Mccarthy v. City Of Waltham (and A Companion Case )

• Decision Date: 09 April 2010
• Docket Number: No. 08-P-586,09-P-525.,08-P-586
• Citation: 76 Mass.App.Ct. 554,924 N.E.2d 316
• Parties: Richard J. McCARTHY, administrator,v.CITY OF WALTHAM (and a companion case ).
• Court: Appeals Court of Massachusetts

76 Mass.App.Ct. 554

924 N.E.2d 316

Richard J. McCARTHY, administrator,¹v.CITY OF WALTHAM (and a companion case ²).

Nos. 08-P-586, 09-P-525.

Appeals Court of Massachusetts Middlesex.

Argued Sept. 11, 2009.

Decided April 9, 2010.

COPYRIGHT MATERIAL OMITTED

Michelle Learned, Assistant City Solicitor, for city of Waltham.

Timothy G. Lynch for Richard J. McCarthy.

Present: DUFFLY, GRAHAM, & FECTEAU, JJ.

FECTEAU, J.

The city of Waltham (city) appeals from a Superior Court judgment awarding the plaintiff $100,000 under the provisions of the Massachusetts Tort Claims Act (MTCA), G.L. c. 258, § 2, and under G.L. c. 229, § 2,³ for the wrongful death of his son, James McCarthy (James). James had been held in protective custody by city police, and he committed suicide shortly after they released him. During trial, the plaintiff claimed that the police were negligent for failing to call James's family members prior to releasing him. The plaintiff contends that the police made explicit promises to him and to James's aunt, Betty Ann Marino (Marino), that someone from the police department would notify Marino before releasing James so that she could be present to take him into her care. Instead, the police simply released James without making the telephone call. The plaintiff does not contend that the police were negligent in placing James in custody, in failing to adequately protect James while in custody, or in failing to keep him in custody.

On appeal, the city generally contends that it was entitled to sovereign immunity pursuant to G.L. c. 258, § 10, and the judge wrongly denied these protections. The city claims that the trial judge wrongly denied its motions for directed verdict and judgment not withstanding the verdict (JNOV) and that the judge erred in not instructing the jury in accordance with its requested instructions.⁴ We reverse.

1. Background. On March 4, 1997, at approximately 3:43 a.m., the plaintiff, a resident of Florida, called the city's 911 system and said that he had just received a disturbing telephone call from his son James, who lived in the city. The plaintiff told the dispatcher that he thought James “might be having an overdose ... he's sounding real bad ... saying ‘I love you,’ and, you know, you can just barely understand him.” ⁵ The dispatcher ⁶ then radioed that “somebody might be committing suicide” with “some sort of drugs.” ⁷ Officer Palmer responded to the radio alert and drove to James's apartment. He heard James yelling from inside the apartment and asked him to come outside; James complied. Officer Palmer told James his father had called the police. James denied the possibility that he was going to harm himself by taking drugs or by other means. During this conversation, James became increasingly louder and upset and yelled at the officer. Officer Palmer then took James into protective custody as an “incapacitated person” because he smelled of alcohol, seemed intoxicated, and did not respond to the officer's request to calm down. James never told Officer Palmer that he was suicidal at the scene, during their ride to the police station, or during booking. James was booked around 4:00 a.m. He denied any conversation with his father in which he was despondent and denied any attempt at or contemplation of suicide, although he made statements indicating that he was upset.⁸ The booking officer did not observe any signs during booking indicative of suicidal thoughts or intentions.

At 4:03 a.m., the plaintiff called the police, inquiring about James. He was told by another dispatcher that James was now at the station. The plaintiff asked the dispatcher to have James call him when they finished with James's booking, which the dispatcher agreed to do. The plaintiff asked what was wrong with James and was told that “he was talking about, uhm, contemplating suicide.” ⁹ James's father was told that James would be kept eight or twelve hours.

