Beall v. Holloway-Johnson

Timothy Everett Beall v. Connie Holloway-
Johnson, No. 17, September Term, 2015.
Opinion by Harrell, J.

APPEAL AND ERROR – EXTENT OF REVIEW

The Court of Appeals reviews a circuit court’s grant of a motion for judgment in a civil
case without deference to the circuit court’s decision. Questions of law, like the
interpretation of the Local Government Torts Claims Act, are reviewed de novo.

MUNICIPAL CORPORATIONS – LIABILITY OF OFFICERS OR AGENTS

Under the Local Government Torts Claims Act (LGTCA), local government employees
may be sued and judgments may be levied against them if the local government employee
is found to have acted with actual malice and outside the scope of his or her employment.

MUNICIPAL CORPORATIONS – DAMAGES

A Baltimore City police officer defendant cannot waive, as to his employer, the Local
Government Tort Claims Act (LGTCA)’s cap on damages that a plaintiff may seek from
the police department. The LGTCA provisions do not constitute an affirmative defense
that must be pled by a defendant before trial.

TORTS –PUNITIVE DAMAGES

Punitive damages are reserved for the most egregious torts and require proving malice by
clear and convincing evidence. Because a prima facie case of battery or a violation of
Article 24 of the Md. Declaration of Rights may be established without showing malice,
it is improper to imply malice as a necessary element of these torts.
Circuit Court for Baltimore City
Case No. 24-C-11-002394
Argued: September 29, 2015
IN THE COURT OF APPEALS
OF MARYLAND

No. 17

SEPTEMBER TERM, 2015

TIMOTHY EVERETT BEALL

v.

CONNIE HOLLOWAY-JOHNSON

Barbera, C.J.,
Battaglia,
Greene,
Adkins,
McDonald,
Harrell, Glenn T., Jr. (Retired, Specially
Assigned),
Cathell, Dale R., (Retired, Specially
Assigned),

JJ.

Opinion by Harrell, J.

Filed: January 21, 2016
 This tragic case arose out of a motor vehicle collision between a Baltimore City

police cruiser and a privately-owned motorcycle, resulting in the death of the

motorcyclist. Respondent Connie Holloway-Johnson, on her own behalf and as the

personal representative of the estate of her deceased son, Haines E. Holloway-Lilliston,

initiated a wrongful death suit against, among others, Petitioner, Timothy Everett Beall, a

Baltimore City police officer. The complaint, filed in the Circuit Court for Baltimore

City, alleged negligence, gross negligence, battery, and a violation of Article 24 of the

Maryland Declaration of Rights. Compensatory and punitive damages were sought.

At trial, Petitioner made a Motion for Judgment at the close of the Plaintiffs’ case-

in-chief. The Circuit Court (Hon. Marcus Z. Shar, presiding) granted the motion in part,

allowing to go to the jury only the question of whether Officer Beall was negligent and, if

so, what amount of compensatory damages should be awarded. The jury returned a

substantial verdict for compensatory damages for Respondent, which amount was

reduced subsequently by the trial judge, on Petitioner’s motion, to $200,000 to comply

with the damages “cap” of the Local Government Tort Claims Act (“LGTCA”),

Maryland Code (1974, 2013 Repl. Vol.), Courts and Judicial Proceedings Article,

§ 5-301, et seq. (“CJP”).

Respondent appealed to the Court of Special Appeals, which reversed the

judgment in a reported opinion and remanded the case for a new trial. We granted

Petitioner’s Petition for a Writ of Certiorari to consider multiple questions regarding the

partial grant of the Motion for Judgment, the availability for the jury to consider an award

of punitive damages, and the applicability of the LGTCA.
 THE EVIDENCE ADMITTED DURING PLAINTIFFS’ CASE-IN-CHIEF

On 25 July 2010, Officer Timothy Beall was on duty in a marked police car in

Baltimore City working the midnight patrol shift in the Northern District. He overheard a

call on his radio from an off-duty officer about a Mercedes convertible and a motorcycle

“chasing each other or racing each other” at about 100 miles per hour (m.p.h.) on

Interstate 83 North (also known as the Jones Falls Expressway) in Baltimore City. A

second transmission related that other officers were able to stop the car1, but not the

motorcycle.

Officer Beall, who was near the I-83 interchange with Cold Spring Lane at the

time of the second transmission, turned onto I-83 North to see if he could “observe the

motorcycle.” As he was merging onto the Interstate, he noticed a motorcycle on I-83

northbound that was traveling at the time about 35 m.p.h. in a 50 m.p.h. zone. Unable to

determine whether this was the same motorcycle as the one involved in the reported

chase/race, Officer Beall followed the motorcycle in an attempt to ascertain license plate

information. At approximately I-83 North’s interchange with the Northern Parkway, the

motorcycle sped-up to about 75 m.p.h., a speed in excess of the posted limit. Officer

Beall noted that “[i]nitially I didn’t have much reason to suspect that [the motorcycle]

was stolen. But once the motorcyclist fled, that heightened my suspicion based on the

extremely high rate of stolen motorcycles in the City of Baltimore that the bike may be

1
The stopped car was a black Toyota.

2
stolen.” After the operator of the motorcycle “popped a wheelie,” Officer Beall turned on

his siren and lights to pursue the motorcycle.2

The pursuit continued, at speeds of 75 m.p.h., onto the inner loop of Interstate 695

East (the Baltimore Beltway) in the direction of Towson. At the Charles Street

interchange, the speed of the motorcycle reduced to the posted speed limit of 50 m.p.h.3

As Officer Beall trailed the motorcycle, he received intermittent messages over his car’s

police radio. The messages were intermittent due to reception problems along portions of

the route. Officer Beall denied hearing an initial direct radio order from his Shift

Commander to discontinue pursuit of the motorcycle; he acknowledged, however, that he

was advised indirectly thereafter to disengage from the pursuit after he was on I-695 East

into Baltimore County. His Shift Commander stated over the radio “Yeah, have the

officer disregard and come back, notify the state police of [the motorcyclist’s] location,

2
Officer Beall admitted that he knew of no any exigent circumstances to justify
following or pursuing the motorcycle, a requirement of General Order 11-90 of the
Baltimore City Police Department, which states:

Members of this Department shall operate departmental vehicles with
utmost care and caution, comply with all traffic laws and SHALL NOT
BECOME ENGAGED IN HIGH-SPEED PURSUIT DRIVING, except
under EXIGENT circumstances. Exigent circumstances consist of:
 Instances where the officer determines that immediate action is
necessary, and
 Insufficient time exists to resort to other alternatives, and
 Failure to pursue may result in grave injury or death

BCPD General Order 11-90 (emphasis in original).
3
At the time, this portion of I-695 East was under construction, with a slightly
lower speed limit than customary.

