Maciorowski v. Schwarzenbach

2010 Mass. App. Div. 257, 2010 Mass. App. Div. LEXIS 87
CourtMassachusetts District Court, Appellate Division
DecidedDecember 3, 2010
StatusPublished

This text of 2010 Mass. App. Div. 257 (Maciorowski v. Schwarzenbach) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maciorowski v. Schwarzenbach, 2010 Mass. App. Div. 257, 2010 Mass. App. Div. LEXIS 87 (Mass. Ct. App. 2010).

Opinion

LoConto, PJ.

The plaintiff, Ricky W. Maciorowski (“Maciorowski”), has appealed the trial court’s summary judgment ruling in favor of the defendant, Carl Schwarzenbach (“Schwarzenbach”), claiming that Schwarzenbach failed to prove that he was an employee of the city of Westfield, the Westfield Police Department, or any other department of the city or the Commonwealth, and, as such, that Schwarzenbach does not qualify for immunity from suit under the Massachusetts Tort Claims Act, codified at G.L.c. 258, §2. Maciorowski further contends that the trial court erred in denying his motion to amend his complaint to add a cause of action for intentional tort after it issued its summary judgment ruling. We affirm the allowance of Schwarzenbach’s motion for summary judgment, and reverse the denial of Maciorowski’s motion to amend the complaint.

Maciorowski is a police officer with the Westfield Police Department. On February 19, 2004, the Westfield Police Department conducted a training drill entitled “Active School Shooter Training a/k/a Code White.” Schwarzenbach was a seventeen year old Westfield Police Explorer Post 711 member (“Police Explorer”) who participated as an “armed suspect” in the “Code White” police drill. The Police Explorer Program consisted of young individuals who were interested in police work, who were instructed in police work, and who occasionally assisted with some police work, such as traffic detailing. Due to an insufficient number of police officers available on February 19,2004, the “Code White” drill could not have been conducted without Schwarzenbach’s participation.

[258]*258In his complaint for negligence against Schwarzenbach, Maciorowski alleged that he suffered injuries during the training drill when Schwarzenbach fired a revolver loaded with “blanks” at Maciorowski’s face from a distance of only two to three feet. Maciorowski’s complaint also states that “the police explorer program was set up and managed by the City of Westfield for prospective candidates for its police force to be familiarized with police tactics and training.” Additionally, Maciorowski sent a “presentment letter,” pursuant to G.L.c. 258, §4, to the mayor of Westfield, alleging “negligent supervision and training with regard to the explorers and or [sic] the preparation and execution of the training exercise.” Maciorowski further applied for and received compensation for his injuries sustained during the training drill in question in accordance with G.L.c. 41, §§100 and 111F.

In support of his Mass. R. Civ. R, Rule 56, motion for summary judgment, Schwarzenbach filed a supporting memorandum of law and several affidavits, including affidavits from Officers Bard and Baginski that set forth in great detail the level of supervision, direction, and control that the police department exercised over its Police Explorers generally and specifically during the “Code White” training drill.1 Maciorowski’s opposition to summary judgment, which was unsupported by any affidavit, alleged that Schwarzenbach was not a “public employee” and that Schwarzenbach committed an intentional tort. Maciorowski’s counsel waived oral argument on that opposition. The trial judge allowed Schwarzenbach’s summary judgment motion in a written memorandum of law dated October 16, 2008. On October 28, 2008, Maciorowski filed a motion to amend his complaint to include counts for alleged assault, assault and battery, and assault and battery with a dangerous weapon based on information that Maciorowski obtained during Schwarzenbach’s deposition on July 2, 2007. The trial judge denied the motion to amend on July 2, 2009.

1. Summary judgment shall be granted where there are no genuine issues of material fact, and where the moving party is entitled to a judgment as a matter of law. Mass. R. Civ. R, Rule 56(c); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983). The moving party may satisfy this burden either by submitting affirmative 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 his case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond with evidence establishing the existence of a genuine issue of material fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). The court must view the parties’ evidentiary materials “in the light most favorable to the nonmoving party,” Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000), and must resolve any doubt as to the existence of factual issues in the nonmovanf s favor. Foley [259]*259v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984); Knight v. CNA Ins. Cos., 2002 Mass. App. Div. 3, 5.

The Massachusetts Tort Claims Act imposes liability on a “public employer” for any personal injury, death, or property damage 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, with certain exceptions. G.L.c. 258, §2. The individual public employee is immune from personal liability.

The test for determining whether an individual is a public employee under G.L.c. 258, §2 is the same as that used to establish whether an agent is a servant for whose negligent acts a principal may be liable under the common law doctrine of respon-deat superior. McNamara v. Honeyman, 406 Mass. 43, 48 (1989). Thus, whether a person is a “public employee” and immune from personal liability depends on whether a master-servant relationship exists, and whether the individual was doing something in furtherance of the master’s business at the time of the incident in question. Id., citing Kelley v. Rossi, 395 Mass. 659, 661 (1985); Konick v. Berke, Moore Co., 355 Mass. 463, 467-468 (1969) (satisfaction of both factors qualifies a person as a “public employee,” as “the law gives the master the right of direction and control”). A “public employee” includes elected or appointed officers or employees of any public employer, whether serving full or part time, temporary or permanent, compensated or uncompensated. G.L.c. 258, §1. Law students who work as volunteers in the office of the counsel to the Governor, volunteer workers in the state hospitals, and volunteer drivers for the Governor may be public employees for the purposes of G.L.c. 258, §1. Opinion of the Attorney General, Rep. AG., Pub. Doc. No. 12, at 89-90 (1983). “The definition of ‘public employee’ indicates that a municipal employer may be liable for the negligent conduct of temporary or volunteer workers such as hospital aides, volunteer fire department personnel, or special or auxiliary police officers.” D.A. RANDALL & D.E. FRANKLIN, MUNICIPAL LAW AND PRACTICE §39.3, at 127 n.3 (5th ed. 2006).

Maciorowski’s opposition did not refute the specific facts set forth in the Rule 56 affidavits submitted by Schwarzenbach. Maciorowski contended that the Westfield Police Department is not a “public employer,” as defined in G.L.c. 258, §1, because the city police commission, rather than the police department, has the authority to hire police officers. That argument contradicts the evidence on record, including Maciorowski’s own implicit admissions to the contrary.

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Related

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Cassesso v. Commissioner of Correction
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Clickner v. City of Lowell
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Foley v. Matulewicz
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Gray v. Giroux
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2010 Mass. App. Div. 257, 2010 Mass. App. Div. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maciorowski-v-schwarzenbach-massdistctapp-2010.