Cyran v. Town of Ware

597 N.E.2d 1352, 413 Mass. 452

• Court: Massachusetts Supreme Judicial Court
• Decided: August 19, 1992
• Status: Published

Opinions

Greaney, J.

By their amended complaint filed in the Superior Court, the plaintiffs sought damages from the defendant, the town of Ware, under the Massachusetts Tort Claims Act, G. L. c. 258, § 2 (1990 ed.), for the alleged gross negligence of the town’s firefighters. The amended complaint states the following. On July 15, 1989, a fire broke out in a two-family wood frame residential building owned by the plaintiffs at 35 South Street in Ware. The Ware fire department was called; its firefighters responded and fought the fire, but they did so “grossly negligently, unskillfully and carelessly . . . [and] failed to attenuate the patent and obvious risk of an immediate and foreseeable physical injury to the property.” As a result, the plaintiffs “suffered great loss and damage to [their] real and personal property.” Ware filed a motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). A judge of the Superior Court allowed the motion.² The plaintiffs appealed from the ensuing judgment, and we transferred the case to this court on our own initiative.

In a memorandum and order filed in connection with his allowance of the motion to dismiss, the judge stated: “I agree with the defendant that [the plaintiffs’ case is] governed by the decision of the Supreme Judicial Court in Appleton v. Hudson, 397 Mass. 812 (1986). The obligation to provide adequate fire protection in a town, like the obligation to provide adequate police protection in a neighborhood, is precisely the type of general duty which the ‘public duty’ rule protects. (Id. at 816).” The Chief Justice, Justices Nolan, Lynch, O’Connor, and the author of this opinion agree with this ruling and affirm the judgment.

To have a claim, “the plaintiff[s] must show that the [town’s fire department] owed [them] a special duty of care beyond the duty owed to the public at large. Nickerson v. Commonwealth, [397 Mass.] 476, 478 (1986). Ribeiro v. Granby, 395 Mass. 608, 613 (1985). Dinsky v. Framingham, 386 Mass. 801, 810 (1982).” Appleton v. Hudson, supra at 815. The alleged presence of negligence is not enough. In this area, “[n]egligence in a vacuum, as it were, is not actionable because it implicates no [special] duty to . . . person [s] such as the plaintiff[s].” Nickerson v. Commonwealth, supra at 478. In the absence of such a duty, a governmental entity is protected by the public duty rule. That rule is based on the principle “that the employment duties of public employees are generally owed only to the public as a whole and not to private individuals,” Onofrio v. Department of Mental Health, 408 Mass. 605, 609 (1990), S.C., 411 Mass. 657 (1992), and, consequently, the discharge of such duties will not give rise to a private cause of action. We have applied the public duty rule to bar governmental liability unless the statutes or contracts governing the public employee’s duties justifiably allow the conclusion that a special duty was owed. See, e.g., Appleton v. Hudson, supra Nickerson v. Commonwealth, supra, Ribeiro v. Granby, supra, Dinsky v. Framingham, supra. In two cases, Irwin v. Ware, 392 Mass. 745 (1984), and A.L. v. Commonwealth, 402 Mass. 234 (1988), about which more will be said later, there existed circumstances giving rise to a special relationship which created a special duty on the part of the public employees to enforce the law and prevent the harmful activity of third persons. Whether a special duty exists presents a question of law, Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153, 156 (1983), which necessitates examination of the facts in light of existing social values and customs and appropriate public policy. Schofield v. Merrill, 386 Mass. 244, 246-247 (1982).

This case falls within the public duty rule. “As a general rule no liability attaches for failure to use due care in carrying out general governmental functions such as police or fire protection . . . because the duty of due care is owed to the general public and not to any specific individual . . . .” Dinsky v. Framingham, supra at 807, quoting Tuffley v. Syracuse, 82 A.D.2d 110, 114 (N.Y. 1981). The fire at the plaintiffs’ building was brought about by conditions in which no employee of the Ware fire department played a role. The Ware firefighters only responded to a situation which had not been created by them. No statute has been cited which could be logically construed to impose on the Ware fire department a duty to protect the plaintiffs’ building in a different way from the buildings of others. No assurances are alleged to have been given to the plaintiffs that would support a reasonable belief that they would receive flawless firefighting or greater fire protection than that afforded to Ware’s inhabitants as a whole. Society would not favor, and public policy does not support, a rule which would expose a municipality to liability for damages every time its fire department does not, in a plaintiff’s view, fight a fire satisfactorily. In busy urban areas such exposure could be limitless, and in extreme circumstances (as recent events in Los Angeles illustrate), the potential cost of such governmental liability could be catastrophic.

