Serrell v. Franklin County

713 N.E.2d 389, 47 Mass. App. Ct. 400, 1999 Mass. App. LEXIS 801
CourtMassachusetts Appeals Court
DecidedJuly 26, 1999
DocketNo. 97-P-1504
StatusPublished
Cited by13 cases

This text of 713 N.E.2d 389 (Serrell v. Franklin County) 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
Serrell v. Franklin County, 713 N.E.2d 389, 47 Mass. App. Ct. 400, 1999 Mass. App. LEXIS 801 (Mass. Ct. App. 1999).

Opinion

Lenk, J.

On May 22, 1993, the plaintiff, Penny Serrell, was visiting an inmate at the Franklin County house of correction. During her visit, a different inmate, Clyde Brown, was visiting with his girlfriend, he sitting on one side of the screen separating inmates and prisoners, she on the other. Heated words and a quarrel between Brown and his girlfriend ensued; despite the presence of correctional officers, Brown ranged approximately [401]*401thirty feet from where he had been sitting, crossed over to the visitors’ side of the screen, and accosted his girlfriend. The correctional officers attempted to subdue Brown and, during the struggle, the officers caused an iron gate in the visitors’ area to be pinned up against Serrell, who suffered serious injury.

Serrell brought suit under the Tort Claims Act, G. L. c. 258, against Franklin County and its sheriff. She alleged that the county negligently failed to provide a safe area in which to visit an inmate, that the sheriff negligently failed properly to train, instruct, and supervise the correctional officers, and that the correctional officers negligently failed to monitor inmates in the visiting area in a reasonable manner and, when they ultimately intervened, were negligent in their attempts to restrain Brown on the visitors’ side of the area. A Superior Court judge allowed the defendants’2 motion for summary judgment, ruling that the plaintiff’s claims were barred either by G. L. c. 258, § 10(b) (discretionary function immunity), or by § 10(j) (immunity for failures to prevent or diminish harm).

On appeal, Serrell claims error in two respects. First, she argues that it was error to allow the county’s motion for summary judgment where genuine issues of material fact exist which might preclude the application of § 10(b) and § 10(b) to her claim. Second, she contends that the judge abused her discretion in denying Serrell’s request, pursuant to Mass.R.Civ.P. 56(f), 365 Mass. 825 (1974), to continue action on the defendants’ prematurely filed summary judgment motion until Serrell could undertake additional discovery.

Discussion. The plaintiff propounded several theories for the county’s negligence: the failure to provide a safe area in which to visit an inmate; the failure properly to train, instruct and supervise correctional officers; the correctional officers’ failure to monitor the inmates in the visiting area and thereby control and ameliorate an increasingly volatile situation; and the correctional officers’ failure to act with due care when intervening to subdue Brown.

As to all but the last theory of negligence, viz., negligent intervention, we think entirely correct the Superior Court judge’s analysis and conclusion that they succumb to the bar of both [402]*402§ 10(b) discretionary function immunity and/or § 10(f) immunity for failures to prevent or diminish harm. The last theory of negligence, however, merits further scrutiny.

The actions of the correctional officers in intervening to subdue an inmate who had crossed over into the visitors’ area in order to attack his girlfriend do not appear to be discretionary functions immunized from tort liability by G. L. c. 258, § 10(b), as inserted by St. 1978, c. 512, § 15. That section renders inapplicable otherwise pertinent provisions of the Tort Claims Act for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused[.]” The two-part test for determining whether a plaintiff’s claim is foreclosed by § 10(b) was articulated as follows in Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). First, it must be determined whether the governmental actors, here the correctional officers, had any discretion to do or not do what Serrell claims caused her harm. “[I]f the governmental actor had no discretion because a course of action was prescribed by a statute, regulation, or established agency practice, a discretionary function exception to governmental liability has no role to play in deciding the case.” Ibid. If this part of the test is met (i.e., the governmental actor did have some amount of discretion), we go on to the second part to determine whether the discretion that the governmental actor had is of the kind for which § 10(b) provides immunity. The dividing line is between, on the one hand, those functions resting on the exercise of judgment and discretion geared toward planning and policymaking, for which there would be governmental immunity, and, on the other, those functions involving the implementation and execution of previously established governmental policy and planning, for which there would be no governmental immunity. Id. at 142.

The record discloses that, at the time the correctional officers intervened to subdue the inmate Brown, there was in place a county plan or policy regarding visiting at the Franklin County house of correction. Under this plan or policy, the officers were required to maintain security and control in the visiting area.. Indeed, in answering interrogatories, the county acknowledged that “the correctional officers involved in subduing Clyde Brown were following established policy, rule or practice.” In [403]*403view of this, neither part of the Stoller test is met. The correctional officers’ course of conduct was prescribed by the county’s pre-existing plan or policy and, even if the correctional officers’ actions involved some exercise of discretion, it was in the implementation and execution, not the making, of policy. There is no § 10(b) immunity.

The more difficult question is whether G. L. c. 258, § 10(/), immunizes from liability the actions of the correctional officers in subduing the inmate Brown. The Superior Court judge concluded that it did, stating that “the [cjounty cannot be held liable for any failure on the part of the correctional officers present in the visiting area at the House of Corrections to prevent the violent outburst by the inmate against his visitor; nor can the county be held liable for injuries which the plaintiff sustained while the officers were acting to subdue Mr. Brown and thereby diminish the harmful consequences of his violent outburst.”

Section 10(/), as inserted by St. 1993, c. 495, § 57, bars “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.” The “interpretive quagmire” presented by § 10(j) has been eased of late by the Supreme Judicial Court’s decision in Brum v. Dartmouth, 428 Mass. 684, 692 (1999). “[T]he 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.” Id. at 696. To the extent that Serrell seeks to hold the county liable for the correctional officers’ failure to prevent the violent outburst of inmate Brown against his girlfriend, Brum makes it clear that she may not do so, as the judge correctly ruled. However, Serrell seeks to hold the county liable not only for what the correctional officers failed to do, but what they did do, viz., subduing Brown in the visitors’ area in a way that injured the by standing Serrell.

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Bluebook (online)
713 N.E.2d 389, 47 Mass. App. Ct. 400, 1999 Mass. App. LEXIS 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serrell-v-franklin-county-massappct-1999.