Mattingly v. Casey

Citation509 N.E.2d 1220,24 Mass.App.Ct. 452
Parties, 40 Ed. Law Rep. 408 Ellen MATTINGLY, administratrix, 1 v. Robert CASEY, et al. 2
Decision Date01 October 1987
CourtAppeals Court of Massachusetts

Elizabeth N. Mulvey (Ann Marie Maguire, Boston, with her), for plaintiff.

Craig M. Brown, Cambridge, for Robert Casey, et al.

Francis G. Chase, Asst. Atty. Gen., for Donald Bowdoin.

Anthony T. Tarricone (Frank C. Corso, Boston, with him), for Ruth Davis.

Before BROWN, QUIRICO and KASS, JJ.

KASS, Justice.

In what strikes us as a remarkable example of skewed legal thinking and abdication of personal responsibility, the father of a child whom the mother allegedly beat to death brought an action seeking $2,500,000 in damages from the child's school teacher, her school nurse, the school principal, and the director of the Brockton office of the Department of Public Welfare. 3 We affirm a judgment for the defendants entered upon the allowance of the defendants' motions for summary judgment. In our review of the case we have been greatly assisted by a detailed and carefully reasoned memorandum of decision by the motion judge.

We outline facts drawn from pleadings, interrogatories, and depositions. Rochelle Davis was eight years old when, on December 22, 1976, she allegedly suffered a beating at the hands of her mother, Ruth Davis, which rendered the child comatose and quadriplegic. * There was no reversal of Rochelle's neurological condition; she died six years later. Ruth and Luther Davis were the adoptive parents of Rochelle who, ironically, had suffered abuse from her biological mother. Throughout all times material the Davises lived together.

On October 27, 1975, Rochelle appeared at the nurse's room in her school, apparently sent there by her classroom teacher, Arlene Libon (a defendant), who had observed bruises and swelling on the child's face. Rochelle explained that she had fallen from a tree. Rita Feeney, the nurse (a defendant), spoke with Mrs. Davis, who attributed the injury to a fall from a table and further explained that Rochelle frequently lost her balance.

Over the next fourteen months, school personnel observed sixteen instances of hematoma or cuts on Rochelle's face. These manifestations were reported to, and discussed with, Robert Casey, the school principal (a defendant). He, in turn, spoke with Mrs. Davis, who explained away the injuries much as she had to the school nurse. Mrs. Davis drove a bus for the Brockton school department.

On May 19, 1976, Rochelle came to school with a hematoma under her left eye. Asked about this, she said her mother had hit her. This was the first time Rochelle had tied a member of her family to her hurts. Feeney or Libon passed the information to Casey, who met with both parents. Mrs. Davis attributed the child's remarks to the circumstance that she had been abused before the Davises had adopted her, i.e., Rochelle thought along those lines. When Rochelle turned up in school on October 29, 1976, with a large hematoma under her left eye--there had been intervening incidents--the nurse filed a report in accordance with G.L. c. 119, *1222s 51A, with the Brockton regional office of the State Department of Public Welfare. 4

Section 51A, as amended by St.1975, c. 276, § 4, requires a school teacher or educational administrator who "shall have reasonable cause to believe that a child under the age of eighteen years is suffering serious physical or emotional injury resulting from abuse ... immediately [to] report such condition to the department [of public welfare]...." Any person required to make a report who fails so to do is subject to a fine. Persons required to make a report are exempt from civil or criminal action by reason of such a report. Section 51B, as inserted by St.1973, c. 1076, § 5, requires the department to "investigate and evaluate the information reported under [§ 51A]." 5 The department shall take "a child into immediate temporary custody if the department has reasonable cause to believe that the removal of the child is necessary to protect him from further abuse or neglect."

The supervisor of the protective services unit of the Department of Public Welfare in Brockton was Donald Bowdoin. He placed the § 51A complaint about Rochelle into a file for future investigation. Reports from hospitals, doctors, and the police received the highest priority. Alas, the case lay unattended until Bowdoin received a further § 51A report from the Children's Hospital Medical Center on December 23, 1976, reporting the catastrophe of the previous day.

The gravamen of the action is that the classroom teacher, nurse, and school principal failed to comply with the mandate of § 51A "immediately [to] report" a likely case of child abuse; that this failure was negligent; and that their collective negligence was the proximate cause of the child's grievous injury. As to Bowdoin, the negligence asserted arises out of his failure to see to a prompt investigation, as § 51B requires, and to take steps to protect the child.

Necessarily, the acts out of which the action arises preceded the culminating event of December 22, 1976, and, thus, occurred prior to the date which would make the Massachusetts Tort Claims Act applicable. That date is August 16, 1977. See St.1978, c. 512, § 16; Dinsky v. Framingham, 386 Mass. 801, 802, 438 N.E.2d 51 (1982). We are remitted, therefore, to the preexisting criteria for judging the liability of public servants: were they public officers and were their actions misfeasance or nonfeasance? Only misfeasance would be actionable. See Trum v. Paxton, 329 Mass. 434, 438-439, 109 N.E.2d 116 (1952); Desmarais v. Wachusett Regional Sch. Dist., 360 Mass. 591, 593, 276 N.E.2d 691 (1971), cert. denied, 414 U.S. 859, 94 S.Ct. 72, 38 L.Ed.2d 110 (1973); Whitney v. Worcester, 373 Mass. 208, 213-214, 220-221, 366 N.E.2d 1210 (1977); Narine v. Powers, 400 Mass. 343, 346-347, 509 N.E.2d 905 (1987); O'Neill v. Mencher, 21 Mass.App.Ct. 610, 612-613, 488 N.E.2d 1187 (1986).

It was held in the Desmarais and Whitney cases that school teachers fall into the public officer category. The same need to exercise judgment and discretion which placed teachers in that classification applies to a school nurse and school principal. The facts of this case illustrate the point. The classroom teacher, perceiving Rochelle's injuries, felt bound to consult the specialized knowledge of the school nurse, and the two, in turn, conferred with the principal. They needed to consider the gravity of the child's hurts, what they knew about her family, and what this portended. Section 51A does not require the reporting of every bruise; it requires reporting on the basis of indicators which give reasonable cause to believe that a child is being abused. That conclusion requires an element of judgment to separate an incident from a pattern, the trivial from the serious. See, however, April K. v. Boston Children's Serv. Assn., 581 F.Supp. 711, 713 (D.Mass.1984) (suspected instances of child abuse and neglect subsumed within the phrase "reasonable cause to believe"). Bowdoin was the supervisor of the protective services unit. His duties included assigning case workers and deciding the order of attention to be given to the cases which flowed into his office. The resources of that office were not unlimited and Bowdoin was obliged to make decisions about allocating them. His work, therefore, also required the exercise of discretion and judgment. He was a public officer.

Whatever the occasional difficulties in making the nonfeasance or misfeasance characterization, they are not present here. "[N]onfeasance is the omission of an act which a person ought to do, misfeasance is the improper doing of an act which a person might lawfully do." Trum v. Paxton, 329 Mass. at 438, 109 N.E.2d 116. Whitney v. Worcester, 373 Mass. at 220, 366 N.E.2d 1210. Narine v. Powers, 400 Mass....

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