Kent v. Commonwealth

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CORDY, J.
• Citation: Kent v. Commonwealth, 437 Mass. 312, 771 N.E.2d 770 (Mass. 2002)
• Decision Date: 15 July 2002
• Parties: THOMAS R. KENT & another v. COMMONWEALTH & another.

437 Mass. 312

771 NE 2d 770

THOMAS R. KENT & another¹ v. COMMONWEALTH & another.²

Supreme Judicial Court of Massachusetts, Middlesex.

February 6, 2002.

July 15, 2002.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Crispin Birnbaum, Assistant Attorney General, for the defendants.

Leonard H. Kesten for the plaintiffs.

CORDY, J.

In this case we hold that a public employer has a right to interlocutory review of the denial of its motion to dismiss based on a claim of immunity, even if the granting of the motion would not dispose of the entire case against it. We also conclude that the Commonwealth's motion to dismiss the plaintiffs' negligence claims should have been granted because, as a matter of law, the decision of the Massachusetts parole board to release a violent prisoner to a deportation warrant of the Immigration and Naturalization Service (INS) was not the proximate cause of the plaintiffs' injuries nor the original cause of the situation that led to their infliction eight years later.

1. Background. Officer Thomas R. Kent of the Leominster police department (Officer Kent) was shot and seriously wounded on September 15, 1995, by John J. MacNeil, a convicted murderer who had been serving a life sentence in the Massachusetts prison system until his parole in 1987 (see Commonwealth v. MacNeil, 23 Mass. App. Ct. 1022 [1987]). Officer Kent, his wife, and his three children brought suit under the Massachusetts Tort Claims Act, G. L. c. 258, against the Commonwealth, alleging that the parole board was grossly negligent in 1987 when it paroled MacNeil to the custody of the INS for deportation to Canada, and that the mishandling of MacNeil's case persisted in 1995 when the parole board failed to reestablish parole jurisdiction after learning that he had returned to the United States and had been released from INS custody. The Kents argue that these acts and omissions foreseeably resulted in the shooting of Officer Kent.

a. The complaint. The facts alleged in the complaint, which we take as true for these purposes, may be summarized as follows. In 1969, MacNeil was sentenced to life in prison on two charges of murder in the second degree. Twice during his incarceration, MacNeil escaped and committed further crimes. During one of these escapes, he fled to Canada where he was recaptured. While in prison, MacNeil obtained explosives and injured himself while attempting to manufacture pipe bombs.

MacNeil was denied parole when he first became eligible in 1985 and again in 1986. In its denial dated July 14, 1986, the parole board noted that MacNeil was still in maximum security and lacked a prerelease plan and a solid record of accomplishment while incarcerated. Even though MacNeil's circumstances remained unchanged, on January 22, 1987, a panel of the parole board recommended that he be paroled to a deportation warrant that the INS had lodged against him.³ The parole board subsequently paroled MacNeil to the custody of the INS for deportation to Canada, with two conditions: that he report by mail to the parole board on a quarterly basis and that he not return to the United States. On April 28, 1987, he was deported to Canada.

MacNeil returned to Massachusetts and was arrested on September 11, 1987, for violating his parole. However, on January 14, 1988, a judge in the Superior Court, ruling on a writ of habeas corpus, held that by paroling MacNeil to the INS, the parole board had surrendered MacNeil to the authority of the INS and no longer had jurisdiction over him. As a result of this ruling, MacNeil was transferred from State custody to the INS, which deported him to Canada a second time.

MacNeil again returned to the United States and the INS took him into custody on July 12, 1994, holding him without bail. However, the INS released him on June 7, 1995, after determining that he was, in fact, a United States citizen. Two days later, MacNeil was arraigned in the West Roxbury Division of the District Court Department for violating a protective order that his wife had obtained against him. Although initially held in custody, MacNeil eventually was released by the District Court judge.