The duty of Ware’s firefighters was, in substance, a general duty of fire protection owed equally to all the town’s residents. That duty encompassed only an obligation on the part of the firefighters to respond to the fire at the plaintiffs’ building and to deal with it as resources and training permitted and advised. Thus, if the negligence of the firefighters contributed at all to the plaintiffs’ damages, it did so only indirectly, by reason of the firefighters’ failure adequately to perform under their contracts of employment. In the circumstances, G. L. c. 258 does not provide a basis for liability on the part of Ware.³ See Appleton v. Hudson, supra at 816. See also Steitz v. Beacon, 295 N.Y. 51, 54-55 (1945) (municipality not liable under language of New York Court of Claims Act, similar to G. L. c. 258, § 2, to protect property from destruction by a fire which was started by another); LaDuca v. Amherst, 53 A.D.2d 1011, 1011 (N.Y. 1976) (“General allegations of negligent conduct at the scene of [a] fire are insufficient to sustain a cause of action . . . against a municipality”). Cf. Reynolds Boat Co. v. Haverhill, 357 Mass. 668 (1970) ⁴

What has been said disposes of the appeal. Justices Nolan, Lynch and O’Connor wish to go further and maintain that the case presents an appropriate occasion in which to overrule Irwin v. Ware, supra, and A.L. v. Commonwealth, supra, decisions with which they have been dissatisfied. The Chief Justice, Justices Wilkins and Abrams, and the author of this opinion do not agree.

General Laws c. 258, § 2, provides, in pertinent part, that a public employer can be liable for damages “caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances.” We have found liability under this standard when the conduct of the public employee is the same as, or similar to, conduct which, in the case of a private tortfeasor, would violate a common law or statutory duty of care. See, e.g., Mamulski v. Easthampton, 410 Mass. 28 (1991) (wrongful death; town’s responsibility similar to the duty owed at common law by landowner and to municipal liability for death due to defect in highway); Onofrio v. Department of Mental Health, 408 Mass. 605, 610 (1990) (liability based on the defendant’s direct act of placing a dangerous person in the plaintiffs home, and thus “grounded in the general rule that one who takes action ordinarily owes to everyone else who may be affected thereby a duty to act reasonably”). See also Doherty v. Belmont, 396 Mass. 271, 273 (1985); Sanker v. Orleans, 27 Mass. App. Ct. 410, 413-414 (1989). As previously discussed, we have otherwise not found liability in the absence of a basis to conclude that an individual plaintiff was owed a special duty of care not owed the public at large.

A plaintiff can show the existence of a special duty by relying on a public employee’s violation of a statute which expresses a legislative intent to permit suit by a private individual in that plaintiff’s circumstances, see Dinsky v. Framingham, supra at 809, or by showing that the plaintiff has reasonably relied to his or her harm on assurances of care given by a public employee. See, e.g., DeLong v. County of Erie, 89 A.D.2d 376 (N.Y. 1982), affd, 60 N.Y.2d 296 (1983). These bases for suit, however, are not necessarily exclusive.

In Irwin v. Ware, supra, we concluded that the defendant’s police officers had acted in violation of their responsibilities by failing to remove an intoxicated driver from a public highway. Important to the decision were several statutes that established a police officer’s obligations in the circumstances. These statutes could fairly be construed as evincing a legislative intent to protect private individuals like the plaintiffs in Irwin from the harm posed by the intoxicated driver.⁵ Id. at 762. We explained the basis for the Irwin decision in Appleton v. Hudson, supra at 816, as follows:

“As we stated [in Irwin supra at 756, 762], and reiterated in both Ribeiro [v. Granby, 395 Mass. 608 (1985)], and Nickerson [v. Commonwealth, 397 Mass. 476 (1986)], our conclusion that a special duty existed was based on the ‘legislative intent [expressed in the statutes] to protect both intoxicated persons and other users of the highway,’ . . . and on ‘the risk created by the negligence of a municipal employee ... of immediate and foreseeable physical injury to persons who cannot reasonably protect themselves from it.”

In A.L. v. Commonwealth, supra, we determined that the express and specific terms of a probation agreement imposed by a judge which prohibited a probationer (a convicted child molester) from working with children created a special relationship between children molested by the probationer and the probation officer who had failed to enforce the agreement. The terms of the agreement created a duty to the plaintiffs beyond that owed to the public as a whole.⁶ Id. at 241. In addition to the elements of foreseeability and the existence of a discrete, limited, and identified class of victims, the Irwin and A.L. decisions turned on the existence of statutes and a precise agreement which created a fair basis for finding a special duty because in each case the public employees had control over specific dangerous persons who posed a discernible threat to certain potential victims. Although the concurrence by Justice O’Connor, with whom Justices Nolan and Lynch join, attempts to draw comparisons between this case and the Irwin and the A.L. decisions, it does not adequately recognize that there is nothing here comparable to the statutes and the special agreement which were at the core of those decisions and which were critical, on the facts of those cases, to their outcome.

