Gross Negligence: It Doesn't Justify Punitive Damages—But When Must It Be Pleaded and Proved?
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“Gross negligence” sounds like negligence that is simply worse than ordinary negligence. Maryland law is considerably more complicated.
Gross negligence is not merely a particularly serious mistake. Nor is it synonymous with recklessness, actual malice, or conduct sufficient to support punitive damages. Yet in some cases—particularly actions involving governmental employees, police officers, firefighters, paramedics, and other persons protected by statutory or common-law immunity—the distinction between ordinary and gross negligence may determine whether the plaintiff has a viable claim at all.
There is another complication. Maryland decisions traditionally described gross negligence as a question ordinarily appropriate for the jury. More recent decisions, particularly Stracke v. Estate of Butler, 465 Md. 407, 214 A.3d 561 (2019), demonstrate that a trial judge may determine as a matter of law that even substantial evidence of negligent conduct does not cross the line into gross negligence.
The result is an unusual doctrine. Gross negligence may have to be specifically alleged and ultimately proved merely to overcome an immunity defense, while proof of that same gross negligence ordinarily will not entitle the plaintiff to punitive damages.
What Is Gross Negligence?
Maryland courts have repeatedly defined gross negligence as:
an intentional failure to perform a manifest duty in reckless disregard of the consequences affecting the life or property of another.
The concept also encompasses such utter indifference to the rights of others that the defendant acts as though those rights did not exist.
See Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699 (2007); Beall v. Holloway-Johnson, 446 Md. 48, 64–65, 130 A.3d 406 (2016).
That definition is important because gross negligence is not determined merely by measuring the magnitude of the defendant’s mistake.
An ordinary negligent act can have catastrophic consequences. Conversely, conduct potentially constituting gross negligence need not actually cause catastrophic injury.
The inquiry focuses substantially upon the character of the defendant’s conduct: whether the defendant merely failed to exercise reasonable care or instead demonstrated the extraordinary indifference or reckless disregard required by Maryland law.
As the Court emphasized in Stracke, gross negligence is not simply “big negligence.”
Why Plead Gross Negligence If It Does Not Permit Punitive Damages?
Because sometimes gross negligence is the key that unlocks an otherwise barred claim.
A defendant may have immunity from liability for ordinary negligence but lose that immunity if the conduct amounts to gross negligence. In those cases, gross negligence is not primarily a damages theory. It is an immunity issue.
That distinction is particularly important in litigation involving governmental personnel.
State Personnel and the Maryland Tort Claims Act
Under Maryland Courts and Judicial Proceedings Article § 5-522(b), qualifying State personnel are generally immune from suit and tort liability for conduct within the scope of their public duties when the conduct occurs without malice or gross negligence.
The statutory arrangement therefore creates an important distinction.
If the employee was acting within the scope of public duties and was merely negligent, the employee ordinarily receives the statutory protection provided by the Maryland Tort Claims Act.
If the employee acted with malice or gross negligence, that statutory personal immunity may not apply.
The companion provision, § 5-522(a), also provides that the State’s waiver of immunity does not extend to tortious conduct of State personnel committed outside the scope of public duties or with malice or gross negligence.
Thus, identifying the correct defendant and theory can become especially important. Gross negligence can affect not simply the merits of the tort claim, but the allocation of potential liability between the governmental entity and the individual employee.
Firefighters, Paramedics, and Rescue Personnel
Maryland provides particularly important protection for fire and rescue personnel.
Courts and Judicial Proceedings Article § 5-604 provides immunity to a fire or rescue company and its personnel for acts or omissions performed in the course of their duties, subject to the statute’s exception for willful or grossly negligent conduct.
Consequently, an allegation that a paramedic negligently evaluated or treated a patient may not be enough. If § 5-604 applies, the plaintiff may need evidence permitting a finding of gross negligence merely to overcome the immunity protecting the responder from an ordinary negligence claim.
That distinction produced one of Maryland’s most important modern gross-negligence decisions.
Stracke v. Estate of Butler
Stracke v. Estate of Butler, 465 Md. 407, 214 A.3d 561 (2019), arose from the death of Kerry Butler after Baltimore City Fire Department paramedics responded to an emergency call.
The Estate and surviving family members alleged that the responding medics were grossly negligent in assessing and treating Mr. Butler.
