Perkins v. Commonwealth

752 N.E.2d 761, 52 Mass. App. Ct. 175, 2001 Mass. App. LEXIS 745
Massachusetts Appeals Court·Decided July 31, 2001·No. No. 98-P-1988·Published·Cited by 14 cases

Opinion

Dreben, J.

While training as a cadet at the State Police Academy (Academy), the plaintiff became ill with a severe cold. She brought this action against three agencies of the Commonwealth1 and three employees of the Academy,2 alleging that during her illness she was required to participate in physical activities contrary to a physician’s advice, was deprived of sufficient water, and suffered other humiliations and hazing. As a result, she became fearful for her health and found it necessary to resign. She contends that the defendant agencies were negligent in providing her with medical care and, citing G. L. c. 269, § 17, see note 7, infra, that the defendants, by allowing her to be hazed by Academy personnel, constructively discharged her in violation of public policy. She also claims that one of the individual defendants, Trooper Cambria, violated her civil rights. She sought damages for physical and emotional distress, loss of compensation and benefits, attorneys’ fees, and reinstatement as a cadet at the Academy. A judge of the Superior Court granted motions for summary judgment for all the defendants. We affirm.

Although the defendants deny that the plaintiff was deprived of rest, water or medicine, for purposes of reviewing the motion judge’s ruling, we assume the facts to be as alleged by the plaintiff and make all logically permissible inferences in her favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203 (1991).

1. Negligence. The plaintiff recognizes that under G. L. c. 152, § 24, unless an employee expressly preserves his or her common law rights of action, a claim alleging negligence of an employer or of a coemployee is foreclosed by the exclusivity [177] provisions of the workers’ compensation act (act).3 Foley v. Boston Housing Authy., 407 Mass. 640, 641 n.3 (1990). The plaintiff, however, argues that her common law claim of negligence is not barred because her illness, initially a severe cold, may have arisen from sources outside her employment and hence is not compensable under the act.4 This argument is without merit, as her negligence claims are premised upon allegations that Academy personnel exacerbated her medical condition by misdiagnosing her condition and by negligently denying her requests for water, rest, and medication. If these claims were sustained at trial, the harm caused by the defendants’ conduct would be compensable under G. L. c. 152, § 1(7A),5 as such conduct was at least a major cause of her disability or need for treatment. The exclusivity provisions of the act would, therefore, control and preclude her negligence claim.

The plaintiff also urges that her negligence claims are not barred because of the “dual persona” doctrine which provides that an employer’s conduct may in some instances be regarded as conduct of a third party and be subject to liability despite the exclusivity provisions of G. L. c. 152. Under this theory, an employer may be subject to suit if its “liability to the injured employee ‘derives from a second persona so completely [178] independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person.’ ” Barrett v. Rodgers, 408 Mass. 614, 617 (1990), quoting from Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 620-621 (1990), in turn quoting from 2 A. Larson, Workmen’s Compensation § 72.80, at 14-229 (1988). That doctrine, which has not been explicitly adopted in Massachusetts, although it has been alluded to favorably, Barrett v. Rodgers, supra at 617, does not aid the plaintiff’s cause. The acts and omissions of the medical personnel claimed to be wrongful were an integral part of the Academy’s role of providing medical assistance to cadets. The plaintiff did not see the medical personnel as a private patient, but rather as a cadet entitled to medical services. See Scott v. Wolf Creek Nuclear Operating Corp., 23 Kan. App. 2d 156, 160 (1996) (malpractice action against company medical personnel barred by workers’ compensation statute).

2. Constructive discharge. Claims for emotional or physical injuries because of wrongful termination or constructive discharge are also precluded by the workers’ compensation act, Simmons v. Merchants Mut. Ins. Co., 394 Mass. 1007, 1007-1008 (1985); see Anzalone v. Massachusetts Bay Transp. Authy., 403 Mass. 119, 124-125 (1988), unless they are sustained in connection with claims that are not barred by the exclusivity provisions of the workers’ compensation act. Green v. Wyman-Gordon Co., 422 Mass. 551, 560-561 (1996). For this reason, the plaintiff argues that her claim of constructive discharge seeks contract damages.6 Although it is dubious that she can show that she was constructively discharged, that is, that her employer created “working conditions ... so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign,” GTE Prods. Corp. v. Stewart, 421 Mass. 22, 34-36 (1995), quoting from Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977), we will again assume for purposes of reviewing the summary judgment motion that she can sustain the claim.

Recognizing that an at-will employee may be terminated at [179] any time for any reason or for no reason at all, Upton v. JWP Businessland, 425 Mass. 756, 757 (1997), the plaintiff points out that liability may be imposed on the employer if the employee is terminated “for a reason that violates a clearly established public policy.” Ibid. The plaintiff claims that G. L. c. 269, § 17, is such a policy. That statute, set out fully in the margin,7 defines “hazing” as “any conduct or method of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers the physical or mental health of any student or other person” (emphasis supplied). The “brutal treatment or forced physical activity” made criminal by the statute is directed at student organizations, not at the educational institutions themselves. The “lengthy statement” of Attorney General Shannon mentioned in Shepard v. Attorney Gen., 409 Mass. 398, 400 (1991), and made a part of the record on this appeal, also considers the statute as applying solely to student organizations. Compare Shepard, supra at 400 n.3, where the trial judge found that State troopers and employees of the Massachusetts Criminal Justice Training Council may have violated the hazing statute.

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Perkins v. Commonwealth, 752 N.E.2d 761, 52 Mass. App. Ct. 175, 2001 Mass. App. LEXIS 745 (Mass. Ct. App. 2001).

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