Court of Special Appeals holds county immune in well contamination case

By Stephanie Pankiewicz, associate county attorney
and
Patricia Kane, chief, Division of Insurance Defense Litigation
Office of the County Attorney, Montgomery County

The Court of Special Appeals has affirmed dismissal of a negligence claim arising out of saltwater contamination of a private well. In Creighton v. Montgomery Cty., the plaintiff claimed her well water was contaminated by the County’s alleged excessive use of salt to treat the road adjacent to her property during winter snowstorms.

The Circuit Court granted the County’s motion to dismiss the claim on both governmental-immunity and statutory-immunity grounds. The Court of Special Appeals also held on review that the County was entitled to both forms of immunity.

Specifically, the Court held that, while maintenance of a roadway is a proprietary function, choices such as how and when to remove snow and ice from the roadways during seasonal weather events are discretionary planning and policy decisions. Those governmental functions are performed for public safety and protected by governmental immunity.

The Court rejected the plaintiff’s claim that such planning decisions were proprietary under the public-ways exception, which, the Court found, allowed recovery only to those injured using the roadway and not to abutting property owners such as the plaintiff. Therefore, governmental immunity still applied.

The Court of Special Appeals also affirmed that the County was entitled to statutory immunity under 1912 Md. Laws, Ch. 790, § 464, which provides that “in all cases where roads are hereafter dedicated to the use of the public by private grant, such grants shall be taken to carry with them the right at all times to properly drain all such highways without liability to abutting owners for injuries occasioned in consequence thereof.” The Court held the statute was clear and unambiguous, and that it provided statutory immunity to the County for the use of salt to clear and drain the roadways. The Court determined that the plaintiff’s claim rested solely on the salinity of the removed liquid, and held that the statute authorized the local governments to drain this melted mixture from the public roads to ensure safe travel.