Cormier v. City of Lynn

• Decision Date: 27 February 2018
• Docket Number: SJC–12323
• Citation: 479 Mass. 35,91 N.E.3d 662
• Parties: Alyssa CORMIER & another v. CITY OF LYNN & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

479 Mass. 35

91 N.E.3d 662

Alyssa CORMIER & another¹

v.CITY OF LYNN & others.²

SJC–12323

Supreme Judicial Court of Massachusetts, Essex..

Argued November 9, 2017

Decided February 27, 2018

Douglas K. Sheff (Sara W. Khan, Frank J. Federico, Jr., & Donald R. Grady, Jr., also present), Boston, for the plaintiffs.

James P. Lamanna, Assistant City Solicitor (George S. Markopoulos, Assistant City Solicitor, also present) for city of Lynn.

Gary Buseck, Patience Crozier, & Joseph N. Schneiderman, for GLBTQ Legal Advocates & Defenders, amicus curiae, submitted a brief.

Present: Gants, C.J., Gaziano, Lowy, & Budd, JJ.

BUDD, J.

Bullying is a persistent, pernicious problem in our schools—it can cause emotional and, at times, physical harm. In this case, Matthew Mumbauer suffered both. Matthew was a public elementary school student in Lynn when he was pushed down a stairwell at school by a classmate. Matthew's fall led to a spinal injury, resulting in permanent paralysis. He and his parents, Alyssa Cormier and James Mumbauer (collectively, plaintiffs), brought claims against a number of defendants in connection with the incident and Matthew's subsequent medical care. A Superior Court judge allowed a motion to dismiss all claims against the city of Lynn, Lynn Public Schools (school district), and their public employees (collectively, public defendants).³ The Appeals Court affirmed that decision in an unpublished memorandum and order issued pursuant to its rule 1:28. Cormier v. Lynn, 91 Mass. App. Ct. 1101, 75 N.E.3d 1148 (2017).

We allowed the plaintiffs' motion for further appellate review, limited to whether the Massachusetts Tort Claims Act (act), G. L. c. 258, § 10 (j ), bars the plaintiffs from bringing claims against the public defendants in relation to this incident. Thus, the issue that we must decide is not whether the school was negligent for failing to act reasonably to prevent the bullying that led to Matthew's injuries; the complaint alleges that it was, and for purposes of this appeal, we accept that allegation as true. Rather, the issue on appeal is whether, under the act, the public defendants may be held liable for that negligence. We conclude that the act protects them from liability for such negligence.⁴

Background. The facts of this case, drawn from the complaint, are tragic. On March 10, 2008, then fourth grade student Matthew Mumbauer was pushed down a stairwell by a classmate while attending a public elementary school in Lynn. The incident occurred while the students were lining up at the beginning of the school day.

By late morning and throughout the afternoon, Matthew complained to teachers and classmates of "tingling and numbness" in his extremities. His symptoms were not reported to the school nurse or any other medical professionals. By the end of the school day, Matthew reported feeling like his legs were "dead weight" and he needed assistance to walk out of the school.

In the afternoon, Matthew's parents brought him to North Shore Medical Center (NSMC), where he was diagnosed with a sprain in his right foot and given pain medication. He stayed home from school the following day. On March 12, Matthew returned to NSMC because he was unable to move his hands or legs. Matthew was then transferred to Massachusetts General Hospital in Boston, where he was diagnosed with an injury to his spinal column and spinal cord, which resulted in the onset of quadriplegia

. He is permanently paralyzed and confined to a wheelchair.

The plaintiffs' complaint alleges that, prior to being pushed down the stairs in March, 2008, Matthew was subject to constant bullying at school by a small group of students, including the classmate who pushed Matthew. Matthew's mother had reported acts of harassment levied against him on multiple occasions during the 2007–2008 school year to school officials. Matthew had also complained to teachers and administrators at the school numerous times about bullying and harassment. The plaintiffs contend that the school did not enforce its own antibullying policies.

Discussion. "We review the allowance of a motion to dismiss de novo." Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011). "For the purposes of that review, we accept as true the facts alleged in the plaintiffs' complaint[ ] and any exhibits attached thereto, drawing all reasonable inferences in the plaintiffs' favor." Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591, 595, 71 N.E.3d 457 (2017).