Once these points are understood, it becomes clear that Irwin and A.L. have their place in a plan of evolving law. The approach taken thus far to the application of G. L. c. 258 has been designed to further the perceived legislative purpose of the statute — on the one hand, avoiding unlimited exposure to liability on the part of public entities which could make them virtual insurers for all wrongs in which their employees may be involved and, on the other hand, holding public entities responsible for damages either when the wrongful conduct of their employees directly causes harm or when a special relationship exists which would require a public employee to protect an identified plaintiff from the foreseeable harmful acts of a third person. That difficult cases may arise under G. L. c. 258 from time to time should not cause a retreat to an overly restrictive public duty rule which may undermine the statute by restoring for all practical purposes, and contrary to the Legislature’s intent, a form of broad-based sovereign immunity. The evolution of the law of negligence has always required courts to make hard (and often fine) distinctions, and to assess and determine, in considering the existence of a duty, contemporary attitudes and public policy. General Laws c. 258 does not admit of application with algebraic precision, and it should not be applied with an inflexibility that was not intended. Irwin and A.L. constitute precedents that are consistent with present social conditions and public policy.

Judgment affirmed.

2 No issue was raised as to the plaintiffs’ compliance with the presentment requirement imposed by G. L. c. 258, § 4 (1990 ed.). The plaintiffs have included the presentment letter in the appendix. The letter was not part of the complaint and not before the judge, so we consider the case, as did the judge, solely on the allegations stated on the face of the complaint.

3 The allegation in the plaintiffs’ complaint that the firefighters committed gross negligence does not change this conclusion. There is no reference in G. L. c. 258, § 2, to gross negligence as a basis for liability. A public duty rule which excludes liability for ordinary negligence also must logically exclude it for gross negligence. Were the rule otherwise, every complaint involving negligence in fire protection would allege gross negligence, to avoid dismissal, a situation which would, in effect, swallow the rule and encourage unpredictable results based on reactions by fact finders to which side of “the fuzzy line separating gross from simple negligence” given conduct might fall. See Note, Police Liability for Negligent Failure to Prevent Crime, 94 Harv. L. Rev. 821, 837 (1981).

This case differs from Harry Stoller & Co. v. Lowell, 412 Mass. 139 (1992), where we reinstated a judgment under G. L. c. 258 on a jury verdict finding a municipality liable for negligence in firefighting. As noted, id. at 140, “[t]he city does not argue that it owed no duty to the plaintiff or that the evidence did not warrant a finding that the city negligently violated that duty.” The Stoller opinion was decided on the question whether the conduct of Lowell’s firefighters invoked the discretionary function exception provided for by G. L. c. 258, § 10 (b) (1990 ed.). This case turns on the question conceded by Lowell in Stoller.

4 Justices Wilkins and Abrams would conclude that a duty exists for the reasons expressed in their dissent. Post at 469. We disagree with their approach, which attempts to draw an analogy with a private company engaged to fight fires.

Our public duty rule simply recognizes that many functions performed by government are not typically performed by private parties. For those functions, there either are no analogues in private sector law or, at best, only imperfect analogues. For this reason, hypothesizing a private function to determine whether a public function creates liability provides a test which is convenient but basically unsound because the test is built on the specious premise of a private function which does not realistically exist. In such cases, no duty to an individual plaintiff properly can be found under § 2 of G. L. c. 258 because to find such a duty could impose on the government potentially all-encompassing liability to which no other entity is fairly held subject. The essence of the public duty rule is that a plaintiff harmed by government action is required to show that he or she had a demonstrable right to expect protection different from, and more extensive than, the protection owed to the public at large. “[F] airness to the injured individual cannot be the sole controlling factor in this context. Desirable as it might be to structure a system of cost-benefit distribution in which no tortious injuries would go uncompensated, the fact that we are here dealing with governmental entities vastly complicates the issue of the appropriate scope of tort liability ... An appropriate balance should be struck between the public interest in fairness to injured persons and in promoting effective government.” Whitney v. Worcester, 373 Mass. 208, 215-216 (1977). Requiring a plaintiff to show the existence of a special duty strikes the needed balance consistent with what society expects.

Justices Wilkins and Abrams maintain that we have incorrectly applied the principles in Irwin v. Ware, 392 Mass. 745 (1984), and A.L. v. Commonwealth, 402 Mass. 234 (1988), although they join in concluding that those decisions shall not be overruled.

5 See G. L. c. 41, § 98 (1990 ed.); G. L. c. 90, § 21 (1990 ed.); G. L. c. 90, § 24 (1) (a) (1) (1990 ed.); G. L. c. 90, § 24 (1) (/) (1990 ed.); G. L. c. 90C, § 2 (1990 ed.); G. L. c. 111B, § 8 (1990 ed.).

6 Justice O’Connor maintains that the Irwin and A.L. decisions did not rest on the grounds discussed above. Post at 463-465. The passage from Appleton v. Hudson, supra, speaks for itself as to Irwin. As to A.L., attention is directed to where the court says: “We think that the conditions of probation imposed by the sentencing judge created a special relationship between these plaintiffs and the probation officer and created a duty beyond that owed to the public as a whole.” Id. at 241.