November 2013 - Parks & Recreation - 35

" a municipality entitled to governmental immunity
from a Plaintiff 's tort claim that the municipality negligently maintained a public park. "
As noted by the state supreme court, " the municipality's duty to maintain the Park is governmental,
[but] the City's maintenance of sidewalks, streets and
contiguous areas is a proprietary function. " In this case,
the parties agreed that " the hole is located within the
boundaries of the Park and that the hole is not within
the boundaries of the Johnson Street right of way. "
The City argued that " municipalities are not liable in
tort for alleged negligence in maintaining public parks
because doing so has traditionally been considered a
governmental function. "
As noted by the state supreme court, " the doctrine
of sovereign immunity from suit, rooted in the ancient
common law, is firmly embedded in the law of Maryland. " Pursuant to this doctrine, " the immunity of
counties, municipalities and local agencies is limited to
tortious conduct [that] occurred in the exercise of a governmental, rather than a proprietary, function. "
The state supreme court provided the following " distinction between a governmental function and a proprietary function " :
If the neglect or wrongful act was in the course of the
performance of a purely governmental duty [that] had been
imposed upon the municipality as a governmental or public
agency by legislative enactment, there would be no liability
in tort in favor of an individual who had been injured.
If, on the contrary, the power given and the duty enjoined relate to the local or special interests of the municipality, and be imperative, and not discretionary, legislative nor judicial, and the wrongful act is done in the
performance of such a duty, then the act is said to be done
in the private or corporate capacity of the municipality.
In the opinion of the state supreme court, " a municipality is acting in its governmental capacity when
maintaining, controlling and operating a public park. "
Specifically, the court found the obligation of the City
to " maintain, operate and control Leone Riverside
Park was a governmental duty, discretionary in its
nature, and performed in its governmental capacity. "
Since Whalen was within the boundaries of Leone
Riverside Park when she fell, the state supreme court
found the City was immune from suit under the circumstances of this case.
The state supreme court, therefore, held that " the trial court did not err in finding that the municipality was

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Parks & Recreation

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November 2013 - Parks & Recreation

Table of Contents for the Digital Edition of November 2013 - Parks & Recreation