This was not a case dismissed at the pleading stage.
It was tried.
The plaintiffs presented their evidence. The jury heard the witnesses. The jury found the paramedics grossly negligent and returned a verdict for the plaintiffs of approximately $3.7 million.
The trial judge nevertheless granted judgment notwithstanding the verdict, concluding that the evidence was legally insufficient to establish gross negligence.
The Court of Special Appeals reversed, holding that sufficient evidence existed to permit the jury’s finding and directing reinstatement of the verdict.
Maryland’s Court of Appeals—now the Supreme Court of Maryland—reversed again. It held that the evidence was legally insufficient to establish gross negligence and reinstated judgment for the paramedics.
The case therefore illustrates something considerably more important than the definition of gross negligence.
It demonstrates the power of the court to decide that conduct a jury has actually found grossly negligent is legally insufficient to constitute gross negligence.
What the Evidence Showed in Stracke
There was evidence that the paramedics failed to comply with applicable emergency medical protocols.
Among other things, there was evidence concerning their assessment of Mr. Butler, their failure to transport him from his home by stretcher, and their decision to transport him to the nearest hospital rather than a cardiac catheterization center.
The majority nevertheless concluded that these deficiencies did not establish gross negligence.
The paramedics had evaluated Mr. Butler, obtained vital signs, attempted to determine the source of his symptoms, and transported him promptly to a hospital. The Court emphasized that the patient was transported within approximately seven minutes after the medics arrived.
The Court regarded the evidence, at most, as supporting negligent medical judgment rather than the wanton or reckless disregard necessary for gross negligence.
A particularly important lesson followed:
Failure to follow a protocol does not automatically establish gross negligence.
Nor does an incorrect medical assessment become gross negligence merely because the error produces catastrophic consequences.
The Court relied upon the principle expressed in McCoy v. Hatmaker, 135 Md. App. 693, 713, 763 A.2d 1233 (2000), that even a well-intended error in medical judgment resulting in death cannot automatically be equated with wanton and reckless disregard for the patient’s life.
Stracke and the Role of the Judge
Before Stracke, plaintiffs could point to language suggesting that the distinction between ordinary and gross negligence was ordinarily factual.
In Beall v. Holloway-Johnson, 446 Md. 48, 64, 130 A.3d 406 (2016), the Court observed that although gross negligence establishes a higher evidentiary hurdle, a legally sufficient case of ordinary negligence will frequently create a jury question concerning whether that negligence was gross.
The majority in Stracke expressly resisted an expansive application of that proposition.
The Court reasoned that if virtually every legally sufficient negligence case against an immunized first responder automatically produced a jury question concerning gross negligence, the immunity would lose much of the protection the Legislature intended it to provide.
The practical consequence is significant.
A plaintiff cannot safely respond to a dispositive motion merely by arguing:
“Gross negligence is a factual question for the jury.”
Sometimes it is.
But Stracke establishes that sometimes it is not.
If reasonable minds could not find the requisite wanton or reckless disregard from the evidence, the court can decide the issue as a matter of law. That can occur on an appropriate dispositive motion, on a motion for judgment at trial, or—as Stracke dramatically demonstrates—even after the jury has returned a plaintiff’s verdict.
The Dissent in Stracke
The division within the Court is itself instructive.
Three judges dissented.
The dissent viewed the evidence much differently, emphasizing evidence from which the jury could have found knowing and deliberate violations of emergency medical protocols in responding to a Priority 1 call involving what was ultimately a fatal heart attack.
From that perspective, the central issue was not whether the appellate judges themselves would have found gross negligence. It was whether the evidence was legally sufficient to permit the jury to do so.
The majority concluded that it was not.
The disagreement demonstrates why Stracke is so important to Maryland practitioners. The decision was not simply an application of an obvious rule to obviously insufficient evidence. Reasonable jurists disagreed over whether the evidence belonged to the jury.
The majority nevertheless established the controlling rule.
Author’s note: Alan J. Belsky represented the Estate of Kerry Butler and the surviving family members as plaintiff/appellee counsel in Stracke v. Estate of Butler.
Conduct That May Be Grossly Negligent
Maryland cases necessarily turn upon their particular facts, but certain circumstances make a gross-negligence claim materially stronger.
