Bonnie W. v. Com.
| Decision Date | 09 December 1994 |
| Citation | 419 Mass. 122,643 N.E.2d 424 |
| Parties | , 10 IER Cases 421 BONNIE W. v. COMMONWEALTH. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Roger J. Brunelle, Worcester, for the plaintiff.
Frank A. Smith, III, Sp. Asst. Atty. Gen., for the Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.
The plaintiff alleges in her complaint that she was sexually assaulted in her mobile home which was located on leased space in a privately owned trailer park. The complaint further states that the assault was committed by Robert G. Elliott, who at that time was employed by the owners of the park as a maintenance man, having been recommended for such employment by Felix Claxton, who was employed by the Commonwealth as a parole officer. Claxton, the complaint alleges, knew that Elliott had a criminal record, including rape convictions, but nevertheless negligently recommended to the park management that Elliott be hired. The complaint also asserts that Claxton negligently supervised Elliott during his employment and negligently recommended his continued employment at the mobile home park.
A judge in the Superior Court allowed the Commonwealth's motion for summary judgment and the plaintiff appealed. We transferred the case to this court on our own initiative. Then, after the parties had filed their briefs here, the Legislature enacted St.1993, c. 495, §§ 57 and 144, G.L. c. 258, the Massachusetts Tort Claims Act, and the parties, at our invitation, filed supplemental briefs addressing the effect and applicability to this case of the new legislation. We now reverse the judgment below. 1
In a memorandum of decision, the judge in the Superior Court recited the following facts about which there appears to be no controversy. Elliott was released on parole January 21, 1987, from a twenty-five to thirty year sentence for rape and a concurrent ten to fifteen year sentence for robbery. Those sentences began October 28, 1964. Elliott was also serving an eight to twelve year sentence and a concurrent sentence for two counts of rape, which sentences began April 2, 1981. On January 21, 1987, Elliott met with Claxton, his parole officer, and Claxton determined that Elliott should be on "maximum supervision," which required Claxton to visit Elliott's home at least once a month and to have at least one monthly telephone conversation or visit with him.
On February 13, 1987, Elliott informed Claxton that he had been hired as a maintenance man at a trailer park in Brookfield. Early that month, the Brookfield police chief was introduced to Elliott at the trailer park. Thinking that he recognized Elliott, the police chief returned to the police station where he saw Elliott's photograph and a description of his crimes and sentences on the bulletin board. The police chief then brought David Machesney, a trailer park employee, to the police station to see the photograph and the posted information regarding Elliott. The police chief told Machesney that he did not think Elliott should be working at the trailer park. Then, on February 17, Machesney had a telephone conversation with Claxton, the substance of which is in dispute and is discussed below.
Following the disputed conversation, Elliott retained his job at the trailer park. According to a record kept by Claxton, Claxton visited Elliott on May 21, 1987, at Elliott's home in the trailer park. Claxton's next communication with Elliott was on July 1, 1987, more than forty days after his last prior communication. On July 3, the judge's memorandum states, the plaintiff "was the victim of an attempted sexual assault by Elliott." Not stated in the memorandum, but established for summary judgment purposes by materials on file in the case, see Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974), is that the assault took place in the plaintiff's mobile home at the trailer park where Elliott was employed. Before going to bed on July 3, the plaintiff locked the doors of her mobile home. In connection with his employment, Elliott had keys to all the units in the park. Sometime after 10 P.M. Elliott entered the plaintiff's mobile home and assaulted her.
As we have indicated, the summary judgment materials do not establish the content of the February 17 telephone conversation between Claxton and Machesney. Indeed, they demonstrate controversy in that regard. According to Claxton's deposition, he identified himself as Elliott's parole officer, but told Machesney nothing about Elliott's criminal record except to confirm that he was on parole. According to Machesney's deposition and Machesney's employer's answers to interrogatories in connection with a companion case, however, Claxton made several misrepresentations about Elliott's criminal record, one of them being that Elliott's girl friend had been the complainant in the second rape case, that the conviction was under appeal, and that Elliott's conviction was likely to be reversed. According to that version of the telephone conversation, Claxton expressed the opinion that Elliott had been rehabilitated and was not dangerous, and that it would be nice for Elliott to be given a chance.
The plaintiff's case is based on two significantly different theories of negligence. The first theory is that, by not complying with several Parole Board rules, including his failure to meet with Elliott once a month, Claxton did not properly supervise Elliott. The second theory is that Claxton was negligent in recommending Elliott's continued employment at the trailer park and in giving incorrect information in support of that recommendation resulting in Elliott's having access to the plaintiff inside her mobile home. We shall conclude that, in view of St.1993, c. 495, § 57, which added clauses (e ) to (j ) to G.L. c. 258, § 10, and St.1993, c. 495, § 144, which made that amendment applicable to "all claims ... as to which an appeal is pending," the plaintiff's first theory of negligence is no longer viable, but that summary judgment for the defendant as to the second theory is inappropriate and reversal is required.
General Laws c. 258, § 10, St.1993, c. 495, § 57, provides in relevant part: "The provisions of sections one to eight, inclusive, shall not apply to:-- ... (j ) any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer." It is clear that the plaintiff's claim based on a theory of Claxton's negligent failure to supervise Elliott and to thereby prevent Elliott from gaining access to the plaintiff's mobile home where the alleged assault occurred, is barred by § 10(j ) if St.199...
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