Mayor of Baltimore v. Whalen

*171Concurring Opinion by

WILNER, J.

I join the Court’s Opinion. As the law now stands, Baltimore City enjoys governmental immunity with respect to its operation and maintenance of public parks in the City, and, for that reason, it may not be held liable for the injury suffered by Ms. Whalen.

I write separately to suggest a legislative review of the governmental/proprietary distinction that apparently crept into our law in 1914, that has been rejected by most other States, and that, at least as applied, makes utterly no sense. Judges Eldridge and Cole laid all of this out in their separate opinions, one concurring and dissenting, the other dissenting, in Austin v. Mayor and City Council of Baltimore, 286 Md. 51, 67, 78, 405 A.2d 255, 263, 269 (1979), and there is no need to repeat what they have said. In Baltimore County v. RTKL, 380 Md. 670, 689, 846 A.2d 433, 444 (2004), we confirmed what we had earlier said in Baltimore v. State, 168 Md. 619, 625, 179 A. 169, 171 (1935), E. Eyring & Sons v. City of Baltimore, 253 Md. 380, 382, 252 A.2d 824, 825 (1969), and Austin v. Mayor and City Council of Baltimore, supra, 286 Md. at 58-59, 405 A.2d at 259, that “[m]any of the decisions regarding whether a function is governmental or proprietary in nature are confusing and almost impossible to reconcile.”

This Court created the distinction. It exists as a matter of common law, and we could, if we chose, abolish it. We have not done so, largely because the county and municipal governments have come to rely on the protection that governmental immunity provides. If we were to abrogate the distinction, we would then have to decide whether to afford immunity for what are now regarded as proprietary functions or abolish immunity for what have been regarded as governmental functions, and, should we opt for the latter, the decision might create fiscal and budgetary problems for local government.

The Legislature has dealt generally with local government immunity through the Local Government Tort Claims Act, in which, subject to certain exceptions and limitations, it has required local governments to compensate victims of tortious *172conduct on the part of local government employees. The Legislature has the ability, better than the Court, to examine the issues in a more global and pragmatic manner, and it ought to do so. The distressing point is that, at least on the record before us — in a case that admittedly has not been tried on the merits — it would appear that the City was indeed negligent in allowing a dangerous condition to exist on property that it owns and is required to maintain, and, in my view, its liability should not depend on whether the dangerous condition was within a right-of-way having no visible boundary or 42 inches across that invisible boundary, on level park property-