Evidence may support gross negligence when the defendant:
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knows of an immediate and serious danger;
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understands the duty required under the circumstances;
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has the ability and opportunity to act;
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consciously disregards that duty;
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persists despite warnings or obvious evidence of danger;
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intentionally disregards mandatory safety requirements under circumstances demonstrating a known grave risk; or
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acts with such extraordinary indifference to another’s safety that the conduct can reasonably be characterized as wanton or reckless.
No single factor is necessarily dispositive.
The important inquiry is whether the evidence demonstrates something qualitatively different from carelessness, mistake, poor judgment, or even multiple departures from reasonable care.
Barbre v. Pope: Conduct Sufficient to Get Beyond Ordinary Negligence
Barbre v. Pope, 402 Md. 157, 935 A.2d 699 (2007), provides a useful contrast.
The case involved allegations against a deputy sheriff arising from a shooting. The allegations included circumstances from which a factfinder could conclude that the deputy acted intentionally or with the requisite improper state of mind.
The Supreme Court of Maryland held that the allegations were sufficient to prevent immunity from disposing of the action at that stage.
Barbre illustrates the opposite end of the spectrum from a mere mistake in judgment. Evidence of intentionally dangerous conduct, conscious disregard of an obvious threat to life, or action taken despite actual awareness of the danger presents a materially stronger basis for gross negligence.
Beall v. Holloway-Johnson: A Police Pursuit
Beall v. Holloway-Johnson, 446 Md. 48, 130 A.3d 406 (2016), arose from a police pursuit that ended in a fatal collision.
Police-pursuit cases provide a useful illustration because officers frequently must make rapid decisions under dangerous circumstances. Violation of a departmental pursuit policy may be evidence of negligence, but violation of policy does not mechanically establish gross negligence.
The circumstances matter: the seriousness of the offense prompting pursuit, speeds involved, traffic and pedestrian conditions, warnings received, supervisory instructions, duration of the pursuit, alternatives available, and the officer’s appreciation of the risk may all bear upon whether the conduct was merely negligent or crossed into reckless disregard.
Cooper v. Rodriguez: Gross Negligence in the Correctional Setting
Cooper v. Rodriguez, 443 Md. 680, 118 A.3d 829 (2015), likewise illustrates the intensely factual nature of the inquiry in the governmental setting.
The case involved claims concerning correctional personnel and an inmate who was assaulted by another inmate. The Court’s analysis demonstrates the importance of examining what the government employee actually knew about the danger, what duties existed in response to that danger, and what the employee did or failed to do.
That distinction can be critical.
Failing to perceive a danger may constitute negligence.
Actually appreciating an immediate serious danger and consciously disregarding it presents a much different case.
What Usually Is Not Enough?
Several recurring arguments should be approached cautiously.
Violation of a Rule or Protocol
A written rule can be powerful evidence. It can establish what the defendant was trained to do, demonstrate knowledge of a particular danger, and help prove that the risk was foreseeable.
But Stracke establishes that violation of a protocol, standing alone, does not necessarily establish gross negligence.
Multiple Negligent Acts
Five negligent acts do not automatically equal one act of gross negligence.
A plaintiff cannot simply accumulate departures from the standard of care and argue that enough ordinary negligence eventually becomes gross negligence.
The inquiry remains qualitative rather than merely quantitative.
A Terrible Result
Death, paralysis, catastrophic brain injury, or another devastating result does not transform negligence into gross negligence.
The seriousness of the injury may have little relationship to the culpability of the conduct that produced it.
An Incorrect Professional Judgment
A physician, paramedic, police officer, teacher, correctional employee, or other governmental employee can make an extremely consequential mistake without acting with reckless disregard.
The issue is not merely whether the judgment was wrong. The question is how and why it was made in light of what the defendant knew at the time.
Public Officials and Police Officers
Claims against police officers and other governmental officials require particular care because several different immunity doctrines may overlap.
Common-law public official immunity, statutory immunity, the Maryland Tort Claims Act, the Local Government Tort Claims Act, and statutes directed at particular governmental functions do not all operate identically.
A lawyer therefore should not begin with the generalized proposition that “government employees are immune unless grossly negligent.”
That is too broad.
