Harrison v. Town of Mattapoisett

• Decision Date: 01 December 2010
• Docket Number: No. 09-P-1202.,09-P-1202.
• Court: Appeals Court of Massachusetts
• Parties: Roberta K. HARRISON v. TOWN OF MATTAPOISETT & others.

937 N.E.2d 514

78 Mass.App.Ct. 367

Roberta K. HARRISON

v.TOWN OF MATTAPOISETT & others.¹

No. 09-P-1202.

Appeals Court of Massachusetts,

Bristol.

Argued March 24, 2010.

Decided Dec. 1, 2010.

Robert K. Harrington, for the plaintiff.

Brian M. Maser, Boston, for town of Mattapoisett.

Janet Barringer Pezzulich, Boston, for town of Fairhaven.

Charles D. Mulcahy, Raynham, for town of Acushnet.

Stephen W. Marshalek, Assistant Attorney General, for Department of State Police.

Present: DUFFLY, SMITH, & COHEN, JJ.

SMITH, J.

After her vehicle was struck by an individual evading a high-speed police pursuit, the plaintiff, Roberta Harrison, commenced an action against the defendant towns of Mattapoisett, Fairhaven, and Acushnet, as well as the Department of State Police (department). In her complaint,the plaintiff alleges that the above towns' police officers, and a State police officer, were negligent in their participation in the high-speed chase and that the defendants were negligent in training and supervising the police officers involved.² A Superior Court judge allowed the towns' motions for summary judgment, concluding that the public duty rule, G.L. c. 258, § 10( j ), inserted by St.1993, c. 495, § 57, provided immunity from suit because the employees of the towns were not the "original cause" of the accident. The judge also noted that the plaintiff's tort claims failed for lack of causation. A second judge allowed the department's motion for summary judgment, ruling that the summary judgment record failed to establish that State police had participated in the high-speed chase.

On appeal, the plaintiff argues that the Superior Court judges committed error in allowing the motions for summary judgment because there were genuine issues of material fact as to whether the defendants (including the department) materially contributed to the third party's reckless driving, which ultimately resulted in the plaintiff's injuries. For that reason, the plaintiff claims the judge erroneously concluded that the defendants were immune under G.L. c. 258, § 10( j ). We vacate the grant of summary judgment in favor of Mattapoisett and Fairhaven, and affirm the grant of summary judgment in favor of Acushnet and the department.

Background. The summary judgment record discloses the following. On April 4, 2002, about 10:40 a.m., Sergeant Christopher Richmond of the Acushnet police departmentobserved William Lessa, a "known suspect," traveling through Acushnet toward Mattapoisett in a Dodge pickup truck. He was not engaged in any criminal activity at that time. Officer Richmond was aware that Lessa had at least seven outstanding warrants for his arrest, including the commission of a felony (breaking and entering a residence), larceny, and drug-related offenses.³ Officer Richmond was operating an unmarked police vehicle and called for a marked police cruiser to apprehend Lessa. He did not signal or follow Lessa, and there was no evidence in the record before the motion judge that any Acushnet police officers were involved in the subsequent chase.

The towns operated on a shared radio frequency. Officer Robert Dumas of the Mattapoisett police department, operating a marked police cruiser, overheard Officer Richmond's alert, activated his blue lights, observed Lessa's vehicle, and started to pursue it. Lessa immediately accelerated his vehicle and continued south on Acushnet Road. Near the intersection of Crystal Springs Road and Acushnet Road, Lessa nearly hit a police officer assigned to work a road detail. Officer Dumas radioed the dispatcher that Lessa was failing to stop, and gave the dispatcher his location. At this point, another Mattapoisett police vehicle joined the chase.

With the police vehicles in pursuit, the chase proceeded on to Interstate Route 195 (I-195) westbound, a major highway. While on the highway, Lessa changed directions twice by driving his vehicle over the median strip. While Lessa was proceeding westbound on I-195 and nearing the Fairhaven town line, Officer Dumas's supervisor ordered him to notify the Fairhaven police when Lessa entered intoFairhaven so that they could join the pursuit. Officer Dumas did so and Officer Peter Joseph of that department joined the chase. Officer Dumas was the lead vehicle with Officer Joseph's vehicle following behind the Dumas cruiser. Officer Joseph had been ordered by his superior not to take the lead in the chase, but to stay back and observe.

