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Carlos Andrade & Others v. City of Somerville

Appeals Court of Massachusetts, Middlesex

October 30, 2017

CARLOS ANDRADE & others [1]
v.
CITY OF SOMERVILLE.

          Heard: September 13, 2017.

         Civil action commenced in the Superior Court Department on November 9, 2015.

         A motion to dismiss was heard by Maureen B. Hogan, J.

          David P. Shapiro, Assistant City Solicitor, for the defendant.

          Keith J. Nicholson for the plaintiffs.

          Present: Massing, Kinder, & Ditkoff, JJ.

          MASSING, J.

         This 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, § 57.

         Plaintiff 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.

         Background.

         Because this appeal comes to us on interlocutory review of the denial of the city's motion to dismiss, [2] 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 In January, 2010, the department notified Dessin that his license to carry had been revoked because of a disqualifying adjudication of delinquency that appeared on his juvenile record.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.[3] 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.

         At that 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.

         The 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.[4] 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.

         D ...


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