Antonio v. SSA Security , 442 Md. 67 ( 2015 )

Joseph Antonio, et al. v. SSA Security, INC. d/b/a Security Services of America, Misc. No.
1, September Term, 2014
STATUTORY INTERPRETATION – MARYLAND SECURITY GUARDS ACT –
VICARIOUS LIABILITY – Court of Appeals held that Maryland Code (2000, 2010
Repl. Vol.), Business Occupations & Professions Article, § 19-501 codifies Maryland’s
common law doctrine of respondeat superior and does not expand vicarious liability for
the employers of Maryland security guards. The Maryland General Assembly did not
indicate a clear intention to abrogate the common law by adoption of Maryland Code
(2000, 2010 Repl. Vol.), Business Occupations & Professions Article, § 19-501 or its
predecessors.
United States Court of Appeals for the Fourth Circuit
Case No. 13-1031
Argued: 8 December 2014
IN THE COURT OF APPEALS OF
MARYLAND
Misc. No. 1
September Term, 2014
JOSEPH ANTONIO, ET AL.
v.
SSA SECURITY, INC. d/b/a SECURITY
SERVICES OF AMERICA
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
Opinion by Harrell, J.
Filed: March 2, 2015
The federal Court of Appeals for the Fourth Circuit certified to this Court the
following question of law:
Does the Maryland Security Guards Act, Md. Code Ann.,
Bus. Occ. & Prof. § 19-501, impose liability beyond common
law principles of respondeat superior such that an employer
may be responsible for off-duty criminal acts of an employee
if the employee planned any part of the off-duty criminal acts
while he or she was on duty?
We answer the certified question in the negative. For reasons to be explained, we hold
that § 19-501 of the Maryland Security Guards Act is a codification of Maryland’s
common law doctrine of respondeat superior and does not broaden the scope of vicarious
liability of the employers of security guards for their employees’ acts beyond these
principles.
I. FACTUAL AND PROCEDURAL BACKGROUND.
A summary of the certified facts of this case deserve mention.1
Two security guard employees of SSA Security, Inc. (“SSA”), a security guard
agency, and four of their confederates carried out a conspiracy to set fire during the early
morning of 6 December 2004 to homes under construction in the Hunters Brook
development in Charles County, Maryland. SSA had been hired previously by the
builder/developer of Hunters Brook to provide security for the project while it was under
1
We “accept the statement of facts in the certification order” when another court certifies
a question of law to us. NVR Mortg. Finance, Inc. v. Carlsen, 439 Md. 427, 429 n. 2; 96
A. 3d 202, 204 n. 2 (2014). The procedural pilgrimage of the case is also included to
provide context.
construction. The arson was fueled by racial animus against Appellants and a desire to
prevent them from moving into the neighborhood.2 The resulting fires destroyed ten
homes and damaged twelve others (some completed and some under construction),
making it one of the worst residential arsons in Maryland history. Fortunately, no one
was killed or injured as a result of the crimes.
Aaron Speed, one of the arsonists, had been hired originally by SSA in November
2003, without the benefit of checking his references. Speed quit his employment with
SSA in August 2004, after being reprimanded for “careless and aggressive conduct.” One
of Speed’s supervisors placed a recommendation in Speed’s personnel file that he not be
considered for rehire. Despite this recommendation, Speed was rehired by SSA in
November 2004.
As part of the conspiracy to set fire to the homes, Speed left his guard post at the
development on 3 December 2004 in order to stash fuel that would be used by the others
to set fire to the homes. While on-duty, Speed created also a map of the neighborhood,
indicating which houses were owned or contracted for by racial minorities.
2
Appellants were contract purchasers of the homes, but had not yet closed on the
transactions or taken possession of the homes at the time of the arson. The developer bore
the risk of loss due to fire. Two of the original plaintiffs in the underlying civil litigation,
who had taken possession of their properties, reached a settlement of their claims with
SSA. The remaining plaintiffs are Appellants here.
2
William Fitzpatrick, another SSA employee, was alleged also to have conspired to
commit the arson.3 Fitzpatrick was on-duty guarding the development from 6:00 PM until
5:00 AM on December 5-6, but, according to Appellants, left his post early to leave the
properties unguarded so that Speed and the other conspirators could commit the arson.
Appellants asserted ultimately various civil claims in the U.S. District Court for
the District of Maryland against SSA, two of its corporate affiliates, and the five
convicted arsonists. One of Appellants’ theories of SSA’s liability contended that
Maryland Code (2000, 2010 Repl. Vol.), Business Occupations & Professions Article, §
19-501 (hereinafter the Maryland Security Guards Act § 19-501) established a basis for
SSA’s strict liability.
Deciding a motion for summary judgment filed by SSA, Judge Alexander
Williams, Jr. of the U.S. District Court held that the Maryland Security Guards Act § 19-
501 was merely a codification of the common law and did not expand the doctrine of
respondeat superior, contrary to the plaintiffs’ contentions regarding SSA’s strict liability
for Speed’s and Fitzpatrick’s intentional torts and civil rights violations. Antonio v. Sec.