3
the radio is going to die out soon, if there are repeaters out there, so just come on back.”

Officer Beall responded to this by stating “10-4” (meaning “acknowledged”), turning off

his lights and his siren, and planning to turn back to Baltimore City. At this time, Officer

Beall called the State Police from his cell phone to inform them of his position and that

he had followed a motorcycle from Baltimore City onto I-695 East.

Officer Beall followed the motorcycle onto the exit ramp for Dulaney Valley

Road. He explained that he chose this exit, rather than the closer Lutherville/Timonium

exit, because “[t]he next exit [he] was familiar with was Dulaney Valley Road to go

south, which [would take him] right down to Northern Parkway from York Road.” On

the exit ramp, the motorcyclist reduced his speed to between 31 and 33 m.p.h. Officer

Beall was traveling at about 40 m.p.h. The police cruiser made contact with the

motorcycle. The motorcyclist, later identified as Holloway-Lilliston, was ejected from

the bike.4 His body made contact with the hood of Officer Beall’s car. He died upon

4
State Police Sergeant Jon McGee’s accident reconstruction report stated this
about the accident:

It was my opinion that the police cruiser made contact with its front left
corner to the rear tire of the motorcycle causing the motorcycle to be
pushed/driver out from underneath Mr. [Holloway-]Lilliston. Mr.
[Holloway-]Lilliston landed on the police cruiser’s hood before falling off
the left side of the hood. The police cruiser then drove partially over the
motorcycle with its front left corner/tire; which in turn, caused the damage
to the underside of the front left side of the police cruiser to include ripping
away the front left plastic wheel well cover. Mr. [Holloway-]Lilliston fell
off the left side of the police cruiser and landed on the left side of the exit
ramp and slid to his final rest position as the cruiser slowed to a stop.

4
hitting the pavement. State Police Sergeant Jon McGee, an expert witness in accident

reconstruction, offered his opinion about how the collision occurred:

So based off all the evidence, it’s my opinion that there was contact
between the two vehicles, and at that time Mr. Holloway[-Lilliston], based
on that contact, the bike would have went out from Mr.
Holloway[-Lilliston]. When he came down, he came down on the hood of
the police car. My initial assessment on the scene was that the speeds of
both vehicles were low. I estimated probably the police maybe 40. And I
knew the speed differential between the two vehicles, because there was no
inward crush damage to the bumper, was significantly low, maybe 5 to 10,
15 mile an hour speed difference, with the police car obviously going
slightly faster than the motorcycle. Based off of where the initial tire marks
and scratch marks of where the motorcycle went down and the location of
where Mr. Holloway[-Lilliston] fell to the road and slid to final rest, and
the damage associated with the front hood of the police car, it’s my opinion
that there was contact. Mr. Holloway[-Lilliston] fell onto the top of the
police car, rolled off the left side. Based on the helmet damage, the
circumference of the helmet, there were scratches pretty much the entire
circumference of the helmet, landed head first as he rolled off the hood and
slid to final rest.

Sergeant McGee concluded that “Officer Beall failed to maintain a safe and proper

following distance when he collided into the rear of the motorcycle driven by Mr.

[Holloway-]Lilliston.”

On 6 April 2011, Holloway-Lilliston’s mother, Connie Holloway-Johnson, filed a

complaint against Officer Timothy Beall and the Mayor and City Council of Baltimore

City in the Circuit Court for Baltimore City. The complaint alleged counts of negligence,

gross negligence, battery, and a violation of Article 24 of the Maryland Declaration of

Rights. Ms. Holloway-Johnson sought compensatory and punitive damages in the sum of

$20 million. Prior to trial, she dismissed voluntarily her claims against the City and

proceeded to a jury trial against Officer Beall.

5
 The case was tried between 24 July 2012 and 3 August 2012. At the close of the

Plaintiffs’ case, Officer Beall made a Motion for Judgment on the basis that insufficient

evidence was presented as to each of the claims. Judge Shar granted Officer Beall’s

motion as to the battery, gross negligence, and Article 24 claims, as well as the prayer for

punitive damages. The only claims that were allowed to go to the jury were the

negligence claim and the prayer for compensatory damages. On 3 August 2012, the jury

returned a verdict in favor of Ms. Holloway-Johnson and the estate of her son for

$3,505,000. On 20 August 2012, Officer Beall filed a Motion for a New Trial or to

Revise the Judgment by reducing the verdict to conform to the damages “cap” in the

Local Government Tort Claims Act (LGTCA). The Circuit Court reduced the judgment

to $200,000, in accordance with the LGTCA. Ms. Holloway-Johnson appealed timely to

the Court of Special Appeals.

The Court of Special Appeals held, in a reported opinion, that there was sufficient

evidence for each of Ms. Holloway-Johnson’s claims to have been submitted to the jury

and that it was error for the Circuit Court to have granted Officer Beall’s Motion for

Judgment. Additionally, the intermediate appellate court determined that, although the

evidence adduced would not justify under the gross negligence count an award of

punitive damages, the battery and Article 24 counts could qualify as “predicates for

punitive damages” under a theory of “malice implicit” in the elements of each cause of

action. Holloway-Johnson v. Beall, 220 Md. App. 195, 227, 103 A.3d 720, 739 (2014).

