Opinion
No. 05-0932-C.
October 6, 2005.
MEMORANDOM OF DECISION AND ORDER WITH REGARD TO DEFENDANT'S MOTION TO DISMISS
INTRODUCTION
This is an action brought by plaintiff John Doe against the defendant, Nashoba Regional School District ("Nashoba"). The plaintiff alleges that the defendants negligently controlled and maintained their premises and, as such, failed to protect John from the sexual assault of his assailant, another male kindergartner, on the date of the incident, March 27, 2003, and thereafter. Defendant has filed a motion to dismiss the complaint on the grounds that it does not state a claim upon which relief can be granted. See Mass.R.Civ.P 12(b)(6).
BACKGROUND
Assuming the truth of the allegations set forth in the plaintiff's complaint, the facts are as follows. On March 27, 2003, while the plaintiff John Doe was using the restroom at the Mary Rowlandson School, part of the defendant's regional school district, another young student ("student perpetrator") entered the stall that the plaintiff John Doe was using and performed oral sex upon the plaintiff John Doe. See Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss Plaintiff's Complaint, pp. 2.
Upon learning of this matter, the plaintiff's mother notified the school's principal and set up a meeting at the school for the following day. Id. On March 28, 2003, the plaintiff John Doe's parents, the principal, the vice-principal and the student perpetrator and his mother met at school. Id. During this meeting the student perpetrator admitted to sexually assaulting the plaintiff John Doe. Id.
At some point thereafter the defendant school district made the decision to keep the plaintiff John Doe back in the kindergarten class, while promoting the student perpetrator to the first grade. See Id., pp. 2. The record is devoid of any reason for the decision not to promote John Doe other than as a means of provifing some separation between him and the perpetrator of the sexual assault.
The plaintiff alleges that the defendant was negligent in the supervision of its property, which led to the aforementioned incident, and further negligent in its intervention after the incident. The plaintiff John Doe has been allegedly traumatized by both the March 27, 2003 incident as well as the school's response thereto and as a result has suffered severe mental anguish and has been placed in a worse position than he was before the negligent intervention.
DISCUSSION
Nashoba claims that it is immune from liability under the provisions of the Massachusetts Tort Claims Act chapter 258, § 10(j). Section 10(j) provides immunity for municipalities regarding:
"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 . . ."
Relevant express exceptions include: "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).
The Discretionary Function Rule further provides immunity for
any claim based upon the exercise or performance or 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.
The Defendant advances two arguments. First, it maintains that the limitation on the liability of a public employer under G.L. c. 258, § 10(j) bars the plaintiffs' claim, and second, that the discretionary function exception embodied in G.L. c. 258, § 10(b) also bars the plaintiff's claim.
I
Regarding the defendant's first claim, for liability to attach, the public employer must be the "original cause" of the harm. "Original cause" means an "'affirmative act' (not a failure to act) . . . that creates the 'condition or situation' that results in harm inflicted by a third party . . ." Jacome v. Commonwealth, 56 Mass.App.Ct. 486, 489 (2002). For example, in the Jacome case, the plaintiff drowned at a public beach when he was swept under water by a riptide while no life guard was on duty, despite posted signs saying a lifeguard was on duty during the hours that the drowning occurred. See Jacome 56 Mass.App.Ct. at 488. The Appeals Court determined that because the Commonwealth did not create the water current, § 10(j) protected the Commonwealth from liability. See Id. at 490.
Nashoba asserts that its response to the plaintiff John Doe's traumatic encounter, namely promoting the student perpetrator, was not the "original cause" of the "condition or situation" resulting in the ultimate harm, the plaintiff John Doe's mental anguish. Just as the court established the riptide to be the original cause of the plaintiff's death in Jacome, Nashoba argues that the sexual assault committed by the perpetrator was the original cause of the plaintiff John Doe's trauma.
