In many cases the classification of a tortfeasor as a public officer at present cloaks him, and consequently the city, with immunity from liability for his actions. "[P]ublic officers engaged wholly in the performance of public duties are liable only for their own acts of misfeasance in connection with ministerial matters." Fulgoni v. Johnston, 302 Mass. 421, 423 (1939). "[N]egligence which amounts to nothing more than an omission or nonfeasance creates no liability. . . . [N]onfeasance is the omission of an act which a person ought to do, misfeasance is the improper doing of an act which a person might lawfully do."
The Massachusetts court has reasoned that because a teacher has only ministerial duties to perform, such teacher can be held liable only for injuries to a pupil resulting from the teacher's misfeasance. Fulgoni v. Johnston, 302 Mass. 421, 423 19 N.E.2d 542, 543. The Maine decisions, however, are to the contrary, holding that a teacher having the care and custody of pupils must act so as not negligently to injure them, whether it be misfeasance or nonfeasance that causes such injury. Brooks v. Jacobs, 139 Me. 371, 31 A.2d 414, 417.
Employees of the city engaged in training functions are considered public officers for purposes of the latter rule. Fulgoni v. Johnston, 302 Mass. 421, 423 (1939). Desmarais v. Wachusett Regional Sch. Dist. 360 Mass. 591, 593 (1971), Desmarais v. Wachusett Regional Sch. Dist. 1 Mass. App. Ct. 813 (1973), cert. den. 414 U.S. 859 (1973).
Certain individual public employees could, however, be held personally liable for tort damages arising from the performance of their ministerial duties. See Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. 591, 593 (1971); Trum v. Paxton, 329 Mass. 434, 438 (1952); Fulgoni v. Johnston, 302 Mass. 421, 423 (1939). To protect those employees from the financial burden of both damages or expenses arising from the defense of tort actions, the Legislature enacted several indemnification statutes, two of which — precursors to § 13 — covered municipal officers.
In Gildea, the court sought to reconcile what can best be described as a confusing welter of previous decisions. Some of these decisions withheld immunity entirely, stating, for example, that, even where nonjuridical officers had performed their duties in good faith, "[t]he cloak of office is no protection to them," Stiles v. Municipal Council of Lowell, 233 Mass. 174, 182 (1919), discussed in Gildea, supra at 805-810, 821-825; Miller v. Horton, 152 Mass. 540 (1891) (Holmes, J.); other decisions, however, upheld immunity even when the official acts complained of were ministerial in nature, so long as nonfeasance was alleged rather than misfeasance, see, e.g., Desmarais v. Wachusett Regional School Dist., 360 Mass. 591, 593 (1971), mentioned in Gildea, supra at 812 n. 11; and see Fulgoni v. Johnston, 302 Mass. 421, 423 (1939); and still others "attempt[ed] to give nonjudicial public officers the benefit of . . . [absolute] immunity . . . enjoyed by judges, but only if . . . the function of the officer which gave rise to the claim for damages was either judicial or quasi judicial in nature." Gildea, supra at 812, referring to Barry v. Smith, 191 Mass. 78, 88 (1906), and Jaffarian v. Murphy, 280 Mass. 402, 406-407 (1932).
The standard of liability can be simply stated, although its application is not always so simple. Powers could be liable only for the consequences of his own misfeasance in connection with a ministerial matter. Fulgoni v. Johnston, 302 Mass. 421, 423 (1939). Misfeasance is the negligent or improper doing of an act ( Trum v. Paxton, 329 Mass. 434, 438 [1952]), as opposed to nonfeasance, which involves the negligent failure or omission to act ( Trum v. Paxton, supra at 438).
An analogous Massachusetts rule is that public officers engaged wholly in the performance of public duties are personally liable only for their own acts of misfeasance in connection with ministerial matters. Moynihan v. Todd, 188 Mass. 301, 303, 305. Fulgoni v. Johnston, 302 Mass. 421, 423. Trum v. Paxton, 329 Mass. 434, 438. Desmarais v. Wachusett Regional Sch. Dist. 360 Mass. 591, 593. 4. The decree dismissing the petition is reversed and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
The general rule is that "public officers engaged wholly in the performance of public duties are liable only for their own acts of misfeasance in connection with ministerial matters." Fulgoni v. Johnston, 302 Mass. 421, 423. Moynihan v. Todd, 188 Mass. 301, 303.
Also, education is a matter of purely public concern; and in the establishment and regulation of schools, municipalities act in their governmental and not their private capacity. Sanders v. City of Long Beach, 54 Cal.App.2d 651, 129 P.2d 511; Nabell v. City of Atlanta, 33 Ga. App. 545, 126 S.E. 905; Jones v. City of Amory, 184 Miss. 161, 185 So. 237; Cobb v. City of Malden, C.A.Mass., 202 F.2d 701; and Fulgoni v. Johnston, 302 Mass. 421, 19 N.E.2d 542. Typical of the authority relied on by appellants is the case of Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 1121, 20 L.Ed.2d 45, where the court made it clear the body involved was a unit of local government "with general governmental powers" over the county's entire area.
Carr v. Wright, 423 S.W.2d 521 (1968); Crabbe v. County School Bd. of Northumberland Co., 209 Va. 356, 164 S.E.2d 639 (1968); Brooks v. Jacobs, 139 Maine 371, 31 A.2d 414 (1943). In other states immunity is extended in cases of non-feasance but not malfeasance. Fulgoni v. Johnston, 302 Mass. 421, 19 N.E.2d 542 (1939). In Maryland governmental immunity is extended to all nonmalicious acts of public officials as opposed to public employees when acting in a discretionary as opposed to ministerial capacity.