Opinion
19-P-42
12-03-2019
LESLYE A. RIVERA v. CITY OF SPRINGFIELD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The plaintiff brought this negligence action against the city of Springfield on behalf of her daughter, Lisa, who was injured after being pushed by David, a fellow student at their public middle school. The plaintiff alleged that the city breached its duty of care to Lisa by transferring David to the school that Lisa was attending, and that this breach caused Lisa's injuries. A judge of the Superior Court allowed the city's motion for summary judgment based on sovereign immunity, and we affirm.
A pseudonyn.
A pseudonyn.
Discussion. The plaintiff contends that the judge erred in ruling that the city was immune from suit. We review the grant of summary judgment de novo. See Federal Nat'l Mtg. Ass'n v. Hendricks, 463 Mass. 635, 637 (2012). Our inquiry 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), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Here, the city claimed immunity, relying on G. L. c. 258, § 10 (j), an exception to the limited waiver of common law sovereign immunity provided by the Massachusetts Tort Claims Act. See Cormier v. Lynn, 479 Mass. 35, 39 (2018).
Under § 10 (j), the city is immune from suit "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), quoting G. L. c. 258, § 10 (j). 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 at 318, citing Brum v. Dartmouth, 428 Mass. 684, 695 (1999).
Acknowledging that David's act of pushing Lisa was the most immediate cause of Lisa's injuries, the plaintiff argues that the city's transfer of David to the school that Lisa was attending was the original cause which allowed David to be in a position to harm Lisa. As the Superior Court judge noted, however, the transfer "was not an affirmative act by the [c]ity, but the result of a[n] . . . application by [David] to move to [the school], combined with a randomized lottery selection process administered by the [c]ity." This is not a case where a public official made an affirmative decision that contributed to the situation which created the harm. Compare Bonnie W. v. Commonwealth, 419 Mass. 122, 126 (1994) (probation officer's misrepresentation of probationer's criminal history and decision to recommend probationer for continued employment at trailer park with access to plaintiff's home was affirmative act that contributed to harm); Gennari v. Reading Pub. Sch., 77 Mass. App. Ct. 762, 765 (2010) (principal's decision to hold recess in concrete courtyard was affirmative act that materially contributed to harm).
The nonbinding cases cited by the plaintiff likewise involved affirmative decisions inherent in hiring. See Armstrong v. Lamy, 938 F. Supp. 1018, 1045-1046 (D. Mass. 1996); McConnell v. Dooling, 3 Mass. L. Rptr. 670, 671 (1995).
To the contrary, here, the city had a process in place that resulted in David's requested transfer without any affirmative decision by any individual. Indeed, given the manner in which David was transferred from one school to another, a randomized computer lottery selection process and waitlist procedure, it appears that only an affirmative act of the city could have prevented David from being transferred. Thus, the plaintiff's claim relies on the city's failure to take action to prevent the transfer. Such a failure to act cannot be the basis of liability. See Cormier, 479 Mass. at 42, quoting Brum, 428 Mass. at 696 ("'conditions that are, in effect, failures to prevent harm, would undermine the principle purpose' of § 10 (j)"). See also Stahr v. Lincoln Sudbury Regional High Sch. Dist., 93 Mass. App. Ct. 243, 248 (2018) (school district immune from liability for failure to implement and adhere to statutory concussion protocols); Jane J. v. Commonwealth, 91 Mass. App. Ct. 325, 330-331 (2017) (hospital immune from liability for failing to segregate by gender its patients' use of recreation room).
The plaintiff's attempt to characterize the entire school transfer process as the original cause of Lisa's injuries must fail. We cannot stretch the meaning of "original cause" so far as to brand the city's mere administration of a randomized application process as an "affirmative act," giving rise to liability for whatever harm might be caused by any student transferred through this process. Cf. Kent, 437 Mass. at 319 ("Acts that merely result in individuals living or traveling in society are too remote as a matter of law to be the original causes of specific conditions or situations that may arise years later as the result of their societal interactions"). We decline to accept an interpretation that would undermine the purpose of the statute. See Brum, 428 Mass. at 695 ("§ 10 [j] was intended to provide some substantial measure of immunity from tort liability . . . . [W]e must not adopt an interpretation of the statute that construes the words 'originally caused' so broadly as to encompass the remotest causation and preclude immunity in nearly all circumstances").
As the undisputed facts failed to disclose that the city committed any affirmative act with respect to David's transfer to the school Lisa was attending, the city was entitled to immunity from suit.
Judgment affirmed.
By the Court (Neyman, Henry & Singh, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: December 3, 2019.