Cady v. Plymouth-Carver Regional School Dist., PLYMOUTH-CARVER

• Decision Date: 09 December 1983
• Docket Number: PLYMOUTH-CARVER
• Citation: 17 Mass.App.Ct. 211,457 N.E.2d 294
• Parties: , 14 Ed. Law Rep. 1091 Rita CADY v. TheREGIONAL SCHOOL DISTRICT et al.
• Court: Appeals Court of Massachusetts

Page 294

457 N.E.2d 294

17 Mass.App.Ct. 211, 14 Ed. Law Rep. 1091

Rita CADY v. The PLYMOUTH-CARVER REGIONAL SCHOOL DISTRICT et al.

Appeals Court of Massachusetts Plymouth.

Argued Nov. 14, 1983.

Decided Dec. 9, 1983.

Robert A. Bartlett, Plymouth, for plaintiff.

Mark E. Cohen, Boston, for defendants.

Before DREBEN, KASS and WARNER, JJ.

KASS, Justice.

So much of the complaint as is in issue on appeal charges the school district, the members of its school committee, the school district superintendent, and the assistant superintendent (the "public defendants") with failure to protect and assist the plaintiff "in exercising her right to attend regular sessions" of high school after she had been worsted in a fracas with two other students, Ethel Robideaux and Patricia Ricardo. As the events which underlie the complaint occurred in January, 1981, liability, if any, rests on the Massachusetts Tort Claims Act, G.L. c. 258, inserted by St.1978, c. 512, § 15. By § 16 of that act, it applies to all causes of action arising on or after August 6, 1977.

The public defendants moved for summary judgment and their motions were allowed. Upon a determination that there was no just reason for delay (Mass.R.Civ.P. 54[b], 365 Mass. 821 [1974] ), summary judgment was entered for the prevailing parties, from which the plaintiff appeals. ¹ This left in the case the other two girls involved in the altercation, the dean of students, an unnamed physical education teacher, and an unnamed school nurse, all of whom were charged in other counts of the complaint with assault and battery upon the plaintiff.

Robideaux and Ricardo, the other two girls, were suspended and not allowed to return to school until the school committee had inquired into the incident and had given them permission to do so. At argument, her counsel was explicit that Cady's grievance had to do with the decision of the school authorities to allow Robideaux and Ricardo to come back to school without taking special precautions to protect Cady's person and psyche from further harm. She feared further encounters with Robideaux and Ricardo on the basis of remarks by other students that Robideaux and Ricardo were still "after [her]." Her fears led Cady to cut classes on January 29, 1981, and to seek the protection of her boyfriend. Their refuge was in a corridor or stairwell. This the school librarian duly reported to the dean of students, and the latter marched Cady "by the arm" into a school office. In that office there transpired an agitated scene which ultimately involved the dean, the school nurse, and a gym teacher. The upshot of it was that Cady refused to go back to school and received home tutoring for the rest of the school year.

In allowing the public defendants' motion for summary judgment, the judge did not state his reasons. We may surmise that he based his decision on the discretionary function exception which appears in § 10(b ) of the Tort Claims Act, since that is the basis on which both parties have briefed and argued the case on appeal. In the absence of a statement of reasons by the judge, we may consider any ground supporting the allowance of the public defendants' motion. Gallant v. Worcester, 383 Mass. 707, ---, Mass.Adv.Sh. (1981) 1310, 1312, 421 N.E.2d 1196 (1981). Sub-paragraph (b ) of § 10 of c. 258 provides that the Tort Claims Act shall not apply to "any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused."

To date, Massachusetts courts have not had occasion to construe the statutory "discretionary function" exception, although the concept of such an exception was extensively discussed in Whitney v. Worcester, 373 Mass. 208, 216-220, 366 N.E.2d 1210 (1977), an opinion which played a major role as an incentive to the Legislature to enact the Tort Claims Act. See also Cervone and Hardy: The Massachusetts Governmental Tort Liability Act and Its Discretionary Function Immunity: An Analysis and a Modest Proposal, 14 Suffolk L.Rev. 1251 (1980), which comments upon the elusive quality of the exception when subjected to analysis. The language of G.L. c. 258, § 10(b ), tracks very closely the cognate provision in the Federal Tort Claims Act, 28 U.S.C. § 2680(a) (1976), as to which considerable decisional gloss has developed since its enactment in 1946. In the leading case of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), which had to do with an explosion of fertilizer, the Court said that the discretion protected was that "of the executive or the administrator to act according to one's judgment of the best course." Id. at 34, 73 S.Ct. at 967. Discretionary function certainly includes what Mr. Justice Jackson, in dissent, described as " 'Cabinet level' or ... any other high-altitude thinking" (id. at 57, 73 S.Ct. at 979) and, Mr. Justice Jackson notwithstanding, later cases have established that the majority opinion in Dalehite did not reduce the reach of the Federal Tort Claims Act to "the misconduct of file clerks and truck drivers." Id. at 58 n. 12, 73 S.Ct. at 979 n. 12.

So, for example, the acceptance of a design of a pilot ejection seat which accidentally catapulted a test pilot into the air while the airplane was on the ground, was held not to involve a discretionary function in Moyer v. Martin Marietta Corp., 481 F.2d 585, 598 (5th Cir.1973). In response to a claim that a dose of polio vaccine had rendered the plaintiff a permanent quadriplegic, the Division of Biologic Standards of the United States Public Health Service could not set up the discretionary function defense because the acts complained of involved no policy or planning decision or judgment, but a failure to act carefully in accordance with delegated authority. Griffin v. United States, 500 F.2d 1059, 1066 (3d Cir.1974). Closer, slightly, to the case at bar, is Hendry v. United States, 418 F.2d 774 (2d Cir.1969), in which the court decided that the discretionary function exception did not bar an action asserting the negligence of a government psychiatrist and psychologist who had determined that the plaintiff was a paranoid schizophrenic who ought not to have his master's license (for a merchant vessel) reinstated. A factor alluded to by the court in Hendry was whether the government servants complained of were operating at a high or low level. Id. at 783. That criterion assisted the court in concluding in Beins v. United States, 695 F.2d 591, 600 (D.C.Cir.1982), that the Federal Air Surgeon was exercising a discretionary function when he made a judgment not to issue an airman's medical certificate, third class, to a pilot because of potential neurological and vision disorders. In Hendry, the government employees were to match facts against a recognized standard, while in Beins the task which confronted the Air Surgeon was to determine whether the pilot's disabilities made him unable to perform his duties. That function "left the Air Surgeon a range of policy judgment, albeit a narrow one." Beins v. United States, 695 F.2d at 604. As the Hendry and Beins opinions demonstrate, the distinction between a discretionary...