section 10(b) liability in Massachusetts

2022Although almost every act involves some degree of discretion, '[t]he discretionary function exception is narrow, "providing immunity only for discretionary conduct that involves policy making or planning."' Greenwood v. Easton, 444 Mass. 467, 470 (2005), quoting Harry Stoller & Co., supra. Discretionary acts do not include those that involve only the 'carrying out of previously established policies or plans.' Barnett v. Lynn, 433 Mass. 662, 664 (2001), quoting Whitney [v. Worcester], 373 Mass. 208, 218 [(1977)]." Magliacane v. Gardner, 483 Mass. 842 , 860 (2020).

2013The type of discretionary decisions which may not form the basis for liability under § 10(b) are those “with respect to public policy and planning.” Id. at 142, quoting from Whitney v. Worcester, 373 Mass. 208, 218 (1977).

2013Second, the Commonwealth must demonstrate that “the discretion that the actor had is that kind of discretion for which § 10 (b) provides immunity from liability.” Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992).

2006A. G.L.c. 258, § 10(b) Section 10(b) provides immunity for municipalities regarding: any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused; Regarding Paxton’s first claim of immunity, this court must first consider, “whether the governmental actor had any discretion at all as to what course of conduct to follow,” and second, “whether the discretion that the actor had is that k

2024Furthermore, the difficulties that Gomes experienced while responding to the flood -- including looking for the curb shutoff valve and clearing debris from the main shutoff valve -- were not the original cause of the flood. "[T]he principal purpose of § 10 (j) is to preclude liability for failures to prevent or diminish harm." Brum v. Dartmouth, 428 Mass. 684, 696 (1999).

2024See Brum, 428 Mass. at 693 - 694. "[T]he principal purpose of § 10 (j) is to preclude liability for [governmental] failures to prevent or diminish harm, including harm brought about by the wrongful act of a third party," as long as the government was not the "original cause" of the harmful condition or situation.

2002Serrell v. Franklin County, 47 Mass. App. Ct. 400, 403 (1999).

2001See, e.g., Bonnie W. v. Commonwealth, 419 Mass. 122, 126-27 (1994) (concluding that §10(J) did not bar liability where a parole officer’s affirmative actions in recommending a convicted rapist for a job at a mobile park home and giving the employer misleading information about the rapist created the situation in which the rapist got the job and was entrusted with the keys to the plaintiffs trailer); Serrell v. Franklin County, 47 Mass.App.Ct. 400, 405 (1999) (concluding that §10(j) did not bar liability based on prison guards’ affirmative conduct in intervening in an altercation between an inm

2007The second and far more difficult step is to determine whether the discretion that the actor had is that kind of discretion for which § 10(b) provides immunity from liability.” Sena, 417 Mass. at 255-56 .

2005See Sena v. Commonwealth, 417 Mass. 250, 256 (1994) (police officers’ decisions about “whether, when, how, and whom to investigate” are within officers’ discretion and render them immune from liability under § 10[b]).

2023As the Supreme Judicial Court stated in Brum, 428 Mass. at 696 , the "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 . . . [a]nd to 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." See Cormier, 479 Mass. at 41 (claims originating from failure to act rather than affirmative act barred by § 10 [j]); Jane J. v. Commonwealth, 91 Mass. App. C

2006The relationship between the act of the public employer’s agent and the resulting injury cannot be attenuated; it “must have materially contributed to creating the specific ‘condition or situation’ that resulted in the harm.” Kent v. Commonwealth, supra at 319. “[T]he principal purpose of § 10(f) is to preclude liability [on the part of the public employer] for failures to prevent or diminish harm.” Jacome v. Commonwealth, 56 Mass. App. Ct. at 489 , quoting from Brum v. Dartmouth, supra at 696 .

2023As the Supreme Judicial Court stated in Brum, 428 Mass. at 696 , the "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 . . . [a]nd to 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." See Cormier, 479 Mass. at 41 (claims originating from failure to act rather than affirmative act barred by § 10 [j]); Jane J. v. Commonwealth, 91 Mass. App. C

2023See Cormier, 479 Mass. at 40 . "[T]he principal purpose of § 10 (j) is to preclude liability [on the part of the Commonwealth] for failures to prevent or diminish harm" (citation omitted).

2022Although almost every act involves some degree of discretion, '[t]he discretionary function exception is narrow, "providing immunity only for discretionary conduct that involves policy making or planning."' Greenwood v. Easton, 444 Mass. 467, 470 (2005), quoting Harry Stoller & Co., supra. Discretionary acts do not include those that involve only the 'carrying out of previously established policies or plans.' Barnett v. Lynn, 433 Mass. 662, 664 (2001), quoting Whitney [v. Worcester], 373 Mass. 208, 218 [(1977)]." Magliacane v. Gardner, 483 Mass. 842 , 860 (2020).