1. Sovereign immunity and the act. For over a century, "the Commonwealth c [ould] not be impleaded in its own courts, except by its own consent" at common law. Troy & Greenfield R.R. v. Commonwealth, 127 Mass. 43, 46, 50 (1879).⁵ Municipalities were also largely immune from liability in tort.⁶ See Bolster v. Lawrence, 225 Mass. 387, 388–390, 114 N.E. 722 (1917) (summarizing circumstances in which municipalities were immune from liability in tort at common law); Mower v. Leicester, 9 Mass. 247, 249 (1812) (concluding that common law prohibits tort actions that are not statutorily authorized for "neglect of duties enjoined on them"). Public employees were always immune from liability for negligent omissions, or "nonfeasance." See Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. 591, 593, 276 N.E.2d 691 (1971) ; Trum v. Paxton, 329 Mass. 434, 438, 109 N.E.2d 116 (1952).

In Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618–619, 296 N.E.2d 461 (1973), and Whitney v. Worcester, 373 Mass. 208, 210, 366 N.E.2d 1210 (1977), we determined that the underlying basis for common-law sovereign immunity for both the Commonwealth and municipalities was "logically indefensible," and stated our intention to abrogate the doctrine of municipal immunity after the conclusion of the 1978 legislative session (providing the Legislature with an opportunity to set forth sovereign immunity policy for the Commonwealth and its political subdivisions through legislation). We reasoned that the common-law rules of sovereign immunity were incompatible with the fundamental principle in tort "that if there is tortious injury there is liability." Morash & Sons, Inc., supra at 621, 296 N.E.2d 461. At the same time, we acknowledged that public policy demanded some reasonable limits to governmental liability in order for taxpayers to avoid a potentially catastrophic financial burden. See id. at 623 & n.6, 296 N.E.2d 461.

Shortly before the end of the 1978 legislative session, the Legislature passed G. L. c. 258, the act,⁷ which allowed for limited tort liability for the Commonwealth and its political subdivisions. See St. 1978, c. 512. Section 2 of the act provides that public employers are liable for negligent or wrongful acts or omissions of public employees acting within their scope of employment. See G. L. c. 258, § 2.⁸

2. G. L. c. 258, § 10 ( j ). Although the act statutorily eliminates the immunity that governmental bodies would ordinarily enjoy under common law, it sets forth several exceptions to that general waiver of sovereign immunity. See G. L. c. 258, § 10 (a ) – (j ).

Section 10 (j ) bars "any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer."⁹ G. L. c. 258, § 10 (j ).

In other words,¹⁰ § 10 (j ), which "was intended to provide some substantial measure of immunity from tort liability" to public employers, eliminates government liability for a public employer's act or failure to act to prevent harm from the wrongful conduct of a third party unless the condition or situation was "originally caused" by the public employer. Brum v. Dartmouth, 428 Mass. 684, 692, 695, 704 N.E.2d 1147 (1999).

To have "originally caused" a condition or situation for the purposes of § 10 (j ), the public employer must have taken an affirmative action; a failure to act will not suffice.¹¹ Id. at 695–696, 704 N.E.2d 1147. In Brum, a public high school student was stabbed to death in a classroom during the school day by one of three armed individuals, after an earlier violent interaction involving the assailants. Id. at 686, 704 N.E.2d 1147. School officials had been informed that the assailants, who had left the school grounds after the altercation, planned to return and retaliate against certain students, including the child who was ultimately killed. Id. at 686–687, 704 N.E.2d 1147. The victim's mother brought suit against the municipality for its negligent failure to maintain adequate security measures at the school and failure to protect her son despite being made aware of a known threat. Id. at 687, 704 N.E.2d 1147. We concluded that § 10 (j ) precluded the municipality's liability for failure to prevent the killing absent an affirmative act by a public employee in the operation of its schools. Id. at 696, 704 N.E.2d 1147. See Bonnie W. v. Commonwealth, 419 Mass. 122, 125–126, 643 N.E.2d 424 (1994) (concluding that § 10 [j ] barred claim based on negligent failure to supervise parolee but permitted claim based on negligently recommending his employment).

Furthermore, for the "original cause" language under § 10 (j ) to apply, "the act must have materially contributed to creating the specific 'condition or situation' that resulted in the harm." Kent v. Commonwealth, 437 Mass. 312, 319, 771 N.E.2d 770 (2002). In Kent, we concluded that § 10 (j ) required dismissal of a claim against the parole board for its negligence in releasing a convicted murderer who, eight years later, shot a police officer. Id. at 313, 319–320, 771 N.E.2d 770. We concluded that the parole board's affirmative act did not materially contribute to the police officer's injuries.

Id. at 319– 320, 771 N.E.2d 770.

3. Application of § 10 ( j ) to plaintiffs' tort claims. The parties disagree as to whether the stated exception in § 10 (j ) applies to the...