Servs. of Am., LLC, 701 F. Supp. 2d 749, 766 (D. Md. 2010). After concluding that any
intentional acts of Speed and Fitzpatrick were, considering the facts in the light most
favorable to Appellants, outside the scope of employment, Judge Williams granted SSA’s
3
Fitzpatrick was not charged criminally with Speed and the other conspirators, all of
whom pleaded guilty or were found guilty at trial. Fitzpatrick was indicted for making
false statements to investigators, but was not convicted.
3
motion regarding its liability under the Maryland Security Guards Act § 19-501. Judge
Williams would grant later SSA’s renewed motion for summary judgment regarding
liability arising from SSA’s direct negligence and its vicarious liability for its employee’s
negligence.4, 5
On appeal, Appellants asked the federal Court of Appeals for the Fourth Circuit to
reverse the District Court’s decisions: (1) granting summary judgment in SSA’s favor as
to the negligence claims; (2) granting summary judgment in SSA’s favor as to the claims
premised on strict liability under the Maryland Security Guards Act § 19-501; and, (3)
denying the request to certify to us the question regarding the interpretation of the
Maryland Security Guards Act § 19-501. The federal appellate court, after affirming the
District Court’s grant of summary judgment as to the negligence claims, turned to the
question requiring interpretation of the Maryland Security Guards Act.
Appellants argued, as they do now, that the Maryland Security Guards Act extends
the vicarious liability of security guard agencies beyond the Maryland common law
doctrine of respondeat superior. The federal appellate court considered the text of the
4
The federal trial court, interpreting Maryland law regarding damages, held that damages
were not available for negligently inflicted emotional harm where the plaintiff was
outside the zone of danger. Antonio v. Sec. Servs. of Am., LLC, No. 05-CV-2982-AW,
2011 WL 3880425, at *7 (D. Md. Aug. 30, 2011). The claims of the plaintiffs who had
taken possession of the properties, and thus were arguably in the zone of danger, were
allowed to proceed. As noted, those claims were settled.
5
In the course of the litigation, Judge Williams considered and denied a request to certify
to us a question regarding the interpretation of the Maryland Security Company Act § 19-
501.
4
statute and, after applying Maryland’s cannons of statutory construction, concluded that
there were conflicting indications as to the meaning of the Maryland Security Guards Act
§ 19-501. Thus, the Court certified the question to us to resolve the uncertainty.6
II. OUR ANALYSIS
We may answer questions certified to us by a United States court or the appellate
court of another state or of a tribe if the answer might be determinative of an issue before
the certifying court and there is no controlling Maryland authority. Md. Code (1974, 2013
Repl. Vol.), Courts & Judicial Proceedings Art., § 12-603. The Maryland Security Guards
Act § 19-501 has not been interpreted by Maryland’s appellate courts before and its
application could be dispositive of whether Appellants’ strict liability contentions will
allow certain of its claims to survive summary judgment.
The District Court dismissed several of Appellants’ claims because the alleged
torts and fair housing violations committed by SSA’s employees were beyond the scope
of their employment. Appellants argued before the federal District Court, the federal
Court of Appeals, and now us that the Maryland Security Guards Act § 19-501 imposes
liability on SSA for the actions of Speed and Fitzpatrick beyond those for which SSA
would be liable under Maryland’s common law doctrine of respondeat superior.
The relevant portion of the Act, § 19-501, provides: “A licensed security guard
agency is responsible for the acts of each of its employees while the employee is
6
Because the federal Court of Appeals certified the question, it did not decide whether
the District Court abused its discretion in declining to certify the question.
5
conducting the business of the agency.” Appellants contend that this section of the statute
creates strict liability for the “on-duty” acts of employees, including those outside the
scope of employment. SSA argues that the statute merely codified the Maryland common
law of respondeat superior.
When interpreting statutes, our overarching goal is to ascertain and implement the
intention of the Legislature. Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165
(2002). We turn first to the words of the statute. If, in pursuit of the North Star of intent,
the words of the statute, given their common and ordinary meaning, are unambiguous and
express a plain meaning, our inquiry stops normally and we interpret the statute as
written. Oaks v. Conners, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). If the text is
ambiguous, however, we look to other evidence of the Legislature’s intent, including the
relevant statute’s legislative history, the structure of the statue, the relationship of the
statute to other laws, and the relative rationality of competing constructions. Witte, 369
Md. at 525-26, 801 A.2d at 165.
There is, however, one important and particularly relevant interpretive principle
reining-in our quest to elucidate the will of the Legislature: we will not presume
abrogation of the common law unless the Legislature’s intent to do so is clear. Suter v.
Stuckey, 402 Md. 211, 232, 935 A.2d 731, 743-74 (2007) (citing Robinson v. State, 353
Md. 683, 693, 728 A.2d 698, 702 (1999); Lutz v. State, 167 Md. 12, 15, 172 A. 354, 355–
6
356 (1934)). When the intent of the Legislature is unclear with regard to abrogation, we
will interpret the statute to be congruent with the common law.7
A. Abrogation Here of the Common Law?
Maryland’s common law doctrine of respondeat superior holds employers liable
“for the tortious conduct of . . . [an] employee committed while the servant was acting
within the scope of the employment relationship.” Barclay v. Briscoe, 427 Md. 270, 283,
47 A.3d 560, 567 (2012)) (quoting Embrey v. Holly, 293 Md. 128, 134, 442 A.2d 966,
969 (1982)). For employee conduct to be within the scope of employment, “the acts must
have been in furtherance of the employer's business and authorized by the employer.”
