In negligence claims over child welfare, bus fight, Mass. high court opines on qualified, sovereign immunity

Two immunity cases ended with different outcomes for public officials in the Massachusetts high court on two successive Fridays, and the cases illustrate different theories of immunity.

In a case decided on March 21, social workers with the Massachusetts Department of Children and Families (DCF) asserted qualified immunity in the death and severe injury of two children, each about two years old. The Supreme Judicial Court (SJC) considered the immunity analysis but decided ultimately that, immunity notwithstanding, the workers had not legally caused the harm the children suffered.

In a case decided March 14, the Massachusetts Bay Transportation Authority (MBTA) asserted sovereign immunity in the serious injury of a passenger who was beaten by a bus driver with known anger management issues. The SJC decided that the state agency was not entitled to sovereign immunity as codified by a provision protecting the state from liability for the acts of third parties.

Mass. DCF Worcester West Area Office
From Mass. DCF, purported © 2025
Commonwealth of Massachusetts, asserted fair use.

Qualified Immunity 

However much the state defendants prevailed in the first case, the court's recitation of the facts reveals a deeply disturbing record of irresponsibility on the part of DCF. A woman with four foster children was correctly suspected of having a live-in boyfriend with a record of an open armed robbery charge, three assault and battery charges, and multiple restraining orders. That would be prohibitive of foster placements were the facts confirmed, so DCF planned to monitor the home closely. For unknown reasons, officials dropped the ball, and inspections were too few and too infrequent.

The horrifying 2015 accident that took the life of one child and severely injured another occurred overnight when one of the children reached for "and adjusted the thermostat on an electric heater, which was on the wall above the crib, causing the children's room to overheat," the court wrote. Another child in the room died, and the child who manipulated the thermostat "was found to be in critical condition, suffering from respiratory failure, seizures, hyperthermia (a high temperature), and hypotension (low blood pressure)." The foster parent called 911, and the critically injured child was taken to the hospital. She survived but remains impaired, and her representatives were the plaintiffs in the instant case.

In a civil rights action under federal law, 42 U.S.C. § 1983, DCF officials claimed qualified immunity. The court coherently explained how the doctrine works generally and in this context:

Government officials are entitled to qualified immunity from § 1983 claims for damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known...." Littles v. Commissioner of Correction [Mass. 2005]. The determination of qualified immunity follows a two-part test:

"The first prong asks whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; the second prong asks whether that right was clearly established at the time of the defendant's alleged violation. [T]he second step, in turn, has two aspects. One aspect of the analysis focuses on the clarity of the law .... The other aspect focuses more concretely on the facts of the particular case and whether a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights" .... Penate v. Sullivan ... (1st Cir. 2023)....

Under the first prong, "'substantive due process' prevents the government from engaging in conduct that 'shocks the conscience'" .... United States v. Salerno [U.S. 1987]. In the foster care context, courts apply one of two standards to determine whether government conduct is conscience-shocking. The first ... is the "deliberate indifference" standard.... Under this standard, a plaintiff must show that a government actor "exhibited deliberate indifference to a known injury, a known risk, or a specific duty." ....

Alternatively, under the second standard, ... a plaintiff must show that a State actor's professional decision constitutes such a "substantial departure from accepted professional judgment, practice, or standards" that the decision was not actually based on such judgment.

The court did not resolve the difference between the two standards, however, because the case was resolved on a different basis. Notwithstanding qualified immunity, a plaintiff in a civil rights case, just like in a state tort case, must prove proximate, or legal causation, and the plaintiffs here could not.

DCF misconduct might have been a scientific cause of the accident. However, the reason DCF was investigating the foster care home was the suspected presence of man, a co-caretaker, with a problematic criminal record. Scientific causation might be proved if the plaintiff could prove that proper DCF investigation would have resulted in the removal of the man from the home. But that flub did not legally cause the accident, the court opined, because the accessibility of the thermostat to the crib and the child's consequent tampering with it had nothing to do with the presence of the man in the home.

