Allen v. City of Boston
Allen v. City of Boston
Opinion of the Court
This is a wrongful death action in which the plaintiff administratrix, mother of the decedent, Kingsley Fitzroy Allen, alleges that her son’s death was brought about through the negligence of the defendant city of Boston or its employees. After answering the third amended complaint, the defendant moved for summary judgment. It defended by reference to the immunities of public employers from suit set out in G. L. c. 258, § 10(6) (exercise of discretionary function) and § 10(f) (nonresponsibility for third person’s violent act).
As appears from the record appendix in the present appeal, the materials on which the defendant based its motion consisted of little more than the complaint and the text of the “Boston Public Schools Code of Discipline” which, among other things, condemns students’ possession of weapons on school premises and describes the sanctions available for that and other infractions.
The plaintiff’s grievance is in substance that in handling Reynolds the public employer was negligent to the point of causing Allen’s death. The city’s § 10(6) defense asserts in effect that even if it were negligent through the actions or inactions of the school employees, it is immune from suit because it was in the exercise of discretionary functions partaking of “weighing alternatives and making choices with respect to public policy
We are not suggesting that these defenses are maintainable only by heroic amounts of evidence on the part of the public employer. On the contrary, the cases show that the evidence can often be readily assembled and presented where it exists. Of
For the point that reality is preferred over empty theorizing in adjudging claims of immunity under § 10, see Horta v. Sullivan, 418 Mass. 615, 620 (1994); Lawrence v. Cambridge, 422 Mass. 406, 412-413 (1996); Coughlin v. Department of Correction, 43 Mass. App. Ct. 809, 817 (1997).
Judgment reversed.
Section 10, as inserted by St. 1978, c. 512, § 15, and St. 1993, c. 495, § 57, bars —
“(b) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public
“(j) 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 parties treated the motion informally, tendering memoranda with exhibits instead of the usual affidavits, etc.
For his part in this encounter, Reynolds was later tried and convicted of manslaughter.
Whitney v. Worcester, 373 Mass. 208, 218 (1977).
The distinction is described and stressed in Harry Stoller & Co. v. Lowell, 412 Mass. 139, 145-146 (1992).
As to “placement,” see Whitney v. Worcester, 373 Mass. at 221-224. Compare the situation in Bencic v. Malden, 32 Mass. App. Ct. 186, 187-188 (1992). Cf. Sena v. Commonwealth, 417 Mass. 250, 254-259 (1994), to be contrasted with Horta v. Sullivan, 418 Mass. 615, 621-622 (1994); Carleton v. Framingham, 418 Mass. 623, 626-627 (1994).
Concerning “security,” cf. Doe v. New Bedford Hous. Authy., 417 Mass. 273, 286 n.13 (1994); Wheeler v. Boston Hous. Authy., 34 Mass. App. Ct. 36, 40-41 (1993); Alake v. Boston, 40 Mass. App. Ct. 610, 612-613 (1996).
Cf. Cyran v. Ware, 413 Mass. 452, 454, 460 (1992); Pallazola v. Foxborough, 418 Mass. 639, 641 (1994); Bonnie W. v. Commonwealth, 419 Mass. 122, 125-126 (1994); Lawrence v. Cambridge, 422 Mass. 406, 409 (1996); Brum v. Dartmouth, ante 318, 324-325, further appellate review granted, 427 Mass. 1105 (1998); Armstrong v. Lamy, 938 F. Supp. 1018, 1043-1044 (D. Mass. 1996).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.