Anderson v. City of Gloucester
Anderson v. City of Gloucester
Opinion of the Court
A mid-winter fire erupted in a house on Essex Avenue in Gloucester after an occupant threw a firecracker into a dry Christmas tree. The fire claimed the life of Arm Goyette, seriously injured Susan Anderson (Anderson), and inflicted lesser injuries on Clayton Enslow and Russell Currier. In the fire’s immediate aftermath, however, Anderson was identified as the decedent. The error was discovered six days later upon removal of medical equipment that covered Anderson’s face while she recuperated in a Boston hospital’s intensive care unit.
After a period of discovery, the city moved for summary judgment, asserting that various provisions of the Massachusetts Tort Claims Act, G. L. c. 258 (MTCA), immunized it from liability. A Superior Court judge denied the city’s motion. The city appeals and we reverse.
Background. As usual in such cases, we view the facts in the light most favorable to the nonmoving party, here the plaintiff. See New Habitat, Inc. v. Tax Collector of Cambridge, 451 Mass. 729, 731 (2008). The plaintiff’s claims stem from a fire at 163 Essex Avenue that broke out on December 22, 2003. At the time, Currier, Enslow, Goyette, and Anderson, the mother of the plaintiff’s children, all lived in the house. The Commonwealth later claimed that the fire started when Currier threw a firecracker at a dry Christmas tree in one of the rooms, and Currier was indicted on various criminal charges.
The city’s fire and police departments, including police Officer Kevin Mackey, responded to the fire. Mackey placed Currier and Enslow in his cruiser to keep them warm while the fire department attended to Goyette and Anderson, both of whom had been pulled, unconscious, soot-covered, and in extremis, from a smoke-filled bedroom. An ambulance transported the women to Addison Gilbert Hospital (hospital), where an emergency room doctor pronounced one of them dead. The other woman was airlifted by helicopter to Massachusetts General Hospital.
After the fire scene quieted, Officer Mackey discovered that Enslow, who had been cut while escaping from the burning house, had left some blood on the seat of his cruiser, so he went to the hospital to get some peroxide to clean the seat. Mackey arrived at the hospital before the airlift, and a nurse asked him to identify the surviving woman. Though he denies making any identification, the evidence in the record most favorable to the plaintiff
The hospital notified the plaintiff that Anderson had died. He informed his daughters of her death, but did not positively identify her body. Neither did the coroner’s office, which conducted an autopsy, or the attending funeral home, which arranged for cremation of a body everyone believed was Anderson’s. Six days later, however, medical equipment was removed from Anderson’s face allowing Goyette’s family to see for the first time that Anderson, not their daughter, had survived the fire.
The plaintiff sued the city and five other parties for negligent misidentification of Anderson.
“(a) Failed to properly secure the identity of the two female victims sufficiently so that the next of kin of the decedent could be properly notified;
“(b) failed to coordinate with the employees of the Addison Gilbert Hospital to establish the identity of the two female fire victims;
*432 “(c) provided a misidentification of the decedent to employees of the Addison Gilbert Hospital;
“(d) acted or failed to act in such other regards as will be revealed during . . . discovery.”
In his presentment letter, see G. L. c. 258, § 4, the plaintiff stated that “a police officer relying on hair color to identify people involved in a significant house fire was unreliable and clearly negligent. . . . [T]he primary cause of the misidentifi-cation rests with the Gloucester Police Department investigating officers.”
Acting pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), the city moved to dismiss count two, claiming immunity under the MTCA. A Superior Court judge treated the motion as a motion for summary judgment
Discussion. We review the denial of a summary judgment motion de novo, Miller v. Cotter, 448 Mass. 671, 676 (2007), to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The city, as moving party, must affirmatively demonstrate “the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial.” Arcidi v. National Assn. of Govt. Employees, Inc., 447 Mass. 616, 619 (2006). Once it meets that burden, the plaintiff must show, with admissible evidence, a dispute as to a material fact. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711-712 (1991).
With those standards in mind, we turn to the applicable law.
“(h) any claim based upon ... a particular police protection service, or . . . failure to provide adequate police protection, prevent the commission of crimes, investigate, detect or solve crimes, identify or apprehend criminals or suspects, arrest or detain suspects, or enforce any law, but not including claims ... as otherwise provided in clause (1) of subparagraph (/)”
and 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 .... This exclusion shall not apply to: (1) any claim based upon explicit and specific assurances of safety or assistance . . . .” (Emphasis added.)8
Among other things, § 10(A) and (/') are based on a legisla
Viewed in that light, we think that § 10(/), which, as noted, provides immunity for “an act or failure to act to . . . diminish the harmful consequences of . . . the . . . tortious conduct of a third person, which is not originally caused by the public employer,” see Brum v. Dartmouth, 428 Mass. 684, 692 (1999), immunizes the city from liability under the undisputed circumstances the record reveals, even if § 10(6) and (6) do not.
