Narine v. Powers

Decision Date30 June 1987
Citation400 Mass. 343,509 N.E.2d 905
PartiesEdmund NARINE v. John E. POWERS (and a companion case 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Carmen L. Durso (Mark F. Itzkowitz, Boston, with him), for plaintiffs.

Mary Ellen Nolan and Douglas I. Louison, Asst. Corp. Counsels, Boston, for defendant.


WILKINS, Justice.

At 9:13 A.M. on April 22, 1976, a bomb exploded in the office of the Commissioner of Probation on the second floor of the Suffolk County Courthouse in Boston. These companion cases, which were tried together, were brought as a result of injuries sustained from the explosion. The defendant appeals from judgments entered following jury verdicts. We transferred the appeals here on our own motion. The only issue we decide is whether the evidence required the allowance of Powers's motions for a directed verdict and for judgment notwithstanding the verdict. 2

The Suffolk County Courthouse Commission has "[t]he care, custody and control of the Suffolk county court house." St. 1939, c. 383, § 1. At the time of the explosion, the commissioners were Thomas S. Eisenstadt, an ex officio member as the sheriff of Suffolk County; Albert Sherman, an appointee of the Governor and chairman of the commission; and John E. Powers, an appointee of the Chief Justice of the Supreme Judicial Court, who was serving concurrently as clerk of the Supreme Judicial Court for the county of Suffolk and of the Appeals Court.

We summarize the evidence most favorable to the plaintiffs, which is the relevant evidence to consider in passing on a motion for a directed verdict or a motion for a judgment notwithstanding the verdict. Forlano v. Hughes, 393 Mass. 502, 504, 471 N.E.2d 1315 (1984).

At 8:53 A.M., twenty minutes before the bomb went off, an operator at the courthouse's main switchboard received a call from a woman who identified herself as a member of a group (whose name the operator did not fully understand). The caller said a bomb would explode in the courthouse in twenty minutes, but she would not say where. Powers was the only commissioner in the building. Sherman was notified of the bomb threat by telephone. Eisenstadt did not learn of the threat until after the bomb exploded. After Sherman was notified, the Boston police department bomb squad was notified. It was then 9:03 A.M. In the ensuing minutes, two officers rushed to the courthouse, but the bomb exploded as they entered the courthouse lobby. The building superintendent, Angus Griffin, had also been notified; he went to the so-called van room (or garage) of the courthouse to await the bomb squad. He notified Powers about 9 A.M. The public continued to enter the building. Each injured plaintiff entered the courthouse after the bomb threat was received, and all but one entered after 9 A.M. No warning of the threat was given, by signs or otherwise, to the public. Some employees started to leave the courthouse. 3

Powers testified that his duty was to notify the Chief Justice of this court and to tell his own assistant, James Monahan, who, in turn, was to notify departments on the upper floors of the courthouse. He also testified that he was first appointed a commissioner because "the court at that time was looking for a tenant commissioner, one who was going to be there." 4 Because the explosion occurred before the effective date of St. 1978, c. 512 (see § 16), which substantially revised the law (G. L. c. 258) concerning the tort liability of public employees and public officers, we must, as the plaintiffs acknowledge, deal with the liability of public employees under our common law. See Vaughan v. Commonwealth, 377 Mass. 914, 915, 388 N.E.2d 694 (1979). Particularly we must accept and apply distinctions that the common law made between misfeasance and nonfeasance of public officers, distinctions which in many instances, as we said in Whitney v. Worcester, 373 Mass. 208, 221, 366 N.E.2d 1210 (1977), "have no real connection with sound reasoning or policy." 5 We must also apply the common law distinction between (a) ministerial acts, for which a public officer could be liable, and (b) nonministerial or discretionary acts, for which (barring bad faith, malice, or corruption) a public officer could not be liable. Gildea v. Ellershaw, 363 Mass. 800, 820, 298 N.E.2d 847 (1973).

