# Jean W. v. Commonwealth

> Massachusetts Supreme Judicial Court · March 8, 1993 · 414 Mass. 496

URL: https://www.frixlaw.com/law-library/cases/9719316

## Case

- **Full name:** Jean W. & Others vs. Commonwealth & Others
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** March 8, 1993
- **Citations:** 414 Mass. 496; 610 N.E.2d 305; 1993 Mass. LEXIS 116
- **Precedential status:** Published
- **Opinion:** Concurrence by Wilkins
- **Judges:** Liacos, Wilkins, Abrams, Nolan, Lynch, O'Connor, Greaney
- **Cited by:** 84 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9719316

## How later opinions describe it (automated extraction)

- concluding that, under Restatement (Second) Of Torts § 320 (1965), the defendants “may have been in a special relationship with [the third person] because of their custody of and control over him”
- noting "[j]udges and commentators criticizing the rule have focused on the unfairness inherent in a rule that results in a duty to none when there is a duty to all, and pointed out the tortured analyses that result when courts seek to avoid such harsh results without squarely …
- stating "[b]y recognizing that the public duty rule is incompatible with the [tort claims] Act, we align ourselves with most jurisdictions that have squarely considered the issue"

## Opinion text

Wilkins, J.
(concurring, with whom Abrams, J., joins). I agree that the public duty rule should no longer be engrafted on the Massachusetts Tort Claims Act. Although I do not concur in many respects with the analysis of cases in the opinion of the Chief Justice, I do agree that the result in Cyran v. Ware, 413 Mass. 452 (1992), has made worthless any continuing attempt at reasoned line-drawing facilitating the establishment of governmental liability in “sufficiently egregious [situations], where the peril [created by a third party] was obvious [to a government agent] and [was] substantial and the class of potential victims was reasonably determinable.” Id. at 472 (Wilkins, J., dissenting, with whom Abrams, J., joined).
No one should rest content that all problems will be solved by the abandonment of the public duty rule. For the four of us who abandon the rule at least prospectively (and, to a degree, for the three of us who believe the rule inapplicable in cases involving active negligence), the new difficult line-drawing will be in the area of causation. Indeed, the results *515 in our cases in which the public duty rule has been involved could largely be explained on traditional tort law concepts of causation.
I see no reason to await legislative inaction before implementing the abandonment of the public duty rule. This conclusion is particularly appropriate in this case where three of us believe that the complaint in part alleges a cause of action based on active wrongdoing and that the public duty rule is inapplicable to that extent. The opinion of the Chief Justice, although favoring the plaintiffs’ position prospectively, casts doubt on the plaintiffs’ chances to recover at all under the public duty rule. Although I find the active-passive negligence dichotomy to be inappropriate where a duty already exists, I would at least forthwith uphold the plaintiffs’ active negligence claim. I would additionally free any claim based on a negligent failure to act from the restrictions of the public duty rule. However, because of the views expressed in other opinions, these plaintiffs may not avoid the application of the public duty rule to their claims based on negligent failures to act (at least until the Legislature says otherwise).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9719316. Public record. Not legal advice.