A.L. v. Commonwealth

O’Connor, J.

(dissenting, with whom Lynch, J., joins). In my view, the court’s decision increases the already substantial confusion about government’s liability for injuries and losses indirectly sustained by private individuals as a result of a public *252 officer or employee’s unreasonable failure to do his job. 1 Furthermore, the decision unwisely skews the necessary balance between compensating injured individuals and maintaining effective and stable government. In Dinsky v. Framingham, 386 Mass. 801 (1982), the court made a suitable beginning toward formulating a set of workable principles relative to public tort liability for indirectly caused injuries and losses to private individuals. As a result of subsequent decisions, however, starting with Irwin v. Ware, 392 Mass. 745 (1984), and culminating in today’s decision, the promise of that beginning has not been achieved. The court must get back on track, and resume the development of a body of public tort law that will be capable of producing principled and predictable dispute resolutions in harmony with sound public policy.

General Laws c. 258, § 2 (1986 ed.), provides that “[pjublic employers shall be liable for injury or loss of property or personal injury or death caused by the negligent ... act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances . . . .” Under c. 258, § 2, public employers are no more immune from liability for the negligence of their officers and employees in the course of their employment than are private employers in similar circumstances. But, c. 258, § 2, does not address the factors that determine the underlying question whether a public officer or employee has been negligent. The analysis involved in a determination whether a public officer or employee has been negligent is the same as that involved in considering the possible negligence of anyone else. See Dinsky v. Framingham, supra at 804-805 .

*253 A person is not negligent toward another unless he owes the other a duty to be careful. Theriault v. Pierce, 307 Mass. 532, 533 (1940). Whether he owes such a duty is a question of law. Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153, 156 (1983). Altman v. Aronson, 231 Mass. 588, 591 (1919). Existing social values and customs and appropriate public policy determine the circumstances in which the court will declare the existence of such a duty. See Schofield v. Merrill, 386 Mass. 244, 246-251 (1982). Foreseeability of harm is one, but only one, relevant factor in the public policy assessment. Id. See Marshall v. Ellison, 132 Ill. App. 3d 732 (1985).

In this case, as in Dinsky v. Framingham, supra, Irwin v. Ware, supra, Ribeiro v. Granby, 395 Mass. 608 (1985), Nickerson v. Commonwealth, 397 Mass. 476 (1986), and Appleton v. Hudson, 397 Mass. 812 (1986), all cases involving a question of public tort liability for indirect losses caused by the failures of public employees, the critical question is whether this court, as a matter of law, should impose on the particular public officer or employee a duty, owed not just to the public as a whole, but to the individual plaintiffs as well, to exercise care for the plaintiffs’ welfare. Stated another way, the question is whether an individual, who suffers an injury as a result of a public officer or employee’s careless dereliction of his public duty, should be entitled to recover, and, if so, in what type of cases. See Glannon, The Scope of Public Liability Under the Tort Claims Act: Beyond the Public Duty Rule, 67 Mass. L. Rev. 159 , 166 (1982).

Since the question is one of public policy, id., see Orzechowski v. State, 485 A.2d 545 (R.I. 1984), a satisfactory answer not only must promise predictable results but also must reflect a reasonable balance between competing values; the compensation of injured individuals and the protection of government from financial burdens of such magnitude as to threaten government’s ability to function effectively. See Dinsky, supra at 810 . In light of the myriad situations in which private individuals interact with public officers and employees, it is essential to affordable government that the court devise a rule limiting *254 government’s liability for indirect harm (see note 1, supra) caused by a public officer or employee’s failure to do his job. See Whitney v. Worcester, 373 Mass. 208, 216 (1977).

Recognition of the threat to government posed by liability for indirect harm without substantial limitation has led a majority of jurisdictions to embrace the so-called public duty rule, which holds that the employment duties of public servants are generally owed only to the public, and are enforceable only administratively or by criminal proceedings. However, those jurisdictions also have recognized that special circumstances relative to an individual’s relationship with a governmental agency, officer, or employee sometimes exist, and that, despite concerns about the public treasury, they demand that the individual be accorded special treatment in the form of a private right of action for the harm he has sustained. The result has been the adoption of two exceptions to the public duty rule.

