Recently, the Mass Appeals Court decided on a motion of summary judgement related to a high speed pursuit. In ROBERTA K. HARRISON vs. TOWN OF MATTAPOISETT & others. 78 Mass. App. Ct. 367 (2010) a 3rd party was struck by the defendant and it resulted in suit being filed against the towns that participated in the chase as well.
The court in deciding on the motion stated “In a civil action against three towns and the Department of State Police (department), alleging that the towns’ police officers and a State police officer were negligent in their participation in a high-speed chase that resulted in the plaintiff’s vehicle being struck by the vehicle driven by the suspect that the officers were chasing, summary judgment was properly granted in favor of one town and the department, where the evidence was insufficient to establish that officers from that town and the department participated in the chase, and the town and the department were therefore immune from suit under G. L. c. 258, § 10(j) [370-371]; however, given the circumstances of the case, the affirmative acts of officers from the other towns in commencing a pursuit and engaging in a high-speed chase materially contributed to creating the specific condition or situation that resulted in the plaintiff’s harm, and therefore, those towns were not immune from suit [371-372]; further, there existed genuine issues of material fact whether the officers from those towns were negligent in their balancing of the relevant policy factors in deciding to pursue the suspect, such that the accident became reasonably foreseeable as a result of their conduct, and whether the suspect’s conduct broke the chain of causation [372-375].
Discussion. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as matter of law. Mass.R.Civ.P. 56, 365 Mass. 824 (1974).” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law.” Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534 , 536 (1992), citing Community Natl. Bank v. Dawes, 369 Mass. 550 , 556 (1976).
“The Massachusetts Tort Claims Act, G. L. c. 258 . . . , allows those with valid claims in tort to recover against governmental entities.” McCarthy v. Waltham, 76 Mass. App. Ct. 554 , 561 (2010), quoting from Lawrence v. Cambridge, 422 Mass. 406 , 408 (1996). General Laws c. 258, § 10(j), the public duty rule, establishes, however, that the Commonwealth shall, with certain exceptions not relevant here, 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” (emphasis added). See Jacome v. Commonwealth, 56 Mass. App. Ct. 486 , 489 (2002). “The reference in § 10(j) to an ‘original cause’ means ‘an affirmative act (not a failure to act) by a public employer [or public employee] that creates the “condition or situation” that results in harm inflicted by a third party . . . .’ ” Ibid., quoting from Kent v. Commonwealth, 437 Mass. 312 , 318 (2002). “In order for a public employer’s affirmative act to be the ‘original cause’ of a ‘condition or situation’ that results in harmful consequences to another from ‘the violent or tortious conduct of a third person,’ . . . [such] act must have materially contributed to creating [a] specific ‘condition or situation’ that resulted in the harm.” Kent v. Commonwealth, supra at 319. Therefore, we do not consider whether the acts of the public employees were negligent at this point in our analysis, but rather we examine the summary judgment record to determine whether their acts “materially contributed to creating the specific ‘condition or situation’ that resulted in the harm” to the plaintiff by Lessa. Jacome v. Commonwealth, supra at 489, quoting from Kent v. Commonwealth, supra at 319.
We begin our analysis by affirming the allowance of the motions of summary judgment as to the town of Acushnet and the department because there was insufficient evidence in the summary judgment record to establish that those entities participated in the chase. For that reason, their actions could not have been a cause of the accident, and they are immune under G. L. c. 258, § 10(j).
The acts of the Mattapoisett and Fairhaven officers, on the other hand, in commencing a pursuit of Lessa and engaging in a high-speed chase, stand on different ground. Early in the pursuit, Lessa nearly hit a police officer working a detail. He drove onto a major highway at high speed. The highway had a “lot” of traffic. Motorists had to swerve to get out of his way. Twice he changed directions by driving over the median strip. Observing his reckless driving and flight from police, the officers chose to continue pursuing him at high speed. [Note 4] In these circumstances, the affirmative acts of the Mattapoisett and Fairhaven officers in continuing the high-speed chase materially contributed to creating the specific condition or situation (i.e., Lessa’s flight from the police) that resulted in the plaintiff’s harm. The fact that the officers stopped the chase before Lessa drove down the ramp does not change the result. The stopping of the pursuit took place only seconds before the crash. There is nothing in the record that establishes that Lessa knew or should have known that the chase had ended. Therefore, in these circumstances, we hold, as a matter of law, that those towns are not immune from the plaintiff’s claim. [Note 5]
Our determination as to Mattapoisett’s and Fairhaven’s immunity, however, does not end our inquiry. We must now consider if there was sufficient evidence in the summary judgment record to establish a genuine issue of material fact as to those towns’ employees’ negligence. “To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage.” Jupin v. Kask, 447 Mass. 141 , 146 (2006). The defendants do not argue that they owed no duty to the plaintiff. Rather, they claim that the actions of the Fairhaven and Mattapoisett police were not negligent and further, if they were negligent, that negligence was not the actual or proximate cause of the plaintiff’s injuries as a matter of law and that Lessa’s conduct was an intervening, superseding cause.