The conclusion is sound, though it leaves one to wonder whether there yet has been any reckoning at DCF, or among public officials and legislators if under-resourcing is to blame.

It would not have made any difference here, but, collaterally, it's worth noting that the very existence of qualified immunity as a defense to civil rights actions has been an issue in play in recent years. I explained in 2 Tortz: A Study of American Tort Law (Lulu 2024 rev. ed.):

Of unlikely constitutional compulsion, qualified immunity has come into question in recent years, especially amid high-profile incidents of police violence. Some states and localities have adopted statutes and ordinances limiting or eliminating qualified immunity for police. At the federal level, U.S. Supreme Court Justices Clarence Thomas and Sonia Sotomayor both have criticized qualified immunity. Justice Thomas criticized qualified immunity as unsupported by the text of the Constitution or statute, and Justice Sotomayor criticized the doctrine for failing to punish official misconduct. See N.S. v. Kansas City (U.S. 2023) (Sotomayor, J., dissenting from denial of certiorari); Hoggard v. Rhodes (U.S. 2021) (Thomas, J., respecting denial of certiorari); James v. Bartelt (U.S. 2021) (Sotomayor, J., dissenting from denial of certiorari); Baxter v. Bracey (U.S. 2020) (Thomas, J., dissenting from denial of certiorari). Nevertheless, thus far, the Court has upheld the doctrine. Since the murder of George Floyd by a police officer in Minneapolis in 2020, U.S. Rep. Ayanna Pressley (D-Mass.) and U.S. Sen. Ed Markey (D-Mass.) have persistently but unsuccessfully championed bills to abolish qualified immunity in § 1983 actions.

The first case is Gotay v. Creen (Mass. Mar. 21, 2025) (FindLaw). Justice Serge Georges, Jr. authored the unanimous opinion of six justices.

MBTA bus
Mass. Office of Travel & Tourism via Flickr CC BY-ND 2.0

Sovereign Immunity

A different theory of immunity, state sovereign immunity, animated the case decided a week earlier.

At issue in this second case was the puzzling and unique section 10(j) of the Massachusetts Tort Claims Act (MTCA), which attracts more than its fair share of MTCA appellate litigation in the commonwealth. The case arose from an assault on a passenger by an MBTA bus driver with anger management issues.

Relying on facts as favorable to the plaintiff, the court retold the story of the part-time driver who "sometimes engaged in unsafe driving and, on occasion, interacted with the public and his supervisors in a hostile or insubordinate manner," yet after three years was promoted to full time. The court recounted subsequent altercations with a passenger described as "unruly" and then with a police officer in a disagreement over road obstruction.

The instant case arose when a passenger pursued the bus, rapping on doors, trying to get information about routes. Further recounting the plaintiff's facts, the court wrote:

Lost, cold, and frustrated at the prospect of being stranded, [plaintiff] first questioned why the bus driver had not stopped sooner. The driver responded by yelling at [plaintiff] and leaving his driver's seat to confront [plaintiff] at the door. The driver kicked snow from the bottom of the bus at [plaintiff]. [Plaintiff] uttered a profanity. This further triggered the bus driver's anger; as the driver subsequently described it, he just "lost it." Enraged, the driver lunged at [plaintiff], escalating the encounter. For his part, [plaintiff] retreated, but the driver gave chase. When the driver caught up, the driver commenced punching and kicking [plaintiff]. The beating was so severe that [plaintiff] suffered a traumatic brain injury that has left him "permanently and totally disabled from his usual employment."

The plaintiff sued the MBTA for negligence in hiring, promotion, retention, and supervision. The defendant asserted sovereign immunity as codified in the MTCA.

MTCA section 10(j) is Massachusetts's effort to find the fine line between a tort claim that properly blames public officials for tortious misbehavior and a failure-to-protect claim, when public officials are not responsible for the actions of private third parties. Finding this line is a well known problem in tort claims, federal and state. The Massachusetts test has its own peculiar language, which, the abundance of case law suggests, is not necessarily clarifying. The court here quoted its own earlier assessment that the provision "presents an interpretive quagmire."

