444 Mass. 467 | Mass. | 2005
On the afternoon of May 7, 1999, Denise Greenwood (Greenwood) was standing in a grassy area that was adjacent to the parking lot of Oliver Ames High School (high school) and owned by the town of Easton (town). She was seriously injured
The plaintiff, Jane Greenwood, brought a negligence action against the town and Gregory Woodward, the driver of the vehicle, for the personal injuries sustained by her daughter.
1. G.L. c. 258, § 10 (b). General Laws c. 258, § 2, 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, except that public employers shall not be liable... for any amount in excess of one hundred thousand dollars.” The Act exempts from liability “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 employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused.” G. L. c. 258, § 10 (b).
The first step in deciding whether the discretionary function exception forecloses a plaintiff’s claim “is to determine whether the governmental actor had any discretion . . . to do or not to do what the plaintiff claims caused [the] harm.” Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). “[I]f the governmental actor had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, [the] discretionary function exception to governmental liability has no role to play in deciding the case.” Id. Here, the plaintiff essentially has not challenged the town’s assertion that its use of telephone poles as parking barriers was not prescribed by a statute, regulation, or established agency practice.
The line of demarcation is between those functions that “rest on the exercise of judgment and discretion and represent planning and policymaking [for which there would be governmental immunity] and those functions which involve the implementation and execution of such governmental policy or planning [for which there would be no governmental immunity].” Harry Stoller & Co. v. Lowell, supra at 142, quoting Whitney v. Worcester, 373 Mass. 208, 217 (1977).
In his deposition, Kevin Paicos, the town administrator and head of the executive loss control committee,
We agree with the town that its decision to use an available supply of telephone poles as parking barriers constituted a discretionary function. See Barnett v. Lynn, 433 Mass. 662, 664 (2001). However, the execution of that established policy, namely the “installation” of the telephone poles, did not fall into the same category. See Harry Stoller & Co. v. Lowell, supra at 141; Doherty v. Belmont, 396 Mass. 271, 276 (1985); Whitney v. Worcester, supra at 223-224; Tryon v. Lowell, 29 Mass. App. Ct. 720, 724 (1991); Sanker v. Orleans, 27 Mass. App. Ct. 410, 412-413 (1989). The town has not demonstrated that “social, political, or economic policy considerations” were involved in any decision not to secure the telephone poles so that they would not move from their designated locations. Alake v. Boston, 40 Mass. App. Ct. 610, 614 (1996).
Contrary to the town’s argument, Patrazza v. Commonwealth, 398 Mass. 464 (1986), is consistent with our conclusion. In that case, dealing with a Department of Public Works’s policy to bury the ends of guardrails only on limited access highways, we stated that “it is clear that the design of the guardrail and the policy implementing its use, the bases of the action for wrongful death, are encompassed within the discretionary acts exception of G. L. c. 258, § 10 (b).” Id. at 466. Similarly, the town’s decision here to place telephone poles in the parking lot to protect pedestrian safety and channel vehicular traffic is rooted in policy making and planning and falls within the purview of the town’s discretionary function. It is the execution of that established policy that is not a discretionary act, an issue of no import in Patrazza, where the focus of the plaintiff’s claim was the Commonwealth’s alleged negligence in adopting the policy in the first instance. Id. at 467-469. The distinction between policy making or planning, on the one hand, and the carrying out of established policies or plans, on the other hand, is dispositive. Accordingly, we conclude that the town was not entitled to immunity under § 10 (b).
2. G. L. c. 258, §10 (j). General Laws c. 258, § 10 (/'), provides that a public employer is not subject to liability under
The plain language of the Act provides that the exclusion set forth in § 10 (/) shall not apply to “any claim based on negligent maintenance of public property.” G. L. c. 258, § 10 (/) (3). The Act imposes liability on public employers “in the same manner and to the same extent as a private individual under like circumstances.” G. L. c. 258, § 2. See Doherty v. Belmont, supra at 273 (town liable when paying customer fell in negligently maintained parking lot). Thus, the town here must be “treated the same as an owner of a private parking lot for the purposes of liability under G. L. c. 258.” Id. at 274. See Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 491 (2002). A private landowner owes a duty of reasonable care to all persons who are lawfully on its premises. See Doherty v. Belmont, supra; Wheeler v. Boston Hous. Auth., 34 Mass. App. Ct. 36, 40-41 (1993). The owner or person in control of real property has a duty to maintain the premises in a reasonably safe condition. See O’Sullivan v. Shaw, 431 Mass. 201, 204 (2000). See also Jacome v. Commonwealth, supra at 491-492 (no cause of action for drowning death based on negligent maintenance of public property under § 10 [/] [3] where Commonwealth did not “maintain” ocean).
