Sovereign Immunity of Pools

Plaintiff * CIRCUIT COURT

v. * FOR

CITY * COUNTY

Defendant * Case no. XXXXXXXXXXXX

* * * * * * * * * * * *

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT

Plaintiff, Innocent Victim, by and through his undersigned attorneys, files this Memorandum of Law in Support of Plaintiff's Response to Defendant's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and says:

I. Introduction

This case involves an injury that occurred at a swimming pool owned and operated by the City. On or about July 23, 2010, Plaintiff Innocent Victim was injured while attending a private party at the Pool. See Plaintiff's Complaint ¶ 4. The Pool is owned and operated by the City. Plaintiff filed this action in the Circuit Court for County against the City on or about May 1, 2012.

Defendant promptly filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment on the grounds that the instant suit is barred by Sovereign Immunity. For the reasons set forth below, the City is not entitled to the defense of Sovereign Immunity and Plaintiff respectfully requests that Defendant's Motion be denied.

II. Standard of Review

"In considering a motion to dismiss for failure to state a claim under Rule 2-322(b)(2), a court must assume the truth of all well pleaded facts and all inferences that can be reasonably drawn from those pleadings." Hrehorovich v. Harbor Hosp. Center, Inc., 93 Md. App. 772, 781 (Md. Ct. Spec. App. 1992). A motion to dismiss for failure to state a claim asserts that even after assuming the truth of a complaint's allegations "and all inferences that can be reasonably drawn from those pleadings," the Defendant is still entitled to judgment as a matter of law. Id.; Lubore v. RPM Assocs., Inc., 109 Md. App. 312, 322 (Md. Ct. Spec. App. 1995).

Significantly, this Court has the discretion to look beyond the pleadings to supplemental information supplied by the parties to determine whether such additional information is necessary for a complete understanding of the case. Md. Rules of Civil Procedure Rule 2-323(b)(2). In doing so, the Court must analyze the motion as a motion for summary judgment rather than a motion to dismiss for failure to state a claim. Id.; See also Hrehorovich, 93 Md. App. at 781.

The purpose of summary judgment rule "is not to try the case on its merits, but to determine whether any real dispute exists as to material fact." Robertson