Cahill, Robert E., Jr.

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 12Number 3 Spring 1982 Article 91982Recent Developments: Maryland CourtsRobert E. Cahill Jr.Follow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,please contact snolan@ubalt.edu.Recommended CitationCahill, Robert E. Jr. (1982) "Recent Developments: Maryland Courts," University of Baltimore Law Forum: Vol. 12: No. 3, Article 9.Available at: http://scholarworks.law.ubalt.edu/lf/vol12/iss3/9Maryland CourtsBy Robert E. Cahill, Jr.In Embrey et. al. v. Holly, -Md....A.2d - (1982), the Court of Appealsof Maryland upheld an award of pun-itive damages against an employerunder the theory of respondeat superiorin a defamation case. The Court alsodecided that under appropriate cir-cumstances, it is proper for a trialcourt to permit the jury to apportionpunitive damages among multiple de-fendants.The case involved a remark byEmbrey, a radio D.J. more popularlyknown as Johnny Walker, during hismorning broadcast on WFBR, in Bal-timore. The target of the comment,then local news anchorman DennisHolly, alleged damage to his reputa-tion as a result of its broadcast. Suitwas filed on his behalf against bothEmbrey and Baltimore Radio ShowInc., Embrey's employer. A jury in theBaltimore City Court found that thestatement was defamatory, andawarded Holly, $25,000.00 in com-pensatory damages against both de-fendants, as well as $5,000.00 in puni-tive damages against Embrey and$25,000.00 in punitive damages againstthe defendant employer.On appeal, Embrey and BaltimoreRadio Show conceded that Marylandhas adopted the view allowing assess-ment of punitive damages in caseswhere liability is vicariously imposedupon a master as the result of theservant's tortious conduct in the courseof employment, without regard tothe master's involvement in the tor-tious act. However, they urged theCourt to fashion an exception to therule, thus prohibiting vicarious exem-plary recovery in defamation cases.Embrey and his employer argued thatto allow recovery against the masterin such a case would offend the spiritof the first amendment guarantee offreedom of expression, and wouldviolate the prohibition against impos-ing "liability without fault" in defa-mation cases announced by the Su-preme Court in Gertz v. Robert Welch,Inc. 418 U.S. 323 (1974).The court held, however, that "it isnot error to permit the jury to imposeexemplary liability on a master for thedefamatory utterances of its servantwhere the employee acted in thescope of his employment, and withknowledge of falsity or reckless dis-regard for the truth." In so holding,the Court reasoned that the Gertzdecision left state courts sufficientleeway to impose vicarious liability indefamation cases, stating that "thereis no constitutional shield under Gertzfor an employer acting through hisagent with actual malice, because theemployer in such a situation is thewrongdoer."The Court further reasoned thatFORUMRecent Developmentsiallowing a punitive damage assess-ment against an employer in such asituation will serve to encouragegreater employer accountability, thusprotecting the interests of Marylandcitizens in their reputations.Finally, the Court noted the lack ofany constitutional distinction betweenan award of punitive damages andone of compensatory damages basedon vicarious liability, the latter beingclearly permissible.The Court also deemed this anappropriate case to permit apportion-ment of punitive damages among theco-defendants. In so holding, the Courtcited the admissability of evidence asto the wealth, and the blameworthi-ness of each co-defendant as weigh-ing heavily in favor of a rule thatwould allow a punitive award againsteach co-defendant individually.In his dissent, Chief Judge Murphy,joined by Judges Eldridge and David-son, argued that the test for theimposition of punitive liability adoptedby the RESTATEMENT (SECOND) OFTORTS §909 (1976), which requiressome degree of employer "authoriza-tion, participation, or ratification ofan employee's defamatory act "is con-stitutionally impelled" by the holdingin Gertz. The thrust of the dissentingposition centered upon a reading ofGertz that would require a finding ofactual fault, as opposed to one ofimputed fault before an award of pun-itive damages could be proper in aFirst Amendment case.In Adler v. American Standard Corpora-tion. 291 Md. 31, .A.2d-(1981), theCourt of Appeals, upon having