Opinion
13-P-2024
01-13-2015
BARRY M. COHEN v. COMMONWEALTH.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Barry M. Cohen, appeals from the Superior Court's order and judgment granting the defendant Commonwealth's motion for summary judgment, pursuant to Mass.R.Civ.P. 56(c), as amended by 436 Mass. 1404 (2002). At issue in this appeal is whether, as the Superior Court concluded, the Commonwealth is immune, under the discretionary function exception of G. L. c. 258, § 10(b), from Cohen's claim of negligent training and supervision of magistrates. We affirm.
Cohen originally filed suit against, inter alia, the Commonwealth, the Newton Division of the District Court, and the Clerk-Magistrate of that court, and brought five claims, including the one at issue in this appeal. Following a hearing, four of the claims were dismissed and only the instant claim survived; all remaining defendants besides the Commonwealth were also dismissed. The Superior Court then dismissed the remaining claim, on the basis of G. L. c. 258, § 10(e), immunity; on appeal, a prior panel of this Court, in 2012, vacated that dismissal and remanded for consideration of the Commonwealth's alternative argument that it was immune under § 10(b). See Cohen v. Clerk-Magistrate of the Newton Div. of the Dist. Ct. Dept., 82 Mass. App. ct. 1116 (2012). The Superior Court's ruling on this issue following remand is the subject of this appeal.
In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). Viewing the facts in this light, we then determine whether the moving party has affirmatively shown that there is no real issue of fact, "all doubts being resolved against the party moving for summary judgment." Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986). Summary judgment is properly allowed where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Mass.R.Civ.P. 56(c). See Godfrey, supra.
Under § 10(b), a public employer is immune from claims "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). In Harry Stoller & Co. v. Lowell, 412 Mass. 139 (1992), the Supreme Judicial Court adopted a two-pronged inquiry for determining whether certain conduct falls within the discretionary functions exception. "The first step . . . is to determine whether the governmental actor had any discretion at all as to what course of conduct to follow." Id. at 141. The second step is to "determine whether the discretion that the actor had is that kind of discretion for which § 10(b) provides immunity from liability." Ibid. "Discretionary actions and decisions that warrant immunity must be based on considerations of public policy." Id. at 143.
Here, we conclude that the Commonwealth was immune under § 10(b) from liability for any claim based on the frequency, nature, and content of the training of clerk-magistrates and assistant clerk-magistrates in the Newton Division of the District Court Department, which was supervised by the chief justice and general counsel of the District Court. With respect to the first step of the Stoller analysis, the record shows no dispute about whether the chief justice and general counsel had discretion as to how and when to train the magistrates because there is no rule, regulation, or procedure to which Cohen could point governing such training. Given the absence of an established rule or custom regarding how and when training is to be conducted, the chief justice and general counsel clearly exercised discretion in this regard.
Next, a determination must be made whether the discretion that the chief justice and general counsel exercised is of the type afforded immunity under § 10(b); we conclude, as the Superior Court did, that it is. Decisions involving when and how to train magistrates require discretion and judgment involving public policy and planning issues, including, but not limited to, allocation of resources (including money and employees), the impact of changes in the law on the magistrates' duties, and the potential interference with magistrates' daily schedules that training may have. Training decisions with respect to court officials such as magistrates clearly involve a "high degree of discretion and judgment . . . in weighing alternatives and making choices with respect to public policy and planning," Stoller, supra at 142, quoting from Whitney v. Worcester, 373 Mass. 208, 218 (1977), and nothing in the record indicates otherwise. Training decisions as involved here are unlike "the carrying out of previously established policies or plans, [whereby] such acts should be governed by the established standards of tort liability applicable to private individuals or entities and the governmental entity in question held liable for the injuries resulting from such acts." Whitney, supra at 218-219. Certainly, the kind and degree of judgment by the chief justice and general counsel involving the training of magistrates alleged by the plaintiff to have been negligent here cannot be viewed as less discretionary than that found to be immune from suit in Audette v. Commonwealth, 63 Mass. App. Ct. 727 (2005).
Additionally, because we "have treated decisions under [the Federal Torts Claim Act (FTCA)] as providing some guidance in deciding the scope of § 10(b)'s exception," see Stoller, supra at 142-143, we note that our conclusion is consistent with how Federal courts have treated negligent training or supervision claims under the FTCA. See, e.g., K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 727-728 (1st Cir. 1988).
Judgment affirmed.
By the Court (Cohen, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 13, 2015.