ROBERT JAMES O'BRIEN v. KIRK RUSSELL & Others.

• Court: Massachusetts Appeals Court
• Decided: August 14, 2024
• Docket: 23-P-0805
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-805

ROBERT JAMES O'BRIEN 1

vs.

KIRK RUSSELL & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Robert James O'Brien, brought this action on

his own behalf and as personal representative of the estate of

Stacey Fenton claiming negligence under the Massachusetts Torts

Claims Act (MTCA), G. L. c. 258, against the Department of

Children and Families (DCF), and violations of his

constitutional rights under the Massachusetts Civil Rights Act

(MCRA), G. L. c. 12, § 11I, against four DCF employees in their

1 Individually and as personal representative of the estate of Stacey Fenton.

2 Catherine Dwelly, Jacque Carl, Marcia Roddy, and the Department of Children and Families. individual capacities. 3 As we discuss in more detail below, the

claims arose from an unfortunate mistake. O'Brien was living

with Fenton and her minor son in Fenton's home. The son was the

subject of an open DCF case. In conducting a routine background

check, DCF misidentified O'Brien as a person who had a history

with DCF involving the sexual abuse of a child. O'Brien was

asked to leave the home and was not permitted to return until

four months later when, on further investigation, DCF

acknowledged its error.

Prior to trial, the judge reserved the individual

defendants' claims of qualified immunity under the MCRA and

DCF's claim of immunity under the discretionary function

exemption to the MTCA, G. L. c. 258, § 10 (b). The case

proceeded and the jury returned a verdict in favor of O'Brien on

his negligence claim against DCF, and on his MCRA claim against

two of the four DCF employees. 4 The defendants then moved for

judgment notwithstanding the verdict, or, in the alternative,

judgment based on their immunity defenses. DCF also argued that

3 O'Brien sought damages, attorney's fees, and a permanent injunction barring the defendants from taking or threatening to take Fenton's child if O'Brien occupies the home.

4 Additional claims brought under the MCRA based on O'Brien's allegation of an unconstitutional seizure, and the estate of Stacey Fenton's allegation of an unconstitutional search, were not submitted to the jury and were later dismissed. O'Brien does not raise any issues with respect to these claims on appeal. 2 the economic loss rule barred recovery on O'Brien's negligence

claim. 5 The judge granted the motion, and O'Brien appeals from

the ensuing judgment. We affirm. 6

Background. We recite the facts that the jury could have

found in the light most favorable to the nonmoving party, the

plaintiff. O'Brien v. Pearson, 449 Mass. 377, 383 (2007). In

early 2015, O'Brien was living with Fenton and her ten year old

son, who was autistic. 7 At that time, there was an open DCF case

involving the child's biological father. The case did not

involve any allegations of abuse or neglect against Fenton or

O'Brien. The DCF ongoing social worker assigned to the case,

Kirk Russell, learned that O'Brien was living with the child.

Per DCF policy, Russell conducted a background check on O'Brien,

for which he used the name "Robert J. O'Brien" and O'Brien's

date of birth. The background check suggested that O'Brien had

a criminal history, and that someone with the same first and

last name, middle initial, and date of birth had a history with

5 In addition, the defendants argued that O'Brien could not recover on both his negligence and civil rights claims as doing so would amount to a double recovery. However, the judge did not address this argument.

6 O'Brien also appeals from the judge's denial of his motion for attorney's fees. Because we affirm the judgment, we also affirm the denial of this motion.

7 Although O'Brien did not make any payments toward rent, nor was his name on the lease of the premises, there is no dispute that he was residing in the home with Fenton's permission. 3 DCF. On further inquiry, Russell's supervisor, Catherine

Dwelly, discovered that DCF previously had substantiated a

report of sexual abuse of a minor child by a Robert O'Brien in

2006. See G. L. c. 119, §§ 51A and 51B. The perpetrator in

that case was described as white, English speaking, in his

forties, residing in Medford, and missing front teeth -- a

description that in many respects matched that of O'Brien the

plaintiff. 8

Dwelly believed that both the criminal and DCF history

related to O'Brien (the plaintiff) and therefore, she shared the

results of the background check with her supervisor, Jacque

Carl. The two then developed a "safety plan" 9 for the child as a

preventative measure even though DCF had no reason to believe

that O'Brien had abused or neglected Fenton's son. Carl

instructed Dwelly to call Russell regarding the safety plan, and

The only notable difference was that plaintiff O'Brien was 8

born in Medford and lived in Medford around 2005, but he did not live there in 2006. However, DCF was only aware that O'Brien had lived in Medford, as well as the nearby town of Malden, at some point. In addition, although DCF did not know it, O'Brien had two false front teeth. DCF attempted to obtain information about O'Brien's teeth, but he refused to provide it. Thus, at the time DCF asked O'Brien to leave Fenton's home, DCF had only confirmed that he was white and English speaking, had a prior Medford residence, and would have been in his forties in 2006.

