Brum v. Town of Dartmouth

• Decision Date: 21 January 1999
• Parties: , 131 Ed. Law Rep. 829 Elaine BRUM, administratrix, 1 v. TOWN OF DARTMOUTH & others. 2 Frances B. King, administratrix, 3 v. Commonwealth & another. 4
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1147

704 N.E.2d 1147

428 Mass. 684, 131 Ed. Law Rep. 829

Elaine BRUM, administratrix, ¹ v. TOWN OF DARTMOUTH & others. ²

Frances B. King, administratrix, ³ v. Commonwealth & another. ⁴

Supreme Judicial Court of Massachusetts, Suffolk and Bristol

Argued Nov. 2 and 6, 1998.

Decided Jan. 21, 1999.

John J. Davis, Boston, for town of Dartmouth & others.

James E. Riley, Jr., Boston, for Elaine Brum.

William J. Meade, Assistant Attorney General (Crispin Birnbaum, Assistant Attorney General, with him) for the Commonwealth & another.

Steven D. Frank, Milton (Paul K. Flavin with him) for Frances B. King.

The following submitted briefs for amici curiae:

Scott Harshbarger, Attorney General, & Howard R. Meshnick, Assistant Attorney General, for the Commonwealth.

Thomas J. Urbelis, Boston & Robert T. Ford, Boxford, for Massachusetts City Solicitors and Town Counsel Association.

Michael J. Long, Quincy, for Massachusetts Association of School Superintendents.

Leonard H. Kesten & Kurt B. Fliegauf, Boston, for Massachusetts Municipal Association.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ. ⁵

FRIED, J.

These cases raise issues under G.L. c. 258, § 10(b ) and (j ), immunity provisions of the Massachusetts Tort Claims Act. The defendants in Brum v. Dartmouth, 44 Mass.App.Ct. 318, 690 N.E.2d 844 (1998), sought further appellate review after the decision of the Appeals Court overturned the Superior Court judge's order granting the defendants' motion to dismiss. King vs. Commonwealth is before this court on direct appellate review of the Superior Court judge's denial of the defendants' motion to dismiss. The public employers in both cases are not liable as a matter of law.

I

King vs. Commonwealth.

In November, 1993, a judge released Dalton O. Simpson, who had been in custody on various criminal charges, on personal recognizance in response to an agreement between Simpson and the district attorney's office. Almost three months later, in February, 1994, Simpson shot and killed Boston police officer Berisford Wayne Anderson. Francis B. King, administratrix of Anderson's estate, filed suit against the Commonwealth and the district attorney's office, ⁶ seeking actual and punitive damages under the Massachusetts Tort Claims Act, G.L. c. 258, claiming that Anderson's conscious suffering and wrongful death were the result of an assistant district attorney's gross negligence in agreeing to Simpson's release and the district attorney's negligent supervision of the assistant district attorney. The Commonwealth and the district attorney's office moved to dismiss on the ground that they were shielded from suit by G.L. c. 258, § 10(b ) and (j ), which provide immunity from Torts Claims Act actions in certain circumstances. That motion was denied by a Superior Court judge in August, 1997.

Brum

vs. Dartmouth.

Jason Robinson, son of the plaintiff Elaine Brum, was stabbed to death at Dartmouth High School in April, 1993, by three armed individuals, at least one of whom was not a student at the school. Earlier that morning, the three assailants had been involved in a violent interaction at the school with two of Robinson's classmates and possibly with Robinson as well, but had left the school immediately afterward. After the altercation, the school principal detained Robinson's two classmates, but not Robinson, and one of the classmates informed the principal that the three individuals who had fled planned to return to the school and retaliate against him and his friends, including Robinson. Later that morning, the assailants, visibly armed, did return to the school and proceeded to a second floor classroom, unimpeded by school officials, where one of them stabbed Robinson to death. ⁷ Brum brought suit against the town of Dartmouth and several town and school officials under the Massachusetts Tort Claims Act, the Massachusetts Civil Rights Act and 42 U.S.C. § 1983 (1994), alleging that the defendants' negligent failure to maintain adequate security measures at the school and specific failure to protect her son in the presence of a known threat resulted in Robinson's death and violated his rights under the Fourteenth Amendment to the United States Constitution. The Superior Court's order granting the defendants' motion to dismiss based on the immunity provisions of § 10(j ) was subsequently overturned by the Appeals Court. See Brum v. Dartmouth, supra.

