finding a special relationship existed between defendant probation office and plaintiff students molested by teacher who was prohibited by the terms of probation from teaching
How later courts described this case
- finding a special relationship existed between defendant probation office and plaintiff students molested by teacher who was prohibited by the terms of probation from teaching
- holding that Commonwealth was liable under Tort Claims Act for negligent acts of defendant probation officer
- "A probation officer's duty to make reasonable efforts to ascertain whether a probationer has complied with the terms of his or her probation is not a discretionary function."
- conditions of probation imposed by sentencing judge created a special relationship between the probation officer and middle school students injured when molested by convicted child molester employed as a teacher at school
Written by the judges who cited it.
The opinion
Nolan, J.
(dissenting, with whom Lynch, J., joins). The instant case falls somewhere between the fact patterns of Dinsky v. Framingham, 386 Mass. 801 (1982), with its “relatively leisurely course of events,” Irwin v. Ware, 392 Mass. 745, 756 (1985), and that of Irwin , where the threat posed was imminent and of great magnitude. Factually, I note several distinctions between Irwin and the instant case. A fundamental difference is that, in Irwin , the police officers were aware of the motorist’s intoxicated state and thus were cognizant of the imminent and foreseeable threat that he posed if not taken into custody. Here, the probation officer had no such awareness of the danger posed by Darragh’s teaching since the probationer had lied about his employment. Also, there is no question that the intoxicated motorist could not have injured others that evening if he had been removed from the road by the police of *251 ficers. There is no such assurance, even if the probation officer had discovered Darragh’s employment and prevented him from teaching, that Darragh could not have had access to, and molested other children. I note that the threat posed in Irwin was one of imminent, grave risk of injury or death; hence, the type of harm involved there was quite different.
It was emphasized in Irwin that the victims had no chance to protect themselves. In essence, the police officers constituted the only barrier between the intoxicated driver and other motorists. In the instant case, while I agree that the children could not protect themselves, the probation officer was only one individual out of several groups. For example, the parents, other school teachers, and the school principal were committed to caring for the children’s needs as well as supervising and protecting them. In addition, the danger posed was not of the same temporal immediacy as in the Irwin case. The motorist in Irwin was involved in the fatal crash just ten minutes after he spoke with the police officers. Irwin v. Ware, supra at 765 . Here, it cannot reasonably be said that Darragh instantly posed such an obvious danger to the population of the school. Lastly, the police officers in Irwin were required, as part of their sworn duty, to interrogate operators acting suspiciously, and to detain or to arrest individuals appearing to be intoxicated. In Irwin , the particular statutory scheme at issue imposed a special duty on the police to the motoring public. Id. at 755 . Hence, it is clear that Irwin v. Ware, supra, is distinguishable from the present case on both its facts and statutory framework.
Today’s decision raises the serious question as to where the court will stop in extending liability. The court seems to be making every effort to make Massachusetts the bonanza capital of the nation to the detriment of good order and the long suffering taxpayers. For these reasons, I dissent.