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17-P-230 Appeals Court
ALEXANDRA STAHR & others1 vs. LINCOLN SUDBURY REGIONAL HIGH
SCHOOL DISTRICT.
No. 17-P-230.
Middlesex. November 9, 2017. - May 18, 2018.
Present: Agnes, Maldonado, & McDonough, JJ.
Practice, Civil, Motion to dismiss. Massachusetts Tort Claims
Act. Governmental Immunity. School and School Committee,
Athletic coach, Liability for tort. Negligence, School,
Governmental immunity. Words, "Intervention."
Civil action commenced in the Superior Court Department on
September 18, 2015.
A motion to dismiss was heard by Kenneth J. Fishman, J.,
and a motion for reconsideration was considered by him.
John N. Morrissey for the plaintiffs.
Christine M. Dowling for the defendant.
AGNES, J. The principle that "if there is tortious injury
there is liability" is one of long standing in Massachusetts
when the parties are private actors. Historically, however, the
1 Jennifer Stahr, John Stahr, Stephen Stahr, and David
Stahr.
2
principle had no application when the negligent actors were
employees of State or local government, because their employers
were shielded from such lawsuits based upon the ancient doctrine
of sovereign immunity. Morash & Sons v. Commonwealth, 363 Mass.
612, 618-619 (1973). With the adoption of the Massachusetts
Tort Claims Act in 1978, G. L. c. 258 (act), inserted by St.
1978, c. 512, § 15, the Legislature abolished much of the
governmental immunity doctrine subject to several exclusions.
See G. L. c. 258, §§ 2, 10(a)-(j). Recently, in Cormier v.
Lynn, 479 Mass. 35 (2018), the Supreme Judicial Court considered
the applicability of a specific exclusion in the act that bars
"any claim based on an act or failure to act to prevent or
diminish the harmful consequences of a condition or situation,
including the violent or tortious conduct of a third person,
which is not originally caused by the public employer or any
other person acting on behalf of the public employer." G. L.
c. 258, § 10(j), inserted by St. 1993, c. 495, § 57. In
Cormier, the court, in keeping with prior case law, held that
§ 10(j) comes into play unless the public employer, by some
affirmative act, "originally caused" the condition or situation
that forms the basis for the plaintiff's negligence claim, 479
Mass. at 40, and determined that a grade school student who
suffered a severe spinal injury as a result of being pushed down
a stairwell at school by a classmate could not bring suit
3
against the city of Lynn and its school department, among
others. The court concluded that the claims were barred either
because they "originat[ed] from a failure to act rather than an
affirmative act," or because any affirmative actions by the
defendants were "'too remote as a matter of law to be the
original cause' of [the student's] injuries . . . and therefore
cannot be said to have 'materially contributed' to creating the
specific condition or situation resulting in [the] injuries."
Id. at 41, citing Brum v. Dartmouth, 428 Mass. 684, 696 (1999),
and Kent v. Commonwealth, 437 Mass. 312, 319 (2002).
In the case before us, we must determine whether § 10(j) is
applicable to negligence claims brought by the plaintiffs
against the defendant, Lincoln Sudbury Regional High School
District (defendant). The plaintiffs' claims arise out of an
injury sustained by Alexandra Stahr, a member of the defendant's
varsity field hockey team, who was struck by a field hockey
stick wielded by another team member during a practice session.
In addition, we also must consider whether a specific statutory
exception to the immunity afforded by § 10(j) permits the
plaintiffs' claims to proceed because they are grounded in "the
intervention of a public employee which causes injury to the
victim or places the victim in a worse position than [s]he was
in before the intervention." G. L. c. 258, § 10(j)(2). For the
reasons that follow, we conclude that notwithstanding the
4
serious injuries suffered by Alexandra,2 the plaintiffs' claims
are barred by § 10(j) and do not come within the saving
provision of § 10(j)(2).