II

Interlocutory rulings, such as the Superior Court's order denying the motion to dismiss in King, generally are not appealable until the ultimate disposition of the case because they are not "final orders." See Kargman v. Superior Court, 371 Mass. 324, 329-330, 357 N.E.2d 300 (1976). In a limited class of cases, however, such an order is immediately appealable if it concerns an issue that is "collateral to the basic controversy," Maddocks v. Ricker, 403 Mass. 592, 600, 531 N.E.2d 583 (1988), and if "any later appeal would be futile" were the order to be presently executed. Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, 401 Mass. 26, 30, 513 N.E.2d 1277 (1987), cert. denied sub nom. Forastiere v. Breault, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). See Borman v. Borman, 378 Mass. 775, 780, 393 N.E.2d 847 (1979), quoting Vincent v. Plecker, 319 Mass. 560, 564 n. 2, 67 N.E.2d 145 (1946). Thus, "if an appeal from [final disposition of the case] would not be likely to protect the [party's] interests," the order is appealable. Maddocks, supra.

In Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, supra at 31, 513 N.E.2d 1277, which dealt with an immunity defense under 42 U.S.C. § 1983, this court distinguished between immunity from liability and immunity from suit, holding that only orders denying immunity from suit enjoy the benefit of the present execution rule. See Hopper v. Callahan, 408 Mass. 621, 624, 562 N.E.2d 822 (1990) (interlocutory appeal of denial of summary judgment motion asserting immunity); Matthews v. Rakiey, 38 Mass.App.Ct. 490, 493, 649 N.E.2d 770 (1995). The right to immunity from suit would be "lost forever" if an order denying it were not appealable until the close of litigation, and, thus, such an order meets the criteria of the rule of present execution. Id.

The Commonwealth's motion to dismiss in King was based on a claim of immunity under G.L. c. 258, § 10, which sets out several exceptions to the Massachusetts Tort Claims Act. An order denying such a motion is a "final order" meeting the criteria described above, and is immediately appealable. Section 10 of the Act confers immunity from suit, see Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 285, 475 N.E.2d 727 (1985), a right that is "lost as litigation proceeds past motion practice," Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). This court has noted the importance of "determining immunity issues early if immunity is to serve one of its primary purposes: to protect public officials from harassing litigation." Duarte v. Healy, 405 Mass. 43, 44 n. 2, 537 N.E.2d 1230 (1989). As the Supreme Court stated in Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), with respect to suits against immunized officials, "even such pretrial matters as discovery are to be avoided if possible, as '[i]nquiries of this kind can be peculiarly disruptive of effective government.' " Id. at 526, 105 S.Ct. 2806, quoting Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In light of the desirability of resolving immunity issues quickly, it is preferable to dispose of the question before discovery, as on a motion to dismiss. See Caron v. Silvia, 32 Mass.App.Ct. 271, 273, 588 N.E.2d 711 (1992). We do not in fact reach this immunity issue in King vs. Commonwealth, because we conclude the Commonwealth's motion to dismiss on other grounds should have been granted. This does not, however, deprive us of jurisdiction.

III

King claims that the Commonwealth and the Middlesex district attorney's office are liable under the Massachusetts Tort Claims Act, G.L. c. 258 (Act), for the wrongful death of Anderson because his death was proximately caused by the defendants' grossly negligent release of Simpson from custody. Regardless of whether the defendants acted negligently, they are not liable under the Act for Anderson's death because they were not ultimately responsible for Simpson's release.

King asserts that the defendants "allowed" Simpson to be released from custody on personal recognizance. A prosecutor, however, does not have the authority to allow or disallow the release of a prisoner. Although the prosecutor may make a recommendation concerning bail, only a judge, clerk, bail commissioner, or master in chancery has the authority to set bail or release an individual on personal recognizance. See G.L. c. 276, §§ 57, 58. Even assuming that the prosecutor had recommended that Simpson be released on personal recognizance, and even if a judicial officer may be more likely to release a prisoner on personal recognizance where the prosecutor recommends this course of action, the fact remains that the power to release the individual is ultimately in the hands of the judicial officer, not the prosecutor. At most, King may have been able to show that, but for the prosecutor's recommendation, the judge would not have released Simpson on his own recognizance and that Simpson would have been unable to meet any bail requirements placed on him and so would have remained in custody. Such a chain of causation is too long and contains too many speculative links to connect the assistant district attorney's action to the violence that ultimately befell Anderson. ⁸ Any effect the assistant district attorney's actions may have had in effectuating Simpson's release and subsequent killing of Officer Anderson is simply too remote to serve as a...