The correct analysis begins by identifying:
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who employed the defendant;
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whether the defendant qualifies as State or local personnel;
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whether the act was discretionary or ministerial where common-law immunity is implicated;
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whether the employee acted within the scope of employment or public duties;
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what particular statute or common-law doctrine creates the claimed immunity; and
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whether that doctrine contains an exception for gross negligence, malice, willful conduct, or some combination of those concepts.
Only then can the lawyer determine whether gross negligence must be pleaded and proved.
Do Not Confuse the MTCA and LGTCA
This distinction deserves emphasis.
Under the Maryland Tort Claims Act, gross negligence or malice can remove the statutory immunity afforded qualifying State personnel under CJP § 5-522.
The Local Government Tort Claims Act operates differently. It contains its own rules concerning notice, defenses, judgments, indemnification, and circumstances involving actual malice.
Thus, a lawyer should not transfer the MTCA gross-negligence analysis wholesale into an LGTCA case.
The source of immunity matters.
Gross Negligence Should Be Pleaded Factually
When gross negligence is necessary to overcome immunity, a complaint should do more than attach the adjective “gross” to an ordinary negligence count.
For example:
Defendant’s conduct constituted gross negligence.
That is a conclusion.
A stronger complaint identifies the facts that make the conduct grossly negligent:
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What manifest duty existed?
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How did the defendant know of that duty?
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What danger was known or obvious?
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What training, policies, orders, warnings, prior events, communications, or observations demonstrated the danger?
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What did the defendant nevertheless do?
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What could the defendant readily have done instead?
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What evidence demonstrates reckless disregard rather than mistake or inadvertence?
The distinction becomes particularly important after Stracke. A plaintiff ultimately needs evidence from which a reasonable factfinder can find the heightened culpability required by Maryland law.
Pleading in the Alternative
Where the facts support it, ordinary negligence and gross negligence may appropriately be pleaded in the alternative.
That can be important because the theories perform different functions.
Ordinary negligence may establish the underlying breach of duty.
Gross negligence may determine whether an individual defendant can invoke immunity.
Actual malice may present still another issue.
The complaint should not collapse these concepts into one another.
Gross Negligence Is Not Actual Malice
This is perhaps the most important distinction in the area.
Gross negligence concerns an extraordinarily serious departure from the required standard of conduct—conduct demonstrating wanton or reckless disregard.
Actual malice involves a different and generally more culpable state of mind.
The distinction matters enormously because Maryland’s punitive-damages law does not permit punitive damages merely because conduct was grossly negligent.
Gross Negligence Does Not, By Itself, Support Punitive Damages
Maryland decisively rejected the former concept that punitive damages in a non-intentional tort case could rest upon “implied malice” inferred from extraordinarily negligent conduct.
In Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992), the Court required proof of actual malice for punitive damages in tort cases.
Thus:
Ordinary negligence may establish compensatory liability.
Gross negligence may overcome certain immunities and permit compensatory liability against a defendant who otherwise would be protected.
Actual malice is the separate culpability required for punitive damages.
These concepts overlap factually in some cases, but they are not interchangeable.
A plaintiff can therefore prove exactly what was required to defeat an immunity defense—gross negligence—and still have no viable punitive-damages claim.
A Practical Example
Consider two paramedics responding to a patient complaining of chest pain.
In the first situation, the paramedics conduct an assessment, obtain vital signs, mistakenly conclude that the symptoms are gastrointestinal, violate a transport protocol, and take the patient to a nearby hospital rather than the preferred cardiac facility. The patient dies.
Those facts may support negligence. Under Stracke, however, they do not necessarily establish gross negligence.
Now change the facts.
Assume the paramedics recognize unmistakable signs of a myocardial infarction, acknowledge between themselves that the patient requires immediate cardiac intervention, know that delay may be fatal, have the equipment and ability to provide required care and transportation, but consciously decide to leave the patient untreated because they do not want to complete the call before their shift ends.
The difference is not simply that the second hypothetical involves “more negligence.”
The second contains evidence of conscious disregard of a known, manifest and potentially life-threatening duty.
That is the type of qualitative distinction at the heart of Maryland gross-negligence law.
Discovery Should Focus on Knowledge, Not Merely Breach
When gross negligence is necessary, discovery should go beyond establishing the ordinary standard of care.
