discretionary function exception in Massachusetts

2023See Harry Stoller & Co. v. Lowell, 412 Mass. 139, 143 (1992) ("Even decisions made at the operational level, as opposed to those made at the policy or planning level, would involve conduct immunized by the discretionary function exception if the conduct were the result of policy determinations").

2010“The 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. v. Lowell, 412 Mass. 139, 141 (1992).

2005Although Whitney v. Worcester, 373 Mass. 208 (1977), preceded the enactment of the Massachusetts Tort Claims Act in 1978, St. 1978, c. 512, § 15, it enunciated guiding principles for determining the scope of the discretionary function exception subsequently set forth in G.

2004See Whitney v. Worcester, 373 Mass. 208, 217-220 (1977); Patrazza v. Commonwealth, 398 Mass. 464, 467-470 (1986). 4 Courts perform a two-step analysis when determining whether the discretionary function rule applies to a given case.

2000That is not to say that only the highest officials’ acts sustain tort immunity; the discretionary function exception has been held to apply to acts of the “the dean, the school nurse, and a gym teacher,” Cady v. Plymouth-Carver Regional School District, 17 Mass.App.Ct. 211, 212 (1983), and playground “program supervisors.” Wightman v. Town of Methuen, 26 Mass.App.Ct. 279, 280 (1988).

1996“Management of student imbroglios, student discipline, and school decorum fall readily within the discretionary function exception to the Tort Claims Act.” Wightman v. Methuen, 26 Mass.App.Ct. 279, 280 (1988) (negligence claim based upon second grade student having been injured on grounds of elementary school by older student as students awaited the start of the school day foreclosed by § 10(b) where injury-producing conduct was failure to supervise the activities of the students), quoting Cady v. Plymouth-Carver Regional School Dist., 17 Mass.App.Ct. 211, 217 (1983).

2025In past cases, the discretionary function exception twice has been held not to apply to theories of negligent maintenance of a public parking lot, see Greenwood v. Easton, 444 Mass. 467, 472-473 (2005); Doherty v. Belmont, 396 Mass. 271, 276 (1985), as well as to a theory of negligent medical treatment in a hospital emergency room, see Kelley v. Rossi, 395 Mass. 659 , 664-665 & n.6 (1985).

2015See Greenwood v. Easton, 444 Mass. 467, 470 (2005) (“Deciding whether particular discretionary acts involve policy making or planning depends on the specific facts of each case”); Alter, 35 Mass. App. Ct. at 148 (“the application of the discretionary function exception is a question of law for the court”).

2004See Whitney v. Worcester, 373 Mass. 208, 217-220 (1977); Patrazza v. Commonwealth, 398 Mass. 464, 467-470 (1986). 4 Courts perform a two-step analysis when determining whether the discretionary function rule applies to a given case.

2004The decision to adopt and implement a policy is protected under the discretionary function rule, see Patrazza v. Commonwealth, 398 Mass. 464, 469-470 (1986), but “[t]he question whether a governmental actor’s conduct involves discretion of the planning or policy-making type must be narrowly focused on the allegedly negligent conduct, not on whether the actor’s conduct is part of some broader governmental policy.” Horta v. Sullivan, 418 Mass. 615, 621 (1994).

2000That is not to say that only the highest officials’ acts sustain tort immunity; the discretionary function exception has been held to apply to acts of the “the dean, the school nurse, and a gym teacher,” Cady v. Plymouth-Carver Regional School District, 17 Mass.App.Ct. 211, 212 (1983), and playground “program supervisors.” Wightman v. Town of Methuen, 26 Mass.App.Ct. 279, 280 (1988).

1996“Management of student imbroglios, student discipline, and school decorum fall readily within the discretionary function exception to the Tort Claims Act.” Wightman v. Methuen, supra at 280, quoting Cady v. Plymouth-Carver Regional School Dist., supra at 217.

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).

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),

1994It is well settled that “[m]anagement of student imbroglios, student discipline, and school decorum fall readily within the discretionary function exception to the Tort Claims Act.” Cady v. Plymouth-Carver Regional School District, 17 Mass.App.Ct. 211, 217 (1983); see Wightman v. Methuen, 26 Mass.App.Ct. 279, 280 (1988) (claim of negligent supervision by school officials foreclosed by Cady)-, accord Bencic v. City of Malden, 32 Mass.App.Ct. 186, 188 (1992) (claim of negligent supervision controlled by Wightman and Cady).