Section 10(j) holds public officials immune from "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."

The test is especially hairy in cases such as this one, when the alleged negligence is on the part of the state as employer, thus one step removed from the misconduct of a state employee. When does negligence on the part of the state employer constitute the "affirmative act" required to circumnavigate 10(j)?

Here, the court decided:

The claims at issue here are based on the MBTA's own failure to exercise reasonable care in its supervision of the bus driver; as we have explained, "where the supervisory officials allegedly had, or should have had, knowledge of a public employee's assaultive behavior, it is the supervisors' conduct, rather than the employee's intentional conduct, that is the true focus of the case." Dobos v. Driscoll ... [Mass. 1989] (affirming judgment against Commonwealth for negligent supervision and training of officer who assaulted civilian)[; s]ee Doe v. Blandford ... [Mass. 1988] (MTCA permitted claims regarding public employer's negligent conduct in hiring, retaining, and supervising guidance counselor who assaulted student independent of alleged vicarious liability for intentional tort of public employee)....

In sum, [section] 10 (j) does not provide immunity to a public employer for its misfeasance in placing an employee with known but untreated anger management issues that manifest in violent and hostile behaviors in a public-facing position. The record on summary judgment here would support a fact finder's reasonable conclusion that the MBTA's affirmative act—its own decision, through its public employees responsible for supervising the bus driver, to schedule the driver to operate the bus route in Lynn, [Mass.,] without training him to manage his anger—originally caused [plaintiff]'s harm.

The decision feels right as measured against the legislature's determination to distinguish truly third-party causes, that is, risks initiated outside the scope of state responsibility, from causes inextricably tied to state responsibility, such as a state employer's responsibility in direct negligence for its agent's misconduct. And I do think this concept of scope of responsibility, or common duty in the parlance of multiple liabilities, can be used to delineate a workable understanding of "not originally caused."

At the same time, I am not persuaded by the court's reasoning that 10(j) jurisprudence has yet drawn a line much more clear than "I know it when I see it."

The second case is Theisz v. MBTA (Mass. Mar. 14, 2025) (Justia). New Orleans-born Justice Dalila Argaez Wendlandt authored the unanimous opinion of four justices, affirming the Appeals Court.

Court denies police immunity under state tort claims act in death of intoxicated man in protective custody

Michael Coghlan CC BY-SA 2.0 via Wikimedia Commons

In a lawsuit over the death of an intoxicated man in police protective custody, the defendants were not entitled to immunity under exceptions to the Massachusetts Tort Claims Act (MTCA), the Commonwealth Appeals Court held in April.

Police in New Bedford, Mass., took the plaintiff's decedent into protective custody upon finding him in a state of heavy intoxication and disturbing the peace. Police put the man in a county jail cell, where he got into an altercation with another detainee. The other detainee pushed the man to the ground, where he hit his head. The man died from complications of the injury.

Defendant officials sought immunity from the plaintiff's negligence lawsuit under the discretionary function exception to the MTCA, section 10(b), and under the causation limitation of MTCA section 10(j).

Section 10(b) is similar to the discretionary function exception of the Federal Tort Claims Act. It disallows tort claims when public defendants exercise policy-making discretion, even when discretion is abused. The theory behind this exception is that public officials require latitude to make decisions, good and bad, and not every government decision should be second-guessed in litigation. The tort claims act reserves for litigation cases in which standards of conduct are set or clear, and the plaintiff alleges negligence relative to that standard.

The court denied defendants discretionary function immunity, because state law provides that persons in protective custody should be held at police stations, referred to appropriate care facilities, or returned home. The plaintiff alleged that the decedent's commitment to the county jail was improper and proximately caused the injury and death. Police had no discretion under the law to detain the decedent in the county jail.

