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Hogan v. Town of Sandwich

United States District Court, D. Massachusetts

June 30, 2014

THOMAS R. HOGAN, Plaintiff,


JUDITH GAIL DEIN, Magistrate Judge.


The Plaintiff, Thomas R. Hogan, ("Hogan"), resides in the Town of Sandwich. He has brought suit against the Town under the Massachusetts Torts Claims Act ("MTCA"), Mass. Gen. Laws ch. 258, alleging that the Town is liable for injuries he sustained in an altercation with an off-duty police officer, the defendant Dennis Byrne ("Byrne"). For the reasons detailed herein, I find that the Town is immune from this claim.

The undisputed facts establish that Hogan had been having a lengthy on-again, off-again, intimate relationship with Byrne's wife, as a result of which there was much animosity between the two men. On the evening of June 17, 2009, Mrs. Byrne was at Hogan's house, when her husband came to talk to her. After turning Byrne away from the door several times, Hogan eventually let Byrne in, without notifying any Town personnel. Byrne, who had completed work for the day and was not in uniform, had a heated verbal altercation with his wife. When he was leaving, he allegedly assaulted Hogan. Hogan contends that the Town is liable to him for the injuries he sustained, and that the Town failed to fulfill specific assurances it had made to keep Byrne away from Hogan.

The matter is presently before the court on "Defendant Town of Sandwich's Motion for Summary Judgment." (Docket No. 32). Therein, the Town contends that the claim against it should be dismissed because Hogan's presentment letter failed to adequately advise the Town of his claims, as required by Mass. Gen. Laws ch. 258, § 4, and because the Town is entitled to immunity pursuant to Mass. Gen. Laws ch. 258, § 10.

This court will assume, arguendo , that the presentment letter was sufficient. Nevertheless, the motion for summary judgment will be allowed. First, the statements attributed by Hogan to Town officials promising to keep Byrne away from Hogan are not sufficiently specific to constitute enforceable assurances under the MTCA. Second, even if they were, in light of Hogan's decision to allow Byrne into his home, without notifying any Town personnel, no jury could reasonably conclude that Hogan's injuries "resulted in part from reliance upon those assurances" as required by Mass. Gen. Laws ch. 258, § 10(j)(1). Therefore, the Town is immune from suit under the MTCA. The motion for summary judgment (Docket No. 32) is ALLOWED.[1]


Hogan is a resident of the Town of Sandwich. (DF ¶ 1). Byrne is also a Sandwich resident, and at the relevant time was a police officer in the Town. (DF ¶ 2). From 2000 to 2009, Hogan had an on and off intimate relationship with Byrne's wife, Dana Byrne ("Dana"). (DF ¶ 3). As a result, there were a number of disputes between the two men, including instances where Byrne left threatening phone messages for Hogan and confronted Hogan in a threatening manner. (See, e.g., DF ¶¶ 23, 32, 35, 43). It is not necessary to go into details of all of their interactions. Suffice it to say Byrne objected to the relationship between Hogan and his wife. Nevertheless, the relationship, and the marriage, continued, and the tension this caused carried over into Byrne's performance of his job. (E.g. DF ¶ 55). While neither Hogan nor Dana ever pressed charges against Byrne, or sought to obtain any restraining orders, Hogan and Dana did complain to Byrne's superiors about him. (E.g., DF ¶¶ 37, 44, 48, 50-52).

Sandwich Police Chief Miller first heard about the issues between Hogan, Byrne and Dana in or about 2002. (DF ¶ 22; PR ¶ 22). At various times thereafter Byrne was advised by Chief Miller and others to, among other things, get counseling, get a divorce, and stay away from Hogan. (E.g., DF ¶¶ 26, 31, 34). In addition, police personnel had various conversations with Hogan. The precise words used, context of the communications and meaning of the statements made are in dispute. (See, e.g., PF ¶¶ 65, 66; DR ¶¶ 65, 66).[3] Hogan describes the evidence as follows:

In the present case, the evidence establishes that the Plaintiff met with Chief Michael Miller on at least two occasions, and spoke to him on the telephone several times, about incidents involving Dennis Byrne. During these conversations, Chief Miller specifically stated to the Plaintiff that he would (1) order Byrne to leave his gun at the station when he was not on duty; (2) assign Byrne to a sector of town away from the Plaintiff's residence and business; (3) order Byrne not to respond to any calls involving the Plaintiff; and (4) ensure that Byrne stays away from and has no contact with the Plaintiff.* These were "standing orders" which remained in effect between 2003 and the assault in 2009. In fact, the no contact order was reiterated, in writing, as late as February 5, 2009, just four months before the assault.
*[fn 3] Chief Miller also told the Plaintiff at one point that he would take Byrne off the street, assign him to desk duty, and order him to undergo a psychological evaluation, but there is no dispute that these orders were no longer in effect at the time of the assault.

(Pl. Mem. (Docket No. 38) at 13). These are the "assurances" on which Hogan relies in this litigation. (Id.).

According to the plaintiff, on June 17, 2009, Dana arrived at Hogan's house at approximately 8:00 p.m. to have drinks. (DF ¶ 4). Byrne arrived at approximately 9:00 p.m. in his cruiser. (DF ¶ 7). Speaking through the screen door, Byrne told Hogan he wanted to speak with Dana. (Id.). When she wouldn't speak with him, Byrne left. (Id.). Hogan did not notify Chief Miller or anyone else about this visit, despite having been previously told by Chief Miller to do so in the event he saw Byrne. (DF ¶ 41).

Byrne returned in his cruiser about an hour later, and again asked, through the screen door, to speak to Dana. (DF ¶ 8). Hogan told Byrne to leave, and Byrne left. (DF ¶ 9). Again, Hogan did not notify Chief Miller or anyone from the Town about this visit. ...

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