Eyssi v. City of Lawrence

• Decision Date: 26 August 1993
• Citation: 416 Mass. 194,618 N.E.2d 1358
• Parties: Elaine EYSSI et al. 1 v. CITY OF LAWRENCE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1358

618 N.E.2d 1358

416 Mass. 194

Elaine EYSSI et al. ¹ v. CITY OF LAWRENCE.

Supreme Judicial Court of Massachusetts,

Essex.

Argued May 6, 1993.

Decided Aug. 26, 1993.

Robert J. O'Sullivan, Asst. City Solicitor, for defendant.

John B. Flemming, Daniel J. Gibson, Boston, with him, for plaintiffs.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Chief Justice.

On September 21, 1986, Officer Jacob Eyssi of the Lawrence police department was assigned to patrol the southeast sector of the city alone in a police cruiser. At 6:25 A.M., police received a call reporting an incident of domestic violence at 203 Crawford Street. The police dispatcher directed Officer Eyssi to attend to that incident. The dispatcher also directed Officer William Brown, who patrolled a different sector of the city alone in a police cruiser, to back up Eyssi.

Eyssi was the first to arrive at the reported address. While Eyssi was still in his cruiser, a woman (Lopez) ran out of 203 Crawford Street with a baby in her arms. Lopez circled Eyssi's cruiser a number of times, screaming at him to come out of the automobile. As Eyssi did so, a man (Vasquez) came out of 203 Crawford Street and proceeded toward Lopez. Eyssi told Vasquez to "take it easy," at which point Vasquez turned away from Lopez and attacked Eyssi. Vasquez knocked Eyssi down and repeatedly banged his head against the ground.

The beating stopped when a neighbor (Grillo) came out of her apartment screaming for help and yelling at Vasquez to let go. Vasquez let go of Eyssi and began "leaping" toward Grillo. At that time, another neighbor (Roeger) came running up Crawford Street. When he heard Roeger coming, Vasquez told Lopez, "I'm going to come back and finish you," and fled from the scene.

Grillo and Roeger found Eyssi lying on the ground unconscious. They called the police. This call was received at approximately 6:37 A.M., more than ten minutes after Eyssi and Brown were dispatched to 203 Crawford Street. Brown had not yet arrived at the scene. ² Eyssi was taken to Lawrence General Hospital. He underwent an emergency craniotomy, in the course of which macerated brain tissue was removed. The damaged parts of Eyssi's brain controlled his social awareness, his ability to get along with others, his motivation, and his inhibition of inappropriate behavior and speech.

On September 2, 1988, Eyssi, his wife (Elaine), and his two minor children (Stephanie and Sharon), commenced the present action against the city of Lawrence in the Superior Court. The plaintiffs' complaint alleged that Brown negligently failed to "promptly respond as the back-up unit to Jacob Eyssi in violation of ... the Rules and Regulations of the Lawrence Police Department." The complaint further alleged that the department knew or should have known that Brown would fail to perform his duty in the circumstances. The complaint prayed for damages pursuant to the Massachusetts Tort Claims Act, G.L. c. 258, § 2 (1992 ed.). Count I requested damages for Eyssi's injuries. Count II requested damages for Elaine's loss of her husband's consortium. Counts III and IV requested damages for Stephanie's and Sharon's loss of their father's consortium. ³

The case was tried before a jury between May 28 and June 1, 1992. In addition to evidence of the facts set forth above, the plaintiffs introduced evidence indicating that Brown negligently failed to back up Eyssi. When Brown received the dispatch call, he was 2.3 miles from 203 Crawford Street. Police regulations classified the call as an emergency domestic violence call and required an officer in Brown's position immediately to proceed to the scene. There was evidence that a reasonably prudent officer would have driven 2.3 miles in less than four minutes. As to damages, the plaintiffs introduced evidence of Eyssi's reduced capacity to function normally in his family unit.

The jury returned a verdict for the plaintiffs. The jury awarded $225,000 to Elaine, ⁴ $15,000 to Stephanie, and $10,000 to Sharon. The city moved for entry of judgment notwithstanding the verdict. The city argued that, as matter of law, there was insufficient evidence that its negligence was the proximate cause of the damages sustained by the plaintiffs. The city also contended that the spouse or child of an injured governmental employee has no cause of action for loss of consortium under the Massachusetts Tort Claims Act. Finally, the city argued that the exclusivity provision of the Massachusetts Tort Claims Act barred the plaintiffs' cause of action. ⁵ The judge denied the city's motion. This appeal followed. We transferred the case to this court on our own motion.

1. Spouses' and Children's Right to Recover Damages Against

Governmental Employer for Loss of Employee's Consortium.

