                   REPORTED

    IN THE COURT OF SPECIAL APPEALS
             OF MARYLAND

                      No. 2338

               September Term, 2012



       CONNIE HOLLOWAY-JOHNSON


                          v.


          TIMOTHY EVERETT BEALL




       Eyler, Deborah S.,
       Woodward,
       Moylan, Charles E., Jr.
        (Retired, Specially Assigned),

                                    JJ.*



               Opinion by Moylan, J.


            Filed: November 25, 2014

       *Arthur, J., did not participate in the Court's
decision to designate this opinion for publication
pursuant to Maryland Rule 8-605.1.
       By virtue of an at least partially successful suit on the merits, the appellant is in

position to recover $200,000 in damages. The appellant's aspiration, however, is to recover

three and a half million dollars in damages. What stands between the already captured bird

in the hand and the still elusive second bird in the bush is a statutory damages cap. The

dominant issue on this appeal concerns the appellant's effort to dissolve that statutory barrier

by persuading us that it has somehow been waived. That effort, however, is undermined by

a misdirected focus on the wrong question. The appellant directs our attention to the

procedural modality of how a protection may be waived. May it be deemed to have been

waived by a failure timely to assert it? The very different and overarching issue, however,

she totally ignores. Trumping the question of "HOW is something waived?" is the

superseding question of "WHO may waive?" The appellant takes the identity of WHO for

granted. This she may not do.

                                    The Present Case

       This appeal arises out of a wrongful death suit filed by the appellant, Connie

Holloway-Johnson, on her own behalf and as personal representative of the estate of her son,

Haines E. Holloway-Lilliston, against the appellee, Timothy Everett Beall, a Baltimore City

police officer, in the Circuit Court for Baltimore City.1 Officer Beall was involved in a July

25, 2010 motor vehicle collision that resulted in Holloway-Lilliston's death. The appellant



       1
         The appellant also filed suit against the Mayor and City Council of Baltimore City,
but she voluntarily dismissed the City from the case before trial. Clea v. City of Baltimore,
312 Md. 662, 668, 541 A.2d 1303 (1988), makes it clear that Baltimore City cannot be liable
for the torts of the Baltimore City Police Department.
alleged negligence, gross negligence, battery, and violation of Article 24 of the Maryland

Declaration of Rights, and sought compensatory and punitive damages of $20 million.

Before bringing suit, the appellant provided timely notice of her claim to the Baltimore City

Solicitor and the Maryland State Treasurer.

       The case was tried to a jury between July 24, 2012 and August 3, 2012. At the close

of the appellant's case-in-chief, the court entered judgment in favor of Off. Beall on the

gross negligence, battery, constitutional, and punitive damages claims. The negligence

claim was submitted to the jury and the jury returned a verdict in favor of the appellant in

the amount of $3,505,000. Judgment was entered on August 8, 2012. On August 20, 2012,

Off. Beall moved for a new trial or, in the alternative, to revise the judgment. By order of

December 14, 2012, the court granted his motion, ordering "that [Off. Beall] is entitled to

a new trial" and, "[a]lternatively," ordering "that the judgment entered in this case is revised

by reducing it to $200,000.00 in accordance with the Local Government Tort Claims Act."2

                                     The Contentions

       On this appeal, the appellant contends:



       2
         The LGTCA, of course, does not compel the remittitur. With or without any post-
trial motion, the LGTCA's statutory damages cap imposed a limit not on the verdict against
Off. Beall per se but only on the extent to which the appellant could seek to execute her
award against the Baltimore City Police Department. No one, however, has raised any
question about the procedural propriety of the remittitur with respect to Off. Beall per se and
it is unnecessary for us to dwell on it. The only question of any concern, no matter how the
question was bumbled into, is whether the damages cap limits the financial obligation of the
BCPD to $200,000. We are content to let the issue before us go at that.

                                             -2-
               1) that Off. Beall waived the protections afforded by the Local
       Government Tort Claims Act ("LGTCA") by failing to raise the issue until
       after the verdict and judgment were entered; and

              2) that the court erred in granting Off. Beall's motions for judgment on
       her claims for gross negligence, battery, violation of Article 24 of the
       Maryland Declaration of Rights, and punitive damages.

Off. Beall has noted a cross-appeal and contends:

              3) that the court erred by denying his motion for judgment on the
       negligence claim because he was entitled to statutory immunity as the operator
       of an emergency vehicle in emergency service.

                                A Post-Midnight Chase

       On the early morning of July 25, 2010, Off. Beall was on duty, working the midnight

patrol shift in the Northern District of Baltimore City in a marked police cruiser. He heard

a radio transmission from an off-duty officer reporting a black Mercedes convertible and a

motorcycle traveling northbound on the Jones Falls Expressway, I-83, near 25th Street, at

speeds of approximately 100 miles per hour. Other officers were able to stop the vehicle,

which turned out to be a black Toyota, but could not stop the motorcycle.

       Off. Beall entered I-83 North from the Cold Spring Lane interchange and began

following a motorcycle driven by Holloway-Lilliston. The motorcycle was traveling 35

m.p.h. in a 50 m.p.h. zone. Not sure whether this was in fact the offending motorcycle, Off.

Beall maintained a distance of three car lengths behind and followed it to the Northern




                                            -3-
Parkway interchange. At that point, Holloway-Lilliston "popped a wheelie"3 and accelerated

to about 75 m.p.h., continuing northbound on I-83. Off. Beall activated his emergency lights

and siren and accelerated to keep pace. Off. Beall followed Holloway-Lilliston onto the

inner loop of the Baltimore Beltway, I-695 East, still keeping pace with him at a speed of

about 75 m.p.h. They continued through the Charles Street interchange, at which point their

speed dropped to 50 m.p.h., which was the posted speed limit in what was, at that time, a

construction zone.

       According to Off. Beall, he was having trouble receiving radio messages while on

I-695. He asserted the existence of radio "dead spots" at certain locations in the Northern

District in Baltimore City and in Baltimore County where he was unable to receive or to

transmit radio messages. Off. Beall denied receiving a radio order from his shift commander

that, "[i]f all they're wanted for is traffic, just come back to the district before your radio dies

out." At the York Road interchange, Off. Beall did receive this message from his shift

commander:

       Yeah, have the officer disregard and come back, notify the state police of his
       location, the radio is going to die out soon, if there are repeaters out there, so
       just come on back.

Off. Beall heard the dispatcher then repeat:



       3
       This is "a maneuver in which a bicycle, motorcycle, or car has its front wheel or
wheels momentarily lifted off the ground." "Wheelie." Dictionary.com Unabridged.
Random House, Inc. http://dictionary.reference.com/browse/wheelie (accessed: October 27,
2014).

                                               -4-
       And per, ah, state police, he'll send someone out, but if it's just traffic, he
       recommends you not to follow it.

Off. Beall responded, "10-4," and turned off his emergency lights and siren. Off. Beall then

telephoned the State Police, using his cell phone, advising that he was "following a ...

possibly stolen motorcycle eastbound on 695 ... coming up on York Road." Off. Beall

advised that he was at "Dulaney Valley Road South," and then the call was cut off.

       Off. Beall followed Holloway-Lilliston onto the exit ramp for Dulaney Valley Road

South. Off. Beall was traveling at between 41 and 44 m.p.h., and Holloway-Lilliston was

traveling at between 31 and 33 m.p.h. On the exit ramp, Off. Beall's cruiser made contact

with Holloway-Lilliston's motorcycle and Holloway-Lilliston was ejected from the

motorcycle. He landed on the hood of Off. Beall's cruiser and then rolled off the left side

of it, ultimately landing head first on the pavement. Holloway-Lilliston suffered severe

injuries and died, likely immediately, upon impact with the pavement.

                       A Furiously Contested Moot Question

       The first major skirmish on this appeal illustrates how easily a trial can go off the

tracks or at least be sidetracked down an immaterial tangent. The parties have flailed away

at each other over what Off. Beall did or did not do procedurally. They are both operating,

however, within the four corners of their mutual assumption that his actions had a

controlling influence on the applicability of the damages cap. Nobody paused to think

outside the box. Nobody asked whether Off. Beall's action or inaction actually mattered as



                                            -5-
far as the cap was concerned. It did not. The skirmish within the box, however, still rages

on appeal.

