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Municipal; governmental immunity
BOTTOM LINE: Where a man who was injured when he rode his bicycle into a steel cable at Baltimore’s Inner Harbor alleged the City’s installation of the barrier “created a hazard and an unreasonably dangerous condition,” the City was entitled to governmental immunity. A municipality’s discretionary decisions regarding placement and design of infrastructure are governmental acts for which the municipality is ordinarily immune.
CASE: Mayor & City Council of Baltimore v. Varghese, No. 3, Sept. Term, 2025 (filed Dec. 23, 2025) (Justices FADER, Watts, Booth, Biran, Gould, Eaves) (Justice KILLOUGH concurs and dissents).
FACTS: Sanjeev Varghese was injured when he rode his bicycle into a steel cable stretched between two bollards at Baltimore’s Inner Harbor. In an ensuing negligence lawsuit, the City of Baltimore argued that it enjoyed both statutory immunity and common law governmental immunity. The circuit court disagreed and allowed the case to go to a jury, which found the city negligent and awarded damages. The Appellate Court of Maryland affirmed.
The city again argues that it is entitled to immunity because Mr. Varghese’s claim is based on the design of the barrier with which he collided. The city contends that infrastructure design is a governmental function for which it enjoys immunity.
LAW: Maryland courts have long recognized counties and the City of Baltimore as favored defendants that enjoy “governmental” immunity. “Unlike the total immunity from tort liability which the State and its agencies possess, the immunity of counties . . . is limited to tortious conduct which occurred in the exercise of a ‘governmental’ rather than a ‘proprietary’ function.”
In this case, Mr. Varghese has taken issue with a discretionary design decision of the city. Notably, Mr. Varghese has not identified any negligent act by the city in failing to maintain the barrier. He also identified no “error of judgment, unaffected by negligence, in the formulation and adoption of plans for the construction” of the barrier.
Rather, Mr. Varghese’s complaint states that the barrier itself “created a hazard and an unreasonably dangerous condition,” a condition about which the city knew and, in his view, had a duty to correct. At trial, Mr. Varghese’s expert similarly opined that the barrier itself was the hazard.
Throughout this litigation, the city has argued that the design of the bollard-and-cable barrier system was a result of a balancing of the needs of safety, accessibility and aesthetics. It intended to protect pedestrians from vehicles on the access road, while also allowing them to cross that road at certain points, using a device that did not detract greatly from the enjoyment of those using the area for recreation.
Today, this court reaffirms that a municipality’s discretionary decisions regarding placement and design of infrastructure are governmental acts for which the municipality is ordinarily immune. It also reaffirms the exception to that principle, allowing the possibility for liability where “the condition which caused the injury is so obviously dangerous that there could be no room for difference in the minds of [people] of ordinary judgment and intelligence as to its dangerous character.” Here, that standard is not met.
According to Mr. Varghese, however, the question is “whether the City’s duty to respond to a known hazard on a paved public way was proprietary or governmental.” But Mr. Varghese’s labeling of the barrier itself as a hazard does not control the character of his claim. Nor does his characterization of the city’s decision not to alter the barrier after the first cyclist crashed into it make the decision a “maintenance” decision.
Second, Mr. Varghese contends that the city can be held liable for his injuries because the city had notice of the hazard based on the earlier accident. But when a municipality is operating in a governmental, not a proprietary, capacity, notice does not overcome immunity.
Finally, Mr. Varghese contends that the city should not gain the benefit of having made a discretionary design choice concerning the barrier because the city itself had no role in the design or construction of the barrier. However, the record is clear that, at least as it relates to the claim currently before us, the design and construction of the barrier was reviewed, altered and eventually approved by an instrumentality of the city.
Judgment of the Appellate Court of Maryland reversed.
CONCUR/DISSENT: I agree with the court’s judgment reversing the Appellate Court’s decision, which misapplied our longstanding immunity framework governing municipal discretionary design decisions. I write separately for two reasons.
First, to clarify an issue implicated by the parties’ arguments and the record: there are limited circumstances under which a municipality owes a duty to warn when an alleged hazard arises from an installed feature of public infrastructure. Second, to explain why the appropriate mandate in this case is to reverse the judgment below and remand for a new trial, rather than to enter judgment in favor of the city.