One of these exceptions is that, when a statute specifically and expressly provides that a public servant’s employment duties are designed to benefit a class of individuals identified in the statute, those individuals are owed a special duty violation of which will support a private cause of action. For example, in Halvorson v. Dahl, 89 Wash. 2d 673, 677 (1978), a case involving allegations of negligence on the part of building inspectors, the applicable housing code described certain conditions as “dangerous and a menace to the health, safety, morals or welfare of the occupants of such buildings and of the public,” and it provided that the purpose of the code was to address such conditions (emphasis added). In concluding that, by its failure to enforce the housing code, the defendant municipality became liable for the death by fire of an occupant of a building to which the code applied, the Supreme Court of Washington reasoned that “[t]he Seattle Housing Code is an ordinance enacted for the benefit of a specifically identified group of persons as well as, and in addition to, the general public” (emphasis added). Id. The statutory intent exception to the public duty rule, relied on in Halvorson , is sharply limited to regulations (statutory or otherwise) containing language expressly identifying particular groups as intended beneficiaries. *255 It has been infrequently applied. “Despite numerous references to the statutory intent rationale, it is difficult to find cases which hold that a statute creates a special duty to a particular class of persons." Glannon, supra at 163.

The other entirely distinct, and more frequently applied, exception to the public duty rule holds that a public servant’s duty runs to specific individuals, as well as to the general public, when a “special relationship” exists between those individuals and the public agency or servant. It would be impractical, and perhaps futile, to attempt to identify all the situations in which courts subscribing to the public duty rule have declared the existence of a special relationship sufficient to support liability. It is clear, however, that judicial concern about the imposition of oppressive financial burdens on government has led courts sharply to limit recognition of special relationships to cases in which the plaintiff has a far more compelling claim than the plaintiffs have had in Irwin v. Ware, supra, and its progeny. See, e.g., Tarter v. State, 68 N.Y.2d 511, 519 (1986) (“any claim based upon the negligent supervision of . . . parolees must fail because of the complete lack of allegations of both a special duty to protect the claimants as identified individuals and the reliance on the part of the claimants on specific assurances of protection”); Ashburn v. Anne Arundel County, 306 Md. 617, 631 (1986) (“In order for a special relationship between police officer and victim to be found, it must be shown that the local government or the police officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim’s specific reliance upon the police protection”); Marshall v. Ellison, supra at 735-737 (specifically rejecting the foreseeability of harm approach taken by the court in Irwin v. Ware, supra); Warren v. District of Columbia, 444 A. 2d 1, 10 (D.C. App. 1981) (Kelly, J., concurring in part and dissenting in part) (no liability where police officer failed in his duty to obtain identification of plaintiff’s attacker in violent confrontation witnessed by officer thereby preventing plaintiff from suing the attacker, because the officer had not given the plaintiff a specific assurance of protection justifying reliance by the plain *256 tiff). A common thread running through these cases applying the “special relationship” exception is that the public agency, officer, or employee has expressly or impliedly represented to the plaintiff that special care would be taken for his protection, thus justifying the plaintiff’s reliance on the employee’s carrying out his responsibility. See Irwin v. Ware, supra at 775 (Nolan, J., dissenting with whom Lynch & O’Connor, JJ., joined).

Although this court has purported to adopt the public duty rule and its rationale, it has expanded the rule’s exceptions to the degree that there is little left to the rule in this Commonwealth. Furthermore, the rule as it has been applied by this court has not yielded predictable results nor has it served the purpose for which the traditional public duty rule was created.

The evolvement of the Massachusetts rule began with Dinsky v. Framingham, 386 Mass. 801 (1982). In Dinsky , the defendant town’s department of health authorized the town’s building commissioner to issue a building permit for the construction of the plaintiffs’ home on the condition that the lot be graded so as to prevent low spots in which water might collect. The building commissioner issued building and occupancy permits although the grading requirement had not been met. The plaintiffs purchased the home, which thereafter sustained property damage due to flooding, and then brought an action against the town alleging negligence in the issuance of the permits. After a trial, the judge directed a verdict for the town “on the ground that the town owed the plaintiffs no duty of care beyond that owed to the public at large.” Id. at 802 . On appeal, this court affirmed, after announcing that “we will not depart from the majority rule that in the absence of a special duty owed to the plaintiffs, different from that owed to the public at large, no cause of action for negligent inspection can be maintained.” Id. at 810 . The court concluded that the first exception to the public duty rule, the statutory intention exception, did not apply. There was no separate discussion of the “special relationship” exception.

