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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 00862 SEPTEMBER TERM, 2004 _____________________________

SUZANNE WHALEN v. MAYOR & CITY COUNCIL OF BALTIMORE

______________________________ Murphy, C.J., Hollander, Eyler, James R. JJ. ______________________________

Opinion by Hollander, J. ______________________________ Filed: September 16, 2005

This appeal gives new meaning to the phrase, "an accident waiting to happen." Suzanne Whalen, appellant, who is blind, was

injured when she fell into an uncovered utility hole while walking her guide dog within the boundaries of Leone Riverside Park (the "Park"), located directly across from the office of the National Federation of the Blind in Baltimore City. Appellant subsequently

filed suit against the Mayor and City Council of Baltimore (the "City"), appellee. She claimed that the City, which owns and

maintains the Park, was negligent in failing to assure that the hole was properly covered. Asserting defenses of governmental

immunity, statutory immunity under a recreational land use statute, and lack of actual or constructive notice of the danger, the City moved for summary judgment. By Order dated June 9, 2004, the

Circuit Court for Baltimore City granted the motion. On appeal, Whalen poses one question that contains two

distinct issues: Whether summary judgment was inappropriate, based either upon common law sovereign [or governmental] immunity or the municipality's lack of actual or constructive notice of the defect. To answer Whalen's inquiry as to governmental immunity, we must examine the dichotomy between governmental and proprietary functions of a municipality, and determine whether a public park may serve a dual purpose. Put another way, we must resolve whether the court below erred in deciding, as a matter of law, that because the accident occurred within the Park, the City is automatically protected by governmental immunity.

FACTUAL SUMMARY Appellant, a resident of Texas, visited Baltimore City in February 2000, to attend a meeting at the National Federation of the Blind ("NFB"), whose office is located at 1800 Johnson Street, directly across from the Park. According to appellant, "the folks" at the NFB advised the attendees "to go to this park across the street" when their service dogs needed to relieve themselves. In

her complaint, filed on February 11, 2003, appellant alleged that she left the NFB meeting at approximately noon on February 12, 2000, and "crossed the street with her dog to allow the dog to relieve itself." At that time, she "fell into an uncovered,

cement-lined pit, approximately 19" x 19" and 41" deep." According to appellant, the "hole" was "located exterior" to a chain link fence that surrounded a play area "within the Park." Appellant also averred that the hole was situated in a grassy area "adjacent to the sidewalk and pedestrian crossing that crosses Johnson Street at its intersection with Barney Street." Moreover,

she averred that because "this area was mowed, it was an area that was frequented by City employees." Whalen claimed that the City "failed to use reasonable care, in that their agents and/or employees failed to ensure that the abandoned pit or hole immediately adjacent to a public sidewalk, in a grassy area where the public and their pets could be expected to walk, was securely covered or filled in." As a result of the fall,

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appellant allegedly "sustained serious injuries to her back and right ankle, which necessitates the use of a wheelchair." "These

impairments," asserted Whalen, "are especially disabling, because she is blind." She explained: "This new disability prevents her

from teaching, which was her occupation prior to the injury." Appellee moved for summary judgment on April 13, 2004,

claiming that there was "no evidence legally sufficient to permit the plaintiff to recover against the City." numerous exhibits to support its motion. The City submitted These included

"Plaintiff's Answers to Interrogatories"; appellant's deposition, taken on February 17, 2004; appellee's "Answers to

Interrogatories," prepared by an Assistant City Solicitor; the deposition transcript of John Rekus, appellant's expert, taken on March 3, 2004; ten photographs, collectively titled "Suzanne Whalen - Pictures of Scene"; an undated Affidavit of Phillip Buddemeyer, Supervisor in the Baltimore City Office of Transportation, Field Survey Section, who prepared a survey; a plat prepared by J. Allen Jones of the Survey Control Section, "SHOWING THE LOCATION OF A CONCRETE BASE WITH A 1.6 FOOT BY 1.6 FOOT OPENING ON THE WEST SIDE OF RIVERSIDE PARK ACROSS FROM 1746 JOHNSON STREET"; and an

Affidavit of March 30, 2004, signed by J. Allen Jones, a licensed property line surveyor and Supervisor of the Survey Computations Unit in the City's Office of Transportation. We shall refer to

these exhibits in our discussion of the City's contentions.

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In its motion, the City maintained that there was "no evidence that [it] had actual or constructive notice of the existence of the hole." The City also pointed out that appellant did not establish

"how long the hole had been present prior to the plaintiff's fall and it is not known how the hole came to exist." Appellee also

cited to its Answers to Interrogatories, in which it averred that it did not know when the alleged hole "became unguarded and uncovered." In addition, the City asserted that it was "immune from suit for actions claiming negligence in the maintenance of public parks." Appellee explained that "the maintenance and operation of

a park is a governmental function," and local governments enjoy immunity with respect to "alleged tortious conduct arising out of governmental, rather than proprietary, functions." Further, the City relied on

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