Brum v. Town of Dartmouth

• Decision Date: 25 February 1998
• Docket Number: No. 96-P-687,96-P-687
• Citation: 44 Mass.App.Ct. 318,690 N.E.2d 844
• Parties: , 123 Ed. Law Rep. 1260 Elaine BRUM 1 v. TOWN OF DARTMOUTH & others. 2
• Court: Appeals Court of Massachusetts

Page 844

690 N.E.2d 844

44 Mass.App.Ct. 318, 123 Ed. Law Rep. 1260

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

No. 96-P-687.

Appeals Court of Massachusetts,

Bristol.

Argued June 11, 1997.

Decided Feb. 25, 1998.

Further Appellate Review Granted 28, 1998.

Todd M. Reed, Boston, for Town of Dartmouth & others.

Leonard H. Kesten, Boston, for John Nunes & others.

James E. Riley, Jr., Boston, for plaintiff, submitted a brief.

Before KASS, LAURENCE and LENK, JJ.

LAURENCE, Justice.

Jason Robinson, a minor attending Dartmouth High School, was stabbed to death by an intruder while he sat in his social studies class. His mother, Elaine Brum, commenced this action against the town of Dartmouth and school and other municipal officials seeking damages for the violation of Robinson's Federal and State civil rights, for Robinson's wrongful death, and on account of the town's negligent failure to provide security at the high school.

The defendants filed a motion to dismiss, pursuant to Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974), or in the alternative for summary judgment, pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). A judge of the Superior Court treated the defendants' motion as one to dismiss and allowed it on the basis of the allegations of the complaint. We reverse that judgment insofar as it dismissed the negligence claims against the town but otherwise affirm the judgment.

1. Pertinent facts. ³ The complaint alleges that on April 12, 1993, shortly before the beginning of classes at Dartmouth High School at 8:00 A.M., two groups of youths, including several high school students, were involved in a violent altercation on the school premises. Tensions between the two groups had escalated during the prior week and had erupted in a physical confrontation on the previous evening. School officials detained Shawn Pina and another student for their role in the altercation at school on April 12th. Pina's adversaries, Nigel Thomas, Carter Reed, and Gator Collet, at least one of whom was not enrolled in the high school, had immediately fled from the scene. Robinson, a friend of Pina (whose role in the school melee was unclear), had gone to class after the incident.

Pina warned Principal Donald King that Thomas, Reed and Collet had threatened to return to the high school to retaliate against him and his friends, including Robinson. Shortly after 8:00 A.M., King and other school officials witnessed the trio enter the front door of the high school. They were openly brandishing weapons, including two knives, a billy club, a baseball bat and a length of pipe. The school officials did nothing to confront or obstruct the three youths, who proceeded unimpeded to a second-floor classroom. Collet, Reed, and possibly Thomas entered the classroom believing that Pina would be found inside. When they failed to find Pina, they instead attacked and stabbed Robinson, who died in the classroom.

The complaint also alleged that, despite the statutory mandate of G.L. c. 71, § 37H, requiring every school district to adopt and publish policies, including standards and procedures to assure school building security and the safety of students, the defendants had neither adopted nor published any such security and safety policies. They had in fact done nothing to implement any security or safeguards at Dartmouth High School beyond hanging a "No Trespassing" sign near the front door containing a notice that visitors should go to the school office. In particular, the front door was at all relevant times unlocked and unsecured. Only after the murder of Robinson did the defendants acknowledge the need for the creation, implementation and enforcement of security policies, procedures, and safeguards, and take concrete steps to establish security measures at the high school.

2. Negligence under G.L. c. 258. The plaintiff's negligence claims, brought pursuant to the wrongful death statute, G.L. c. 229, § 2, ⁴ and the Massachusetts Tort Claims Act (Act), G.L. c. 258, were based on two theories: (1) the responsible municipal and school officials had negligently failed to institute any security measures to protect the high school students; and (2) the principal had negligently failed to respond to the foreseeable (and explicitly forewarned) threat of harm presented by the youths who murdered Robinson. The judge concluded that on the facts alleged the town was immune from liability under the Act. He ruled that the adoption of security measures was a discretionary function within § 10(b ) (see note 7, infra ), and that the school officials' failure to act fell within the "public duty" rule of § 10(j ) (see note 9, infra, and related text). ⁵ We conclude, to the contrary, that the plaintiff's negligence claims are not foreclosed by either statutory provision.

