A.L. v. Com.

• Decision Date: 21 April 1988
• Citation: 402 Mass. 234,521 N.E.2d 1017
• Parties: , 45 Ed. Law Rep. 1256 A.L. v. COMMONWEALTH (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1017

521 N.E.2d 1017

402 Mass. 234, 45 Ed. Law Rep. 1256

A.L. v. COMMONWEALTH (and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 7, 1987.

Decided April 21, 1988.

Francis G. Chase, Asst. Atty. Gen., for Com.

Jeffrey W. Kobrick, Boston (Frank S. Ganak, with him) for plaintiffs.

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

ABRAMS, Justice.

At trial in the Superior Court, a jury found the Commonwealth liable under the Massachusetts Tort Claims Act, G.L. c. 258, § 2 (1986 ed.), for the negligent failure of Lawrence Tierney, a probation officer, to verify the place of employment of Edward Darragh, a probationer in Tierney's charge. Darragh, a thrice-convicted child molester, was employed as a teacher in the Boston public schools in violation of the special conditions of his probation; during the term of his probation, Darragh sexually molested the plaintiffs, two of his students. The jury awarded A.L. and M.M. damages against the Commonwealth. The Commonwealth appeals. We granted the Commonwealth's application for direct appellate review. We affirm.

Edward Darragh was convicted on January 5, 1978, in the Waltham District Court on nine counts of indecent assault and battery on children under the age of fourteen and contributing to the delinquency of minors. Prior to this conviction, Darragh had been convicted twice in 1966 in the Malden and Woburn District Courts for indecent assault and battery on a child under the age of fourteen and for two counts of unnatural acts with young boys between the ages of ten and thirteen. For his 1978 conviction, Darragh received an eighteen-month suspended sentence. As specific conditions of his probation, the sentencing judge directed that Darragh (1) refrain from teaching; (2) refrain from associating with young boys; (3) continue psychotherapy during probation; and (4) sign any releases needed for dissemination of probation information.

Supervision of Darragh's probation was assigned to Probation Officer Lawrence Tierney. Tierney met with Darragh regularly, spoke with him periodically by telephone, and saw to it that Darragh consulted a competent psychiatrist. However, apart from noting Darragh's own averments of employment as a salesman, Tierney made no attempt to verify Darragh's employment. ² Tierney also made no effort to confirm that Darragh was neither teaching nor working in an environment which would place him in close association with young boys.

Contrary to Darragh's representations, he was, in fact, teaching science at the Barnes Middle School in East Boston throughout the period of his probation. Between the fall of 1978 and his arrest in February, 1979, Darragh repeatedly molested M.M., then a sixth grade student. During January and February, 1979, Darragh sexually assaulted A.L., then thirteen years old. Darragh molested both boys in a locked storage room at the school and maintained secrecy by threatening to molest A.L.'s younger brother if A.L. told anyone of the assaults.

Despite a complaint by the mother of another student who witnessed Darragh's abusive behavior, ³ the school's principal, John T. Daley, took no definitive action to relieve Darragh of his teaching responsibilities. The episodes of abuse involved in this appeal came to light after M.M. and A.L. discussed their mutual problem. M.M. told another boy, who told his sister, who in turn told M.M.'s sister. M.M.'s sister notified their mother.

A.L., acting through his parents, ⁴ sued both the city of Boston and the Commonwealth under the Massachusetts Tort Claims Act. The Commonwealth's liability was premised on Tierney's negligent supervision of Darragh; the city's liability was premised on the principal's failure to act after being informed of the parent's suspicions about Darragh. M.M., acting through his mother, ⁵ sued both entities on the same grounds.

The city of Boston settled with each plaintiff prior to trial. ⁶ The jury found the Commonwealth liable and, as the judge instructed, deducted the city's settlement amount from its award to each plaintiff. The court allowed the city's motion for contribution from the Commonwealth and, accordingly, ordered the Commonwealth to pay the city $35,000, the difference between the amount of settlement and half the damages owed each plaintiff. ⁷

With these facts in mind, we address the issue whether the Commonwealth is liable for the probation officer's negligent failure to ascertain Darragh's place of employment. In so doing, we must determine (1) whether the probation officer owed a duty to the plaintiffs in this case, and (2) whether the Commonwealth is liable under the Massachusetts Tort Claims Act for the probation officer's negligent violation of such a duty.

