The Massachusetts Appeals Court on 4/9/2010, found the City of Waltham not responsible for a post custody death in RICHARD J. MCCARTHY, administrator,vs. CITY OF WALTHAM and a companion case. 76 Mass.App.Ct. 554 (2010)
The city of Waltham (city) appeals from a Superior Court judgment awarding the plaintiff $100,000 under the provisions of the Massachusetts Tort Claims Act (MTCA), G. L. c. 258, § 2, and under G. L. c. 229, § 2, [FN3] for the wrongful death of his son, James McCarthy (James). James had been held in protective custody by city police, and he committed suicide shortly after they released him. During trial, the plaintiff claimed that the police were negligent for failing to call James’s family members prior to releasing him. The plaintiff contends that the police made explicit promises to him and to James’s aunt, Betty Ann Marino (Marino), that someone from the police department would notify Marino before releasing James so that she could be present to take him into her care. Instead, the police simply released James without making the telephone call. The plaintiff does not contend that the police were negligent in placing James in custody, in failing to adequately protect James while in custody, or in failing to keep him in custody.
On appeal, the city generally contends that it was entitled to sovereign immunity pursuant to G. L. c. 258, § 10, and the judge wrongly denied these protections. The city claims that the trial judge wrongly denied its motions for directed verdict and *556 judgment not withstanding the verdict (JNOV) and that the judge erred in not instructing the jury in accordance with its requested instructions. [FN4] We reverse.
Discussion. The city’s general argument on appeal focuses on what it contends was the trial judge’s misapplication of the exception to immunity contained in G. L. c. 258, § 10(j)(1). In pertinent part, the provisions of § 10(j) immunize the city from
“any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation . . . which is not originally caused by the public employer or any other person acting on behalf of the public employer.”
By virtue of § 10(j)(1), however, that immunity is inapplicable to
“any claim based upon explicit and specific assurances of safety or assistance . . . made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances.”*560
The city contends that the trial judge, like the motion judge, [FN12] focused solely on the exception contained in § 10(j)(1), in the process failing to give appropriate weight to the immunity contained in § 10(j) itself, and to the other immunities § 10 contains.
a. Directed verdict. “The denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict both present questions of law reviewed under the same standard used by the trial judge. Review of these motions requires us to construe the evidence in the light most favorable to the nonmoving party and disregard that favorable to the moving party. In other words, the standard to be employed is whether the evidence, construed against the moving party, justifies a verdict against him. Our duty . . . is to evaluate whether anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be made in favor of the nonmovant.” (Internal quotations and citations omitted.) O’Brien v. Pearson, 449 Mass. 377, 383 (2007).
The city’s motion for a directed verdict should have been allowed because the evidence that the police made “explicit and specific assurances of safety or assistance” to James’s family members, when viewed in the light most favorable to the plaintiff, Michnik-Zilberman v. Gordon’s Liquor, Inc., 390 Mass. 6, 7 n.1 (1983), was insufficient, as matter of law, to overcome the immunity afforded the city under G. L. c. 258, § 10(j). By focusing on the manner in which James was released, the judge elevated the exception to sovereign immunity so that it became, in effect, an independent theory trumping all the immunity provisions of the MTCA under which the city sought protection. [FN13] *561 In Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 493 (2002), we stated, “[T]he Commonwealth did not originally cause the condition or situation which brought about the harm, and thus was immune from suit for the loss. Hence claims arising from circumstances intimately related to that condition or situation, and the resulting harm, are also barred. The alternative would be to permit imaginative pleading and fractionalizing of the claims that would undo the immunity that § 10(j) preserves.”
