Opinion
21-P-368
02-14-2022
SHARON ROY, individually and as personal representative, [1] v. TOWN OF WINCHENDON.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Sharon Roy, appeals from a Superior Court judgment, entered on the defendant's motion for summary judgment, dismissing her wrongful death and negligence claims against the town of Winchendon. She contends that the motion judge erroneously concluded that the town was immune from liability pursuant to the Massachusetts Torts Claim Act (MTCA), G. L. c. 258, §§ 10 (b) and (j) We affirm, albeit for reasons slightly different than those of the motion judge.
Neither party briefed the dismissal of the plaintiff's deceit claim in the trial court or on appeal. The dismissal of this claim is waived. See Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 55 (2013) (arguments not made in appellate brief need not be considered by appellate court); Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006) (failure to raise argument in trial court waived issue on appeal).
Background.
On the evening of January 9, 2017, police officers stopped a car after dispatch received a report of erratic driving. The responding officer noted that the parked car was facing in the wrong direction. A driver and two passengers, one of whom was the decedent, Sharon Dick, were inside the car. The officer smelled alcohol and conducted one field sobriety test, which the driver passed. The officer impounded the car because of the driver's erratic behavior. Another officer drove the driver home in a police cruiser, while the second passenger left the scene on foot. Dick rode with the second officer and the driver.
"In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party" (quotation and citation omitted). Jane J. v. Commonwealth, 91 Mass.App.Ct. 325, 327 (2017).
The officer took the driver home first. Dick asked that the officer take her to her house in New Hampshire, about a ten-minute drive away. When they arrived at her house, the officer parked in the driveway, got out of the cruiser, and opened the passenger door for Dick. He asked whether she needed assistance getting into the house, but she declined. Although Dick told the officer that her leg was bothering her, she walked up a short set of stairs toward her house without assistance. The officer shone the cruiser's headlights on the driveway and stairs and saw her turn the corner of her house toward the back door, which was not visible from the driveway. The officer then drove away. He did not see any lights inside the house.
At some point during the night, Dick froze to death outside her back door. The death certificate listed the cause of death as environmental hypothermia; Dick was "exposed to extreme cold temperatures following [an] unwitnessed fall outside [her] residence." Chronic ethanol abuse was also noted. A toxicology report stated that she had a blood alcohol concentration level of 0.258 grams per 100 milliliters at the time of autopsy, and this was listed as a contributing cause. Dick's house keys were subsequently found in the driver's purse.
Discussion.
"The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). The plaintiff contends that the motion judge erroneously concluded that the town was immune from liability pursuant to the discretionary function and the original cause exceptions to the MTCA, G. L. c. 258, §§ 10 (b) and (j) .
The plaintiff also argues that there were facts in dispute as to whether the officer knew the decedent was intoxicated, and whether the fact that he left the scene foreseeably contributed to her death. There is no disagreement on appeal that there were facts in dispute on these issues, but these are questions of liability, not immunity, and therefore have no bearing on the outcome of this appeal, which is based solely on the latter.
Specifically, she contends that once the officers impounded the car in the exercise of their community caretaking function, they assumed a duty of care with respect to the occupants of the car, which they failed to exercise with proper diligence.
1. Discretionary function.
The limited waiver of sovereign immunity under the MTCA does not apply to "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused." G. L. c. 258, § 10 (b).
Our analysis under § 10 (b) follows a two-prong test. See Shapiro v. Worcester, 464 Mass. 261, 270 (2013). "The first inquiry is whether the governmental actor had any discretion at all as to what course of conduct to follow. The second inquiry is whether the discretion that the actor had is that kind of discretion for which § 10 (b) provides immunity from liability" (quotations omitted) . Id., quoting Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). "If the injury-producing conduct was an integral part of governmental policy making or planning, if the imposition of liability might jeopardize the quality of the governmental process, or if the case could not be decided without usurping the power and responsibility of either the legislative or executive branch of government, governmental immunity would probably attach." Greenwood v. Easton, 444 Mass. 467, 470-471 (2005), quoting Horta v. Sullivan, 418 Mass. 615, 620 (1994). If, however, the allegedly tortious conduct consists of executing established policies, that conduct is not immune and is governed by tort liability standards. Greenwood, supra at 471.
Here, no one was arrested or taken into protective custody, and the plaintiff maintains that the officers acted in connection with their community caretaking function. The town argues that the exercise of the community caretaking function does not create a duty in tort, while the plaintiff contends that once the officers intervened, they assumed a duty to do so in a manner that was not negligent.
