Opinion
No. 12–P–1509.
2013-09-17
Anthony DeJESUS v. CITY OF WORCESTER.
The purpose of this provision “is to ‘provide some substantial measure of immunity from tort liability to government employers.’ “ Kent v. Commonwealth, 437 Mass. 312, 318 (2002), quoting from Brum v. Dartmouth, 428 Mass. 684, 695 (1999). The Supreme Judicial Court has “construed the ‘original cause’ language to mean an affirmative act (not a failure to act) by a public employer that creates the ‘condition or situation’ that results in harm inflicted by a third party.” Kent, supra. “The correct inquiry is whether the public employer's act ‘materially contributed to creating the specific “condition or situation” that resulted in the harm.’ “ Gennari v. Reading Pub. Schs., 77 Mass.App.Ct. 762, 764 (2010), quoting from Kent, supra at 319.
By the Court (RAPOZA, C.J., HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Anthony DeJesus, appeals a summary judgment in favor of the city of Worcester (city). He argues the judge erroneously concluded that the city was immune from liability pursuant to G.L. c. 258, § 10( j ), based on a determination that the city had not committed an affirmative act. We affirm, essentially for the reasons stated in the motion judge's thoughtful memorandum.
Background. On the morning of December 9, 2008, Anthony, a second grade student at the Belmont Community School in Worcester, got off the school bus and went to wait in the “schoolyard” for school to open. There was ice and snow on the ground. A school employee was present to supervise the students while they waited to go into the building. Anthony was waiting with the others, when a fourth grade student who was trying to avoid being tagged “it” in a game of tag, accidentally pushed Anthony to the ground. Anthony fractured his right wrist in the fall.
Anthony filed a complaint alleging that the city “negligently failed to adequately supervise [Anthony] and take measures to ensure his safety” while he was “under the control of and in the custody of” the city; as a result of the city's negligence, the complaint continued, Anthony slipped and fell in the schoolyard, suffering injuries and incurring medical expenses. The city moved for summary judgment, arguing there existed no genuine factual dispute, it being clear that the city was not the original cause of Anthony's injury; in its view, the city was entitled to summary judgment based on its immunity from liability under G.L. c. 258, § 10( j ), as inserted by St.1993, c. 495, § 57.
After a hearing, the judge concluded that Anthony had presented no evidence of an “affirmative act” by the city that caused or contributed to Anthony's injury. As a result, he allowed the city's motion for summary judgment and dismissed Anthony's complaint pursuant to Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2006).
Discussion.Section 10( j ) of chapter 258 provides that the limited waiver of sovereign immunity under the Massachusetts Torts Claim Act (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.”
The purpose of this provision “is to ‘provide some substantial measure of immunity from tort liability to government employers.’ “ Kent v. Commonwealth, 437 Mass. 312, 318 (2002), quoting from Brum v. Dartmouth, 428 Mass. 684, 695 (1999). The Supreme Judicial Court has “construed the ‘original cause’ language to mean an affirmative act (not a failure to act) by a public employer that creates the ‘condition or situation’ that results in harm inflicted by a third party.” Kent, supra. “The correct inquiry is whether the public employer's act ‘materially contributed to creating the specific “condition or situation” that resulted in the harm.’ “ Gennari v. Reading Pub. Schs., 77 Mass.App.Ct. 762, 764 (2010), quoting from Kent, supra at 319.
On appeal, Anthony argues that that the city was the “original cause” of the condition or situation that resulted in his injury, contending that the “school administrator's affirmative choice” to have the children play in an ice and snow covered schoolyard was the direct and proximate cause of the accident. In so doing, he relies primarily on Gennari v. Reading Pub. Schs., supra at 765, where a school principal “affirmatively ordered that the first graders' recess be held in [a] concrete courtyard” with several low brick concrete-topped walls used as benches. The plaintiff was injured when his friend pushed him; he fell and struck his face on the corner of one of the benches. In that case, we said “[t]he causal link between [the principal's order] and [the child's] injury is not so remote that as a matter of law we can say the principal's decision is not an ‘original cause’ of the injury within the meaning of the statute.” Ibid.
This case is distinguishable from Gennari. Here, nothing in the summary judgment record indicates that any school administrator or employee issued any specific decision or directive that children must congregate in the schoolyard prior to school opening. In fact, the record before us lacks any written policies or procedures issued by the school, the school board or the city relating to the activity of students prior to school opening; nor does it appear that any school administrators or employees were deposed by the plaintiff regarding any mandated protocol.
As the motion judge noted, “[a]lthough this somewhat technical distinction between school officials' affirmative acts and failures to act produces a harsh result in this case, it is what the law mandates.” Even if the school administrators could have prevented Anthony's injury by providing an indoor location for the children to wait, or the employee in the school yard could have insisted that the children stand still and not run on the ice, “the failure to undertake such actions cannot be the basis of defeating the [city's] immunity under [G.L. c. 258,], § 10( j ).” Moore v. Billerica, 83 Mass.App.Ct. 729, 732 (2013)
We agree that the facts in the record before us do not present a “genuine issue as to any material fact” and therefore support a grant of summary judgment in favor of the defendant. Mass.R.Civ.P. 56(c). Even viewing the evidence in the light most favorable to the plaintiff, it is clear that the defendant is “entitled to a judgment as a matter of law.” Nutt v. Florio, 75 Mass.App.Ct. 482, 485 (2009).
Judgment affirmed.