Jean W. v. Com.

• Decision Date: 08 March 1993
• Citation: 610 N.E.2d 305,414 Mass. 496
• Parties: JEAN W. & others 1 v. COMMONWEALTH & others. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 305

610 N.E.2d 305

414 Mass. 496

JEAN W. & others ¹ v. COMMONWEALTH & others. ²

Supreme Judicial Court of Massachusetts,

Essex.

Argued Sept. 15, 1992.

Decided March 8, 1993.

Michael P. Hickey, Salem, for plaintiffs.

Mark P. Sutliff, Asst. Atty. Gen. (Timothy A. Mullen, Asst. Atty. Gen., with him), for the Com.

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

RESCRIPT.

The judgment of the Superior Court dismissing the complaint is reversed. The plaintiffs shall have thirty days from the date of the issuance of the rescript to file an amended complaint in the Superior Court. The case is remanded to the Superior Court for further proceedings.

So ordered.

LIACOS, Chief Justice (concurring).

John Zukowski, allegedly also known as John Zukoski, was convicted of murder in the second degree on May 11, 1972. He was sentenced to life imprisonment. In September, 1985, the Massachusetts Parole Board (parole board) denied his application for parole. Zukowski was again eligible for parole in September, 1986, and, again, the parole board denied his application. After this denial, a clerk employed by the parole board telephoned the Department of Correction at the institution where Zukowski was held and indicated, incorrectly, that Zukowski had been granted parole. Zukowski was released from custody. Between his release and the incident giving rise to this suit, Zukowski regularly reported to a parole officer, who failed to discover that Zukowski had been released erroneously.

On March 23, 1987, six months after his release, Zukowski raped, beat, and threatened the plaintiff Jean W. while she was in her home with her two minor children. Her son Joshua witnessed a portion of the attack. For this incident, Zukowski was convicted of aggravated rape and assault and battery by means of a dangerous weapon.

The plaintiffs brought suit in the Superior Court pursuant to the Massachusetts Tort Claims Act (Act), G.L. c. 258 (1990 ed.). They alleged that the Commonwealth, the parole board, and the Department of Correction were negligent in releasing Zukowski after his parole application had been denied and in failing to discover, in the ensuing six months, that Zukowski's release was error. The defendants moved to dismiss the plaintiffs' complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), contending that the plaintiffs failed to state a claim because the defendants did not owe the plaintiffs a duty different from the duty owed to the public. The judge below agreed and allowed the defendants' motion. ¹ We transferred the appeal here on our own initiative.

In appealing from the dismissal of their complaint, the plaintiffs argue that there was a special relationship between them and the defendants which would justify liability. This special relationship, they argue, arises from the fact that they were foreseeable victims of the negligence of the defendants. ² The defendants argue that the plaintiffs were neither foreseeable victims nor part of a specially designated subclass and that the defendants owed them no duty different from the duty owed to the general public. The defendants further argue that public policy requires the liability of governmental entities to be limited to instances where a special duty is owed.

We, the author of this opinion and those Justices who join in his views, believe that this requirement of a special duty for governmental liability, commonly referred to as the public duty rule, is inconsistent with the Act, and we announce our intention to abolish the rule, as described below. We have concluded that our prior efforts to distinguish viable claims from those subject to dismissal by use of the public duty-special relationship dichotomy have not succeeded in producing a rule of predictable application. Further, having reviewed our recent decisions on the subject, we note that the result has been to resurrect effectively the antiquated and outmoded concepts of sovereign immunity which we and the Legislature have sought to shed. See Whitney v. Worcester, 373 Mass. 208, 210-212, 366 N.E.2d 1210 (1977); G.L. c. 258. Although some of the Justices previously have expressed concern regarding the fiscal consequences of abolishing the public duty rule, further experience and reflection lead us to conclude that the limitations on liability imposed by the Legislature in the Act, coupled with the requirement that a plaintiff prove each of the traditional elements of negligence, provide adequate protection to the public fisc. The Legislature, nevertheless, should be afforded an opportunity to consider whether it wishes to respond to this anticipated change by passing additional limitations on liability. We therefore announce our intention to abolish the public duty rule at the first available opportunity after the conclusion of the 1993 session of the Legislature. ³

