Cyran v. Town of Ware

• Decision Date: 19 August 1992
• Citation: 597 N.E.2d 1352,413 Mass. 452
• Parties: Frank J. CYRAN & another 1 v. TOWN OF WARE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1352

597 N.E.2d 1352

413 Mass. 452

Frank J. CYRAN & another ¹ v. TOWN OF WARE.

Supreme Judicial Court of Massachusetts Hampshire.

Argued Jan. 9, 1992.

Decided Aug. 19, 1992.

James F. Ewen, Alan D. Sisitsky, with him, for plaintiffs.

Thomas J. Curley, Jr., for defendant.

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

GREANEY, Justice.

By their amended complaint filed in the Superior Court, the plaintiffs sought damages from the defendant, the town of Ware, under the Massachusetts Tort Claims Act, G.L. c. 258, § 2 (1990 ed.), for the alleged gross negligence of the town's firefighters. The amended complaint states the following. On July 15, 1989, a fire broke out in a two-family wood frame residential building owned by the plaintiffs at 35 South Street in Ware. The Ware fire department was called; its firefighters responded and fought the fire, but they did so "grossly negligently, unskillfully and carelessly ... [and] failed to attenuate the patent and obvious risk of an immediate and foreseeable physical injury to the property." As a result, the plaintiffs "suffered great loss and damage to [their] real and personal property." Ware filed a motion to dismiss the complaint pursuant to Mass.R.Civ.P 12(b)(6), 365 Mass. 754 (1974). A judge of the Superior Court allowed the motion. ² The plaintiffs appealed from the ensuing judgment, and we transferred the case to this court on our own initiative.

In a memorandum and order filed in connection with his allowance of the motion to dismiss, the judge stated: "I agree with the defendant that [the plaintiffs' case is] governed by the decision of the Supreme Judicial Court in Appleton v. Hudson, 397 Mass. 812 [494 N.E.2d 10] (1986). The obligation to provide adequate fire protection in a town, like the obligation to provide adequate police protection in a neighborhood, is precisely the type of general duty which the 'public duty' rule protects. (Id. at 816 )." The Chief Justice, Justices Nolan, Lynch, O'Connor, and the author of this opinion agree with this ruling and affirm the judgment.

To have a claim, "the plaintiff[s] must show that the [town's fire department] owed [them] a special duty of care beyond the duty owed to the public at large. Nickerson v. Commonwealth, [397 Mass.] 476, 478 [492 N.E.2d 90] (1986). Ribeiro v. Granby, 395 Mass. 608, 613 [481 N.E.2d 466] (1985). Dinsky v. Framingham, 386 Mass. 801, 810 [438 N.E.2d 51] (1982)." Appleton v. Hudson, supra 397 Mass. at 815, 494 N.E.2d 10. The alleged presence of negligence is not enough. In this area, "[n]egligence in a vacuum, as it were, is not actionable because it implicates no [special] duty to ... person[s] such as the plaintiff[s]." Nickerson v. Commonwealth, supra 397 Mass. at 478, 492 N.E.2d 90. In the absence of such a duty, a governmental entity is protected by the public duty rule. That rule is based on the principle "that the employment duties of public employees are generally owed only to the public as a whole and not to private individuals," Onofrio v. Department of Mental Health, 408 Mass. 605, 609, 562 N.E.2d 1341 (1990), S.C., 411 Mass. 657, 584 N.E.2d 619 (1992), and, consequently, the discharge of such duties will not give rise to a private cause of action. We have applied the public duty rule to bar governmental liability unless the statutes or contracts governing the public employee's duties justifiably allow the conclusion that a special duty was owed. See, e.g., Appleton v. Hudson, supra; Nickerson v. Commonwealth, supra; Ribeiro v. Granby, supra; Dinsky v. Framingham, supra. In two cases, Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984), and A.L. v. Commonwealth, 402 Mass. 234, 521 N.E.2d 1017 (1988), about which more will be said later, there existed circumstances giving rise to a special relationship which created a special duty on the part of the public employees to enforce the law and prevent the harmful activity of third persons. Whether a special duty exists presents a question of law, Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153, 156, 445 N.E.2d 1053 (1983), which necessitates examination of the facts in light of existing social values and customs and appropriate public policy. Schofield v. Merrill, 386 Mass. 244, 246-247, 435 N.E.2d 339 (1982).