       In a tempestuous Punch and Judy exchange of irrelevancies, the appellant leads off

with the argument that Off. Beall waived the protections of the LGTCA, Md. Code, §§ 5-

301, et seq., of the Courts & Judicial Proceedings Article ("CJP") – specifically, the

$200,000 cap on damages – by failing to raise the issue until after the jury verdict was

rendered and judgment was entered. She argues that the LGTCA is an affirmative defense

that Off. Beall was required to plead specifically before trial and, having failed to do so,

thereby waived.

       Off. Beall counters by acknowledging that he did not mention the issue of the

LGTCA damages cap until his August 20, 2012 motion for new trial or to revise judgment.

He nevertheless maintains that the LGTCA damages cap is not an affirmative defense and

that he was not, therefore, required to plead it specifically. He insists that the general denial

in his answer was sufficient to preserve the defense. In any event, he further argues, the

appellant was on notice that her claims were subject to the LGTCA damages cap long before

trial because she notified the City of her claim within six months of the accident as required

by another section of the LGTCA, CJP § 5-304.

       We find it unnecessary to referee that contest. As we shall explain more fully infra,

this spirited exchange of contentions is no more than an immaterial sideshow. With respect

to the LGTCA's damages cap, what Off. Beall did or failed to do procedurally does not


                                              -6-
matter. The decision was way beyond his pay grade.

                       The Local Government Tort Claims Act

       Some context is appropriate. The LGTCA first became law in 1987. In Ennis v.

Crenca, 322 Md. 285, 291, 587 A.2d 485 (1991), Judge Eldridge explained its purposes.

       The Local Government Tort Claims Act was passed in response to a perceived
       insurance crisis plaguing counties, municipalities and their employees. The
       legislative history of the Act reflects the General Assembly's concern for the
       impact of increased law suits on the incentive of public employees and
       officials to do their jobs to the best of their abilities. See the Department of
       Legislative Reference's file on Senate Bill 237 of the 1987 Session of the
       General Assembly.

       The LGTCA provides local government employees an "indirect statutory qualified

immunity" from liability for tortious acts or omissions so long as they are acting within the

scope of their employment.4 See Smith v. Danielczyk, 400 Md. 98, 129-30, 928 A.2d 795



       4
         Although the terms can sometimes be confused, Judge Eldridge in Maryland-
National Capital Planning Comm'n v. Kranz, 308 Md. 618, 622, 521 A.2d 729 (1987), very
carefully distinguished between sovereign immunity, enjoyed by the State of Maryland and
its state agencies, and governmental immunity, enjoyed by local governmental units in tort
actions.

              As this Court has often pointed out, the doctrine that the State of
       Maryland and state agencies are generally immune from suits, unless the
       immunity has been waived by the General Assembly, "'is firmly embedded in
       the law of Maryland.'" On the other hand, counties and municipalities do not
       possess this general immunity. Instead, counties and municipalities have
       never been given immunity in contract actions, and, in tort actions, they are
       not immune with regard to those matters categorized as "proprietary" but are
       immune with regard to those matters categorized as "governmental."

(Emphasis supplied).

                                            -7-
(2007). A plaintiff must sue the allegedly negligent employee directly; the LGTCA does not

authorize suit against the local government for its employee's actions. See Nam v.

Montgomery County, 127 Md. App. 172, 183-85, 732 A.2d 356 (1999); Williams v. Prince

George's County, 112 Md. App. 526, 552-53, 685 A.2d 884 (1996); Khawaga v. City of

Rockville, 89 Md. App. 314, 323-26, 598 A.2d 489 (1991). Nevertheless, the plaintiff "may

not execute against an employee on a judgment rendered for tortious acts or omissions

committed by the employee within the scope of employment," unless the employee is found

to have acted with what the statute refers to anachronistically as "actual malice."5 CJP § 5-


       5
        The phrase "actual malice," although it earlier made what was a necessary distinction
in the 20-year period between 1972 and 1992, would now seem to be an anachronism. In
LGTCA tort law today, all malice is actual malice. There isn't any other kind. In Darcars
Motors of Silver Spring v. Borzym, 150 Md. App. 18, 28-29, 818 A.2d 1159 (2003), this
Court described the 1972-1992 distinction.

               The very necessity of modifying the noun "malice" with the adjective
       "actual" strongly suggests that there is or recently has been a definitional
       problem in describing the predicate for a punitive damages award. Over the
       twenty year period from Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297
       A.2d 721 (1972) through Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d
       633 (1992), Maryland was plagued with two different forms of malice that
       could, under varying circumstances, support a punitive damages award. To
       distinguish the two, we necessarily resorted to [adjectival] modifiers. The
       traditional malice that we have described above, which was Maryland's
       exclusive form of malice prior to 1972 and which is Maryland's exclusive form
       of malice today, we labeled "actual malice." The other, or "non-actual"
       malice, emanating from the Smith v. Gray Concrete Pipe Co. case, we called
       "implied malice."

      The notion of "implied malice" as a predicate for a punitive damages award first arose
in Smith v. Gray Concrete Pipe Co., in 1972. It suffered widespread criticism. The
                                                                               (continued...)

                                            -8-
302(b) (emphasis supplied).

       The LGTCA transfers financial liability for torts within the scope of employment

from the employee to the local government. CJP § 5-303(b)(1) ("a local government shall

be liable for any judgment against its employee for damages resulting from tortious acts or

omissions committed by the employee within the scope of employment with the local

government") (emphasis supplied). The local government's liability is capped at "$200,000

per an individual claim and $500,000 per total claims that arise from the same occurrence."

CJP § 5-303(a)(1).

       If the employee is found to have acted with "actual malice," the plaintiff may enforce

a judgment against both the local government (up to the damages cap) and the employee.

"Actual malice" is defined in the statute as "ill will or improper motivation." CJP § 5-



       5
           (...continued)
handwriting for its demise was placed on the wall in 1991 by the concurring opinion of
Judges Eldridge, Cole, and Chasanow in Schaefer v. Miller, 322 Md. 297, 312-32, 587 A.2d
491. The coup de grace was administered in 1992 by Owens-Illinois v. Zenobia. The story
of implied malice's rise and fall was articulately told by Judge Karwacki in Scott v. Jenkins,
345 Md. 21, 29-34, 690 A.2d 1000 in 1997.

       The qualifying adjective "actual," therefore, has withered into a vestigial organ that
no longer serves any conceivable purpose. Old linguistic habits, however, die hard. As we
resignedly noted in Darcars, 150 Md. App. at 30:

              The ghost of "implied malice" is so recently departed, however, that
       instead of using, as we might, the unadorned noun "malice" to refer to the
       single standard now in the field, we still feel compelled to distinguish "actual
       malice" from the memory of that dread something else still lurking in the near
       shadows.

                                            -9-
301(b). The local government remains liable to the plaintiff despite a finding of actual

malice, but it "may seek indemnification [from the employee] for any sums it is required to

pay under [CJP] § 5-303(b)(1)[.]" CJP § 5-302(b)(ii). See Houghton v. Forrest, 412 Md.

578, 591-92, 989 A.2d 223 (2010). Upon a finding of actual malice, the employee becomes

personally liable for "all damages awarded in the action" and the successful plaintiff is free

to execute on such judgment against the employee. CJP § 5-302(b)(2). The LGTCA

damages cap restricts only the amount a plaintiff may collect from the local government; it

has no bearing on the overage the plaintiff may collect from an employee who acted with

malice. See Francis v. Johnson, ___ Md. App. ___, ___ A.3d ___, No. 673, September

Term, 2013, slip op. at 24 (filed October 6, 2014).

       The employee, moreover, is liable for punitive damages, not the local government.

CJP § 5-303(c)(1) ("A local government may not be liable for punitive damages."). In

certain cases and subject to the damages cap, however, the local government "may

indemnify an employee for a judgment for punitive damages entered against the employee."

CJP § 5-303(c)(2).

