62 Mass. App. Ct. 271 | Mass. App. Ct. | 2004
After the plaintiffs settled a suit against Michael L. Drake (Drake) and the Michael L. Drake Construction Company, Inc. (Drake Construction) for personal injuries
1. Background. The facts are simple and undisputed. The defendant’s roads are kept clear of snow during the winter months by a combination of truck drivers employed by the defendant’s department of public works and independent contractors, such as Drake. The only instructions the supervisors employed by the defendant gave to the drivers was that
The motion judge concluded, and we agree, that the plaintiff’s claim, brought pursuant to G. L. c. 258, is based upon the defendant’s negligent supervision of the manner in which Drake was carrying out his duties. The defendant’s disregard of these responsibilities is alleged to be the proximate cause of the plaintiffs injuries.
2. Independent contractor status. General Laws c. 258, § 10(j), inserted by St. 1993, c. 495, § 57, provides that a public employer is immune from suit 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.” The defendant claimed below, and now on appeal, that its alleged failure to prevent the accident falls squarely within the description of the type of claim barred by this exemption.
We disagree. The motion judge correctly ruled that despite his independent contractor status, “Drake was clearly acting within the scope of his employment” and “on behalf of the public employer.” The question is close. To support its argument, the defendant cites Rowe v. Arlington, 28 Mass. App. Ct. 389 (1990).
In Rowe, the plaintiff was injured on town property as a result of work that had been negligently done by an independent contractor. After a bench trial, the trial judge concluded that
Both Rowe and Thornton appear to support the defendant’s assertion that it has immunity because Drake was an independent contractor. However, in Chiao-Yun Ku I, 53 Mass. App. Ct. at 730, we suggested that the defendant could be liable for negligent supervision of an independent contractor under the theory of “retained control.” We held that “the summary judgment record made out a case of joint liability, with Drake being responsible as a non-employee for negligent operation, and the town being liable for the independent negligence of its supervisory employee or employees under the theory of ‘retained control.’ ” Ibid. (Citation omitted.)
The Supreme Judicial Court has held that an employer of an independent contractor may be liable for its own negligence in connection with the work done by the independent contractor. See Corsetti v. Stone Co., 396 Mass. 1, 9 (1985). So far as the employer retains control over any part of the work, the employer is required to exercise reasonable care for the protection of others. Id. at 9-10. “[I]f the employer retains the right to control the work in any of its aspects, including the right to initiate and maintain safety measures and programs, he must exercise that control with reasonable care for the safety of others, and he is liable for damages caused by his failure to do so.” Id. at 10.
The record in this case indicates that the defendant’s employees supervised the salting of the roads by both independent contractors and other town employees, but drivers were never instructed on how to drive their vehicles safely. Further, the defendant’s policy limited its own employees to ten or twelve consecutive hours of operation, but the defendant did not maintain a policy regarding the number of continuous hours an
Next, the defendant claims that the § 10(j) exemption applies because negligent supervision is not an affirmative act. The Supreme Judicial Court has noted that “if a neglect of duty can be taken to ‘originally cause[]’ ... a ‘situation,’ then the opening words of § 10(j), immunizing ‘act[s] or failure[s] to act to prevent,’ . . . would be virtually read out of the provision.” Brum v. Dartmouth, 428 Mass. 684, 692-693 (1999). Further, the court has “construed the ‘original cause’ language to mean an affirmative act (not a failure to act) by a public employer that creates the ‘condition or situation’ that results in harm inflicted by a third party.” Kent v. Commonwealth, 437 Mass. 312, 318 (2002). However, the motion judge correctly ruled that Brum and Kent are distinguishable from this case because in those cases the wrongdoer was a third party, whereas here the wrongdoer was acting “on behalf of the public employer.” Thus, this issue turns on whether Drake, as an independent contractor, was “acting on behalf” of the defendant within the meaning of c. 258.
In Chiao-Yun Ku I, 53 Mass. App. Ct. at 730, we indicated that the defendant could be liable for negligent supervision under circumstances of “retained control.” We held that “[t]he
3. Discretionary function rule. The defendant also asserts that it is shielded from liability by G. L. c. 258, § 10(b), as appearing in St. 1978, c. 512, § 15. This exemption from tort liability extends to functions that involve judgment, planning, or the exercise of discretion. See Whitney v. Worcester, 373 Mass. 208, 217-220 (1977); Patrazza v. Commonwealth, 398 Mass. 464, 467-470 (1986).