The next relevant case was Irwin v. Ware, supra. There, two town police officers failed to take into custody an intoxi *257 coted motor vehicle operator they had stopped, and ten minutes later the vehicle collided with another vehicle killing two of its occupants and injuring two others. The court considered the question whether the officers owed a duty of care to those individuals, violation of which would support liability. By a four-to-three decision, the court concluded that such a duty existed. The court reasoned that “the applicable statutes [created] a duty to the motoring public with respect to intoxicated motorists discovered by the police upon which tort liability may be based.” Id. at 755 . The court came to that conclusion despite its recognition, id. at 755-759 , that there was no express provision in the “applicable statutes” identifying a particular segment of the public as intended beneficiaries thereof, and that therefore the Halvorson statutory intention exception discussed in Dinsky, supra, did not apply. The court’s holding that the police officers nevertheless owed a special duty to the victims appears to have been based not only on a broadly expanded version of the statutory intention exception but on a nontraditional version of the special relationship exception as well a version that ignored the lack of any special undertaking or representation directed particularly to the plaintiffs that induced their detrimental reliance on the officers’ performance of their duty. In light of the “statutes giving police officers the right to deal with intoxicated persons,” id. at 759, the court simply concluded that, “[w]here the risk created by the negligence of a municipal employee is of immediate and foreseeable physical injury to persons who cannot reasonably protect themselves from it, a duty of care reasonably should be found.” Id. at 756. In effect, by radically modifying the exceptions to the traditional public duty rule, the court formulated a new rule in favor of individual plaintiffs at the cost of imposing unacceptably heavy financial burdens (notwithstanding damages limitations provided in G. L. c. 258, § 2) oh government for indirectly caused injuries.

The rule announced and applied in Irwin v. Ware, supra, is unwise not only because of the heavy burden it places on government, but also because it has proven difficult, if not impossible, to apply evenhandedly and without an orientation *258 to result. In Ribeiro v. Granby, 395 Mass. 608 (1985), the plaintiff administrators of the estate of their son, James A. Ribeiro, sought damages for Ribeiro’s death by fire in an apartment containing only one egress. The plaintiffs alleged the negligence of town officials in failing to require a second egress. This court denied liability on the ground that, unlike the situation in Irwin v. Ware , “[t]he danger was discernible for many months before the harm occurred,” and the owners and the occupants could have taken measures to rectify or to avoid the danger. Ribeiro, supra at 612 . Thus, the court concluded, “[g]ood policy . . . strongly indicates that the liability, if any, on the facts shown . . . must be left only on the owners of the property.” Id. at 613 .

Eight months after deciding Ribeiro , the court held in Nickerson v. Commonwealth, 397 Mass. 476 (1986), that the Commonwealth cannot be held liable to a person injured on the highway by an uninsured motor vehicle whose registration had not been revoked by the Registrar of Motor Vehicles as required by law. The court held that the Registrar ow7ed no duty to the plaintiff, explaining, id. at 478 , that “[t]he plaintiff’s case is not advanced by Irwin v. Ware . . . because there this court ruled that the risk created by the negligence of the police in failing to arrest the intoxicated operator of a motor vehicle was foreseeable and because relevant statutes evidence a legislative intent to protect both the intoxicated person and other users of the highway. Further, unlike the instant case, the risk in Ware was ‘of immediate and foreseeable physical injury to persons who [could not] reasonably protect themselves from it.’ Id. at 756 .” One might reasonably question whether, apart from the immediacy of the threat posed by the public servant’s error, there was significant distinction between the facts of Nickerson and the facts of Irwin . Surely, it was foreseeable to the Registrar that a registered but uninsured vehicle might injure someone designed to be protected by compulsory insurance laws, and surely Nickerson, who was changing a tire at the edge of the road when he was struck, was no more able to protect himself from being struck by an uninsured vehicle than the plaintiffs were able to protect themselves from the drunken driver in Irwin .

