Appeal from the Superior Court of the District of Columbia (CA-3589-94) (Hon. Michael Rankin, Motions Judge) (Hon. Joan Zeldon, Trial Judge)
Before Wagner, Chief Judge, Farrell, Associate Judge, and Belson,
The opinion of the court was delivered by: Wagner, Chief Judge
Jeffrey Phelan was shot and killed on the steps of his home in the District of Columbia by Wesley Thompson, then an off-duty police officer with the City of Mount Rainier, Maryland. Appellant Karen Phelan, decedent's widow, individually and as personal representative of the decedent's estate, and to the use of decedent's parents, Donna and Michael Phelan (collectively "Appellant"), filed a complaint under the Wrongful Death and Survival Acts and for civil rights violations against Wesley Thompson, individually and as a Mount Rainier police officer, Mount Rainier Police Chief John Thompson ("Police Chief") and the City of Mount Rainier, Maryland and its police department (collectively "the City"). Appellant alleged in the complaint that Wesley Thompson killed decedent with his service revolver in a dispute involving Mrs. Phelan and Dean Reed, who was Thompson's roommate and Mrs. Phelan's former husband. Appellant sued Reed and Wesley Thompson for assault, threats, and intentional infliction of emotional distress. She asserted claims against the City and its Police Chief for violation of decedent's civil rights under 42 U.S.C. § 1983, negligent entrustment of Officer Thompson with a dangerous weapon, and common law claims of negligent hiring, supervision, training and retention of the officer. Appellant withdrew her claims for negligent hiring and training, and the trial court granted summary judgment for the City and the Police Chief on the remaining claims.
On appeal, appellant challenges the trial court's ruling only with respect to the claims of negligent supervision and retention and negligent entrustment of a firearm. *fn1 She concedes that the Police Chief should be dismissed from the action as he was a named defendant only in the dismissed civil rights claim for which she did not file an appeal. *fn2 Appellant also argues that the trial court erred in denying her motion to compel production of the police complaint log book filed against Officer Thompson and the police. We hold that while negligent supervision and retention claims may be maintained as direct theories of liability, on this record, the trial court properly found that the City is entitled to judgment as a matter of law. Further, we hold that appellant failed to show that she could establish the essential notice or proximate cause requirement for maintaining a negligent entrustment claim. Finally, we conclude that the trial court did not abuse its discretion in denying appellant's motion to compel production of police logs.
According to a written statement given by Wesley Thompson, his roommate Dean Reed informed him that on April 6, 1993, he wanted to take possession of a vehicle, which he still owned with his former wife, Karen Phelan, to use it as a bargaining tool to secure the return of his property. Thompson advised Reed that it was not illegal to take one's own property. *fn3 Thompson and Reed then drove to the Phelans' home, where Thompson, using Reed's key, drove the car around the corner and gave it to Reed. Thompson then advised Reed that he needed to notify Mrs. Phelan so that she would not report the car stolen. At his deposition, Thompson testified that on the night of the shooting, he accompanied Reed in order to explain the situation in case Mrs. Phelan called the police and complained that Reed was a trespasser or acting disorderly. They went back to the Phelans' residence after taking the car, and Mr. Phelan came outside. Mrs. Phelan came to the door and was talking to Reed in the doorway. Thompson said he was standing near a tree. According to Thompson, he noticed Mr. Phelan, who was standing midway down the front steps, putting his hand in his pocket as the conversation became heated between Reed and Mrs. Phelan. Thompson testified that he said to Mr. Phelan "something to the effect, like, `hey, shorty,' and . . . got his attention . . . `why don't you take your hands out of your jacket,'" in an attempt to "de-escalate" the situation. Mr. Phelan responded, saying among other things, "`I am not playing around,' sort of a finalized-type thing, and that is when he started to draw his hand out of his jacket." Thompson testified that he reacted by drawing his weapon from the holster inside of his windbreaker. He did not see Mr. Phelan with a weapon when he began drawing his gun, but he saw decedent's gun "during my draw, I guess." Thompson testified that he fired the weapon instinctively when he saw Mr. Phelan pointing a gun at him.
Reed corroborated Thompson's account of how they came to be at the Phelans' home on that fatal night. He stated that after getting the car, they decided to drive back to speak to Mrs. Phelan in person. Reed said that he brought Thompson with him because he was expecting a fist fight. Reed stated that he knocked on the door while Thompson remained on the sidewalk. Mr. Phelan answered the door, and Reed asked to talk to Mrs. Phelan. When Mrs. Phelan came to the door, Reed asked for his belongings back, and Mrs. Phelan responded that she wanted her car back. Reed then heard decedent tell Thompson, "I am not fucking around," as decedent reached into the left side of his coat at waist level. "His arm started to move back from his coat, his elbow was raising away, that's when I heard gunfire." Reed stated that he observed Thompson shoot Mr. Phelan, and saw Mrs. Phelan run inside when the shooting started. After decedent fell to the steps, Thompson pulled out his badge and told the neighbors to call the police and a medic. Reed stated that he saw decedent's gun for the first time after he was shot when the gun was lying by his right side. When the police officers arrived, they picked up the gun and moved it away from decedent.
Mrs. Phelan's version of the shooting differed in material respects from Thompson's and Reed's. According to Mrs. Phelan's deposition testimony, on the night of the shooting, she came to the door and told Reed to
go get the car and bring the car around. I told him that I had called the police and the police were going to come and arrest him, that he was going to get into trouble. And he put his hands up like this and he said `I've got all my bases covered because I'm a cop too.' And I thought that was a very strange thing for him to say because I didn't know he was a cop.
And when he said that, [decedent] turned and looked at me with a strange expression on his face like what is he talking about. And just as [decedent] turned and looked at me - - just before he turned back around, Mr. Thompson came out from behind the tree. *fn4
Mrs. Phelan testified that when Thompson came from behind the tree, Mr. Phelan told him to "show me what you have behind your back." Thompson responded, "you come down here where I can see you better." Mr. Phelan repeated his request. Mrs. Phelan testified that Thompson then pulled out his gun and "spread his legs in a police stance" and shot Mr. Phelan once. She testified that Thompson did not draw his gun from his holster, but in fact "had it at the ready." She said that Thompson paused and then shot decedent two more times, and paused again and shot him repeatedly. She testified that after the shooting, Thompson told the neighbors that he was a police officer.
Thompson testified that he knew that he had "no police authority inside Washington, D.C." Thompson acknowledged that, although he was not prohibited from carrying his weapon outside of his jurisdiction while off-duty, it is not Mount Rainier's policy to require officers to carry their weapons off-duty at all times. Thompson said that he never told anyone at the scene that he was a police officer. Thompson stated that he never intended to go to Mrs. Phelan's house in his official police capacity.
The City and the Police Chief filed a Motion to Dismiss based upon appellant's failure to give notice of the claims pursuant to Maryland's Local Government Torts Claims Act (LGTCA). Initially, the trial court (Judge Bayly) granted the motion, but ...