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22-P-775 Appeals Court
SHANNON PARADIS, personal representative,1 vs. MARTHA FROST & another.2
No. 22-P-775.
Middlesex. June 8, 2023. - September 22, 2023.
Present: Blake, Walsh, & Hershfang, JJ.
School and School Committee, Regional school district. Social Worker. Negligence, Licensed independent clinical social worker, Duty to prevent harm, Public employee, School, Wrongful death. Wrongful Death. Massachusetts Tort Claims Act. Practice, Civil, Motion to dismiss. Immunity from Suit. Words, "Member of household," "Intervention."
Civil action commenced in the Superior Court Department on May 3, 2021.
Motions to dismiss were heard by James H. Budreau, J.
Jeffrey S. Beeler for the plaintiff. John J. Davis for Acton-Boxborough Regional School District.
1 Of the estate of Jacob R. Goyette.
2 Acton-Boxborough Regional School District. 2
WALSH, J. After the suicide of her son Jacob R. Goyette,
Shannon Paradis filed a complaint against Acton-Boxborough
Regional School District (school district) and social worker
Martha Frost, claiming negligence and wrongful death.3 A judge
of the Superior Court allowed the school district's motion to
dismiss on the ground that the school district was immune from
liability under G. L. c. 258, § 10 (j).4 On appeal, Paradis
argues that the school district is not immune because it owed
Jacob a duty to take reasonable steps to prevent his suicide.
She also argues that the school district is not immune from
liability because Frost, a public employee, took affirmative
actions which were the original cause of Jacob's harm. In the
alternative, Paradis argues that even if immunity were to
somehow apply to the school district, the circumstances
presented here fall within three exceptions to the statute. We
affirm.
3 Counts I, II, and III of the amended complaint allege negligence and wrongful death against Frost. The sole count against the school district is Count IV under the Massachusetts Tort Claims Act. The judge denied Frost's motion to dismiss, ruling that the issue of whether Frost was a public employee was not ripe for a decision. The claims against Frost were pending at the time this case was argued; Frost is not a party to this appeal and the only issue on appeal relates to Count IV against the school district.
4 The judge ordered the entry of a separate and final judgment for the school district, Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974), from which Paradis filed a timely notice of appeal. 3
Background. We summarize the background of this case and,
because this appeal stems from the allowance of a motion to
dismiss, we "accept as true the facts alleged in the
plaintiff['s] [amended] complaint as well as any favorable
inferences that reasonably can be drawn from them." Polay v.
McMahon, 468 Mass. 379, 382 (2014).
In 2017, Jacob was a sixteen year old student who attended
the Acton-Boxborough Regional High School (school), a regional
public school. The school district operates and controls the
activities of the school. During the 2017-2018 school year,
Frost, a licensed independent clinical social worker, had a
contract with the school district to work at the school as a
high school social worker for one year, in addition to
maintaining her private practice as a licensed social worker.
During the relevant time period, school district officials
knew that Jacob suffered from anxiety, attention deficit
hyperactivity disorder, and impulsivity, and that the school was
providing him with accommodations through a "504 plan."5 Those
same officials also knew that five current or former students
from the school district had died by suicide in the two years
preceding Jacob's death. In the months prior to Jacob's death,
5 "[A] 504 plan is a plan to accommodate [a child's] disability and enable [him or her] to attend public school" (quotations and citation omitted). Commonwealth v. Olivier, 89 Mass. App. Ct. 836, 843 n.11 (2016). 4
a school guidance counselor (a different person from Frost)
included in her notes that three of Jacob's grandparents had
died in 2017 and that Jacob had been friends with another
student from the school district who had died by suicide. As of
early 2018, the school district also knew that Jacob had stopped
doing his homework and was failing his classes.
On May 30, 2018, Jacob's girlfriend interrupted a meeting
between Frost and another student to report concerns she had
about Jacob's well-being. She told Frost that earlier that day
she had seen Jacob drinking alcohol in the school commons, that
he was drunk, upset, and crying, and "that something was really
wrong." She told Frost that "she had noticed that things were
not right with Jacob" and that Jacob would not tell her what was
bothering him. She confided in Frost that his behavior reminded
her of another student at the school who had recently died by
suicide. She also "told Frost that she thought Jacob was going
to do something stupid, including possibly hurting himself."