At 5:32 a.m., Marino, who resided in Westborough, called the 911 emergency telephone line and asked when James would be released. A police cadet, acting as dispatcher, informed Marino that she did not know when that would be but that James would be able to make a telephone call when released. Marino expressed concern because she did not think that James would make the call, and she wanted to be there when he was released. The conversation continued in this vein, and the dispatcher said, “I could have the person who's-releases him have them give you a call to tell you that he's going to be released, and then, like, maybe ten minutes before he gets released so that you can be on your way down here.” Marino replied, “[I]f an officer could call us and give us, you know, 15, 20 minutes to get there-,” to which the dispatcher said, “Yup. No problem.” ¹⁰ Marino gave her telephone number to the dispatcher, who wrote it on the booking sheet with this notation: “when released call Aunt Bettie Marino, ... she'll be here to pick him up.”

At 7:00 a.m., another cadet dispatcher replaced the cadet who had spoken with James's aunt and father. At 8:15 a.m., Marino called again, asking what time James was going to be released and if James could call her at her work in about fifteen minutes. She was told by the dispatcher that they wanted James to sleep it off, so he was not sure what time James would be released but if she left her number, “when he wakes up, ... and we're ready to release him, I can have him call you then.” She answered, “I hope he will.” She reported that she was going to work, but she would leave her telephone for her husband to answer. She also gave her work number in case no one answered her first number. Both numbers were written on a note attached to the booking sheet. The 911 tape also recorded a statement overheard in which she said to her husband that “they're going to call....” She explained at trial that she misunderstood the last words of the dispatcher to mean that “I'll call you.” During her testimony, she also described her expectation that the police “weren't going to release him until they called me so [I] could pick him up and take him from them,” and that “all I wanted them to do was to keep him safe until we got there,” although Marino admitted that she was uncertain that James would have actually accompanied her.

During the five hours James was in custody, he was under video monitoring by the dispatchers. There were no other calls made to or from police before James was released at approximately 9:00 a.m. Videotapes of James at the booking desk at 4:00 and 9:00 a.m. were shown to the jury. Approximately one hour after his release, James's sister, accompanied by her boyfriend, went to James's apartment, where they found him hanging from a pipe. They left to call for help, and upon the arrival of police and paramedics, James was cut down and a pulse was detected. He never regained consciousness and was pronounced dead the next day.

Before trial, the city filed a motion for summary judgment, which was denied. The city contended that it was not negligent in the handling of the custody and release of James and that it was immune from plaintiff's claims pursuant to G.L. c. 258, § 10. In her decision, the motion judge concluded generally that “[t]he current claim does not stem from the fact that the police were negligent in their release of the Decedent, but rather that the police were negligent in failing to carry out their promises to inform the Decedent's family of his release.” While the motion judge specifically referenced three of the four immunities the city raised, she denied the city's motion for summary judgment based primarily on § 10( j )(1).¹¹ See Lawrence v. Cambridge, 422 Mass. 406, 411-413, 664 N.E.2d 1 (1996).

The city did not appeal from the denial of the motion, and a three-day jury trial began on October 4, 2006. The issues for the jury at trial were (1) whether the police were negligent in the manner of James's release from custody, (2) whether the police made explicit and specific assurances of safety or assistance to one or more of the McCarthy family in regard to the manner of James's release, and (3) whether James's suicide resulted, at least in part, from the family's reliance on such assurances. The jury returned its special verdict in favor of the plaintiff on October 10, 2006, and awarded him $100,000.

2. Discussion. The city's general argument on appeal focuses on what it contends was the trial judge's misapplication of the exception to immunity contained in G.L. c. 258, § 10( j )(1). In pertinent part, the provisions of § 10( j ) immunize the city from

“any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation ... which is not originally caused by the public employer or any other person acting on behalf of the public employer.”

By virtue of § 10( j )(1), however, that immunity is inapplicable to

“any claim based upon explicit and specific assurances of safety or assistance ... made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances.”

The city contends that the trial judge, like the motion judge, ¹² focused solely on the exception contained in § 10( j )(1), in the process failing to give appropriate weight to the immunity contained in § 10( j ) itself, and to the other immunities § 10 contains.

a Directed verdict. “The denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict both present questions of law reviewed under the same standard used by the trial judge. Review of these motions requires us to construe the evidence in the light most favorable to the nonmoving party and disregard that favorable to the moving party. In other words, the standard to be employed is whether the evidence, construed against the moving party, justifies a verdict against him. Our duty ... is to evaluate whether anywhere in the...