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15-P-340 Appeals Court
JANE J.1 vs. COMMONWEALTH.
No. 15-P-340.
Suffolk. April 26, 2016. - April 12, 2017.
Present: Kafker, C.J., Cypher, Rubin, Maldonado, & Massing, JJ.2
Practice, Civil, Summary judgment. Massachusetts Tort Claims
Act. Governmental Immunity. Commonwealth, Claim against,
Liability for tort. Negligence, Hospital, Proximate cause,
Governmental immunity. Proximate Cause.
Civil action commenced in the Superior Court Department on
December 5, 2011.
1
A pseudonym.
2
This case was initially heard by a panel comprised of
Justices Rubin, Maldonado, and Massing. After circulation of a
majority and dissenting opinion to the other justices of the
Appeals Court, the panel was expanded to include Chief Justice
Kafker and Justice Cypher. Following the expansion of the
panel, the court ordered a rehearing of the case before the
expanded panel. See Sciaba Constr. Corp. v. Boston, 35 Mass.
App. Ct. 181, 181 n.2 (1993).
Justice Cypher participated in the deliberation on this
case while an Associate Justice of the court, prior to her
appointment as an Associate Justice of the Supreme Judicial
Court.
2
The case was heard by Elizabeth M. Fahey, J., on a motion
for summary judgment.
John E. Zuccaro, III, for the plaintiff.
Anne M. McLaughlin, Assistant Attorney General, for the
Commonwealth.
MALDONADO, J. The plaintiff filed a complaint against the
Commonwealth under the Massachusetts Tort Claims Act, G. L.
c. 258 (MTCA), alleging that, while she was committed to a
locked unit of Tewksbury State Hospital, a similarly committed
male patient raped her while she was watching television in a
recreation room that is shared by both the male and female
patients of that unit. The only issue before us is whether the
hospital's failure to segregate by gender its patients' use of a
common recreation room constitutes an "original cause" of the
rape. See G. L. c. 258, § 10(j).3 Concluding that it does not,
we affirm the summary judgment entered in favor of the
Commonwealth.
3
General Laws c. 258, § 10(j), inserted by St. 1993,
c. 495, § 57, immunizes public employers from suit under the
MTCA for
"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."
3
Background.4 Tewksbury State Hospital evaluates and treats
patients with varying degrees of mental illness. The hospital's
Hathorne Unit is a locked unit that houses, on separate
corridors, both male and female patients.5 Male patients are not
permitted access onto the female corridor, and female patients
are not permitted access onto the male corridor, except that
patients of both genders enjoy nearly free access to a common
recreation room. The recreation room contains a ping-pong
table, some other games, and a television set; it also leads to
a common sunroom which offers a second television set for
patient viewing. The common rooms are not staffed or equipped
with video surveillance, but hospital staff conduct safety
checks in the rooms every thirty minutes.
4
We take the facts from the statement of material facts
submitted in connection with the Commonwealth's summary judgment
motion. We view any factual disputes in the light most
favorable to the plaintiff as the nonmoving party. See Milliken
& Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008);
Harrison v. Mattapoisett, 78 Mass. App. Ct. 367, 370 (2010).
Thus, we credit the plaintiff's evidence that she was raped.
5
The summary judgment record is silent regarding what types
of patients are assigned to the Hathorne Unit, how placement
decisions are made, who makes them, or who, other than the
plaintiff and her assailant, was housed there. The record does
include evidence that when a patient is admitted to the
hospital, the Department of Mental Health's division of forensic
mental health services conducts a check of the patient's
criminal background and queries the Sex Offender Registry Board
to determine whether the patient is a registered sex offender or
has a history of sexual offenses.
4
In March, 2009, a District Court judge committed the
plaintiff, who had been charged with an assault and battery, to
the hospital for a competency evaluation under G. L. c. 123,
§ 15(b).6 She was assigned to the Hathorne Unit. The plaintiff
alleges that about three weeks into her commitment, she was
watching television in the sunroom when a male patient entered
the sunroom and forcibly raped her.7
Like the plaintiff, the male patient was also hospitalized
on a court-ordered mental health evaluation in connection with
an open criminal charge.8 While the male patient had a criminal
history that included convictions for assaultive behavior, a
Department of Mental Health background check revealed that he
was not a registered sex offender and, further, that his
criminal history "did not suggest that he posed any risk of
6
Under G. L. c. 123, § 15(b), as amended through St. 2000,
c. 357, a judge in a criminal case may order a defendant to be
"hospitalized at a facility or, if such person is a male and
appears to require strict security, at the Bridgewater state
hospital . . . to determine whether mental illness or mental
defect have so affected a person that he is not competent to
stand trial or not criminally responsible for the crime or
crimes with which he has been charged."
