Cantwell v. University of Massachusetts
| Decision Date | 23 March 1977 |
| Docket Number | No. 76-1187,76-1187 |
| Parties | Diane CANTWELL, Plaintiff, Appellant, v. UNIVERSITY OF MASSACHUSETTS and Michael Kasavana, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
John M. DeStefano, Jr., Richard M. Canzano, and DeStefano & Canzano, Woburn, Mass., on brief for plaintiff, appellant.
Francis X. Bellotti, Atty. Gen., and W. Channing Beucler, Asst. Atty. Gen., Boston, Mass., on brief for defendants, appellees.
Before COFFIN, Chief Judge, and ALDRICH and CAMPBELL, Circuit Judges.
This is an appeal from the district court's dismissal of a diversity action for personal injury. According to her complaint, and deposition, the claim is that plaintiff Diane Cantwell, a nationally known gymnast, was a member of the gymnastics team of the defendant University of Massachusetts. On the day in question, defendant Kasavana, the assistant coach, directed her to do her mount onto the uneven parallel bars. It was, according to plaintiff, Kasavana's responsibility to stand next to the gym equipment as a "spotter" in order to catch anyone who fell. As she began her run to the bars, plaintiff saw Kasavana standing inside the guy wires attached to the equipment, in the spotter's position.
During the first part of her mount, plaintiff was supposed to switch her grip, and when she failed to accomplish this she fell, suffering severe injuries. As she was falling, plaintiff looked over and saw Kasavana standing outside of the guy wires, beyond reach. The district court dismissed the action as to the University, a state school, on the basis of sovereign immunity, and as to Kasavana on the ground that, as a public official, he was immune from liability for nonfeasance. Plaintiff appeals.
In 1973, the Massachusetts Supreme Judicial Court held that it possessed the authority to abolish the doctrine of governmental immunity, and did so in one limited area, but the court declined to abrogate the doctrine altogether, stating that "the Legislature should be afforded an opportunity to do this by a comprehensive statute." Morash & Sons, Inc. v. Commonwealth, 1973, 363 Mass. 612, 623, 296 N.E.2d 461, 468. Although the legislature has not yet taken such action, the court has continued to decline to change the doctrine judicially. Hannigan v. New Gamma-Delta Ch. of K.S. Frat., Inc., Mass.Adv.Sh. (1975) 1416, 327 N.E.2d 882; Caine v. Commonwealth, Mass.Adv.Sh. (1975) 2990, 335 N.E.2d 340; Piotti v. Commonwealth, Mass.Adv.Sh. (1976) 1416, 348 N.E.2d 425. Plaintiff contends "that if the facts of the present case were before the Supreme Judicial Court, that Court would abrogate the doctrine of sovereign immunity and permit the plaintiff's cause of action to stand." Conceivably, the court might so conclude, but it is not for us to make up its mind for it. Our duty is to interpret and apply state law as it now is.
Alternatively, plaintiff asks us to certify this question to the Massachusetts court, pursuant to Supreme Judicial Court Rule 3:21, in order to afford it the opportunity to change. This is a misconception of the purpose of certification, which is not to permit a party to seek to persuade the state court to change what appears to be present law. Tarr v. Manchester Ins. Corp., 1 Cir., 1976, 544 F.2d 14. Furthermore, the bar should take notice that one who chooses the federal courts in diversity actions is in a peculiarly poor position to seek certification. We do not look favorably, either on trying to take two bites at the cherry by applying to the state court after failing to persuade the federal court, or on duplicating judicial effort. We decline to certify, and hold that the district court correctly dismissed the suit against the University of Massachusetts.
With respect to the individual defendant, under Massachusetts law, "a public officer engaged wholly in the performance of...
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