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HEADNOTE: Tammie A. Pulliam, Personal Representative of the Estate of Rodney B. Pulliam, et al. v. Motor Vehicle Administration, et al., No. 1987, September Term 2006 NEGLIGENCE - SPECIAL DUTY TO PROTECT ANOTHER FROM ACTS OF A THIRD PARTY - DUTY OWED BY MOTOR VEHICLE ADMINISTRATION AND MEDICAL ADVISORY BOARD TO RESTRICT, SUSPEND OR REVOKE DRIVER'S LICENSE OF LICENSEE KNOWN TO HAVE SUFFERED SEIZURES AND WHO FAILED TO TURN IN COMPLETED AFFIDAVITS CERTIFYING HE HAD BEEN SEIZURE FREE FOR A SPECIFIED PERIOD OF TIME Appellant's husband and three minor children were killed when a vehicle driven by Anthony F. Grimes collided with the vehicle they were occupying. Appellant alleged that at the time of the accident, Grimes was suffering the effects of a seizure. Appellant further alleged that Grimes had a history of such seizures, that the Motor Vehicle Administration and its Medical Advisory Board, appellees, were aware that Grimes had a history of seizures, that appellees issued Grimes a driver's license on the condition, inter alia, that he provide affidavits certifying that he had been seizure free for a specified period of time, and that appellees failed to revoke or suspend Grimes' driver's license, and in fact issued him a duplicate driver's license, when he failed to provide the required affidavits. Under Maryland law, a special duty to protect another from the acts of a third party may be established by statute or rule, by contractual or other private relationship, or indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party. In this case, there was no evidence of a contractual or other private relationship between any of the parties. Nor could appellant establish a special duty indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party because (1) there was no custodial relationship between the appellees and Grimes and (2) there was no affirmative act by appellees to protect the deceased members of the Pulliam family, or a specific group of individuals like them, that induced their reliance upon appellees. Finally, the statutory scheme pertaining to the issuance of

drivers' licenses to persons suffering from seizure disorders cannot be used as the basis for a negligence claim because the statutes do not set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole. Here, the benefits of the statutory scheme protection from an accident caused by an individual suffering a seizure while operating a motor vehicle - redounded to the general public.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1987 September Term, 2006

TAMMIE A. PULLIAM, PERSONAL REPRESENTATIVE OF THE ESTATE OF RODNEY B. PULLIAM, ET AL. v. MOTOR VEHICLE ADMINISTRATION, ET AL.

Salmon, Eyler, Deborah S., Thieme, Raymond G., Jr. (Ret., specially assigned), JJ.

Opinion by Thieme, J.

Filed:

September 4, 2008

This case arises out of a March 23, 2002 automobile collision in which Anthony F. Grimes struck and killed Rodney B. Pulliam and his three children, Rodney B. Pulliam, II, Matthew I. Pulliam, and Jordan Pulliam. Tammie A. Pulliam, appellant, is the surviving spouse of Rodney B. Pulliam and the natural mother of Rodney, Matthew, and Jordan. On October 17, 2002, appellant, as personal representative of the estate of Rodney B. Pulliam, and next of kin to the deceased members of the Pulliam family, filed suit in the Circuit Court for Frederick County against Grimes. She later filed an amended complaint adding the Motor Vehicle Administration ("MVA") and the Motor Vehicle Administration's Medical Advisory Board ("MAB"), appellees, as defendants. Appellees filed a motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted, which the court granted. On September 29, 2006, appellant settled her claims against Grimes, and this appeal followed. Issue Presented Appellant presents three questions for our consideration, all of which involve the single issue of whether the circuit court erred in dismissing her claims against the MVA and the MAB.1

1

Appellant presented the following questions for our consideration: 1. At the motion to dismiss stage and taking all factual allegations as true, do Appellants allege facts to state a claim against the [MVA and the MAB]? 2. Did the trial court err as a matter of law by dismissing Appellants' claims prior to discovery of the [MVA and the MAB]?