Barclay, 427 Md. at 283, 47 A.3d at 567-68 (quoting S. Mgmt. Corp. v. Taha, 378 Md.
461, 481, 836 A.2d 627, 638 (2003)). Expanding the vicarious liability of security guard
agencies by statute to include all on-duty acts of employees (strict liability) would alter
significantly the common law scheme of respondeat superior and amount to an
abrogation of the common law.
The common law doctrine of respondeat superior not only holds employers liable
for the actions of their employees in furtherance of the employer’s business, but also
7
This rule of statutory interpretation was formulated as well to implement the will of the
Legislature. See, e.g., Hooper v. City of Baltimore, 12 Md. 464, 475 (1859) (stating that
“the law . . . infers that the act did not intend to make any alteration [to the common law]
other than what is specified, and besides what has been plainly pronounced”). The rule of
construction seeks to limit judicial hair-splitting and reading acts of the Legislature as
changing the common law when the Legislature had no such intention. In theory, it might
also cause legislatures to announce clearly when it is their intent to abrogate the common
law.
7
limits an employer’s liability to those situations. It is central to the doctrine that an
employee’s acts committed outside the scope of employment, i.e., not in the furtherance
of the employer’s business, are not attributable to the employer. The universe of the types
of employee acts for which the employer might be held strictly liable is limited.
A temporal interpretation of the Maryland Security Guards Act § 19-501 would
eliminate the distinction between employees’ acts within the scope of employment and
those outside the scope of employment. Rather than turning on the character of employee
acts, the focus would be on when the acts happened and whether the security guard was
on duty. Security guard agencies would be liable for a broader set of acts of their
employees, including, according to Appellants, even acts in direct opposition to the
employers’ interests. Such a change in employer liability would alter fundamentally the
common law.
Contrary to Appellants’ arguments, interpreting the Maryland Security Guards Act
§ 19-501 to impose vicarious liability on security guard agencies for all on-duty acts of
their employees would operate more than to supplement the common law. Statutes we
have held to supplement, rather than abrogate, the common law provide typically
alternative remedies or criminal sanctions. See, e.g., Nickens v. Mount Vernon Realty
Grp., LLC, 429 Md. 53, 74-75, 54 A.3d 742, 755-56 (2012) (holding that a Baltimore
City ordinance providing for a statutory eviction scheme supplemented, rather than
abrogated, the common law remedy of peaceable self-help); Genies v. State, 426 Md.
148, 159, 43 A.3d 1007, 1013 (2012) (holding that a statute creating a separate criminal
offense for inmates exposing their private parts to correctional officers of the opposite
8
sex as a means to abuse corrections officers did not abrogate the pre-existing common
law crime of indecent exposure). Appellants’ interpretation of the Maryland Security
Guards Act § 19-501, in contrast, would not create a new cause of action, but rather
would modify the liability of security guard agencies for existing torts committed by their
employees.8
The common law doctrine of respondeat superior answers the question: When is
an employer liable for the torts of its employee? The Maryland Security Guards Act § 19-
501 answers the same question with specific reference to employers who are security
guard agencies. To change the answer amounts to an abrogation of the common law.
Therefore, we look for an abundantly clear intent on the part of the Legislature to change
the common law by its adoption of § 19-501.
B. Plain Language of the Statute
The Maryland Security Guards Act § 19-501 holds clearly and unambiguously
licensed security guard agencies liable civilly for some acts of their employees. The
8
Appellants argue that there could be some situations in which the off-duty acts of
an employee could be within the scope of employment and, therefore, their interpretation
of Maryland Code (2000, 2010 Repl. Vol.), Business Occupations & Professions Article,
§ 19-501 would not eliminate the common law totally. We have stated “that a statute,
made in the affirmative without any negative expressed or implied, does not take away
the common law.” Robinson v. State, 353 Md. 683, 693, 728 A.2d 698, 702 (1999)
(quoting Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934)).
Appellants’ reasoning is misguided. Their interpretation would change the core of
Maryland’s common law principles of vicarious liability of employers of security guards.
Even if there were some remaining vestiges of the common law scheme of vicarious
liability, this would not diminish the significant changes advanced by Appellants that
would amount to abrogation.
9
parties disagree which acts of employees come within the statute. At issue is whether the
Legislature intended the phrase “while the employee is conducting the business of the
agency” to modify the common law principles of an employer’s vicarious liability.
Appellants’ major premise revolves around the temporal meaning of “while.”
When used grammatically as a conjunction, as it is in the Maryland Security Guards Act
§ 19-501, “while” means typically “during,” “throughout the time that,” or “as long as.”