Whether analyzed from the standpoint of the officers’ duty of care, or from the standpoint of whether the claimed breach thereof proximately caused the plaintiff’s injury, the requisite foreseeability is the critical factor. See Whittaker v. Saraceno, 418 Mass. 196 , 198-199 (1994) (“The word ‘foreseeable’ has been used to define both the limits of a duty of care and the limits of proximate cause. . . . As a practical matter, in deciding the foreseeability question, it seems not important whether one defines a duty as limited to guarding against reasonably foreseeable risks of harm or whether one defines the necessary causal connection between a breach of duty and some harm as one in which the harm was a reasonably foreseeable consequence of the breach of a duty”). “If a series of events occur between the negligent conduct and the ultimate harm, the court must determine whether those intervening events have broken the chain of factual causation or, if not, have otherwise extinguished the element of proximate cause and become a superseding cause of the harm.” Kent v. Commonwealth, 437 Mass. at 321. Generally, negligence claims are not resolved through summary judgment because questions of reasonable care and causation usually require fact determinations by a jury. Mullins v. Pine Manor College, 389 Mass. 47 , 56-58 (1983).
Viewing the summary judgment record in the light most favorable to the plaintiff, see, e.g., New Habitat, Inc. v. Tax Collector of Cambridge, 451 Mass. 729 , 731 (2008), we hold that there exist genuine issues of material fact as to whether the officers’ conduct in continuing the chase foreseeably resulted in Lessa colliding with the plaintiff’s vehicle.
The need for the police to apprehend individuals who break the law is of vital importance in order to maintain a lawful society. Counterbalancing that point is the obvious: high speed vehicle pursuits are extremely dangerous. One authority has stated that in 2003, there were an estimated 35,000 police pursuits across the United States, and that of those, nearly forty percent or 14,000, resulted in crashes. Of that number, there were 350 pursuit-related fatalities. One-third of those killed were innocent bystanders. Recognizing the danger present in high-speed pursuits, many cities and towns, including Mattapoisett, have extensive guidelines relating to high speed pursuit. The policies are similar. They call for the pursuing officers to balance the risk of continued pursuit against the risk the suspect presents to the community. If a suspect poses a more serious risk to the public because of flagrant and reckless driving, the officer may continue the pursuit for a longer period to minimize the danger to the public. The officer must discontinue the pursuit when it becomes apparent that the pursuit itself presents a more grave danger than letting the suspect go.
The officers involved in the chase in question here were familiar with the policy. Lessa was first observed operating his vehicle normally, not engaged in any criminal activity. The officers knew his identity and where he was likely going. When Lessa fled in a reckless manner, however, they chose to pursue, calling it off only after Lessa left the highway and headed into an urban area. The accident occurred in a matter of seconds after the police called off the chase. Under these circumstances, we hold that there are genuine issues of material fact whether the police were negligent in their balancing of the relevant policy factors in deciding to pursue Lessa, such that the accident became reasonably foreseeable as a result of their conduct. It is likewise an open question whether Lessa’s conduct broke the chain of causation. These are matters for the jury. In so concluding, we emphasize that “[t]he question whether the risk of injury was foreseeable is almost always one of fact.” Moose v. Massachusetts Inst. of Technology, 43 Mass. App. Ct. 420 , 425 (1997).
The grant of summary judgment in favor of Acushnet and the department is affirmed. That part of the judgment granting summary judgment in favor of Mattapoisett and Fairhaven is vacated, and the case is remanded for further proceedings consistent with this opinion.
The case illustrates a few good points. First, the evolution of a high speed pursuit. Second the so called Mass torts claims act and how it operates, and third the issue of summary judgment. The court in this case granted it for some but denied it for others. Put simply, a summary judgment means there are no material facts in dispute that give rise to a triable issue. If there are material facts in dispute (IE how much the officers pursuit contributed to the eventual accident ect) then the case will be set aside for the trial as is the case here. Just to point out, that the court here is not saying the officers did anything wrong, just that a jury may find that they did when it goes to trial.
Attorney Ronald A. Sellon