Spring v. Geriatric Authority of Holyoke

Abrams, J.

(concurring, with whom Liacos, J., joins). I concur with the majority’s reasoning in denying relief to the plaintiff. Unfortunately, on the record before us, there is no remedy for the grievous wrong inflicted on Spring and members of his family. The decedent was an ailing, elderly, incompetent patient at a nursing home. Following the court order terminating the decedent’s dialysis treatments, Matter of Spring, 380 Mass. 629 (1980), two nurses employed by the defendant Authority asked the decedent whether he wanted to die. The nurses, together with four aides, sent a letter and transcript of the “interview” with the decedent to the local newspaper. This was done with the approval of both the supervisory nurse and the Center administrator. Later, a physician and nurse — unaffiliated with the Authority — were permitted access to the decedent by the Authority employees to make an unsolicited visit. No defendant had obtained the permission of either the decedent’s family or guardian. The decedent’s privacy was significantly invaded without justification.

The dilemma for the plaintiff became, of course, from whom to seek relief. As the court notes, G. L. c. 66A is inapplicable to the Authority. Ante at 281. Further, assuming that an action for invasion of privacy existed at common law, such an action *294 might have been available against a municipality, see 18 E. McQuillin, Municipal Corporations § 53.13a (3d ed. rev. 1984), but not against a hospital maintained by a municipality, see id. at § 53.86. See also Beakey v. Billerica, 324 Mass. 290 (1949) (municipality not liable for negligent acts of its officers or employees in maintenance of infirmary); Young v. Worcester, 253 Mass. 481, 484 (1925) (municipality not liable for negligent act, “greater in culpability than is ordinarily imputed to negligent conduct,” arising out of maintenance of city hospital).

The Legislature, furthermore, has specifically provided that “[t]he exercise by the Authority of [its] powers . . . shall be deemed and held to be the performance of essential governmental functions.” St. 1973, c. 1097, § 1, amending St. 1971, c. 554 (emphasis added). At common law, immunity was typically afforded services performed by a municipality which were “not for the immediate advantage of the town in its corporate capacity.” Fisher v. Boston, 104 Mass. 87, 93 (1870). Thus, neither at common law nor by statute may we view this agency as a proprietary agency for purposes of imposing liability.

It is clear, moreover, that the defendants intentionally sent the letter to the newspaper. The Legislature has exempted intentional torts from the Massachusetts Tort Claims Act. Section 10 (c) of G. L. c. 258, inserted by St. 1978, c. 512, § 15, provides that the act does not apply to “any claim arising out of an intentional tort, including . . . intentional mental distress . . . [and] invasion of privacy.” “Where the Legislature in enacting a statute follows a Federal statute, we follow the adjudged construction of the Federal statute by the Federal courts.” Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 611 (1980). See Irwin v. Ware, 392 Mass. 745, 767-768 (1984).

General Laws c. 258, § 10 (c), finds its Federal analogue in the Federal Tort Claims Act, 28 U.S.C. § 2680 (h) (1982). 1 *295 The Federal courts have construed that provision as immunizing public employers from suits arising out of intentional torts. United States v. Muniz, 374 U.S. 150, 163 (1963). Wine v. United States, 705 F.2d 366 (10th Cir. 1983). See W.L. Prosser & W.P. Keeton, Torts § 131 (5th ed. 1984) (Federal government retains immunity from specified intentional tort claims). That same outcome was intended by the Legislature when it enacted G. L. c. 258, § 10.

It ought to be underscored, however, that the plaintiff in such a case retains the right to bring an action against the individual governmental employees involved. “A . . . logical interpretation of [G. L. c. 258, § 10 (c)] excludes [intentional torts] from the act’s waiver of public employer immunity but does not affect any common law remedies against public employees for these acts.” Glannon, Governmental Tort Liability under the Massachusetts Tort Claims Act of 1978, 66 Mass. L. Rev. 7 , 12 (1981). See Alves v. Hayes, 381 Mass. 57, 58 (1980); Morash & Sons v. Commonwealth, 363 Mass. 612 , 624 n.7 (1973). And indeed, the plaintiff here did pursue actions against the defendants Greany, Webster, McEvady, and Walohan as individuals for invasion of privacy. The jury returned verdicts for the four defendants and the plaintiff took no cross appeal from the judgments on those verdicts. Thus, even had there been error in those judgments, any such error is not before us. “[Fjailure to take a cross appeal precludes a party from obtaining a judgment more favorable to it than the judgment entered below.” Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 , 43 n.5 (1977). The failure to take a cross appeal as to the individual defendants is particularly surprising in view of these defendants’ obvious insensitivity to a grieving family struggling to come to terms with the sad fate of one of its members.

Title 28 U.S.C. § 2680 (h) reads in pertinent part: “The provisions of this chapter . . . shall not apply to — (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”