By Chris Mincher
Of counsel, McAllister, DeTar, Showalter & Walker
Local government attorneys are well-familiar with the Local Government Tort Claims Act, especially its requirement that a plaintiff provide a year’s notice before suing. But they might not expect that the notice requirement would preempt provisions of municipal charters. So although unreported, the recent Appellate Court case of Bozarth v. Rams Head Tavern is worth some attention.
The case began after the plaintiff was walking on the sidewalk in Annapolis and tripped on a hatch cover. In compliance with the LGTCA — specifically at § 5-304(b)(1) of the Court and Judicial Proceedings Article — she gave notice in writing within a year that she had a negligence claim for the City’s failure to protect the public by warning of the sidewalk condition and then covering and repairing it. At trial, however, the City received a directed verdict based on a separate notice provision in its charter: Pursuant to Article IX, § 9, the City isn’t liable for personal injury or property damage based on the condition, defects, or acts or omissions in the maintenance or repair of public property, unless a few conditions are satisfied.
First, “not sooner than three days prior to the date of the occurrence resulting in the personal injury or property,” the City must have “received written notice of the specific condition, defect, act or omission … alleged to have caused or contributed to the occurrence, injury or damage.” Then, after receiving the written notice, the City is only responsible if it “failed to act with reasonable diligence to correct the condition, defect, act or omission,” with “reasonable diligence” including an internal request “to inspect and if necessary to correct the condition, defect, act or omission.” The City never got written notice of the dangerous hatch cover, so the City prevailed. Ms. Bozarth appealed, however, arguing that the LGTCA notice provision of § 5-304(b)(1) preempted those City charter provisions.
Municipal Liability for Sidewalks
Ms. Bozarth had an expansive view of § 5-304(b)(1), which, on its face, is of pretty limited effect. For one, the notice required just pertains to the claim, after it has arisen. Second, its wording doesn’t authorize any particular type of legal action against a local government.
This is noticeably different from the Charter provision, which isn’t about notice of the plaintiff’s overall claim, but rather just the “specific condition, defect, act or omission” at issue, which the City must have received before the injury or damage occurs. The provisions deal with different types of notice at different times, so the plain readings don’t conflict. The Appellate Court acknowledged this, but nonetheless concluded “the two are incompatible” such that the Charter provision is preempted. To support that conclusion, the Court cited two cases: Smith v. City of Baltimore, 156 Md. App. 377, 383 (2004) and Keen v. Mayor, Etc. of City of Havre de Grace, 93 Md. 34, 39 (1901)).
Neither of those have anything to do with the LGTCA, but instead describe negligence claims against governments for failure to maintain public property. The gist of those holdings is that, once a municipality has actual or constructive notice of a bad condition on its streets, it has a duty to repair it and can be sued if it doesn’t. The Court therefore concluded that, “based on a reading of LGTCA and the City Charter together,” Annapolis has modified the cause of action for negligence (at least, specific to the failure to maintain public property) to remove “actual or constructive notice” and replace it with the more stringent “written notice.” Further, in the Court’s view, the City replaced the duty to repair unsafe conditions with the mere requirement to internally request that someone repair it.
A New Preemptive Effect for the LGTCA
In analyzing whether Annapolis was allowed to put in different rules than what flowed from Smith and Keen, the Court looked at McCrory Corp. v. Fowler, 319 Md. 12, 20 (1990). That case held that “the creation of new causes of action in the courts has traditionally been done either by the General Assembly or by this Court under its authority to modify the common law” and “the creation of new judicial remedies has traditionally been done on a statewide basis.” The Bozarth panel applied that premise to what it saw as Annapolis’ modification of an existing cause of action (rather than creating a whole new cause of action).
