Reid v. City of Bos.

• Decision Date: 12 July 2019
• Docket Number: No. 18-P-645,18-P-645
• Parties: Niquel REID v. CITY OF BOSTON.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 591

129 N.E.3d 867

Niquel REID

v.CITY OF BOSTON.

No. 18-P-645

Appeals Court of Massachusetts, Suffolk..

Argued January 11, 2019

Decided July 12, 2019

Nicole M. O'Connor, Senior Assistant Corporation Counsel (Nieve Anjomi, Assistant Corporation Counsel, also present) for the defendant.

Christine R. Fitzgerald, Boston, for the plaintiff.

Present: Massing, Desmond, & McDonough, JJ.

MASSING, J.

This appeal concerns the application of the Massachusetts Torts Claim Act (MTCA), G. L. c. 258, in the context of police activity. The plaintiff, Niquel Reid, was conversing calmly on the sidewalk with her sister's boyfriend, Tyrone Cummings, when three Boston police officers, responding to a 911 call from the plaintiff's sister, approached. One of the officers, without warning Cummings or his fellow officers, grabbed Cummings from behind, intending to conduct a patfrisk. Cummings responded by removing a firearm from his waistband and exchanging gunfire with the officers. In the end, the officers fatally shot Cummings, but not before he shot the plaintiff in the leg. A jury awarded the plaintiff damages under the MTCA for the officers' negligence. The city of Boston¹ argues that it is immune from liability under the MTCA or, in the alternative, that the officers' conduct was not the proximate cause of the plaintiff's injuries. We affirm.

Background.² On the morning of June 14, 2011, the plaintiff received a call from her sister, who said she would be coming to the plaintiff's nearby home after putting her daughter on a school bus. Minutes later, the plaintiff's sister called again. The plaintiff could hear her sister saying to someone, "Why are you following me ... stop following me ... why are your hands behind your back[?]" The plaintiff was aware that her sister and her sister's boyfriend, Cummings, were not getting along. Sensing trouble, the plaintiff told her sister that she would pick her up.

When the plaintiff arrived at her sister's home, Cummings was standing in the street in front of his car. The plaintiff parked her car and walked over to speak with him. Cummings spoke in a normal tone of voice and was not belligerent. The plaintiff did not see any weapons on Cummings, and it did not appear as if he had been in a fight. While the plaintiff and Cummings were talking, the plaintiff's sister emerged from her house with her daughter, put her daughter in the plaintiff's car, and then got into the car herself. The plaintiff's sister did not appear injured or frightened of Cummings. At no point during their interaction, which lasted less than five minutes, did the plaintiff feel afraid of Cummings.

Unbeknownst to the plaintiff, while she was talking to Cummings, her sister had called 911. Boston Police Officers Shawn Marando and Charbel Kamel, riding in a cruiser driven by Marando, were dispatched to the scene; Officer Timothy Denio, working alone, heard the call and decided to assist. Over the police radio, the dispatcher described Cummings and relayed the substance of the 911 call as, "[M]an threatening to kill ... his girlfriend.... But no known weapons, no mention of weapons." The dispatcher also sent supplemental text messages to the mobile data terminals in the officers' cruisers. These supplemental messages included a physical description of Cummings and informed the officers that the caller and her eight year old daughter were in a car parked outside the residence where the assault had occurred, that the suspect was standing outside speaking with the caller's sister, and that there were "no weapons." Only Kamel, who was not driving, looked at the supplemental texts, and he only glanced at the beginning portion containing the suspect's description and the summary of the incident. He considered the status of the situation to be "unknown weapons," because "the dispatcher does not know what's going on the scene."

The officers arrived to find the plaintiff and Cummings on the sidewalk; they erroneously assumed that the plaintiff was the 911 caller. Marando and Kamel approached and stood beside the plaintiff and Cummings, all within arm's length of one other, while Denio took up a position behind his fellow officers. Cummings and the plaintiff were speaking calmly, and Cummings's demeanor did not change when the officers approached. The plaintiff did not appear to be injured. The officers did not see any indication of weapons. Marando asked the plaintiff and Cummings if they had anything on them. The plaintiff replied, "No," as did Cummings. Marando asked if either of them called the police, and both responded that they had not. Marando then said, "[Y]ou both look all right," and asked if they were "okay." The plaintiff said, "I'm okay," and Cummings said, "I'm good."

