Horta v. Sullivan
36 F.3d 210
1st Cir.1994Check Treatment UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1962
DEBRA HORTA,
Plaintiff, Appellant,
v.
CHARLES B. SULLIVAN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Sheila M. Tierney with whom Tierney Law Office was on brief for
appellant.
Linda M. Walsh with whom Kroll & Tract was on brief for appellees
Charles B. Sullivan, Paul G. Sadeck, Edward Mello and the Town of
Freetown.
James F. Gettens with whom Healy & Rocheleau, P.C. was on brief
for appellees Jeffrey Mennino, James K. Bowles, and the Town of
Lakeville.
September 29, 1994
CAMPBELL, Senior Circuit Judge. In our earlier
disposition of this appeal1, we disposed of all claims
except appellant's claim against the town of Lakeville under
the Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258
(Count IV). We retained appellate jurisdiction over the
latter claim against Lakeville pending an answer to the
following question, which we certified to the Massachusetts
Supreme Judicial Court pursuant to its Rule 1:03:
Do the discretionary decisions of a police officer
to begin and continue the high-speed pursuit of a
vehicle then being operated in violation of law
involve policymaking or planning for purposes of
immunity under Massachusetts General Law ch. 258,
10(b)?
The Massachusetts court has now answered that
question in the negative. Horta v. Sullivan, 418 Mass. 615,
615 (1994). Accordingly, Mennino's actions were not entitled
to immunity under 10(b), and the district court's granting
of summary judgment on Count IV in favor of Lakeville was
improper.2 Horta v. Sullivan, 4 F.3d 2, 24 (1st Cir. 1993).
1. Horta v. Sullivan, 4 F.3d 2 (1st Cir. 1993).
2. Although for other reasons we earlier vacated summary
judgment on appellants' claim against Freetown under the
Massachusetts Tort Claims Act, Horta, 4 F.3d at 25, the
answer of the Massachusetts Supreme Judicial Court to our
certified question appears germane to that claim as well, as
we thought might be the case. Id. Since that claim is no
longer before us, however, we do not address it at this time,
but leave to the parties and the district court any action
that may be appropriate in light of the Massachusetts court's
opinion.
-2-
We therefore vacate summary judgment on this claim and remand
to the district court for further proceedings consistent with
our opinion herein and the opinion of the Massachusetts
Supreme Judicial Court. We note that while our certification
was pending before the Massachusetts high court, the
Massachusetts state legislature amended the Massachusetts
Tort Claims Act. See Act approved January 14, 1994, 1993
Mass. Legis. Serv. ch. 495, 57, 144 (H.B. 5620) (West).
The Supreme Judicial Court did not rule on how these
amendments might affect Horta's claim, if at all, since the
issue was not before it. See Horta, 418 Mass. at 622 n.14.
We similarly do not reach this issue, but anticipate that the
district court, if called on to do so by one or more of the
parties, will rule on the materiality of these amendments to
the pending claim and will factor the amendments into its
final outcome if and to the extent appropriate.
Count IV is vacated and remanded.
-3-