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Mayor and City Council of Baltimore v. Suzanne Whalen No. 101, September Term, 2005 Headnote: A municipality is entitled to governmental immunity with respect to tort claims arising from the municipality's alleged negligenc e in the maintenance of public parks when the injury takes place within the boundaries of the park but outside the bound aries of a pu blic way.

Circuit Co urt for Baltim ore City Case # 24-C-03-000948

IN THE COURT OF APPEALS OF MARYLAND No. 101 September Term, 2005

Mayor and City Cou ncil of Baltimore v. Suzanne Whalen

Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinion by Cathell, J. Har rell, J ., join s in ju dgm ent o nly. Wilner, J., concurs

Filed: October 19, 2006

Suzann e Whale n, respond ent, who is leg ally blind, was in jured wh en she fell into a utility hole wh ile her guide dog wa s doing his business within the legal boundaries of Leone Riverside Park. She filed suit against the M ayor and City Council of B altimore, petitioner, claiming that Baltimore City, which owns and maintains Leone Riverside Park, was negligent by failing to ensure that the utility hole was safely covered. Petitioner moved fo r summary judgment and asserted the defen ses of governm ental immunity, statutory immunity under a recreational use statute, and lack of actual or constructive notice of the danger posed by the uncovered utility hole.1 The Circuit Court for Baltimore City granted petitioner's motion for summary judgment in an Order dated June 9, 2004. The Court of Special Appeals vacated that judgm ent. Whalen v. Mayor & City Cou ncil of Baltimore , 164 Md. App. 292, 883 A.2d 228 (2005). The Mayor and City Council of Baltimore filed a petition for a writ of certiorari, which this Court granted on December 19, 2005. Mayor and City Council of Baltimore v. Whalen , 390 Md. 284 , 888 A.2d 341 (2005). The following question is p resented fo r review: "Is a municipality entitled to

governmental immunity from a Plaintiff's tort claim that the municipa lity negligently maintained a public park?" We hold that a mun icipality is entitled to go vernmen tal immun ity with respect to tort c laims arising f rom the municipality's alleged negligence in the maintenance of public parks when the injury takes place within th e bound aries of a pu blic park but o utsid e the boundaries o f a pu blic w ay.

In light of the status of the case and our disposition it is unnecessary to address Baltimore City's last two defenses.

1

I. Facts and Procedural History Respondent came to Baltimore, Maryland, from Texas to attend a meeting at the National Center for the Blind ("NCB"). On February 12, 2000, at approximately noon, respondent took her guide dog into the Leone Riverside Park (the "Park") so that the dog could relieve itself. The Park, which is owned and o perated by Baltimore City (the "City"), is located directly across from NCB on Johnson Street. 2 While respondent and her guide dog were making the necessary leash adjustments so that the dog could have room to void,3

Johnson Street runs north-south. NCB is on the west side of Johnson Street and the Park is on its east side. Thus, to enter the Park, respondent had to exit NCB moving in an easterly direction, cross the sidewalk on the west side of Johnson Street, cross Johnson Street, and cross the sidewalk on the east side of Johnson Street. After crossing the sidewalk on the east side of Johnson Street, respondent crossed over the invisible boundary line that marks both the eastern most edge of the Johnson Street right of way and the western most edge of the Park.
At her deposition, respondent explained the procedure used when allowing her guide dog to relieve itself: "First of all, we take the dog's working harness off. When the dog

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Maryland Law