determining that the city has discretion in deciding how best to expend its limited resources in order to provide safe and secure conditions and insulating from liability the City’s decision not to put up guard-railing
How later courts described this case
- determining that the city has discretion in deciding how best to expend its limited resources in order to provide safe and secure conditions and insulating from liability the City’s decision not to put up guard-railing
- holding that sledding down snow covered stairs that led to a road was an open and obvious danger
- holding that it was city’s discretion not to remove snow from 'an unpopulated site
- where the court noted that “a court cannot review ‘without usurping the power and responsibility of the . . . executive branch’ ” issues such as snow removal, available resources and allocation therefore and that G.L.c. 258, § 10(b) would bar such claims
Written by the judges who cited it.
The opinion
Ireland, J.
(concurring). I do not disagree that our result is compelled by the language of G. L. c. 258, § 10 (b). Nonetheless, I write separately to voice my concern that, as in Brum v. Dartmouth, 428 Mass. 684, 708-710 (1999) (Ireland, J., concurring), city officials are effectively immunized from the tragic results arising out of their “use of discretion.” See DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189 (1989). Once again, those who could have remedied a known danger are relieved of legal responsibility under the shield of the Massachusetts Tort Claims Act, while a family is left to grieve over a young life cut short.
Be it matters of school safety or snow removal, public entities in Massachusetts will continually confront choices that affect our children. In making those tough decisions, I, by no means, intend to hold policy makers and officials to a standard of perfection; indeed, they are not guarantors. See Brum v. Dartmouth, supra at 710 (Ireland, J., concurring). Rather, I write to say, “There must be change ... in the law . . . that *668 balances compensation and public immunity in light of evolving social values . . . .” Note, Brum v. Dartmouth and the Public Duty Rule: Navigating an Interpretive Quagmire, 41 B.C. L. Rev. 383 , 462 (2000). Mindful that such change “must not come in the form of tortured judicial analyses that twist and turn the law to make it fit a particular circumstance,” id,., I again invite the Legislature to reconsider the current statutory framework in light of the consequences it has wrought.
I believe city officials should “be expected to take reasonable measures to protect children when they have advance notice of danger,” Brum v. Dartmouth, supra at 710 (Ireland, J., concurring), even if the current law does not impose such a duty. Here, city officials were on notice that, just two days prior to the fatal accident, another child slid down the snow on the very same steps, and was catapulted into the street and hit by an automobile. Indeed, these steps were a well-known sledding location and had been used as such for decades. Given this forewarning, as well as the city’s reaction after the fact, i.e., the steps were sanded later that same day and fenced off shortly thereafter, the city’s “discretion” is particularly suspect. Until their exercise of discretion is subject to review for abuse, however, public entities will continue to play the trump card that is the Massachusetts Tort Claims Act, and escape legal responsibility for their willingness to compromise children’s safety.