Opinion
11-P-553
03-14-2012
NICOLAS DIFABIO, v. CITY OF REVERE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff in this case was injured when tackled during a football game played on a field at school during sixth grade recess. As he acknowledges, the teacher 'would not allow . . . tackle football.' The teacher's affirmative act in allowing students to play touch football on the field was not an act that 'originally caused' the accident within the meaning of § 10(j) of the Massachusetts Tort Claims Act, G. L. c. 258, inserted by St. 1993, c. 495, § 57. Tackling is not a part of touch football. Indeed, tackling is precisely what the teacher forbade by allowing touch football, but not tackle football, to be played during recess. Consequently, Gennari v. Reading Pub. Schs., 77 Mass. App. Ct. 762 (2010), is inapposite. Whether the students were, in fact, playing tackle football, or a student simply tackled the plaintiff while playing touch football, at worst the teacher might have been responsible for negligent failure to supervise the game (something we need not and do not decide). It is well established in the case law that such inaction does not deprive the public employer of immunity under § 10(j). See Kent v. Commonwealth, 437 Mass. 312, 318 (2002). The judgment is affirmed.
So ordered.
By the Court (Mills, Meade & Rubin, JJ.),