Factual Background The facts, as set forth in appellant's amended complaint, are as follows: The MVA is a state agency responsible for licensing and enforcement of regulations regarding operators of motor vehicles, and has the responsibility of ensuring that drivers are capable of operating motor vehicles safely. The MVA performs these functions in a variety of ways, including referral to the MAB, which is a group within the MVA that is required to review and approve the reinstatement, suspension, and/or revocation of driving privileges for persons with epilepsy and other illnesses in which there is a lapse of consciousness, blackout, seizure, and other conditions. On or about November 11, 2000, Grimes suffered a seizure while driving, and struck a house with his car. As a result of that incident, the MAB issued an emergency suspension of his driving privileges, and later recommended a three (3) month "driving/license suspension." On February 12, 2001, the MAB suspended Grimes' driving privileges. On or about April 20, 2001, the MAB withdrew the suspension of Grimes' driving privileges, but required him to submit every three (3) months, beginning on July 20, 2001, an affidavit certifying that he was seizure free. Grimes was also required to submit, on April 20, 2002, a follow-up report from his treating physician. On July 10, 2001, Grimes submitted an incomplete affidavit, failing to certify that he was seizure free. On October 11, 2001, Grimes advised his physician, Konrad

3. Is the public duty doctrine consistent with Maryland public policy?

Bakker, M.D., that he had turned in his license after having had another seizure and causing "a fender bender." Between that date and February 16, 2002, Grimes failed to file an affidavit stating that he had been seizure free for 90 days as required by the MAB. Nevertheless, on or about February 16, 2002, Grimes applied for, and was issued, a duplicate driver's license. Just over a month later, on March 23, 2002, Grimes had one or more seizures, but continued to operate a motor vehicle. At approximately 10:34 that morning, while traveling southbound in the right lane of Butterfly Lane near its intersection with Jefferson Pike, Grimes drove his vehicle into the back of a vehicle operated by Rodney B. Pulliam, causing the death of Mr. Pulliam and his three children, who were passengers in the vehicle. Appellant claimed that the MVA and the MAB were on notice that Grimes was an impaired driver because of his history of seizures and motor vehicle accidents, and that they each had a duty to monitor the certification of such drivers and to protect residents from harm on Maryland roadways by verifying that Grimes was capable of safely operating a motor vehicle. According to appellant, the MVA and MAB each owed a duty to her and her deceased family members to exercise the degree of skill and care expected of a reasonably competent agency in the same or similar circumstances. Appellant's amended complaint included survival actions for Rodney B. Pulliam and each of the three Pulliam children. Appellant claimed that Grimes was negligent in failing to maintain a reasonable and proper rate of speed; failing to maintain proper

control of his vehicle; failing to keep a proper lookout; failing to operate his vehicle in a safe and reasonable manner; carelessly, recklessly and negligently operating his vehicle while under a known physical impairment; and, failing to take steps necessary to avoid the collision. Appellant further alleged that the MVA negligently beached its duty to ensure that Grimes was capable of operating a motor vehicle safely and to enforce regulations regarding motor vehicle operators with disabilities by failing to maintain current records documenting Grimes' seizure control; failing to investigate the circumstances regarding Grimes' surrender of his motor vehicle license; failing to prevent Grimes from obtaining a motor vehicle license without the required documentation demonstrating that he was seizure free for the requisite time period; and, failing to take steps necessary to avoid an unsafe driver from operating a motor vehicle. As to the MAB, appellant alleged that it breached its duty to review and make prudent decisions regarding proposed reinstatements, suspensions and/or revocations of driving privileges for persons with epilepsy or other illnesses in which there is a lapse of consciousness, blackout, or seizure; by failing to maintain current records documenting Grimes' seizure control; failing to investigate the circumstances regarding Grimes' surrender of his motor vehicle license; failing to prevent Grimes from obtaining a motor vehicle license without the required documentation demonstrating that he was seizure free for the requisite time period; and, failing to take steps necessary to avoid an unsafe driver from operating a motor vehicle.