Webster’s New Universal Unabridged 2084 (1983).9 According to Appellants then, a
licensed security guard agency is liable for all acts of its employees performed during the
time that the employee is also “conducting the business of the agency.”
The Maryland Security Guards Act defines “conducting the business of the
agency.” A licensed security guard agency is defined as “a person who is licensed by the
Secretary to conduct a business that provides security guard services.” Maryland Security
Guards Act § 19-101(g). Security guard services are defined as “any activity that is
performed for compensation as a security guard to protect any individual or property. . .
.” Maryland Security Guards Act § 19-101(l).
9
Although the temporal meaning of “while” is uncontroversial generally, “resort to a
dictionary, legal or otherwise, should logically include consultation of those editions (in
addition to current editions) of dictionaries that were extant at the time of the pertinent
legislative enactments.” Harvey v. Marshall, 389 Md. 243, 260 n.11, 884 A.2d 1171,
1181 n.11 (2005). Looking at the most relevant present meaning of “while”—a
Google.com search of “while definition”—indicates that the word’s meaning has not
changed in the years since. See While, Google.com, https://www.google.com/?gws_rd=
ssl#q=while.
10
Combining these terms, Appellants arrive at the following meaning of the
Maryland Security Guards Act § 19-501: A licensed security guard agency is liable for
the actions of its employees occurring during the time that the employee is performing
any activity for compensation to protect an individual or property.10 Expressed another
way, a security guard agency is liable for all acts its employees commit when they are
“on-duty.”
SSA argues, in response, that if the General Assembly intended a temporal
construction, extending liability to all acts of on-duty employees, it would have done so
explicitly.11 Instead, the Legislature used language that SSA argues is a qualification
based on the nature of the conduct.
The language of the Maryland Security Guards Act § 19-501 is subject to differing
reasonable interpretations. Although Appellants’ argument may sound logical, when
taken as a whole, the phase “while the employee is conducting the business of the
agency” could be understood as well as having the same meaning as the common law
doctrine of respondeat superior. The common law doctrine imposes liability only for acts
10
Appellants, in their reply brief to us, add the additional requirement (before a licensed
security guard agency may be held liable) that there be a nexus between the tortious act
and the provision of security guard services.
11
SSA presented two arguments that are inapposite to the question before us: (1) that it is
impossible to do a thing and its opposite at the same time (in this case, protect and
destroy property) and (2) that Speed was off-duty at the time he and his co-conspirators
committed the arson. The somewhat metaphysical question of whether it is possible to do
a thing and its opposite at the same time is not part of the question certified to us. We
shall not reformulate the question to put it in play.
11
by an employee furthering the employer’s business, Hopkins Chem. Co. v. Read Drug &
Chem. Co., 124 Md. 210, 214, 92 A. 478, 479-480 (1914) (stating that employers are
liable if an employee’s acts were “within the scope of his employment; not whether they
were done while prosecuting the master’s business, but whether they were done by
servant in furtherance thereof”), but we have summarized the rule as imposing liability
for tortious acts “while the . . . [employee] was acting within the scope of the
employment relationship.” Embrey, 293 Md. at 134, 442 A.2d at 969. Neither side’s
urging of the meaning of the statute renders any of the text meaningless.12 Therefore, we
move on to examine other indicia of legislative intent.
C. Context of the Statute
The crux of the Maryland Security Guards Act is the licensing scheme of security
guard agencies, not the imposition of civil liability. The majority of the Act governs how
an agency applies for and obtains the required licensure from the State to conduct a
security guard agency. The “Miscellaneous Provisions” of the Act, of which § 19-501 is a
part, however, contain sections addressed to the civil liability of security guard agencies.
See the Maryland Security Guards Act §§ 19-504 (requiring a minimum amount of
general liability insurance for agencies with more than five employees); 19-505(a)-(b)
(requiring consent to venue); 19-505(f) (allowing for service of legal process under
certain circumstances on Maryland Secretary of State). The internal structure of the
12
Codification of the common law is not a meaningless legislative activity. Much of the
Maryland Code is devoted to codification of significant areas of the common law.
12
Maryland Security Guards Act contributes nothing to illumination of the intentions of the
General Assembly.
The broader context of the Maryland Code provides some support for the
Appellants’ interpretation of the Maryland Security Guards Act § 19-501. In other
statutory schemes within the Code, the General Assembly uses the common law term
“scope of employment.” See, e.g., Md. Code (1999, 2007 Repl. Vol.), Agriculture Art., §
4-127 (“when construing or enforcing any provision of this subtitle, every act, omission,
or failure of any person acting within the scope of employment or office and acting for or
employed by another person is the act, omission, or failure of that person as well as of the
person committing the act”); Md. Code (1999, 2007 Repl. Vol.), Business Occupations &
Professions Art., § 12-501(b)(2) (using the term “scope of employment” regarding
insurance requirements for licensed plumbers); Md. Code (1992, 2010 Repl. Vol.),
Business Regulation Art., §9A-402(b)(2) (using the term “scope of employment”
regarding insurance requirements for licensed heating, ventilation, and air-conditioning
workers); Md. Code (1974, 2013 Repl. Vol.), Courts & Judicial Proceedings Art., § 5-
303(b) (“a local government shall be liable for any judgment against its employee for
damages resulting from tortious acts or omissions committed by the employee within the
scope of employment with the local government”); Md. Code (2002, 2012 Repl. Vol.),
Criminal Law Art., § 10-108 (creating an exception to the criminal statute for possession
of “a tobacco product or cigarette rolling paper by a minor who is acting as the agent of
the minor’s employer within the scope of employment”); Md. Code (1978, 2014 Repl.
