13 Mass. App. Ct. 1004 | Mass. App. Ct. | 1982
This is an action for personal injuries, consequential damages, and loss of consortium, alleged to have been caused by the explosion of a bomb on the second floor of the Suffolk County Courthouse on April 22, 1976. Besides the city, the defendants are the individuals who, at that time, were the members of the Suffolk County Courthouse Commission and the superintendent of the building. The bombing of the courthouse preceded the effective date of St. 1978, c. 512, §§ 15 & 16, which eliminated the general rule of municipal immunity. See Vaughan v. Commonwealth, 377 Mass. 914 (1979). 1. The counts against the city were properly dismissed on motion under Mass.R.Civ.P. 12(b) (6), 365 Mass. 755 (1974), not only for the reason given by the judge (namely, that the operation of the courthouse is governmental rather than proprietary in nature), but also, in the opinion of a majority of the panel, for the reason that, under the provisions of St. 1939, c. 383, § 1, which established the courthouse commission, the city does not have control of the maintenance or operation of the courthouse. See Reitano v. Haverhill, 309 Mass. 118 (1941); Molinari v. Boston, 333 Mass. 394, 395-396 (1955); Whitney v. Worcester, 373 Mass. 208, 213-214 (1977). 2. Because the 1978 legislation established a definitive policy with respect to the personal tort liability of public officers and employees (see G. L. c. 258, § 2, inserted by St. 1978, c. 512, § 15), we infer, by analogy to the Vaughan case, that the liability of the individual defendants is to be governed by the law in effect before Morash & Sons v. Commonwealth, 363 Mass. 612 (1973), and the Whitney case. Consequently, the individual defendants, as public officers, may well be “liable only for their own acts of misfeasance in connection with ministerial matters.” Whitney v. Worcester, 373 Mass. at 220, quoting from Fulgoni v. Johnston, 302 Mass. 421, 423 (1939). It may be unlikely that the plaintiffs will be able to prove a set of facts entitling them to recovery under such a test. The allegations of the complaint constitute
So ordered.