(a) Standard for rule 12(b)(6) motion. While the judge referred to the proper standard applicable to motions to dismiss, he did not apply it in the exceedingly liberal manner mandated in our cases. We elaborate the standard because of its overriding relevance:

"Under Mass.R.Civ.P. 12(b)(6), 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim.' Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977).... 'Furthermore, the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor, are to be taken as true.' Ibid. ... '[A] complaint is sufficient against a motion to dismiss if it appears that the plaintiff may be entitled to any form of relief, even though the particular relief he has demanded and the theory on which he seems to rely may not be appropriate.' Nader v. Citron, 372 Mass. at 104, 360 N.E.2d 870."

New England Insulation Co. v. General Dynamics Corp., 26 Mass.App.Ct. 28, 29-30, 522 N.E.2d 997 (1988).

These generous and indulgent criteria have reduced a plaintiff's obstacle in surmounting a rule 12(b)(6) motion to dismiss for failure to state a claim to a minimal hurdle. Bell v. Mazza, 394 Mass. 176, 183, 184, 474 N.E.2d 1111 (1985). Connerty v. Metropolitan Dist. Commn., 398 Mass. 140, 143, 495 N.E.2d 840 (1986). Disend v. Meadowbrook Sch., 33 Mass.App.Ct. 674, 676, 604 N.E.2d 54 (1992). All that a plaintiff need do to resist such a motion is present a complaint that does no more than "sketch[ ] the bare silhouette of a cause of action." Coolidge Bank & Trust Co. v. First Ipswich Co., 9 Mass.App.Ct. 369, 371, 401 N.E.2d 165 (1980). The plaintiff is to be given the benefit of any doubt, Kipp v. Kueker, 7 Mass.App.Ct. 206, 210, 386 N.E.2d 1282 (1979), and must prevail over the motion unless it appears with certainty that he is entitled to no relief under any combination of facts that could be proved in support of his claims. Flattery v. Gregory, 397 Mass. 143, 145-146, 489 N.E.2d 1257 (1986). Spinner v. Nutt, 417 Mass. 549, 550, 631 N.E.2d 542 (1994). Bahceli v. Bahceli, 10 Mass.App.Ct. 446, 451, 409 N.E.2d 207 (1980).

In passing on a rule 12(b)(6) motion, the court is not to consider the unlikelihood of the plaintiff's ability to produce evidence to support otherwise legally sufficient complaint allegations, Mmoe v. Commonwealth, 393 Mass. 617, 619-620, 473 N.E.2d 169 (1985); Goldman v. Belden, 754 F.2d 1059, 1066, 1067 (2d Cir.1985), however improbable appear the facts alleged, Jenkins v. Jenkins, 15 Mass.App.Ct. 934, 444 N.E.2d 1301 (1983); Reardon v. Commissioner of Correction, 20 Mass.App.Ct. 946, 947, 479 N.E.2d 741 (1985), and "notwithstanding expressions of denial and incredulousness as to ultimate proof by the defendants." Eyal v. The Helen Bdcst. Corp., 411 Mass. 426, 431, 583 N.E.2d 228 (1991). That the plaintiff alleges claims arising out of arguably discretionary actions by governmental defendants, or claims that otherwise appear to have little chance of success in light of the defenses under the Act, does not preclude successful resistance to a motion to dismiss. See Harry Stoller & Co. v. Lowell, 412 Mass. 139, 142-143, 587 N.E.2d 780 (1992); Jean W. v. Commonwealth, 414 Mass. 496, 513, 610 N.E.2d 305 (1993).

The plaintiff's claims here founded on the Act satisfy these extremely lenient standards and should have been ruled sufficient to resist the preliminary (and premature, see Kirkland Constr. Co. v. James, 39 Mass.App.Ct. 559, 564-565, 658 N.E.2d 699, [1995] [Brown, J. concurring ⁶] ) challenge of undeveloped defenses based upon sections 10(b ) and 10(j ) of the Act.

b) Section 10(b). The Act provides that a public employer can be liable for damages "caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances...." G.L. c. 258, § 2. Public employers are not, however, liable for claims that result from the performance of discretionary functions. G.L. c. 258, § 10(b ). ⁷ The first step in determining whether a claim is foreclosed by the discretionary function exception in § 10(b ) is to decide "whether the [government] actor had any discretion to do or not to do what the plaintiff claims caused him harm." Harry Stoller & Co. v. Lowell, 412 Mass. at 141, 587 N.E.2d 780. If the actor "had no discretion because a course of conduct was prescribed by a statute, regulation, or established agency practice, a discretionary function exception to governmental liability has no role to play in deciding the case." Ibid. The second step is to determine whether the discretionary conduct involves policy making or planning, the only type of discretion immunized by § 10(b ). Ibid. We think the judge erred in reading the complaint as attacking "the nature and extent of school building and security" and the school committee's "failure to adopt appropriate or adequate policies" and "thus too readily conclud[ed] that the [defendant] satisfied the first part...