While the reasoning in Jacome follows from the plain mening of the words of the statute, G.L. c. 258, § 10(j), this case is factually distinguishable. In Jacome, the town did not act affirmatively in harming the plaintiff while he swam; the lifeguard was simply absent. By contrast, in this case the Town committed an act independent of the unlawful act originally committed by the perpetrator of the sexual assault — namely, it promoted the wrongdoer and kept the victim behind in school. It is this independent, intervening act that the plaintiffs allege was wrong and produced the harm. This case more closely resembles Barley v. Town of Auburn rather than Jacome.
In Barley v. Town of Auburn, 19 Mass. L. Rep. 73, Worcester Sup. Ct. No. WOCV-2002-02141-A (Mass.Super.Ct. 2005), plaintiff's husband suffered a heart attack at their residence. During the course of the emergency, the public safety dispatcher cancelled the backup ambulance that had been accessed before confirming the dispatch of the primary ambulance called to the scene. Id. As a result of this confusion, the ambulance took more than 20 minutes to respond. Id. The court found that "[w]hile the dispatcher did not cause the heart attack, the dispatcher "originally caused" the delay and confusion that resulted in the ambulance to reach [plaintiff's husband] in an untimely manner." Id. Likewise, in Serrell v. Franklin County, 47 Mass. App. Ct. 400, a visitor at a house of correction was injured by correctional officers who were attempting to quell a disturbance caused by an inmate. The court concluded that defendant did not enjoy immunity from suit under G.L. c. 258, sec. 10(j) because "officers intervention exacerbated the situation to [the plaintiff's] detriment and, ultimately, her harm."
While it is certainly true that the defendant did not cause the student perpetrator to sexually assault the plaintiff John Doe, the Town made the decision to affirmatively intervene after the fact. In such circumstances, the defendant's conduct should be regarded as falling within the exemption to immunity under G.L. c. 258, sec. 10(j)(2) in that the defendant's acts placed the plaintiff John Doe in a worse position than he was before the intervention.
II
Regarding the defendant's second claim, the court must first consider, "whether the governmental actor had any discretion at all as to what course of conduct to follow," and second, "whether the discretion that the actor had is that kind of discretion for which § 10(b) provides immunity from liability." Harry Stoller and Co., Inc. v. City of Lowell. 412 Mass. 139, 141 (1992). Public school authorities clearly have discretion in making decisions about whether to promote or keep behind the students in their schools. However, the Supreme Judicial Court has explained that in enacting section 10(b), the Legislature did not intend to exempt all discretionary decisions made by municipal officials. "The discretionary function exception is narrow, providing immunity only for discretionary conduct that involves policy making or planning." Greenwood v. Town of Easton, Mass., (2005) (Town's failure to adequately secure telephone poles did not involve a high degree of planning and was not discretionary under section 10(b)) (quotation omitted). Only when the discretionary decision which causes the injury has a "high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning," as opposed to conduct which consists of "carrying out previously established policies or plans," will the exemption apply. Whitney v. Worcester, 373 Mass. 208, 218 (1977). See also Harry Stoller Co., supra, at 142 ("If the injury-producing conduct was an integral part of governmental policymaking 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.").
Under typical circumstances, the promotion and overall placement of students within the Nashoba school district would be considered so integral to the power and responsibility of school officials that it would fall within the bounds of policymaking and planning. However, on the record before the court there is no evidence about the process involved in making this decision and no indication at what level of the school administration the decision was made. Furthermore, there is no evidence that the defendant sought to achieve an educational purpose by promoting the perpetrator of a sexual assault while keeping the victim behind. Rather, it appears that the defendant decided to use the promotion process as a means of separating two students in order to avoid or minimize the potential for further assaultive behavior by the perpetrator in the future. The simple expedient of separating the two students in this manner does not involve any high level policymaking or planning and is not the type of discretionary decision that the Legislature intended to make municipalities immune from civil liability for under G.L. c. 258.
ORDER
For the foregoing reasons, the defendant Nashoba's motion to dismiss is DENIED.