The Court held that the applicability of the LGTCA (which was not raised until Officer

Beall’s post-verdict motion) and its cap on damages was a “furiously contested moot

6
question,” concluding that, under the provisions of the LGTCA, any potential cap on

damages could not be waived by Officer Beall as to his local government employer, who

would be liable for the judgment (up to the limit of the LGTCA “cap”).

On 27 March 2015, we granted a writ of certiorari, Holloway-Johnson v. Beall,

442 Md. 194, 112 A.3d 373 (2015), to consider five questions (posed by the parties in

their respective petitions), which we reorganize and condense as follows5:

1) Did the Court of Special Appeals modify improperly established standards to
conclude that there was sufficient evidence to support the counts for gross
negligence, battery, and a violation of Article 24?

5
The parties’ questions were framed as:

1) Did the CSA err when it held that the “malice implicit” in Petitioner’s actions
could support an award of punitive damages, contrary to the long-established law
that actual, not implied, malice is needed for an award of punitive damages?
(Officer Beall’s petition)

2) Did the CSA improperly modify the established definition of the “intent”
needed to support claims for battery and for a physical contact in violation of
Article 24 of the Md. Declaration of Rights, when it determined that the evidence
was sufficient to present the claims to the jury? (Officer Beall’s petition)

3) Did the CSA improperly conclude that there was sufficient evidence to support
claims for gross negligence, battery and violation of Article 24 when the record
was devoid of facts to show intent on the part of Petitioner to cause a collision?
(Officer Beall’s petition)

4) Did the CSA err by affirming the judgment as to negligence but remanding for
further proceedings on the claims for gross negligence, battery and violation of
Article 24, thus allowing the pursuit of multiple recoveries of compensatory
damages for the single claim arising from the collision? (Officer Beall’s petition)

5) Did [Officer Beall] waive the damages cap and judgment avoidance afforded by
the Local Government Tort Claims Act, having failed to raise the defense until
after trial and entry of judgment? (Ms. Holloway-Johnson’s cross-petition)

7
 2) Did the Court of Special Appeals err when it held that Respondent’s counts
could support an award of punitive damages, contrary to the long-established law
that actual, not implied, malice was necessary and remanding the case for further
proceedings which might result also in the award of duplicative compensatory
damages?

3) Did Officer Beall waive the damages cap and judgment avoidance afforded by
the Local Government Tort Claims Act, having failed to raise the defense until
after trial and entry of judgment?

Although we agree with the Court of Special Appeals as to the sufficiency of the

evidence as to the counts for which the trial court gave judgment in favor of Officer Beall

at the close of Ms. Holloway-Johnson’s case-in-chief and on the LGTCA question, we

reverse nonetheless the judgment of the Court of Special Appeals for reasons we shall

explain.

DISCUSSION

I. Sufficiency of the Evidence

a. Contentions

Officer Beall contends that the Circuit Court’s grant of his Motion for Judgment as

to the Respondent’s claims for battery, gross negligence, violation of Article 24, and

punitive damages was correct because there was insufficient evidence admitted during

the Plaintiffs’ case-in-chief to support submitting them to the jury. Proceeding from that

premise, he asserts further that the Court of Special Appeals erred in reversing this

judgment and remanding the case for a new trial when the admitted evidence amounted to

no more than speculation about his intent at the time of the collision. Ms. Holloway-

Johnson responds that she adduced enough evidence at trial to have all of her claims

8
submitted to the jury and that the Court of Special Appeals was correct to reverse the

grant of judgment in favor of Officer Beall. Additionally, she maintains that the Court of

Special Appeals applied correctly the malice requirement for consideration of awarding

punitive damages to conclude that her battery and Article 24 claims could support

implicitly such an award.

b. Standard of Appellate Review

We “review, without deference, the trial court’s grant of a motion for judgment in

a civil case.” District of Columbia v. Singleton, 425 Md. 398, 406, 41 A.3d 717, 721

(2012) (citing Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 393–94, 31 A.3d 583,

587–88 (2011)). Because “[w]e conduct the same analysis that a trial court should make

when considering the motion for judgment,” we determine whether the evidence

presented to the Circuit Court was sufficient to allow permissible inferences of the proof

of the elements of the relevant claims. Singleton, 425 Md. at 406-07, 41 A.3d at 721-22.

The appellate court considers “the evidence and reasonable inferences drawn from the

evidence in the light most favorable to the non-moving party.” Thomas, 423 Md. at 393,

31 A.3d at 587.

c. Analysis

As stated earlier, Judge Shar allowed the jury to consider only the negligence

count and the compensatory damages claim because he deemed all of Ms. Holloway-

Johnson’s other claims to be lacking sufficient evidentiary support. The Court of Special

Appeals disagreed, finding that there was sufficient evidence for all of Ms. Holloway-

Johnson’s counts to reach the jury, as well as her request for punitive damages. Viewing

9
the evidence in the light most favorable to the non-moving party (including reasonable

inferences drawable therefrom), we agree in the abstract with the Court of Special

Appeals as to the counts, but, as we shall explain, reversal and remand for a new trial to

consider those claims and possibly punitive damages is unwarranted in the context of this

case.

A motor tort negligence claim presents ordinarily a relatively low bar for a

plaintiff to overcome and avoid the grant of a motion for judgment. Negligence is

defined as “any conduct, except conduct recklessly disregardful of an interest of others,

which falls below the standard established by law for protection of others against

unreasonable risk of harm.” Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699, 717

(2007) (citation omitted). A claim for gross negligence, however, sets the evidentiary

hurdle at a higher elevation:

[G]ross negligence is an intentional failure to perform a manifest duty in
reckless disregard of the consequences as affecting the life or property of
another, and also implies a thoughtless disregard of the consequences
without the exertion of any effort to avoid them. Stated conversely, a
wrongdoer is guilty of gross negligence or acts wantonly and willfully only
when he inflicts injury intentionally or is so utterly indifferent to the rights
of others that he acts as if such rights did not exist.