This case falls within the public duty rule. "As a general rule no liability attaches for failure to use due care in carrying out general governmental functions such as police or fire protection ... because the duty of due care is owed to the general public and not to any specific individual...." Dinsky v. Framingham, supra 386 Mass. at 807, 438 N.E.2d 51, quoting Tuffley v. Syracuse, 82 A.D.2d 110, 114, 442 N.Y.S.2d 326 (1981). The fire at the plaintiffs' building was brought about by conditions in which no employee of the Ware fire department played a role. The Ware firefighters only responded to a situation which had not been created by them. No statute has been cited which could be logically construed to impose on the Ware fire department a duty to protect the plaintiffs' building in a different way from the buildings of others. No assurances are alleged to have been given to the plaintiffs that would support a reasonable belief that they would receive flawless firefighting or greater fire protection than that afforded to Ware's inhabitants as a whole. Society would not favor, and public policy does not support, a rule which would expose a municipality to liability for damages every time its fire department does not, in a plaintiff's view, fight a fire satisfactorily. In busy urban areas such exposure could be limitless, and in extreme circumstances (as recent events in Los Angeles illustrate), the potential cost of such governmental liability could be catastrophic.

The duty of Ware's firefighters was, in substance, a general duty of fire protection owed equally to all the town's residents. That duty encompassed only an obligation on the part of the firefighters to respond to the fire at the plaintiffs' building and to deal with it as resources and training permitted and advised. Thus, if the negligence of the firefighters contributed at all to the plaintiffs' damages, it did so only indirectly, by reason of the firefighters' failure adequately to perform under their contracts of employment. In the circumstances, G.L. c. 258 does not provide a basis for liability on the part of Ware. ³ See Appleton v. Hudson, supra 397 Mass. at 816, 494 N.E.2d 10. See also Steitz v. Beacon, 295 N.Y. 51, 54-55, 64 N.E.2d 704 (1945) (municipality not liable under language of New York Court of Claims Act, similar to G.L. c. 258, § 2, to protect property from destruction by a fire which was started by another); LaDuca v. Amherst, 53 A.D.2d 1011, 1011, 386 N.Y.S.2d 269 (1976) ("General allegations of negligent conduct at the scene of [a] fire are insufficient to sustain a cause of action ... against a municipality"). Cf. Reynolds Boat Co. v. Haverhill, 357 Mass. 668, 260 N.E.2d 176 (1970). ⁴

What has been said disposes of the appeal. Justices Nolan, Lynch and O'Connor wish to go further and maintain that the case presents an appropriate occasion in which to overrule Irwin v. Ware, supra, and A.L. v. Commonwealth, supra, decisions with which they have been dissatisfied. The Chief Justice, Justices Wilkins and Abrams, and the author of this opinion do not agree.

General Laws c. 258, § 2, provides, in pertinent part, 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." We have found liability under this standard when the conduct of the public employee is the same as, or similar to, conduct which, in the case of a private tortfeasor, would violate a common law or statutory duty of care. See, e.g., Mamulski v. Easthampton, 410 Mass. 28, 570 N.E.2d 1028 (1991) (wrongful death; town's responsibility similar to the duty owed at common law by landowner and to municipal liability for death due to defect in highway); Onofrio v. Department of Mental Health, 408 Mass. 605, 610, 562 N.E.2d 1341 (1990) (liability based on the defendant's direct act of placing a dangerous person in the plaintiff's home, and thus "grounded in the general rule that one who takes action ordinarily owes to everyone else who may be affected thereby a duty to act reasonably"). See also Doherty v. Belmont, 396 Mass. 271, 273, 485 N.E.2d 183 (1985); Sanker v. Orleans, 27 Mass.App.Ct. 410, 413-414, 538 N.E.2d 999 (1989). As previously discussed, we have otherwise not found liability in the absence of a basis to conclude that an individual plaintiff was owed a special duty of care not owed the public at large.

A plaintiff can show the existence of a special duty by relying on a public employee's violation of a statute which expresses a legislative intent to permit suit by a private individual in that plaintiff's circumstances, see Dinsky v. Framingham, supra 386 Mass. at 809, 438 N.E.2d 51, or by showing that the plaintiff has reasonably relied to his or her harm on assurances of care given by a public employee. See, e.g., DeLong v. County of Erie, 89 A.D.2d 376, 455 N.Y.S.2d 887 (1982), aff'd, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717 (1983). These bases for suit, however, are not necessarily exclusive.

In Irwin v. Ware, supra, we concluded that the defendant's police officers had acted in violation of their responsibilities by failing to remove an intoxicated driver from a public highway. Important to the decision were several statutes that established a police officer's obligations in the circumstances. These statutes could fairly be construed as evincing a legislative intent to protect private individuals like the plaintiffs in Irwin from the harm posed by the intoxicated driver. ⁵...