1994See Cady v. Plymouth-Carver Regional School District, 17 Mass.App.Ct. 211, 217 (1983) (“management of student imbroglios, student discipline and school decorum fall readily within the discretionary function exception to the Tort Claims Act”); Wightman v. Methuen, 26 Mass.App.Ct. 279, 280 (1988) (“the very basis for judicial abstention from interference with the rules, decisions, and acts by which school authorities maintain decorum is that those are matters within their broad discretion”); Bencic v. Malden, 32 Mass.App.Ct. 186, 188 (1992) (supervision of students was a discretionary function).

2015See Greenwood v. Easton, 444 Mass. 467, 470 (2005) (“Deciding whether particular discretionary acts involve policy making or planning depends on the specific facts of each case”); Alter, 35 Mass. App. Ct. at 148 (“the application of the discretionary function exception is a question of law for the court”).

2000“The application of the discretionary function exception is a question of law for the court.” Alter v. Newton, 35 Mass.App.Ct. 142, 148 (1993) (citations omitted).

1994The Town, as a “public employer” within the meaning of G.L.c. 258, §1, “has the benefit of the protection from liability provided by the discretionary function exception of G.L.c. 258, §10(b), if the [Town’s] conduct in this case qualifies as a discretionary function.” Wheeler v. Boston Housing Authority, 34 Mass.App.Ct. 36, 38 , rev. denied, 414 Mass. 1104 (1993).

1993“The defendant is a ‘public employer’ within the meaning of G.L.c. 258, §1, as appearing in St. 1983, c. 538, and has the benefit of the protection from liability provided by the discretionary function exception of G.L.c. 258, § 10(b), if the defendant’s conduct in this case qualifies as a discretionary function.” Wheeler, supra at 38 (citations omitted).

2025In past cases, the discretionary function exception twice has been held not to apply to theories of negligent maintenance of a public parking lot, see Greenwood v. Easton, 444 Mass. 467, 472-473 (2005); Doherty v. Belmont, 396 Mass. 271, 276 (1985), as well as to a theory of negligent medical treatment in a hospital emergency room, see Kelley v. Rossi, 395 Mass. 659 , 664-665 & n.6 (1985).

1993The only two cases cited by the plaintiffs in support of their assertion that their recovery is not barred by the discretionary function exception, Doherty v. Belmont, 396 Mass. 271 (1985), and Tryon v. Lowell, 29 Mass.App.Ct. 720 (1991), are distinguishable.

2002“The first step ... is to determine whether the governmental actor had any discretion at all as to what course of conduct to follow.” Sena v. Commonwealth, 417 Mass. 250, 255-56 (1994).

1999The Town is immune from Counts One, Two, and Four through Ten under the discretionary function immunity as that immunity has been interpreted and applied in Sena v. Commonwealth, 417 Mass. 250, 254-59 (1994).

1992See id. at 813 (it is impossible “to define with precision every contour of the discretionary function exception”).

1987In Whitney v. Worcester, supra at 217 , we noted the similar, but not identical, exception for discretionary functions set forth in 28 U.S.C. § 2680 (a) for “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” The United States Supreme Court recently discussed the discretionary function exception in United States v. Varig Airlines, 467 U.S. 797, 811-812 (1984).

2008See Alake v. Boston, 40 Mass. App. Ct. 610, 612 (1996) (where the plaintiff was unable to show that a city had a prescribed policy or regulation, the discretionary function exception applied).

2000Alake v. Boston, 40 Mass.App.Ct. 610, 612-13 , rev. den., 423 Mass. 1105 (1996).

2010If the defendant had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, then the discretionary function rule does not apply.” Id.

2010Even if this hurdle is overcome, the discretionary function rule will not apply unless “the conduct that caused the injury has a high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, as opposed to conduct that consists of the carrying out of established policies or plans.” Id. at 277 .

1997The complaint further alleges that the RIRB was improperly constituted and did not include input from the DOC as required. 10 Reading the complaint in the light most favorable to the plaintiff, it can fairly be said that it alleges the “negligent carrying out of previously established policies or plans,” Onofrio v. Department of Mental Health, 408 Mass. 605, 611 (1990), thus precluding finding the discretionary function exception as matter of law. 11 Further, the complaint implies a theory of negligence based., on the failure of DMH to use reasonable care by placing Kelley at a job site next d

1997Given that the Commonwealth is alleged to have known about Kelley’s dangerous activities while on a work release program, a question is raised as to whether DMH’s placement of Kelley exposed Colleen to risk and thus, whether the DMH was “bound, as any other person would be, to act reasonably.” Id. at 610 .

