Greenwood v. Town of Easton

444 Mass. 467
CourtMassachusetts Supreme Judicial Court
DecidedJune 10, 2005
StatusPublished
Cited by23 cases

This text of 444 Mass. 467 (Greenwood v. Town of Easton) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenwood v. Town of Easton, 444 Mass. 467 (Mass. 2005).

Opinion

Spina, J.

On the afternoon of May 7, 1999, Denise Greenwood (Greenwood) was standing in a grassy area that was adjacent to the parking lot of Oliver Ames High School (high school) and owned by the town of Easton (town). She was seriously injured [468]*468when a vehicle leaving the parking lot struck a horizontal telephone pole that was being used as a parking barrier, and the force of the collision caused the pole to move forward several feet, knocking Greenwood to the ground and rolling over her leg and upper body. Telephone poles had been placed on, but not secured into, the ground to separate the parking lot from the surrounding high school property.

The plaintiff, Jane Greenwood, brought a negligence action against the town and Gregory Woodward, the driver of the vehicle, for the personal injuries sustained by her daughter.2 In her complaint, the plaintiff alleged that the town had acted negligently by placing barriers on the ground and failing to secure them to prevent them from moving; by failing to maintain the parking area and the property around the high school in a safe manner; and by failing to warn of a defect on the property. The town filed a motion for summary judgment, pursuant to Mass. R. Civ. R 56, 365 Mass. 824 (1974), asserting that it was immune from liability pursuant to various provisions of the Massachusetts Tort Claims Act (Act), G. L. c. 258, § 10. A judge in the Superior Court denied the town’s motion, concluding that the town was not entitled to immunity under the Act, and that a jury could find that the use of unsecured telephone poles as barriers in the parking lot created an unreasonable and foreseeable risk of injury to persons in Greenwood’s position. The Appeals Court reversed in an unpublished memorandum and order issued pursuant to its rule 1:28. See Greenwood v. Easton, 62 Mass. App. Ct. 1101 (2004). We granted the plaintiff’s application for further appellate review to decide whether the town was entitled to immunity from liability under G. L. c. 258, § 10 (a), (b), and (j).3 For the reasons that follow, [469]*469we affirm the order of the Superior Court judge denying the town’s motion for summary judgment.

1. G.L. c. 258, § 10 (b). General Laws c. 258, § 2, provides: “Public employers shall be liable for injury or loss of property or personal injury or death 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, except that public employers shall not be liable... for any amount in excess of one hundred thousand dollars.” The Act 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 a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused.” G. L. c. 258, § 10 (b).4 Here, the town contends that it is immune from the plaintiff’s negligence claim under this discretionary function exception to governmental tort liability because its decision to use telephone poles as parking barriers involved policy making and planning, discretionary actions plainly within the purview of § 10 (b). Accordingly, the town argues that it was entitled to summary judgment. We disagree.

The first step in deciding whether the discretionary function exception forecloses a plaintiff’s claim “is to determine whether the governmental actor had any discretion . . . to do or not to do what the plaintiff claims caused [the] harm.” Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). “[I]f the governmental actor had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, [the] discretionary function exception to governmental liability has no role to play in deciding the case.” Id. Here, the plaintiff essentially has not challenged the town’s assertion that its use of telephone poles as parking barriers was not prescribed by a statute, regulation, or established agency practice.

[470]*470The second, and typically more difficult, step in deciding whether the discretionary function exception forecloses a plaintiff’s claim “is to determine whether the discretion that the actor had is that kind of discretion for which § 10 (b) provides immunity from liability. Almost all conduct involves some discretion, if only concerning minor details. If allegedly tortious conduct were to be immunized from causing liability simply because there was some element of discretion in that conduct, the discretionary function exception would go a long way toward restoring the governmental immunity that G. L. c. 258 was designed to eliminate.” Id. The discretionary function exception is narrow, “providing immunity only for discretionary conduct that involves policy making or planning.” Id. Deciding whether particular discretionary acts involve policy making or planning depends on the specific facts of each case. See Horta v. Sullivan, 418 Mass. 615, 620 (1994). “The 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.” Id. at 621. “Indeed, we can presume that all governmental employees, in their official duties, act in furtherance of some governmental policy.” Id. at 621 n.12.

The line of demarcation is between those functions that “rest on the exercise of judgment and discretion and represent planning and policymaking [for which there would be governmental immunity] and those functions which involve the implementation and execution of such governmental policy or planning [for which there would be no governmental immunity].” Harry Stoller & Co. v. Lowell, supra at 142, quoting Whitney v. Worcester, 373 Mass. 208, 217 (1977).5 “If the injury-producing conduct was an integral part of governmental policy making or planning, if the imposition of liability might jeopardize the quality of the governmental process, or if [471]*471the case could not be decided without usurping the power and responsibility of either the legislative or executive branch of government, governmental immunity would probably attach.” Horta v. Sullivan, supra at 620, citing Whitney v. Worcester, supra at 219. However, where the purportedly tortious conduct of the governmental actor relates to “the carrying out of previously established policies or plans, such acts should be governed by the established standards of tort liability applicable to private individuals or entities and the governmental entity in question held liable for the injuries resulting from such acts.”6 Whitney v. Worcester, supra at 218-219.

[472]*472The motion judge properly determined that the town was not entitled to immunity under G. L. c. 258, § 10 (b). The thrust of the plaintiff’s complaint was that the town negligently had maintained the parking lot by failing adequately to secure the telephone poles, thereby creating an unsafe condition on its public property.

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Bluebook (online)
444 Mass. 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenwood-v-town-of-easton-mass-2005.