Commonwealth wins two in tort: one, bad presentment; two, no duty to juvenile assaulted in contractor custody

The Commonwealth prevailed in two tort suits under the Massachusetts Tort Claims Act at the end of February.  One case, a slip-and-fall, was decided by the Massachusetts Supreme Judicial Court on the procedural ground of untimely presentment.  The other case, involving a physical assault on a juvenile with tragic consequences, was decided by the Massachusetts Appeals Court on the merits of attenuated duty and causation in civil rights liability.

Leicester Town Hall, 2006.
Photo by Pvmoutside CC BY-SA 3.0.

In the first case, "plaintiff, Katherine Drake, slipped and fell at Leicester High School while picking up her grandson during school hours. She suffered multiple injuries, including a fractured knee and wrist."  Drake mailed her presentment (notice, or demand) letter to the Town of Leicester precisely on the two-year anniversary of the accident.  The Massachusetts Tort Claims Act requires presentment within two years, and the Commonwealth moved to dismiss on grounds of untimeliness.

The Supreme Judicial Court declined to construe the statute liberally.  "Drake does not contend that her mailed letter could have arrived on that same day, nor does she contest that the office of the proper executive officer received the presentment letter ... a full two years and three days after she was injured," the court observed.  "Given our conclusion that presentment occurs upon delivery to the office of the proper executive officer," the court affirmed dismissal.

Long Island in Boston Harbor, 2008.  Photo by Doc Searles CC BY-SA 2.0.

The second case described horrific injury inflicted on a juvenile in state custody.  A "youthful offender," Williams was in Casa Isla, "a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with [the Department of Youth Services (DYS)] to operate youth residential programs." (There were other problems at Casa Isla, e.g., MassLive, WBUR.)  During a flag football game, Williams was randomly attacked by a 17-year-old resident of another VOA-operated treatment program on the island, Project Rebound, who "said he wanted to get 'kicked out.'"  After the attack, Williams experienced worsening headaches and bodily pain, but initially was given only ibuprofen.  After later emergency medical intervention, Williams was diagnosed as having "suffered ... a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care."

The last bridge to Long Island was demolished in 2015.
Photo by Eric Kilby CC BY-SA 2.0 (2017).

Upon suit under the Massachusetts Tort Claims Act, the courts rejected state liability upon various theories of DYS responsibility for the conduct of contractor VOA.  DYS and the Commonwealth had no direct involvement with the management of Casa Isla or Project Rebound, so had not even the predicate knowledge that might support liability on a civil rights theory.  Accordingly, the Appeals Court affirmed in rejecting theories of Eighth Amendment, supervisory, and vicarious liability.  Similarly, absent any affirmative act by state officials, the Commonwealth, conversely, remained within the protection of state sovereign immunity.

Associate Justice William J. Meade

Drake's case reinforces the importance of legal educators continuing to teach the 19th-century "mailbox rule," however much Generations Y and Z might not intuitively apprehend its logic.  Williams's case, however sorrowful the outcome, reinforces basic (no affirmative) duty doctrine in "constitutional tort."  As a policy matter, Williams's case also might raise questions about the wisdom of outsourcing juvenile custody without providing for public accountability.  Oh, and let's make a new rule: Anytime you're going to imprison people on a harbor island with a grisly history, that raises a red flag.

The cases are Drake v. Town of Leicester, No. SJC-12781 (Mass. Feb. 28, 2020) (Court Listener, Suffolk Law, Mass. Lawyers Weekly), and Baptiste v. Executive Office of Health and Human Services, No. 18-P-1353 (Mass. App. Ct. Feb. 28, 2020) (Justia).  Justice David A. Lowy wrote for a unanimous court in Drake.  Justice Meade wrote for a unanimous panel with Shin and Singh, JJ., in Baptiste.

