Opinion
15-P-1617
01-12-2017
Alyssa CORMIER & others v. CITY OF LYNN & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Alyssa Cormier and James Mumbauer, along with their son Matthew, appeal a judgment of the Superior Court dismissing their amended complaint and the order denying their request for reconsideration. They argue that, because Matthew was a member of a protected class, the defendants were negligent in failing to protect him from harm as a result of not enforcing the Lynn public school district's (district's) anti-bullying policy. They contend that the defendants knew, or should have known, that their failure to act inevitably would result in injury to Matthew. After considering the record and the motion judge's thoughtful memorandum, we affirm, agreeing with the judge that the plaintiffs failed in their amended complaint to state a claim on which relief could be granted.
On February 17, 2012, a stipulation of dismissal, with prejudice, was entered as to defendant Ethel Wu. On May 9, 2012, the claims against Linda Morgan and North Shore Medical Center were dismissed, with prejudice, and a separate and final judgment was entered under Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), specifically as to those defendants. On November 3, 2014, a voluntary stipulation of dismissal, with prejudice, was entered as to the bullying student pursuant to Mass.R.Civ.P. 41(a)(1)(ii), 365 Mass. 803 (1974).
We refer to Matthew Mumbauer and James Mumbauer by their first name for ease of reference.
Background . The plaintiffs' complaint alleged that, at the time of the incident, Matthew was a student at the Brickett Elementary School (school) in the district; the school's principal was Debra Ruggiero; Matthew's classroom teacher was Nancy Doherty. During the 2007-2008 school year, various students were bullying Matthew. Matthew's parents brought these problems to the school's attention. The district has an anti-bullying policy that the plaintiffs contend was not enforced.
On a certain day in March, 2008, one of the known bullies pushed Matthew down a flight of stairs. Matthew got up and, although he later complained of "tingling" in his lower extremities, he continued on with all school activities for the remainder of the day. School personnel did not summon emergency services or report the matter to the school nurse. By the end of the day Matthew was unable to get up from his desk, and the school summoned Matthew's parents to come get him. The parents arrived and took Matthew to the hospital immediately.
At the hospital, Matthew was diagnosed with a lower limb sprain and sent home with pain medication. The next day, Matthew was unable to get out of bed and complained that his extremities were numb. Matthew's parents again took him to the hospital; he was transferred to Massachusetts General Hospital (MGH) where he was diagnosed with a spinal injury. Matthew is now permanently paralyzed and confined to a wheelchair.
In July, 2011, the plaintiffs filed an amended complaint, including claims for a violation of Matthew's civil rights and G. L. c. 76, § 5. In July, 2015, the defendants' motion to dismiss was allowed. After hearing, the motion judge determined that, due to the immunity protections allowed under the Massachusetts Torts Claims Act (Act) "none of the facts alleged in the [c]omplaint [was] sufficient to demonstrate viable legal claims against" the defendants, as the plaintiffs asserted "only labels and conclusions to support the claims alleged." The plaintiffs' motion for reconsideration was denied; they filed a timely notice of appeal as to each.
After dismissal of various defendants, the remaining claims subject to the motion to dismiss relating to these defendants are negligence (count 1); violation of Massachusetts Declaration of Rights (count 2); intentional infliction of emotional distress (count 5); violation of civil rights (count 11); and violation of G. L. c. 76, § 5 (count 12). Matthew's parents, James and Cormier, assert claims for loss of consortium (counts 9 and 10).
Discussion . "We review the allowance of a motion to dismiss de novo." Polay v. McMahon , 468 Mass. 379, 382 (2014). In considering such a motion, "[w]e accept as true the facts alleged in the plaintiffs' complaint as well as any favorable inferences that reasonably can be drawn from them." Galiastro v. Mortgage Electronic Registration Sys ., 467 Mass. 160, 164 (2014). To survive a motion to dismiss, the factual allegations must " ‘plausibly suggest [and are] (not merely consistent with)’ an entitlement to relief." Id . at 164-165, quoting from Iannacchino v. Ford Motor Co ., 451 Mass. 623, 636 (2008). A plaintiff's obligations to provide the grounds of his entitled relief requires "more than mere ‘labels and conclusions.’ " Galiastro , supra , quoting from Iannacchino , supra .
1. Tort claims . The plaintiffs now argue that the motion to dismiss should have been denied based on recent anti-bullying case law, referring specifically to Connecticut, where it has been held that a bullied student may bring a negligence cause of action against a school district. The plaintiffs contend that we should adopt precedent from other jurisdictions, permitting causes of action claims based on Federal law or through tort and civil rights claims under State law. We regret that we must decline to do either, leaving to the Legislature the power to regulate any new anti-bullying laws. See Commonwealth v. Cole , 468 Mass. 294, 301 (2014), quoting from LaChapelle v. United Shoe Mach. Corp. , 318 Mass. 166, 170 (1945) ( "Article 30 [of the Massachusetts Constitution] specifically prohibits the legislative, executive, and judicial branches from ‘exercis[ing] the ... powers' of the other branches").