MTCA section 10(j) is a creature specially of commonwealth law and articulates a potent liability limitation arising in causation. Section 10(j) disallows 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.

Thus, state defendants disavow liability under section 10(j) when the plaintiff's liability theory is in the nature of a failure to supervise or intervene, and the more proximate cause of the injury is the conduct of a third party. Here, the defense pointed to the push to the ground by the decedent's fellow detainee, if not the decedent's own provocation.

The court also denied the defendants 10(j) immunity. The official act relevant to the plaintiff's claim was the decision to place the decedent in a county jail cell with potentially dangerous detainees, the court opined, not the precise mechanism of injury that ensued.

The case is Baptista v. Bristol County Sheriff's Department, Nos. 20-P-731 & 20-P-778 (Mass. App. Ct. Apr. 15, 2022). Justice Peter J. Rubin wrote the opinion of the unanimous panel.

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.

Commonwealth wins two in tort: one, bad presentment; two, no duty to juvenile assaulted in contractor custody

The Commonwealth prevailed in two tort suits under the Massachusetts Tort Claims Act at the end of February.  One case, a slip-and-fall, was decided by the Massachusetts Supreme Judicial Court on the procedural ground of untimely presentment.  The other case, involving a physical assault on a juvenile with tragic consequences, was decided by the Massachusetts Appeals Court on the merits of attenuated duty and causation in civil rights liability.

Leicester Town Hall, 2006.
Photo by Pvmoutside CC BY-SA 3.0.

In the first case, "plaintiff, Katherine Drake, slipped and fell at Leicester High School while picking up her grandson during school hours. She suffered multiple injuries, including a fractured knee and wrist."  Drake mailed her presentment (notice, or demand) letter to the Town of Leicester precisely on the two-year anniversary of the accident.  The Massachusetts Tort Claims Act requires presentment within two years, and the Commonwealth moved to dismiss on grounds of untimeliness.

The Supreme Judicial Court declined to construe the statute liberally.  "Drake does not contend that her mailed letter could have arrived on that same day, nor does she contest that the office of the proper executive officer received the presentment letter ... a full two years and three days after she was injured," the court observed.  "Given our conclusion that presentment occurs upon delivery to the office of the proper executive officer," the court affirmed dismissal.

Long Island in Boston Harbor, 2008.  Photo by Doc Searles CC BY-SA 2.0.

The second case described horrific injury inflicted on a juvenile in state custody.  A "youthful offender," Williams was in Casa Isla, "a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with [the Department of Youth Services (DYS)] to operate youth residential programs." (There were other problems at Casa Isla, e.g., MassLive, WBUR.)  During a flag football game, Williams was randomly attacked by a 17-year-old resident of another VOA-operated treatment program on the island, Project Rebound, who "said he wanted to get 'kicked out.'"  After the attack, Williams experienced worsening headaches and bodily pain, but initially was given only ibuprofen.  After later emergency medical intervention, Williams was diagnosed as having "suffered ... a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care."

The last bridge to Long Island was demolished in 2015.
Photo by Eric Kilby CC BY-SA 2.0 (2017).

Upon suit under the Massachusetts Tort Claims Act, the courts rejected state liability upon various theories of DYS responsibility for the conduct of contractor VOA.  DYS and the Commonwealth had no direct involvement with the management of Casa Isla or Project Rebound, so had not even the predicate knowledge that might support liability on a civil rights theory.  Accordingly, the Appeals Court affirmed in rejecting theories of Eighth Amendment, supervisory, and vicarious liability.  Similarly, absent any affirmative act by state officials, the Commonwealth, conversely, remained within the protection of state sovereign immunity.

Associate Justice William J. Meade

Drake's case reinforces the importance of legal educators continuing to teach the 19th-century "mailbox rule," however much Generations Y and Z might not intuitively apprehend its logic.  Williams's case, however sorrowful the outcome, reinforces basic (no affirmative) duty doctrine in "constitutional tort."  As a policy matter, Williams's case also might raise questions about the wisdom of outsourcing juvenile custody without providing for public accountability.  Oh, and let's make a new rule: Anytime you're going to imprison people on a harbor island with a grisly history, that raises a red flag.