Courts perform a two-step analysis when determining whether the discretionary function rule applies to a given case. See Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). The first step is to determine whether the defendant had any discretion at all as to what course of conduct to follow. Ibid. If the defendant had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, then the discretionary function rule does not apply. Ibid. As the motion judge noted in this case, “there appears to be no statute, regulation or agency practice on the salting, sanding, and plowing of roadways. Therefore, [the defendant] survives the first step of this analysis.”
The motion judge determined that the defendant did not establish this second step in the analysis because the operation of a salt truck and the defendant’s role in supervising its snow removal operators do not involve the high degree of discretion required by the cases. Compare Wheeler v. Boston Hous. Authy., 34 Mass. App. Ct. 36, 40 (1993) (holding that “the determination of what security measures to take to protect persons on its premises from criminal activity is an integral part of the defendant’s policy making and planning process”); Tarzia v. Hingham, 35 Mass. App. Ct. 506, 508-509 (1993) (holding that the defendant’s decisions about whether and how to deal with the accumulation of silt and vegetation in its river and pond involved the exercise of a high degree of discretion); Alake v. Boston, 40 Mass. App. Ct. 610, 612-613 (1996) (holding that the defendant exercised a high degree of discretion in deciding how many chaperones to send on a field trip). The defendant argues that the motion judge erred in determining that the discretionary function rule does not apply to this case because the conduct giving rise to the negligent supervision claims involved unfettered discretion and policymaking.
In making this contention, the defendant focuses on its policymaking decisions. According to the defendant, its decisions not to implement policies regarding the number of hours an independent contractor could continuously operate a vehicle and whether a truck driver could operate a truck over the center line involved the sort of discretion for which the role provides immunity from liability. The defendant asserts that these decisions
However, this case is distinguishable from Barnett because the defendant does have a policy to plow and salt the streets after a storm and to supervise salt truck operators, including independent contractors like Drake. Thus, the negligence asserted by the plaintiffs in this case appears to concern the carrying out of established policies rather than actual policymaking and planning. See Tryon v. Lowell, 29 Mass. App. Ct. 720, 724 (1991); Alake v. Boston, supra at 614 (chaperones’ negligent supervision of students involved merely the implementation of previously established policies). The motion judge determined that “plowing and salting streets after a storm is better characterized as maintenance.” The Supreme Judicial Court has held that “[a]ny negligence in performing, or failing to perform, the ministerial task of maintenance does not rise to the level of ‘public policy or planning’ decisions warranting protection under G. L. c. 258, § 10(b).” Doherty v. Belmont, 396 Mass. 271, 276 (1985).
In Doherty, the town removed old parking meters from a public parking lot but left several parking meter stubs protruding from the median strip, one of which caused the plaintiff to trip and fall. Id. at 272-273. The town contended that it was immune from liability because the decision to remove old parking meters in a public parking lot was a discretionary function. Id. at 276. The Supreme Judicial Court held that “the relevant inquiry is not whether the decision to remove the parking meters constituted a discretionary function under § 10(b), but rather whether the maintenance of the parking lot in furtherance of this decision falls within the exemption from liability.” Ibid. Similarly, the relevant inquiry in the present case is not whether the decision to plow and salt the streets constituted a discretionary function, but rather whether the carrying out of this decision falls within the rule.
Judgment affirmed.
The so-called “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. In Jean W. v. Commonwealth, 414 Mass. 496, 499 (1993), the Supreme Judicial Court announced its intention to abolish this rule and invited the Legislature “to respond to this anticipated change by passing additional limitations on liability.” The Legislature responded with an amendment of G. L. c. 258, § 10 (St. 1993, c. 495, § 57), adding “what in effect is a statutory public duty rule providing governmental immunity.” Carleton v. Framingham, 418 Mass. 623, 627 (1994).
An order denying a motion for summary judgment based on a claim of immunity from suit is immediately appealable under the doctrine of present execution. See Walenty v. Mendon, 55 Mass. App. Ct. 914, 914 n.2 (2002). See also Brum v. Dartmouth, 428 Mass. 684, 688 (1999); Kent v. Commonwealth, 437 Mass. 312, 316 (2002).
“The immunities provided by [G. L. c. 258,] § 10[J 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.” Brum v. Dartmouth, 428 Mass. at 697.