Mass. tort opinion journeys down coal hole of history

A narrow decision from the Massachusetts Supreme Judicial Court (SJC) today is important for keeping alive plaintiff personal injury claims based on road defect injuries, especially amid the trending privatization of public services.  The opinion stops off in Boston history en route to its conclusion.  The case is Meyer v. Veolia Energy North America, No. SJC-12606 (Mass. May 8, 2019).

Reversing summary judgment for defendant Veolia Energy North America, the SJC concluded that the statutory requirement of notice within 30 days to a potential defendant alleged to be responsible for road conditions giving rise to injury applies to the governmental defendants, but not to private-sector defendants.

Sudbury Street, at Court Street, Boston, 1912. City of Boston Archives.

Plaintiff Meyer was injured when on his bicycle, on Sudbury Street in Boston, he "struck a circular utility cover one foot or less in diameter that was misaligned with the road surface."  He gave notice to the City of Boston of a potential tort claim within 30 days.  But the city denied his claim on day 31, referring Meyer to private-sector Veolia as the party responsible for the utility cover.  Upon purportedly late notice to Veolia under the statute, the lower court awarded summary judgment to the energy company.  The SJC reversed, holding the statute inapplicable.

Most of the 32-page decision concerns statutory interpretation and is worth a read if that's your jam.  A couple of points stood out for me, though, as a general observer of law American-style.  The relevant Massachusetts statutes are found in General Laws chapter 84.  The SJC observed that section 1 "reflects its origins in the preindustrial era."  Indeed, the section states, "Highways and town ways, including railroad crossings ... shall be kept in repair at the expense of the town ... so that they may be reasonably safe and convenient for travelers, with their horses, teams, vehicles and carriages at all seasons."

The SJC traced interpretation of the relevant statutes to an 1883 opinion by Justice Holmes.  Yes, that Justice Holmes, the Honorable Oliver Wendell Holmes, Jr., when he served on the Massachusetts high court.  Explained today's SJC, Justice Holmes for the Court, in in Fisher v. Cushing, 134 Mass. 374 (1883) (electronic page 376 of this free ebook), had

interpreted the road defect and notice statutes, and the meaning of the reference to "persons," in the course of reviewing the statutes' legislative and legal history.  As a noted scholar of legal history and the author of The Common Law (1881), Justice Holmes brought special knowledge and expertise to this interpretation. The defendant in Fisher was sued for negligently maintaining a coal hole on a Boston sidewalk.

Held the Court in Fisher, "The whole scope of that [statutory notice] scheme shows that it is directed to the general public duty [to keep the way in repair], and that it has no reference to the common
law liability for a nuisance."  Explained today's SJC,

The court therefore held that the defendants could be sued in tort for the nuisance they created with their coal hole.

The court also went on to explain the meaning of "persons": "The mention of 'persons' in the statute, alongside of counties and towns obliged to repair, is easily explained. The outline of our scheme was of ancient date and English origin. In England, while parishes were generally bound to repair highways and bridges, a person might be, ratione tenurae, or otherwise .... [W]e cannot say, and probably the Legislature of 1786 could not have said, that there were no cases in the Commonwealth where persons other than counties or towns were bound to keep highways in repair.... Even if there were not, it was a natural precaution to use the words.

Coal hole at Wakefield Town Hall in Great Britain, 2018.
(Stephen Craven CC BY-SA-2.0.)

Footnotes elucidated, "A coal hole was an underground vault covered by a hatch with a cover where coal used for heating purposes was kept for easy access" (citing S.P. Adams, Home Fires: How Americans Kept Warm in the Nineteenth Century 105-106 (2014)).  And "'[r]atione tenurae' is a Latin phrase meaning by reason of tenure," as in being an occupier of land (citing Black's Law Dictionary 1454 (10th ed. 2014)).

I'm assuming that when the Court wrote that the late, great Justice Holmes "brought special knowledge and expertise" to the case, that assertion was strictly a function of the preceding clause, "as a noted scholar of legal history and [common law]," and not, as my mind hastened to wonder, because Justice Holmes had some particular tenura with coal holes.