In their amended complaint, the plaintiffs allege that the
defendant was negligent in (1) failing to properly train and
supervise the athletic coaches and athletes present when
Alexandra was injured; (2) failing to seek adequate medical
assistance at the time of her injuries and, further, failing to
provide adequate postinjury monitoring and planning related to
Alexandra's injuries; and (3) failing to implement a written
academic reentry plan following Alexandra's injuries. The
plaintiffs also assert claims premised on negligent infliction
of emotional distress and loss of consortium due to the acts and
omissions of the defendant.
The defendant filed a motion to dismiss pursuant to
Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), on the basis that
G. L. c. 258, § 10(j), barred the claims brought against the
defendant, a regional school district. The motion judge
dismissed the complaint in its entirety after finding that G. L.
c. 258, § 10(j), insulated the defendant from liability. For
the reasons set forth below, we affirm.
2 Because the plaintiffs share a surname, we refer to
Alexandra by her first name.
5
Background. On September 30, 2012, Alexandra participated
in field hockey practice as a member of the defendant's varsity
field hockey team. On that day, the team participated in a
drill introduced and supervised by an alumna player acting as a
volunteer coach (volunteer coach). The head varsity field
hockey coach (head coach) was also present on the field but did
not actively participate in the supervision of the drill. Prior
to beginning the drill, neither coach gave the players any
instructions or warnings as to techniques that could endanger
other players. The coaches also failed to prohibit the players
from practicing dangerous techniques and did not inform the
players that they would be penalized for utilizing such
techniques. During the drill, Alexandra was struck in the face
by a teammate's field hockey stick after the teammate chose to
pass the ball via a "hard-drive" as opposed to a "push-pass."
The blow knocked out two of Alexandra's teeth and caused her to
lose consciousness.
The volunteer coach did not provide Alexandra with
assistance after she was injured. The head coach left the field
to find first aid supplies and did not immediately assist
Alexandra or assess her injuries. While the head coach was
getting supplies, one of Alexandra's teammates called
Alexandra's father. Upon her return to the field, the head
coach, who had retrieved one of Alexandra's teeth, put it on ice
6
and directed Alexandra to apply ice and gauze to her mouth. The
head coach did not take any steps to mitigate the effects of a
possible concussion, and the defendant had not yet implemented a
concussion protocol as required by G. L. c. 111, § 222, and 105
Code Mass. Regs. §§ 201.00 et seq. (2011).3 When Alexandra's
father arrived at the field, the head coach did not explain to
him the circumstances of Alexandra's injury or provide advice
about how to treat her injury, including the proper protocol to
follow in the event of a suspected concussion. Alexandra's
father took her for emergency dental surgery but failed to seek
further emergency medical treatment.
Alexandra was subsequently diagnosed with a concussion on
October 5, 2012. The symptoms of her concussion caused her
academic performance to suffer over a prolonged period of time.
The defendant provided her with little academic assistance and
did not implement a written graduated reentry plan,4 which
ultimately led Alexandra to withdraw from Lincoln-Sudbury
Regional High School and transfer to another school.
3 General Laws c. 111, § 222, establishes a regulatory
framework relating to head injury safety and education.
4 See 105 Code Mass. Regs. § 201.010(E) (2011) ("Each
student who is removed from practice or competition and
subsequently diagnosed with a concussion shall have a written
graduated reentry plan for return to full academic and
extracurricular athletic activities").
7
Discussion. "We review the allowance of a motion to
dismiss de novo . . . accept[ing] as true the allegations in the
complaint and draw[ing] every reasonable inference in favor of
the plaintiff." Curtis v. Herb Chambers I-95, Inc., 458 Mass.
674, 676 (2011).
1. General Laws c. 258, § 10(j). In this case, we must
once again wade into the "interpretive quagmire" that is G. L.
c. 258, § 10(j). See Brum, 428 Mass. at 692; Cormier, 479 Mass.
at 40 n.10. Section 10(j) confers significant protection from
tort liability to public employers by barring "any claim based
on an act or failure to act to prevent or diminish the harmful
consequences of a condition or situation, including the violent
or tortious conduct of a third person, which is not originally
caused by the public employer or any other person acting on
behalf of the public employer."5 G. L. c. 258, § 10(j). See
Cormier, supra at 39-40.
a. "Original cause" of Alexandra's injuries. The
plaintiffs first argue that the head coach's decision to allow
an "untrained volunteer coach to introduce and supervise [a]
novel close quarters drill" constituted an affirmative act that
was the "original cause" of Alexandra's injuries.
