Heard: September 13, 2017.
action commenced in the Superior Court Department on November
motion to dismiss was heard by Maureen B. Hogan, J.
P. Shapiro, Assistant City Solicitor, for the defendant.
J. Nicholson for the plaintiffs.
Present: Massing, Kinder, & Ditkoff, JJ.
appeal concerns the scope of § 10 (e) of the
Massachusetts Tort Claims Act, G. L. c. 258, which exempts
public employers from liability in tort with respect to
"any claim based upon the issuance, denial, suspension
or revocation or failure or refusal to issue, deny, suspend
or revoke any permit, license, certificate, approval, order
or similar authorization." G. L. c. 258, § 10
(e), inserted by St. 1993, c. 495,
Carlos Andrade was grievously and permanently injured when
Santano Dessin shot him in the neck, shattering Andrade's
spine and leaving him paralyzed from the neck down. The
plaintiffs allege that the gun Dessin used to shoot Andrade
had been wrongly returned to Dessin by defendant city of
Somerville (city) and the Somerville police department
(department) after the department had previously confiscated
it in the course of revoking Dessin's license to carry
firearms. We conclude that the city's conduct was
"based upon" licensing activity described in §
10 (e) and that the city is accordingly exempt from suit.
this appeal comes to us on interlocutory review of the denial
of the city's motion to dismiss,  we accept the facts
as alleged in the plaintiffs' complaint. See Kent v.
Commonwealth, 437 Mass. 312, 317 (2002); Greenleaf
Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81
Mass.App.Ct. 282, 288 (2012). In January, 2010, the
department notified Dessin that his license to carry had been
revoked because of a disqualifying adjudication of
delinquency that appeared on his juvenile record. The
department took possession of three firearms belonging to
Dessin. Dessin appealed the department's
decision, and a Superior Court judge determined that Dessin
was permitted to possess firearms. Following the judge's
ruling, although the department was awaiting a decision of
the Massachusetts Executive Office of Public Safety and
Security (EOPSS) regarding whether it could issue Dessin a
new license to carry, the department returned the three
firearms to him in August, 2011. The EOPSS subsequently
notified the department that Dessin was disqualified based on
his juvenile record, and at a hearing held on January 3,
2012, a Superior Court judge agreed.
hearing, the department "acknowledged that the firearms
should not have been returned to . . . Dessin and that they
would need to be surrendered to the police department."
Indeed, the department "informed the . . . Superior
Court that they would re-acquire and secure the firearm[s]
from . . . Dessin." However, "[a]t no time after
January 3, 2012[, ] did the [department] recover any of the
firearms from . . . Dessin nor did they take steps to make
sure that they were no longer being stored at [Dessin's
residence] in Somerville . . . until the shooting." Ten
months later, Dessin shot Andrade with one of the firearms
that the department failed to recover.
plaintiffs filed a multi-count complaint in the Superior
Court against the city, alleging claims of gross negligence
as well as negligent supervision and training both in
violation of G. L. c. 258, § 2, and loss of
consortium. The city filed a motion to dismiss the
three counts against it based solely on § 10 (e) . A
judge of the Superior Court denied the motion, and the city
initiated this appeal.