“The Massachusetts Tort Claims Act, G. L. c. 258 . . . , allows those with valid claims in tort to recover against governmental entities.” Lawrence v. Cambridge, 422 Mass. at 408. [FN14] General Laws c. 258, § 10(j), “establishes that the Commonwealth shall, with certain exceptions, be immune with respect to ‘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.’ ” Jacome v. Commonwealth, supra at 489. The plaintiff does not suggest that the city’s actions were an original cause of harm; otherwise, he would not have needed to rely on the exception to immunity that § (10)(j)(1) provides. Furthermore, there can be no serious question that the original cause of harm in James’s taking of his own life was his suicidal frame of mind; any other cause for which the city might be perceived as a responsible actor would likely have been too remote or too passive. See Brum v. Dartmouth, 428 Mass. 684, 695 (1999) (in light of intention of § 10(j) “to provide some substantial measure of immunity from tort liability to government employers . . . we must not adopt an interpretation of the statute that construes the words ‘originally caused’ so broadly as to encompass the remotest causation and preclude immunity in nearly all circumstances”).
“The exception to immunity contained in G. L. c. 258, § 10(j)(1), . . . requires that ‘explicit’ and ‘specific’ assurances *562 of safety, beyond general representations, be made by an officer. The phrase ‘explicit and specific assurances’ requires ‘a spoken or written assurance, not one implied from the conduct of the parties or the situation,’ and the ‘terms of the assurance must be definite, fixed, and free from ambiguity.’ ” Ariel v. Kingston, 69 Mass. App. Ct. 290, 293 (2007), quoting from Lawrence v. Cambridge, 422 Mass. at 410. The court in Lawrence also noted the definitions of ” ‘[e]xplicit’ . . . as ‘characterized by full clear expression: being without vagueness or ambiguity: leaving nothing implied,’ and ‘[s]pecific’ . . . as ‘characterized by precise formulation or accurate restriction.’ ” 422 Mass. at 410 n.5, quoting from Webster’s Third New Intl. Dictionary 801, 2187 (1993).
There was insufficient evidence that the police made specific and explicit assurances in the series of telephone calls between James’s family and the police. Specifically, the record does not show that any 911 dispatcher ever told the plaintiff or James’s aunt that the police would not release James until someone got to the station. The plaintiff principally relies on the conversation that occurred at 5:32 A.M., the first time Marino called the police and asked when James would be released. The dispatcher had said, “I could have the person who’s — releases him have them give you a call to tell you that he’s going to be released, and then, like, maybe ten minutes before he gets released so that you can be on your way down here.” This is the closest to a promise of assurance in any of the family’s conversations with the dispatchers, but insufficient in our view, as we conclude, as matter of law, that this does not constitute an assurance or promise of safety or assistance.
Further, at 8:15 A.M., forty-five minutes before James was released, Marino called the police station again and spoke with a different dispatcher who stated, “[W]hen he wakes up, . . . and we’re ready to release him, I can have him call you then.” Whatever assurances Marino thought the dispatcher gave from the 5:32 A.M. conversation were dissipated by the 8:15 A.M. conversation. Cf. Lawrence v. Cambridge, supra at 412.
This latter statement did not contain a promise to Marino that the police would call her before James was released, and Marino’s reply, “I hope he will [call me],” indicates to us that *563 Marino herself did not think the police had promised her they would call before releasing James. “While § 10(j)(1) requires ‘that the injury result in part from [the promisee’s] reliance on [the] assurance,’ such reliance cannot supply the terms that cause the assurance to suffer from a lack of specificity at the time it was made.” Id. at 411. It is unreasonable to interpret this 8:15 A.M. conversation as an explicit or specific promise or assurance of safety or assistance; additionally, this last conversation at 8:15 A.M. could be interpreted as a withdrawal of previous assurances. “We note also that if the police had withdrawn the promise, no further reliance on it would be warranted and by the terms of the statute the city’s exposure to liability would cease.” Id. at 412.
Thus, in the light most favorable to the plaintiff, the trial judge erred in denying the city’s motions for directed verdict and JNOV, since a jury could not rationally conclude, without engaging in speculation or conjecture, that there was sufficient evidence of explicit and specific assurance of safety or assistance in order to overcome the protection that the immunity of § 10(j) afforded the city “with respect to any claim for a loss not originally caused by the public employer.” Jacome v. Commonwealth, 56 Mass. App. Ct. at 489.”
The case is a good illustration of both the Mass Torts Claims Act and its scope, as well as what is, and what is not a viable claim.
Attorney Ronald A. Sellon