McCarthy v. City of Waltham
McCarthy v. City of Waltham
Opinion of the Court
The city of Waltham (city) appeals from a Superior Court judgment awarding the plaintiff $100,000 under the provisions of the Massachusetts Tort Claims Act (MTCA), G. L. c. 258, § 2, and under G. L. c. 229, § 2,
On appeal, the city generally contends that it was entitled to sovereign immunity pursuant to G. L. c. 258, § 10, and the judge wrongly denied these protections. The city claims that the trial judge wrongly denied its motions for directed verdict and
1. Background. On March 4, 1997, at approximately 3:43 a.m., the plaintiff, a resident of Florida, called the city’s 911 system and said that he had just received a disturbing telephone call from his son James, who lived in the city. The plaintiff told the dispatcher that he thought James “might be having an overdose . . . he’s sounding real bad . . . saying T love you,’ and, you know, you can just barely understand him.”
At 4:03 a.m., the plaintiff called the police, inquiring about James. He was told by another dispatcher that James was now at the station. The plaintiff asked the dispatcher to have James call him when they finished with James’s booking, which the dispatcher agreed to do. The plaintiff asked what was wrong with James and was told that “he was talking about, uhm, contemplating suicide.”
At 5:32 a.m., Marino, who resided in Westborough, called the 911 emergency telephone line and asked when James would be released. A police cadet, acting as dispatcher, informed Marino that she did not know when that would be but that James would be able to make a telephone call when released. Marino expressed concern because she did not think that James would make the call, and she wanted to be there when he was released. The conversation continued in this vein, and the dispatcher said, “I could have the person who’s — releases him have them give you a call to tell you that he’s going to be released, and then, like, maybe ten minutes before he gets released so that you can be on your way down here.” Marino replied, “[I]f an officer could call us and give us, you know, 15, 20 minutes to get there —,” to which the dispatcher said, “Yup. No problem.”
At 7:00 a.m., another cadet dispatcher replaced the cadet who
During the five hours James was in custody, he was under video monitoring by the dispatchers. There were no other calls made to or from police before James was released at approximately 9:00 a.m. Videotapes of James at the booking desk at 4:00 and 9:00 a.m. were shown to the jury. Approximately one hour after his release, James’s sister, accompanied by her boyfriend, went to James’s apartment, where they found him hanging from a pipe. They left to call for help, and upon the arrival of police and paramedics, James was cut down and a pulse was detected. He never regained consciousness and was pronounced dead the next day.
Before trial, the city filed a motion for summary judgment, which was denied. The city contended that it was not negligent in the handling of the custody and release of James and that it was immune from plaintiff’s claims pursuant to G. L. c. 258, § 10. In her decision, the motion judge concluded generally that “[t]he current claim does not stem from the fact that the police were negligent in their release of the Decedent, but rather that the police were negligent in failing to carry out their promises
The city did not appeal from the denial of the motion, and a three-day jury trial began on October 4, 2006. The issues for the jury at trial were (1) whether the police were negligent in the manner of James’s release from custody, (2) whether the police made explicit and specific assurances of safety or assistance to one or more of the McCarthy family in regard to the manner of James’s release, and (3) whether James’s suicide resulted, at least in part, from the family’s reliance on such assurances. The jury returned its special verdict in favor of the plaintiff on October 10, 2006, and awarded him $100,000.
2. Discussion. The city’s general argument on appeal focuses on what it contends was the trial judge’s misapplication of the exception to immunity contained in G. L. c. 258, § 10(/)(1). In pertinent part, the provisions of § 10(/) immunize the city from
“any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation . . . which is not originally caused by the public employer or any other person acting on behalf of the public employer.”
By virtue of § 10(/)(1), however, that immunity is inapplicable to
“any claim based upon explicit and specific assurances of safety or assistance . . . made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances.”
a. Directed verdict. “The denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict both present questions of law reviewed under the same standard used by the trial judge. Review of these motions requires us to construe the evidence in the light most favorable to the non-moving party and disregard that favorable to the moving party. In other words, the standard to be employed is whether the evidence, construed against the moving party, justifies a verdict against him. Our duty ... is to evaluate whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the nonmovant.” (Internal quotations and citations omitted.) O’Brien v. Pearson, 449 Mass. 377, 383 (2007).
The city’s motion for a directed verdict should have been allowed because the evidence that the police made “explicit and specific assurances of safety or assistance” to James’s family members, when viewed in the light most favorable to the plaintiff, Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 7 n.1 (1983), was insufficient, as matter of law, to overcome the immunity afforded the city under G. L. c. 258, § 10(/). By focusing on the manner in which James was released, the judge elevated the exception to sovereign immunity so that it became, in effect, an independent theory trumping all the immunity provisions of the MTCA under which the city sought protection.
“The Massachusetts Tort Claims Act, G. L. c. 258 . . . , allows those with valid claims in tort to recover against governmental entities.” Lawrence v. Cambridge, 422 Mass. at 408.
“The exception to immunity contained in G. L. c. 258, § 10(/)(1), . . . requires that ‘explicit’ and ‘specific’ assurances
There was insufficient evidence that the police made specific and explicit assurances in the series of telephone calls between James’s family and the police. Specifically, the record does not show that any 911 dispatcher ever told the plaintiff or James’s aunt that the police would not release James until someone got to the station. The plaintiff principally relies on the conversation that occurred at 5:32 a.m., the first time Marino called the police and asked when James would be released. The dispatcher had said, “I could have the person who’s — releases him have them give you a call to tell you that he’s going to be released, and then, like, maybe ten minutes before he gets released so that you can be on your way down here.” This is the closest to a promise of assurance in any of the family’s conversations with the dispatchers, but insufficient in our view, as we conclude, as matter of law, that this does not constitute an assurance or promise of safety or assistance.