       The LGTCA is unusual in terms of the modality the General Assembly employed to

provide some limited relief to plaintiffs and to protect local government employees. The

Maryland Tort Claims Act ("MTCA"), State Government Article § 12-101 et seq. and CJP

§ 5-522, by contrast, protects state government employees by granting them direct immunity

from suit for acts or omissions committed within the scope of employment without actual


                                            - 10 -
malice. It allows injured persons to sue the State on a vicarious liability theory. See Ford

v. Baltimore City Sheriff's Office, 149 Md. App. 107, 119-20, 814 A.2d 127 (2002). By

contrast, the LGTCA grants employees immunity from damages, but not from suit. The

LGTCA requires plaintiffs to bring claims directly against the employee, not indirectly

against the local government. See Board of Educ. of Prince George's County v. Marks-

Sloan, 428 Md. 1, 29-31, 50 A.3d 1137 (2012) (comparing MTCA and LGTCA).

       Unlike the statutory cap on non-economic damages in personal injury cases, CJP §

11-108, the LGTCA does not require trial courts to reduce the amount of a judgment after

a jury verdict has been rendered. Rather, the LGTCA requires a plaintiff to bring suit

against an employee directly and to obtain a judgment against him, but then prevents the

successful plaintiff from actually collecting on that judgment against the employee. See

Smith v. Danielczyk, supra, 400 Md. at 130. The LGTCA specifically provides that "a

person may not execute against an employee on a judgment." CJP § 5-302(b) (emphasis

supplied). Instead, the plaintiff may recover against the local government. Although the

LGTCA limits a plaintiff's recovery against a local government to $200,000 per claim and

$500,000 per occurrence, the LGTCA does not require a trial court to actually reduce the

judgment in conformance with the cap. The judgment is not even entered against the local

government; it remains nominally against the employee.




                                           - 11 -
                          Baltimore City Police Department

       In terms of both its sovereign immunity and its financial responsibility for the tortious

conduct of its employees in the scope of their employment, the status of the Baltimore City

Police Department ("BCPD") is very unusual, if not indeed bizarre. Is it a state agency so

as to come under the coverage, at least presumably, of the MTCA? The confusingly

schizophrenic answer is that the BCPD both is and is not a state agency.

       The BCPD is now statutorily designated as a "local government" that is specifically

covered by the LGTCA. CJP § 5-301(d)(21). This was not always so. Unlike other county

or municipal police departments, the BCPD was over a century and a half ago placed under

the control of the State by chap. 7 of the Acts of 1860 and was officially designated as a

State agency by chap. 367 of the Acts of 1867. For an understanding of the bizarre pre-Civil

War circumstances that provoked this seeming governmental anomaly, see Upshur v. Mayor

of Baltimore, 94 Md. 743, 51 A. 953, 958 (1902), and H.H. Walker Lewis, "The Baltimore

Police Case of 1860," 26 Md. L. Rev. 215 (1966). And see Mayor & City Council of

Baltimore v. Clark, 404 Md. 13, 23-27, 944 A.2d 1122 (2008). As Baltimore Police

Department v. Cherkes, 140 Md. App. 282, 303, 780 A.2d 410 (2001), described the effect

of Chapter 367 of the Laws of 1867:

              By Chapter 367 of the 1867 Laws of Maryland, the General Assembly
       made the BCPD a State agency, and designated its officials and officers as
       State officers. That enactment appears today in section 16-2(a) of the Public
       Local Laws of Baltimore City, which states, "The Police Department of
       Baltimore City is hereby constituted and established as an agency and
       instrumentality of the State of Maryland."

                                            - 12 -
See also Clea v. Mayor of Baltimore, 312 Md. 662, 668, 541 A.2d 1303 (1988) ("[T]he

Baltimore Police Department is not an agency of the City of Baltimore and has not been for

some time.").

       Although the BCPD formally remains a "state agency" for certain purposes, Mayor

& City Council of Baltimore v. Clark, 404 Md. at 26 ("§ 16-2, which designates the

Baltimore Police Department as an agency of the State, remained, and still remains,

unchanged."), chap. 369 of the Acts of 1997 amended the LGTCA to make it clear, by CJP

§ 5-301(d)(21), that for liability purposes the BCPD is nonetheless included as a "local

government." Houghton v. Forrest, 183 Md. App. 15, 41-42, 959 A.2d 816 (2008);

Baltimore City Police Dep't v. Cherkes, 140 Md. App. at 315. The BCPD is, to be sure, a

governmental hybrid. For certain arcane governmental purposes, it has been since 1867 and

still is a state agency. For purposes of tort law, however, it has been since 1997 a "local

government" and, as such, the tort liability of its employees is governed by the LGTCA.

                 Who, If Anyone, May Waive the Damages Cap?

       The appellant contends that Off. Beall waived the damages cap. The short answer to

the waiver issue is that Off. Beall did not waive the damages cap, indeed could not have

waived the damages cap, because it was not his to waive. The LGTCA benefits three

different constituencies.   First, the entitlement to enforce a judgment against a local

government instead of against an employee benefits an injured plaintiff by guaranteeing him

a source of funds. The LGTCA was designed to provide a remedy for persons injured by

                                          - 13 -
local government employees, who often have limited resources from which an injured

person might collect on a judgment. The LGTCA ensures that injured persons will be

compensated for their injuries – up to the damages cap – by requiring local governments to

pay judgments entered against their employees and prohibiting local governments from

asserting governmental immunity as a defense to that responsibility.            See Rios v.

Montgomery County, 386 Md. 104, 125-26, 872 A.2d 1 (2005). Far from "restrict[ing] a

'traditional remedy or access to the courts,'" the LGTCA "legislatively permits plaintiffs to

enforce judgments obtained from suit against the employee against the local government."

Id. at 139.

       In standing back and looking at the entire LGTCA in perspective, it is clear, moreover,

that it is the plaintiff, and not the defendant employee, who actually invokes the LGTCA in

the first place. Invoking the LGTCA is the first step toward a plaintiff's goal of recovering

out of local government funds. The self-evident function of the stringent notice requirements

is to regulate the plaintiff's invocation of the LGTCA. See Rios v. Montgomery County, 386

Md. at 125-28. When the plaintiff successfully invokes the LGTCA, as the appellant did in

this case, the LGTCA is invoked as an indivisible package. It is not invoked on an ad hoc

basis, subcontention by subcontention. The LGTCA is CJP §§ 5-301 through 5-304, as a

whole. The statutory package unquestionably includes § 5-303, which limits the extent to

which the local government is required to assume this extraordinary obligation. It was the

appellant who invoked the damages cap, along with the rest of the LGTCA. The statutory



                                            - 14 -
limitation, moreover, was promulgated in absolute terms, not as a contingent or discretionary

option.

       Second, the "may not execute" provision benefits the employee by absolving him from

financial responsibility so long as he was acting within the scope of his employment and

without malice. The "may not execute" provision, CJP § 5-302(b), applies no matter the size

of the judgment against the employee. In an LGTCA case, whether the judgment be for

$10,000 or $10 million, an injured party may not collect so much as one penny from the

employee directly, so long as the employee is acting without malice and within the scope of

his employment. Although the judgment is nominally against the employee, it is as a

practical matter frequently meaningless as applied against the employee. No action is

required by the employee to protect himself, except to cooperate in the defense of the action.

Even then, such action need consist only of explaining to the court that the judgment is

subject to the LGTCA and that the plaintiff may not execute against him.

       Third, the damages cap protects the local government itself by placing an upper limit

on the extent of its liability. Although the LGTCA generally benefits both injured plaintiffs

and defendant-employees, the damages cap specifically self-evidently is not for the benefit

of either. Plaintiffs would obviously be better off if no damages cap existed. The damages

cap is also not for the benefit of the defendant-employees. It does not help them in the

slightest. The LGTCA generally may help them, but the damages cap specifically does not.

The defendant-employee is neither helped nor hurt by the damages cap per se. In this case,



                                            - 15 -
the damages cap did not reduce the award against Beall to $200,000. But for the remand for

other purposes, the award against Beall could stand at $3,505,000. See Board of Education

of Prince George's County v. Marks-Sloan, 428 Md. 1, 31, 50 A.3d 1137 (2012) ("[L]ocal

government employees are granted only an immunity from damages under the LGTCA.");

Smith v. Danielczyk, 400 Md. at 129-30 (Local government employees "may be sued, and

judgments may be entered against them.").        The very existence of the damages cap,

moreover, does not affect the existence of the employee's tort liability per se. It does not,

moreover, affect the course of the trial. It is exclusively a post-trial phenomenon, affecting

only the ability of a successful plaintiff to execute on a judgment.

