Carleton v. Town of Framingham

• Decision Date: 12 September 1994
• Citation: 418 Mass. 623,640 N.E.2d 452
• Parties: Mary G. CARLETON, administratrix, 1 v. TOWN OF FRAMINGHAM (and a companion case). 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 452

640 N.E.2d 452

418 Mass. 623

Mary G. CARLETON, administratrix, ¹ v. TOWN OF FRAMINGHAM (and a companion case). ²

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued May 3, 1994.

Decided Sept. 12, 1994.

Philip B. Benjamin, Framingham (Aaron K. Bikofsky, Town Counsel, with him), for Town of Framingham.

Albert B. Zabin, Boston, for Mary G. Carleton.

Joseph H. Burke, Jr., Boston, for Nancy Kelley.

Scott Harshbarger, Atty. Gen., Michelle A. Kaczynski & Eleanor Coe Sinnott, Asst. Attys. Gen., for the Com., amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH, O'CONNOR, and GREANEY, JJ.

WILKINS, Justice.

Lynn Marie Carleton and Arthur T. Kelley, Jr., were killed on November 10, 1985, when a speeding motor vehicle operated by Garret Nagle, a drunk driver, failed to negotiate a curve on Route 30 in Wayland and struck the vehicle in which the plaintiffs' decedents were traveling. The plaintiffs' actions are based on the claim that Charles Cooper, a Framingham police officer, had been negligent in permitting Nagle to operate his motor vehicle after Cooper encountered Nagle at a Dunkin' Donuts store in Framingham shortly before the accident.

On January 11, 1991, a jury answered special questions, concluding that Cooper had been negligent in three respects: (1) he negligently failed to conduct a threshold investigation of Nagle; (2) he negligently failed to place Nagle in protective custody; and (3) he negligently parked his cruiser across the street and waited for Nagle to drive away from Dunkin' Donuts. Cooper, with his vehicle's lights flashing, pursued Nagle, but he abandoned the pursuit when Nagle did not stop. The jury found in answer to a fourth question that the town's negligence was a proximate cause of the deaths. The fourth question, agreed to by counsel, did not seek separate answers concerning causation with respect to each theory of negligence.

The town's appeal from February, 1991, judgments against it, each in the amount $100,000, raised a number of issues. In a June 29, 1993, opinion which carefully and fully sets forth the evidence on which liability could have been found, the Appeals Court held that the public duty rule did not bar recovery. Officer Cooper "had the same obligation as the officer in Irwin v. Ware, [392 Mass. 745, 467 N.E.2d 1292 (1984) ], to enforce the statutes with respect to intoxicated operators of motor vehicles and could anticipate that his failure to take action to remove a drunk driver from the highway could result in immediate and foreseeable physical injury to a member of the public." Carleton v. Framingham, 34 Mass.App.Ct. 686, 690, 615 N.E.2d 588 (1993). All the Justices participating in this opinion agree that at least a portion of the plaintiffs' claims are not barred by the common law public duty rule which they espouse. ³

After deciding that the common law public duty did not provide immunity to the town, the Appeals Court went on to conclude that Cooper's decision not to conduct a threshold investigation of Nagle involved a discretionary function which, under G.L. c. 258, § 10(b) (1992 ed.), could not be the basis of municipal liability. Id. at 690-691, 615 N.E.2d 588. It further concluded that, although the decision not to place Nagle in protective custody was not the exercise of a discretionary function (Id. at 691, 615 N.E.2d 588) and although the evidence was sufficient to support the finding of negligence at least on the protective custody theory of liability (id. at 691-692, 615 N.E.2d 588), there had to be a new trial. The Appeals Court reasoned that the general question on causation ("Was the negligence of the Town ... a proximate cause of the death[s]?") could not support the verdicts because that court had rejected one theory on which negligence was found and could not "ascertain on which theory the jury relied." Id. at 694-695, 615 N.E.2d 588.

One month after the Appeals Court opinion was released we allowed the plaintiffs' application for further appellate review. The plaintiffs challenge the Appeals Court's holding that Officer Cooper's failure to conduct a threshold inquiry was a discretionary function within the meaning of G.L. c. 258, § 10(b), and argue that, in any event, the generally stated proximate cause question was both agreed to by the parties and given to the jury without objection. Because of overriding, supervening action by the Legislature, we need not resolve these (and other) issues.