The critical evidence may include:
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training records;
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written policies and protocols;
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prior warnings;
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disciplinary history where discoverable and admissible;
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radio and dispatch recordings;
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body-worn-camera footage;
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text messages and electronic communications;
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prior similar incidents;
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supervisory instructions;
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contemporaneous reports;
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admissions concerning knowledge of the danger;
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evidence that the defendant recognized but consciously disregarded the required course of action; and
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evidence showing whether the defendant made any effort to avoid the known danger.
The plaintiff is trying to prove not merely what the defendant did wrong, but what the defendant knew when doing it.
That can be the difference between negligence and gross negligence.
The Practical Lesson of Stracke
Stracke altered the practical landscape even though it did not abolish the rule that gross negligence can present a jury question.
The important lesson is more subtle:
The label “gross negligence” does not itself guarantee a jury determination.
A court may examine the plaintiff’s evidence and conclude that, even accepting favorable evidence and permissible inferences, the conduct amounts only to negligence.
That judicial screening function matters most precisely where gross negligence is being used to defeat an immunity. If every negligent act automatically created a gross-negligence jury question, the statutory immunity would provide little protection from litigation.
For plaintiffs, the response is not simply to characterize the conduct more aggressively.
It is to develop evidence demonstrating the qualitative difference between an error and a reckless disregard of a known duty and danger.
Bottom Line
Gross negligence occupies an unusual but important place in Maryland tort law.
It is more than ordinary negligence.
It is not simply very serious negligence.
It may have to be pleaded and proved to defeat governmental or statutory immunity.
It may be decided as a matter of law when the evidence cannot reasonably satisfy the heightened standard, even though gross negligence traditionally has been regarded as a fact-intensive issue.
And, perhaps most counterintuitively:
Gross negligence does not, standing alone, justify punitive damages.
That requires the separate showing of actual malice demanded by Maryland punitive-damages law.
The practical question therefore should never be merely, “Was the defendant extremely negligent?”
The better questions are:
Why does gross negligence matter in this particular case? What immunity or other protection makes the distinction legally consequential? And what evidence shows reckless disregard rather than simply a serious mistake?
Those questions determine whether gross negligence is merely an allegation—or a viable Maryland cause of action.
Related Maryland Cases and Authorities
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Stracke v. Estate of Butler, 465 Md. 407, 214 A.3d 561 (2019) — Baltimore City paramedics; jury finding of gross negligence; JNOV; Supreme Court held evidence legally insufficient and held § 5-604 immunity applicable to simple negligence.
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Beall v. Holloway-Johnson, 446 Md. 48, 130 A.3d 406 (2016) — discusses the distinction between ordinary and gross negligence and the circumstances under which gross negligence presents a jury question.
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Cooper v. Rodriguez, 443 Md. 680, 118 A.3d 829 (2015) — gross negligence and governmental personnel in the correctional setting; discusses the heightened standard and significance of the defendant’s knowledge and conduct.
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Barbre v. Pope, 402 Md. 157, 935 A.2d 699 (2007) — leading discussion of gross negligence, malice, and governmental immunity arising from alleged intentional or extraordinarily reckless conduct by a deputy sheriff.
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McCoy v. Hatmaker, 135 Md. App. 693, 763 A.2d 1233 (2000) — emergency medical response; distinguishes negligent medical judgment from the wanton or reckless conduct necessary for gross negligence.
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Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992) — establishes Maryland’s actual-malice requirement for punitive damages and rejects gross negligence or implied malice as sufficient.
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Md. Code, Courts & Judicial Proceedings § 5-522 — Maryland Tort Claims Act provisions governing State immunity and immunity of State personnel, including the malice and gross-negligence exceptions.
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Md. Code, Courts & Judicial Proceedings § 5-604 — immunity applicable to fire and rescue companies and personnel, subject to the statutory exception for willful or grossly negligent conduct.
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Md. Code, Courts & Judicial Proceedings § 5-518 — liability and immunity provisions concerning county boards of education and their employees.
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Maryland Local Government Tort Claims Act, Md. Code, Courts & Judicial Proceedings §§ 5-301 through 5-304 — statutory framework governing tort claims involving local governments and their employees; its operation should be distinguished from the Maryland Tort Claims Act.