Whitney v. City of Worcester

Decision Date16 August 1977
Citation373 Mass. 208,366 N.E.2d 1210
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert Martin, Worcester, for plaintiffs.

Henry P. Grady, City Sol., Worcester, for city of Worcester and others.


HENNESSEY, Chief Justice.

The plaintiffs Kris Whitney (Kris) and his father, Glen A. Whitney (Whitney), brought this action in the Superior Court for Worcester County to recover for personal injuries and consequential damages caused by the alleged negligence of the defendants. The defendants in the original action were the city of Worcester, the members of the city school committee, the city superintendent of schools, the principal and assistant principal of the Downing Street School in Worcester, two elementary teachers at the school, 1 and the school custodian. The action was dismissed as to all defendants with the exception of the school custodian, 2 and the plaintiffs appeal from the final judgments of dismissal.

By this case we are again confronted with the question of the continued viability of the existing governmental immunity doctrine in this Commonwealth. On previous occasions we have voiced our conclusion that the governmental immunity doctrine and the convoluted scheme of rules and exceptions which have developed over the years are unjust and indefensible as a matter of logic and sound public policy. However, on those occasions we further concluded that comprehensive legislative action was preferable to judicial abrogation followed by an attenuated process of defining the limits of governmental liability through case by case adjudication. Morash & Sons v. Commonwealth, 363 Mass. 612, 296 N.E.2d 461 (1973). See Caine v. Commonwealth --- Mass. --- a, 335 N.E.2d 340; Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., --- Mass. --- b, 327 N.E.2d 882 (1975). Four years have passed since our decision in Morash, four years in which the Legislature has apparently been unable to formulate a workable solution. 3 We recognize the delicacy of the tasks with which the Legislature has been confronted, and we now conclude that the Legislature and the public are entitled to a more specific statement as to this court's intentions.

Accordingly, we state our intention to abrogate the doctrine of municipal immunity in the first appropriate case decided by this court after the conclusion of the next (1978) session of the Legislature, provided that the Legislature at that time has not itself acted definitively as to the doctrine. Thereafter, when appropriate cases concerning State and county immunity are presented, it is our intention to take similar action to abrogate immunity. 4 Since it will be seen, infra, that it is also our intention to abrogate the doctrine retroactivity to the date of the Morash opinion, it is fitting that we should remand this case to the Superior Court with provisions for suitable continuance of the matter, pending legislative or judicial action. We enter such an order, infra.

While we believe that the four years which have elapsed since Morash have provided ample opportunity for legislative action, our forbearance at this time is guided by the practical consequences of the overlapping legislative and judicial powers in this area. Unlike many matters which are proper subjects for either judicial or legislative lawmaking, legislative action on the subject of sovereign immunity is almost sure to follow any action on our part, and the nature of the process is such that, barring any possible constitutional infirmities, the Legislature will have the final word.

In virtually every jurisdiction in which the doctrine of sovereign immunity has been judicially abrogated, judicial action has been followed by legislative action which modified, and in some cases completely nullified, the action of the judiciary. 5 It is fair to say that in some States the legislative response to judicial abrogation has been precipitant, perhaps induced by legislative concern for fiscal uncertainties. We think it unsupportable that we should embark on a course which fails to give maximum encouragement to reasoned deliberation in this complex area of the law. Furthermore, we think it unfair to create in this area expectations which the Legislature may nullify. Nor do we have any wish to promote unnecessary possibilities of unequal treatment among litigants, as caused by the chance of dates of injuries or lawsuits, as related to the sequence of judicial and legislative actions.

As we noted in Morash, we have no doubt as to our power to abrogate the doctrine of governmental immunity. We also have no doubt that the time for change is long overdue. Massachusetts is one of only five remaining States which retain the common law immunity at both the State and local levels. Forty-five States have modified and at least partly eliminated the defense of immunity in tort actions against municipal corporations. All except thirteen States have abolished or limited the defense in suits against the State. Note, Governmental Tort Immunity in Massachusetts: The Present Need for Change and Prospects for the Future, 10 Suffolk L.Rev. 521, 523-524 (1976). See K. C. Davis, Administrative Law of the Seventies §§ 25.00-25.00-2 (1976). Should it become necessary for us to bring change by judicial action we will at that time embark on the task of restructuring our law of governmental tort liability to bring it into conformity with reason and sound public policy. Therefore, we think it a useful exercise for this court to state now the major principles which we intend to recognize if and when it becomes necessary for us so to restructure the common law.