       The LGTCA damages cap exists solely for the benefit of the local government – for

the protection of the public fisc. It is indisputably, therefore, not the prerogative of the

defendant-employee to waive the protection of the local government. It was obviously not

the prerogative of Off. Beall to say to the Baltimore City Police Department, "Although you

are only required by the Maryland Legislature to stand behind me to the tune of $200,000,

I am, by my passive non-assertion, abrogating your protection in that regard and subjecting

you instead to an obligation of $3,505,000." Off. Beall quite obviously did not possess the

authority to waive a protection enjoyed by the BCPD, to override thereby the decision of the

Maryland General Assembly, or to amend the provisions of Chapter 594 of the Acts of 1987.

       Because the employee acting within the scope of his employment and without malice

is not liable for any part of a judgment, the damages cap is of no concern to him. The



                                            - 16 -
damages cap does not protect the employee. Rather, it protects the local government. In the

preamble to the legislation enacting the LGTCA, the General Assembly's first stated purpose

was "establishing a limit on the liability of the local governments of the State." See 1987

Md. Laws, chap. 594 (emphasis supplied). The Court of Appeals fully explained the purpose

behind the LGTCA in Board of County Commissioners of St. Mary's County v. Marcas,

LLC, 415 Md. 676, 686-88, 4 A.3d 946 (2010):

              It is clear that the limitation on liability provision was enacted "for the
       purpose of limiting the civil liability of local government." S. Judicial
       Proceedings Comm., Summary of Com. Rep., S.B. 237, pg. 3 (Md.1987). The
       current "cap" amounts resulted from a compromise reached by a Conference
       Committee convened when "neither house concurred in the other's proposed
       amendments to H.B. 253 or S.B. 237[.]" [Housing Authority of Baltimore City
       v. Bennett, 359 Md. 356, 378, 754 A.2d 367 (2000)]. The legislative history
       includes the following explanation for the cap:

              The $100,000[6] per occurrence cap has both historic and
              statutory precedent. Since 1971, Boards of Education that are
              self-insured have been able to raise immunity for judgments in
              excess of $100,000. Presently, liability may be limited to
              $100,000 per occurrence. Further, the State's liability in action
              for which the State is self-insured is limited to $50,000 per
              individual and $100,000 per occurrence. These limits are
              established by regulations issued by the State Treasurer pursuant
              to amendments to the State Tort Claims Act effective in 1985.
              Thus, the cap is consistent with existing law. Considering that
              local governments will be paying judgments in situations where
              they could have previously avoided liability, the cap is equitable.
              The cap is necessary so that local governments can predict


       6
        The original version of the LGTCA proposed a cap of $100,000 per claim and
$300,000 per occurrence. This was amended prior to the LGTCA's enactment to reflect the
current cap of $200,000 per claim and $500,000 per occurrence. See 1987 Md. Laws, chap.
594.

                                             - 17 -
             exposure for both insurance and budgetary purposes. Since
             local governments provide vital services, unlimited recovery
             prudents [sic] the prospect of severely impeding the provision
             of such services.

      Office of the Governor, Governor's Legislative Office, Briefing Paper H.B.
      253/S.B. 237, 9-10.

             The legislative history also includes the following testimony presented
      to the Senate Judicial Proceedings Committee by Maureen Lamb, then Vice
      President of the Maryland Association of Counties, and Chair of that
      organization's Legislative Committee, as well as a member of the Anne
      Arundel County Council:

             In the Spring of 1985 the Legislative Committee of the
             Maryland Association of Counties became aware of the
             problems that local governments were having in purchasing
             insurance. ... In analyzing the situation it was soon realized that
             the problem was greater than merely a down cycle of the
             insurance market. Insurance companies were not only raising
             prices, they were abandoning the business of insuring
             governments.

      S. Judicial Proceedings Committee, Testimony of Maureen Lamb (Feb. 25,
      1987).

(Emphasis supplied).

      Just as the damages cap is not the employee's to assert, neither is it his to waive

through non-assertion. Together, the indemnification and damage cap provisions of the

LGTCA, CJP §§ 5-303(b)(1), 5-303(a)(1), act as a limited indirect waiver of governmental

immunity. The LGTCA requires local governments to pay judgments entered against

employees for torts committed within the scope of their employment, up to the cap, and

prohibits local governments from raising the defense of sovereign or governmental immunity



                                           - 18 -
to avoid that responsibility. It is settled law that sovereign immunity may be waived only by

the legislature, and such waivers are strictly construed. See, e.g., Khawaja v. City of

Rockville, 89 Md. App. 314, 325, 598 A.2d 489 (1991). No individual – even one authorized

to represent the government in litigation – may enlarge the legislature's waiver of immunity.

As the Court stated in Board of Education of Charles County v. Alcrymat Corp. of America,

258 Md. 508, 516, 266 A.2d 349 (1970),

       the law is well established that counsel for the State or one of its agencies may
       not either by affirmative action or by failure to plead the defense, waive the
       defense of governmental immunity in the absence of express statutory
       authorization or by necessary implication from a statute[.]

(Emphasis supplied).

       A damages cap is a legislatively imposed limitation on the extent to which

governmental immunity may be waived. Just as governmental immunity generally may not

be waived except by the General Assembly, a statutory limitation on a waiver of

governmental immunity may not itself be waived except by the General Assembly. A

damages cap simply establishes that governmental immunity is not being waived above the

level of the cap.

       There is absolutely nothing that Off. Beall could have done or failed to do to make the

BCPD liable for a penny more than that provided by the LGTCA damages cap. In fact, there

is nothing the BCPD itself could have done or failed to do to make itself liable for a penny

more than the cap. The General Assembly created the cap, and only the General Assembly

may alter the cap. Section 5-303(a) provides, in absolute terms, "the liability of a local

                                            - 19 -
government may not exceed $200,000 per an individual claim, and $500,000 per total

claims." That is not tentative or discretionary language. For all lesser entities, this

legislatively established limit is an immutable fact of life.

       In answering the question of "WHO may waive?," the General Assembly, of course,

may amend or may totally abrogate the damages cap at any time. What is clear is that Officer

Beall did not possess any remote authority, expressly or passively, to waive the cap, no

matter what he did or did not do.

          The Evidence In the Light Most Favorable to the Appellant

       The appellant also contends that the circuit court should not have granted Off. Beall's

motions for judgment on her claims for gross negligence, for battery, for a violation of

Article 24 of the Maryland Declaration of Rights, and for punitive damages. She maintains

that there was sufficient evidence admitted to support those claims and that they should,

therefore, have been submitted to the jury. Where, as a practical matter, victories on these

contentions would take the appellant is not for us to inquire into.

       The appellant relies on the following evidence of Off. Beall's malicious intent so as

to raise his fault beyond the level of mere negligence. When the encounter first began, Off.

Beall followed Holloway-Lilliston in his blind spot in order surreptitiously to check his

license plate number. Off. Beall testified that, at the very outset of the encounter on I-83,

when Holloway-Lilliston "popped a wheelie" and accelerated to 75 m.p.h. in a 50 m.p.h.

zone, he accelerated in turn in an attempt to "close the gap." Off. Beall agreed that he


                                            - 20 -
pursued Holloway-Lilliston at speeds up to 25 m.p.h. above the posted speed limit, without

exigent circumstances, for eight miles outside his assigned jurisdiction. This itself was in

violation of Baltimore City Police Department General Order 11-90, which prohibits high

speed pursuits except under exigent circumstances and, in any event, prohibits officers from

exceeding the posted speed limit by more than 10 m.p.h. Upon reaching I-695, however,

Holloway-Lilliston reduced his speed to one consistent with the posted limit, and Off. Beall

reduced his speed accordingly.

