Marcy v. Town of Saugus

Massachusetts Appeals Court

Marcy v. Town of Saugus

495 N.E.2d 569, 22 Mass. App. Ct. 972, 1986 Mass. App. LEXIS 1732

DecidedJuly 22, 1986

StatusPublished

This text of 495 N.E.2d 569 (Marcy v. Town of Saugus) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marcy v. Town of Saugus, 495 N.E.2d 569, 22 Mass. App. Ct. 972, 1986 Mass. App. LEXIS 1732 (Mass. Ct. App. 1986).

Pincite

Opinion

On October 13, 1971, the plaintiff Marcy, then aged sixteen, a member of the Saugus High School football team, was engaged in a tackling drill under the supervision or direction of Richard Salerno, a teacher-coach. In making a tackle, the plaintiff sustained injuries which resulted in quadriplegia. In this action, commenced on April 29, 1975,² joining Salerno and the town of Saugus as defendants, the plaintiff in count I of his substitute complaint charged Salerno with negligence; in count II charged the town with negligence in regard to the accident; in count III charged the town with wrongful failure to provide workers’ compensation for the plaintiff; and in count IV charged the town with negligence in failing to provide accident, health, and disability insurance coverage for the plaintiff. The upshot of the proceedings in the action has been as follows: a motion to dismiss for failure to state a claim was allowed as to count I so far as construed to charge Salerno with nonfeasance, but denied so far as taken to charge misfeasance; a similar motion was allowed as to count III, a motion for summary judgment was allowed with respect to counts II and IV. The case is here on report, inquiring whether these rulings were correct.³

The law applied was the common law as before August 16, 1977, the effective date of the Massachusetts Tort Claims Act, G. L. c. 258. See St. 1978, c. 512, § 16. By those standards the lower court was right. The defendant Salerno, for the instant purpose a public official carrying out ministerial functions, could be held for misfeasance but not for nonfeasance (count I). This question was recently ventilated in O’Neill v. Mencher, 21 Mass. App. Ct. 610, 612-615 (1986). Upon the proofs received on motion for summary judgment, no genuine issue survived for trial on the plaintiff’s [973]*973claim under count II that the town, in sponsoring football at Saugus High School, was carrying out a commercial or proprietary, rather than a public function, and was thus unprotected by governmental immunity. This question, although arising in a different factual context, was recently reviewed in Leary v. Boston, 20 Mass. App. Ct. 605, 606-608 (1985); in both instances any commercial aspect was so incidental to the public as to be nugatory. As count II fell, so did count IV purporting to assert a duty to provide insurance. On no view could the plaintiff be regarded as an employee of the town to be brought into the workers ’ compensation scheme (count III).

Kerry Paul Choi (Thomas E. Cargill, Jr., with him) for the plaintiff. Richard K. Donahue for the defendants.

Orders affirmed.

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On October 13, 1971, the plaintiff Marcy, then aged sixteen, a member of the Saugus High School football team, was engaged in a tackling drill under the supervision or direction of Richard Salerno, a teacher-coach. In making a tackle, the plaintiff sustained injuries which resulted in quadriplegia. In this action, commenced on April 29, 1975,² joining Salerno and the town of Saugus as defendants, the plaintiff in count I of his substitute complaint charged Salerno with negligence; in count II charged the town with negligence in regard to the accident; in count III charged the town with wrongful failure to provide workers’ compensation for the plaintiff; and in count IV charged the town with negligence in failing to provide accident, health, and disability insurance coverage for the plaintiff. The upshot of the proceedings in the action has been as follows: a motion to dismiss for failure to state a claim was allowed as to count I so far as construed to charge Salerno with nonfeasance, but denied so far as taken to charge misfeasance; a similar motion was allowed as to count III, a motion for summary judgment was allowed with respect to counts II and IV. The case is here on report, inquiring whether these rulings were correct.³

The law applied was the common law as before August 16, 1977, the effective date of the Massachusetts Tort Claims Act, G. L. c. 258. See St. 1978, c. 512, § 16. By those standards the lower court was right. The defendant Salerno, for the instant purpose a public official carrying out ministerial functions, could be held for misfeasance but not for nonfeasance (count I). This question was recently ventilated in O’Neill v. Mencher, 21 Mass. App. Ct. 610, 612-615 (1986). Upon the proofs received on motion for summary judgment, no genuine issue survived for trial on the plaintiff’s [973]*973claim under count II that the town, in sponsoring football at Saugus High School, was carrying out a commercial or proprietary, rather than a public function, and was thus unprotected by governmental immunity. This question, although arising in a different factual context, was recently reviewed in Leary v. Boston, 20 Mass. App. Ct. 605, 606-608 (1985); in both instances any commercial aspect was so incidental to the public as to be nugatory. As count II fell, so did count IV purporting to assert a duty to provide insurance. On no view could the plaintiff be regarded as an employee of the town to be brought into the workers ’ compensation scheme (count III).

Kerry Paul Choi (Thomas E. Cargill, Jr., with him) for the plaintiff. Richard K. Donahue for the defendants.

Orders affirmed.

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Bluebook (online)

495 N.E.2d 569, 22 Mass. App. Ct. 972, 1986 Mass. App. LEXIS 1732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcy-v-town-of-saugus-massappct-1986.

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