Vol.), Education Art., § 6-111(a) (providing for full pay for employees absent due to
13
disability resulting from an assault “while in the scope of board employment”); Md. Code
(2007), Human Services Art., §3-406 (prohibiting the State from paying judgments
awarded against an employee under the section for acts or omissions occurring “outside
the scope of employment”); Md. Code (1988, 2010 Repl. Vol.), Tax-General Art., §1-101
(defining “Comptroller” to include “an employee of the Comptroller acting within the
scope of employment”). It seems from this that the General Assembly is well acquainted
with the common law term “scope of employment,” and is not averse to sprinkling it
across the broad legislative landscape.
Considering the language of the Maryland Security Guards Act §§ 19-501 in the
foregoing context of the Maryland Code adds some weight to the Appellants’
interpretation. One might anticipate that the General Assembly would use the term
“scope of employment” here if it intended to codify common law respondeat superior. In
isolation, however, the absence of this term in § 19-501 does not provide sufficiently
clear evidence of the General Assembly’s intent to abrogate the common law.
D. Legislative History
The language of the Maryland Security Guards Act §19-501 has its genesis in
Senate Bill 968 of the 1986 session, which codified a regulatory scheme as Md. Code
(1999, 2007 Repl. Vol.), Business Occupations & Professions Art., § 13-601 (hereinafter
the Maryland Private Detectives Act § 13-601). Security guard agencies remained
regulated as private detectives under the Business Occupations & Professions Article of
the Maryland Code until 1996 when House Bill 42 separated the Code’s treatment of
security guard agencies into its own title. 1996 Maryland Laws Ch. 602 (which
14
established the current regulatory scheme). The same language regarding liability was
used in House Bill 42 as existed in the prior Article. Id. Thus, the legislative history of §
13-601 of the Business Occupations & Professions Article of the Maryland Code, which
covered civil liability for private detective agencies and security guard agencies before
the reorganization, is informative regarding the analogous § 19-501 of the Maryland
Security Guards Act.
Senate Bill 968 of 1986 was introduced as a bill separate from a recodification
initiative of the Maryland Code then underway. The separate bill was necessary because
the General Assembly wished to address perceived substantive problems regarding the
laws pertaining to private detectives. Department of Legislative Reference, Report on
Senate Bill 968 at 1 (1986) (hereinafter “Report on Senate Bill 968”). Several issues with
the pre-existing statutory language regarding the licensing and provision of private
detective services were identified in the Report on Senate Bill 968. The Report did not
identify any problem with the regime of vicarious liability of private detective agencies
or security guard agencies then in force. Notably, it stated: “[F]or the most part, the
proposals under the bill find their basis in actual law and practice and do not deviate
substantially from the current law as it is now is applied. There is no attempt under the
revision to change existing underlying policy.” Report on Senate Bill 968 at 2.
The Report highlighted elements of Senate Bill 968 warranting special attention
by the General Assembly, but in doing so did not mention § 591 of the Bill, the language
of which would be codified later as Maryland Private Detectives Act § 13-601 and even
15
later replicated in the Maryland Security Guards Act § 19-501. Of the part of Senate Bill
968 which contained the relevant language, the Report noted:
Part VI of the revised subtitle consists of 8 “miscellaneous”
sections that do not fit well into any of the other 7 parts of the
revised subtitle. While revision of these sections involve an
extensive reorganization and restatement of the current
subtitle, all of the revised sections are based on current law.
Report on Senate Bill 968 at 8. In the opinion of the authors of the Report, the Bill did not
modify the law regarding the vicarious liability of security guard agencies for acts of their
employees.
The Bill Analysis of the Senate Economic and Environmental Affairs Committee
interpreted similarly the “while the employee is conducting the business of the agency”
language of Senate Bill 968. The Bill Analysis noted that “[t]he substantive changes are
included for the limited purpose of clarifying existing law.” Department of Legislative
Reference, Bill Analysis, Senate Economic and Environmental Affairs Committee at 1
(1986) (hereinafter Bill Analysis). Each section of the Bill was discussed in the Bill
Analysis. For § 591, it observed that the Bill “[s]pecifies that the agency is responsible
for the acts of its employees by clarifying provisions of Article 56, Section 81(a)(1).” Bill
Analysis at 7.