       In the appellant's view, Off. Beall disobeyed three orders from his superiors to break

off the chase and "falsely represent[ed]" to his shift commander "that he had broken off the

chase" by responding "10-4" and deactivating his emergency equipment, even while

continuing to follow Holloway-Lilliston. At the Dulaney Valley Road South exit ramp,

which had a posted speed limit of 30 m.p.h., Holloway-Lilliston slowed to between 31 and

33 m.p.h. Off. Beall observed that Holloway-Lilliston had braked, but Off. Beall himself

only slowed to between 41 and 43 m.p.h. In the appellant's view, Off. Beall must have

known, given the speed differential, that it was mathematically certain that, at their

respective speeds, he and Holloway-Lilliston would inevitably collide.

       The appellant also adduced at trial (but, for reasons unknown to us, has not argued

on appeal) evidence of Off. Beall's post-collision conduct, as having some possible bearing

on his credibility. On cross-examination, Off. Beall testified that, immediately after the

crash, he did not attempt to render first aid or perform CPR. At some point, Off. Beall


                                           - 21 -
communicated with an Officer Grishkot and requested that he join him at the crash scene.

This may have been before Off. Beall requested a medic, but he was "not sure" as to the

exact sequence. When Off. Beall did request a medic through the police dispatcher, he said:

       Yeah, can you advise the county I need a medic up here. I found this guy up
       here.

(Emphasis supplied). The dispatcher asked why a medic was needed, and Off. Beall

responded:

       Number one male wrecked his motorcycle.

(Emphasis supplied). Off. Beall's choice of words and what he chose not to say could

certainly raise an eyebrow, and that, of course, is classic grist for the factfinding mill.

       Looking at the evidence, as we must, in the light most favorable to the appellant, it

is clear that the appellant met her burden of production with respect to her claims of gross

negligence, battery, and a violation of Article 24 of the Maryland Declaration of Rights.

There was enough evidence as to each for the claims to have been submitted to the jury, and

judgment at the end of the appellant's case-in-chief should not have been entered against the

appellant on those claims. We will look briefly at the proof required to establish each of the

three claims.

A. Gross Negligence

       Gross negligence is a level of neglect more egregious than simple negligence, but

distinguishing between the two is not easy. In Barbre v. Pope, the Court of Appeals

explained:

                                             - 22 -
       Issues involving gross negligence are often more troublesome than those
       involving malice because a fine line exists between allegations of negligence
       and gross negligence. See State, Use of Abell v. Western Maryland R.R., 63
       Md. 433, 443 (1885) (noting the difficulty of distinguishing between
       negligence and gross negligence, "if it be capable of definition").

402 Md. 157, 187, 935 A.2d 699 (2007) (emphasis supplied). This Court recently echoed

that sentiment in Rodriguez v. State:

       The term "gross negligence" has been described as an amorphous concept,
       resistant to precise definition.

218 Md. App. 573, 598, 98 A.3d 376 (2014) (emphasis supplied). We explained that,

because of the "troublesome" factual problem of trying to differentiate between simple and

gross negligence, the issue is usually one for the jury, not the court.

              "Whether or not gross negligence exists necessarily depends on the
       facts and circumstances in each case. It is usually a question for the jury and
       is a question of law only when reasonable men could not differ as to the
       rational conclusion to be reached." Courts have said that the question of
       whether a defendant's conduct rises to the level of gross negligence is a
       question for the trier of fact to decide: "Ordinarily, unless the facts are so clear
       as to permit a conclusion as a matter of law, it is for the trier of fact to
       determine whether a defendant's negligent conduct amounts to gross
       negligence."

Id. at 598-99 (citations omitted) (emphasis supplied). See also Liscombe v. Potomac Edison

Co., 303 Md. 619, 635, 495 A.2d 838 (1985).

       A legally sufficient case of ordinary negligence will frequently be enough to create

a jury question of whether such negligence was or was not gross. Demarcating the illusive

line between simple negligence and gross negligence is frequently far more a matter of

persuasion, as a matter of fact, than of production, as a matter of law. In this case, the facts

                                             - 23 -
were not so clear as to permit a conclusion, as a matter of law, that the line had not been

crossed. The jury could have found from the evidence that Off. Beall understood that a

collision was imminent and failed to take action to avoid it in reckless disregard for

Holloway-Lilliston's safety. The court erred in removing that count from the jury's

consideration.

B. Battery

       A battery occurs when one intentionally makes a harmful or offensive contact with

another without that person's consent. Nelson v. Carroll, 355 Md. 593, 600, 735 A.2d 1096

(1999) (citing Restatement (Second) of Torts § 13 & cmt. d (1965)). See also Saba v.

Darling, 320 Md. 45, 49, 575 A.2d 1240 (1990) ("A battery has been defined as a harmful

or offensive contact with a person resulting from an act intended to cause the person such

contact."). In Hendrix v. Burns, 205 Md. App. 1, 20, 43 A.3d 415, cert. denied, 427 Md.

608 (2012), this Court explained the necessary intent:

               "It is universally understood that some form of intent is required for
       battery.... It is also clear, however, that the intent required is not a specific
       intent to cause the type of harm that occurred." Nelson, 355 Md. at 601-02,
       735 A.2d 1096 (footnote omitted). The Nelson Court further explained:

              "The intent element of battery requires not a specific desire to
              bring about a certain result, but rather a general intent to
              unlawfully invade another's physical well-being through a
              harmful or offensive contact or an apprehension of such a
              contact."

       Id. at 602-03, 735 A.2d 1096. See also MPJI-Cv 15:2 (stating, in part, that
       "battery is the intentional touching of a person without that person's consent").
       In addition, lesser states of mind – such as recklessness or wantonness – do

                                            - 24 -
       not equate to the intent to cause a harmful or offensive contact. "Reckless,
       wanton or willful misconduct differs from intentional wrongdoing." Johnson
       v. Mountaire Farms of Delmarva, Inc., 305 Md. 246, 253, 503 A.2d 708
       (1986).

       A battery may be committed by the use of an instrumentality, such as an automobile.

See Hendrix, 205 Md. App. at 22 (noting that battery could be committed by use of an

automobile and could be proved by application of transferred intent doctrine, but finding no

evidence of intent to inflict harm).7 In this case, offensive and harmful contact between Off.

Beall's police cruiser and Holloway-Lilliston was obviously made. The evidence was legally

sufficient to permit an inference that the battery was intentional. The claim should have

gone to the jury.

C. Constitutional Tort

       The appellant asserted a claim for violation of Article 24 of the Maryland Declaration

of Rights, specifically based on "Beall's use of excessive force." She argues in her brief that

Off. Beall "intentionally misused his police vehicle" and thereby violated Holloway-

Lilliston's "substantive due process right to life." Article 24 provides:

       That no man ought to be taken or imprisoned or disseized of his freehold,
       liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or
       deprived of his life, liberty or property, but by the judgment of his peers, or by
       the Law of the land.




       7
        For an exhaustive examination of the multiple crimes as well as the torts constituting
a "battery" or "assault and battery," see Lamb v. State, 93 Md. App. 422, 613 A.2d 402
(1992).

                                             - 25 -
It is frequently and informally referred to as the Maryland equivalent of the federal Due

Process Clause.

       Because analytic recourse in such cases must ultimately be had to the federal Fourth

Amendment, the more appropriate bridge thereto would appear to be Article 26, which is

routinely referred to as the Maryland equivalent of the Fourth Amendment and is interpreted

in pari materia with that amendment. Whether an excessive force claim is brought under

Article 24 or Article 26, however, is a distinction without a difference. As Judge Barbera

(now Chief Judge of the Court of Appeals) wrote for this Court in Randall v. Peaco:

       [A] claim of excessive force brought under Article 24 is analyzed in the same
       manner as if the claim were brought under Article 26. In both instances, the
       claim is assessed under Fourth Amendment jurisprudence, rather than notions
       of substantive due process, precisely like the analysis employed for claims
       brought under 42 U.S.C. § 1983.

175 Md. App. 320, 330, 927 A.2d 83, cert. denied, 401 Md. 174 (2007) (citing Okwa v.

Harper, 360 Md. 161, 203-04, 757 A.2d 118 (2000)) (emphasis supplied). See also

Williams v. Prince George's County, 112 Md. App. 526, 547, 685 A.2d 884 (1996) ("[T]he

essential analysis ... is the same under Articles 24 and 26 of the Maryland [Declaration of

Rights] as that under the Fourth Amendment of the United States Constitution."); Hines v.