Further, at 8:15 a.m., forty-five minutes before James was released, Marino called the police station again and spoke with a different dispatcher who stated, “[W]hen he wakes up, . . . and we’re ready to release him, I can have him call you then.” Whatever assurances Marino thought the dispatcher gave from the 5:32 a.m. conversation were dissipated by the 8:15 a.m. conversation. Cf. Lawrence v. Cambridge, supra at 412.
This latter statement did not contain a promise to Marino that the police would call her before James was released, and Mari-no’s reply, “I hope he will [call me],” indicates to us that
Thus, in the light most favorable to the plaintiff, the trial judge erred in denying the city’s motions for directed verdict and JNOV, since a jury could not rationally conclude, without engaging in speculation or conjecture, that there was sufficient evidence of explicit and specific assurance of safety or assistance in order to overcome the protection that the immunity of § 10(/) afforded the city “with respect to any claim for a loss not originally caused by the public employer.” Jacome v. Commonwealth, 56 Mass. App. Ct. at 489.
b. Other issues. While they do not affect our decision, we briefly address other issues raised by the city that relate to its additional claims of immunity.
i. General Laws c. 258, § 10(a). We find no error in the judge’s denial of the city’s motion for directed verdict on the ground that immunity under G. L. c. 258, § 10(a), applied to the plaintiff’s claim. Section 10(a) provides immunity from “any claim based upon an act or omission of a public employee when such employee is exercising due care in the execution of any statute or any regulation of a public employer . . . .” That the plaintiff’s claims were subsumed within the protective custody requirements of G. L. c. 111B, § 8, fifth par. (providing, in relevant part, that “an incapacitated person may be held
ii. General Laws c. 258, § 10(h). The city also contends that it had immunity under G. L. c. 258, § 10(A), which provides immunity from “any claim based upon the 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 based upon ... or as otherwise provided in clause (1) of subparagraph (/).” Therefore, as with the immunity provision discussed above, a promise or assurance of safety or assistance can operate as an exception to this immunity. We fail to see how this would apply to the circumstances here. We think the judge correctly declined to direct a verdict in favor of the city on this ground and correctly omitted from his instructions any reference to this immunity provision.
iii. General Laws c. 258, § 10(i). Section 10(0 provides immunity from “an[y] claim based upon the release, parole, furlough or escape of any person, including but not limited to a
In case no. 08-P-586, the judgment is reversed, the verdict is set aside, and judgment shall enter for the city. In case no. 09-P-525, the appeal is dismissed, not on the merits, but because it is moot.
So ordered.
The plaintiffs complaint included a civil rights claim under the provisions of 42 U.S.C. § 1983 (2006), and was first filed in the Superior Court; it was removed to the United States District Court for the District of Massachusetts in 2000. In 2002, the United States District Court severed the case, retained the civil rights claim, and remanded the State law claims to the Superior Court.
Other than the city’s requested jury instructions that relate to our discussion of sovereign immunity under the MTCA (see infra), we need not address other issues the city raised.
Transcripts of the telephone calls were entered as exhibits and tape recordings of the calls were played for the jury.
This dispatcher does not appear to have been identified. The dispatchers who received later calls from the plaintiff at 4:03 a.m., and from Marino at 5:32 and 8:15 a.m., were each different police cadets and employees of the city police department; there was a shift change at 7:00 a.m.
Neither in the initial call nor in any subsequent call from the plaintiff or Marino did either one say specifically that they suspected or feared that James was suicidal.
He stated during booking that he had been arrested the night before, and that the “world sucks, ... I lost my job, my daughter, and everything else,
This dispatcher explained that this information was given because of the “Q5” code placed on the police computer system by the dispatcher who took the initial 911 emergency telephone call that indicated psychological-suicide evaluation as a reason for the call. This “Q5” code sends an inquiry, via computer, to determine if any police department system recorded suicidal attempts or ideation, which in this case did not reveal any records of such ideation.
There is evidence to suggest that, depending upon the hour and the traffic conditions, the time to make the ride from Westborough to Waltham might range from twenty-five minutes to one hour.
General Laws c. 258, § 10(/)(1), as amended by St. 1993, c. 495, § 57, states in relevant part that the exclusions from liability represented by the immunities of § 10(h) and 10(/) “shall not apply to: (1) any claim based upon explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances.”
In ruling on the city’s motion for summary judgment, the motion judge considered the city’s immunity arguments solely under G. L. c. 258, § 10(/)(1). The motion judge appears not to have considered or analyzed the separate and independent nature of the § 10 immunities. By doing so she implied that the exception was sufficient to overcome possible applications of immunities other than § 10(/), an implication that is contrary to settled law holding that the immunities under § 10 have alternative effect. See Brum v. Dartmouth, 428 Mass. 684, 697 (1999) (“The immunities provided by § 10 operate in the alternative; even if one immunity contains an exception that would permit a claim to be brought, that claim is barred if any of the other immunities apply”).
In addition to the immunity of G. L. c. 258, § 10(/'), the city claimed
The city argues that the plaintiff’s presentment letter was defective because it did not specify the claim upon which he relied at trial. However, we think that the city waived this issue because it did not deny issues raised in the letter “specifically and with particularity.” G & B Assocs., Inc. v. Springfield, 39 Mass. App. Ct. 51, 55 (1995).
The city also requested an instruction about the immunity under § 10O'), and objected to its omission. There is no reason apparent in this record to justify the failure to provide instruction to the jury informing them of the immunity under § 100), to which the exception under § 100)(1) relates, and it was error to have failed to provide the instruction.
Reference
- Full Case Name
- Richard J. McCarthy, administrator v. City of Waltham (and a companion case)
- Cited By
- 10 cases
- Status
- Published