We do not wish, however, to leave the Appeals Court's discretionary function holding without comment. We agree with the Appeals Court that Officer Cooper was not exercising a discretionary function when he decided not to place Nagle in protective custody (id. at 691, 615 N.E.2d 588), but doubt that Cooper was engaged in a protected discretionary function when he decided not to conduct a threshold investigation of Nagle.

Discretionary acts and decisions warranting immunity must be based on considerations of planning and public policy. Harry Stoller & Co. v. Lowell, 412 Mass. 139, 146, 587 N.E.2d 780 (1992). Thus, in Irwin v. Ware, 392 Mass. 745, 753, 467 N.E.2d 1292 (1984), this court said that "[n]o reasonable basis exists for arguing that a police officer is making a policy or planning judgment in deciding whether to remove from the roadways a driver who he knows is intoxicated."

The facts known to Officer Cooper indicate that he was not making a policy or planning judgment in deciding not to inquire further of Nagle concerning his circumstances. ⁴ No policy or planning consideration concerning law enforcement objectives or resources appears to have been involved in Cooper's failure to pursue what Nagle's circumstances were and what Nagle was going to do. Our conclusion is not inconsistent with what we recently said in Sena v. Commonwealth, 417 Mass. 250, 256, 629 N.E.2d 986 (1994), which involved "decisions of law enforcement officers regarding whether, when, how, and whom to investigate, and whether and when to seek warrants for arrest." That case involved the conduct of police officers in investigating a criminal matter and in pursuing arrest warrants over the course of many months, not a police officer immediately confronted with a known drunk in a place where almost all the customers arrive by motor vehicle.

On January 14, 1994, after the case had been entered in this court on further review but before it was argued, St.1993, c. 495, was approved. Among its provisions was an amendment (the amendment) of G.L. c. 258, § 10, made by § 57, which added to § 10 what in effect is a statutory public duty rule providing governmental immunity. The amendment lists various claims to which the provisions of G.L. c. 258, §§ 1 to 8, shall not apply. By St.1993, c. 495, § 144, the amendment is said to "apply to all claims upon which a final judgment has not entered, or as to which an appeal is pending or the appeal period has not expired, and to all claims upon which suit is filed after the effective date of this act" (emphasis supplied). The amendment was no doubt adopted in response to opinions in Jean W. v. Commonwealth, 414 Mass. 496, 610 N.E.2d 305 (1993), which, taken collectively, indicated that, unless the Legislature acted to the contrary by the end of its next session, this court would abandon application of its common law public duty rule. Id. at 510-511, 610 N.E.2d 305 (Liacos, C.J., concurring); id. at 514, 610 N.E.2d 305 (Wilkins, J., concurring, joined by Abrams, J.); id. at 523-524, 610 N.E.2d 305 (Greaney, J., concurring).

Because of the legislative intention that the amendment apply to pending cases and claims, this court invited the parties in this case, and in five other cases on appeal to this court that might be affected by the amendment, to file supplemental briefs discussing the applicability of the amendment to their respective cases. ⁵ One question is whether the terms of the amendment apply to the particular claim or claims asserted so as to provide governmental immunity. A second question, which arises if the statute purports to provide governmental immunity, is whether the statute may constitutionally do so. ⁶

The town argues that the plaintiffs' three theories of liability are foreclosed by the amendment. The town relies in part on G.L. c. 258, § 10(h), which, it argues, bars claims based on the "failure to provide adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law," with exceptions not applicable here. ⁷ The plaintiffs do not discuss this clause (h) of § 10 in their briefs. The plaintiffs' theories of liability all depend on the alleged failure of the police to prevent Nagle's criminal conduct. In the words of clause (h), these claims are based on the "failure to provide adequate police protection," to "prevent the commission of crimes," and to "enforce [a] law." Aside from its exceptions (inapplicable here), clause (h) seeks to immunize a municipality when the criminal acts of a third person are a cause of a plaintiff's harm, and the police were negligent in not preventing that criminal conduct. We conclude that clause (h) purports to immunize the town in the circumstances of this case.

Because the amendment by its terms provides immunity in this case and because each justice participating in this opinion agrees, at the very least, that the plaintiffs are entitled to a new trial if the amendment may not constitutionally be applied to them, we reach the question whether the application of the amendment to existing causes of action violates the plaintiffs' State or Federal constitutional rights.

We consider first the principal constitutional claim: whether the application of the amendment retroactively to abrogate the plaintiffs' rights against the town denies them due process of law guaranteed by arts. 1, 10, and 12 of the...