In June, 1995, the parole board decided to attempt to regain custody over MacNeil, but it did nothing to reassert jurisdiction over him before he shot Officer Kent on September 15, 1995. On that day, Officer Kent and his partner responded to a call regarding a suspicious person at a private residence in Leominster. When the officers arrived on the scene, MacNeil emerged from the garage of the residence, firing two guns. Officer Kent was struck in the chest, but returned fire and killed MacNeil.

b. The Commonwealth's motion to dismiss. The Commonwealth challenged the complaint on two grounds. The first ground, lack of proximate causation, was directed at the complaint as a whole. The Commonwealth argued that, as a matter of law, events occurring after MacNeil's parole in 1987 broke any chain of causation and ended its duty of care. The second ground, immunity from suit, was asserted only insofar as the Kents' claims were based on the Commonwealth's failure to reestablish parole jurisdiction over MacNeil in 1995. The Commonwealth relied on the so-called statutory public duty rule, G. L. c. 258, § 10 (j), for the proposition that it is immune from claims of "failure to act" unless a plaintiff can prove that the Commonwealth's affirmative conduct "originally caused" the "condition or situation" that led to the harm. See Brum v. Dartmouth, 428 Mass. 684, 692-696 (1999).⁴ The Commonwealth contended that the Kents could not meet this requirement because the release of MacNeil in 1987 was too remote as a matter of law to be the "original cause" of the situation — MacNeil's armed presence in Leominster in 1995 — which led to the Kents' harm. Both of these grounds for dismissal were rejected by the Superior Court judge,⁵ and the Commonwealth appealed.

The Appeals Court affirmed the Superior Court judge's order, Kent v. Commonwealth, 52 Mass. App. Ct. 28 (2001), and also concluded that the Commonwealth did not have a right to an interlocutory appeal of its immunity claim because the immunity defense was "neither dispositive of the case as a whole, nor collateral to the rest of the controversy as required by the doctrine of present execution."⁶,⁷ Id. at 33. We granted the Commonwealth's application for further appellate review.

2. Discussion.

a. Interlocutory appeal. In Brum v. Dartmouth, supra at 688, we held that an order denying a motion to dismiss based on immunity from suit enjoys the benefit of the present execution rule because it is a final order that meets the criteria for immediate appeal. In so holding, we noted the importance of determining immunity issues early to protect government agencies and public officials from unwarranted disruption and harassing litigation, and recognized that the right to immunity from suit is effectively "lost as litigation proceeds past motion practice," id., quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993), and is not adequately vindicated "if an order denying it were not appealable until the close of litigation." Brum v. Dartmouth, supra, citing Matthews v. Rakiey, 38 Mass. App. Ct. 490, 493 (1995).

There is nothing in the Brum case that supports limiting interlocutory review to cases where the immunity issue alone would resolve the entire case. To the contrary, our holding relied on a line of decisions, including Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, 401 Mass. 26, 30 (1987), cert. denied sub nom. Forastiere v. Breault, 485 U.S. 906 (1988), in which interlocutory orders were deemed final, and therefore appealable, despite the fact that they did not resolve the entire case. Brum v. Dartmouth, supra at 687. See Maddocks v. Ricker, 403 Mass. 592, 600 (1988) (appeal from an order disqualifying attorney); Borman v. Borman, 378 Mass. 775, 779-780 (1979) (same). In the Breault case, only two of the four counts in the plaintiff's complaint were defended on the basis of immunity under Federal and State law, and we upheld the defendant's right to an interlocutory appeal from the denial of immunity on those two counts. Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, supra at 29-31. In concluding that the appeal was appropriate, we specifically noted that "even where part of an action remains undetermined, we treat an order as final if it is to be executed presently with the result that any later appeal would be futile." Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, supra at 30. Thus, consistent with Breault, the Commonwealth's right to interlocutory review of the denial of its motion to dismiss based on immunity is not dependent on whether allowance of the motion would completely end the litigation.

As to whether the immunity defense was "collateral to the rest of the controversy as required by the doctrine of present execution," Kent v. Commonwealth, supra at 33, we conclude, as did the United States Supreme Court, Mitchell v. Forsyth, 472 U.S. 511, 527-529 (1985), that the denial of a motion to dismiss on immunity grounds is always collateral to the rights asserted in the underlying action because it "is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated ... even though a reviewing court must consider the plaintiff's factual allegations in resolving the immunity issue." Therefore, we hold that the denial of a claim of immunity is appealable by a public employer, on an interlocutory basis, as a matter of right.

b. Immunity under G. L. c. 258, § 10 (j). We next consider whether the judge properly denied the motion to dismiss based on immunity grounds, cognizant that a motion to dismiss should only be allowed if "it appears certain that the complaining party is not entitled to relief under any state of facts which...