In order to provide the background necessary to our discussion, we begin with a brief description of two statutory schemes relevant to our analysis, the Massachusetts workers' compensation act, G.L. c. 152 (1992 ed.), and the statutes governing the provision of benefits to injured police officers and fire fighters, G.L. c. 41, §§ 100, 111F (1992 ed.).

The workers' compensation act "is a 'humanitarian measure' which the Legislature first enacted in 1911 (St.1911, c. 751) in response to strong public dissatisfaction with the remedies provided by traditional tort actions." Murphy v. Commissioner of the Dep't of Indus. Accidents, 415 Mass. 218, 222, 612 N.E.2d 1149 (1993). Under the act, employees who waive their right to sue in tort may obtain "compensation for loss of wages or earning capacity caused by a work-related injury, regardless of the fault of their employers or the foreseeability of harm." Id., and cases cited. The 1911 version of the act did not encompass governmental employees. See Seibolt v. County of Middlesex, 366 Mass. 411, 414, 319 N.E.2d 448 (1974). "[W]hile a series of amendments has since extended coverage to most governmental employees, the two groups which have never been brought under this umbrella are members of a police or fire force." Wormstead v. Town Manager of Saugus, 366 Mass. 659, 664 n. 5, 322 N.E.2d 171 (1975). The exclusion of police officers and fire fighters from the scope of the act remains in force today. See G.L. c. 152, § 69 (1992 ed.).

In 1952, the Legislature provided for leave without loss of pay for police officers and fire fighters injured in the performance of their duty. See G.L. c. 41, § 111F, inserted by St.1952, c. 419. See also Wormstead, supra. The Legislature also provided for payment by municipalities of the medical and related expenses of a police officer or a fire fighter injured "while acting in the performance and within the scope of his duty without fault of his own." G.L. c. 41, § 100. Eyssi has received benefits under these provisions. ⁶

The Legislature enacted the Massachusetts Tort Claims Act in 1978, after this court announced its intention to abandon the doctrine of governmental immunity. See Whitney v. Worcester, 373 Mass. 208, 366 N.E.2d 1210 (1977). Section 2 of the Act provides that governmental entities shall 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." G.L. c. 258, § 2 (1992 ed.). This language extends the application of the traditional tort theories of liability to governmental entities. See Dinsky v. Framingham, 386 Mass. 801, 804-805, 438 N.E.2d 51 (1982). See also A.L. v. Commonwealth, 402 Mass. 234, 252, 521 N.E.2d 1017 (1988) (O'Connor, J., dissenting); Irwin v. Ware, 392 Mass. 745, 752, 467 N.E.2d 1292 (1984); Gallant v. Worcester, 383 Mass. 707, 714, 421 N.E.2d 1196 (1981).

[1, 2] The common law of this Commonwealth recognizes the right of a wife or a husband to recover damages for the loss of his or her spouse's consortium. See Diaz v. Eli Lilly & Co., 364 Mass. 153, 167, 302 N.E.2d 555 (1973). A child has a similar common law right to recover for loss of parental consortium if he or she can show sufficient dependence on the parent. Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 516-517, 413 N.E.2d 690 (1980). ⁷ In Ferriter, supra at 524-530, 413 N.E.2d 690, we held that such recovery was available against the injured spouse's employer even if the injured spouse received workers' compensation benefits under G.L. c. 152, § 24. ⁸ In 1985, as part of a comprehensive revision of the workers' compensation act, the Legislature amended § 24 to bar loss of consortium claims against an employer unless the employee gave notice at the time of hire that he or she did not waive his common law rights. See St.1985, c. 572, § 35.

The city argues that this amendment to the workers' compensation act evinces a legislative intent to abrogate the common law cause of action for loss of consortium where an injured police officer receives benefits under G.L. c. 41, §§ 100 and 111F. The city concedes that these sections contain no language abrogating such cause of action. However, the city argues that §§ 100 and 111F form the functional equivalent to the workers' compensation statute and should be construed to embody the statutory bar to loss of consortium claims which the Legislature included in G.L. c. 152. The city contends that the cases construing language in § 100 and § 111F have done so in light of analogous provisions of G.L. c. 152, and that we should do the same here. In support of this argument, the city cites such cases as Blair v. Selectmen of Brookline, 24 Mass.App.Ct. 261, 264, 508 N.E.2d 628 (1987), S.C., 26 Mass.App.Ct. 954, 526 N.E.2d 1317 (1988); Allen v. Selectmen of Weymouth, 15 Mass.App.Ct. 1009, 448 N.E.2d 782 (1983); DiGloria v. Chief of Police of Methuen, 8 Mass.App.Ct. 506, 512, 395 N.E.2d 1297 (1979).

We are not persuaded by the city's argument. It is well established that "an existing...