3. G. L. c. 258, § 10 (a). General Laws c. 258, § 10 (a), provides that a public employer is not subject to liability under G. L. c. 258, § 2, for “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, or any municipal ordinance or by-law, whether or not such statute, regulation, ordinance or by-law is valid.” As we have noted, Kevin Paicos testified that the town did not place the telephone poles in the parking lot in order to comply with any zoning bylaw, regulation or municipal order adopted by the town. The town concedes that fact in its brief before this court. Accordingly, we conclude that the town was not entitled to immunity under § 10 (a), and we need not consider this issue further.
4. Conclusion. The order of the Superior Court judge denying the town’s motion for summary judgment is affirmed.
So ordered.
Although Woodward was named as a codefendant in the plaintiff’s complaint, he is not involved in the present appeal.
Pursuant to Brum v. Dartmouth, 428 Mass. 684, 688 (1999), an order denying a municipality’s dispositive motion filed under G. L. c. 258, § 10, is regarded as a final order subject to an immediate appeal. See Kent v. Commonwealth, 437 Mass. 312, 315-316 (2002). It is important to determine immunity issues early to protect public officials and government agencies from unwarranted disruption and harassing litigation. See Brum v. Dartmouth, supra. The right to immunity from suit is effectively “lost as litigation proceeds past motion practice.” Id., quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993).
There is no dispute between the parties that the town is a “[p]ublic employer” as that term is defined in G. L. c. 258, § 1, and has the benefit of the protection from liability provided by the discretionary function exception of G. L. c. 258, § 10 (b), if the town’s conduct qualifies as a discretionary function.
Although Whitney v. Worcester, 373 Mass. 208 (1977), preceded the enactment of the Massachusetts Tort Claims Act in 1978, St. 1978, c. 512, § 15, it enunciated guiding principles for determining the scope of the discretionary function exception subsequently set forth in G. L. c. 258, § 10 (b). See Horta v. Sullivan, 418 Mass. 615, 620 (1994); A.L. v. Commonwealth, 402 Mass. 234, 245 (1988).
This court has declined to apply the discretionary function exception to governmental tort liability in numerous instances where the conduct at issue did not involve policy making or planning. See, e.g., Harry Stoller & Co. v. Lowell, 412 Mass. 139, 145-146 (1992) (no immunity where fire fighters chose not to use buildings’ sprinkler systems to fight fire and negligently failed to conform to generally accepted firefighting practices); Dobos v. Driscoll, 404 Mass. 634, 652-653, cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989) (no immunity where supervisors’ conduct in deciding whether and how to discipline State trooper constituted improper implementation of existing police policy); A.L. v. Commonwealth, supra at 245-246 (no immunity where probation officer negligently failed to monitor probationer’s compliance with policy decisions made by sentencing judge); Doherty v. Belmont, 396 Mass. 271, 276 (1985) (no immunity where town failed to maintain municipal parking lot in reasonably safe condition); Kelley v. Rossi, 395 Mass. 659, 665 & n.6 (1985) (no immunity where city physician’s treatment of emergency room patient governed by standard of accepted medical practice); Irwin v. Ware, 392 Mass. 745, 753 (1984) (no immunity where police officer failed to remove intoxicated motorist from roadway in accordance with established statutory provisions); Whitney v. Worcester, supra at 223-224 (no immunity for teacher’s failure to seek medical attention for injured student where only adoption, not implementation, of plan to integrate handicapped students into public schools was discretionary act). See also Chiao-Yun Ku v. Framingham, 62 Mass. App. Ct. 271, 277-278 (2004) (no immunity where town’s supervision of snow removal constituted ministerial act of maintenance, not discretionary act of policy making or planning); Alake v. Boston, 40 Mass. App. Ct. 610, 612-614 (1996) (city’s decision concerning number of chaperons to send on school field trip was discretionary function involving allocation of limited resources, but claim that chaperons were negligent in supervising students was not barred by discretionary function exception because chaperons’ conduct did not rise to level of policy making or planning); Tryon v. Lowell, 29 Mass. App. Ct. 720, 724 (1991) (city’s decision to erect fence between school and abutting railroad tracks was discretionary act, but city’s inadequate maintenance of such fence did not entail discretionary function warranting immunity under § 10 [6]); Sanker v. Orleans, 27 Mass. App. Ct. 410, 412-413 (1989) (municipality’s decisions
The executive loss control committee “establishe[d] all general safety practices in the town in all areas, whether it [was] school or town property.”