The cases are Drake v. Town of Leicester, No. SJC-12781 (Mass. Feb. 28, 2020) (Court Listener, Suffolk Law, Mass. Lawyers Weekly), and Baptiste v. Executive Office of Health and Human Services, No. 18-P-1353 (Mass. App. Ct. Feb. 28, 2020) (Justia).  Justice David A. Lowy wrote for a unanimous court in Drake.  Justice Meade wrote for a unanimous panel with Shin and Singh, JJ., in Baptiste.

Area man signposts 'sovereign immunity site'

Attorney Dan Greenberg, friend of the blog and a federal policy adviser in Washington, D.C., contributes this photo from his home neighborhood of Alexandria, Va.

The sign reads:

City of Alexandria

Sovereign Immunity Site

 Did you know ...

     The City of Alexandria claims "sovereign immunity" from liability for damage its trash collection truck did to this fence.

     That's right.  On May 22, 2019 a city truck hit and broke this fence.  It's on video!  But none of that matters.  They're immune from liability.

What is sovereign immunity?

     Simply put, the term sovereign immunity is derived from British common law doctrine based on the idea that the King could do no wrong.

     So be careful around City of Alexandria vehicles.  They can do no wrong.

The underlying dispute was reported by Fox 5 D.C. in October.  A trash truck caused $5,000 in damage to Denis Goris's 30-year-old iron fence.



Sovereign immunity turns up often in a society in which government is pervasive in our lives and surroundings, and that's bound to cause frustration.  The sign-bearer is right that the essence of immunity is inequitable, as between the plaintiff who suffers an injury and the defendant sovereign who caused it.  The Federal Tort Claims Act waives federal sovereign immunity in a narrow class of cases, and states can be less generous with their tort claims acts.  The broader aim that keeps immunity going in a democracy is the protection of public assets, which belong to all of us.

It looks like Alexandria does use city staff for trash collection.  Contractors throw a wrinkle into the mix (federal, state).  I am not a Virginia lawyer; what I know of the state's tort claims act, it treats counties and cities much more generously than state-level actors.  The localities enjoy near absolute sovereign immunity for governmental functions, and, almost 50 years ago, the Virginia Supreme Court held that municipal trash collection is a governmental function entitled to immunity.  Alexandria does have an administrative claim process, and there's some room to argue.

The city told Fox 5: "Under federal and state laws and court rulings, the City is generally not liable for damages caused in the course of providing core government services. While the City conducts extensive planning and training to avoid damaging property, some damage does occur given the vast scope of City operations. Exemption from these claims saves a significant amount of money every year for taxpayers as a whole."

In a story last year, NBC 4 Washington reported: "Alexandria Won't Pay $4,600 in Damages to SUV Caused by City Trash Truck."  The city is as consistent with its tort claims as it is with its driving record.

[SUPPLEMENT: "Why is this still a thing?," Planet Money asks about state sovereign immunity in the context of excellent coverage of the copyright case pending in the U.S. Supreme Court, Allen v. Cooper.]

Mass. Superior Court dismisses nuisance claim over airport skydiving concession on Cape Cod

Chatham Municipal Airport approach (CC BY 2.0 woodleywonderworks)

The Superior Court in Barnstable, Massachusetts, ruled in favor of the Town of Chatham against a citizen group earlier this month over the town's award of a skydiving concession at the Chatham Municipal Airport, the Cape Cod Times reported.  Arguing for summary judgment, the town relied on preemption by FAA regulations in asserting that it had no choice but to award the concession for a lawful activity.  The court agreed, according to the newspaper.  The trial court arguments were detailed by Tim Wood in a story for The Cape Cod Chronicle in May.  According to Wood's reporting, the citizens argued "that skydiving is not safe and is a nuisance, with multiple flights and screaming and yelling by tandem jumpers interfering with the 'quiet enjoyment' of their property. They point to a 2012 crash of a skydiving plane into Lovers Lake after it ran out of fuel and the severe injuries suffered by a tandem jumper as evidence of the safety concerns."