The Winchendon Police Department's policy and procedure guidelines for protective custody of intoxicated individuals obligates officers to comply with G. L. c. 111B, which provides that "[a]ny person who is incapacitated may be assisted by a police officer with or without his consent to his residence." G. L. c. 111B, § 8.
See Commonwealth v. Sargsyan, 99 Mass.App.Ct. 114, 116 (2021).
Extending tort duties to the exercise of police functions poses a complex set of policy considerations. See Sena v. Commonwealth, 417 Mass. 250, 256 (1994). However, with respect to the roadways, the Supreme Judicial Court has held that "[n]o reasonable basis exists for arguing that a police officer is making a policy or planning judgment in deciding whether to remove from the roadways a driver who he knows is intoxicated. Rather, the policy and planning decision to remove such drivers has already been made by the Legislature." Irwin v. Ware, 392 Mass. 745, 753 (1984). Likewise, the Supreme Judicial Court has held that "by taking action that exposed the plaintiff to risk, [the defendant] was bound, as any other person would be, to act reasonably, and that [if] he violated that duty to the detriment of the plaintiff," liability would follow. Bonnie W. v. Commonwealth, 419 Mass. 122, 127 (1994). In the final analysis, we need not decide whether § 10 (b) applies, for even if we presuppose that the officers exercised or assumed a duty under the MTCA, and that the town was not immune from suit under the discretionary function exception, the town was immune from suit under § 10 (j) . See Brum v. Dartmouth, 428 Mass. 684, 697 (1999) ("The immunities provided by § 10 operate in the alternative; even if one immunity contains an exception that would permit a claim to be brought, that claim is barred if any of the other immunities apply").
2. Original cause/affirmative act.
Section 10 (j) of G. L. c. 258 provides that the limited waiver of sovereign immunity under the MTCA shall not apply to:
"any claim 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."
"To have 'originally caused' a condition or situation for the purposes of § 10 (j), the public employer must have taken an affirmative action; a failure to act will not suffice." Cormier v. Lynn, 479 Mass. 35, 40 (2018), citing Brum, 428 Mass. at 695-696. "In order for a public employer's affirmative act to be the 'original cause' of a 'condition or situation' that results in harmful consequences . . . the act must have materially contributed to creating the specific 'condition or situation' that resulted in the harm." Kent v. Commonwealth, 437 Mass. 312, 319 (2002). See Commonwealth v. Jacome, 56 Mass.App.Ct. 486, 489 (2002).
The town is entitled to immunity under § 10 (j) for three interrelated reasons. First, the original cause of the death was the freezing temperatures. As in Jacome, 56 Mass.App.Ct. at 489-490, where the plaintiff's decedent drowned when no lifeguards were present, natural conditions brought about the harm. The town did not create the freezing conditions that caused Dick's death.
Second, the plaintiff's argument reduces to a claim that the officer failed to act; that is, he failed to prevent the death. The plaintiff argues that the officer acted affirmatively when he impounded the car and drove Dick home. The plaintiff relies on the roadside intervention to establish a duty, but with respect to Dick's death, the plaintiff's complaint lies with the failure to accompany Dick to the door and make sure she was safely inside. This was a failure to act and not an affirmative act. See Brum, 428 Mass. at 693 (school's allegedly deficient security measures that failed to prevent stabbing death of student was not affirmative act; "a failure to act to prevent or diminish" is immune). See also Cormier, 479 Mass. at 41-42 (where school was warned of threats of violence, failure to keep students apart not affirmative act). This case stands in sharp contrast to those in which a municipality undertook specific action. See Magliacane v. Gardner, 483 Mass. 842, 859 (2020) (city delivered corrosive water; city was original cause of corrosive water that led to copper coil failures); Bonnie W., 419 Mass. at 127 (Commonwealth liable for affirmative act of negligently recommending convicted rapist for maintenance position).
The plaintiff alleged in the complaint that, "[h]aving undertaken to rescue Sharon Dick from the inherent dangers of the . . . vehicle[], the Winchendon police undertook an obligation to take reasonable precautions to protect Sharon [Dick] from harm."
Third, an exception to § 10 (j) waives immunity for "any claim based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than he was in before the intervention." G. L. c. 258, § 10 (j) (2) . Again, the intervention must be based on an affirmative act, not a failure to act. See Stahr v. Lincoln Sudbury Regional High Sch. Dist., 93 Mass.App.Ct. 243, 249 (2018). Because the act alleged to have caused Dick's death was the failure to escort her to the door, the exception in § 10 (j) (2) is inapplicable.
For these reasons the town was immune from suit under § 10 (j) and the motion for summary judgment was properly allowed.
Judgment affirmed.
The panelists are listed in order of seniority.