thequestion certified for its determina-tion from the United States DistrictCourt for the District of Maryland,opened the door to a new cause ofaction in Maryland Courts: to wit,wrongful discharge by an employerof an at-will employee. While holdingthat the averments of Adler's AmendedComplaint were conclusory, vague,and general, the Court recognizedthat an employee at will may sue hisformer employer either in tort or incontract for abusive discharge whenthe reason for the discharge contra-XII/3venes "some clear mandate of publicpolicy."As the Court explained, Adler allegedthat he was discharged solely on thebasis of the corporation's desire tothwart Adler's efforts to disclose cer-tain business improprieties which hehad discovered within the company,including payment of commercialbribes, and the falsification of finan-cial and other business records. Adlercontended that since the acts whichprecipitated his discharge, namely com-mercial bribery and falsification ofrecords are in violation of the criminallaws, see MD. ANN. CODE Art. 27 §174(1982 rep. vol.), then a discharge toprevent disclosure of the crimes vio-lates public policy.The Court found that the allega-tions did not fully set forth factsamounting to a violation of the crimi-nal statute. Further, found the Court,Adler's allegations did not otherwise"demonstrate violation of a clear man-date of public policy of this State."The Court noted that "declaration ofpublic policy is normally the functionof the legislative branch, 'and that'recognition of an otherwise undeclaredpublic policy as a basis for a judicialdecision involves the application of avery nebulous concept to the facts of7677 Canton Center DriveBaltimore, MD 21224-20843011285-7500a given case." In short, the Court pro-vides little guidance in defining thetype of "clear mandate of public pol-icy" that must be contravened by theemployer in a proper allegation ofwrongful discharge. For further an-alysis, see 10 U. of Balt. L. Rev. 256(1981).The Court of Special Appeals, InTeays v. Supreme Concrete Block Inc., -Md. App. - - A.2d - (1982), inholding that an aggrieved employeeagainst whom a demurrer was sus-tained before the Adler decision wasfiled is entitled to the application ofthe new law on appeal, similarly foundthe plaintiff's declaration to be sub-stantially insufficient in alleging thatthe motivation of the employer in dis-charging Teays contravened a clearmandate of public policy.In Felder v. Butler, 292 Md. 174, __A.2d - (1981), the Court of Appealsdeclined to alter or to modify thecommon law rule prohibiting the im-position of dram shop liability upon alicensed vendor of intoxicating bev-erages who knowingly and unlaw-fully sells liquor to an intoxicatedpatron, who in turn, causes an injuryto a third party.The Court reasoned that since theTYPESETTINGGKAPHCSCAMERAREADYARTSTRIPPINGOFFSETPRINTINGBINDERYlegislature has declined to enact a sta-tute imposing civil liability on respon-sible liquor vendors, the policy de-manded by the public is satisfied bythe imposition of criminal sanctionsupon vendors found guilty of sellingintoxicants to minors or to intoxi-cated persons. See MARYLAND CODEANN. Art 2B § 118(a)(1981 rep. vol.).The Court noted that the question"clearly impacts on the developmentsrelating to the dispensing and con-sumption of alcoholic beverages, asubject long pervasively regulated bythe legislature."In her dissent, Judge Davidson ar-gued that "the common law rule hasbecome insound in the circumstancesof modern life," and that the Courtshould not interpret legislative in-action as a positive revelation con-cerning Maryland public policy.In Sheehan v. Anthony Pools - Md.App.., A.2nd-(1982), the plain-tiff sued the seller of a swimming poolafter he sustained personal injuries asthe result of falling off of a divingboard. Sheehan pursued his claimunder two theories. First, he allegedbreach of express and implied war-ranties that the diving board wascovered with non-skid materials.Second, he alleged strict liability,claiming that he had been sold adefective pool and diving board whichwas unreasonably dangerous.The trial court directed a verdict infavor of Anthony Pools as to the war-ranty court, citing a provision in thesales contract which contained a dis-claimer of implied warranties, and ofany express warranties falling out-side of the contract itself. In submit-ting the strict liability claim to a jury,the