Id. (citations omitted). The distinction between negligence and gross negligence,

however, can be a difficult one to establish in practice, as explained by the Court of

Special Appeals in this case – “[a] legally sufficient case of ordinary negligence will

frequently be enough to create a jury question of whether such negligence was or was not

gross.” Holloway-Johnson, 220 Md. App. at 221, 103 A.3d at 735.

10
 Boyer v. State, 323 Md. 558, 594 A.2d 121 (1991), involved a state trooper’s high-

speed pursuit of a suspected drunk driver, which resulted in the death of other motorists.

The plaintiffs claimed that the trooper was grossly negligent because he pursued

recklessly a suspect “at an excessively high rate of speed through a heavy traffic area.”

Boyer, 323 Md. at 579, 594 A.2d at 132 (quotation marks omitted). We explained that,

“[i]n order to charge [the trooper] with gross negligence, the plaintiffs must have pled

facts showing that [the trooper] acted with a wanton and reckless disregard for others in

pursuing [the suspect].” Boyer, 323 Md. at 579, 594 A.2d at 132 (emphasis in original).

We held that the facts advanced by the plaintiffs were too vague to demonstrate

adequately that the trooper acted in a grossly negligent manner because a rational fact-

finder could not conclude that the trooper acted with “wanton or reckless disregard for

the safety of others in pursuing [the suspect].” Boyer, 323 Md. at 580-81, 594 A.2d at

132.

In Barbre, we held that, when a police officer “ordered [the suspect], who was

unarmed, to raise his hands, and that after [the suspect] complied with the request, [the

police officer] approached with his gun drawn and shot him in the neck, [those facts]

could support an inference that [the police officer] acted grossly negligent.” Barbre, 402

Md. at 190, 935 A.2d at 719. Comparing and contrasting Boyer and Barbe, it is apparent

that determining if a plaintiff has adduced sufficient evidence of gross negligence to get

to a jury can be a complex question due to the sometimes close relationship between

ordinary negligence and gross negligence. See Barbre, 402 Md. at 187, 935 A.2d at 717

(“Issues involving gross negligence are often more troublesome than those involving

11
malice because a fine line exists between allegations of negligence and gross

negligence.”).

Here, Officer Beall argues that the evidence (viewed in a light most favorable to

the Plaintiffs) did not show he was grossly negligent (or permit a reasonable inference of

such) in acting “wantonly and willfully [by inflicting the] injury intentionally.” Barbre,

402 Md. at 187, 935 A.2d at 717. To be sure, the evidence presented at trial by the

Plaintiffs revealed contradictory accounts by Officer Beall about how the incident

unfolded. With only one surviving eyewitness, other direct evidence of what occurred

was minimal. Although Ms. Holloway-Johnson’s complaint alleged that Officer Beall

“intended to harm Haines,” Officer Beall notes that Sergeant McGee “did not offer any

testimony that this accident was the result of intentional conduct by Officer Beall.”

The evidence presented by Ms. Holloway-Johnson strikes us as stronger than the

conclusory record in Boyer. In Boyer, the plaintiff offered general allegations that the

behavior of the trooper was reckless and in violation of police procedures. Ms.

Holloway-Johnson relied specifically, however, on the actions of Officer Beall prior to

the collision to show that he was acting recklessly. Officer Beall commenced trailing the

motorcycle surreptitiously and started active pursuit only after Holloway-Lilliston

“popped a wheelie” and sped away. Officer Beall’s conduct concededly was in violation

of BCPD General Order 11-90 (see discussion supra fn.2) as he was acting without

exigent circumstances in his pursuit of Holloway-Lilliston, who committed only traffic

offenses and posed no articulated immediate harm to others. Additionally, evidence was

presented to show that Holloway-Lilliston reduced his speed upon entering the

12
construction zone on I-695 East; yet, Officer Beall continued to follow him in

contravention of a directive from his Shift Commander to discontinue pursuit and allow

the State Police to handle the “traffic incident.”

Because “we have viewed gross negligence, rather, ‘as something more than

simple negligence, and likely more akin to reckless conduct,’” there was a factual dispute

that should have been presented ordinarily to the jury. Barbre, 402 Md. at 187, 935 A.2d

at 717 (citing Taylor v. Harford County Dep’t of Soc. Servs., 384 Md. 213, 229, 862 A.2d

1026, 1035 (2004) (emphasis in original)). Here, based on the accident reconstruction

that surmised the over-taking speed of the police cruiser on the ramp, the lack of exigent

circumstances justifying Officer Beall’s pursuit, and Officer Beall’s testimony (as an

adverse witness called by Ms. Holloway-Johnson) that he saw Holloway-Lilliston apply

his brakes on the exit ramp, a jury could have inferred reasonably that Officer Beall knew

or should have known a collision between the vehicles was likely.

Ms. Holloway-Johnson relied on the same evidence for her battery claim, which

required proof that “one intends a harmful or offensive contact with another without that

person’s consent.” Nelson v. Carroll, 355 Md. 593, 600, 735 A.2d 1096, 1099 (1999)

(citing Restatement (Second) of Torts § 13 & cmt. d (1965)). The contact may be direct

or indirect, but it must be intended. Nelson, 355 Md. at 600-01, 735 A.2d at 1099-100. It

is clear that “[a] person can use an automobile or other vehicle to intentionally hit another

person,” but, in order for that to constitute civil battery, the element of intent must be

present. Hendrix v. Burns, 205 Md. App. 1, 22, 43 A.3d 415, 428 (2012). This intent

“requires not a specific desire to bring about a certain result, but rather a general intent to

13
unlawfully invade another’s physical well-being through a harmful or offensive contact

or an apprehension of such a contact.” Nelson, 355 Md. at 602-03, 735 A.2d at 1101.