7
The rape resulted in a pregnancy, which subsequently
resulted in a miscarriage.
8
There is no evidence that either the plaintiff or the male
patient was held on bail.
5
committing a sexual assault or other violent sex offending
behavior."9
In December, 2011, the plaintiff filed this tort action
alleging that the Commonwealth's negligence caused the sexual
assault, the unwanted pregnancy, and the subsequent miscarriage.
The Commonwealth moved for summary judgment on the ground that
it was immune from suit under § 10(j) of the MTCA. A judge of
the Superior Court allowed the motion and entered summary
judgment for the Commonwealth. This appeal followed.
Discussion. Summary judgment is appropriate where "all
material facts have been established and the moving party is
entitled to a judgment as a matter of law." Augat, Inc. v.
Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "In reviewing
a grant of summary judgment, 'we assess the record de novo and
take the facts, together with all reasonable inferences to be
drawn from them, in the light most favorable to the nonmoving
party.'" Pugsley v. Police Dept. of Boston, 472 Mass. 367, 370-
371 (2015), quoting from Bulwer v. Mount Auburn Hosp., 86 Mass.
App. Ct. 316, 318 (2014), S.C., 473 Mass. 672 (2016). Here,
where the Commonwealth is immune from suit for "any claim based
on an act or failure to act to prevent or diminish the harmful
9
The plaintiff does not argue that the hospital was
negligent in its assessment of the male patient's risk of
violence.
6
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," the defendant bore the burden of
demonstrating the absence of a triable issue regarding whether
the plaintiff's rape and resulting pregnancy were "originally
caused by the public employer" (emphasis supplied). G. L.
c. 258, § 10(j). Alternatively, it bore the burden of showing
that proof that the public employer "committed an affirmative
act that was the original cause of the injury" would not be
forthcoming. Audette v. Commonwealth, 63 Mass. App. Ct. 727,
732 (2005). See Kourouvacilis v. General Motors Corp., 410
Mass. 706, 714 (1991) ("[A] party who moves for summary judgment
has the burden of initially showing that there is an absence of
evidence to support the case of the nonmoving party shouldering
the burden of proof at trial").
In this context, "originally caused" means an affirmative
act that creates the circumstance which results in the harm
inflicted by the third party. See Brum v. Dartmouth, 428 Mass.
684, 693 (1999); Kent v. Commonwealth, 437 Mass. 312, 318
(2002); Gennari v. Reading Pub. Schs., 77 Mass. App. Ct. 762,
764 (2010). The requirement of an "affirmative act" is strict;
it is also quite distinct from a failure to prevent the harm.
See Kent v. Commonwealth, supra (where the court reiterated that
7
the "original cause" language had been construed "to mean an
affirmative act [not a failure to act] by a public employer that
creates the 'condition or situation' that results in harm
inflicted by a third party"). See also Brum v. Dartmouth, 428
Mass. at 696 ("[T]o interpret . . . the subordinate clause
referring to 'originally caused' conditions, to include
conditions that are, in effect, failures to prevent harm, would
undermine that principal purpose [of § 10(j)]"). The facts of
these two cases, and several others, demonstrate the significant
difference between the failure to act and an "original cause."
In Brum, a school principal was told that three men were
coming to attack three particular students, but neither he nor
any other school official instituted any precautionary measures
to protect the students or to prevent the attackers' entry onto
the school premises. Id. at 686-687. The assailants arrived at
the school visibly armed, proceeded to a second-floor classroom
unimpeded by school officials, and fatally stabbed one of the
identified students; his mother brought suit. Id. at 687. In
that case, the Supreme Judicial Court held that the principal's
failure to institute any safety precautions on behalf of the
student was a failure to prevent the harm and not an affirmative
act and, consequently, that it was not an original cause of the
condition or situation that lead to the student's death. Id. at
696. This distinction between a failure to act and an original
8
cause was further explored by this court in Jacome v.
Commonwealth, 56 Mass. App. Ct. 486, 489-490 (2002).