The Summary of Committee Report on Senate Bill 968 did not note anything of
consequence regarding the vicarious liability of security guard agencies or private
detective agencies. The Summary reiterated that “[t]he purpose of the bill is to clarify the
current law without changing existing underlying policy.” Department of Legislative
Affairs, Summary of Committee Report, Senate Economic and Environmental Affairs
16
Committee at 2 (1986) (hereinafter Summary of Committee Report). The Summary
further noted that Senate Bill 968 “clarifies current law and sets forth explicit processes
that are not included under current law.” Summary of Committee Report at 1. The
legislative history of the Bill indicates overwhelmingly to us, at every turn, that the intent
of the Legislature was to reiterate the law regarding security guard agencies’ vicarious
liability as it existed at that time.
Appellants argue that the law prior to Senate Bill 968 imposed strict liability on
security guard agencies. They point also to the rejection of a proposed amendment to
reword the relevant section of the Bill to incorporate the common law term “scope of
employment” as evidence of the General Assembly’s rejection of SSA’s interpretation of
the statute.
Prior to adoption of Senate Bill 968 of 1986, Md. Code (1957, 1979 Repl. Vol.,
1983 Cum. Supp.), Article 56, § 81(a), enacted originally in 1951, governed the vicarious
liability of security guard agencies for the acts of their employees. Section 81(a)
provided:
The holder of any license issued under the provisions of this
subtitle may employ to assist him in his work and in the
conduct of his business as many person as he may deem
necessary, and he shall at all times during which such
employment be accountable for the good conduct in the
business of each and every person so employed. . . . The
employer shall be responsible for the actions and conduct of
all employees in connection with such employer’s business.
Id. According to the legislative history, the General Assembly intended to incorporate the
meaning of this statute into Senate Bill 968 of 1986, which later segued into the
17
Maryland Security Guards Act § 19-501. There is little evidence, however, from which
we could uncover the intent of the Legislature regarding the 1951 Act.13
The text of the 1951 statute does not establish, on its face, the General Assembly’s
clear intention to abrogate the common law. The exact meaning of that statute is as
ambiguous, in its fashion, as is the present §19-501. The text holding the employer
responsible “for the good conduct in the business of each and every person so employed”
and “for the actions and conduct of all employees in connection with such employer’s
business” is consistent equally with the common law’s principles of vicarious liability
and negligence standards as it is with any other interpretation.
Appellants make a more nuanced additional argument for reading the predecessor
and current statutes as abrogating the common law. They point out that the 1951 Act was
enacted two years after Apex Smelting Co. v. Burns, 175 F.2d 978 (7th Cir. 1949). In
Apex Smelting, the federal Court of Appeals for the Seventh Circuit upheld a directed
verdict in favor of a security guard agency, finding that under Illinois’ negligence and
respondeat superior jurisprudence the agency was not liable for an employee’s act of
arson. Id. at 981. Appellants claim that the Maryland General Assembly reacted to the
Seventh Circuit case by enacting the 1951 Act, intending that a case similar to Apex
Smelting would come to a different result in Maryland as a consequence.
13
The Maryland Department of Legislative Services did not begin retaining bill files and
related material from the General Assembly’s legislative process until 1965, and even
this initiative was not established with regularity until the 1970’s.
18
After Apex Smelting, the Illinois Legislature formulated a statute similar to
Maryland’s 1951 Act. The Illinois statute read:
The holder of a certificate of authority who employs persons
to assist him in the work of private detective and in the
conduct of such business shall at all times during such
employment be legally responsible for the good conduct in
the business of each and every person so employed.
Stewart Warner Corp. v. Burns Int'l Sec. Servs., Inc., 353 F. Supp. 1387, 1389 (N.D. Ill.
1973). Applying the statute in Stewart Warner Corp. v. Burns Int'l Sec. Servs., Inc.
(involving a Chicago arson committed by an on-duty security guard), the U.S. District
Court for the Northern District of Illinois held that the statute broadened the scope of
vicarious liability of security guard agencies to include all wrongful acts of employees
“so long as they were committed while the employee was actually on the job.” Id.14 Thus,
the plaintiff prevailed.
Appellants’ argument continues by pointing out that subsequently the “good
conduct” language (similar to both Maryland’s 1951 Act and the Illinois statute) became
14
The reasoning of Stewart Warner may be less apt in interpreting Maryland law than it
was in interpreting Illinois law. One thread in the reasoning of the Northern District of
Illinois District Court was that interpreting the Illinois statute as codifying the common
law would render the statute a nullity. Stewart Warner Corp. v. Burns Int'l Sec. Servs.,
Inc., 353 F. Supp. 1387, 1390 (N.D. Ill. 1973). In Maryland, however, mere codification
of the common law is not disfavored and is not considered a nullity. The District Court
noted as well that the “apparent purpose” of the Illinois statute was to shift “the burden of
loss from intentional injury inflicted by . . . [security] agency employees” from the
consumers of the services to the agencies. Id. The policy reasons to adopt the
interpretation might be the same in Maryland, but for the fact that the Maryland General
Assembly did not make any such purpose obvious then or decades later.
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controversial nationally. Some courts interpreted broadly similar statutes as the Steward
Warner court did. See, e.g., Simmons, Inc. v. Pinkerton's, Inc., 762 F.2d 591, 596-97 (7th
Cir. 1985). Other courts, construed the “good conduct in the business” language to
merely codify merely the common law. Knouse Foods Co-op., Inc. v. Burns Int'l Sec.