5 It is undisputed that the defendant is a public employer.
See G. L. c. 258, § 1.
8
"To have 'originally caused' a condition or situation for
the purposes of § 10(j), the public employer must have taken an
affirmative action," and the employer's act "must have
materially contributed to creating the specific 'condition or
situation' that resulted in the harm." Cormier, 479 Mass. at
40, quoting from Brum, 428 Mass. at 695-696, and Kent, 437 Mass.
at 319.
While the plaintiffs argue that the affirmative act of
allowing an untrained volunteer coach to supervise a novel drill
was the "original cause" of Alexandra's injuries,6 their amended
complaint makes clear that their claim is rather that the
coaches' lack of supervision and inadequate instruction prior to
allowing the players to engage in the drill -- both omissions --
caused Alexandra's injuries. The plaintiffs' claim in this
respect amounts to an attempt to hold the defendant liable for
failing to ensure Alexandra's safety during field hockey
practice. As the Supreme Judicial Court stated in Cormier, 479
Mass. at 42, "Such a claim is precluded under the act." The
plaintiffs' claim must fail, as it is premised on the
defendant's failure to act. See id. at 41-42 (students
6 Even if we consider this theory of liability, the act of
allowing an untrained volunteer coach to direct and supervise
the drill in which Alexandra was injured would not qualify as
the "original cause" of the harm complained of because it is too
attenuated from the events that were the direct cause of that
harm. See Brum, 428 Mass. at 695; Jacome v. Commonwealth, 56
Mass. App. Ct. 486, 489 (2002).
9
instructed to line up before school without adequate supervision
or guidance from defendant constituted failure to prevent harm
in form of spinal injury to student who was pushed down
stairwell, as opposed to affirmative act under § 10[j]).7
b. Aftermath of the injury. The plaintiffs next argue
that § 10(j) does not bar so much of their claims as are based
on the independent negligent acts of the defendant that occurred
after Alexandra was initially injured.
i. Independent acts of negligence. Alexandra's injuries
were caused by the negligent act of a third person -- here, her
teammate –- and, as discussed supra, the defendant was not the
"original cause" of Alexandra's injuries. The plaintiffs
nevertheless maintain that the defendant is liable by arguing
7 For the same reason that Gennari v. Reading Pub. Schs., 77
Mass. App. Ct. 762 (2010), was distinguishable in Cormier, 479
Mass. at 42 n.13, it is also distinguishable from the facts
presented in the case before us. In Gennari, an elementary
school principal directed first graders to participate in recess
in a concrete courtyard containing numerous "bench-walls" with
sharp edges. During recess, the plaintiff was pushed by a
classmate and struck his face on the corner of one of the
concrete bench-walls located in the courtyard. 77 Mass. App.
Ct. at 763-764. The plaintiff subsequently filed suit against
the school district. This court held that § 10(j) did not bar
the plaintiff's claims against the school district on the basis
that the principal's decision to hold recess in a concrete
courtyard populated with bench-walls was an affirmative act
constituting an "original cause" of the situation that led to
the plaintiff's injury. Id. at 765. Here, as in Cormier, the
original cause of Alexandra's injury was an omission -- the
coaches' failure to properly instruct and supervise the athletes
participating in the drill, and thereby ensure Alexandra's
safety. See Cormier, supra at 42 n.13.
10
that the defendant's failure to implement and adhere to proper
concussion protocols pursuant to G. L. c. 111, § 222, and 105
Code Mass. Regs. §§ 201.00 et seq., constituted independent acts
of negligence that exacerbated the harm initially caused by
Alexandra's teammate.8 However, § 10(j), by its plain language,
precludes liability in such circumstances, as the exclusion is
triggered by conduct amounting to a "failure to act to . . .
diminish the harmful consequences of . . . the . . . tortious
conduct of a third person, which is not originally caused by the
public employer." See Anderson v. Gloucester, 75 Mass. App. Ct.