In Jacome, a teenager drowned at a public beach when
lifeguards left their posts early. Id. at 488. Despite the
dangerous bathing conditions, the beach remained open and no
warning signs had been posted. The court held that, under
§ 10(j), the Commonwealth's negligent failure to prevent the
harm did not constitute an original cause of the swimmer's
drowning. The court noted specifically that, "[h]ad the public
employees acted differently, e.g., had the beach been closed,
had conspicuous warning signs been posted, had lifeguards
remained on duty until 6:00 P.M., it is possible that the
tragedy might have been averted. But the very statement of
these possibilities demonstrates why th[e] claim is barred by
§ 10(j). They are all examples of ways in which the public
employees might have prevented the harm to [the deceased teenage
swimmer], and consequently they fall within the immunity from
suit in such circumstances that the Legislature has preserved."
Id. at 490.
Similarly, in Pallazola v. Foxborough, 418 Mass. 639, 639-
640 (1994), a man was seriously injured on a public way when he
was struck by a goal post that had become electrified when fans
attending a sporting event removed the post and caused it to
come into contact with a high-voltage overhead electric power
9
line. Although the plaintiff recovered a jury award against the
town based upon the town's failure to provide sufficient police
protection and prevent the unlawful removal of the goal post
from the stadium, the court held that § 10(j) barred the
plaintiff's recovery and reversed the judgment. Id. at 641-642.
In Serrell v. Franklin County, 47 Mass. App. Ct. 400 (1999), the
plaintiff, a visitor at a house of correction, was inadvertently
injured after correctional officers intervened in a fight
between an inmate and another visitor. Id. at 400-401. We held
that, "[t]o the extent that [the plaintiff] seeks to hold the
county liable for the correctional officers' failure to prevent
the violent outburst of [an] inmate . . . , Brum makes clear
that she may not do so."10 Id. at 403.
Here, the plaintiff alleges that by allowing access to the
recreation room to both males and females, the hospital is an
original cause of her rape, pregnancy, and miscarriage. While
we agree with the dissent that "[t]he Commonwealth bears a
10
In Serrell, 47 Mass. App. Ct. at 401-403, 405, we also
concluded that § 10(b) and (j) precluded recovery under several
of the plaintiff's theories, including the Commonwealth's
"failure to provide a safe area in which to visit an inmate;
. . . failure properly to train, instruct and supervise
correctional officers; [and] the correctional officers' failure
to monitor the inmates in the visiting area and thereby control
and ameliorate an increasingly volatile situation," but that
§ 10(j) did not bar recovery based on a theory of negligent
intervention, where the officers' own actions inadvertently
caused harm to the plaintiff.
10
special responsibility for the safety and general well-being of
those who have been involuntarily committed to State psychiatric
facilities," post at , we do not think it a fair inference
that by merely allowing both men and women access to a common
recreation room, the hospital was an original cause of the
plaintiff's rape and, therefore, of the injuries, including the
plaintiff's pregnancy and miscarriage, which flowed therefrom.
See, e.g., Kent v. Commonwealth, 437 Mass. at 319-320 (where the
Commonwealth did not create the condition that resulted in the
victim's shooting by a parolee, § 10[j] barred suit). Indeed,
the Supreme Judicial Court has refused to "adopt an
interpretation of [§ 10(j)] that construes the words 'originally
caused' so broadly as to encompass the remotest causation and
preclude immunity in nearly all circumstances." Brum, 428 Mass.
at 695.
In Kent v. Commonwealth, 437 Mass. at 313, the Supreme
Judicial Court addressed an analogous situation. There, a
police officer was shot and seriously wounded by a convicted
murderer who had been paroled years earlier. The officer argued
that the parole board's decision to parole his assailant was an
original cause of his injury. Id. at 318. The court disagreed.
It reasoned that while "[t]here can be little doubt that the
[earlier] parole decision contributed in some measure to [the
shooter's] freedom [years later], at least in the sense that the
11
parole board released him from State confinement when he might
otherwise still be serving his life sentence," that act did not
"materially contribute[]" to creating the specific condition or
situation that resulted in harm. Id. at 318, 319. The same is
true here.
There can be no question that not every man is a rapist or
at risk of a sexual offense, and it is undisputed that the
hospital checks its patients' criminal and sexual offending
history before admitting them, and that it did so in this case.
The hospital made a reasoned decision, which is not at issue
here, that the male patient posed no risk of sexual assault.
The male perpetrator also did not "appear[] to require strict
security," as indicated by his not having been committed to the
Bridgewater State Hospital pursuant to G. L. c. 123, § 15(b),
and the hospital here had no role in committing him to its care.
