Alves v. Hayes

Citation406 N.E.2d 1028,381 Mass. 57
PartiesMichael J. ALVES v. John A. HAYES et al.
Decision Date01 July 1980
CourtUnited States State Supreme Judicial Court of Massachusetts

John P. Cosgriff, Boston, for plaintiff.

Robert S. Phillips, Town Counsel, Milford, for Richard T. Moore and another.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and ABRAMS, JJ.

BRAUCHER, Justice.

This is an action for damages for libel and slander against a town and present and former members of its board of selectmen. The action has been dismissed under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), against all the defendants except Hayes, and the plaintiff's appeal presents the question whether selectmen are vicariously liable for the torts of "their agent, employee and designee." We hold that they are not, and affirm the judgment appealed from. See Morash & Sons v. Commonwealth, 363 Mass. 612, 624 n.7, 296 N.E.2d 461 (1973).

The action was brought on April 7, 1978. The defendant Hayes answered, and the defendant town of Hopedale and the other four defendants moved for dismissal. The motion was allowed, judgment was entered for the defendants Moore and Phillips and the defendant town, and the plaintiff appealed from the judgment for the defendants Moore and Phillips. We transferred the case to this court on our own motion.

The complaint contains four counts. Count 1 alleges that the plaintiff on April 10, 1975, was the program development specialist of the Blackstone Valley Consortium Comprehensive Employment and Training Act Office (CETA), that the defendant Hayes was a selectman of Hopedale and chief executive officer of the CETA office, and that Hayes published two libels, on April 10, 1975, and February 2, 1977. Count 2 repeats the same allegations and adds slander on April 10, 1975. Counts 3 and 4 substantially repeat the same allegations, adding that the other four individual defendants are present or former selectmen of Hopedale and that the town and its then selectmen, the defendants Moore and Phillips, "by their agent, employee and designee as Chief Executive Officer of the aforesaid CETA office, John A. Hayes," published the 1975 libel and slander, and "by their agent, employee, fellow board member and designee, John A. Hayes as Chief Executive Officer of the aforesaid CETA office" published the 1977 libel.

The present case arose before the effective date of G.L. c. 258, as appearing in St.1978, c. 512, § 15, applicable by § 16 to causes of action arising on or after August 16, 1977. Moreover, the immunity granted to public officers by G.L. c. 258, § 2, is, under § 10(c ), inapplicable to claims for libel and slander. We therefore look to the traditional rule 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." Morash & Sons v. Commonwealth, 363 Mass. 612, 624 n.7., 296 N.E.2d 461, 468, n.7 (1973), and cases cited. The town was not liable for the acts of its officers under the doctrine of respondeat superior, the immunity of the town implied immunity of its board of selectmen, and the members of the board were not personally liable for the acts of town employees. Oeschger v. Fitzgerald, 2 Mass.App. 472, 474, 314...

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4 cases
  • Spring v. Geriatric Authority of Holyoke
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 14 Marzo 1985
    ...Governmental Tort Liability under the Massachusetts Tort Claims Act of 1978, 66 Mass.L.Rev. 7, 12 (1981). See Alves v. Hayes, 381 Mass. 57, 58, 406 N.E.2d 1028 (1980); Morash & Sons v. Commonwealth, 363 Mass. 612, 624 n. 7, 296 N.E.2d 461 (1973). And indeed, the plaintiff here did pursue ac......
  • O'Neill v. Mencher
    • United States
    • Appeals Court of Massachusetts
    • 2 Abril 1986
    ...respondeat superior is inapplicable to public officers. Trum v. Paxton, 329 Mass. 434, 438, 109 N.E.2d 116 (1952). Alves v. Hayes, 381 Mass. 57, 58, 406 N.E.2d 1028 (1980). See also Whitney, 373 Mass. at 214 & n. 7, 366 N.E.2d 1210, and cases cited. In summary, on the common law counts for ......
  • Mcclure v. East Brookfield
    • United States
    • Superior Court of Massachusetts
    • 11 Marzo 1999
    ...does not apply to government officials under the common law of the Commonwealth. Alves v. Hayes, 381 Mass. 57, 58 (1980). According to the Alves court, "[t]he town was not liable the acts of its officers under the doctrine of respondeat superior, the immunity of the town implied immunity of......
  • Roggio v. City of Gardner
    • United States
    • U.S. District Court — District of Massachusetts
    • 9 Mayo 2013
    ...258 is inapplicable to claims that contend that a public officer committed an intentional tort against the plaintiff. Alves v. Hayes, 381 Mass. 57, 59 (1980). Thus, the CORI statute's remedy provision concerning the intentional torts of public employees has been left ...

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