There are no formal policies, procedures, regulations, or 9

laws regarding DCF's use of safety plans. Rather, a "safety plan" is an informal term used to describe DCF's attempts to quickly address safety concerns that do not rise to the level of abuse or neglect, as well as to prevent future abuse or neglect of children. 4 direct Russell to ask Fenton to have O'Brien leave the home.

Dwelly did so and Russell promptly visited the home to inform

O'Brien of DCF's concerns regarding the supported allegations of

sexual abuse by Robert O'Brien in 2006, which O'Brien

emphatically denied was him. Russell did not provide O'Brien

with any documentation or further details regarding the

allegations, but he told O'Brien to leave the home that day. He

further told O'Brien that if he did not vacate the premises,

then DCF would initiate a legal consultation to determine

potential next steps, one of which was the possibility of DCF

filing a complaint in the Juvenile Court to obtain custody of

Fenton's child. Russell requested identifying information and

proof of prior residences from O'Brien, who provided only his

driver's license. O'Brien declined to provide his social

security number and informed Russell that he would like to

consult with his attorney. 10 Russell told O'Brien that if there

was a mistake, then it would be cleared up within a couple days.

On the assumptions that the situation would be resolved

quickly and that he had no choice in the matter, O'Brien packed

a bag for a few days and left the home that night. However, it

took four months (and the initiation of this lawsuit) for DCF to

10The jury found O'Brien 25% contributorily negligent for choosing not to provide DCF with more information that could have excluded him as the person described in the 2006 case.

5 determine that O'Brien was not the same Robert O'Brien who

sexually abused a child in 2006, and for DCF to allow him to

return to Fenton's home. 11 As a result, O'Brien incurred

substantial expenses for lodging, food, and gasoline.

Additionally, O'Brien suffered feelings of sadness, shock,

anger, distrust in authority, powerlessness, isolation, and

depression, for which he sought counseling at the Veteran's

Administration.

As noted, the jury returned a partial verdict in favor of

O'Brien. In response to questions on a special verdict form,

the jury found that DCF was not negligent in asking O'Brien to

leave the house but was negligent for failing for four months to

determine that he was not the individual with a DCF history.

The jury further found that Roddy and Carl did not interfere or

attempt to interfere with O'Brien's right to enjoy his property

without due process of law by threats, intimidation, or

coercion, but that Russell and Dwelly were liable under the MCRA

for violations of O'Brien's rights to liberty and property

without due process under arts. 10 and 12 of the Massachusetts

Declaration of Rights.

11Shortly after O'Brien filed this lawsuit in August of 2015, Carl asked for assistance from his supervisor, Marcia Roddy, who suggested contacting the mother of the child involved in the 2006 case. The mother ultimately provided information that confirmed DCF's mistake, which prompted DCF to withdraw the safety plan. 6 The defendants then moved for judgment notwithstanding the

verdict, which the judge granted. In ruling on the motion, the

judge concluded that Russell and Dwelly were entitled to

qualified immunity. The judge also concluded that DCF was not

entitled to discretionary function immunity because its "ad hoc

decision" to determine whether O'Brien was the same person with

a DCF history four months after asking him to leave Fenton's

home (and after O'Brien instituted legal proceedings) does not

fall within DCF's discretionary policy-making and planning

authority. The judge went on to conclude, however, that

although DCF did not have immunity, O'Brien could not recover on

his negligence claim because there was no evidence that he

suffered physical harm or property damage.

Discussion. "A ruling on a motion for judgment

notwithstanding the verdict presents a question of law that we

review under the same standard as the trial judge, construing

the evidence in the light most favorable to the nonmoving party

-- here, [O'Brien]." Biewald v. Seven Ten Storage Software,

Inc., 94 Mass. App. Ct. 376, 380 (2018). "The standard is

whether the evidence, construed against the defendants,

justifies the jury verdict against them." Id. "Our duty in

this regard is to evaluate whether anywhere in the evidence,

from whatever source derived, any combination of circumstances

7 could be found from which a reasonable inference could be made

in favor of [O'Brien]." Id., quoting O'Brien, 449 Mass. at 383.

O'Brien first claims that the judge erred by concluding

that Russell and Dwelly were entitled to qualified immunity.

The judge determined that even if DCF employees, namely Russell

and Dwelly, did violate O'Brien's rights to enjoy his property

under arts. 10 and 12 of the Massachusetts Declaration of

Rights, there was no controlling authority that would have put

them on notice that "safety planning" O'Brien out of the home

and failing to promptly investigate whether they had the right

person was unconstitutional, and an objectively reasonable DCF

employee would not have known such conduct violated O'Brien's

rights. We agree with the reasoning of the judge and reach the

same conclusion.