See, e.g., Brum v. Dartmouth, 428 Mass. at 689 (because the
decision to release a prisoner on bail rests with the court, the
prosecutor's recommendation for release was too remote to serve
as a source of liability for the prisoner's attack on another).
Furthermore, hospital staff performed safety checks in the room
every thirty minutes, and nothing in the summary judgment record
supports an inference that the recreation room itself made the
12
occurrence of a rape more foreseeable.11 Contrast Gennari v.
Reading Pub. Schs., 77 Mass. App. Ct. at 764-765 (that children
would run and push each other during a mandated recess session
was sufficiently foreseeable to overcome § 10[j] immunity, where
school principal chose an unsafe play area). Under these
circumstances, the plaintiff's claim "can be characterized only
as failure to prevent the assailant from being in a position to
attack the plaintiff," which is insufficient to overcome the
immunity that § 10(j) provides. Brum v. Dartmouth, supra at
695.
We have no doubt that "[h]ad the public employees acted
differently" in this case by more closely monitoring the
recreation and sunroom "it is possible the tragedy might have
been averted. But the very statement of these possibilities
demonstrates why this claim is barred by § 10(j)." Jacome v.
Commonwealth, 56 Mass. App. Ct. at 490. See Bonnie W. v.
Commonwealth, 419 Mass. 122, 123, 126 (1994) (the Commonwealth
was not liable for a woman's rape on the basis of a parole
11
On this record, there can be no reasonable depiction of
the sunroom as a secluded area. The sunroom was adjacent to the
recreation room. It was open to all patients and monitored by
staff every one-half hour. We also reject any inference that
the rape occurred because the plaintiff was in a locked hospital
unit wearing only a hospital gown, post at .
13
officer's failure to supervise a sexual predator parolee).12
"[T]he principal purpose of § 10(j) is to preclude liability for
failures to prevent or diminish harm, including harm brought
about by the wrongful act of a third party." Brum v. Dartmouth,
supra at 696. Accordingly, we do not agree with the dissent
that the hospital's decision to not segregate by gender its
patients' use of the recreation room caused the plaintiff to be
raped by another individual. Nor do we agree that the decision
we reach today runs afoul of our reasoning and decision in
Devlin v. Commonwealth, 83 Mass. App. Ct. 530 (2013).
In Devlin, we concluded that a treatment center's decision
to employ its prison population to work in a treatment facility
in which it housed its civilly committed population was an
"original cause" of the violent attack sustained by the
treatment center's patient. In that case, the treatment center
voluntarily elected to employ convicted inmates serving criminal
sentences to work at the location in which it housed its civilly
committed population -- a choice that was explicitly forbidden
by statute. Id. at 533-534, citing G. L. c. 123, § 35, fourth
par. Here, the hospital made no analogous decision. Unlike the
12
By contrast, in Bonnie W., unlike the situation here, the
Commonwealth was liable for recommending a sexual offender for
work in a setting that gave him access to the victim's house
key. 419 Mass. at 126. Here, the hospital did not provide a
known sexual predator with access to the plaintiff.
14
management choice made in Devlin to comingle a dangerous prison
population with a civilly-committed vulnerable population, the
hospital here did not comingle two distinctly different
committed populations.13 For all these reasons, therefore, we
13
In our view, the legislation referenced by the dissent,
which requires segregation of male and female detainees, has no
bearing on our case. First, the dissent has put forth no
evidence that the policy decisions that led to these statutes
concerned a fear that the mere comingling of genders would
result in an increase in the number of rapes at these
institutions. Second, it is noteworthy that each of these
statutes pertains to the segregation by gender of potentially
dangerous detainees -- either because these individuals are
imprisoned convicts, potentially dangerous substance abusers,
persons held on bail, or persons awaiting arraignment whose
potential for dangerousness has not yet been determined. See,
e.g., G. L. c. 127, § 22 ("Male and female prisoners shall not
be put or kept in the same room in a jail or house of
correction" [emphasis added]). See also G. L. c. 123, § 35
(establishing separate commitment facilities for males and
females found to be dangerous due to substance abuse disorders);
G. L. c. 125, § 16, third par., inserted by St. 1989, c. 664,
§ 1 ("The department [of correction] shall maintain at the
Massachusetts Correctional Institution, Framingham, a separate
awaiting trial unit for females" on bail); G. L. c. 127, § 20
(establishing separate reception centers for male and female
"prisoners" [emphasis added]); G. L. c. 127, § 21 (permitting
classification of prisoners by gender "to promote their . . .
safe custody . . . and to secure the separation of male and
female prisoners" [emphasis added]); G. L. c. 147, § 20 (if a
female is arrested and detained at a police station, commanding
officer must summon matron attached to station or, if no matron
is so attached, remove the female prisoner to the nearest
station with a matron).