As the Court saw it, Annapolis couldn’t create a notification requirement for this kind of negligence claim unless it had General Assembly authorization to “modify the elements of a cause of action” through the Local Government Article (specifically in the municipal powers provisions of §§ 5-202 through 5-217). Those sections don’t specifically mention anything about modifying causes of action, so Annapolis wasn’t allowed to restrict its liability that way. In sum, the Court ruled, “the Annapolis City Charter cannot modify or create a cause of action inconsistent with the LGTCA’s notice requirement without the authority of the General Assembly or the modification of the common law by Maryland Courts. The City Charter ultimately prohibits an act permitted by the state legislature, and is therefore preempted by the LGTCA.”
Crucial to this holding is the question of whether the LGTCA is just a bar on lawsuits filed without a year’s notice, or permission to plaintiffs to file a lawsuit when the notice has been given. The opinion concludes that the “City Charter ultimately prohibits an act permitted by the state legislature” — presumably this refers to the filing of a negligence claim based on failure to maintain property — “and is therefore preempted by the LGTCA.” But the Court also previously cites Baltimore Police Dep’t v Cherkes, 140 Md. App. 282, 318 (2001), for the premise that the LGTCA does not authorize a direct action against a local government. Can both be true?
An Inconsistent Finding Of Inconsistency
The wording of the LGTCA itself has nothing to say about what claims a plaintiff may or may not bring, or affirmatively authorize the bringing of claims once the required notice is given. The Charter doesn’t say anything about allowing plaintiffs to sue the City after a year without giving notice. As such, even if the Charter did modify or create a cause of action, that still wouldn’t seem to be “inconsistent” with a provision that is solely about notice.
Bozarth was based on “a reading of the LGTCA and the City Charter together,” but, when putting those side by side, it’s hard to see where the inconsistency is. The real preemption that seems to be going on here is the Court’s preemption of the Charter provision with the elements of a claim for negligence when a government doesn’t maintain sidewalks. This kind of negligence claim is not laid out in the Maryland Code anywhere, so it’s worth tracking down the authorities cited and seeing where exactly it comes from.
Let’s start with the Court’s belief that the Charter modifies the claim for negligent failure to maintain public property by only requiring that the City “request” a defect be fixed rather than actually fix it. The Court honed in on the requirement that the City exercise “reasonable diligence,” which would include a request to “inspect and if necessary correct” the defective condition. The panel felt that wasn’t the same as being required to actually make the fix.
That seems like a bit of a strained reading of the Charter provision. The overall clause makes clear it refers to acting “with reasonable diligence to correct the condition, defect, act or omission.” It states outright that the City can be liable if it doesn’t correct the problem, regardless of what the lesser-included definition of “reasonable diligence” is.
It All Comes Back to the General Assembly
Putting that aside, for there to be preemption of the City’s law, it’s important to know who is preempting it. That raises the question of the origin of this municipal duty to, upon actual constructive notice, repair defects in sidewalks. Keen, a 1901 case, is the Court’s starting point for that proposition — Smith just cites Keen for its language anyway — but the source of the duty can be seen in the two (even more ancient) cases that Keen relies on: Baltimore v. Pendleton, 15 Md. 12 (1860), and Baltimore v. Marriott, 9 Md. 160 (1856).
Those cases (which the Appellate Court didn’t specifically mention) held that the statute incorporating Baltimore, by giving it the authority to prevent and remove nuisances, also assigned it the same duty and liability to make repairs as would an individual with such a duty. “The only difference is,” Judge Mason wrote in Marriott, “that the common law imposes the duty upon the individual, while a statute of our State imposes it upon the corporation” (emphasis in the original). Though the Bozarth opinion doesn’t explicitly cite it, there’s no question that the General Assembly has given Annapolis this power: § 5-209 of the Local Government Article, as in Keen, gives municipalities the power to prevent and remove nuisances.