Chatham Municipal Airport on Cape Cod

City not liable for bullying that resulted in child's quadriplegia, Mass. supreme court holds (and note on infantilization of faculty in higher ed)

The Massachusetts Supreme Judicial Court (SJC) affirmed application of the Massachusetts Torts Claims Act (MTCA) to protect the City of Lynn, north of Boston, from liability in a tragic bullying incident that resulted in the permanent paralysis of the victim, a fourth grader.  The case is Corimer v. Lynn, No. SJC-12323 (Feb. 27, 2018).

The boy's mother had reported bullying and harassment of her son on "multiple occasions" in the 2007-08 school year.  Ultimately bullies pushed the boy down stairs, resulting in damage to his spinal cord and in quadriplegia.

The 1978 MTCA waives sovereign immunity, but a public actor may be held liable for the tort or violence of a third party only if the public actor "originally caused" the "harmful consequences."  Mass. G. L. c. 258, § 10 (j).  The courts have struggled to interpret that language, but have, as the SJC restated the rule, looked for "an affirmative act that materially contributed to creating a condition or situation that resulted in [plaintiff's] injuries."  A failure to act is distinguished.

The school left the bullies in class in proximity to the plaintiff, and we may assume arguendo that the school was negligent in failing to protect the plaintiff.  Even so, those failures were "'too remote as a matter of law'" to represent material contribution to the plaintiff's injuries.  In essence, then the "originally caused" standard seems to effect a causation-at-law analysis heightened above even the stringent inquiry invoked upon an intervening criminal actor.  On the same basis, the court rejected ancillary plaintiff theories predicated on negligent hiring, supervision, and retention of school staff.

The SJC acknowledged "that bullying is a serious issue" comprising "the emotional pain of day-to-day harassment" and sometimes, as here, "horrific physical consequences."  "[T]he elementary school could have and should have done more to protect [the plaintiff]."  Nevertheless, the operation of the MTCA is textbook, furthering the "public policy [of] some reasonable limits to governmental liability in order for taxpayers to avoid a potentially catastrophic financial burden."

Allow me a tangential observation about bullying policy:  

Many workplace entities, private and public, and including my own, are busily about the business of formulating "anti-bullying" policies.  At least in the academic context, I find these efforts nothing less than an end-run of contract, tenure, and academic freedom, calculated to suppress dissent and vigorous debate.  This SJC case indirectly illustrates the problem.  

Bullying is a concept derived from the K12 environment.  In the adult workplace—especially in the academic workplace, where the very job is the exercise of free expression—bullying is co-extensive with harassment, discrimination, tort, and crime.  All of those were present in Corimer, harassment even before the child was physically injured.  There is no need for a separate policy purportedly to enforce civility (as if such a thing even were possible) among adults.  Any effort to create such a policy is nothing more than an authoritarian perversion of modish terminology—on campus, the infantilization of the faculty—and a disservice to children who truly are bullied in school.

Error that led to Texas mass murder recalls recent tort claim against police after Massachusetts shooting

The Air Force yesterday admitted that it failed to pass on information about the violent record of the Texas church shooter that might have stopped him from having ready access to firearms (WaPo).  Good on the USAF, by the way, for coming clean quickly, however tragic and futile the admission is now for the 26 people who lost their lives.  That angle of the Texas story caused me to pull back up a Massachusetts Appeals Court decision that last week I filed away as "unremarkable." 

After an escalating argument in Somerville, Mass., in 2012, Santano Dessin shot Carlos Andrade "in the neck, shattering Andrade's spine and leaving him paralyzed from the neck down," the court recounted (Boston.com).  It turned out that Dessin possessed three firearms, including the one he used to shoot Andrade, and he should not have had them because of a prior juvenile delinquency adjudication.  The Somerville Police Department at one point had confiscated the three firearms from Dessin, but then returned them erroneously.  Despite subsequent notice to the department by public safety authorities and the Superior Court that Dessin remained disqualified from possessing firearms, police failed to re-confiscate them.  Andrade and family sued police for negligence under the Massachusetts Tort Claims Act (MTCA).