At that moment, Kamel came up behind Cummings, grabbed his arm, and reached for his waist, intending to conduct a patfrisk. Kamel did not tell Cummings, or the other officers, what he was going to do. Kamel's sudden action caught his partner Marando by surprise because he was in the middle of "deescalating" the situation and making sure everyone was calm. Marando testified that he would not have made "an aggressive move" such as initiating a patfrisk in such circumstances.

Cummings reacted to Kamel's sudden contact by pushing Kamel away and drawing a firearm from his waistband. As Cummings backed away from the officers, he pointed the gun toward Marando and fired. Marando and Denio returned fire. After Marando's first shot struck Cummings, Cummings started to fall to the ground, but he continued to discharge his weapon. The plaintiff tried to get out of the way, but her path was blocked by a fence between the sidewalk and a house. During the shootout, Cummings shot the plaintiff in her left leg; Marando was also shot in the leg. Cummings died from multiple gunshot wounds

.

The plaintiff sued the city for negligence, and the case proceeded to trial. At the close of the plaintiff's case, the city moved for a directed verdict, which the judge denied. The city unsuccessfully renewed its motion at the close of all the evidence. By special verdict, the jury concluded that "one or more police officers [were] negligent with respect to their actions at the scene ... prior to shots being fired" and that "the negligence of the police officer(s) prior to shots being fired [was] a substantial contributing factor in causing injuries to [the] plaintiff." The jury awarded her $253,391.73, which was reduced by statute to $100,000. See G. L. c. 258, § 2. After entry of the amended judgment, the city filed a motion for judgment notwithstanding the verdict (judgment n.o.v.) or for a new trial, which the judge denied. The city appeals from the amended judgment and from the order denying its motion for judgment n.o.v.

Discussion. 1. Standard of review. When reviewing the denial of a motion for directed verdict or judgment n.o.v., we apply the same standard as the trial judge. See O'Brien v. Pearson, 449 Mass. 377, 383, 868 N.E.2d 118 (2007). Our task, "taking into account all the evidence in its aspect most favorable to the plaintiff, [is] to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff." Tosti v. Ayik, 394 Mass. 482, 494, 476 N.E.2d 928 (1985), quoting Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254, 444 N.E.2d 1306 (1983). "The court will consider whether ‘anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn’ in favor of the non-moving party." McNamara v. Honeyman, 406 Mass. 43, 46, 546 N.E.2d 139 (1989), quoting Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978).

2. MTCA immunity. The city contends that it is immune from suit under the MTCA's "statutory public duty rule."

Carleton v. Framingham, 418 Mass. 623, 627, 640 N.E.2d 452 (1994). Specifically, the city relies on G. L. c. 258, § 10 (h ), which bars claims based on the failure to provide police protection, and G. L. c. 258, § 10 (j ), which bars claims based on the tortious conduct of third parties "not originally caused by the public employer." We agree with the trial judge that these exclusions do not apply.

a. Section 10 ( h ). The city asserts that because the plaintiff's theory of liability is based on failure to provide police protection -- that is, the officers' failure to prevent Cummings from shooting her -- it is immune under § 10 (h ).³ Specifically, the city invokes the clause of G. L. c. 258, § 10 (h ), providing immunity from claims based on "failure to provide adequate police protection."

Section 10 (h ) "immunize[s] a municipality when the criminal acts of a third person are a cause of the plaintiff's harm, and the police were negligent in not preventing that criminal conduct." Carleton, 418 Mass. at 629, 640 N.E.2d 452. Thus, a town could not be held liable for a fatal automobile accident that occurred after a police officer first failed to prevent a person the officer knew to be drunk from getting into a car and driving away, and then abandoned pursuit when the driver did not stop for the officer's flashing lights.

See id. at 624, 627 n.4, 629, 640 N.E.2d 452. See also Makynen v. Mustakangas, 39 Mass. App. Ct. 309, 310, 314, 655 N.E.2d 1284 (1995) ( § 10 [h ] provided immunity where, one-half hour before intoxicated driver caused head-on collision, police officer stopped driver, issued warning for speeding, and allowed driver to drive away). Nor could a town be held liable for the shooting of a domestic violence victim based on its police officers' repeated refusals to arrest the victim's estranged husband for violating a G. L. c. 209A protective order. See Ford v. Grafton, 44 Mass. App. Ct. 715, 716-720, 724, 693 N.E.2d 1047 (1998).

As these cases illustrate, § 10 (h ) shields municipalities from claims where police...