Opinion
No. 15–P–1740.
11-29-2016
Jane DOE & others v. DEPARTMENT OF CHILDREN AND FAMILIES & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a summary judgment of the Superior Court, dismissing their complaint on grounds of sovereign immunity. We discern no cause to disturb the judgment, and affirm.
Because the plaintiffs have not included in the addendum to their brief or in the record appendix a copy of the written memorandum of decision entered by the motion judge, as reflected on the docket, we are unable to evaluate the plaintiffs' claims in the context of the rationale upon which the motion judge relied.
As the plaintiffs acknowledge, under G.L. c. 258, § 10 (j ), the Commonwealth (including administrative agencies and departments under it) has sovereign immunity "for all harmful consequences arising from its failure to act to prevent the violent or tortious conduct of a third person, unless it ‘originally caused’ the ‘condition or situation’ that resulted in the harmful consequence." Kent v. Commonwealth, 437 Mass. 312, 317 (2002). As the plaintiffs also acknowledge, in order for the Commonwealth to be held liable, its causal contribution to the harmful consequence must result from an affirmative act, rather than a failure to act. In the present case, the harmful consequence at the center of the plaintiffs' complaint arose by virtue of the violent and tortious conduct of a third person, another of John Doe's minor children (minor child). Construed in the light most favorable to the plaintiffs, the sole causal contribution by the defendants to the harmful consequence was the failure of the defendant Department of Children and Families to disclose to the Juvenile Court certain information concerning the minor child's potential or propensity for the tortious conduct of which the plaintiffs complain. Contrary to the plaintiffs' contention, such a failure to disclose does not constitute the requisite affirmative act for liability under § 10(j ).
The defendants dispute both the allegation that they failed to disclose material information and that any such failure caused or contributed to the placement of the child in the plaintiffs' home.
Bonnie W. v. Commonwealth, 419 Mass. 122, 125 (1994), is not to the contrary. In that case, a parole officer made several affirmative misrepresentations about his parolee, including an opinion that the parolee had been rehabilitated and was not dangerous, and recommended that he be allowed to continue working at the trailer park in which he subsequently committed a sexual assault. Ibid. By contrast, in the present case, at most the defendants failed to disclose facts material to an assessment of the minor child's potential dangerousness; in no manner may they be construed to have made an affirmative misrepresentation. See Brum v. Dartmouth, 428 Mass. 684, 695–696 (1999) ; Kent v. Commonwealth, supra at 318–319.
We also observe that it was the Juvenile Court, and not the defendants, that placed the minor child in the defendants' home, see Brum v. Dartmouth, supra at 689.
We need not resolve the parties' conflicting assertions concerning the existence of a material factual dispute on the question whether any causation flowing from the defendants' failure to disclose was broken by the intervening knowledge of the minor child's proclivities acquired by the plaintiffs during the months he was in their care before the incident giving rise to the plaintiffs' complaint.
Judgment affirmed.