The court rejected liability under the MTCA § 10(e), which, typically of state sovereign immunity laws, disallows tort claims predicated on "any claim based upon the issuance, denial, suspension or revocation or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization."  The court reasoned, "A local police department's duties to receive, store, and dispose of weapons when a person's firearms license is revoked or denied 'are central to the functions that are immunized from liability by § 10(e)'" and "'cannot be parsed from the remainder of the process'" (quoting Smith v. Registrar, 66 Mass. App. Ct. 31, 33 (2006)).

Guns and Somerville, Mass., share a revolutionary history.

However routine and appropriate a construction of statute the Mass. App. decision is, it points up a policy problem that played out with tragic consequences in Texas.  Gun control opponents including the NRA routinely contend that gun control proponents' job-one should be enforcing the laws that are already on the books, rather than lobbying for new ones.  On the enforcement question, we should all be on the same page.

The merits of our unusual cultural value in gun ownership, as expressed in the Second Amendment, and the appropriate scope of reasonable regulation, may be debated.  Nevertheless, at present, we hold gun ownership as a presumptive, fundamental right.  At the same time, declining to regulate gun ownership on the front end of the transaction means that, on the back end, we must vigorously enforce properly adjudicated deprivations of the right.  Public safety--the competing fundamental right to life--requires no less.

In the area of freedom of expression, we vigorously, presumptively, and even prophylactically protect free speech.  But after proper adjudication, we allow proscription of obscenity, criminal punishment of conspiracy, and enforcement of defamation liability.  Perhaps we ought exercise greater care with prophylactic protection of Second Amendment rights, because the potential consequences of error are grave.  But that wasn't the problem in Massachusetts or Texas, where the risk of error was real and known.

The case is Andrade v. City of Somerville, No. 16-P-1407 (Mass. App. Ct. Oct. 30, 2017).

Court holds no duty/no cause in rape case against state

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).

Lawyers, read carefully: 'Presentment' held defective under state tort claims act

Flickr photo by bradlee9119 per Creative Commons license

A cautionary tale from the Massachusetts Appeals Court yesterday, per Justice Peter Sacks, reminds lawyers to read statutes carefully.


Plaintiff was among five persons (perhaps family, based on the names of four) injured in a Massachusetts Bay Transportation Authority (MBTA) bus accident.  Her lawyer filed a claim with the "MBTA Claims Department," the transmittal asking that the claim be referred to the appropriate authority.  The MBTA made settlement offers to the five, and only Plaintiff turned down the offer and opted to pursue litigation instead.

The Massachusetts Tort Claims Act requires presentment of a claim to the "executive officer" of the defendant state entity.  The trial court let the difference slide under a statutory exception allowing for correction of defective presentment upon the executive officer's actual knowledge of the claim.

The appeals court reversed, ruling that the exception must be construed narrowly.  Neither the attorney's request to forward nor logical inference was sufficient.  The court awarded the MBTA summary judgment.

The court acknowledged that the ruling is "a harsh result," especially considering that it probably mattered not at all to the MBTA claims process whether its executive received notice.

The case is Coren-Hall v. MBTA, No. 16-P-300 (Mass. App. Ct. Feb. 23, 2017), here at Mass.gov, here at Mass. Lawyers Weekly, and here at Justia.

[UPDATE, Dec. 17, 2018: In a December 2018 negligence case against the MBTA under the state tort claims act, the Supreme Judicial Court affirmed "that the MBTA had waived the affirmative defense of inadequate presentment by failing to plead it with the required specificity and particularity." The case is Theisz v. MBTA, No. SJC-12559 (Mass. Dec. 12, 2018).]