"Frost told the girlfriend not to worry and that [she] would be
in contact with Jacob's parents and the [d]ean to ensure that
they got Jacob the help that he needed." Due to Frost's
assurances, the girlfriend (who was also being counseled by
Frost) did not inform Jacob's parents about her concerns, which
she otherwise would have done. 5
Shortly thereafter, Frost met with Jacob. Frost did not
keep a record of the meeting. Frost did not speak to Jacob's
parents about her meeting with Jacob or about the girlfriend's
concerns. Tragically, about six weeks later, during summer
school vacation, Jacob died by suicide at his home. Two months
thereafter, the school principal contacted Jacob's parents. He
informed them of the events of May 2018 between Frost and
Jacob's girlfriend, and that Frost was now "separated from her
contracted position at" the school.
Discussion. Paradis argues that the school district is not
immune from suit because Frost, for whose actions she contends
the school district is liable, was the original cause of Jacob's
suicide. She further argues that if the school district is
immune, her claims fall within three exceptions, as set forth in
G. L. c. 258, § 10 (j) (1), (2), and (4). In addition, relying
on Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436 (2018),
Paradis argues that the school district is liable for Jacob's
death because the school district owed Jacob a duty to take
reasonable steps to prevent his suicide. Because we conclude
that the school district is immune from suit, we need not -- and
do not -- reach the question of duty, although we set out the
contours of Paradis's argument for the sake of completeness.
1. Standard of review. "We review the allowance of a
motion to dismiss de novo." Curtis v. Herb Chambers I-95, Inc., 6
458 Mass. 674, 676 (2011). We accept as true the allegations in
the amended complaint and draw every reasonable inference in
favor of Paradis. See Polay, 468 Mass. at 382. To survive a
motion to dismiss, the factual allegations must support an
entitlement to relief. See Iannacchino v. Ford Motor Co., 451
Mass. 623, 635-636 (2008). In making this determination, we
look beyond the conclusory allegations in the complaint and
focus on whether the factual allegations plausibly suggest an
entitlement to relief. See id. at 636.
2. Immunity. Taking the allegations of the amended
complaint as true, we must determine whether, under the
Massachusetts Tort Claims Act, the school district is immune
from suit. This is a question of law that we review de novo.
See Klevan v. Newton, 97 Mass. App. Ct. 87, 90 n.8 (2020).
Public employers are liable for the negligent acts and omissions
of their public employees "in the same manner and to the same
extent as a private individual under like circumstances,"
subject to certain limitations. G. L. c. 258, § 2. Section
10 (a)-(j) of G. L. c. 258, however, "sets forth several
exceptions to that general waiver of sovereign immunity."
Cormier v. Lynn, 479 Mass. 35, 39 (2018). In particular,
§ 10 (j) provides that government entities are immune from
claims "based on an act or failure to act to prevent or diminish
the harmful consequences of a condition or situation . . . which 7
is not originally caused by the public employer or any other
person acting on behalf of the public employer." See Cormier,
supra.
Paradis claims that immunity under § 10 (j) does not apply
where a public employer (the school district) is the original
cause of the harm. Specifically, she argues "that Frost's
affirmative act materially contributed to creating a condition
or situation that resulted in Jacob's death."
Our case law is clear that an "original cause" must be an
affirmative act; the failure to act does not suffice. See
Cormier, 479 Mass. at 40. "[T]he principal purpose of § 10 (j)
is to preclude liability [on the part of the Commonwealth] for
failures to prevent or diminish harm" (citation omitted).
Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 489 (2002). The
amended complaint alleges that Frost failed to take appropriate
action -- to inform Jacob's parents of Jacob's situation, and to
conduct an appropriate risk assessment of Jacob when she met
with him and to keep a record of the meeting -- after speaking
with Jacob's girlfriend. Paradis does not allege the kind of
"affirmative acts" necessary for Frost to be the original cause
of Jacob's suicide. For the original cause language of § 10 (j)
to apply, "the act must have materially contributed to creating
the specific 'condition or situation' that resulted in the harm"
(emphasis added). Kent v. Commonwealth, 437 Mass. 312, 319 8
(2002), quoting G. L. c. 258, § 10 (j). In essence, Paradis
claims that Frost was the original cause of Jacob's suicide by
affirmatively telling Jacob's girlfriend that she would inform
his parents and then failing to do so, thereby depriving his
family of an opportunity to intervene and obtain treatment for
Jacob.