French, 157 Md. App. 536, 574-75, 852 A.2d 1047 (2004) ("The standards for analyzing

claims of excessive force are the same under Articles 24 and 26 of the Maryland

Constitution as under the Fourth Amendment of the United States Constitution.").




                                          - 26 -
       In Espina v. Prince George's County, 215 Md. App. 611, 654, 82 A.3d 1240 (2013),

cert. granted, 438 Md. 142 (2014), as in the present case, the constitutional claim was

brought under Article 24 but not under Article 26. The defendant argued that the Article 24

claim should not have been submitted to the jury. We flatly rejected that argument.

              The County asserts that, as a matter of law, the Espinas' Article 24
       claim should not have been submitted to the jury because such a claim can
       only be asserted via an Article 26 claim. We disagree.

             We have explained that claims brought under Article 24 of the
       Maryland Declaration of Rights are analyzed utilizing the same test as claims
       brought under Article 26. ...

             The County misstates the law on this issue. Simply because an Article
       24 claim is analyzed utilizing the Article 26/Fourth Amendment
       reasonableness standard articulated in Graham, a claimant is not precluded
       from asserting an Article 24 claim. Rather, an Article 24 claim is viable if a
       claimant can prove excessive force under the Graham test. ...

215 Md. App. at 653-54 (emphasis supplied).

       Whether the claim is made pursuant to Article 24 or Article 26 or both, the ultimate

test for excessive force is that which the Supreme Court set forth in Graham v. Connor,

where the Court explained why a Fourth Amendment framework of analysis is preferable

to a "due process" analysis:

               This case requires us to decide what constitutional standard governs a
       free citizen's claim that law enforcement officials used excessive force in the
       course of making an arrest, investigatory stop, or other "seizure" of his person.
       We hold that such claims are properly analyzed under the Fourth
       Amendment's "objective reasonableness" standard, rather than under a
       substantive due process standard.



                                            - 27 -
             ... Because the case comes to us from a decision of the Court of
       Appeals affirming the entry of a directed verdict for respondents, we take the
       evidence hereafter noted in the light most favorable to petitioner.

490 U.S. 386, 388, 109 S. Ct. 1865, 104 L. Ed.2d 443 (1989) (emphasis supplied).

       In assessing the use of arguably excessive force by an officer, the Supreme Court

made it clear what the controlling standard is.

       Today we make explicit what was implicit in [Tennessee v. Garner, 471 U.S.
       1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)]'s analysis, and hold that all claims
       that law enforcement officers have used excessive force – deadly or not – in
       the course of an arrest, investigatory stop, or other "seizure" of a free citizen
       should be analyzed under the Fourth Amendment and its "reasonableness"
       standard, rather than under a "substantive due process" approach. Because the
       Fourth Amendment provides an explicit textual source of constitutional
       protection against this sort of physically intrusive governmental conduct, that
       Amendment, not the more generalized notion of "substantive due process,"
       must be the guide for analyzing these claims.

490 U.S. at 395 (emphasis supplied). The Court also made reference to factors that may

affect the officer's credibility.

       [I]n assessing the credibility of an officer's account of the circumstances that
       prompted the use of force, a factfinder may consider, along with other factors,
       evidence that the officer may have harbored ill-will toward the citizen. See
       Scott v. United States, 436 U.S. 128, 139, n.13, 98 S. Ct. 1717, 1724, n.13, 56
       L. Ed. 2d 168 (1978).

490 U.S. at 399 n.12 (emphasis supplied).

       Utilizing the Graham v. Connor test, it is clear that the appellant presented a legally

sufficient case of excessive force and that the constitutional tort claim, therefore, should

have been submitted to the jury.



                                            - 28 -
       Should a jury on retrial, however, find that Off. Beall was liable for a violation of

Article 24 of the Maryland Declaration of Rights, we hasten to point out that the LGTCA's

damages cap would continue to limit the obligation of the local government (the BCPD) to

a total of $200,000 for all of the claims arising out of this single incident.

       Although numerous dicta had pointed toward the applicability of the LGTCA

damages cap to a constitutional tort, no square holding in that regard had ever been

announced until this Court's decision in Espina v. Prince George's County, supra.

       The applicability and constitutionality of the LGTCA damages cap, as applied
       to constitutional claims, is an issue that has been presented several times but
       never addressed by this Court or the Court of Appeals. In this case, however,
       we are presented squarely with the issue of the constitutionality of the LGTCA
       damages cap and are asked to decide the extent to which the LGTCA limits
       recovery for state constitutional violations.

215 Md. App. at 628-29 (emphasis supplied).

       After an exhaustive analysis of the legal issue, Judge Berger's conclusion for this

Court was clear:

       In sum, based upon the statutory language, case law, and legislative history,
       we see no basis to conclude that the legislature intended that the LGTCA
       damages cap not apply to claims involving constitutional violations.
       Accordingly, we hold, as a matter of statutory interpretation, that the LGTCA
       damages cap applies to the claims in the instant case.

215 Md. App. at 640 (emphasis supplied).

D. Punitive Damages

       At this stage of our analysis, the appellant's contention about her right to go to the

jury on the question of punitive damages answers itself. We have held that she had a right

                                            - 29 -
to go to the jury on her claims of 1) gross negligence, 2) battery, and 3) a violation of the

Maryland Declaration of Rights. Of those three, one of them, gross negligence, could not

serve as a predicate for a punitive damages award. That is the teaching of Owens-Illinois

v. Zenobia, supra, as it held that "implied malice," to wit, gross negligence, would not

qualify as a predicate for punitive damages.

       The other two claims, on the other hand, could qualify as predicates for punitive

damages. They would both, if found to have occurred, be torts committed with malice, that

is, intentional torts as contrasted with accidental or negligent torts. Should the jury find one

or both "with malice" and should it award compensatory damages for one or both, it would

thereby have established a predicate for punitive damages.

       Let us take the constitutional tort as an example. The malice implicit in Off. Beall's

use of excessive force on the victim would, ipso facto, be enough to permit, although it

would not compel, an award for punitive damages. The very finding of the constitutional

tort with malice would in and of itself satisfy the burden of production for punitive damages.

There is no additional substantial element of the tort that would need to be established.

       To be sure, an award of punitive damages requires the satisfaction of a much higher

burden of persuasion than does the establishment of the base tort itself, but that higher

burden of persuasion does not involve appellate review of the legal sufficiency of the

evidence to take the issue to the jury. It involves the burden of persuasion and not the

burden of production.


                                             - 30 -
       To award punitive damages, a juror must be persuaded to do so by the clear and

convincing level of persuasion, whereas to find the underlying tort the juror need only be

persuaded by a bare preponderance of the evidence. Which level of persuasion is actually

satisfied, however, is for the juror, and not for the reviewing court, to say.         The

establishment of the underlying tort, moreover, only permits, but indisputably does not

compel, an award of punitive damages. As a function of persuasion, the juror must feel that

the circumstances of the tort were so egregious or the motivation of the tortfeasor so

outrageous as to call for the sterner sanction. Zenobia, 325 Md. at 454, described

articulately the purpose of punitive damages.

       "[T]he purposes of punitive damages relate entirely to the nature of the
       defendant's conduct." ... The availability of a punitive damages award ought
       to depend upon the heinous nature of the defendant's tortious conduct.

              Awarding punitive damages based upon the heinous nature of the
       defendant's tortious conduct furthers the historical purposes of punitive
       damages – punishment and deterrence. Thus, punitive damages are awarded
       in an attempt to punish a defendant whose conduct is characterized by evil
       motive, intent to injure, or fraud, and to warn others contemplating similar
       conduct of the serious risk of monetary liability.

(Emphasis supplied). As a matter of persuasion, the juror must feel strongly (clearly and

convincingly) the need to punish the tortfeasor or to deter other possible tortfeasors from

similar conduct. The recompense of the victim should, as an abstract matter, have nothing

to do with it, although it probably will.




                                            - 31 -
       Just as three of the appellant's tort claims may now go to the jury, two of them could

be the basis for the jury to award punitive damages. Let it never be forgotten, however, that

the Local Government Tort Claims Act, CJP § 5-303(c)(1), unequivocally provides:

              (c) Punitive damages; indemnification. – (1) A local government may
       not be liable for punitive damages.

