Opinion
16-P-1308
04-25-2017
ESTATE OF Eddie K. GAYYEAN v. CITY OF LOWELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises from the tragic death of seventeen year old Eddie K. Gayyean, who drowned in the swimming pool at Lowell High School (school) on August 6, 2012. The defendant, the city of Lowell (city), appeals from the denial of its motion to dismiss the complaint filed by Gayyean's estate alleging wrongful death due to negligent maintenance of school property (the school's swimming pool), G. L. c. 258, § 10(j )(3), wrongful death due to maintenance of an attractive nuisance, G. L. c. 231, § 85Q, and wrongful death, G. L. c. 229, § 2. On appeal, the defendant argues that it is immune from suit under G. L. c. 258, § 10(j ), and that the exception contained in G. L. c. 258, § 10(j )(3), does not apply because (1) the pool was not negligently maintained, and (2) the pool area does not qualify as "public property" under G. L. c. 258, § 10(j )(3), because Gayyean was trespassing when he drowned. For the reasons set forth below, we affirm.
General Laws c. 258, § 10(j ), inserted by St. 1993, c. 495, § 57, grants public employers, including municipalities, immunity from tort actions "based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer."
General Laws c. 258, § 10(j )(3), states that G. L. c. 258, § 10(j ), "shall not apply to ... any claim based on negligent maintenance of public property."
Background. The complaint alleges the following facts. On Monday, August 6, 2012, at approximately 8:00 a.m., seventeen year old Gayyean left his residence to go to the school, where he intended to turn in paperwork for the upcoming school year. At the time, the school was closed. Footage from the school's security cameras shows that, around 10:11 a.m., Gayyean was inside the school building, in a hallway near the pool. The footage then shows Gayyean entering and exiting the weight room, before entering the girls' locker room, which has a door that exits to the swimming pool. At approximately 5:30 p.m. that same day, a swim coach found Gayyean's body at the bottom of the pool. Emergency responders pronounced Gayyean dead at the scene. According to the complaint, on or about the time of the incident, "it was determined by a police investigation and from eyewitness reports, that certain doors and locks in the school building were not locked, were improperly closed or not functioning properly.... Specifically, doors and locks leading into the pool area were not properly secured." Gayyean did not know how to swim.
Standard of review. We review the denial of a motion to dismiss de novo, Shapiro v. Worcester, 464 Mass. 261, 266 (2013), "accept[ing] as true the allegations in the complaint and draw[ing] every reasonable inference in favor of the plaintiff." Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In order to survive a motion to dismiss, a complaint must contain "factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief." Ortiz v. Examworks, Inc., 470 Mass. 784, 792-793 (2015) (quotation omitted).
Discussion. The complaint alleges that Gayyean drowned because the defendant was negligent in maintaining the doors leading to the swimming pool. The motion judge found this allegation sufficient to survive the motion to dismiss, and we agree. The defendant argues it is immune from suit under G. L. c. 258, § 10(j ), and that the "negligent maintenance of public property" exception of G. L. c. 258, § 10(j )(3), does not apply because the plaintiff did not allege that the swimming pool itself was negligently maintained, only that the doors leading to it were negligently maintained. However, as the doors were necessary to ensure the safety of the pool during unsupervised hours, maintaining the doors was part and parcel of maintaining the pool. See Rodriguez v. Cambridge Hous. Authy., 59 Mass. App. Ct. 127, 136-137 (2003). The defendant also claims that G. L. c. 258, § 10(j )(3), does not apply because Gayyean was trespassing at the time he drowned. Without addressing the merits of such a defense, we agree with the motion judge that, at a minimum, a more complete factual record is needed to resolve the issue. The complaint was sufficient to withstand the defendant's motion to dismiss.
Order denying motion to dismiss affirmed.