trial court refused to grant aprayer to the effect that inadvertenceof carelessness in the use of the divingboard by Sheehan was not a defense.The Court of Special Appeals re-versed. On the question of whetherthe attempted disclaimer effectivelyexcluded the implied warranties ofmerchantability and fitness for pur-pose, the Court held that while gen-erally the implied warranties may beexcluded or modified, the provisionsFORUMof MD. COM. L. CODE §2.316.1 (1975)prohibit enforcement of such an attempt,if asserted by a seller of consumergoods. The Court found AnthonyPools to be a "seller" (MD. COM. L.CODE §2-314 to 2-318), and the poolitself to be a "consumer good" (MD.COM. L. CODE §9-109), within themeaning of the statute.The Court also held that the judge'srefusal to instruct the jury that care-lessness in the use of the diving boardby Sheehan did not constitute a validdefense to the strict liability claim wasreversible error. Noting first that thetrial judge properly refused AnthonyPools' request for a contributory negli-gence instruction, the Court indicatedthat the appropriate jury charge shouldhave included an instruction to theeffect that ordinary carelessness orinadvertence on the part of Sheehanwould not bar his recovery, but that aknowing, voluntary and unreasonableassumption of the risk involved in theuse of the diving board would providea complete defense. See RESTATEMENT(SECOND) OF TORTS §402A (1976).The Court concluded that "the trialcourt's silence on these two aspects ofthe plaintiff's conduct left the jurybereft of essential guidance and con-stituted reversible error."Recent MarylandLegislativeDevelopments:" the bill seeking to raise gasolinetaxes 4.5 cents per gallon over thenext two years passed. If the whole-sale price of unleaded gasoline risesabove $1.30, the tax will increaseautomatically, but by no more than$.01 per year. Such revenue will beused to repair and replace Mary-land's deteriorating highways andbridges." the State's drinking age for the con-sumption of beer and wine will beraised from 18 years of age to 21years of age. The bill exempts allpeople who will be 18 by June 30,1982. The primary motivation forI estauranl Carry Out1305 N. Charles StreetCall Ahead for Fast Service752-4498 727-8914We DeliverHoursMonday thru Friday - 6 a.m. - 11 p.m.Saturday 7 a.m. - 9 p.m.Sunday 8 a.m. - 6 p.m.raising the drinking age was toreduce the number of automobileaccidents caused by intoxicatedmotorists. The drinking age forbeer and wine was lowered from 21to 18 in 1974.the "Death with Dignity" bill whichwould have allowed terminally illpatients to instruct doctors not totake extraordinary measures to pro-long life where there is no hope ofcure did not pass. Opponents ofthis bill felt that it would only legal-ize mercy killing." the bill seeking to "decouple" statetaxes from federal taxes which havemade allowances providing taxbreaks for businesses, was shelveduntil next year." the bill to raise interest rate ceilingson most consumer loans, raisingthe ceiling to 24% passed. Oppo-nents of the deregulation bill weresuccessful only in amending the billto continue the state ban on creditcard membership fees. On January28, 1981, Judge Marshall A. Levinof the Supreme Bench of BaltimoreCity, ruled that the State no longerhas the right to impose interest ceil-ings because of federal deregula-tion. Judge Levin's decision will beconsidered on appeal to the Mary-land Court of Appeals this year." the bill seeking to raise interest ceil-ings to 24% on secondary mort-gages passed.* the bill proposing mandatory sen-tencing for unlawful possession ofa handgun was killed in the Judi-ciary Committee." the General Assembly agreed toraise weekly unemployment bene-fits from $140 per week to $153 perweek." the bill that would prevent thecourts from automatically dismiss-ing criminal cases that take morethan 180 days to get to trial waskilled in the final hours of thesession." the bill giving state's attorneys thediscretion to determine whether 16or 17 year-olds charged with vio-lent crimes should be tried as juve-niles or adults, passed." the legislature acted to extinguishthe possibility of obtaining uncon-tested divorces without going tocourt, a method recently approvedby the Maryland Court of Appeals.Proposals to reduce the separationperiod necessary to file for divorcewere also defeated.

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