Accordingly, accidental conduct that “inadvertently results in a harmful or

offensive contact with another will not give rise to liability, but one will be liable for such

contact if it comes about as a result of the actor’s volitional conduct where there is an

intent to invade the other person’s legally protected interests.” Nelson, 355 Md. at 603,

735 A.2d at 1101 (emphasis supplied). Although a plaintiff is required to adduce

admissible facts as to each element of a claim in order to reach the jury, it is well-

established that “intent is a subjective element usually left for the jury’s determination

[and] there are circumstances under which the law will imply the intent element of an

intentional tort or a crime.” Id.

Following the accident, Officer Beall made conflicting statements to investigators

that the motorcycle darted in front of him on the ramp, that Holloway-Lilliston crashed

his motorcycle, and his body bounced off a tree, among other claims.6 Notwithstanding

Officer Beall’s differing after-the-fact accounts, his violation of the BPCD General Order

and disregarding his Shift Commander’s verbal directive were clearly intentional acts. It

6
These statements go only to Officer Beall’s general credibility because they do
not bear directly on Officer Beall’s intent at the time of the collision. As noted by Judge
Cathell during oral argument before us, there is a difference between saying “I know I’ve
done something wrong” and “I intended to do something wrong.” This distinction was
mentioned during a portion of oral argument addressing the false exculpatory statements
made by Officer Beall after the collision. Although lying after the collision is not
sufficient to establish that Officer Beall intended maliciously at the time to strike and kill
Holloway-Lilliston, it does provide some insight into the Officer’s state of mind right
after the incident and his motivation to prevaricate.

14
is clear further that contact was made between the two vehicles by Officer Beall’s vehicle

overtaking the motorcycle. Thus, Ms. Holloway-Johnson presented legally sufficient

evidence to permit a rational jury to conclude that a battery occurred on the exit ramp,

which led to the collision, and was intentional.

By the same token, the evidence could have been viewed by a reasonable fact-

finder as supporting a claim for a violation of Article 24 of the Maryland Declaration of

Rights. Article 247 is Maryland’s equivalent due process provision, determined to “have

the same meaning and effect in reference to an exaction of property, and that the

decisions of the Supreme Court on the Fourteenth Amendment are practically direct

authorities.” Bureau of Mines of Maryland v. George’s Creek Coal & Land Co., 272 Md.

143, 156, 321 A.2d 748, 755 (1974). The analysis for an Article 24 violation follows the

analysis used for claims under the Fourteenth Amendment to the United States

Constitution and, as a result, “all claims that law enforcement officers have used

excessive force—deadly or not—in the course of an arrest, . . . should be analyzed under

the Fourth Amendment[’s] ‘reasonableness’ standard.” Okwa v. Harper, 360 Md. 161,

204, 757 A.2d 118, 141 (2000) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.

Ct. 1865, 1871 (1989)).

7
Article 24 of the Maryland Declaration of Rights states: “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 the
judgment of his peers, or by the Law of the land.”

15
 Officer Beall relies on County of Sacramento v. Lewis, 523 U.S. 833, 839, 118 S.

Ct. 1708, 1713 (1998), in which the United States Supreme Court was asked to “resolve a

conflict among the Circuits over the standard of culpability on the part of a law

enforcement officer for violating substantive due process in a pursuit case.” The

Supreme Court determined that “a police officer [does not violate] the Fourteenth

Amendment’s guarantee of substantive due process by causing death through deliberate

or reckless indifference to life in a high-speed automobile chase aimed at apprehending a

suspected offender.” County of Sacramento, 523 U.S. at 836, 118 S. Ct. at 1711. Only

“a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the

element of arbitrary conduct shocking to the conscience, necessary for a due process

violation.” County of Sacramento, 523 U.S. at 836, 118 S. Ct. at 1711-12. Although this

case might support Officer Beall’s argument to the jury (had he been called upon to

address the jury on this count) that he did not violate Article 24, it bears on the burden of

persuasion once the claim is presented to the fact-finder, who would evaluate the

evidence to determine if the standard was met. It does not aid his argument regarding the

sufficiency of the Plaintiffs’ evidence via a vis his motion for judgment at the close of the

Plaintiffs’ case-in-chief.

As held by this Court, “if there is any evidence adduced, however slight, from

which reasonable jurors [applying the appropriate standard of proof] could find in favor

of the plaintiff on the claims presented, the trial court should deny the defendant’s motion

for judgment at the close of the evidence and submit the claims to the jury for decision.”

Hoffman v. Stamper, 385 Md. 1, 16, 867 A.2d 276, 285 (2005). After reviewing the

16
evidence in the light most favorable to the non-moving party, Ms. Holloway-Johnson, we

arrive at the same technical conclusion as the Court Special Appeals: the defense’s

motion for judgment based on the alleged insufficiency of the Plaintiffs’ evidence should

not have been granted on that ground. Our decision does not address whether a jury

would find for Ms. Holloway-Johnson on these claims. We are concerned only with

whether she adduced enough evidence on each element of contested, but withheld,

substantive causes of action to have a jury consider them. We conclude that she did, but,

as we shall explain now, this appellate “victory” is a pyrrhic one.

II. Compensatory and Punitive Damages

The compensatory damages verdict Respondent received from the jury on her

negligence claim represents all of the compensatory relief due under any or all of the

causes of action advanced. Moreover, none of the withheld claims would support

submitting the punitive damage request to the jury. Accordingly, a new trial is not

warranted.

Compensatory damages are awarded in an “attempt to make the plaintiff whole again

by monetary compensation.” Exxon Mobil Corp. v. Albright, 433 Md. 303, 414, 71 A.3d

30, 97 on reconsideration in part, 433 Md. 502, 71 A.3d 150 (2013) and cert. denied, 134

S. Ct. 648, 187 L. Ed. 2d 449 (2013). We have noted that, although compensatory

damages are awarded to make a plaintiff whole, “they are not intended to grant to the

plaintiff a windfall as a result of the defendant’s tortious conduct. Thus, an award for

compensatory damages must be anchored to a rational basis on which to ensure that the

awards are not merely speculative.” Exxon Mobil Corp, 433 Md. at 414, 71 A.3d at 98.