The record in this case does not support an inference that
the mental health patients committed to the hospital for
evaluation and placed on the Hathorne unit posed the same risks
of dangerousness as those underlying the enactment of the
statutes referenced by the dissent. There is no evidence that
the plaintiff's assailant was being imprisoned to serve a
15
conclude summary judgment properly entered for the Commonwealth
here.
Judgment affirmed.
sentence, was being held on bail, or was potentially sexually
dangerous.
MASSING, J. (dissenting, with whom Rubin, J., joins). In
general, the Commonwealth is not liable under the Massachusetts
Tort Claims Act (MTCA) for torts committed by third parties,
even third parties under the supervision of public employers or
their employees. Thus, the Commonwealth cannot be sued for the
violent acts of persons at liberty on parole, even though
parolees are under the supervision of public employees and their
conditional liberty is the result of the decision of public
employees. See Kent v. Commonwealth, 437 Mass. 312, 319 (2002).
Nor is the Commonwealth generally liable for failing to prevent
violent acts committed by one inmate against another in a
prison, house of correction, or jail. Contrast Devlin v.
Commonwealth, 83 Mass. App. Ct. 530, 535 (2013) (no exemption
from liability where convicted inmates were allowed to work in
area of State hospital where civilly committed persons were
housed and treated). A narrow exception exists, however, when
an act or decision of a public employer "materially contributed
to creating the specific 'condition or situation' that resulted
in the harm." Kent, supra at 319, quoting from G. L. c. 258,
§ 10(j). In my view, the Tewksbury State Hospital's decision to
house both male and female committed patients in the same locked
unit, and to allow the patients unsupervised access to the
common room, is such an act. Accordingly, I respectfully
dissent.
2
By its terms, § 10(j) exempts the Commonwealth from
liability for "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," unless it is "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. I
recognize that this provision does not permit us to recast every
"failure to . . . prevent" the "conduct of a third person" into
an affirmative act of the public employer that "originally
caused" the "condition or situation" leading to the plaintiff's
injury, lest the exception swallow the rule. See Brum v.
Dartmouth, 428 Mass. 684, 693 (1999). "What is needed is an
example of a condition leading to a harmful consequence, where
that condition was originally caused by the public employer but
not brought about by the public employer's failure to prevent
it." Ibid. This case presents such an example.
I do not contend that the hospital was the sole cause of
the plaintiff's alleged rape, or that it can be liable solely
for failure to prevent the plaintiff's injury. Rather, the
hospital affirmatively acted to house in the same locked unit
both men and women who were committed for competency evaluations
in connection with criminal charges, and to permit them to have
unsupervised contact in a secluded common room. This decision
3
was an "original cause" of the plaintiff's rape, pregnancy, and
miscarriage. The hospital "materially contributed to creating,"
and did not merely fail to prevent, the condition that resulted
in the plaintiff's being attacked in the common room by an
involuntarily committed male patient.
Devlin v. Commonwealth, 83 Mass. App. Ct. 530 (2013),
governs the case before us. In Devlin, the plaintiff had been
civilly committed under G. L. c. 123, § 35, to the Massachusetts
addiction center at the Southeastern Correctional Center in
Bridgewater to be treated for alcoholism. Id. at 530-531. A
criminal convict who was permitted to work in the facility as a
"trustee" attacked the plaintiff, resulting in the loss of sight
in his left eye. Id. at 531-532. We held that the
Commonwealth's "affirmative decision to allow convicted inmates
to work in an area where civilly committed individuals were
housed and treated" was an "original cause" of the injury. Id.
at 535.
Likewise, this court held under § 10(j) that a school
principal's decision to require first graders to take recess in
an enclosed, concrete courtyard materially contributed to the
severe injury that resulted when one pupil pushed over another
in the courtyard. Gennari v. Reading Pub. Schs., 77 Mass. App.
Ct. 762, 764-765 (2010). See Bonnie W. v. Commonwealth, 419
Mass. 122, 123-126 (1994) (Commonwealth not exempt from
4
liability for parole officer's recommendation that convicted
rapist be hired by trailer park operator in maintenance position
that gave him access to the keys of plaintiff's mobile home,
which parolee then used to gain access to plaintiff's trailer
and sexually assault her);1 Kent, 437 Mass. at 319 n.9
(discussing Bonnie W. and other cases predating § 10[j]
illustrating factual scenarios that could come within the
concept of "original cause").
