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”
How later courts described this case
- 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 facing the underlying problem"
- 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"
- delaying for one legislative session decision to abolish “public duty rule” prospectively to give Legislature opportunity to consider forthcoming change in decisional law, and “to make any preparations for the change that it deems appropriate”
Written by the judges who cited it.
The opinion
Greaney, J.
(concurring). I join in the Chief Justice’s opinion principally because the abandonment of the public duty rule is made prospective. I am not persuaded by Justice O’Connor’s opinion that we should immediately return to a *524 restricted special relationship exception to the public duty rule which would import back into the law many of the injustices associated with sovereign immunity. At the same time, I find an analysis that attempts to draw comparisons between public activities and hypothetically similar private activities far from intellectually convincing. There are no private fire fighting companies, building inspectors, or police departments, and it is by no means clear that the language of § 2 of G. L. c. 258 requires that such private entities be hypothesized in order effectively and fairly to apply and administer the statute.
From my point of view, the prospective nature of the opinion recognizes that abandonment of the public duty rule could lead to a deluge of lawsuits against governmental entities, particularly municipalities, which will drain their already limited resources. As I said in Cyran v. Ware, 413 Mass. 452, 455 (1992), for example, “[sjociety would not favor, and public policy does not support, a rule which would expose a municipality to liability for damages every time its fire department does not, in a plaintiff’s view, fight a fire satisfactorily. In busy urban areas such exposure could be limitless, and in extreme circumstances (as recent events in Los Angeles illustrate), the potential cost of such governmental liability could be catastrophic.” In addition to damages, governmental entities will incur considerable costs to defend the lawsuits. Most of the suits will probably survive summary judgment (since causation, the issue which will be at the heart of most G. L. c. 258 actions under the new rule, is almost always a question of fact). The costs of defense thus will encompass fees and expenses for discovery, which in present lawsuits is often lengthy and costly, and fees for trial and appeals. The costs could have severe impact on public treasuries. I am not persuaded that the Legislature either intended or anticipated this result when G. L. c. 258 was enacted.
The period given to the Legislature to appraise the scope of G. L. c. 258 in light of today’s decision will permit governmental entities to be heard and public policy to be evaluated. *525 Additionally, our past decisions which disclose the expansive, and at times unusual, nature of claims that can be brought under the present statute provide a basis for legislative consideration of the scope of the statute. I am also not persuaded that the Legislature intended that government liability be claimed every time some nondiscretionary action (or inaction) by a governmental employee has allegedly caused a plaintiffs injury. It may well be that the Legislature will impose limitations which preclude liability for such things as negligent inspections, negligence in fire fighting, and negligence in some aspects of police work. Other limitations may also be appropriate. Thus, the opportunity for legislative reflection on a statute which has up to now posed difficult problems of judicial interpretation and application persuades me to join in a result which, if it does become effective, will likely lead to equally difficult problems in the area of causation.