17
 Maryland law provides that “a plaintiff is entitled to but one compensation for her loss

and that satisfaction of her claim prevents further action against another for the same

damages.” Underwood-Gary v. Mathews, 366 Md. 660, 667, 785 A.2d 708, 712 (2001)

(citation omitted). The “purpose of the rule is to prevent double recovery and, thus,

unjust enrichment.” Id. Under the Maryland rules, “[d]ifferent legal theories for the

same recovery, based on the same facts or transaction, do not create separate ‘claims.’”

East v. Gilchrist, 293 Md. 453, 459, 445 A.2d 343, 346 (1982). Because it is common

for a plaintiff to plead multiple claims or theories of recovery for the same incident, we

clarified that “[w]hat makes claims separate is not whether they are pled in separate

counts or embody separate legal theories.” Med. Mut. Liab. Ins. Soc. of Maryland v. B.

Dixon Evander & Assocs., 331 Md. 301, 313, 628 A.2d 170, 176 (1993). Additionally,

we explained:

[W]here a claimant presents a number of legal theories, but will be permitted to
recover on at most one of them, his possible recoveries are mutually exclusive,
and he has but a single claim for relief. The existence of multiple claims
ultimately depends upon whether the “aggregate of the operative facts”
presented states more than one claim which can be separately enforced.

Med. Mut. Liab. Ins. Soc. of Maryland, 331 Md. at 309, 628 A.2d at 174 (citations and

quotations omitted).

For a plaintiff to have his or her “claims” considered separate claims for purposes of

separate compensatory damage awards, the injuries must have arisen from separate,

unique transactions; otherwise, the multiple “claims” are essentially different legal

theories premised on a single set of facts. Here, Ms. Holloway-Johnson’s multiple claims

all arise from the same set of facts and, therefore, she would have been entitled to but one

18
compensatory recovery. The gross negligence, battery, and Article 24 violation claims

were but different legal theories under which a jury could have awarded compensatory

damages. Consequentially, Ms. Holloway-Johnson received a complete compensatory

damages award for the negligence claim.

We turn next to the matter of punitive damages. The Court of Special Appeals

analyzed correctly in this regard the lack of significance of the negligence and gross

negligence claims. The elements of neither tort claim would support submission to a jury

of a prayer for punitive damages. Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601

A.2d 633 (1992) “held that ‘implied malice,’ to wit, gross negligence, would not qualify

as a predicate for punitive damages.” Holloway-Johnson, 220 Md. App. at 226-27, 103

A.3d at 739. We disagree, however, with the intermediate appellate court’s reasoning

that the claims for battery or the Article 24 violation could serve as a predicate for a

punitive damage award, without actual proof of malice. Our appellate colleagues

concluded that “malice implicit” in the foundational elements of these two intentional

torts would be sufficient to allow a jury to consider an award of punitive damages, even

in the absence of additional proof of actual malice; we do not reach the same conclusion.

Punitive damages are reserved typically for punishing the most heinous of intentional

torts and tortfeasors. Such damages are only “awarded in an attempt to punish a

defendant whose conduct is characterized by evil motive, intent to injure, or fraud, and to

warn others contemplating similar conduct of the serious risk of monetary liability.”

Zenobia, 325 Md. at 454, 601 A.2d at 650. We explained that “negligence alone, no

matter how gross, wanton, or outrageous, will not satisfy [the] standard [of actual

19
malice].” Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 264, 841 A.2d

828, 837 (2004) (citing Zenobia, 325 Md. at 463, 601 A.2d at 654). The evidence “must

show malicious conduct and not simply. . . negligence” in order to justify an award of

punitive damages. Zenobia, 325 Md. at 465, 601 A.2d at 655.

Reliance on an embedded “malice implicit” in the elements of the intentional torts of

the battery and Article 24 violations claims pushes our jurisprudence on punitive

damages too far. To support a claim for punitive damages, “in any tort case[,] a plaintiff

must establish by clear and convincing evidence the basis for an award of punitive

damages.” Zenobia, 325 Md. at 469, 601 A.2d at 657. In “a non-intentional tort action,

the trier of facts may not award punitive damages unless the plaintiff has established that

the defendant’s conduct was characterized by evil motive, intent to injure, ill will, or

fraud, i.e., ‘actual malice.’” Zenobia, 325 Md. at 460, 601 A.2d at 652 (footnote

omitted). We apply this same principle for intentional torts because, even if a plaintiff

makes-out a prima facie case of an intentional tort by a preponderance of the evidence, a

plaintiff must be able to show additionally, to a clear and convincing standard, that the

tort was committed with “actual malice.”

By implying that malice is embedded within proof (by a preponderance standard) of

the elements of battery and an Article 24 violation, the Court of Special Appeals whistles

by an important part of the actual malice requirement. A civil battery may be committed

without actual malice. In those cases, adducing a prima facie case for battery would not

support submitting a punitive damages prayer to the fact-finder. The intent required for

proof of a battery claim “requires not a specific desire to bring about a certain result, but

20
rather a general intent to unlawfully invade another’s physical well-being through a

harmful or offensive contact or an apprehension of such a contact.” Nelson, 355 Md. at

602-03, 735 A.2d at 1101. This does not equate implicitly or necessarily to actual malice,

which requires more than the general intent necessary to prove a civil battery. It requires

proof of a specific intent to injure the plaintiff. Because we have restricted punitive

damage awards to cases where the conduct is “characterized by knowing and deliberate

wrongdoing,” a standard of “malice implicit” would expose inappropriately defendants to

punitive damages without requiring a plaintiff to prove actual malice and the required

specific intent to injure by clear and convincing evidence. Darcars Motors of Silver

Spring, Inc., 379 Md. at 265, 841 A.2d at 837.

Article 24 claims may be established also without proving actual malice necessarily.