We conclude, as the judge did, that Jacob's suicide was the
result of his own state of mind and not the failures of Frost.
See Jones v. Maloney, 74 Mass. App. Ct. 745, 749 (2009)
(plaintiff may be original cause of harmful "condition or
situation"). See also Jacome, 56 Mass. App. Ct. at 489-490
(defendant's failure to prevent drowning victim from swimming in
unsafe conditions not original cause of death). It therefore
follows that the school district is immune for any failure to
prevent or diminish the "harmful consequences" of Jacob's
"condition or situation." See McCarthy v. Waltham, 76 Mass.
App. Ct. 554, 561 (2010) (city immune from suit where original
cause of decedent's suicide, one hour after being released from
protective custody, was his "suicidal frame of mind"). In
essence, "the principal purpose of § 10 (j) is to preclude
liability for failures to prevent or diminish harm, including
harm brought about by the wrongful act of a third party." Brum
v. Dartmouth, 428 Mass. 684, 696 (1999) (stabbing by third party
was original cause of victim's injuries, not negligence of 9
defendant). For these reasons, the school district is immune
from suit.6
3. Exceptions. Paradis next argues that even if the
school district qualifies for immunity, there are three
exceptions that apply. We address each in turn.
a. Specific assurances. General Laws c. 258,
§ 10 (j) (1), provides in relevant part that immunity does not
apply to "any claim based upon explicit and specific assurances
of safety or assistance, beyond general representations that
investigation or assistance will be or has been undertaken, made
to the direct victim or a member of his family or household by a
public employee, provided that the injury resulted in part from
reliance on those assurances." This section only applies "to
the truly exceptional case where direct and explicit assurances
are given to a particular person quite apart from the normal
carrying out of officials' routine duties." Barnes v.
Metropolitan Hous. Assistance Program, 425 Mass. 79, 87 (1997).
Paradis argues that § 10 (j) (1) applies because Jacob's
6 Even if Frost's statements to the girlfriend were affirmative acts, we agree with the judge that the claim still fails because they must have materially contributed to the "'condition or situation' that resulted in the harm." Cormier, 479 Mass. at 40. Paradis has failed to set forth facts to support the required inference that Frost's statements to the girlfriend in May set in motion a chain of events that caused Jacob's state of mind in July. 10
girlfriend may be "properly viewed as a member of Jacob's
household," and Frost made explicit assurances to her. We are
not persuaded.
The phrase "member of his household" in this context has
not been defined by either statute or case law. Accordingly, we
apply well-settled rules of statutory interpretation. "When a
statute's language is plain and unambiguous, we afford it 'its
ordinary meaning.'" Commonwealth v. Keefner, 461 Mass. 507, 511
(2012), quoting Commonwealth v. Brown, 431 Mass. 772, 775
(2000). "If we determine that the intent of the Legislature is
unambiguously conveyed by the statutory language, we simply end
our analysis and give effect to the legislative intent." Nunes
v. Duffy, 101 Mass. App. Ct. 460, 463 (2022), quoting Adams v.
Boston, 461 Mass. 602, 609 (2012).
The term "household" is defined as "[a] group of people who
dwell under the same roof."7 Black's Law Dictionary 888 (11th
ed. 2019). None of the facts alleged in the amended complaint,
nor any of the inferences that can reasonably be drawn from the
facts, lead us to conclude that Jacob's girlfriend was "a member
of his household." Accordingly, § 10 (j) (1) does not apply.8
7 We decline to interpret, as Paradis argues, the term "member of his [or her] household" as equivalent to the more expansive definition of "family or household members" under G. L. c. 209A, § 1. 11
b. Intervention. General Laws c. 258, § 10 (j) (2),
limits immunity when the claim is "based upon the intervention
of a public employee which causes injury to the victim or places
the victim in a worse position than he was in before the
intervention." Although the statute does not define
"intervention," we have interpreted the term to mean "the act or
fact of intervening." Stahr v. Lincoln Sudbury Regional High
Sch. Dist., 93 Mass. App. Ct. 243, 249 (2018), quoting Webster's
Third New International Dictionary 1183 (1993). In other words,
for § 10 (j) (2) to apply, the claim must be based on an
intervening act, not a failure to act. See Stahr, supra.
Paradis argues that Frost's assurances to the girlfriend
qualified as an intervention under § 10 (j) (2). We disagree.