During the chase, Officer Joseph observed Lessa driving his vehicle at speeds of up to one hundred miles per hour (m.p.h.), in a reckless manner causing civilian vehicles to swerve. At thattime, there were three marked vehicles chasing Lessa. According to Officer Joseph, there was a "lot" of traffic on the road. Lessa exited I-195 onto Route 18. Before Officer Dumas entered Route 18, he notified dispatch that it appeared Lessa was going to take the Weld Street ramp off Route 18. At that point, Officer Dumas's supervisor ordered him to terminate the pursuit. The three cruisers turned off their blue lights and sirens, and terminated the chase before entering the Weld Street ramp.

Lessa exited Route 18 onto Weld Street and entered a highly populated commercial and residential area. Seconds after the chase was called off, Lessa went through a stop sign at a high rate of speed and his vehicle collided with the plaintiff's vehicle. The officers involved in the chase did not see the accident occur, but arrived at the scene shortly after it happened. Lessa was issued a citation charging him with (1) failure to stop for a police officer; (2) operating recklessly so as to endanger; (3) operating a motor vehicle after the right to operate had been suspended; and (4) speeding (one hundred m.p.h. in a fifty-five m.p.h. zone).

Discussion. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as matter of law. Mass.R.Civ.P. 56, 365 Mass. 824 (1974)." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). "An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law." Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 536, 600 N.E.2d 571 (1992), citing Community Natl. Bank v. Dawes, 369 Mass. 550, 556, 340 N.E.2d 877 (1976).

"The Massachusetts Tort Claims Act, G.L. c. 258 ..., allows those with valid claims in tort to recover against governmental entities." McCarthy v. Waltham, 76 Mass.App.Ct. 554, 561, 924 N.E.2d 316 (2010), quoting from Lawrence v. Cambridge, 422 Mass. 406, 408, 664 N.E.2d 1 (1996). General Laws c. 258, § 10( j ), the public duty rule, establishes, however, that the Commonwealth shall, with certain exceptions not relevant here, be immune with respect to "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 notoriginally caused by the public employer or any other person acting on behalf of the public employer" (emphasis added). See Jacome v. Commonwealth, 56 Mass.App.Ct. 486, 489, 778 N.E.2d 976 (2002). "The reference in § 10( j ) to an 'original cause' means 'an affirmative act (not a failure to act) by a public employer [or public employee] that creates the "condition or situation" that results in harm inflicted by a third party....' " Ibid., quoting from Kent v. Commonwealth, 437 Mass. 312, 318, 771 N.E.2d 770 (2002). "In order for a public employer's affirmative act to be the 'original cause' of a 'condition or situation' that results inharmful consequences to another from 'the violent or tortious conduct of a third person,' ... [such] act must have materially contributed to creating [a] specific 'condition or situation' that resulted in the harm." Kent v. Commonwealth, supra at 319, 771 N.E.2d 770. Therefore, we do not consider whether the acts of the public employees were negligent at this point in our analysis, but rather we examine the summary judgment record to determine whether their acts "materially contributed to creating the specific 'condition or situation' that resulted in the harm" to the plaintiff by Lessa. Jacome v. Commonwealth, supra at 489, 778 N.E.2d 976, quoting from Kent v. Commonwealth, supra at 319, 771 N.E.2d 770.

We begin our analysis by affirming the allowance of the motions of summary judgment as to the town of Acushnet and the department because there was insufficient evidence in the summary judgment record to establish that those entities participated in the chase. For that reason, their actions could not have been a cause of the accident, and they are immune under G.L. c. 258, § 10( j ).

The acts of the Mattapoisett and Fairhaven officers, on the other hand, in commencing a pursuit of Lessa and engaging in a high-speed chase, stand on different ground. Early in the pursuit, Lessa nearly hit a police officer working a detail. He drove onto a major highway at high speed. The highway had a "lot" of traffic. Motorists had to swerve to get out of his way. Twice he changed directions by driving over the median strip. Observing his reckless driving and flight from police, the officers chose to continue pursuing him at high speed.⁴ In these circumstances,the affirmative acts of the Mattapoisett and Fairhaven officers in continuing the high-speed chase materially contributed to creating the specific condition or situation (i.e., Lessa's flight from the police) that resulted in the plaintiff's harm. The fact that the officers stopped the chase before Lessa drove down the ramp does not change the result. The stopping of the pursuit took place only seconds before the crash. There is nothing in the record that establishes that Lessa knew or should have known that the chase had...