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Jane J. v. Commonwealth

Appeals Court of Massachusetts, Suffolk

April 12, 2017

JANE J.[1]

          Heard: April 26, 2016.

         Civil action commenced in the Superior Court Department on December 5, 2011.

         The case was heard by Elizabeth M. Fahey, J., on a motion for summary judgment.

          John E. Zuccaro, III, for the plaintiff.

          Anne M. McLaughlin, Assistant Attorney General, for the Commonwealth.

          Present: Kafker, C.J., Cypher, Rubin, Maldonado, & Massing, JJ. [2]

          MALDONADO, J.

         The plaintiff filed a complaint against the Commonwealth under the Massachusetts Tort Claims Act, G. L. c. 258 (MTCA), alleging that, while she was committed to a locked unit of Tewksbury State Hospital, a similarly committed male patient raped her while she was watching television in a recreation room that is shared by both the male and female patients of that unit. The only issue before us is whether the hospital's failure to segregate by gender its patients' use of a common recreation room constitutes an "original cause" of the rape. See G. L. c. 258, § 10 (j) .[3] Concluding that it does not, we affirm the summary judgment entered in favor of the Commonwealth.


         Tewksbury State Hospital evaluates and treats patients with varying degrees of mental illness. The hospital's Hathorne Unit is a locked unit that houses, on separate corridors, both male and female patients.[5] Male patients are not permitted access onto the female corridor, and female patients are not permitted access onto the male corridor, except that patients of both genders enjoy nearly free access to a common recreation room. The recreation room contains a ping-pong table, some other games, and a television set; it also leads to a common sunroom which offers a second television set for patient viewing. The common rooms are not staffed or equipped with video surveillance, but hospital staff conduct safety checks in the rooms every thirty minutes.

         In March, 2009, a District Court judge committed the plaintiff, who had been charged with an assault and battery, to the hospital for a competency evaluation under G. L. c. 123, § 15(b) .[6] She was assigned to the Hathorne Unit. The plaintiff alleges that about three weeks into her commitment, she was watching television in the sunroom when a male patient entered the sunroom and forcibly raped her.[7]

         Like the plaintiff, the male patient was also hospitalized on a court-ordered mental health evaluation in connection with an open criminal charge.[8] While the male patient had a criminal history that included convictions for assaultive behavior, a Department of Mental Health background check revealed that he was not a registered sex offender and, further, that his criminal history "did not suggest that he posed any risk of committing a sexual assault or other violent sex offending behavior."[9]

         In December, 2011, the plaintiff filed this tort action alleging that the Commonwealth's negligence caused the sexual assault, the unwanted pregnancy, and the subsequent miscarriage. The Commonwealth moved for summary judgment on the ground that it was immune from suit under § 10 (j) of the MTCA. A judge of the Superior Court allowed the motion and entered summary judgment for the Commonwealth. This appeal followed.


         Summary judgment is appropriate where "all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "In reviewing a grant of summary judgment, 'we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party.'" Pugsley v. Police Dept. of Boston, 472 Mass. 367, 370-371 (2015), quoting from Bulwer v. Mount Auburn Hosp., 86 Mass.App.Ct. 316, 318 (2014), S.C., 473 Mass. 672 (2016). Here, where the Commonwealth is immune from suit for "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, " the defendant bore the burden of demonstrating the absence of a triable issue regarding whether the plaintiff's rape and resulting pregnancy were "originally caused by the public employer" (emphasis supplied). G. L. c. 258, § 10 (j). Alternatively, it bore the burden of showing that proof that the public employer "committed an affirmative act that was the original cause of the injury" would not be forthcoming. Audette v. Commonwealth, 63 Mass.App.Ct. 727, 732 (2005). See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991) ("[A] party who moves for summary judgment has the burden of initially showing that there is an absence of evidence to support the case of the nonmoving party shouldering the burden of proof at trial").

         In this context, "originally caused" means an affirmative act that creates the circumstance which results in the harm inflicted by the third party. See Brumv.Dartmouth, 428 Mass. 684, 693 (1999); Kentv.Commonwealth, 437 Mass. 312, 318 (2002); Gennariv.Reading Pub. Schs., 77 Mass.App.Ct. 762, 764 (2010). The requirement of an "affirmative act" is strict; it is also quite distinct from a failure to prevent the harm. See Kentv.Commonwealth, supra (where the court reiterated that the "original cause" language had been construed "to mean an affirmative act [not a failure to act] by a public employer that creates the 'condition or situation' that results in harm inflicted by a third party"). See also Brumv.Dartmouth, 428 Mass. at 696 ("[T]o interpret . . . the subordinate clause referring to 'originally caused' conditions, to include conditions that are, in effect, failures to prevent harm, would undermine that principal ...

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