section 10(b) immunity in Massachusetts

2024Id. 3 The second step is to determine whether the discretion that the city had is the type of discretion for which § 10 (b) provides immunity from suit.

2010Section 10(6) immunity extends only to “discretionary conduct that involves policy making or planning.” Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992).

2020In other words, § 10 (j) provides immunity from tort liability to public employers "for a public employer's act or failure to act to prevent harm from the wrongful conduct of a third party 18 unless the condition or situation was 'originally caused' by the public employer." Cormier, supra, citing Brum, supra at 692, 695 .

2005Invoking the reasoning of the Brum case, the Court in Heaberlin stated that “(e]ven if DSS or [foster mother] negligently failed to act to diminish the harmful consequences of the meningitis . . . section 10(j) provides immunity because neither DSS . . . ‘originally caused’ Robert’s [foster child] illness.” See id. at *4; See also Brum, supra note 5 .

2025Kent, supra at 318-320 (absent "closer connection" between alleged affirmative act and plaintiff's harm, § 10 [j] provides immunity).

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

2008See also Barnett v. Lynn, 433 Mass. 662, 665-666 (2001) (that the city had prior notice of a danger is irrelevant to the discretionary function inquiry of § 10(6) because the exemption extends even to circumstances where the public employer “abused” its discretion).

2001Similarly, the Supreme Judicial Court found in Barnett v. City of Lynn, 433 Mass. 662, 664-65 (2001), that a municipality’s decisions not to incur the costs of erecting a fence or removing snow from city owned property fell within the discretionary function immunity of §10(b).

2000Second, it must determine whether the discretion at issue is of the kind for which § 10(b) provides immunity — whether it is “discretionary conduct that involves policy making or planning.” As a general rule, when the governmental conduct involves a “high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities should remain immune from liability.” Id. at 142 quoting Whitney v. Worcester, 373 Mass. 208, 218 (1977).

1999Second, it must determine whether the discretion at issue is of the kind for which § 10(b) provides immunity — whether it is “discretionary con duct that Involves policy making or planning.” As a general rule, when the governmental conduct involves a “high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities should remain immune from liability.” Id. at 142 quoting Whitney v. Worcester, 373 Mass. 208, 218 (1977).

2023In particular, § 10 (j) provides that government entities are immune from claims "based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation . . . which 7 is not originally caused by the public employer or any other person acting on behalf of the public employer." See Cormier, supra. Paradis claims that immunity under § 10 (j) does not apply where a public employer (the school district) is the original cause of the harm.

2020In other words, § 10 (j) provides immunity from tort liability to public employers "for a public employer's act or failure to act to prevent harm from the wrongful conduct of a third party 18 unless the condition or situation was 'originally caused' by the public employer." Cormier, supra, citing Brum, supra at 692, 695 .

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

2001See also Serrell v. Franklin County, 47 Mass.App.Ct. 400, 403 (1999) (“the [appellate] cases to date construing §10(j) and holding it a bar to tort liability involve fact patterns where a third party, not the governmental actor, directly harmed the plaintiff’).

1999See Coughlin v. Department of Correction, 43 Mass.App.Ct. at 815 -16 In view of the plaintiffs’ allegations and the absence of any record, this Court cannot conclude beyond a doubt that the plaintiffs can prove no set of facts that would place the Parole Board’s conduct outside the discretionary function immunity of §10(b).

1999See also Coughlin v. Department of Correction, 43 Mass.App.Ct. at 815-16 (complaint alleging negligence by Restrictive Integration Review Board in release of sexually dangerous person may not be dismissed because of discretionary function immunity of §10(b) when complaint alleged that the Board failed to carry out previously established policies or plans).

1992Pina v. Commonwealth, 400 Mass. 408, 414-415 (1987).

1989Pina v. Commonwealth, 400 Mass. 408, 413 (1987).

2025Cir. 1981) (acknowledging it is "hornbook law that the use of the word 'including' indicates . . . that [what] follows is illustrative, not exclusive"); Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 488-489 (2002) (determining that § 10 [j] "is not restricted to those claims arising from the violent or tortious behavior of third persons" because "the word 'including' . . . plainly introduces a phrase intended to provide only one example of an immunized claim"). [13] Similarly, in Cormier, we addressed whether § 10 (j) provided immunity to a public school where a student, whose mother had repo

2010Thus, in the light most favorable to the plaintiff, the trial judge erred in denying the city’s motions for directed verdict and JNOV, since a jury could not rationally conclude, without engaging in speculation or conjecture, that there was sufficient evidence of explicit and specific assurance of safety or assistance in order to overcome the protection that the immunity of § 10(/) afforded the city “with respect to any claim for a loss not originally caused by the public employer.” Jacome v. Commonwealth, 56 Mass. App. Ct. at 489 . 15 b.

2025See, e.g., Cormier, 479 Mass. at 41-42 (school district not liable for staff's failure to supervise students or for school district's failure to supervise staff regarding implementation of antibullying policies, because both theories constituted failure to prevent harm from nongovernmental actor); Bonnie W., 419 Mass. at 125 (claim that parole officer negligently supervised parolee was barred by § 10 [j], but claim that officer negligently recommended assailant for employment was not).