The standard of liability can be simply stated, although its application is not always so simple. Powers could be liable only for the consequences of his own misfeasance in connection with a ministerial matter. Fulgoni v. Johnston, 302 Mass. 421, 423, 19 N.E.2d 542 (1939). Misfeasance is the negligent or improper doing of an act (Trum v. Paxton, 329 Mass. 434, 438, 109 N.E.2d 116 [1952] ), as opposed to nonfeasance, which involves the negligent failure or omission to act (Trum v. Paxton, supra at 438, 109 N.E.2d 116). A ministerial matter involves, for example, "the carrying out of previously established policies or plans." Whitney v. Worcester, supra 373 Mass. at 218, 366 N.E.2d 1210.

The plaintiffs explain their theory of Powers's liability in the following terms. Powers's ministerial duty was the duty to implement the commission's established bomb threat response procedure. They make no claim that Powers is liable for his role in formulating those procedures, plans which the plaintiffs assert (in effect as an aside, see note 4 above) were inadequate. They claim that the jury could infer that Powers's duties were broader than his testimony or other evidence explicitly showed because he was the only commissioner on the premises full time each day. The plaintiffs say that they challenge only what Powers did and not any action he should have taken. They say that as the "headquarters commissioner" he had particular duties and that he had the duty to give notification of the bomb threat to the other commissioners and to the public. The plaintiffs' argument continues that, because Powers gave notice to the Chief Justice of this court and to others on the upper floors of the courthouse in partial compliance with the established notification procedures, he was guilty of misfeasance in not notifying others according to what the plaintiffs say was the established plan. 6

The plaintiffs' case fails for two reasons. First, there is no evidence that there was a procedure established by the commission which Powers failed to follow. Disbelief of Powers's testimony (or any other testimony) as to the scope of his duties under established procedures does not prove that there were additional procedures or what they were. In short, there is no evidence warranting a finding that Powers had any ministerial duty which he did not carry out. The plaintiffs make no claim that Powers had a ministerial duty based on other than allegedly established procedures. Second, there is no evidence warranting a finding of Powers's misfeasance in carrying out any ministerial duty. Our recent opinions, particularly, have taken a narrow view of what misfeasance is. See Whitney v. Worcester, 373 Mass. 208, 223, 366 N.E.2d 1210 (1977) (ordering the minor handicapped plaintiff to leave a classroom, although his vision was known to be further impaired that day, and, after his injury, ordering him to stay in the classroom without obtaining immediate medical assistance were not acts of misfeasance); Desmarais v. Wachusett Regional School Dist., 360 Mass. 591, 593, 276 N.E.2d 691 (1971) (ordering laboratory experiment to proceed without requiring student to wear safety glasses was "mere inaction" and not misfeasance). There is simply no showing of an affirmative, negligent act by Powers in giving notification of the bomb threat which in any way could have been a cause of harm to the plaintiffs. Even if we were to assume that Powers had a duty to notify more people than he did, his omission would have been a failure to act (nonfeasance). 7

Under today's law, each plaintiff proving negligently caused injuries (as we think it is fair to say they did) would be entitled to recover up to $100,000 from the public employer, and the public employees would not be liable. G.L. c. 258, § 2 (1984 ed.). See Irwin v. Ware, 392 Mass. 745, 772-773, 467 N.E.2d 1292 (1984). Our function cannot properly be to reconstitute the common law of the Commonwealth in this case after having declined to do so for many others caught up in the application of principles of governmental immunity. See ...

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  • Pina v. Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 9 de julho de 1987
    ...For analysis of the provisions of G.L. c. 258 prior to the reforms which followed Whitney v. Worcester, supra, see Narine v. Powers, 400 Mass. 343, 509 N.E.2d 905 (1987).8 See text supra at 2 and 4, and n. 5 supra.9 We believe it unreasonable to conclude that the Legislature intended to inc......
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    ...supra, rejected a requirement of a prior judgment establishing the acts as unlawful.10 This is not a case, like Narine v. Powers, 400 Mass. 343, 509 N.E.2d 905 (1987), in which there was no evidence of any established procedure or policy. Id. at 347, 509 N.E.2d 905 (isolated and apparently ......
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