*259 In Appleton v. Hudson, 397 Mass. 812 (1986), the plaintiff was injured and her husband was killed in an automobile accident on River Street in Hudson. The plaintiff, individually and as administratrix of her husband’s estate, brought an action to recover damages based in part on a claim that town officials had been warned by the Appletons about persistent underage drinking at a club on River Street and about dangerous speeding conditions there. The plaintiff claimed that the officials had negligently failed to monitor and correct that situation. As a result, the plaintiff alleged, the Appletons’ vehicle was struck on River Street at about 1 a.m., June 26, 1982, by a vehicle occupied by three intoxicated minors who had purchased liquor illegally at the club and at other establishments licensed by the town. The vehicle containing the youths had been racing along River Street at speeds over ninety miles per hour and had crossed into the wrong lane before colliding with the Appletons’ vehicle, causing the injury and death complained of. Reasoning that, “[ujnlike the situation in Irwin , there was no foreseeably identifiable perpetrator whom the town negligently failed to remove from the highways,” and that the risk was not “immediate,” the court held that there was no special duty owed to the Appletons and hence there was no liability. Id: at 816. It is noteworthy that, in Appleton , the court properly did not suggest that the Appletons were in a position to protect themselves. Indeed, they had attempted to protect themselves by complaining to town officials about conditions on River Street. Thus, the foreseeability of harm and the Appletons’ inability to protect themselves did not result in the court’s recognition of causes of action. The key difference between Appleton and Irwin appears to have been the immediacy of the foreseeable risk.

Now, the court concludes that, in material respects, the present case is like Irwin v. Ware , and not like Dinsky, Ribeiro, Nickerson, and Appleton , and therefore the plaintiffs have a right of action against the Commonwealth. The court reasons that “the conditions of probation imposed by the sentencing judge created a special relationship between these plaintiffs and the probation officer and created a duty beyond that owed *260 to the public as a whole” {ante at 241) because of several factors: (1) the conditions of probation were designed to protect young boys such as the plantiffs; (2) it was foreseeable that the probation officer’s failure to monitor the nature of the probationer’s employment would create a risk of the harm that occurred and that the conditions of probation were designed to prevent; (3) even though nine months had elapsed between the imposition of probation and the molestation of the boys, the threat to the boys was a chronic, persistent, and known threat involving an “identifiable perpetrator,” and (4) the boys could not have reasonably protected themselves nor could their parents protect them.

This case cannot fairly be distinguished from Ribeiro, Nickerson, and Appleton . In each of those cases, the relevant statutory regulations, like the conditions of probation here, were designed to protect the victims (among others). In each of those cases, it was foreseeable that the public employee’s failure to do his job carefully would create a risk of the harm that occurred and that the relevant regulation was designed to prevent. In each of those cases, the foreseeable harm was not immediate as it had been in Irwin . Surely in Nickerson and Appleton , and probably in Ribeiro as well, the plaintiffs were not in a position to protect themselves. Yet, in each of those cases, the plaintiffs lost. Here, the plaintiffs have won. Why?

The point is that the “rule” that has emerged in the Commonwealth really is a “nonrule.” Either all or none of the plaintiffs in the cases discussed above should have been entitled to recover. Under the traditional public duty rule, none would have been entitled to recover, for that rule makes exceptions only where a statute expressly provides that it is intended to benefit a class of identifiable individuals; or, in the alternative, where the public body or its officer or employee has given an express or implied assurance specifically to a plaintiff, in addition to that made to the general public, which fairly justifies detrimental reliance by that plaintiff. This court should follow the traditional public duty rule. It may be less than perfect, but it has the important virtue of being reasonably predictable, and it properly recognizes as a fact of life that government is unduly *261 burdened by a rule that permits recovery in any of the situations presented by Dinsky, Irwin, and their progeny. It is not unfair in such cases that plantiffs must look for compensation only to those persons directly responsible for their injuries. I would reverse the judgments.

This is not a case in which a public employee’s activity has resulted in direct harm to an individual, such as a municipal motor vehicle operator’s careless driving causing an accident. Rather, this is a case, like Dinsky v. Framingham, 386 Mass. 801 (1982), and its progeny, in which a public employee’s failure to protect a plaintiff from the acts of others, as required by his employment, has indirectly caused harm to the plaintiff. The discussion in this opinion is limited to the latter type of case. See generally Glannon, The Scope of Public Liability Under the Tort Claims Act: Beyond the Public Duty Rule, 67 Mass. L. Rev. 159 , 166 (1982).