The common thread in these cases is that an affirmative
decision by a public employer, not just a failure to act, played
a significant role in placing a vulnerable plaintiff in harm's
way. Here, as in Devlin and Gennari, the hospital made an
affirmative decision to place the female plaintiff and her male
assailant in a confined space -- a locked hospital unit -- for
criminal competency evaluation, and to give both men and women
committed for evaluation access to an isolated, unmonitored
common room. While the majority may be correct that the
hospital had no choice whom it accepted for evaluation, the
hospital did make an affirmative decision to house involuntarily
committed men and women together in a locked unit and to permit
1
By contrast, the Commonwealth was not liable for the
sexual assault based solely on the same parole officer's failure
to supervise the parolee. Bonnie W., 419 Mass. at 126.
5
common access to the sunroom.2 Its decision materially
contributed to the situation that resulted in the plaintiff's
being in that room, wearing a hospital gown because her only
clothes were in the wash, when a male patient raped her. "The
Commonwealth's decision was not so remote from the injury that
it can be considered not to have been an original cause."
Devlin, 83 Mass. App. Ct. at 535.
The Commonwealth bears a special responsibility for the
safety and general well-being of those who have been
involuntarily committed to State psychiatric facilities. See
2
Although the hospital's decision did not violate any law
or regulation, the statutes governing the detention of females
generally call for them to be housed in separate facilities from
similarly situated males. See, e.g., G. L. c. 127, § 22 ("Male
and female prisoners shall not be put or kept in the same room
in a jail or house of correction"). See also G. L. c. 123, § 35
(establishing separate commitment facilities for males and
females found to be dangerous due to substance abuse disorders);
G. L. c. 125, § 16, third par., inserted by St. 1989, c. 664,
§ 1 ("The department [of correction] shall maintain at the
Massachusetts Correctional Institution, Framingham, a separate
awaiting trial unit for females"); G. L. c. 127, § 20
(establishing separate reception centers for male and female
prisoners); G. L. c. 127, § 21 (allowing for classification of
prisoners by gender "to promote their . . . safe custody . . .
and to secure the separation of male and female prisoners");
G. L. c. 127, § 83A (establishing, for male prisoners, camps for
employment "in reforestation, maintenance and development of
state forests"); G. L. c. 147, § 20 (if a female is arrested and
detained at a police station, commanding officer must summon
matron attached to station or, if no matron is so attached,
remove the female prisoner to the nearest station with a
matron). While these laws may or may not have been enacted to
prevent institutional rapes, they certainly reflect a concern
that the comingling of genders in locked facilities
affirmatively creates health and safety risks.
6
Brum, 428 Mass. at 699-700, citing DeShaney v. Winnebago County
Dept. of Social Servs., 489 U.S. 189, 199-200 (1989). But even
without any special responsibility, the Department of Mental
Health employees "owed [the plaintiff] a duty of care, not
because they were employed to protect persons such as [the
plaintiff] and failed to do so, but because, by taking action
that exposed [the plaintiff] to risk, they were bound, as any
other person would be, to act reasonably." Onofrio v.
Department of Mental Health, 408 Mass. 605, 610 (1990). Under
these circumstances, I would conclude as a matter of law that
the Commonwealth is not immune from the plaintiff's claim of
negligence on the basis of § 10(j).
Accordingly, summary judgment should not have been allowed,
and the plaintiff's MTCA claim should proceed to trial. At
trial, the plaintiff would have the burden to prove that a rape
occurred, see ante at note 4, that the hospital or its employees
were negligent, and that their negligence was a proximate cause
of her injury. See Harrison v. Mattapoisett, 78 Mass. App. Ct.
367, 372-373 (2010), quoting from Jupin v. Kask, 447 Mass. 141,
146 (2006) ("To prevail on a negligence claim, a plaintiff must
prove that the defendant owed the plaintiff a duty of reasonable
care, that the defendant breached this duty, that damages
7
resulted, and that there was a causal relation between the
breach of the duty and the damage").3
3
The majority observes that the plaintiff does not argue
that the hospital was negligent in assessing her alleged
assailant's risk of violence. See ante at note 9. This
question is not germane to the applicability of § 10(j).
Rather, questions such as whether the hospital reasonably
concluded that this particular male patient posed no risk of
sexual assault, or whether the hospital adequately supervised
the common room, go to the ultimate issue of whether the
hospital was negligent.