1996See Hart v. United States, 894 F.2d 1539, 1544 (11th Cir.), cert, denied, 498 U.S. 980 (1990); Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987). 4 The United States Supreme Court has provided a two-step test for applying the discretionary function exception.

1996See Hart v. United States, 894 F.2d 1539, 1544 (11th Cir.), cert, denied, 498 U.S. 980 (1990); Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987). 4 The United States Supreme Court has provided a two-step test for applying the discretionary function exception.

1996Berkovitz v. United States, 486 U.S. 531, 536 (1988). 5 The court must first determine whether the governmental actor had discretion to decide which course to follow and, if so, whether the exercise of that discretion involves policy making or planning.

1992See Berkovitz v. United States, 486 U.S. 531, 536 (1988).

1992See A.L. v. Commonwealth, 402 Mass. 234, 245 (1988), and cases cited.

1989See, e.g., A.L. v. Commonwealth, 402 Mass. 234, 245 (1988); Pina v. Commonwealth, 400 Mass. 408, 412-413 (1987); Patrazza v. Commonwealth, 398 Mass. 464, 468 (1986); Kelley v. Rossi, 395 Mass. 659 , 665 n. 6 (1985).

2010If, as Nordberg avers, all waiver requests were automatically granted electronically, we fail to see how such actions “involved the kind of policy judgment that the discretionary function exception was designed to shield.” Id. at 332 .

1996Because operational decisions are included within the discretionary function exception, id. at 334 , even the initial act of permitting Sgt.

2005See, e.g., Harry Stoller & Co. v. Lowell, 412 Mass. 139, 145-146 (1992) (no immunity where fire fighters chose not to use buildings’ sprinkler systems to fight fire and negligently failed to conform to generally accepted firefighting practices); Dobos v. Driscoll, 404 Mass. 634, 652-653 , cert. denied sub nom.

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.

1996See Hart v. United States, 894 F.2d 1539, 1544 (11th Cir.), cert, denied, 498 U.S. 980 (1990); Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987). 4 The United States Supreme Court has provided a two-step test for applying the discretionary function exception.

1996See Hart v. United States, 894 F.2d 1539, 1544 (11th Cir.), cert, denied, 498 U.S. 980 (1990); Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987). 4 The United States Supreme Court has provided a two-step test for applying the discretionary function exception.

1987The Court reaffirmed the analysis of the leading case of Dalehite v. United States, 346 U.S. 15, 35-36 (1953): “It is unnecessary to define, apart from this case, precisely where discretion ends.

1986The United States Supreme Court recently addressed the discretionary function exception of 28 U.S.C. § 2680 (a) (1982), and reaffirmed the leading case of Dalehite v. United States, 346 U.S. 15 (1953), in United States v. Varig Airlines, 467 U.S. 797, 811-812 (1984).

2015Contrast Marcus v. Newton, 462 Mass. 148, 156-157 (2012) (recreational use statute did not apply where softball league paid fee to town to reserve field, and where there was no evidence in summary judgment record that fee was used to reimburse town for marginal costs directly attributable to league’s use of field). 11 The letter noted that there were “perhaps more” reasons why the bullpen was dangerous. 12 The discretionary function exception, G.

2008See LaLonde v. Eissner, 405 Mass. 207, 209-210 (1989) (in order to defeat summary judgment, the non-moving party must allege specific facts establishing a genuine, triable issue).

2005Compare Audette v. Commonwealth, 63 Mass.App.Ct. 727 (2005) (court concludes that the Commonwealth could not be liable under section 10(b) for the harm caused when a state police trooper allegedly failed to properly train or remove from service his police canine which attacked and bit a suspect during a drug-related inspection of a stopped motor vehicle).

2004The decision to adopt and implement a policy is protected under the discretionary function rule, see Patrazza v. Commonwealth, 398 Mass. 464, 469-470 (1986), but “[t]he question whether a governmental actor’s conduct involves discretion of the planning or policy-making type must be narrowly focused on the allegedly negligent conduct, not on whether the actor’s conduct is part of some broader governmental policy.” Horta v. Sullivan, 418 Mass. 615, 621 (1994).