Erin N. Diorio v. John G. Lalacheur.

• Court: Massachusetts Appeals Court
• Decided: April 29, 2024
• Docket: 23-P-0665
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-665

ERIN N. DIORIO

vs.

JOHN G. LALACHEUR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Chief of the Beverly Police Department, John G.

LaLacheur (chief), appeals from a Superior Court judge's order

denying his motion for summary judgment.1 Concluding that there

is no genuine issue of material fact that the chief is entitled

to common law immunity as a matter of law, we reverse.

1. Standard of review. "Summary judgment is appropriate

where there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law."

Lawless v. Estrella, 99 Mass. App. Ct. 16, 18 (2020). "The

moving part[y] may satisfy [his] burden of demonstrating the

1We agree with both parties that the denial of summary judgment on a claim of common law immunity is immediately appealable. See Duarte v. Healy, 405 Mass. 43, 44 n.2 (1989). Cf. Doe v. Roman Catholic Bishop of Springfield, 490 Mass. 373, 385 (2022) (same for charities claiming common law immunity). absence of a triable issue either by submitting evidence that

negates an essential element of the opposing party's case or by

demonstrating that the opposing party has no reasonable

expectation of proving an essential element of [her] case at

trial." Petrell v. Shaw, 453 Mass. 377, 381 (2009). "Once the

moving party has met this burden, the opposing party is

'required to respond by "set[ting] forth specific facts showing

that there is a genuine issue for trial."'" Hill-Junious v. UTP

Realty, LLC, 492 Mass. 667, 672 (2023), quoting Kourouvacilis v.

General Motors Corp., 410 Mass. 706, 716 (1991). "In deciding a

motion for summary judgment the court may consider the

pleadings, depositions, answers to interrogatories, admissions

on file, and affidavits." Bank of N.Y. Mellon v. Morin, 96

Mass. App. Ct. 503, 506 (2019), quoting Niles v. Huntington

Controls, Inc., 92 Mass. App. Ct. 15, 18 (2017). "Our review of

a motion judge's decision on summary judgment is de novo,

because we examine the same record and decide the same questions

of law." Brandt v. Davis, 98 Mass. App. Ct. 734, 737 (2020),

quoting Boston Globe Media Partners, LLC v. Department of

Criminal Justice Info. Servs., 484 Mass. 279, 286 (2020).

2. Common law immunity. "At common law, . . . a public

official, exercising judgment and discretion, is not liable for

negligence or other error in the making of an official decision

if the official acted in good faith, without malice, and without

2 corruption." Nelson v. Salem State College, 446 Mass. 525, 537

(2006). Here, the chief is entitled to summary judgment based

on common law immunity because he put forward unrebutted

evidence that he was exercising discretion in making an official

decision and that he acted in good faith, without malice, and

without corruption.

The chief had discretion to tweet2 a most wanted poster from

his personal Twitter social media page. As set forth in the

City of Beverly Website and Social Media Use Policy (as revised

March 2018), "[e]mployees are prohibited from using personal

[social media] accounts to post or comment in a way that

suggests that they are speaking on behalf of the City, unless

they are expressly authorized to do so by their Department

Head." The chief is the "head of the Police Department" and has

"charge of public relations and information for the Department."

Ordinances, § 58-33(A) & (F)(10) (2018), of the city of Beverly.

The chief put forward prima facia evidence that he acted in

good faith, without malice, and without corruption. While

responding to a drive-by shooting, the chief tweeted information

about the suspect to "notif[y] . . . the public in the area of a

large-scale ongoing public safety matter." He intended to

2 At the relevant times posts on the social media platform formerly called Twitter were called tweets. See Campbell v. Reisch, 986 F.3d 822, 823 (8th Cir. 2021).

3 attach a most wanted picture of the suspect, but instead he

attached an internal officer safety memorandum.3 The memorandum

alerted officers that the suspect had threatened to kill the

plaintiff and her unborn child, and it listed the address of the

plaintiff's child's daycare and what time the plaintiff intended

to pick the child up. Ten to fifteen minutes later, someone

called the chief and told him that there was "personal

information" in the tweet that "shouldn't have gone out." The

chief "immediately deleted it." Officers met the plaintiff when

she arrived to pick up her child and took the plaintiff and her

child to a hotel, where they stayed until the suspect was

arrested.

The plaintiff did not put forward any specific facts

showing that there is a genuine issue for trial whether the

chief acted in good faith, without malice, and without

corruption. There is no evidence that the chief had any sort of

personal relationship with the plaintiff or the suspect, any

other personal interests, or any motive other than law

enforcement. Instead, the plaintiff resorts to speculation

"that [the chief] was using the Plaintiff’s information as to

the whereabouts of her son and herself as bait to draw out [the

3 The record does not show that the chief had any history of mistakenly posting confidential information. This case might well be different if the chief had such a history and had not taken steps to correct his posting habits.

4 suspect]." This mere assertion is insufficient; the party

opposing summary judgment "cannot rest on his or her pleadings

and mere assertions of disputed facts to defeat the motion for

summary judgment." Green v. Zoning Bd. of Appeals of

Southborough, 96 Mass. App. Ct. 126, 133 (2019), quoting LaLonde

v. Eissner, 405 Mass. 207, 209 (1989). Moreover, this is not a

natural inference from the facts. The chief immediately deleted

the post upon learning of its contents and sent officers to meet

the plaintiff when she picked her child up, actions wholly

inconsistent with the plaintiff's speculative theory.

3. Conclusion. The order denying the defendant's motion

for summary judgment is reversed. Summary judgment shall enter

for the defendant.

So ordered.

By the Court (Green, C.J., Henry & Ditkoff, JJ.4),

Assistant Clerk

Entered: April 29, 2024.

4 The panelists are listed in order of seniority.