State tort claims act disallows claim of 911 negligence

Plaintiffs in a fatal stabbing could not overcome sovereign immunity in alleging negligent delay of emergency response, the Massachusetts Appeals Court held last week.

A 28-year-old man with "psychiatric issues" went on a murderous "rampage" in Taunton, Mass., killing two people and injuring five more, before being shot and killed by an off-duty law enforcement officer, as reported by WBZ Boston in 2016.  In the course of the rampage, the perpetrator broke into the home of 80-year-old Patricia A. Slavin, where he stabbed her to death and also stabbed her daughter.

The perpetrator was shot and killed at the Galleria Mall in Taunton, Mass.,
after attacking patrons and fatally stabbing a diner who challenged him.
(Photo in 2020 by James Walsh CC BY-SA 4.0.)

It was more than 20 minutes after the daughter's desperate 911 call that a fire truck arrived on the scene, and more than 30 minutes for an ambulance, according to the court's recitation of the facts.  The Slavin plaintiffs alleged that negligence by a 911 dispatcher directed first responders to the wrong address and contributed to Slavin's death and her daughter's distress.

Negligence liability in American common law requires not mere causation, but proximate causation, which can be a slippery concept.  States waiving sovereign immunity in tort claims acts can use proximity of causation as a device to narrow permissible claims.

The Massachusetts Tort Claims Act does so through its section 10(j), which precludes liability for "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" (my emphasis).

The legislature intended the provision for a case such as this one, the Appeals Court wrote in dismissing the claims. "It is true that a more prompt response by city personnel might have diminished the harmful consequences of the stabbings, but the lack of a prompt response was not the original cause of the harm" (footnote omitted).

A claim against the ambulance service, a private contractor, is unaffected by the dismissal.

The case is Slavin v. American Medical Response of Massachusetts, No. 19-P-1762 (Mass. App. Ct. Jan. 11, 2021).  Justice Peter Sacks authored the opinion for a unanimous panel that also comprised Justices Henry and Englander.