2024Section § 10 (j) (3) states that § 10 (j) immunity does not apply to "any claim based on negligent maintenance of public property." It is true that 7 Based on our review of the "Joint Statement of Material Facts" submitted below, these facts are undisputed. 8 The motion judge determined that "[w]ere the Sternbergs' claims based solely on the [c]ity's failure to prevent the sewage backup by failing to undertake some affirmative course of action, they would be barred [by § 10 (j)], as the 'original cause' of the backup was the buildup of heavy rags and debris in the sewer, which the [c]ity was n

2023Compare Moore, 83 Mass. App. Ct. at 733 (rejecting plaintiff's claim that § 10 (j) (3) precluded application of immunity because "maintenance of a playground envisions the general upkeep of the playground's equipment and grounds, not preventing all risks of danger to its visitors"), with Greenwood v. Easton, 444 Mass. 467, 475 (2005) (town's placement of telephone poles in parking lot without properly securing them in safe manner created unreasonable risk of harmful consequences to foreseeable persons like plaintiff).

2023Compare Moore, 83 Mass. App. Ct. at 733 (rejecting plaintiff's claim that § 10 (j) (3) precluded application of immunity because "maintenance of a playground envisions the general upkeep of the playground's equipment and grounds, not preventing all risks of danger to its visitors"), with Greenwood v. Easton, 444 Mass. 467, 475 (2005) (town's placement of telephone poles in parking lot without properly securing them in safe manner created unreasonable risk of harmful consequences to foreseeable persons like plaintiff).

2010“Decisions that require some discretion, but that do not involve social, political, or economic policy considerations are not immunized by § 10(6).” Alake v. Boston, 40 Mass. App. Ct. 610, 614 (1996).

2010See Ariel v. Kingston, 69 Mass. App. Ct. at 293-294 (error for trial judge to conclude that, notwithstanding the availability of immunity under other provisions of § 10, the § 10[/'][2] exception arguably applied and so the case could proceed to the jury).

2008For these reasons, and because § 10 of the Act provides public employers with immunity from suit in specified areas, “a right that is ‘lost as litigation proceeds past motion practice,’ ” Brum v. Dartmouth , 428 Mass, at 688, quoting from Puerto Rico Aqueduct & Sewer Authy. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993), it was error for the judge to pass on the question. c.

2006See Twomey v. Commonwealth, 444 Mass. 58, 64 (2005).

2002Bencic v. City of Malden, 32 Mass.App.Ct. 186, 187-88 (1992). 4 Apart from the discretionaiy function immunity, the Commonwealth is entitled to summary judgment on the negligent placement claim for the independent reason that the plaintiff has presented no evidence that the Commonwealth was in any way negligent in placing this child with Ms. White as her foster caregiver.

1999See Nader v. Citron, 372 Mass. at 98 ; Coughlin v. Department of Correction, 43 Mass.App.Ct. 809, 815-17 (1997) (lack of discovery places court in “unfortunately abstract posture” in considering motion to dismiss).

1999Dobos v. Driscoll, 404 Mass. 634, 651 (1989), Since “reality is preferred over empty theorizing in adjudging claims of immunity under §10,” Allen v. City of Boston, 44 Mass.App.Ct. 679, 682 (1998), the defendant has a difficult burden on a motion to dismiss on § 10(b) grounds, since it must establish beyond a doubt that the plaintiff can prove no set of facts that would place the conduct outside the discretionary function immunity.

1999Dobos v. Driscoll, 404 Mass. 634, 651 (1989), Since “reality is preferred over empty theorizing in adjudging claims of immunity under §10,” Allen v. City of Boston, 44 Mass.App.Ct. 679, 682 (1998), the defendant has a difficult burden on a motion to dismiss on § 10(b) grounds, since it must establish beyond a doubt that the plaintiff can prove no set of facts that would place the conduct outside the discretionary function immunity.

1999See Brum v. Dartmouth, supra. II Interlocutory rulings, such as the Superior Court’s order denying the motion to dismiss in King, generally are not appealable until the ultimate disposition of the case because they are not “final orders.” See Kargman v. Superior Court, 371 Mass. 324, 329-330 (1976).

1999See Brum v. Dartmouth, supra. II Interlocutory rulings, such as the Superior Court’s order denying the motion to dismiss in King, generally are not appealable until the ultimate disposition of the case because they are not “final orders.” See Kargman v. Superior Court, 371 Mass. 324, 329-330 (1976).

1999Dobos v. Driscoll, 404 Mass. 634, 651 (1989), Since “reality is preferred over empty theorizing in adjudging claims of immunity under §10,” Allen v. City of Boston, 44 Mass.App.Ct. 679, 682 (1998), the defendant has a difficult burden on a motion to dismiss on § 10(b) grounds, since it must establish beyond a doubt that the plaintiff can prove no set of facts that would place the conduct outside the discretionary function immunity.

1999Dobos v. Driscoll, 404 Mass. 634, 651 (1989), Since “reality is preferred over empty theorizing in adjudging claims of immunity under §10,” Allen v. City of Boston, 44 Mass.App.Ct. 679, 682 (1998), the defendant has a difficult burden on a motion to dismiss on § 10(b) grounds, since it must establish beyond a doubt that the plaintiff can prove no set of facts that would place the conduct outside the discretionary function immunity.

1998For the point that reality is preferred over empty theorizing in adjudging claims of immunity under § 10, see Horta v. Sullivan, 418 Mass. 615, 620 (1994); Lawrence v. Cambridge, 422 Mass. 406, 412-413 (1996); Coughlin v. Department of Correction, 43 Mass. App. Ct. 809, 817 (1997).