                              Is Malice Ever Non-Actual?

       The presence or absence of malice, simple or actual, has not been a dispositive factor

in this case. It has nonetheless haunted our analysis of the voluminous caselaw on tort

claims. What is "actual" malice? Is there indeed some junior varsity level of malice that is

less than actual? If not, what possible function is being served by the annoying adjectival

qualifier "actual" in the frequently, but not universally, recurring phrase "actual malice"?

Is the adjective used only for rhetorical emphasis or does it signify some substantive element

of malice above and beyond simple malice? Or is it, as in classical literature, simply a

standing epithet? The caselaw is of no help.

       As we explained at length in footnote 4, supra, the term "actual malice" entered into

Maryland's legal vocabulary and served to make a critical distinction during the 20-year

period from Smith v. Gray Concrete Pipe Co. in 1972 until Owens-Illinois v. Zenobia in

1992. It distinguished traditional malice, describing an intentional harmful act, from

"implied malice" (gross negligence) as an alternative predicate for punitive damages.

       Prior to 1972, the discussions of malice, including Judge Barnes's landmark survey

of the caselaw in Duncan v. Koustenis, 260 Md. 98, 271 A.2d 547 (1970), spoke exclusively

                                            - 32 -
of the unadorned noun "malice" without any necessity for a qualifying adjective. It was only

in 1972, when it became important to distinguish an intentional tort from a merely accidental

or negligent tort (up to and including gross negligence), that "actual malice" was contrasted

with "implied malice." The function of the adjectives "actual" and "implied" was to

distinguish the two varieties or levels of "malice" then in the punitive damages field.

       In the Zenobia case itself, which in 1992 eliminated "gross negligence" or "implied

malice" as an alternative predicate for punitive damages, Judge Eldridge, 325 Md. at 460

n.20, commented on the usage of "actual malice."

               We recognize that the term "actual malice" has meant different things
       in the law, that its popular connotation may not always be the same as its legal
       meaning, and that its use has been criticized. Nevertheless, we simply use the
       term in this opinion as a shorthand method of referring to conduct
       characterized by evil motive, intent to injure, ill will, or fraud. In instructing
       juries with respect to punitive damages, however, it would be preferable for
       trial judges not to use the term "actual malice."

(Emphasis supplied). After 1992, the distinction had become meaningless.

       In Shoemaker v. Smith, 353 Md. 143, 163-64, 725 A.2d 549 (1999), Judge Wilner

explained that the term "actual malice" once had significance as an alternative to "gross

negligence" or "implied malice."

              The Court of Special Appeals has long applied that, or some similar,
       standard of "actual malice" in defining "malice" for purposes of public official
       immunity under common law or under State and local tort claims laws.

              This, we believe, is the appropriate test – the one that the Legislature
       intended to be applied. For one thing, the fact that it is an alternative to gross
       negligence, which also will defeat the qualified immunity, indicates clearly


                                             - 33 -
       that the Legislature conceived of malice as something beyond the merely
       reckless or wanton conduct that would be embodied within gross negligence.

(Emphasis supplied).

       In Shoemaker, 353 Md. at 164, Judge Wilner contrasted "actual malice" with gross

negligence, as he refers to it as "an alternative to gross negligence" and as "something

beyond the merely reckless or wanton conduct that would be embodied within gross

negligence." Would not the term "malice" alone, without the adjective "actual," serve to

make the same distinction? Would not the concept of an intentional tort make the same

distinction?

       The definitions in the caselaw of "actual malice" and "malice" (just plain malice),

respectively, do not signal any discernible difference. In Zenobia, 325 Md. at 460 n.20,

Judge Eldridge said of the term "actual malice":

       Nevertheless, we simply use the term in this opinion as a shorthand method
       of referring to conduct characterized by evil motive, intent to injure, ill will,
       or fraud.

See also Shoemaker v. Smith, 353 Md. at 161. That is indistinguishable from Barbre v.

Pope, 402 Md. 157, 182, 935 A.2d 699 (2007), as it defines garden variety, Brand-X malice:

       We have consistently defined malice as "conduct 'characterized by evil or
       wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill-will
       or fraud...'"

They are one and the same. Williams v. Prince George's County, 112 Md. App. 526, 550,

685 A.2d 884 (1996), also defined "malice" as scorchingly as "actual malice" has ever been

defined:

                                            - 34 -
               Malice has been defined as the performance of an act without legal
       justification or excuse and with an evil or rancorous motive influenced by
       hate, the purpose of which is to deliberately and wilfully injure another.

(Emphasis supplied). This is about as bad as a tortious intent can get.

       In the caselaw, both "malice" and "actual malice" have produced a Thesaurus load

of malignant motivations or states of mind, not one of which has ever been the pivotal

criterion on which a decision has turned. Shoemaker v. Smith, 353 Md. at 163, defined

actual malice as "characterized by evil or wrongful motive, intent to injure, knowing and

deliberate wrongdoing, ill will, or fraud." Those five qualifying states of mind are separated,

it should be noted, by the disjunctive "or," not joined by the conjunction "and." Would not

virtually any intentional tort qualify for at least one of those mental states? There is no need

to qualify more than once. Other linguistic flourishes speak of "spite," "hatred," and "desire

to harm." The Local Government Tort Claims Act, in CJP § 5-301(b), defines "actual

malice" as "ill will or improper motivation." That would serve to embrace any intentional

tort. Intentionally to do an illegal act is an "improper motivation." In Ellerin v. Fairfax

Savings, 337 Md. 216, 228, 652 A.2d 1117 (1995), the Court of Appeals noted with respect

to punitive damages:

       [W]ith regard to most types of tort actions, Maryland law has limited the
       availability of punitive damages to situations in which the defendant's conduct
       is characterized by knowing and deliberate wrongdoing.

(Emphasis supplied). Any intentional tort would qualify as "knowing and deliberate

wrongdoing." Although many opinions have distinguished "actual malice" from "implied


                                             - 35 -
malice" (gross negligence), we have not found a single case that ever distinguished "actual

malice" from some simpler or lesser form of an intentional tort.

       Ellerin v. Fairfax Savings, 337 Md. at 233, makes it clear that the malice that will

support an award for punitive damages is the intentional, as opposed to accidental,

commission of the wrong.

              When a tort was committed willfully and with knowledge of the wrong,
       instead of by ignorance, mistake or negligence, this Court very early held that
       it was committed with the requisite "bad motive" to allow punitive damages.
       ...

       [T]his Court has reaffirmed the principle that punitive damages liability must
       be based on the defendant's conscious wrongdoing.

(Emphasis supplied).

       The unnecessarily qualified phrase "actual malice," however, implies a distinction

where one no longer exists and inevitably sends the unwary reader on a hopeless quest to

find it. This almost robotic intonation of a now fossilized distinction makes an already

difficult corner of the law significantly more difficult. Until some compelling reason for

speaking of "actual malice" unexpectedly reveals itself, therefore, we will resolutely avoid

the phrase. Until evidence surfaces to the contrary, the unadorned noun "malice" says all

that needs to be said.8


       8
        Our discussion of "malice," it must be carefully noted, is in the context of standard
tort law. "Malice" is an illusive term that shifts meaning from context to context. It has a
completely different set of meanings in the world of homicide law. See, e.g., Evans v. State,
28 Md. App. 640, 689-706, 349 A.2d 300 (1975), aff'd, 278 Md. 197 (1976). Its meaning
                                                                               (continued...)

                                           - 36 -
       We conclude that the phrase "actual malice" is a linguistic fossil, except perhaps in

the sui generis world of defamation law. It need never be used except when discussing the

historical period of 1972 through 1992 in punitive damages law.

       If upon retrial the appellant should prevail not on the charge of mere negligence or

even gross negligence but upon the charge of battery with malice and/or the constitutional

tort with malice, what implications would follow? The appellant could still proceed to

execute her judgment for damages against the BCPD (up to the $200,000 damages cap), for

the BCPD would be obligated to stand behind Off. Beall financially (up to the limits of the

cap) whether he had acted with or without malice, just so long as he had been acting within

the scope of his employment. In Houghton v. Forrest, 183 Md. App. 15, 42-43, 959 A.2d

816 (2008), this Court was very clear in that regard.

