Sovereign immunity and affirmative duty were at issue in a state tort claims act case of tragic facts decided 3-2 upon rehearing in the Massachusetts Appeals Court on April 12. Pedagogically, the case well illustrates the famous interchangeability of duty and causation, my favorite articulation of which appeared in then-Circuit Judge Scalia’s footnote 4 in Romero v. NRA, 749 F.2d 77, ¶ 10 (D.C. Cir. 1984). On the nuts and bolts, the case well reiterates and demonstrates the strict application of the no-affirmative-duty rule under the state tort claims act, even in a famously progressive jurisdiction.
Plaintiff Jane J. alleged rape by a male patient while they both occupied the recreational TV room of a locked unit of the Tewksbury State Hospital. The court engaged solely with the question whether failure to segregate male and female patients in the rec room legally caused the rape under the state tort claims act. Holding no cause, the court, per Justice Diana Maldonado, affirmed summary judgment for the Commonwealth.
Here illustrated in 1907, the Tewksbury State Hospital is on the National Register of Historic Places.
The classic American case of (no) affirmative state duty for law students studying due process in constitutional law is DeShaney v. Winnebago County, 489 U.S. 189 (1989). The U.S. Supreme Court rejected liability for state failure to intervene and prevent fatal child abuse. The case essentially restated the peculiarly American “no duty” doctrine of common law for the context of “constitutional tort.” Thus the rule of no affirmative duty manifests across the contexts of common law, due process, and sovereign immunity. The doctrine of federal law is replicated in the states, though may be varied by statutory interpretation when claims are controlled by state waivers of sovereign immunity in tort cases. In this Massachusetts case, statutory interpretation of the state claims act molded the question into one of causation—though the DeShaney question nonetheless constitutes the heart of the inquiry.
Arguments focused on state claims act Mass. Gen. L. ch. 258, § 10(j). In relevant part (a list of exceptions omitted here), the section maintains sovereign immunity against “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.” Thus the problem of affirmative duty is phrased in terms of “original cause,” and the appeals court set out to determine whether non-segregation could be said to have been an “original cause” of the rape.
In the court’s interpretation, original cause is “strict,” requiring “‘an affirmative act [not a failure to act] … that creates the “condition or situation” that results in harm’” (quoting precedent; court’s added text; my italics). The court recounted a series of cases rejecting recovery under § 10(j), including one case that held state lifeguards having negligently abandoned their posts was not the original cause of a drowning. That result pertained even though the argument for an intact causal chain was stronger for lack of an intentional and criminal intervening actor. Jane J.’s claim could not survive such strict examination.
Justice Gregory Massing, joined by Justice Peter Rubin, filed a vigorous dissent predicated on special relationship duty arising from involuntary commitment, or alternatively, on the merits, arguing in the latter vein that the “hospital ‘materially contributed to creating,’ and did not merely fail to prevent, the condition that resulted in the plaintiff’s being attacked in the common room.”
The case is Jane J. v. Commonwealth, No. 15-P-340 (Mass. App. Ct. Apr. 12, 2017) (Justia).