429, 434-435 (2009) (holding that § 10[j] barred plaintiffs'
negligent misidentification claim because police officer's
misidentification of fire victim, while affirmative act intended
to diminish ultimate harm suffered, was not original cause of
harmful consequences suffered by plaintiffs, which stemmed from
fire that city did not cause).
8 General Laws c. 111, § 222(f), inserted by St. 2010,
c. 166, § 1, provides:
"Nothing in this section shall be construed to waive
liability or immunity of a school district or its officers
or employees. This section shall not create any liability
for a course of legal action against a school district, its
officers or employees."
While the plaintiffs admit that the statute itself does not
create a cause of action against the defendant, they argue that
they may nonetheless bring a cause of action by showing that the
defendant breached a duty owed to Alexandra by failing to comply
with the statutory mandates of G. L. c. 111, § 222, and the
applicable regulations.
11
ii. Negligent intervention under § 10(j)(2). The
plaintiffs further argue that the motion judge erred in
dismissing their amended complaint because the defendant's
negligent intervention falls within the exception to § 10(j)
immunity set forth in § 10(j)(2). Section 10(j)(2) provides
that § 10(j) immunity shall not apply to "any claim based upon
the intervention of a public employee which causes injury to the
victim or places the victim in a worse position than [s]he was
in before the intervention." The term "intervention" is not
defined in G. L. c. 258, §§ 1 or 10. When a statutory term is
not specifically defined, we give it the "usual and accepted
meaning, as long as [that] meaning[ is] consistent with the
statutory purpose." Commonwealth v. Zone Book, Inc., 372 Mass.
366, 369 (1977). See Commonwealth v. Gove, 366 Mass. 351, 354-
355 (1974). Typically, the usual and accepted meaning of a
statutory term can be derived from a source such as a
dictionary. Zone Book, Inc., supra. The term "intervention" is
commonly understood to mean "the act or fact of intervening."
Webster's Third New International Dictionary 1183 (1993). In
this sense, "intervention" refers to an affirmative act on the
part of the intervener. This is how the term has been
understood and applied in our appellate decisions. Compare
Jones v. Maloney, 74 Mass. App. Ct. 745, 750 (2009) ("The
assistant principal's failure to take various actions, including
12
contacting the [plaintiff's] mother, . . . cannot be considered
acts of intervention under § 10[j][2]"), with Serrell v.
Franklin County, 47 Mass. App. Ct. 400, 405 (1999) (§ 10[j][2]
exception applicable where affirmative act of pushing iron gate
against plaintiff to subdue inmate exacerbated situation to
plaintiff's detriment).
Here, the intervening "acts" alleged to fall within the
scope of § 10(j)(2) are, rather, plainly omissions. These
include the head coach's failure both to explain to Alexandra's
father the circumstances of Alexandra's injury and to provide
advice about how to treat her injury, and the defendant's
failure to implement the proper concussion protocols under G. L.
c. 111, § 222, and 105 Code Mass. Regs. §§ 201.00 et seq. Thus,
the plaintiffs' arguments as to the applicability of
§ 10(j)(2)'s exception to the exclusion from liability set forth
in § 10(j) must also fail. As we have noted on other occasions
and in other contexts involving the scope of statutory remedies,
the exception set forth in § 10(j)(2) reflects a policy
judgment. "If it is unwise, it is not for us to say so; the
remedy lies with the Legislature." Murphy v. Police Commr. of
Boston, 369 Mass. 469, 471 (1976). See Commonwealth v. Vickey,
381 Mass. 762, 767 (1980) ("[W]hen the statute appears not to
provide for an eventuality, there is no justification for
judicial legislation").
13
2. Other claims. The plaintiffs' other claims, all of
which stem from the injuries sustained by Alexandra during field
hockey practice, also were properly dismissed by the motion
judge. See Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 493
(2002).
Judgment affirmed.