"It is well established that the MCRA incorporates the

standard of immunity for public officials developed under 42

U.S.C. § 1983, and accordingly 'public officials are not liable

under the [MCRA] for their discretionary acts, unless they have

violated a right under Federal or State constitutional or

statutory law that was clearly established at the time"

(quotation omitted). Williams v. O'Brien, 78 Mass. App. Ct.

169, 173 (2010), quoting Duarte v. Healy, 405 Mass. 43, 47

(1989). "A right is only clearly established if, at the time of

the alleged violation, 'the contours of the right allegedly

8 violated [were] sufficiently definite so that a reasonable

official would appreciate that the conduct in question was

unlawful.'" LaChance v. Commissioner of Correction, 463 Mass.

767, 777 (2012), S.C., 475 Mass. 757 (2016), quoting Longval v.

Commissioner of Correction, 448 Mass. 412, 419 (2007). "Put

another way, we must determine whether 'it would be clear to a

reasonable [DCF employee] that his conduct was unlawful in the

situation he confronted.'" Id., quoting Longval, supra.

O'Brien has not cited, nor are we aware of any, authority

that supports his assertion that the DCF employees, including

Russell and Dwelly, violated clearly established law by "safety

planning" him out of the home, even in light of DCF's negligence

concerning the investigation into O'Brien. In fact, our review

of relevant case law supports a contrary conclusion. See, e.g.,

Piccone v. McClain, 586 Fed. Appx. 709, 710-711 (1st Cir. 2014),

cert. denied, 577 U.S. 847 (2015) (affirming granting of

qualified immunity to DCF employees who involuntarily removed

plaintiff from family home while investigating allegations of

abuse against him); Hatch v. Department for Children, Youth, &

Their Families, 274 F.3d 12, 22 (1st Cir. 2001) ("[T]he

government has a compelling interest in safeguarding children

that it suspects are victims of abuse and in acting quickly on

their behalf. . . . Circumstances frequently force them to make

difficult choices without time for extensive investigation . . .

9 and it is better to err on the side of caution than to do

nothing and await incontrovertible proof"); Wilmot v. Tracey,

938 F. Supp. 2d 116, 136-137 (D. Mass. 2013) (DCF did not

violate parent's constitutional rights by asking parent not to

return home while DCF investigated child abuse allegations).

Nor are we aware of any clearly established right to a timely,

thorough investigation to confirm the accuracy of the

information that prompted the removal. Thus, even if we were to

assume that O'Brien's constitutional rights were violated, as

the judge did, we cannot say that an objectively reasonable

person in the position of the DCF employees would have known

that their conduct amounted to a violation of O'Brien's rights.

Accordingly, we agree that Russell and Dwelly are entitled to

qualified immunity and, therefore, the judge properly entered

judgment in their favor.

Next, O'Brien claims that the judge erred by entering a

judgment notwithstanding the verdict on his MTCA claim against

DCF on the ground that the absence of evidence that he suffered

physical injury or property damage, the so-called "economic loss

rule," bars recovery. He argues that the rule does not apply to

tort claims against the government.

As an initial matter, DCF claims that O'Brien has waived

this argument, as he did not raise it below. See Carey v. New

England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century

10 Fire & Marine Ins. Corp. v. Bank of New England-Bristol County,

N.A., 405 Mass. 420, 421 n.2 (1989) ("An issue not raised or

argued below may not be argued for the first time on appeal").

We agree. Our review of the record leads us to conclude that

O'Brien did not sufficiently object to the application of the

economic loss rule at any point and did not argue that the rule

itself does not apply to tort claims against government actors.

In any event, the argument has no merit. "The long-

standing rule in this Commonwealth . . . is that 'purely

economic losses are unrecoverable in tort . . . in the absence

of personal injury or property damage.'" Herbert A. Sullivan,

Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 413 (2003), quoting

FMR Corp. v. Boston Edison Co., 415 Mass. 393, 395 (1993). The

MTCA provides, in relevant part, "[p]ublic 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." G. L. c. 258,

§ 2. Because the economic loss rule applies to private

individuals, it applies to the public employers "in the same

manner and to the same extent." Id.

Here, there was no evidence that O'Brien suffered personal

injury or property damage as a result of DCF's negligence.

11 Therefore, the judge correctly determined that he could not

recover damages on his MTCA claim.

Judgment affirmed.

By the Court (Green, C.J., Vuono & Massing, JJ. 12),

Clerk

Entered: August 14, 2024.

12 The panelists are listed in order of seniority. 12