Actual Malice Definition in Maryland
In Shoemaker v. Smith, 353 Md. 143, 163-64, 725 A.2d 549 (1999), Judge Wilner explained that the term "actual malice" once had significance as an alternative to "gross negligence" or "implied malice."
The Court of Special Appeals has long applied that, or some similar, standard of "actual malice" in defining "malice" for purposes of public official immunity under common law or under State and local tort claims laws.
"This, we believe, is the appropriate test -- the one that the Legislature intended to be applied. For one thing, the fact that it is an alternative to gross negligence, which also will defeat the qualified immunity, indicates clearly that the Legislature conceived of malice as something beyond the merely reckless or wanton conduct that would be embodied within gross negligence."
In Shoemaker, 353 Md. at 164, Judge Wilner contrasted "actual malice" with gross negligence, as he refers to it as "an alternative to gross negligence" and as "something beyond the merely reckless or wanton conduct that would be embodied within gross negligence." Would not the term "malice" alone, without the adjective "actual," serve to make the same distinction? Would not the concept of an intentional tort make the same distinction?
The definitions in the caselaw of "actual malice" and "malice" (just plain malice), respectively, do not signal any discernible difference.
In Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992), Judge Eldridge said of the term "actual malice":
Nevertheless, we simply use the term in this opinion as a shorthand method of referring to conduct characterized by evil motive, intent to injure, ill will, or fraud.
See also Shoemaker v. Smith, 353 Md. at 161.
That is indistinguishable from Barbre v. Pope, 402 Md. 157, 182, 935 A.2d 699 (2007), as it defines garden variety, Brand-X malice:
We have consistently defined malice as "conduct 'characterized by evil or wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill-will or fraud...'"
They are one and the same. Williams v. Prince George's County, 112 Md. App. 526, 550, 685 A.2d 884 (1996), also defined "malice" as scorchingly as "actual malice" has ever been defined:
Malice has been defined as the performance of an act without legal justification or excuse and with an evil or rancorous motive influenced by hate, the purpose of which is to deliberately and wilfully injure another.
In the caselaw, both "malice" and "actual malice" have produced a Thesaurus load of malignant motivations or states of mind, not one of which has ever been the pivotal criterion on which a decision has turned. Shoemaker v. Smith, 353 Md. at 163, defined actual malice as "characterized by evil or wrongful motive, intent to injure, knowing and deliberate wrongdoing, ill will, or fraud."
Those five qualifying states of mind are separated, it should be noted, by the disjunctive "or," not joined by the conjunction "and." Would not virtually any intentional tort qualify for at least one of those mental states? There is no need to qualify more than once.
Other linguistic flourishes speak of "spite," "hatred," and "desire to harm." The Local Government Tort Claims Act, in CJP 5-301(b), defines "actual malice" as "ill will or improper motivation."
That would serve to embrace any intentional tort. Intentionally to do an illegal act is an "improper motivation." In Ellerin v. Fairfax Savings, 337 Md. 216, 228, 652 A.2d 1117 (1995), the Court of Appeals noted with respect to punitive damages:
With regard to most types of tort actions, Maryland law has limited the availability of punitive damages to situations in which the defendant's conduct is characterized by knowing and deliberate wrongdoing.
Any intentional tort would qualify as "knowing and deliberate wrongdoing" Although many opinions have distinguished "actual malice" from "implied malice" (gross negligence).