       [T]he LGTCA allows plaintiffs to enforce a judgment against the employee's
       local government employer, regardless of whether the defendant committed
       an intentional or constitutional tort, with or without malice.

(Emphasis supplied).

       For any overage of the award amount over the damages cap, moreover, the appellant

could proceed against Off. Beall personally for any tort which he had committed with



       8
        (...continued)
shifts yet again in the context of arson law and yet again when dealing with the malicious
destruction of property. In terms of tweaking "malice," defamation law, particularly the
defamation of public figures, may be a law unto itself. "Malice" also has a special meaning
in the context of malicious prosecution law. The word "malice" is a semantic shapeshifter.
Our present discussion lies within the four corners of standard tort law.

                                           - 37 -
malice.   For a tort committed unintentionally, to wit, negligently (including gross

negligence), on the other hand, the appellant would not be permitted to execute a judgment

against Off. Beall. That would be, by definition, a tort committed without malice. The

primary effect that a finding of "with malice" would have is that it would permit the BCPD

to proceed against Off. Beall for reimbursement for the amount that it had been required to

expend on his behalf.

                               Off. Beall's Cross-Appeal

       Off. Beall has filed a cross-appeal, contending that the court should have granted his

motion for judgment on the appellant's negligence claim made before the case was submitted

to the jury because he was entitled to immunity as an authorized operator who was

"operating the emergency vehicle in the performance of emergency service." Transportation

Article ("TA"), § 19-103(b). Off. Beall maintains that, at the time of the collision, he was

"[p]ursuing" Holloway-Lilliston, who was "a violator or a suspected violator of the law."

TA § 19-103(a)(2)(ii). As such, he claims he was immune from suit for ordinary negligence

without malice. CJP § 5-639(b).

       The appellant asserts that this contention is not preserved for our review. According

to her view of the record, Off. Beall's motion was untimely because it was made the day after

the close of all evidence and after counsel had argued a motion for reconsideration of

another motion for judgment and Off. Beall failed to object to a lack of jury instruction on

the subject. On the merits, the appellant contends that Off. Beall was estopped from arguing


                                           - 38 -
that he was pursuing Holloway-Lilliston at the time of the collision because he consistently

maintained throughout the trial that he was not pursuing Holloway-Lilliston at the time of

the collision and that he had broken off the pursuit and was returning to his post. The

appellant also argues that, having been ordered to break off the pursuit, if Beall was in fact

pursuing Holloway-Lilliston at the time of the collision, the pursuit was unauthorized and

thus immunity would not be available.

       The circuit court's denial of Off. Beall's motion for judgment is properly before us on

this appeal. He timely made the motion after the close of all evidence but before the case

was submitted to the jury. See Waters v. Whiting, 113 Md. App. 464, 475, 688 A.2d 459,

cert. denied, 345 Md. 237 (1997) (plaintiff could not "challenge the jury verdicts on appeal

given that she did not move for judgment under Rule 2-519 at the close of all the evidence

and prior to submission of the case to the jury") (emphasis supplied). Although Off. Beall

did not make the motion immediately at the close of all evidence – indeed, there was some

dispute as to when the close of all evidence actually occurred, as apparently the appellant

had contemplated calling a rebuttal witness but decided not to do so – he made the motion

before the court gave jury instructions, before closing arguments, and, critically, before the

case was submitted to the jury for decision. As the major function of a motion for judgment

is to determine which issues can or should be submitted to the jury and which can or should

be decided by the court, Off. Beall's motion was timely. As he has not argued on appeal that




                                            - 39 -
the court erred in not instructing the jury on emergency vehicle immunity, whether or not

he took an exception to the court's instructions is irrelevant.

       This particular immunity is governed by two statutes. TA § 19-103(b) provides:

              (b) Immunity from liability generally. An operator of an emergency
       vehicle, who is authorized to operate the emergency vehicle by its owner or
       lessee while operating the emergency vehicle in the performance of
       emergency service as defined in subsection (a) of this section shall have the
       immunity from liability described under § 5-639(b) of the Courts and Judicial
       Proceedings Article.

CJP § 5-639(b), in turn, provides:

               (b) Emergency vehicle operators. (1) An operator of an emergency
       vehicle, who is authorized to operate the emergency vehicle by its owner or
       lessee, is immune from suit in the operator's individual capacity for damages
       resulting from a negligent act or omission while operating the emergency
       vehicle in the performance of emergency service.

              (2) This subsection does not provide immunity from suit to an operator
       for a malicious act or omission or for gross negligence of the operator.

"Emergency service" can consist of:

              (i) Responding to an emergency call;

              (ii) Pursuing a violator or a suspected violator of the law; or

              (iii) Responding to, but not while returning from, a fire alarm.

TA § 19-103(a)(2). On this cross-appeal, Off. Beall contends that he was "[p]ursuing a

violator or a suspected violator of the law" at the time of the collision with Holloway-

Lilliston.




                                            - 40 -
       Off. Beall's own testimony unequivocally supports the appellant's position that Off.

Beall was not acting in "emergency service" at the time of the collision. Off. Beall

acknowledged receiving his shift commander's order to break off the pursuit, when he was

at the interchange of I-695 and York Road, by responding, "10-4." He explained that "10-4"

means he "acknowledge[d] the dispatcher" and he agreed that it meant that he "intended to

obey the order." On questioning by his own counsel, he testified that he then turned off his

emergency lights and siren and was taking the Dulaney Valley Road South exit ramp to

return to his post.

              Q. Did you receive an order to stop the pursuit at any point in time?

              A. Yes.

              Q. What did you do in response to receiving that order?

              A. I turned off my lights and siren and went to the next available exit.

              Q. And where were you planning on going?

              A. Just as I said, Dulaney Valley Road southbound was the ramp that
       I was familiar with to take me down Dulaney Valley Road, which merges at
       York Road at the Towson Circle, and down to Northern Parkway to go
       westbound back to my area of responsibility.

(Emphasis supplied). By his own testimony, at the time he collided with Holloway-Lilliston

on the exit ramp, he was no longer pursuing Holloway-Lilliston and, thus, was no longer

operating his cruiser "in the performance of emergency service." As such, he was not

entitled to TA § 19-103 immunity. There was no dispute of fact for the jury to decide on

this issue, and the court did not err in denying Off. Beall's motion for judgment.

                                           - 41 -
       To be sure, an officer's subjective intent is not dispositive. In Schreyer v. Chaplain,

416 Md. 94, 116, 5 A.3d 1054 (2010), the Court commented on the opposite situation,

where the officer insisted that he was pursuing a suspect at the time of an accident.

       [A]n officer's perception of the situation, i.e. whether he or she is in pursuit
       or not, may help inform the court as whether a pursuit occurred, but is not
       dispositive and cannot change what is not a pursuit, into one. While how the
       officer characterizes the situation and his or her intent is properly a part of the
       inquiry, the true nature of the situation, e.g. chase, stakeout, or investigation,
       ultimately controls whether it falls squarely within the § 19-103(a)(3)(ii)
       exceptions.

(Emphasis supplied). In this case, however, the officer steadfastly testified that he broke off

the pursuit when his shift commander ordered him to do so and that, at the time of the

collision, he was merely returning to his post. Where the officer insists that he was not

pursuing a suspect, he cannot at the same time ask the court (or the jury) to find that he was

and thereby enjoy the benefit of immunity. Purely as a factual matter, the appellant had

enough to take the negligence claim to the jury.

                                            JUDGMENT OF LIABILITY ON THE
                                            NEGLIGENCE COUNT AFFIRMED; ALL
                                            OTHER JUDGMENTS REVERSED AND
                                            CASE REMANDED TO THE CIRCUIT
                                            COURT FOR BALTIMORE CITY FOR
                                            FURTHER PROCEEDINGS NOT
                                            INCONSISTENT WITH THIS OPINION.

                                            COSTS TO BE PAID ONE HALF BY THE
                                            APPELLANT AND ONE HALF BY THE
                                            APPELLEE.




                                             - 42 -