On this record, Mackey’s identification of Goyette as the survivor was plainly an “act” intended to “diminish the [fire’s] harmful consequences,” namely the uncertainties about the identity of the victims. Because of the error, Mackey’s act did not produce the desired result. But § 10(/) does not provide immunity for success. Indeed, no immunity is needed for acts that succeed, and § 10(/) provides the immunity the Legislature thought necessary for acts that fail. Mackey’s act is, therefore, an act the statute covers.
The result we reach is not contrary to the Supreme Judicial Court’s holding in Kent v. Commonwealth, 437 Mass. 312, 319
Here, by contrast, uncertainty about the identity of the victims was a condition or situation the city did not create and it was one that Mackey’s act was designed to cure. General Laws c. 258, § 10(/'), therefore, is applicable and provides the city with immunity. Accordingly, the order denying the city’s motion for summary judgment is reversed, and the case is remanded to the Superior Court for entry of judgment dismissing the plaintiff’s claims against the city.
So ordered.
The case is here under the doctrine of present execution. See Fabre v. Walton, 436 Mass. 517, 521 (2002).
Mackey’s deposition version of events is that while at the hospital, he learned from Enslow that the two women who had been rescued from the house were Goyette and Anderson and that he simply passed that information on to hospital authorities, attributing it to Enslow and making no effort to differentiate between the two women. An earlier statement he gave investigators has some similarities, although in his statement Mackey said that Enslow pointed out to him a room where doctors and nurses were engaged in vigorous activity and told him that Goyette was in that room. Later, when a nurse asked Mackey if he knew the women’s identities, he said that he did not but relayed to her the information he had obtained from Enslow, attributing it to Enslow. The nurse who actually put a “Goyette” identification bracelet on Anderson before a helicopter took her to Boston stated unequivocally that Mackey identified Goyette as the surviving victim. Her account is corroborated by another emergency worker, who hinted that Mackey’s identification rested on the victim’s hair color. All witnesses generally agreed that there was some level of confusion that night regarding the identity of the female victims.
The other defendants were the funeral home, the hospital, and the three medical personnel, two doctors and a nurse, who provided stabilizing emergency medical care to Anderson before she was airlifted to Boston.
The city had included in its motion a copy of the presentment letter and a Superior Court decision in a related matter. See Mass.R.Civ.P. 12(b).
General Laws c. 258, § 2, inserted by St. 1978, c. 512, § 15, provides: “Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances . . . .”
The public duty rule “began as a judicially created doctrine that protects governmental entities from liability under G. L. c. 258 unless a plaintiff can show that the duty breached was owed to the injured person himself, and not merely the public at large.” Chiao-Yun Ku v. Framingham, 62 Mass. App. Ct. 271, 272 n.2 (2004). In Jean W. v. Commonwealth, 414 Mass. 496, 499 (1993), the Supreme Judicial Court announced its intent to abolish that rule because its “efforts to distinguish viable claims from those subject to dismissal by use of the public duty-special relationship dichotomy have not succeeded in producing a rule of predictable application.” Before abolishing the rule, however, the court invited the Legislature to act. Responding to the invitation, the Legislature added G. L. c. 258, § 10(A) and (/'), thereby creating “what in effect is a statutory public duty rule providing governmental immunity.” Carleton v. Framingham, 418 Mass. 623, 627 (1994), citing St. 1993, c. 495, § 57.
General Laws c. 258, § 10, begins by saying that the provisions of c. 258, §§ 1-8, “shall not apply” to, inter alia, § 10(A), 10(A), and 10(/'). Although it
In inviting the Legislature to act before it abolished the public duty rule, the Supreme Judicial Court noted that the rule was designed to protect “the Commonwealth and municipalities from excessive financial burdens.” Jean W. v. Commonwealth, 414 Mass. at 510. By way of example, the court pointed out that a judicial decision holding that “municipal firefighters owe individual citizens a duty of careful firefighting, violation of which would result in municipal liability, . . . would have serious, and perhaps overwhelming ramifications for cities and towns . . . [and] the resulting potential liability would be staggering.” Ibid.., quoting from Cyran v. Ware, 413 Mass. 452, 463 (1992) (O’Connor, J., concurring).
Immunity for discretionary functions provided by § 10(6) is generally limited to discretion exercised at the level of policy formulation, an activity in
The court’s examples were these: “[T]he recommendation of a convicted rapist for employment in a trailer park that gave him access to keys of all of the units of potential victims in the park, Bonnie W. v. Commonwealth, 419 Mass. 122 (1994); the placement of an unstable mental patient in a rooming house that he subsequently set on fire, Onofrio v. Department of Mental Health, 408 Mass. 605 (1990), S.C., 411 Mass. 657 (1992); and the hiring of a guidance counselor who subsequently abused his students, Doe v. Blandford, 402 Mass. 831 (1988).” Kent v. Commonwealth, 437 Mass. at 319 n.9.
Reference
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- Philip Anderson v. City of Gloucester
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