope with his gun drawn and shot Pope in the neck. Pope was not intoxicated, incapacitated, a threat to the safety of himself or others, or disorderly. Barbre did not have a warrant to arrest Pope or an excuse to use excessive or deadly force against Pope, and the shooting was in violation of the procedures and protocol of the Queen Anne’s County Sheriffs Department. Viewing these facts in the light most favorable to Pope, we hold that he has presented sufficient facts to demonstrate malice on the part of Barbre so that Barbre was not entitled to summary judgment. Although malice is “something beyond” gross negligence, Shoemaker, 353 Md. at 164, 725 A.2d at 560, the facts as alleged in this case could demonstrate malice so that Barbre is not entitled to invoke the immunity and non-liability provisions of the MTCA at this stage of the proceedings.

Gross Negligence

Even though we hold that Pope’s complaints contain sufficient allegations of malice on the part of Barbre so that Pope’s claims against Barbre fall outside of the MTCA and Barbre was not entitled to summary judgment, we address, as an alternative ground, whether Pope presented sufficient allegations of gross negligence. Issues involving gross negligence are often more troublesome than those involving malice because a fine line exists between allegations of negligence and gross negligence. See State, Use of Abell v. Western Maryland R.R., 63 Md. 433, 443 (1885) (noting the difficulty of distinguishing between negligence and gross negligence, “if it be capable of definition”). Negligence, as we have defined the term, is

Mayor & City Council of Baltimore v. Hart, 395 Md. 394, 410, 910 A.2d 463, 472 (2006); Holler v. Lowery, 175 Md. 149, 157, 200 A. 353, 357 (1938), quoting Restatement (First) Torts § 282. We have viewed gross negligence, rather, “as something more than simple negligence, and likely more akin to reckless conduct,” Taylor v. Harford County Dep’t of Soc. Servs., 384 Md. 213, 229, 862 A.2d 1026, 1035 (2004) (emphasis in original); gross negligence is

Liscombe v. Potomac Edison Co., 303 Md. 619, 635, 495 A.2d 838, 846 (1985); Romanesk v. Rose, 248 Md. 420, 423, 237 A.2d 12, 14 (1968). See also Shoemaker, 353 Md. at 164, 725 A.2d

at 560 (noting in dicta that gross negligence embodies “reckless or wanton conduct”).

In the only case involving whether a complaint sufficiently alleged gross negligence to obviate the protections of the MTCA, Boyer v. State, 323 Md. 558, 594 A.2d 121 (1991), we opined that conclusory allegations of gross negligence were not enough to bring the claim outside of the immunity and non-liability provisions of the MTCA. In Boyer, the plaintiffs alleged that Trooper Titus was grossly negligent

Id. at 579-80; 594 A.2d at 132. We iterated that, “[i]n order to charge Trooper Titus with gross negligence, the plaintiffs must have pled facts showing that Trooper Titus acted with a wanton and reckless disregard for others in pursuing Mr. Farrar.” Id. We concluded that the plaintiffs’ allegations, even considered in the light most favorable to the plaintiffs, were “somewhat vague” and did not “support the conclusion that [ Trooper Titus] acted with gross negligence.” Id. at 579-80, 594 A.2d at 132-33.

In a case similar to the instant case, Ingram v. Kerr, 120 N.C.App. 493, 462 S.E.2d 698 (1995), the North Carolina intermediate appellate court addressed whether a survivor of a bystander, Ivan Ingram, who was shot during a drug raid, adequately alleged sufficient facts to support a claim of gross negligence in a 'wrongful death suit against a police officer. In the complaint, the plaintiff alleged that when Ingram arrived at the house, unarmed, police ordered him to display his hands; when Ingram complied and raised his hands, the

officer fired a single shot, killing Ingram. The trial court granted the officer’s motion to dismiss for failure to state a claim upon which relief can be granted. The appellate court reversed the dismissal as to the officer’s individual claim, noting that “[a]t this stage of the pleadings, on a motion to dismiss wherein we are to liberally construe all allegations of plaintiffs complaint as true, we find plaintiffs argument more persuasive”:

Id. at 701 (emphasis added). See also Farrey v. Bettendorf, 96 So.2d 889, 894-96 (Fla.1957) (stating that allegation that operator of motor scooter was driving at an excessive speed at night on an unlighted street and continuously turned his head around to talk to his passenger such that he could not see where he was going was sufficient to allege gross negligence, rather than negligence, reversing a dismissal of the complaint); Kendricks v. Rehfield, 270 Mich.App. 679, 716 N.W.2d 628, 625 (2006) (concluding that fact that police officers failed to investigate plaintiffs claim of mistaken identity for seven months while the plaintiff was held in jail pending trial was not a negligent mistake but “an egregious injury” with sufficient indicia of gross negligence to preclude the court from

granting summary judgment for the officers); Koffman v. Garnett, 265 Va. 12, 574 S.E.2d 258, 260 (2003) (concluding that allegation that a middle school football coach, weighing approximately 260 pounds, to demonstrate proper tackling technique, “thrust his arms around” a player’s body, weighing approximately 144 pounds, lifted him “off his feet by two feet or more,” and slammed him to the ground, was sufficient to constitute gross negligence, instead of negligence, reversing a dismissal of the complaint).

In the case sub judice, viewing the facts in the light most favorable to Pope, we hold that Pope has presented sufficient facts to demonstrate gross negligence on the part of Barbre so that Barbre was not entitled to summary judgment. The fact that Barbre ordered Pope, who was unarmed, to raise his hands, and that after Pope complied with the request, Barbre approached with his gun drawn and shot him in the neck, could support an inference that Barbre acted grossly . negligent.

Although it was error to grant summary judgment for Barbre, the evidence at trial may show that Barbre was acting without malice or gross negligence. If it does, Barbre would be entitled to the immunity granted by the MTCA. On the other hand, the evidence may show that Barbre was acting either maliciously, or grossly negligent, so that he would not be entitled to immunity under the MTCA.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND MODIFIED IN PART AS INDICATED IN THIS OPINION. CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH DIRECTION TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR QUEEN ANNE’S COUNTY AS TO THE STATE OF MARYLAND AND QUEEN ANNE’S COUNTY, AND REVERSE THE JUDGMENT AS TO DEPUTY SHERIFF BARBRE AND REMAND FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT TO BE PAID BY BARBRE.

COSTS IN THE COURT OF SPECIAL APPEALS TO BE DIVIDED EQUALLY BY THE PARTIES.