Cyran v. Town of Ware

Wilkins, J.

(dissenting, with whom Abrams, J., joins). Let us assume that, consistent with some current thinking, a town hires a private corporation to provide municipal fire protection. One day a house catches on fire; an alarm is struck; the private corporation’s employees head for the scene. When the first fire engine arrives, the two firefighters on that truck do nothing, except say that they are waiting the arrival of a second fire engine. In a few minutes, the second engine arrives. The fire has now spread to the rear porch and is burning the outside rear of the house. The firefighters on the second engine attach a hose to a hydrant and spray water on the front of the house, where there is no fire. They ignore the rear of the house, where the fire continues to spread. Another engine arrives, and more hoses are laid out. Water is not applied to the fire until approximately twenty minutes after the arrival of the first fire engine. The fire is extinguished on the rear porch, and the hoses are turned off for the next twenty-seven minutes. The fire has, however, reached the rear peak of the roof inside the house and continues to spread. 1

Section 2 of G. L. c. 258 (1990 ed.) provides, in part, that a public employer shall be liable for injury to property caused by the negligent act or omission of any public employee, acting within the scope of his or her employment, “in the same manner and to the same extent as a private individ *470 ual under like circumstances.” A literal application of § 2 mandates municipal liability in this case if the hypothetical private fire protection company described above would be liable.

The Massachusetts Tort Claims Act (G. L. c. 258) is modeled on the Federal Tort Claims Act ( 28 U.S.C. §§ 2671-2680 [1988]). We appropriately look to the Federal Act for instruction in determining what our Legislature intended by identical words in the State Act. See Harry Stoller & Co. v. Lowell, 412 Mass. 139, 142-143 (1992). For decades the United States has been subject to liability under the Federal Act for conduct of Federal firefighters that would be negligent conduct if performed by private persons in similar circumstances. Rayonier Inc. v. United States, 352 U.S. 315, 318 (1957). It does not matter that the private actor is only hypothetical. In creating governmental liability for the negligence of its employees “in the same manner and to the same extent as a private individual under like circumstances” ( 28 U.S.C. § 2674 ), Congress intended that “the United States [be] liable to petitioners for the Forest Service’s negligence in fighting the forest fire if, as alleged in the complaints, [State] law would impose liability on private persons or corporations under similar circumstances” (emphasis supplied). Rayonier Inc. v. United States, supra at 318 . “[T]he very purpose of the Tort Claims Act was to waive the Government’s traditional all-encompassing immunity from tort actions and to establish novel and unprecedented governmental liability.” Id. at 319 . The Supreme Court recognized that a heavy burden may be placed on the public treasury and that entire communities might burn. Id. This risk was, however, one that Congress elected to assume in the best interests of the nation. Id. at 319-320 . Spreading the cost of the government’s negligence among all taxpayers and relieving the injured party from bearing that cost alone was a judgment that Congress could and did make. Id. at 320 . When that judgment is made, “[t]here is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a func *471 tion for the same body that adopted it.” Id. This court should not “as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.” Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955).

What I have said would warrant the conclusion that a judge-made exemption from governmental liability (such as the public duty rule) should not be crafted and that governmental liability should exist, assuming no statutory exception to liability applies, even in a case in which there is no “special relationship” between the plaintiff and the governmental employee charged with negligence. This court has, however, adopted a limitation on governmental liability for cases where no statutory exception applied but where no “special relationship” was found, and I have accepted the concept. 2 The reason for the limitation is a lingering concern that the exposure to liability, even though limited to $100,000 for each plaintiff (G. L. c. 258, § 2), will be more than government treasuries can sustain. In its Rayonier opinion, the Supreme Court noted the possible distinction between the Federal government and a local government in this respect, saying that “for obvious reasons the United States cannot be equated with a municipality, which conceivably might be rendered bankrupt if it were subject to liability for the negli *472 gence of its firemen.” Rayonier Inc. v. United States, supra at 320.

It is for this reason that this court has engaged in “line-drawing,” a practice not rare in the development of tort law. We have regarded certain situations as sufficiently egregious, where the peril was obvious and substantial and the class of potential victims was reasonably determinable, to warrant governmental liability. See A.L. v. Commonwealth, 402 Mass. 234 (1988); Irwin v. Ware, 392 Mass. 745 (1984). We identified a “special relationship” in those cases, a conclusional phrase that does nothing to assist in drawing the line between liability and nonliability in given cases.

I agree with Justice O’Connor’s assessment that there is no meaningful basis for permitting liability in Irwin v. Ware, supra, and A.L. v. Commonwealth, supra, and not permitting liability here. See ante at 463-466 (O’Connor, J., concurring). In this case, there was direct, obvious, and immediate harm to the house of known property owners. The specificity as to whose interests were affected by the firefighters’ negligence is far more apparent than in A.L. v. Commonwealth, supra, and in Irwin v. Ware, supra, cases in which the potential plaintiffs were not even ascertainable at the time the acts of negligence were committed and in which injury to the plaintiffs (or anyone else) from the public employee’s negligence was not certain. The immediacy and certainty of the harm and the clear identification of the persons being specifically harmed make inapplicable here any judge-made exception to the rule of governmental liability stated in G. L. c. 258, § 2. The threat of governmental financial ruin arising from the damage caused by a destructive conflagration, which so troubles those of my colleagues who deny the possibility of liability here, presents a different case in which line-drawing might reasonably result in no liability.

Judgment should not have been entered for the defendant town.

The assumed facts are facts on which the plaintiffs rely in this case. They appear in the plaintiffs’ presentation made to the municipal authorities, and, although not properly part of the record on appeal, these facts fall within the scope of the allegations of the complaint.

In abandoning the public duty rule in Colorado, the Colorado Supreme Court, in a well-reasoned opinion, noted that “a growing number of courts have concluded that the underlying purposes of the public duty rule are better served by the application of conventional tort principles and the protection afforded by statutes governing sovereign immunity than by a rule that precludes a finding of an actionable duty on the basis of the defendant’s status as a public entity.” Leake v. Cain, 720 P.2d 152, 158 (Colo. 1986), citing cases from Alaska, Arizona, Florida, Iowa, New Mexico, Oregon, and Wisconsin. See Maple v. Omaha, 222 Neb. 293, 301 (1986) (“Nowhere is there found [in the statute] an exemption for the exercise of a duty owed to the public generally”). These opinions cast doubt on whether this court acted wisely in accepting the public duty rule after the enactment of the Massachusetts Tort Claims Act.

Of course, the statutory exemption from liability when the conduct causing harm involves the carrying out of a discretionary (i.e., policymaking or planning) function (G. L. c. 258, § 10 [&]) would apply whether or not the public duty rule is involved in a given situation. See Harry Stoller & Co. v. Lowell, 412 Mass. 139 (1992).