One of the more common types of claims for personal injury that we see in today’s world is a slip and fall or trip and fall claim against a property owner or manager. Certainly if someone can prove that the owner of a private premises had notice of a defect, and it caused injury to a someone lawfully on the property for business, they can attempt to prove they are entitled to compensation for their injuries (assuming, under Maryland law, they were not also partly at fault themselves). What happens in Montgomery County when the government owns the property where the injury occurred?
This issue was addressed this week by Maryland’s intermediate appellate court in the case of Bagheri v. Montgomery County. According to the Court’s opinion, Bagheri parked in a County parking lot in Bethesda. Upon returned to her vehicle, she trip and fell, allegedly due to improper repair or maintenance of the concrete floor that left it uneven. Bagher claimed she broke her foot and suffered other injuries, and sought damages against the County.
The Court noted that the garage was operated by the Parking Operations Section of the Montgomery County government. Funds that it collects from parking are applied to the Bethesda Parking Lot District Fund, to pay back principal and interest on bonds that have been issued to build and maintain parking facilities. Any surplus collected is put toward providing additional parking. The County does not make a profit from parking.
The law provides generally that a governmental entity is immune from suit, unless it chooses to waive immunity, while performing what the law deems to be governmental function. A County or municipality may be sued “while the entity is acting in a private or proprietary capacity.” Just how these tests are applied is not always easy to figure out.
The Court said that a function is governmental if it is sanctioned by legislative authority, is solely for the public benefit, no profit goes to the government, it is to benefit public health or welfare, and has no element of private interest. That test, the Court said, clearly is met by the operation of the public parking facility in this case. However, for reasons which are not too clear, the Court noted that the law includes an exception for injuries caused by defects in public highways or roads.
The plaintiff tried to argue that using a public parking facility was equivalent to “public travel,” and therefore she could sue. The Court rejected any overall “public travel” exception to the law, and found that the public garage was not outside the immunity granted.
Other cases have held that public parks, swimming pools, or court houses are facilities provided to the public at large, for which the government should not have to worry about suits for injury. While one can argue the public policy behind governmental immunity, clearly it is a policy choice the law has made not to impose on the taxpayers risks associated with such public facilities.