2005Section 10(b) exempts from liability “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused.” The first step in determining whether the discretionary function exception bars the plaintiffs claim “is a determination whether the [government] actor had any discretion to do or not to do what the plaintiff claims caused [her] harm.” Barnett v. Lynn, 433 Mass. 662, 663-64 (2001),

2011In Kent v. Commonwealth., 437 Mass. 312, 318 (2002), the Supreme Judicial Court construed the “original cause” provision of §10(j) to require an affirmative act, not a failure to act by the public employer, that creates the “condition or situation” that results in the harm.

2002The plaintiff next contends that it was the negligence of those in charge of the beach that brought about Wilson’s death by drowning, and that therefore immunity under § 10(j) is unavailable because the “condition or situation” in question was “originally caused by the public employer or any other person acting on behalf of the public employer.” The reference in § 10(j) to an “original cause” means “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 . . . .” Kent v. Commonwealth, 437 Mass. 312

2005Generally, such discretionary conduct is “characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning.” Patrazza v. Commonwealth, 398 Mass. 464, 467 (1986), quoting Whitney v. Worcester, 373 Mass. 208, 218 (1977).

2001Generally, such discretionary conduct is “characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning.” Patrazza v. Commonwealth, 398 Mass. 464, 467 (1986), quoting Whitney v. Worcester, 373 Mass. 208, 218 (1977).

2022Although almost every act involves some degree of discretion, '[t]he discretionary function exception is narrow, "providing immunity only for discretionary conduct that involves policy making or planning."' Greenwood v. Easton, 444 Mass. 467, 470 (2005), quoting Harry Stoller & Co., supra. Discretionary acts do not include those that involve only the 'carrying out of previously established policies or plans.' Barnett v. Lynn, 433 Mass. 662, 664 (2001), quoting Whitney [v. Worcester], 373 Mass. 208, 218 [(1977)]." Magliacane v. Gardner, 483 Mass. 842 , 860 (2020).

2017In this step we must determine "whether the discretion that the [governmental] actor had is that kind of discretion for which § 10(b) provides immunity from liability." Greenwood, supra at 470 , quoting from Harry Stoller, supra at 141 .

2023As the Supreme Judicial Court stated in Brum, 428 Mass. at 696 , the "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 . . . [a]nd to 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." See Cormier, 479 Mass. at 41 (claims originating from failure to act rather than affirmative act barred by § 10 [j]); Jane J. v. Commonwealth, 91 Mass. App. C

2011Commonwealth v. Mendes, 44 Mass. App. Ct. 903, 904 (1997), quoting from G.

2011In Vining v. Commonwealth, 63 Mass.App.Ct. 690, 694-95 (2005), the Appeals Court held that when properly was negligently lost by law enforcement officials, § 10(d) barred liability.

2004See Christopher v. Father’s Huddle Café, Inc., 57 Mass.App.Ct. 217, 230-31 (2003), and cases cited. 5.

2004See Suboh v. City of Revere, 141 F.Sup. 2d 124 (D.Mass. 2001), aff'd in part, reversed in part, 298 F.3d 81 (2002).

2002See Dinsky v. Framingham, 386 Mass. 801, 804 (1982).

2001See, e.g., Bonnie W. v. Commonwealth, 419 Mass. 122, 126-27 (1994) (concluding that §10(J) did not bar liability where a parole officer’s affirmative actions in recommending a convicted rapist for a job at a mobile park home and giving the employer misleading information about the rapist created the situation in which the rapist got the job and was entrusted with the keys to the plaintiffs trailer); Serrell v. Franklin County, 47 Mass.App.Ct. 400, 405 (1999) (concluding that §10(j) did not bar liability based on prison guards’ affirmative conduct in intervening in an altercation between an inm

2000Courts have limited innkeepers’ liability under G.L. 140, §10 to items “which are placed within the inn,” see Berkshire Woolen Co. v. Proctor, 61 Mass. 417, 427 (1851) (court held innkeeper liable for theft of money from guest’s room), and have held innkeepers exempt from liability for theft of guests’ automobiles from the inn’s parking lot.

1999Justice O’Connor’s concurrence in Cyran v. Ware, 413 Mass. 452, 467 (1992), which preceded enactment of the statute, uses the words “originally caused” and is a likely source for the language used in the statute.

1997See Singer Friedlander Corp. v. State Lottery Comm’n, 423 Mass. 562, 564 (1996), quoting Bronstein v. Prudential Ins.

1985Compare Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703-704 (1975) (for liability under c. 93A “it is not necessary to establish that the defendant knew that the representation was false”), with Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201 (1976) (proof of scienter is required for liability under § 10 [b] and rule 10b-5).

1985Compare Slaney v. Westwood Auto, Inc., 366 Mass. 688, 703-704 (1975) (for liability under c. 93A “it is not necessary to establish that the defendant knew that the representation was false”), with Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201 (1976) (proof of scienter is required for liability under § 10 [b] and rule 10b-5).