We apply the Fourth Amendment reasonableness standard (see discussion supra at 15)

when we evaluate a claim for a violation of Article 24. We “take the perspective of a

reasonable officer on the scene of the incident at issue and pay close attention to the

particular facts of each case.” Okwa, 360 Md. at 204, 757 A.2d at 141. In a case

involving a question of qualified immunity for State Police troopers, the Court of Special

Appeals, relying on our decision in Okwa, stated that “a police officer acting without

malice may be liable for using excessive force in an arrest, in violation of Article 24 of

the Maryland Declaration of Rights.” Tavakoli-Nouri v. State, 139 Md. App. 716, 734,

779 A.2d 992, 1003 (2001). Therefore, it is possible for an officer to be found in

violation of Article 24 without proof of malice.

21
 Because “a judge must not allow the jury to consider the issue of ‘actual malice’”

unless the evidence of malice is clear and convincing, and it is possible for a civil battery

and an Article 24 violation to be proven without showing malice necessarily, it would be

improper for a trial court to imply routinely malice in these counts based purely on a

determination that a prima facie case of each claim was established by a preponderance

of the evidence. See Darcars Motors of Silver Spring, Inc., 379 Md. at 270, 841 A.2d at

841 (But, “where a defendant commits a tort with ‘actual malice,’ a jury may award the

plaintiff punitive damages”).8

The Court of Special Appeals did not analyze the Plaintiffs’ evidence for proof of

actual malice because it concluded that malice was implicit in the elements of battery and

for violation of Article 24. Because we determine that clear and convincing evidence of

malice and the specific intent to injure must be adduced before a jury is allowed to

consider an award of punitive damages, our examination of Plaintiffs’ evidence leads us

to conclude that Ms. Holloway-Johnson would not be entitled to have the question of an

8
The Court of Special Appeals was correct to point out that:

an award of punitive damages requires the satisfaction of a much higher
burden of persuasion than does the establishment of the base tort itself, but
that higher burden of persuasion does not involve appellate review of the
legal sufficiency of the evidence to take the issue to the jury. It involves the
burden of persuasion and not the burden of production.

Holloway-Johnson v. Beall, 220 Md. App. 195, 227, 103 A.3d 720, 739 (2014). This
does not change, however, our decision because a plaintiff is still required to produce
evidence of actual malice before any request for punitive damages should be presented to
a jury for consideration.

22
award of punitive damages submitted to the jury because she did not produce clear and

convincing evidence of actual malice on the part of Officer Beall. Respondent argues

that because Officer Beall admitted that he “pursued” the motorcycle onto the ramp,

without exigent circumstances and at least 10 m.p.h. over the speed limit, in violation of

the General Order and contrary to his Shift Commander’s directive, an intent to injure

was shown or was inferable. This evidence showed, however, only that Officer Beall’s

actions were intentional, not that the actions were malicious.

Ms. Holloway-Johnson argues further that Officer Beall’s admission that he saw

Holloway-Lilliston’s brake lights on the ramp before the collision occurred and Sergeant

McGee’s conclusion that Officer Beall did not apply his brakes were evidence of actual

malice or, at the very least evidence of Officer Beall’s consciousness of wrong-doing.

The theme of consciousness of wrong-doing pervaded Respondents’ oral arguments

before us, based primarily on the false exculpatory statements made by Officer Beall

involving his “theory” of the collision. Officer Beall’s various post-hoc accounts of how

the collision occurred (see discussion supra fn.6), and his radioed statement after the

collision that he “found this guy up here,” go undoubtedly to his credibility as a witness

and his appreciation of his negligence. It would not allow, however, for a reasonable

inference that these statements reflected Officer Beall’s intent at the time of the collision.

Respondents’ reliance also on Officer Beall’s failure to apply his brakes on the exit ramp

(after seeing the motorcycle’s brake lights) do not support an inference of actual malice

because there was no evidence on the record to show that Officer Beall was aware of the

23
speed differential between the two vehicles or that he intended to injure or harm

Holloway-Lilliston by “closing the gap.”

No evidence was produced by Ms. Holloway-Johnson to establish directly or by

reasonable inference that Officer Beall was acting with malicious intent during the

pursuit or that he had a specific intent - to harm Holloway-Lilliston on the exit ramp.9

Based on the evidence before the Circuit Court, Officer Beall’s conduct could have been

regarded as reckless or grossly negligent, but not conduct undertaken with actual malice.

Without evidence from which a reasonable jury could find or infer actual malice, even

had the battery and Article 24 claims survived the close of Plaintiffs’ case-in-chief, Ms.

Holloway-Johnson would not be entitled to punitive damages and therefore a remand is

unwarranted.

III. Local Government Tort Claims Act (LGTCA)

a. Contentions

Ms. Holloway-Johnson contends that the Court of Special Appeals erred in

approving the trial court’s application of the LGTCA’s compensatory damages “cap” to

the jury verdict regarding the negligence count because Officer Beall failed to raise

9
Compare Heinze v. Murphy, 180 Md. 423, 432-33, 24 A.2d 917, 922 (1942)
(holding that there was no evidence of malice because the police officer did not know the
plaintiff, “there ever was any reason for ill will,” and the officer conducted himself
becomingly as an officer of the law endeavoring to do his duty as he understood it to be”)
with French v. Hines, 182 Md. App. 201, 221, 957 A.2d 1000, 1011 (2008) (discussing
the inconsistency of a jury award of punitive damages without a finding of actual malice,
when presented with evidence that the plaintiff bent over to get her purse at a traffic stop
(only to be faced with the officer’s drawn gun), testimony that her head was slammed
into the side of the truck, and that the “handcuffs were deliberately too tight”).