Servs., Inc., 519 F. Supp. 867, 869 (E.D. Pa. 1981); Hoover Ball & Bearing Co. v.
Pinkerton's, Inc., 500 F. Supp. 673, 675 (W.D. Mich. 1980).15 Appellants contend that
the Maryland General Assembly changed the language in Senate Bill 968 to clarify that
the 1951 Act intended to broaden security guard agencies’ liability for all acts by guard
employees while on-duty. That was, according to Appellants, the impetus for changing
the language from holding security guard agencies responsible “for the good conduct in
the business of each and every person so employed” to instead holding them responsible
“for the acts of each of its employees while the employee is conducting the business of
the agency.”
Although Appellants advance an alluring causation narrative spanning decades
and weaving through multiple related statutes and acts of the General Assembly, under
close scrutiny it amounts ultimately to nothing more than plausible conjecture. It is
equally likely that a general desire for implementation of a licensing regime for private
detective and security guard agencies provided the motivation for the 1951 Act, with the
15
Borg-Warner Protective Servs. Corp. v. Superior Court, 89 Cal. Rptr. 2d 687 (4th Ct.
App. 1999) also held that the “good conduct in business” language of a California statute
codified the common law. Senate Bill 968 was enacted in 1986, however, whereas Borg-
Warner was decided in 1999.
20
Legislature unaware of or unconcerned with the Seventh Circuit’s decision in Apex
Smelting.16 Similarly, although the General Assembly sought to make substantive
changes with Senate Bill 968 that were deemed inappropriate for the contemporaneous
Code recodification initiative, the substantive problems identified by the General
Assembly necessitating Senate Bill 968 involved the licensing regime itself, not the state
of vicarious liability of private detective and security guard employers. There is no
evidence we could find that the court cases interpreting statutes from other jurisdictions
with similar language to Maryland 1951 Act figured in the formulation of the language
adopted ultimately in Maryland. We interpret legislation to abrogate the common law
only when the Legislature’s intent to do so is clear. Suter, 402 Md. at 232, 935 A.2d at
743-74. It is not clear that the General Assembly sought to do so in the 1951 Act.
Appellants point also to a failed amendment to Senate Bill 968 that proposed to
clarify that private detective and security guard agencies would be liable only for the acts
of employees within the scope of employment. The Maryland Association of Contract
Guard Services, a trade group, proposed to the Senate Committee on Economic and
Environmental Affairs to change the language of § 591 of Senate Bill 968 to read: “A
private detective agency is responsible for the acts of each of its employees if the acts are
within the scope of the employment.” Loughlin Security Agency, Inc., Proposed
Changes to Senate Bill 968 ‘Maryland Private Detectives Act’, Senate Committee on
16
The 1951 Act was codified in Title 56 of the Annotated Code of Maryland, which was
titled “Licenses.”
21
Economic and Environmental Affairs (1986) (hereinafter Proposed Changes to Senate
Bill 968). Senator Francis Kelly sponsored the amendment before the Committee. Francis
Kelly & Maryland Association of Contract Guard Services, Amendment to Senate Bill
No. 968 (1968).
The trade group’s written testimony explaining the proposed change justified it as
desirable because the extant phrase imposing liability—“while the employee is
conducting the business of the agency”—was ambiguous. Proposed Changes to Senate
Bill 968. The proposed change, it was contended, would make clear that security guard
agencies were subject to common law vicarious liability for acts of employees. Id. The
Committee declined to recommend favorably to the floor the proposed amendment for
the second reading of the Bill. The Bill file maintained by the Department of Legislative
Services is silent about any further attempts to amend § 591 of Senate Bill 968.
Consideration of failed amendment proposals can be useful sometimes in
ascertaining or confirming legislative intent. State v. Bell, 351 Md. 709, 721, 720 A.2d
311, 317 (1998); NCR Corp. v. Comptroller of the Treasury, Income Tax Div., 313 Md.
118, 125, 544 A.2d 764, 767 (1988); see also Ishola v. State, 404 Md. 155, 166, 945 A.2d
1273, 1279 (2008) (using the rejection of a proposed amendment as evidence of
legislative intent). Failed efforts to amend a proposed bill, however, are not conclusive
proof usually of legislative will. City of Baltimore Dev. Corp. v. Carmel Realty
Associates, 395 Md. 299, 329, 910 A.2d 406, 424 (2006); Auto. Trade Ass'n of Maryland,
Inc. v. Ins. Com'r, 292 Md. 15, 24, 437 A.2d 199, 203 (1981). This is because there can
22
be a myriad of reasons that could explain the Legislature’s decision not to incorporate a
proposed amendment. City of Baltimore Dev. Corp., 395 Md. at 329, 910 A.2d at 424.
Absent a clear indication in the legislative record, it is as likely that the effort to
amend Senate Bill 968 in committee failed because, in the Committee’s view, the Bill
reflected already common law vicarious liability as it is that the Committee intended to
abrogate the common law by reporting an unamended version of the Bill to the floor.