So although the decision’s reasoning isn’t exactly laid out this way, the precedent does support that, ultimately, negligent failure to maintain public property is a cause of action created by the General Assembly. Even so, it would need to be established that cause of action (which is almost entirely the result of court interpretation rather than express State legislation) necessarily preempts the City’s attempt to limit it. The Court begins that analysis with the unsurprising premise that the General Assembly itself can — as Annapolis tried to do here — create more stringent notice criteria for local government liability.
Notice As A Modified Cause of Action
As the City pointed out, the former Court of Appeals previously approved a similar notice provision in Engle v. Cumberland, 180 Md. 465 (1942). There, the General Assembly had created — by enacting a public local law — a charter clause almost identical to the Annapolis one: Cumberland couldn’t be liable for a defect in public property unless it had been brought to the attention of the mayor or city engineer at least 24 hours before the injury occurred, and “proper diligence” was not exercised to “rectify” it. Though the language between the two charters is strikingly alike, the crucial difference to the Appellate Court was that the General Assembly enacted Cumberland’s provision but didn’t enact the Annapolis one.
In holding that Annapolis could not, on its own, use the same concepts as Cumberland in limiting tort liability, the Court cited McCrory Corp. That case struck down a county ordinance that expressly created a new cause of action between private parties and authorized the claim to be brought in state court. Now, that’s quite a different scenario than what happened here — the Annapolis charter limited its own liability to citizens, and it doesn’t say anything specific to a cause of action at all or mention the judiciary.
Plus, the Court doesn’t really give the full picture of McCrory. For one, the case is about creating new civil liability from one individual to another, and doesn’t address implicitly “modifying” existing causes of action. Further, in that same discussion, McCrory explains this kind of action by local governments is prohibited when it regulates a “statewide problem” with “a remedy which has been the sole province of the General Assembly and the Court of Appeals.”
It seems fair to grant that people suing local governments is a statewide issue; that was the whole reason for the LGTCA in the first place. But given that the LGTCA doesn’t authorize any particular causes of action, it’s hard to say the General Assembly occupies the entire field for local tort liability. Nor does broadly empowering municipalities with the right to fix sidewalks provide a “remedy” in the General Assembly’s “sole province.”
Time to Review Those Charters
So where does this end up? According to the former Court of Appeals, the General Assembly, by empowering local governments to maintain its sidewalks, also gave them liability for injuries on those sidewalks when there is actual or constructive notice of defects. Given that longstanding interpretation, it’s plausible the granting of that authority (currently perhaps in § 5-209 of the Local Government Article) could have a preclusive effect against an inconsistent municipal charter provision — unless that was supported by some other action of the General Assembly.
The Appellate Court also had that thought, and perused the municipal powers of LG §§ 5-502 through 5-217 looking for the ability to “create or modify” causes of action. Seemingly more applicable might be some sort of ability for a local government to limit its liability or the scope of its duties to the public, but, in either case, no provision really fits that description in either Article XI-E of the Maryland Constitution or Division II of the Local Government Article of the Maryland Code. Without that, the Bozarth outcome seems justifiable.
One last additional observation: The court didn’t just say that Annapolis couldn’t modify a cause of action “inconsistent with the LGTCA’s notice requirement” without General Assembly authorization — it also said the City couldn’t do that without “modification of the common law by Maryland Courts.” On this point, it’s worth noting again that, in Keen, the lynchpin of the Court’s decision was its determination that the local government’s duty generated from statute, not common law. Also, even McCrory (citing County Council v. Investors Funding, 270 Md. 403 (1973)) recounted that chartered local governments can, when acting within their express powers, revise the common law. So it’s somewhat unclear what the Appellate Court was hinting at there, or if it even intended to open up that can of worms.
Overall, however, government attorneys will mostly want to focus on the role of the LGTCA in all this, and it is still a little murky. After all, the Court was clear that it was the LGTCA notice provision that was doing the work of preempting the Annapolis charter, not the negligence cause of action. The appellate view of this aspect of the LGTCA may be much more substantive than what was previously assumed, and municipalities should be wary.