On appeal, the plaintiffs address only the negligence claim.
The plaintiffs cite Hernandez vs . West Haven Bd. of Educ., Conn. Super. Ct., No. AANCV095010484S (June 7, 2013).
The plaintiffs cite the following Federal laws: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, § 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, the equal protection and due process clauses of the United States Constitution, and 42 U.S.C. § 1983.
The plaintiffs also argue that the immunity granted pursuant to the Act was inappropriate here where the actions of the defendants materially contributed to the circumstances that directly led to Matthew's injury. They allege that the defendants failed to investigate, failed to respond adequately and summon emergency services, and failed to implement and enforce school policies and procedures.
This argument also fails. We agree with the motion judge that the plaintiffs, in their amended complaint, did not allege any affirmative act by the defendants that "contributed to creating the specific condition or situation that caused [Matthew's] injuries." The Act provides that a public employer (here, the district) is 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 [or her] office or employment." G. L. c. 258, § 2. However, § 10(j ) of the Act provides immunity to a public employer for harmful consequences arising from its failure to act to prevent the conduct of a third person that resulted in the harmful consequence. See G. L. c. 258, § 10(j ).
Because the defendants did not affirmatively act, this case can be easily distinguished from the facts in Gennari v. Reading Pub. Schs ., 77 Mass. App. Ct. 762 (2010), on which the plaintiffs rely to support their argument.
Here, we are constrained, as was the motion judge, by the decision of the Supreme Judicial Court in Brum v. Dartmouth , 428 Mass. 684, 696 (1999). In that case, the court 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), quoting from Brum , supra at 695. Based on the holding in Brum , combined with the fact that the harm here was inflicted by the act of a third party (a student), we must conclude that granting immunity to the district under G. L. c. 258, § 10(j ) was proper.
With regard to the defendant employees, Ruggiero and Doherty, the Act instructs that they will not be held liable for any injury, loss of property, or death while acting within their scope of employment. See G. L. c. 258, § 2. See also Parker v. Chief Justice for Admin. & Mgmt. of the Trial Ct ., 67 Mass. App. Ct. 174, 180 (2006) ("where only ordinary negligence is alleged, claims may not be asserted against the public employee but may be brought against the employer"). The plaintiffs did not allege in their complaint that these defendants acted outside of the scope of their employment; as a result, Ruggiero and Doherty are entitled to protection under the Act. See ibid .
2. Declaration of Rights claim . The plaintiffs also contend that their Massachusetts Declaration of Rights claim (count 2) is premised on violations to Matthew's civil rights to substantive due process. They argue that the defendants failed to honor the "social compact" created by the Massachusetts Declaration of Rights when they were unsuccessful in protecting Matthew, who is mandated by law to attend class, from constant bullying in the time preceding the March 10, 2008, incident. This argument also fails.
The plaintiffs argue that the defendants violated Matthew's rights under the State Declaration of Rights to "safety, protection, tranquility, happiness, and liberty."
--------
We agree with the motion judge that, because Massachusetts has not definitively determined whether a cause of action can be brought based solely on the Declaration of Rights, we must look to the Federal standards in reviewing Matthew's claim. See Layne v. Superintendent, Mass. Correctional Inst., Cedar Junction , 406 Mass. 156, 159-160 (1989), quoting from Phillips v. Youth Devel. Program, Inc ., 390 Mass. 652, 657-658 (1983). Under Federal jurisprudence, the due process clause does not guarantee citizens that they will be protected by the government from third parties, as in this case. See Brum , supra at 698.
Although, in certain limited circumstances, State inaction may give rise to liability, that liability generally involves situations where the State has mandated confinement and, therefore, owes the individual a duty of protection. See Davis v. Rennie , 264 F.3d 86, 97-98 (1st Cir. 2001) ("The [S]tate has a duty to protect incarcerated prisoners and involuntarily committed mental patients from harm by a state actor"). Massachusetts has been unwilling to extend to school children this duty to protect and we must decline to do so here. See Brum , supra at 697-707.
3. Equal protection claim . Finally, the plaintiffs argue that the defendants deprived Matthew, under the State Equal Rights Amendment, of his right to receive a public education free from intentional discrimination and harassment when the defendants treated him differently than other students based on his disability. The plaintiffs raise Matthew's disability (obesity ) for the first time on appeal; they failed in their amended complaint to allege adequately, or to provide facts in support of, this claim of equal protection. As a result, the issue is waived. See Smith v. Sex Offender Registry Bd ., 65 Mass. App. Ct. 803, 810 (2006).
Judgment affirmed .
Order denying motion for reconsideration affirmed .