1. The probation officer's duty. "In order to recover against the [Commonwealth] for negligence [of the probation officer], the plaintiff must show (1) the existence of an act or omission in violation of a (2) duty owed to the plaintiffs by the defendant, (3) injury, and (4) a causal relationship between the breach of duty and the harm suffered." Dinsky v. Framingham, 386 Mass. 801, 804, 438 N.E.2d 51 (1982). The parties properly focus their arguments on Dinsky and on Irwin v. Ware, 392 Mass. 745, 467 N.E.2d 1292 (1985). We conclude that the trial judge correctly determined that, "given the potential harmful effects upon the class sought to be protected," there was a duty owed to these plaintiffs, and that this case is closer to Irwin than it is to Dinsky.

In Dinsky, flooding damaged the plaintiffs' house because the house was located on an improperly graded lot. Prior to construction, the town's department of health had notified the building commissioner that the property should be graded "to prevent low spots that will not drain and create a public nuisance," and instructed the building commissioner to inspect the lot before issuing a building permit. The building commissioner issued the permit without inspecting the property, which was, indeed, improperly graded. Dinsky, supra 386 Mass. at 802, 438 N.E.2d 51. We held the town not liable for its failure to inspect the lot prior to issuing the building permit, because "the purpose of a building code has been considered traditionally to be the protection of the general public," not protection of the property owner. Id. at 805, 438 N.E.2d 51. Thus, the building commissioner owed no special duty to the plaintiffs in Dinsky. ⁸ In Irwin, we held a municipality liable for the failure of its police officers to remove an obviously intoxicated driver from the road after the police had stopped the driver for driving too fast. Ten minutes later, the driver was involved in an accident which resulted in the deaths of the plaintiff's decedents. Irwin, supra 467 Mass. at 764, 467 N.E.2d 1292. We concluded that, where the negligent act of a public official threatens immediate and serious physical injury to an identifiable class, and the class has no chance to protect itself from the harm threatened, the official owes a duty of care to that class. Id. at 756, 467 N.E.2d 1292. We noted, too, that the most critical factor in this analysis is whether a defendant could anticipate that he would be expected to act to protect the plaintiff and could foresee harm to the plaintiff resulting from his inaction. See id.

In analyzing this case under the criteria set forth in Irwin, we first address the question whether Tierney owed a duty to these plaintiffs beyond the duty he owed to the general public. As we noted in Irwin, "[w]hile several different categories of such special relationships are recognized in the common law, they are based to a large extent on a uniform set of considerations. Foremost among these is whether a defendant reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so.... It has been said that such foreseeability can be based on reasonable reliance by the plaintiff, impeding other persons who might seek to render aid, statutory duties, property ownership or some other basis." (Citations omitted.) Id. at 756, 467 N.E.2d 1292. We think that the conditions of probation imposed by the sentencing judge created a special relationship between these plaintiffs and the probation officer and created a duty beyond that owed to the public as a whole.

It is clear that the sentencing judge's conditions of probation were designed to protect young boys. The sentencing judge determined that Darragh would molest again if he entered an environment in which he was permitted frequent association with young boys. ⁹ The probability that harm would result from allowing Darragh to teach or to associate with young boys was foreseeable both to the judge and to Tierney, who knew the terms of the probation and was familiar with Darragh's criminal record.

The Commonwealth asserts that, even if it was foreseeable that Darragh would molest young boys again, the probation officer owed no special duty to these plaintiffs. The Commonwealth argues that G.L. c. 276, § 85 (1986 ed.), which defines the duties of probation officers, creates a duty to the courts alone. We do not agree. The duties outlined in G.L. c. 276, § 85, clearly are not intended to be an exhaustive list of the duties of probation officers. Although the statute provides that probation officers "shall perform such ... duties as the court requires," this language does not exclude all other duties. Historically, the purpose of probation in Massachusetts has been to aid probationers in becoming law-abiding citizens. Indeed, Massachusetts was the first State to use probation and did so prior to any statutory enactment. Thus, in this Commonwealth, a probation officer's duty never has been limited to service of the court alone. See Carter, Some Aspects of Massachusetts Probation Law and Practice, 42...