At most, Frost's statements that she would inform Jacob's
parents (and her failure to do so) were negligent omissions, and
not acts of intervention. See Jones, 74 Mass. App. Ct. at 749-
750 (assistant principal's failure to act cannot be considered
act of intervention under § 10 [j] [2]). Because § 10 (j) (2)
eliminates immunity for affirmative acts of intervention, it
does not apply here.
8 Because Jacob's girlfriend was not a "member of his household," we need not and do not address whether Frost's assurances to the girlfriend were explicit and specific, or whether the girlfriend's reliance on Frost's assurances was a sufficiently proximate cause of Jacob's death. See G. L. c. 258, § 10 (j) (1). 12
c. Negligent treatment. Finally, G. L. c. 258,
§ 10 (j) (4), limits immunity for "any claim by or on behalf of
a patient for negligent medical or other therapeutic treatment
received by the patient from a public employee." Paradis argues
that § 10 (j) (4) applies because the claims arise out of the
negligent therapeutic treatment of Jacob by Frost, a licensed
independent clinical social worker. For purposes of the motion
to dismiss, we accept that the limited contact between Frost and
Jacob could support the claim that Jacob was a patient of Frost.9
However, the amended complaint does not allege that Frost was
negligent in providing Jacob with "treatment." Instead the
amended complaint faults Frost –- and, derivatively, the school
district -- for failing to inform others of Jacob's girlfriend's
concerns. "We cannot stretch the plain language of the
operative phrase of § 10 (j) (4) -- negligent medical treatment
-- to encompass nonmedical acts or omissions by public
employees." Slavin v. American Med. Response of Mass., Inc., 99
Mass. App. Ct. 55, 58 (2021).
4. Negligence claim. Given that the school district is
immune from suit, we need not (and do not) reach Paradis's
argument that the school district owed a duty to take reasonable
9 It is undisputed that Frost met with Jacob only once. 13
steps to prevent Jacob's suicide. However, for the sake of
completeness, we set forth here the parameters of her argument.
Paradis contends that "Frost's negligence, carelessness
and/or unskillful interactions with and/or failure to provide
Jacob with the degree of care of the average qualified
practitioner . . . were direct and proximate causes of Jacob's
death." Put another way, Paradis claims that the school
district, a public employer, is responsible for Frost's actions.
See Berry v. Commerce Ins. Co., 488 Mass. 633, 637 n.3 (2021)
("Respondeat superior is a type of vicarious liability in which
the employer is held liable for the acts of the employee
committed within the scope of employment").
"Generally, there is no duty to prevent another from
committing suicide. Under our case law, 'we do not owe others a
duty to take action to rescue or protect them from conditions we
have not created.'" Nguyen, 479 Mass. at 448, quoting Cremins
v. Clancy, 415 Mass. 289, 296 (1993) (O'Connor, J., concurring).
However, the Supreme Judicial Court has "recognized that special
relationships may arise in certain circumstances imposing
affirmative duties of reasonable care . . . including the duty
to prevent suicide." Nguyen, supra. The most common examples
of such a situation are in jails or hospitals. See id. at 448-
449. Cf. Bonafini v. G6 Hospitality Prop., LLC, 101 Mass. App.
Ct. 612, 612-613 (2022) (no duty where innkeeper failed to call 14
police to conduct wellness check on guest who died by suicide in
rented room).
In Nguyen, 479 Mass. at 448-449, the Supreme Judicial Court
considered whether a special relationship existed between a
university and its graduate student. In doing so, the court
analyzed the role universities play in students' academic and
personal lives, and the fact that universities are "property
owners and landlords responsible for their students' physical
safety on campus." Id. at 450. The court concluded that
because of universities' significant involvement in their
students' lives, universities may have a special relationship
with their students that includes a duty to take reasonable
measures to prevent a student's suicide "[w]here a university
has actual knowledge of a student's suicide attempt that
occurred while enrolled at the university or recently before
matriculation, or of a student's stated plans or intentions to
commit suicide." Id. at 453. Because the student "never
communicated by words or actions to any MIT employee that he had
stated plans or intentions to commit suicide, and any prior
suicide attempts occurred well over a year before
matriculation," the court concluded that no duty was owed by MIT
to the student. Id. at 458.
Paradis argues that the principles of Nguyen should extend
to public school districts. Although Paradis's argument has 15
some force, we need not decide the question here because, for
the reasons we have already stated, the school district is
immune from suit regardless.
Judgment affirmed.