24
timely application of the LGTCA. She contends that the LGTCA is an affirmative

defense and therefore must be pled before a verdict is rendered. Officer Beall responds

that the Court of Special Appeals held correctly that he could not waive his employer’s

protection under the LGTCA, because the LGTCA is not an affirmative defense, and that

Ms. Holloway-Johnson’s arguments have no support in Maryland law.

b. Standard of Review

Ms. Holloway-Johnson’s question is one of legislative interpretation, a question of

law. Consequentially, we accord no deference to the lower courts’ decisions here. White

v. Pines Cmty. Improvement Ass’n, Inc., 403 Md. 13, 31, 939 A.2d 165, 175 (2008); see

Gebhardt & Smith LLP v. Maryland Port Admin., 188 Md. App. 532, 564, 982 A.2d 876,

894 (2009).

c. Analysis

The Court of Special Appeals provided an exhaustive analysis of the LGTCA. See

Holloway-Johnson, 220 Md. App. at 207-18, 103 A.3d at 727-34. We agree with that

analysis.

As noted aptly by the intermediate appellate court, “the LGTCA was designed to

provide a remedy for persons injured by local government employees, who often have

limited resources from which an injured person might collect on a judgment.” Holloway-

Johnson, 220 Md. App. at 212, 103 A.3d at 730-31. “Baltimore City police officers

enjoy an indirect statutory qualified immunity under LGTCA [but] do not possess a

direct immunity from liability for their tortious conduct under LGTCA. They may be

25
sued, and judgments may be entered against them.” Smith v. Danielczyk, 400 Md. 98,

129-30, 928 A.2d 795, 814 (2007).

Because the LGTCA does not allow a plaintiff to bring suit directly against the

local government, the suit is brought against the employee. Even so, “a person may not

execute against an employee on a judgment rendered for tortious acts or omissions

committed by the employee within the scope of employment with a local government

[unless] it is found that the employee acted with actual malice.” 10 CJP § 5-302(a)-(b). If

the employee is found to have acted with actual malice, the employee is liable fully for

any damages awarded in the suit. CJP § 5-302 (b).11

10
Actual malice, for purposes of the LGTCA, is defined as “ill will or improper
motivation.” Maryland Code (1974, 2013 Repl. Vol.), Courts and Judicial Proceedings
Article, § 5-301(b) (“CJP”).
11
The LGTCA acts to protect local government employees in multiple ways:

If the action alleges that the conduct was within the scope of the
defendant’s employment, the local government must provide a legal
defense for the employee. CJP § 5–302(a). In addition, unless the
employee is found to have acted with actual malice, the plaintiff may not
execute on a judgment recovered against the employee, CJP § 5–302(b),
but, rather, subject to certain limits, the local government is liable on the
judgment. That protection may be broader than the common law immunity
in that it does not appear to exclude liability for intentional torts, so long as
they were committed within the scope of employment and without actual
malice. Because of the construct of LGTCA, however, the complaint . . . is
not subject to dismissal by reason of this indirect statutory immunity. That
immunity will have relevance only if a judgment is entered against [the
party protected by the LGTCA].

Smith v. Danielczyk, 400 Md. 98, 130, 928 A.2d 795, 814 (2007) (footnote omitted).

26
 Of specific concern here, CJP § 5-301(d)(21) makes clear that, under the LGTCA,

the Baltimore City Police Department (BCPD) is considered a local government entity

and that “[f]or purposes of tort law, however, it has been since 1997 a ‘local government’

and, as such, the tort liability of its employees is governed by the LGTCA.” Holloway-

Johnson, 220 Md. App. at 212, 103 A.3d at 730. Therefore, because the BCPD is

covered by the LGTCA, the question of whether a waiver of the statute’s protections

occurred in this case must be answered. We agree with the Court of Special Appeals that

LGTCA protection could not be waived by Officer Beall because it was not his to waive.

Because the evidence was not sufficient to prove that Officer Beall had acted with actual

malice (and he was operating within the scope of his employment), the LGTCA cap

applied.

As discussed by the Court of Special Appeals, in a case such as we have here,

whether the judgment be for $10,000 or $10 million, an injured party may
not collect so much as one penny from the employee directly, so long as the
employee is acting without malice and within the scope of his employment.
Although the judgment is nominally against the employee, it is as a
practical matter frequently meaningless as applied against the employee.
No action is required by the employee to protect himself, except to
cooperate in the defense of the action. Even then, such action need consist
only of explaining to the court that the judgment is subject to the LGTCA
and that the plaintiff may not execute against him.

Holloway-Johnson, 220 Md. App. at 213-14, 103 A.3d at 731. Because this case

implicates clearly the LGTCA, Respondent is entitled only to collect up to the damages

27
cap of $200,00012 from the local government, the amount she received after the Circuit

Court reduced the verdict awarded by the jury.13 Even though we conclude that Ms.

Holloway-Johnson’s additional substantive claims perhaps should not have been withheld

from the jury ordinarily, because the single injury-single recovery of compensatory

damages were “capped” by the LGTCA as to the award on her negligence claim and no

additional damages would be available to her had the other counts been submitted to the

jury, it serves no purpose to remand for a new trial. Therefore, we affirm in part and

reverse in part the judgment of the Court of Special Appeals, and remand with directions

to reinstate the judgment of the Circuit Court.

JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED IN PART AND
REVERSED IN PART; CASE REMANDED TO
THAT COURT WITH DIRECTIONS TO
AFFIRM THE JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY. COSTS IN
THIS COURT AND THE COURT OF SPECIAL
APPEALS TO BE SPLIT EQUALLY BY
PETITIONER AND RESPONDENT.

12
As of 1 October 2015, CJP § 5-303(a) provides that “the liability of a local
government may not exceed $400,000 per an individual claim, and $800,000 per total
claims that arise from the same occurrence for damages resulting from tortious acts or
omissions, or liability arising under subsection (b) of this section and indemnification
under subsection (c) of this section.” At the time the verdict in this case was returned and
the verdict reduced, the relevant amounts were $200,000 per individual claim and
$500,000 per total claims, but the statute was no less clear. The most Respondent could
receive was $200,000 under CJP § 5-303(a), which, regardless of our assessment of the
error in not submitting to the jury the additional claims, would not have allowed her to
recover duplicative compensatory damages, as feared by Petitioner.

The local government is not liable for punitive damages under the LGTCA. See
13

CJP § 5–303(c)(1).

28