Brum v. Town of Dartmouth

Kass, J.

(dissenting). When the court in Jean W. v. Commonwealth, 414 Mass. 496, 499 (1993), announced that it would abolish the public duty rule, it coupled its announcement with an invitation to the Legislature “to consider whether it wishes to respond to this anticipated change by passing additional limitations on liability.” Ibid. The Legislature responded with St. 1993, c. 495, § 57.

That amendment 1 added, among other limitations of governmental tort liability, a new subparagraph (j) to G. L. c. 258, § 10, which exempted governmental units from liability for

“any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”

By clause 1 to subparagraph (j), the liability exclusion was not to apply to

“any claim based upon explicit and specific assurances of *329 safety or assistance . . . made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances.”

To what degree the public ought to compensate persons for damages inflicted by third parties (the murder in this case) or other extraneous causes (as the fire in Cyran v. Ware, 413 Mass. 452 [1992]) that competent public action might have prevented is a policy question about which there can be intelligent differences of opinion, as the four separate opinions in Jean W. v. Commonwealth richly illustrate. Within only constitutional limits, it is the task of the Legislature to resolve such public policy questions and, in this instance, it seems to me that the Legislature has done so unmistakably. No school official stabbed Robinson to death. It requires convoluted reasoning to say, as does the majority, that the school authorities originally caused the violent act of Collet, Reed and, possibly, Thomas. The school authorities might have prevented the killing but failing to prevent, under the statute, is in the excluded category. The majority’s outflanking of the statutory exclusion returns the courts to making the sort of indefensible distinctions that Jean W. v. Commonwealth, 414 Mass. at 499 , lamented and that gave rise to the 1993 amendments in the first place.

There is nothing obscure about the manner in which § 10(/') is written. The majority opinion is a regrettable exercise in judicial nullification of a legislative act. If one were to look for assurance that the Legislature intended to exclude just the sort of action brought here, it is instructive to examine a draft amendment first proposed by the Attorney General in the wake of the Jean W. opinion. The Attorney General’s draft § 10(/) read:

“any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation not originally caused by the public employee or any other person acting on behalf of the public employer.”

The reader will observe that the Legislature took the trouble to add the phrase “the violent or tortious conduct of a third person,” precisely the case we have here. See Glannon, Liability for “Public Duties” Under the Tort Claims Act: The Legislature Reconsiders the Public Duty Rule, 79 Mass. L. Rev. 17 , 32 (1994).

*330 There is no claim based upon “explicit and specific assurances of safety or assistance” to the victim. A further category of exclusion from the § 10(j) limitation of liability is that which appears in clause (3), “any claim based on negligent maintenance of public property,” but this refers to keeping property in good repair, not the installation of security systems and procedures. See Glannon, supra at 28.

I would affirm the judgment of dismissal based on G. L. 258, § 10(7).

By § 144 of St. 1993, c. 495, the amendment was made to apply to all pending claims as to which a judgment had not yet entered, hence its pertinence to the case at bar.