Overall, the legislative history of Senate Bill 968 does not illuminate any clear
understanding of the Maryland Security Guards Act § 19-501 as abrogating the common
law.
E. Policy Considerations
Consideration of the practical consequences of divergent interpretations of an
ambiguous statute may provide insight into its meaning. When “confronted with
ambiguity regarding legislative intent, it is our duty to announce a rule that we are
convinced is best supported by sound jurisprudential policy germane to the pursuit of
legislative intent.” Haas v. Lockheed Martin Corp., 396 Md. 469, 493, 914 A.2d 735, 749
(2007). In some cases, policy considerations may outweigh other principles of statutory
construction. Id.Appellants urge that their interpretation of the Maryland Security Guards Act §
19-501—that it imposes liability vicariously on security guard agencies for all acts of
their employees committed while the employee is on-duty—represents the best policy,
and the one that the Legislature aimed to enact. As this theory proceeds, security guard
agencies are in a better position to screen their employees and manage them to ensure
23
that they do not cause harm to others. The inherent ability of security guards to inflict
harm on others, in part because of the trust placed in them as a result of Maryland’s
licensing scheme, justifies the additional responsibility placed on security guard agencies.
Moreover, security guard agencies, as opposed to injured persons, are in a better position
to plan for and absorb any harm caused by their employees. Appellants idealize their
reading of the statute as leading to a more fair allocation of burdens, assigning
responsibility to the party with greater information, and, implicitly, resulting in better
management of security guards.
Appellant’s policy arguments are appealing, but, as SSA offers, there are
countervailing considerations. Most convincing of them is the wide range of potential
acts for which security agencies could become liable were Appellants’ interpretation to
be endorsed. Security guard agencies would be liable for an employee’s acts unrelated
completely to their employment or the special trust placed in them. A security guard
agency could become liable, for example, for an employee threatening his or her spouse
over the telephone or publishing defamatory statements on Facebook. Such acts would be
difficult to prevent by the employer and have no bearing on the agency’s business.
As noted earlier, Appellants, in their reply brief, propose a limitation on their
interpretation of the statute that would prevent the kind of absurd results of which SSA
warns. They would add the requirement of a nexus between an employee’s on-duty
wrongdoing and his or her provision of security services (such that the alleged tort is
incident to the employee conducting the agency’s business) before liability could arise
under the Maryland Security Guards Act § 19-501. Appellants provide, beyond mere
24
benevolence, no principled support for this additional requirement in the text of the
statute or any indicia of legislative intent.
Although the requirement of such a nexus might dissipate the problematic
hypotheticals suggested by SSA, that it was even proposed stands in opposition to the
policy considerations underlying our rule of construction by which we interpret statutes
in accordance with the common law, absent clear intent of abrogation. Ultimately, these
policy considerations overcome whatever benefits might arise from the interpretation of
the Maryland Security Guards Act § 19-501 as proposed by Appellants.
Even seemingly small changes to the law, though motivated by conciliation and
good intentions, often require future clarification, as Appellants’ offered interpretation of
the Maryland Security Guards Act § 19-501 demonstrates. Courts would have to
determine eventually what “nexus” between employees’ on-duty wrongdoing and
providing security services is sufficient to impose vicarious liability on employers.
Because neither the statute nor its legislative history provides guidance on that score,
courts would be developing the nexus analysis from whole cloth, resulting in uncertainty
in the public and business arenas until fleshed out. The one nexus that is well understood
by lawyers and judges—within the scope of employment—would be entombed were we
to accept Appellants’ offer in this regard.
The common law doctrine of respondeat superior has its genesis in 17th and 18th
Century England. Christine W. Young, Comment, Respondeat Superior: A Clarification
and Broadening of the Current "Scope of Employment" Test, 30 Santa Clara L. Rev. 599,
601 (1990). The doctrine was adopted by courts in the United States and, over time,
25
broadened to incorporate more acts of the employee. See generally id. (describing the
adoption of respondeat superior by American courts and outlining its expansion in
California). The common law has the advantage of the collective wisdom of a multitude
of courts refining the doctrine over centuries. We are not convinced that the policy
considerations that Appellants offer in support of their interpretation of the Maryland
Security Guards Act § 19-501 are more desirable than (or an improvement over) those
underlying the common law.
III. CONCLUSION.
Considering the ambiguity of the Maryland Security Guards Act § 19-501, its
context in the Maryland Code, its legislative history, and the policy considerations of
alternative interpretations, we conclude that the Legislature has not indicated to our
satisfaction a clear intent to abrogate the common law. We hold therefore that the
Maryland Security Guards Act § 19-501 has the same meaning as Maryland’s common
law doctrine of respondeat superior. Thus, we answer the certified question in the
negative.
CERTIFIED QUESTION ANSWERED AS
SET FORTH ABOVE. PURSUANT TO
SECTION 12-610 OF THE COURTS AND
JUDICIAL PROCEEDINGS ARTICLE,
THE COSTS SHALL BE DIVIDED
EQUALLY BETWEEN THE PARTIES.
26