Appellant also asserted wrongful death claims alleging that, as a result of Grimes' negligence, her husband and three children suffered grave personal injuries, resulting in death, causing pecuniary loss to the estate and next of kin, and causing appellant to suffer mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, attention, advice, counsel and guidance, as well as other economic and non-economic damages and related losses. In response to appellant's amended complaint, the MVA and the MAB filed a motion to dismiss for failure to state a claim upon which relief could be granted on the ground that no duty of care was owed to appellant's deceased husband or sons. They claimed that appellant's cause of action fell within the general tort law that no person has the duty to protect a plaintiff from the negligent or intentional acts of third persons, and that the duty of a state agency to act as mandated by statute for the protection of the public health and safety is owed to the public at large and does not create a tort duty to an individual. In addition, the MVA and MAB argued that even if the MVA had owed a duty in tort to the deceased members of the Pulliam family to take action against Grimes' driving privilege, the MVA was prevented from taking any action to suspend Grimes' driver's license because the maximum period of license suspension that could have been imposed upon report of a seizure was 90 days. According to appellees, even if Grimes' voluntary relinquishment of his driver's license on October 11, 2001 provided notice that he had had a subsequent seizure, the most appellees could have done was impose another 90-day

suspension, which would have made Grimes eligible to seek reissuance of his driver's license prior to the date of the subject automobile accident. Appellant countered that the MVA had the legal authority to restrict, suspend or revoke Grimes' driver's license, but negligently failed to do so by failing either to suspend Grimes' license at the time he requested a duplicate license or denying his request for a duplicate license. The court rejected appellees' argument that the MVA was prevented from taking any action to suspend Grimes' driver's license because the maximum period of suspension that could have been imposed was 90 days, but granted the motion to dismiss with prejudice on the ground that the duties owed by the MVA and MAB are owed to the public at large and do not create an enforceable tort duty to specific individuals. Standard of Review We review the grant of a motion to dismiss de novo. Reichs Ford Road Joint Venture v. State Roads Com'n of the State Highway Admin., 388 Md. 500, 509 (2005)(citing Adamson v. Corr. Med. Servs., 359 Md. 238, 246 (2000)). We examine the complaint and determine whether it states a legally sufficient cause of action. Id.; Collins v. Li, 176 Md. App. 502, 534-35 (2007). We must assume the truth of all the well-pleaded factual allegations of the complaint, including the reasonable inferences that may be drawn from them, and we review the complaint in the light most favorable to the non-moving party. Debbas v. Nelson, 389 Md. 364, 372 (2005); Reichs Ford , 388 Md. at 509; Collins, 176 Md. App. at 534-35. Dismissal is proper only if the complaint

would fail to provide the plaintiff with a judicial remedy. Allied Inv. Corp. v. Jasen, 354 Md. 547, 555 (1999); Reichs Ford , 388 Md. at 509 (citing Bobo v. State , 346 Md. 706, 709 (1997)). Discussion A. Duty It is well established that in order to set forth a claim for negligence, a plaintiff must allege the following elements: a duty owed by the defendant to the plaintiff, a breach of that duty, actual injury or loss suffered by the plaintiff, and that the injury or loss proximately resulted from the defendant's breach of the duty. Muthukumarana v. Montgomery County, 370 Md. 447, 486 (2002)(and cases cited therein); Corinaldi v. Columbia Courtyard, Inc., 162 Md. App. 207, 218 (and cases cited therein), cert. dismissed, 389 Md. 124 (2005). 2 Whether there is adequate proof of the required elements to succeed in a negligence action is generally a question of fact to be determined by the fact-finder, while the existence of a legal duty is a question of law to be decided by the court. Patton v. United State of America Rugby Football Union, Ltd. d/b/a USA Rugby, et al., 381 Md. 627, 636 (2004); Corinaldi, 162 Md. App. at 218. The focus in this case is on the first element, duty, which the Court of Appeals has defined as follows:

Historically, the State of Maryland enjoyed immunity from tort liability for the acts of its employees but, by the enactment of the Maryland Tort Claims Act, Md. Code Ann., State Gov't

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