Wheeler v. Boston Housing Authority

606 N.E.2d 916, 34 Mass. App. Ct. 36, 1993 Mass. App. LEXIS 45
CourtMassachusetts Appeals Court
DecidedJanuary 25, 1993
DocketNo. 91-P-901
StatusPublished
Cited by19 cases

This text of 606 N.E.2d 916 (Wheeler v. Boston Housing Authority) 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
Wheeler v. Boston Housing Authority, 606 N.E.2d 916, 34 Mass. App. Ct. 36, 1993 Mass. App. LEXIS 45 (Mass. Ct. App. 1993).

Opinion

Porada, J.

After the plaintiff was shot in the arm during an exchange of gunfire between unknown persons on the rooftop and on the ground level parking area of a building owned by the defendant at 41 Franklin Hill Avenue in the Dorchester section of Boston, the plaintiff filed suit in the Superior Court against the defendant under the Massachusetts Tort Claims Act, G. L. c. 258. The plaintiff claimed the defendant was negligent in failing to provide adequate secur[37]*37ity for persons lawfully on the premises. The defendant moved for summary judgment on the ground that the claim was barred by the discretionary function exception of G. L. c. 258, § 10(b).1 The motion judge agreed with the defendant and allowed the motion. From the ensuing judgment, the plaintiff appeals. We affirm.

We summarize the pertinent facts, which are undisputed. After visiting a friend at the Franklin Hill housing development, the plaintiff was walking to her car, which was parked in an area outside 41 Franklin Hill Avenue. A car drove into this parking area and a man with a gun in his hand jumped out. As soon as he alighted, there was an exchange of gunfire between him and someone on the roof at 41 Franklin Hill Avenue; the plaintiff was wounded by a ricocheting bullet.

The building at 41 Franklin Hill Avenue is a three-story apartment building owned by the defendant. There is only one entrance to the building, a front door. The decision when to lock this door is left to the tenants of the building by the defendant. Once inside the building, there is only one entrance to the roof. The locking device on the roof door is a push-bar lock which allows access to the roof from the interior of the building but does not allow access from the roof into the building.

The defendant has established its own department of public safety headed by a director, who is responsible for designing and implementing security measures for the defendant at its housing projects. The defendant also has its own security force, which does patrol the premises and does investigate crimes on the premises. Within the last two years, the Franklin Hill housing development has been the scene of numerous violent crimes.

We turn now to discuss the sole issue presented in this appeal: whether the discretionary function exception applies to [38]*38the defendant’s conduct in this case. The plaintiffs case was based on her claim that her personal injuries were caused by the negligence of the defendant in failing to take adequate security measures to protect persons lawfully on the premises, in particular the failure regularly to patrol the premises and the failure adequately to secure the front door and the door leading to the roof at 41 Franklin Hill. The plaintiff asserts that a public housing authority should be treated no differently from a private landowner in like circumstances and is not immune from suit under the discretionary function exception of G. L. c. 258, § 10(6).

The defendant is a “public employer” within the meaning of G. L. c. 258, § 1, as appearing in St. 1983, c. 538, and has the benefit of the protection from liability provided by the discretionary function exception of G. L. c. 258, § 10(6), if the defendant’s conduct in this case qualifies as a discretionary function. Commesso v. Hingham Hous. Authy., 399 Mass. 805, 807 (1987). Ayala v. Boston Hous. Authy., 404 Mass. 689, 703-704 (1989). The first step in deciding whether § 10(6) is applicable is to decide whether the defendant had any discretion as to what course of conduct to follow. Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). If a statute, regulation, or established agency practice prescribes a course of action, the defendant’s conduct is not protected by the discretionary function exception. Ld. at 141.

Here, the plaintiff claims that the discretionary function exception is inapplicable, because G. L. c. 121B, § 32, as appearing in St. 1971, c. 1114, § 1, obligates the defendant to provide “decent, safe and sanitary dwelling accommodations.” General Laws c. 121B, however, contains no prescribed security measures for a public housing authority to follow. Nor do any regulations prescribe such measures. The plaintiff in this case asserts that a provision of the State Sanitary Code, 105 Code Mass. Regs. § 410.480(C) (1986),2 [39]*39prescribes the security measures that the defendant should have taken to secure the front door. We conclude, however, that this regulation does not apply to the defendant. The regulation in question is part of the State Sanitary Code, which was enacted under the authority of G. L. c. Ill, §§ 3 and 127A. Section 127A, as inserted by St. 1965, c. 898, § 3, specifically provides that “[njothing contained in the code shall be in conflict with any general or special law.” The provisions of 105 Code Mass. Regs. § 410.480(C) track almost verbatim the language of G. L. c. 143, § 3R, and refer expressly to this statute. However, G. L. c. 143, § 3R, expressly exempts public housing authorities from its provisions. Consequently, the application of 105 Code Mass. Regs. § 410.480(C) here would conflict with the provisions of G. L. c. 143, § 3R, and the regulation therefore does not apply to the defendant.

Having determined that there is no statute or regulation setting forth what security measures the defendant should follow, we conclude that the Legislature implicitly left this decision to the discretion and judgment of each public housing authority in the operation and management of its housing projects. See G. L. c. 121B, § 32. Accordingly, our next step is to determine whether the discretion that the defendant has is the kind afforded immunity from liability under § 10(6). Harry Stoller & Co. v. Lowell, 412 Mass, at 141. In deciding this question, we look to the criteria set forth in Whitney v. Worcester, 373 Mass. 208, 219-220 (1977). These considerations are (1) whether the injury-producing conduct was an integral part of governmental policy making or planning; (2) whether the imposition of tort liability would jeopardize the quality and efficiency of the governmental process; (3) whether a judge or jury could review the conduct in question without usurping the power and responsibility of the legisla[40]*40tive or executive branches; and (4) whether there is an alternate remedy available to the injured individual other than an action for damages.

We conclude that the determination of what security measures to take to protect persons on its premises from criminal activity is an integral part of the defendant’s policy making and planning process. In this case, the defendant had established a department of public safety and a security force headed by a director of public safety, to whom was entrusted the responsibility for the design and implementation of all security measures for the premises. Given the wide range of choices the director could make to provide security to the premises and the necessary constraints imposed on those choices by budgetary considerations, the particular conduct which the plaintiff claims caused the injury is characterized by a “high degree of discretion and judgment involved in weighing [security] alternatives and making choices with respect to public policy and planning.” Whitney v. Worcester, 373 Mass, at 218.

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Cite This Page — Counsel Stack

Bluebook (online)
606 N.E.2d 916, 34 Mass. App. Ct. 36, 1993 Mass. App. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-boston-housing-authority-massappct-1993.