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Callahan v. Bowers3/13/2000
REPORTED
Steven Bowers, an employee of the Giant Food Store, was shot and killed while working on November 19, 1996, by Charles Thomas, a suspected shoplifter in the store on Sinclair Lane in Baltimore City. Subsequently, appellees Deborah Bowers, as personal representative of the estate of Steven Bowers and his surviving wife, as well as his surviving children, sued appellant Terrence Callahan in the Circuit Court for Baltimore City for negligence in his capacity as a security guard on duty at the store. On May 14, 1999, appellant filed for summary judgment, claiming an entitlement to qualified public immunity in his capacity as a special police officer, commissioned, pursuant to Md. Code, art. 41 (1997 Repl. Vol, 1999 Supp.), ยง 4-901 et seq. A hearing was held on appellant's motion on June 25, 1999. An opinion was issued by the court on June 29, 1999, in which the judge found that special police officers are not entitled to qualified public official immunity and denied appellant's motion for summary judgment. Subsequently, appellant filed this appeal and presents us with the following questions, which we rephrase:
I. Did the trial court err as a matter of law in denying appellant qualified public immunity in his capacity as a special police officer?
II. Did the trial court err in suggesting gross negligence as an alternative basis to deny appellant summary judgment?
We answer question one in the affirmative; we decline to answer appellant's second question. Accordingly, we shall reverse the judgment of the circuit court.
FACTUAL BACKGROUND
The events giving rise to this appeal occurred on November 19, 1996, at the Giant Food Store on Sinclair Lane in Baltimore City. At approximately 3:00 a.m., appellant, who was the security guard, apprehended and detained Thomas on suspicion of shoplifting. Upon being seized, several items thought to be from the store fell from beneath Thomas's coat, in addition to a plastic bag containing a white substance. Appellant escorted Thomas to the manager's office, searched him, and instructed another employee to call the police. Thomas was not handcuffed or restrained and he attempted to escape the office through a ceiling tile. Appellant pulled Thomas down by his legs, pulled out his gun, pointed it to Thomas's back, and instructed him to lay on the ground. After Thomas refused to comply, what occurred next is in dispute. Appellees state that appellant placed his gun in its holster but did not secure it. Appellant does not concede that fact. The parties do agree that it was at that time that Thomas struck appellant in the face, and again tried to escape through the ceiling. Appellant again pulled Thomas down by his legs and attempted to strike Thomas with a chair, at which time Thomas approached appellant and obtained control of the gun. He then shot appellant in the side and proceeded to escape from the office. In the course of fleeing the store, Thomas fatally shot Steven Bowers, a stock clerk.
Subsequently, on February 8, 1999, appellees brought a wrongful death action in the Circuit Court for Baltimore City against appellant alleging negligence. Appellant filed a motion for summary judgment, claiming immunity due to his status as a special police officer and, on June 25, 1999, a hearing was held on the motion. On June 29, 1999, the circuit court found that appellant was not entitled to public official immunity and, accordingly, denied his motion for summary judgment. From that order, appellant timely filed this appeal.
DISCUSSION
I.
Preliminarily, appellant's brief includes argument that this appeal from the court's summary judgment ruling qual
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