A.L. v. Commonwealth

*249 Hennessey, C.J.

(concurring). I agree with the reasoning of Justices Abrams, Wilkins, and Liacos, and with the result to which it leads them. I write separately only to emphasize that we today apply, not abrogate, the so-called “public duty” and “special relationship” mies.

The Massachusetts Tort Claims Act (Act), G. L. c. 258 (1986 ed.), provides in § 2 that “[p]ublic employers shall be liable for . . . the negligent or wrongful act or omission of any public employee ... in the same manner and to the same extent as a private individual under like circumstances . . . .” This language does not create any new theories of liability, but simply provides that tort actions brought against governmental entities are governed by the same theories of liability that apply to actions involving private parties. Dinsky v. Framingham, 386 Mass. 801, 804-805 (1982). A problem arises, however, because many governmental functions, e.g., penal incarceration, probation, and parole functions, have no analogues in private.sector law; and others, e.g., police protection, building inspection, have only imperfect analogues. In applying theories of liability derived from private sector law to such traditionally “public” governmental functions, the court understandably has been circumspect. “[F]aimess to the injured individual cannot be the sole controlling factor in this context. Desirable as it might be to structure a system of cost-benefit distribution in which no tortious injuries would go uncompensated, the fact that we are here dealing with governmental entities vastly complicates the issue of the appropriate scope of tort liability. ... An appropriate balance should be stmck between the public interest in fairness to injured persons and in promoting effective government.” Whitney v. Worcester, 373 Mass. 208, 215-216 (1977). That balance has been stmck, in a series of cases, by denying relief where the defendant governmental entity breached a duty owed to the “general public,” and not to the plaintiff as an individual, see Dinsky v. Framingham, supra at 805-806 , and its progeny, cited ante at 239 n.8; but granting relief where there is a “special relationship” between the plaintiff and the defendant, see Irwin v. Ware, 392 Mass. 745 (1984).

*250 In this case, the plaintiffs have a special relationship to the probation officer which satisfies this requirement and takes this case out of the realm of public duty. This special relationship arose from the highly specific condition of probation that identified a special class of persons (boys in a teacher-pupil relationship with Darragh) within the risk of “immediate and foreseeable physical injury . . . who cannot reasonably protect themselves from it.” Irwin, supra at 756 . The plaintiffs, as members of this class intended to be specially protected, were owed a duty of care beyond that owed to the public as a whole. But not every case of recidivism by a probationer or parolee gives rise to liability. Had Darragh molested not a student of the school where he was teaching, but a young boy he encountered at a local playground or in some other extrascholastic context, a different case would be presented. And in the more typical case, the generality of conditions of probation or parole that do not specify an identifiable class of persons intended to be specially benefited does not create a special relationship between the probation or parole officer and any individual member of the public. In the absence of such a special relationship, there is no duty owed, and there may be no recovery against the Commonwealth.