In 1978, in response to several entreaties by this court, see Whitney v. Worcester, supra, the Legislature enacted the Massachusetts Tort Claims Act. St.1978, c. 512, § 15. The Act abolished the absolute immunity that governmental units had enjoyed previously. The Act provides in part: "Public employers shall be liable for injury or loss of property or personal injury or death 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. The Act limits liability to $100,000 per plaintiff, id.; see Irwin v. Ware, 392 Mass. 745, 766, 467 N.E.2d 1292 (1984), and by express provision does not apply to claims arising from the exercise of discretionary functions. G.L. c. 258, § 10. ⁴

Despite these express limitations on liability in the Act, this court ventured a further limitation in Dinsky v. Framingham, 386 Mass. 801, 438 N.E.2d 51 (1982). In an attempt to protect municipalities from becoming "insurer[s] of each and every construction project," we held that no liability could be found for the negligent issuance of a building permit which resulted in the plaintiffs' property being damaged by flooding. Id. at 802, 810, 438 N.E.2d 51. Our basis for insulating the town from liability was the so-called public duty rule.

The public duty rule, broadly stated, ⁵ is a judicially-created doctrine that protects governmental units from liability unless an injured person seeking recovery can show that the duty breached was a duty owed to the individual himself, and not merely to the public at large. 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). 7 E. McQuillan, Municipal Corporations § 53.04b, at 165 (3d ed. rev. 1984). In Dinsky, we held that, because the building code was designed to benefit the public generally, there could be no liability to an individual for a negligent failure to enforce it. Dinsky, supra 386 Mass. at 810, 438 N.E.2d 51. The reason there could be no liability, we held, was grounded in the notion of duty. "In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled." Id. at 804-805, 438 N.E.2d 51, quoting Sweeny v. Old Colony & Newport R.R., 10 Allen 368, 372 (1865). We then evaluated the notion of duty differently from the way we do in a tort case not involving a public entity, focusing on whether building commissioners' statutory duties were designed to benefit the public or private individuals. "There does not appear to be any language in the enactments [imposing obligations on building commissioners] which would warrant a finding that the Legislature intended to create private causes of action for property owners on the facts of this case. The enactments confer no specific duties upon building commissioners or inspectors with regard to individual citizens or property owners." Id. 386 Mass. at 809, 438 N.E.2d 51. We did not, in Dinsky, consider explicitly whether a requirement that this type of duty be shown was compatible with the Act.

In general, "circumstances alone may establish a duty which would not exist independent of them." J.R. Nolan & L.J. Sartorio, Tort Law § 206, at 342 (2d ed. 1989). The circumstances of Dinsky were that a building commissioner issued building and occupancy permits for the plaintiffs' property after specific preconditions set by the health department were not met. Id. at 802, 438 N.E.2d 51. Dinsky indicated that a duty to the plaintiffs could have been found only if the building code had stated expressly that private individuals were to benefit from it. Id. at 809-810, 438 N.E.2d 51.

Thus, Dinsky articulated one exception to the public duty rule. Acting on the same premise of a need for an exception to the public duty rule, we invoked the so-called "special relationship" exception in Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1984). See A.L. v. Commonwealth, 402 Mass. 234, 254-255, 521 N.E.2d 1017 (1988) (O'Connor, J., dissenting) (describing development of two exceptions to public duty rule).

In Irwin, police officers from the town of Ware allowed an obviously intoxicated driver, whom they had detained, to return to his automobile and continue driving. Shortly thereafter, the driver caused an accident which injured the plaintiffs and killed their decedents. In considering the applicability of Dinsky and the public duty rule to those facts (i.e., whether the officers' duty of care ran only to the public), we recognized the inherent conflict between the public duty rule and the Act. "Arguably, this principle contains a seed which could reintroduce a broad-based municipal tort immunity: whereas most public employees when acting within the scope of their employment ultimately are doing so in...