As a preliminary matter, we stress that abrogation of governmental immunity need not necessarily mean that governmental entities would be liable for all harm which results from the conduct of their activities. As we stated in Morash, supra, 363 Mass. at 623, 296 N.E.2d at 468, "(C)learly, there should be limits to governmental liability and exceptions to the rule of liability, based upon considerations of justice and public policy." See, e. g., Spencer v. General Hosp. of D. C., 138 U.S.App.D.C. 48, 425 F.2d 479 (1969); Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961); 3 K. C. Davis, Administrative Law § 25.11 (1958). We will discuss what we consider to be the appropriate limits of governmental liability later in this opinion.

In suggesting such limits of liability we have no wish to intrude on the prerogatives of the Legislature. Nevertheless, we are cognizant that the Legislature may wish to enact a comprehensive legislative scheme in place of the formulation we present herein. With respect to any action the Legislature may take, the principles which we express in this opinion only suggest the balance of equities we think sound. We hope, of course, that the principles we stress here will aid the Legislature in its deliberations.

I. Municipal Liability.

1. Under the existing law of the Commonwealth, it is well established that a municipality is not liable for negligent or otherwise tortious acts in the conduct of its schools. See, e. g., Desmarais v. Wachusett Regional School Dist., 360 Mass. 591, 594, 276 N.E.2d 691 (1971); Molinari v. Boston, 333 Mass. 394, 395-396, 130 N.E.2d 925 (1955); Reitano v. Haverhill, 309 Mass. 118, 122, 34 N.E.2d 665 (1941); Warburton v. Quincy, 309 Mass. 111, 117, 34 N.E.2d 661 (1941); Sweeney v. Boston, 309 Mass. 106, 109-110, 34 N.E.2d 658 (1941); Hill v. Boston, 122 Mass. 344 (1877). This rule is a subset of a broader rule of immunity which insulates a municipality from liability for injury resulting from "negligent acts of its officers or employees in the performance of strictly public functions imposed or permitted by the Legislature from which no special corporate advantage, pecuniary profit or enforced contribution from individuals particularly benefited, results," Orlando v. Brockton, 295 Mass. 205, 207-208, 3 N.E.2d 794, 796 (1936); Bolster v. Lawrence, 225 Mass. 387, 389, 114 N.E. 722 (1917), but which subjects a municipality to liability for the acts of its agents or employees "in the conduct of functions voluntarily undertaken for its own profit and commercial in character, or to protect its corporate interests in its own way." 6 Bolster v. Lawrence, supra at 390, 114 N.E. at 723.

This rule itself is a curious amalgam of two initially separate doctrinal threads which were based on a distinction between municipal or "public" officers and municipal agents or employees. Municipalities have long been held immune from liability for the acts of public officers on the theory that such officers performed public duties imposed by the Legislature and, hence, since there was no local control over the public officer, the doctrine of respondeat superior was inapplicable. 7 See, e. g., Molinari v. Boston, 333 Mass. 394, 395-396, 130 N.E.2d 925 (1955); Johnson v. Somerville, 195 Mass. 370, 377, 81 N.E. 268 (1907); Moynihan v. Todd, 188 Mass. 301, 304, 74 N.E. 367 (1905). The implication in many of our past cases was that the inquiry into possible municipal liability ended with the categorization of the alleged tortfeasor as a public officer, while, if the actor in question were properly classified as a municipal agent or employee, the inquiry would proceed to a second stage in which liability would attach if the agent/employee were engaged in a commercial activity of the municipality at the time of the tort. However, where plaintiffs have attempted to show that an activity conducted under the auspices of public officers was in fact commercial in nature, we have taken pains to show the noncommerciality of the venture before applying the public officer rule. See, e. g., Reitano v. Haverhill, 309 Mass. 118, 34...

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