Opinion
13-P-2012
12-10-2014
JOSEPH A. TALBOT & another v. TOWN OF HUDSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case involves a tort action brought on behalf of Joseph A. Talbot, a minor, by Jeanne Talbot, as his mother and next friend, and individually (collectively, the Talbots). The underlying claim arose out of injuries sustained by Joseph during a school recess while he attended Hudson High School, which is operated by the defendant, the town of Hudson. While playing a game of football, Joseph was tackled from behind by a classmate and suffered a fracture to his left knee and a torn anterior cruciate ligament. A Superior Court judge granted the defendant's motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), for failure to state a claim upon which relief can be granted. Specifically, the judge found that the defendant was immune from the Talbots' claim pursuant to G. L. c. 258, § 10(j). We affirm.
Discussion. 1. Standard of review. An appellate court reviews the allowance of a motion to dismiss de novo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). In considering such a motion, we take the factual allegations in the complaint to be true, and draw every reasonable inference in the plaintiff's favor. Ibid. At the pleading stage, a plaintiff must make factual allegations that plausibly suggest an entitlement to relief, rather than rely on mere labels and conclusions. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). However, "the presence of allegations or information constituting a conclusive affirmative defense can spell the demise of a complaint." Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 635 (2012).
2. Immunity under G. L. c. 258, § 10( j). The Massachusetts Tort Claims Act (Act), G. L. c. 258, provides that a public employer, including the Commonwealth, is liable for "injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment." G. L. c. 258, § 2, first par., inserted by St. 1978, c. 512, § 5. However, § 10(j) of the Act provides immunity to a public employer "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). The original cause language has been interpreted to require "an affirmative act," not simply a failure to act. Id. at 318.
The complaint alleges that on the day Joseph suffered his injuries, he was in class at Hudson High School when his teacher provided Joseph's classmates a football and instructed them to go outdoors for recess. Two teachers took the students to the school's football field. The students were not directed or told to play tackle football. Rather, they were allowed to do so. It was during this game of football that Joseph caught the football and was then tackled from behind by a classmate, thereby causing his injuries. Simply allowing students to play tackle football, or failing to prevent them from doing so, does not qualify as an affirmative act under the statute. Sending them off to recess with a football is different from directing or ordering them to play tackle football, as it encompasses any number of less dangerous activities such as playing catch, running plays, or playing touch football. It was the teachers' failure to prevent that play from turning into a game of tackle football that caused Joseph to be harmed. Consequently, this case is distinguished from Gennari v. Reading Pub. Schs., 77 Mass. App. Ct. 762, 765 (2010), where the principal's affirmative act -- ordering first graders to have recess in the concrete courtyard -- was the original, foreseeable cause of the situation that led to the injury.
3. Other arguments. Because we find that the Talbots' claim was properly dismissed in accordance with § 10(j)'s grant of immunity, we need not reach the other issues raised by the parties.
Conclusion. For the reasons stated above, we conclude that the Talbots' complaint was properly dismissed in accordance with rule 12(b)(6).
Judgment affirmed.
By the Court (Kafker, Cohen & Milkey, JJ.),
Panel members appear in order of seniority.
--------
Clerk Entered: December 10, 2014.