An Anne Arundel County Circuit Court judge today ruled that a county police officer could not be held responsible for injuries caused by a drunken driver a short time after the driver was stopped, but not arrested, by police.
Judge James C. Cawood Jr. dismissed Anne Arundel Officer Dennis Freeberger and Freeberger's employers, County Executive James Lighthizer and Police Chief William S. Lindsey, from a lawsuit brought by William F. Ashburn II, a Baltimore man who charged that Freeberger was negligent in not arresting the driver.
Ashburn was walking along a snowy road in northern Anne Arundel County in the early morning of Feb. 18, 1983, when a car driven by John J. Millham struck him. Minutes earlier, Millham had been found slumped over his steering wheel by Freeberger, who warned him not to drive any more that night. Ashburn, who lost a leg in the accident, argued that the officer had a mandatory responsibility to detain Millham, who is now the only party to the suit. Ashburn's attorney said yesterday he will appeal Cawood's ruling.
In his ruling, Cawood bucked a recent trend by judges in Arizona, Florida, California and Massachusetts, who in similar lawsuits have found police officers liable because they have a mandatory "special duty" to the public to avert potential harm.
Perhaps the best known of these suits was brought against the city of Ware, Mass., last year by a woman who lost her family to a drunken driver. In August, Massachusetts' highest court determined that a police officer who failed to remove the driver from the highway was also responsible to the woman for the loss.
Cawood disagreed with the Massachusetts court's finding that police officers have a "special duty" to the public as a whole. He cited an earlier decision by a District of Columbia judge who said there must be some form of "direct contact" between the victim and the police.
"The 'special duty' doctrine is an extremely limited one," Cawood said in his 15-page opinion. "To accept the special duty doctrine and then to expand it to the protection of the entire public who drives or uses the highway is simply to remove governmental immunity totally by the back door."
Governmental immunity entitles governments and their agents to immunity from suit if they are acting only in governmental capacity.
Robert Wilcox, the deputy county solicitor who argued for the dismissal of county officials, said today's ruling reaffirms Maryland's strong support of governmental immunity.
"I think what is significant here is there have been a spate of cases across the country that have gone the opposite way," he said. "The cause of the accident was a drunken driver, so why should the taxpayers have to bail him out?"