Sovereign immunity and affirmative duty were at issue in a state tort claims act case of tragic facts decided 3-2 upon rehearing in the Massachusetts Appeals Court on April 12. Pedagogically, the case well illustrates the famous interchangeability of duty and causation, my favorite articulation of which appeared in then-Circuit Judge Scalia’s footnote 4 in Romero v. NRA, 749 F.2d 77, ¶ 10 (D.C. Cir. 1984). On the nuts and bolts, the case well reiterates and demonstrates the strict application of the no-affirmative-duty rule under the state tort claims act, even in a famously progressive jurisdiction.
Plaintiff Jane J. alleged rape by a male patient while they
both occupied the recreational TV room of a locked unit of the Tewksbury State
Hospital. The court engaged solely with
the question whether failure to segregate male and female patients in the rec room
legally caused the rape under the state tort claims act. Holding no cause, the court, per Justice Diana
Maldonado, affirmed summary judgment for the Commonwealth.
Here illustrated in 1907, the Tewksbury State Hospital is on the National Register of Historic Places.
The classic American case of (no) affirmative state duty for
law students studying due process in constitutional law is DeShaney v. Winnebago County, 489 U.S. 189 (1989). The U.S. Supreme Court rejected liability for
state failure to intervene and prevent fatal child abuse. The case essentially restated the peculiarly
American “no duty” doctrine of common law for the context of “constitutional
tort.” Thus the rule of no affirmative
duty manifests across the contexts of common law, due process, and sovereign
immunity. The doctrine of federal law is
replicated in the states, though may be varied by statutory interpretation when
claims are controlled by state waivers of sovereign immunity in tort cases. In this Massachusetts case, statutory
interpretation of the state claims act molded the question into one of
causation—though the DeShaney
question nonetheless constitutes the heart of the inquiry.
Arguments focused on state claims act Mass.
Gen. L. ch. 258, § 10(j). In
relevant part (a list of exceptions omitted here), the section maintains
sovereign immunity against “any claim based on an act or failure to act to
prevent or diminish the harmful consequences of a condition or situation,
including the violent or tortious conduct of a third person, which is not
originally caused by the public employer or any other person acting on behalf
of the public employer.” Thus the
problem of affirmative duty is phrased in terms of “original[] cause[],” and
the appeals court set out to determine whether non-segregation could be said to
have been an “original cause” of the rape.
In the court’s interpretation, original cause is “strict,”
requiring “‘an affirmative act [not a failure to act] … that creates the “condition or situation”
that results in harm’” (quoting precedent; court’s added text; my
italics). The court recounted a series
of cases rejecting recovery under § 10(j), including one case that held state
lifeguards having negligently abandoned their posts was not the original cause
of a drowning. That result pertained
even though the argument for an intact causal chain was stronger for lack of an
intentional and criminal intervening actor.
Jane J.’s claim could not survive such strict examination.
Justice Gregory Massing, joined by Justice Peter Rubin,
filed a vigorous dissent predicated on special relationship duty arising from involuntary
commitment, or alternatively, on the merits, arguing in the latter vein that the
“hospital ‘materially contributed to creating,’ and did not merely fail to
prevent, the condition that resulted in the plaintiff’s being attacked in the
common room.”
The case is Jane J. v.
Commonwealth, No. 15-P-340 (Mass. App. Ct. Apr. 12, 2017) (Justia).
